Formenton’s lawyer cross-examines complainant in hockey sexual assault trial

Content warning: This story includes allegations of sexual assault.

LONDON, Ont. — The complainant in the sexual assault trial for five former NHLers was asked pointed questions on Thursday about who was to blame for the alleged incident of June 2018.

The woman, known as “E.M.” in court documents because of a publication ban on naming her, answered from elsewhere in the courthouse via CCTV to questioning by lawyer Daniel Brown, who represents Alex Formenton.

Brown said that on the night in question, after having a few drinks so that “Sober E.M.” would loosen up and became “Fun E.M.” (he used her real first name, which is subject to the publication ban, in both instances), an alternate personality.

“I don’t know that I like the alter ego,” E.M. said at one point during Brown’s cross-examination.

“’Fun E.M.’ doesn’t think about whether it is a good idea or a bad idea to cheat on her boyfriend,” Brown continued. “’Fun E.M.’ didn’t think of the consequences. ‘Fun E.M.’ went off to a hotel with a guy she barely knew.”

E.M. said she took responsibility for going to the Delta Armouries hotel with Michael McLeod and previously testified that she was not comfortable with what happened after consensual sex with McLeod.

“You said you blamed yourself for many years about what happened to you,” Brown said. “You no longer blame yourself. Who do you blame?”

“I still have some blame,” E.M. said.

“Do you believe that it’s easier to deny your deliberate choices than to acknowledge the shame, guilt and embarrassment that you felt about your choices?” Brown asked.

“I’m not sure I agree with you,” E.M. said. “I have a lot of blame for myself but I think other people should be held accountable for that night.”

Brown circled back to earlier testimony that E.M. said the men she met at the bar paid for all her drinks that night, pointing out she bought some Jagerbombs with a friend before meeting McLeod.

“Who is to blame for ‘Sober E.M.’ becoming ‘Fun E.M.’?” Brown asked, the third lawyer to cross-examine E.M. in four days. “Is that E.M. or Mr. McLeod or Mr. Formenton or Mr. (Carter) Hart or someone else? Whose fault is that?”

E.M. responded that she was accountable for drinking.

“It was your choice to get drunk?” Brown asked.

“I should be allowed to (have drinks) and not worry about having something bad happen,” she said.

Earlier, E.M. was cross-examined by lawyer Megan Savard, who represents Hart. Savard challenged E.M. on the language she used in the days after the alleged event, trying to get clarification on whether she heard the men in the hotel room say, “C’mon, don’t leave” or “She’s crying, don’t let her leave” when she tried to leave the room on June 19, 2018. Savard suggested the latter phrase was twisted to have more of a “criminal” implication.

“I stand by it,” E.M. said. “I was just trying to get the words out. They didn’t want me to leave and they made sure I didn’t by walking me back to the bedsheet.”

Savard countered that the mention of crying during that night was mentioned only during testimony this week.

“The reason you invented this story of the men saying, ‘Don’t let her leave, she’s crying’ (is because) you want it to be more likely that the jury will see this as worse than it was,” Savard said.

“I am saying my truth, my story,” E.M. said. “I’m not trying to make it seem any worse now. … I have no reason to come up with a worse version.”

Savard pressed E.M. to find a reference in the 2018 London Police Service statement that the players saw her crying. When later asked to read from her statement, E.M. read a section in which she told Det. Stephen Newton that the men in the room could be heard saying “she’s crying.”

“Thank you for finding that,” E.M. said.

McLeod, 27, has been charged with two counts of sexual assault, including one relating to aiding in the offence. Dillon Dube, 26, Cal Foote, 26, Formenton, 25, and Hart, 26, have each been charged with one count of sexual assault. All have pleaded not guilty to their charges.

Cross-examination is expected to continue Friday.