Woman in Hockey Canada sex assault trial 'has shown resilience,' says lawyer who settled her civil case
As criminal trial continues, Robert Talach says civil settlement met sports organization’s criteria
WARNING: This article contains graphic details, references sexual assault and may affect those who have experienced sexual violence or know someone impacted by it.
The London lawyer who represented the woman in the Hockey Canada civil lawsuit settlement says he's closely watching the sexual assault trial underway in the southwestern Ontario city, and he believes she was a credible witness in her more than one week of testimony.
Robert Talach isn't involved at all in the criminal trial centring on the allegations by his former client. To protect her identity under a standard publication ban, she's known as E.M. in the criminal case against the five former world junior hockey players, who've all pleaded not guilty.
Talach is no longer E.M.'s lawyer and says he hasn't spoken with her in years.
CBC News spoke to him as the sexual assault trial was nearing its end, with legal arguments by the defence and Crown, after almost eight weeks of proceedings. Justice Maria Carroccia will hand down her decisions on July 24.
In the interview on Wednesday, Talach said of E.M.: "She's a stronger person than I remember. Remember, this is a tiny little 5-foot-4, 140-pound, quiet-as-a-church mouse woman.
"I think the unfortunate thing is the public doesn't get to meet her or see her. And when you understand her personality and you understand her a little bit more, it all makes a lot more sense."
Talach is a senior partner at Beckett Personal Injury Lawyers and leads the department for sexual abuse cases. He was contacted by the woman soon after the alleged sexual assaults in a London hotel room in June 2018.
She retained Talach to launch the civil suit against Hockey Canada after the initial London police investigation was closed in 2019. Talach stopped representing her in May 2023 after a settlement from the sports body was reached.
Michael McLeod, 27, Carter Hart, 26, Alex Formenton, 25, Dillon Dubé, 26, and Cal Foote, 26, are all charged with sexual assault in June 2018. E.M. testified early into the trial that she only had to consensual sex once with McLeod and didn't agree to the sexual activity that happened after that. McLeod is also charged with, and has pleaded not guilty to, being a party to the offence for allegedly inviting other men to the room for sex.
The Crown alleges that McLeod, Hart and Dubé obtained oral sex from E.M., that Dubé also slapped her on her naked buttocks while she was engaged in a sexual act with someone else, that Formenton had vaginal sex with her in the bathroom, and that Foote did the splits over her face while she lay on the ground and his bare genitals grazed her face — all without her consent.
Talach has particularly followed E.M.'s testimony and cross-examination. He says she appeared calm and credible.
"People need to understand that the totality of the events here are probably less than seven hours, but she was questioned for seven days on those. So you're talking about a full day of questioning for every hour of events," Talach said, adding cross-examinations were conducted by some of the best criminal defence lawyers "money can muster."
Complainant's credibility questioned
In their closing statements, defence lawyers attacked E.M.'s testimony as containing a "cornucopia of credibility and reliability concerns." They presented as an exhibit, a 30-page document listing what they say are concerns in her testimony.
In his closing arguments, McLeod's lawyer, David Humphrey, said E.M. was not only a willing and active participant of the sex acts — she instigated them. And then, told a white lie to cover it up, one Humphrey says snowballed out of control.
Other lawyers have accused E.M. of changing her story and lying in the witness box to push "an agenda" in a bid to protect her reputation and relationships.
Formenton's lawyer, Daniel Brown, accused her of perjury.
"She didn't just get things wrong; she lied under oath," Brown said. "It should give Your Honour concerns."
The defence has pointed to differences between E.M.'s initial 2018 police statement and the statement she provided to Hockey Canada in 2022 as part of its internal review.
In her testimony, E.M. said her lawyers had written up the statement. She said she gave it a cursory read and signed it, but didn't catch some of the discrepancies.
Talach said both statements can be seen as true, adding that early accounts by someone still in the aftermath of the events often have more errors in them than those after the fact.
He pointed out E.M. voluntarily underwent, and passed, a polygraph based on her 2022 statement.
"We stand by the statement we did with her. She was a very different person when she dealt with the police. You know, you're still in the thick of trauma. I think probably there was more effort put into trying to put the pieces together in her 2022 statement," he says.
