Content warning: This story includes allegations of sexual assault.

LONDON, Ont. — Two defence lawyers took aim Monday at the credibility and consent of the complainant at the centre of the trial of five former NHLers accused of a sexual assault in 2018, in the first day of closing submissions.

“This is a case where the defence has an embarrassment of riches, a cornucopia of compelling credibility and reliability concerns in E.M.’s testimony,” David Humphrey, one of Michael McLeod’s lawyers, told Justice Maria Carroccia and a packed courtroom.

Humphrey later added, referring to E.M., as the complainant is known because of a publication ban on her name, “This is not criticism of her. It’s a natural phenomenon commonly seen in young people who, under the influence of alcohol, make regrettable choices and give into sexual attractions. But as sobriety returns, regret and embarrassment often emerge. Concern for personal reputation is natural.”

Court heard previously that E.M. had consensual sex with McLeod before other players came into Room 209 at the Delta Armouries in London in the early hours of June 19, 2018, after a Hockey Canada gala. E.M. testified that she felt “scared,” and engaged in sexual acts with three of the players while she was on “autopilot” out of fear for her safety.

Humphrey said that E.M. made up the story of a group sexual assault because she wanted to hide it from her boyfriend and her family, and that she has taken “no personal responsibility” for her level of involvement in the incident. E.M. testified during the trial that she had 12 alcoholic drinks that night.

“She wants to present herself as a victim rather than a person who is responsible for her own choices,” Humphrey said. “As her drunkenness diminished, she may not have wanted to acknowledge to others or to herself that she had just been sexually adventurous in a hotel room with multiple men she had just met that night.”

Humphrey said E.M. changed her story from being too drunk to consent when speaking to London police in 2018 to being too scared to consent when she worked on her civil suit against Hockey Canada that was settled in 2022.

Humphrey also contended that E.M.’s actions did not align with how someone would typically behave if she felt scared for her safety.

“If you’re terrified, you do the minimum to avoid the harm,” Humphrey said. “You maybe acquiesce, you maybe submit. … It’s preposterous to say, ‘Somehow I came up with this concept, the way to get out of the room is to invite everybody to have sex with me.’”

Humphrey added that E.M. did not act scared in the room that night simply because she was not scared.

Humphrey’s submission was followed by that of Megan Savard, lead counsel for Carter Hart. Savard also attacked E.M.’s credibility, focusing on her actions that night.

“My primary argument is that (E.M.) was consenting enthusiastically and regretting it later,” Savard said.

Savard said earlier that E.M. had very little memory of the night, especially during her initial interview on June 22, 2018, with London police detective Stephen Newton. She added that she did not tell Newton in that interview that she felt scared.

Savard also said the idea that the players were protecting each other with their testimony and text messages sent in the week after the incident was “insidious,” adding that the testimony of Hart — the only player to take the stand — did not become a “yes man” for the defence.

Savard added that the group chat involving players who were in the room that night was a “spontaneous utterance” and not evidence of collusion. Further, she said, “they have no reason to lie for one another” because they didn’t know each other before playing on the 2018 Canadian world junior team and haven’t communicated since the group text.

Closing submissions, also known as closing arguments, are used by the defence and Crown to summarize evidence, reinforce key points and attempt to persuade, in this case the judge, to rule in their favour. Closing submissions are not evidence.

McLeod has been charged with two counts of sexual assault, including one relating to aiding in the offence. Dillon Dube, Cal Foote, Alex Formenton and Hart have each been charged with one count of sexual assault. All pleaded not guilty to their charges.

The trial is in its eighth week. Closing arguments by the defence are expected to continue Tuesday. After all five teams of lawyers for the defence have spoken, the Crown will present its closing submissions. After that, the defence lawyers get a chance for rebuttal or reply to anything the Crown said. Carroccia is expected to set a date to read her ruling after the rebuttals.