LONDON — A woman who alleges she was sexually assaulted by five hockey players in a London, Ont., hotel room was neither too drunk to consent nor an "automaton" incapable of making decisions, a defence lawyer argued Tuesday in closing submissions that took aim at the woman's credibility.
The woman described several different states of mind to explain her behaviour over the course of that night in June 2018 and show that she wasn't consenting to the sexual activity at the hotel, but it would require "mental gymnastics" to reconcile those with the video evidence and testimony of other witnesses, argued Daniel Brown, who represents Alex Formenton.
Surveillance video from the bar where she first encountered several of the players contradicts her account that she was plied with alcohol and separated from her friends, and that she was extremely intoxicated, he argued. Meanwhile, none of the other players inside the room who were called to testify corroborated her testimony that there was an "oppressive atmosphere," he added.
The complainant's testimony that her mind disconnected from her body and she felt as if she was watching things unfold is incompatible with the fact that she made choices while inside the room, such as refusing to lie down on the floor until a sheet was laid out, he said.
The states of mind she described were "not truthful," but rather "designed to mask consent," argued Brown, who repeatedly said the woman lied or embellished in recounting the events of that night, including while under oath.
"Consent to sexual activity with a near stranger is still consent. Consent provided while impaired but not incapacitated is still consent. Consent provided to group activity or group sexual activity is still consent, and consent provided by one woman to more than one man at a time is still consent," Brown argued.
Formenton, Michael McLeod, Carter Hart, Dillon Dube and Callan Foote have pleaded not guilty to sexual assault, while McLeod has also pleaded not guilty to an additional charge of being a party to the offence of sexual assault.
Prosecutors allege that McLeod, Hart and Dube obtained oral sex from the woman without her consent, and that Dube slapped her buttocks while she was engaged in a sexual act with someone else.
Foote is accused of doing the splits over the woman's face and "grazing" his genitals on it without her consent. Formenton is alleged to have had vaginal sex with the complainant inside the bathroom without her consent.
The five accused were part of Canada's 2018 world junior hockey team, and were in London with many of their teammates for a series of events celebrating their championship win, including an open-bar gala hosted by Hockey Canada, court has heard.
After the gala, most of the team continued the celebration at a downtown bar, where the complainant was drinking and dancing with co-workers, court has heard.
The woman, who was 20 at the time, eventually left with McLeod to go to his hotel room, where they had sex, court has heard. That encounter is not part of the trial, which instead focuses on what happened after several other players came into the room.
Court has seen a text message McLeod sent to a team group chat shortly after 2 a.m., asking if anyone wanted a "three-way." Only Hart replied, saying he was "in."
The woman testified she was drunk, naked and scared when men she didn't know came into the room, and felt her mind "shut down." She engaged in sexual acts while on "autopilot," she said, and felt she had no choice but to go along with what the men wanted.
Two of the players' teammates in the room, Tyler Steenbergen and Brett Howden, testified that the woman at some point asked the group whether anyone would have sex with her, as did Hart, who was the only one of the accused to take the stand in his own defence.
The complainant, meanwhile, said she didn't remember saying such things, but that if she did, it was a sign that she was out of her mind due to intoxication.
Brown said the evidence "overwhelmingly" shows the complainant consented to sex with his client. The woman asked for someone to have sex with her, and Formenton took her up on her offer, though he didn't want to do it in front of the others, his lawyer said.
"They both agreed. It's not complicated," he said.
The woman, who cannot be identified under a publication ban, testified she remembered someone coming with her into the bathroom and feeling "resigned" to the fact that sex was going to happen.
The complainant not only got many things wrong in her testimony, but also lied on the stand, Brown further argued in his submissions.
She told the court she weighed 120 pounds at the time but agreed under cross-examination that it was close to 140 pounds, which she knew after having reviewed her medical records, he said. She then explained that she gave the lower number because it was what she had said in a previous statement, he said.
Brown argued it raised concerns the woman didn't respect her oath, and that it was more important to her to be consistent with her previous statements than to tell the truth.
A lawyer representing Dube said Tuesday the oral sex her client received was consensual. Dube told police in a 2018 interview that he received oral sex for about 10 seconds before realizing it was a "bad idea" and stumbling back.
That interview is credible and establishes there was some communication between Dube and the complainant about the activity, his lawyer Lisa Carnelos argued.
Dube did not mention touching the complainant's buttocks in the interview, Carnelos acknowledged, saying he may have simply forgotten to do so. She noted the detective conducting the interview didn't ask about it.
The complainant has not identified who she alleges slapped her and only one teammate, Steenbergen, recalled seeing Dube slap the woman's buttocks, describing it as neither hard nor soft, Carnelos said. Steenbergen agreed under cross-examination it was playful and not abusive, she said.
"You are left with nothing but a very minor playful act consistent with foreplay" between two people who were already engaged sexually, she said.
Defence lawyers have zeroed in on the complainant's credibility and reliability as they make their final pitches to Ontario Superior Court Justice Maria Carroccia.
On Monday, one of McLeod's lawyers argued the complainant made up a false narrative because she didn't want to take responsibility for her decisions that night, and that her lie snowballed into a police investigation.
When that police investigation was closed without charges in 2019, the woman shifted her narrative, David Humphrey argued.
The detective in charge of the case had told her she didn't appear intoxicated in security videos from the hotel, so she added a new element in making a civil claim, alleging she was scared of the men in the room, Humphrey argued.
The judge is expected to deliver her ruling on July 24.
This report by The Canadian Press was first published June 10, 2025.
Paola Loriggio, The Canadian Press