"I think inconsistency is suggestive of truth and reality."
Woman got 'a fraction' of $3.55M civil claim
Defence lawyers, and even Carroccia, have commented on the speed in which the Hockey Canada lawsuit was settled. It was launched on April 20, 2022, and concluded by May 24 the same year, before the players knew anything about it.
Talach said the evidence met Hockey Canada's standard, one he argues everyone should care about: "Is this the conduct we want of our national heroes and sports celebrities when they're behind closed doors? Is this a type of example that other young players should follow? Is there a culture problem in hockey?"
Besides, he said, E.M. had nothing to lose or gain by her involvement in the criminal trial. Her civil lawsuit was dealt with and she had received a settlement from Hockey Canada.
Talach won't reveal the amount E.M. received, but said it was "a fraction" of the original $3.55-million claim.
"What motive does she have to lie at that point?" Talach said. "She's providing a benevolent service to our national sport by participating in a process that provides her nothing."
CBC reached out to Hockey Canada mid-afternoon Thursday for comment and soon after, a spokesperson, Jeremy Knight responded by email: "To ensure that we do not interfere with the integrity of the appeal process or the ongoing criminal proceedings, we cannot comment at this time."
The appeal Knight is referring to was launched in the wake of a 2023 report by an independent adjudicative panel that met to determine if any of the world junior players linked to the sexual assault case breached Hockey Canada's code of conduct.
None of the report's findings have been released amid the appeal. The independent appeal board has allowed the appeal to be on hold until after the London trial is over. In the meantime, the five players who were charged remain suspended by Hockey Canada until the end of the appeal process and aren't eligible to play, coach, officiate or volunteer with programs sanctioned by the sports body.
Hockey Canada's audited financial report shows it paid out nearly $3 million in multiple settlements in 2021-22. After this information was first reported by TSN, London police relaunched its criminal investigation, leading to the charges against the five former players, who all at one time had NHL careers.
Lawyer questions validity of 'consent videos'
For Talach, the crux of the case is simple. (He raises points that he believes happened but are right now only allegations.)
"She left the bar with one individual to engage in one-on-one basic sex. That unfolded into a whole bunch of guys coming into this room uninvited [by the complainant], her being directed to do things, being spit on, conversations about very odd sexual acts like the [alleged] use of the golf clubs and the golf balls," he said.
"Is this what she agreed to when she left the bar with one individual? Absolutely not. And every one of those individuals there contributed in some way to the environment and to what unfolded, either by their presence, either by conversations."
Talach hopes the Crown in the criminal trial pushes back on the validity of the "consent videos" recorded by McLeod as a sign the players knew they didn't have full, free and voluntary consent.
"If you had a reasonable understanding of consent, and you were pretty confident that this was consensual, why do you feel the need to record it after the fact? You can't get consent after the fact, so it's useless in a legal form," he says.
"I think that showed that they had doubts."
In her closing statements, Crown attorney Meaghan Cunningham argued E.M. did not voluntarily agree to the sexual acts that occurred after McLeod sent a text to his teammates, asking if they wanted a "3 way" and a "gummer" (slang for oral sex). Rather, Cunningham says, E.M. was placed in an environment without her consent where her ability to make a choice was compromised. She testified she felt "scared and confused."
"Neither acquiescence nor passivity are consent," Cunningham contended.
The defence has argued the Crown has not presented evidence beyond a reasonable doubt.
The trial as a 'public service'
Even if any of the five accused men is acquitted, Talach said, this case has raised conversations about hockey culture in Canada, and he hopes E.M. will see that as a win.
"I don't think there's any losing for her in this because she's really at this stage doing this as a public service — there's nothing that she gets out of this," he said.
"What I think she's done is she's helped inform a public debate on our national sport. I think that she is pointing out some challenges within our criminal justice system. … And I think she's really shown resilience for other survivors."
He hopes others won't be deterred by what they've seen transpire in Courtroom 21 of London's Superior Court and that this case motivates others to come forward.
"You can't have justice if you don't take the first step."
If you're in immediate danger or fear for your safety or that of others around you, please call 911. For support in your area, you can look for crisis lines and local services via the Ending Sexual Violence Association of Canada database.
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With files from Kate Dubinski