Crown continues closing arguments as sex assault trial of ex-Hockey Canada players expected to wrap today

Donkers notes that Hart said “‘I’m in’” almost immediately after getting the text about the threesome from McLeod, without knowing anything about the woman involved.

Hart also didn’t take any steps to assess the situation when he arrived or even ask the woman her name, the Crown contends.

“He did not have a conversation with her either to ascertain what brought her there, what she was interested in, what her limits were, what contraception should be potentially used,” she says.

“Instead, he was presented with the opportunity that he was looking for all night — to have sexual activity with a woman — and in his excited state, rather than take the steps that would be reasonable in the circumstances, Mr. Hart was reckless as to whether E.M. was consenting to the sexual act of oral sex with him, specifically. As a result, Mr. Hart is guilty in her submission of sexual assault.”

We’re now on a short break.

Donkers begins by talking about Hart’s credibility and reliability.

He acknowledged to the Crown under cross-examination that he didn’t actually see how Cal Foote got out of the splits, but he agreed with suggestions by Foote’s lawyer, Juliana Greenspan, about what he had seen.

“That suggests a carelessness with the truth. He didn’t see the thing that he agreed with Greenspan he had seen,” Donkers says. It shows a willingness to testify to something that he doesn’t know about to help his co-accused, she adds.

Donkers says there’s evidence and testimony to suggest Hart received oral sex twice from E.M., but he only testified about one instance of oral sex. She didn’t make a “voluntary choice” to perform oral sex and Hart didn’t take the reasonable steps to make sure she was consenting. She was “intoxicated … vulnerable … (and) did not want it.”

Hart said in the witness box that he asked E.M., “‘Can I have a blowie?’” (slang for blowjob), but no one else testified to that. Even if the judge finds that he did ask her, that’s not consent, Donkers argues.

“Hart had the power in that situation, and she had none.”

Cunningham is done presenting final arguments for now and the other assistant Crown in this case, Heather Donkers, has taken over addressing the court.

Donkers is taking the judge through the “credibility and reliability concerns” of each man’s case.

She says the recurring theme of the defence case is the men thought E.M. was consenting through her words and actions, and that they thought interest in general sexual activity is consent to other specific acts.

The second “consent video,” in which E.M. is naked and holding a towel over her torso, begins with McLeod saying, “‘Say it,’” Cunningham says.

E.M. testified she didn’t remember the videos were recorded, but that when she watched them, it brought back a memory of McLeod “‘hounding’” her to say she had consented, and she said that to “‘get out of there,’” the lawyer reminds the judge.

He then says, “‘What else?’” and she says it was all consensual and that she was fine and enjoyed it.

McLeod was “directing” what E.M. should say, Cunningham argues.

“If she’s begging for sex, wouldn’t she say something like that?”

Saying, “‘It was fine, I enjoyed it,’ doesn’t reflect E.M.’s supposed enthusiasm for what took place,” Cunningham says.

McLeod texted E.M. on June 20, 2018, and told her to call the police and tell them her mom’s report of sexual assault was a “mistake,” another example of him “directing” her what to say, the Crown lawyer adds.

Cunningham tells the judge that “at no time did anyone engage in a sincere conversation with E.M. about what she truly wanted to happen. At no point does anyone say, ‘Do you want to slow this down?’”

“Your Honour has heard from the men in the room that all of them thought her conduct was on some level bizarre, strange or outrageous, but no one asked her, ‘Are you feeling OK? Is this really what you want to be doing?’”

The videos (taken by McLeod) are not evidence of consent — they’re “token lip service box-checking” that is not a real step to ascertain consent.

“She is naked, on her knees, with men talking around her, Mr. Hart saying, ‘I’ll get Fabs, I’ll get Fabs,’ she’s wiping her eyes. That is not a reasonable step to ascertain valid consent.”

Court previously heard that when the first video was recorded, Hart was trying to get Dante Fabbro into the room to have sex with E.M.

Crown lawyer Meaghan Cunningham gets things started by saying the Crown has to prove each of the five men on trial knew E.M. didn’t consent to sexual activity, or that they were wllfully blind or reckless in assessing her consent.

If the men had a mistaken belief that E.M. consented, they "honestly” would have had to have believed she effectively said “‘yes’” through her words or actions.

The honest belief must be that the consent was voluntary, that the voluntary agreement was for specific acts that took place and that it was with the specific person with which the acts took place, Cunningham says.

Being mistaken about what consent is or means is not a defence, she contends.

“If they believe that consent can be given in advance, or that as long as she didn’t say ‘no’ she was consenting, or that consent does not need to be for specific acts, or a belief that consent to someone else is consent for them — none of them are consent in law.”

Reasonable steps must be taken to get consent, the law states, and “greater care” must be taken to get consent if the parties are strangers to one another, or if the complainant is drunk or vulnerable, Cunningham says.

“If a reasonable person would have taken more steps than the accused, then the defence fails.”

Good morning. I’m the reporter based in London, Ont., who has been writing many of the live updates on this page.

Proceedings start an hour early, at around 9 a.m. ET, in the hopes that everything except the judge’s decision (scheduled for July 24) will be finished today.

The courthouse doors don’t open until 8:30 a.m., but lawyers for Mike McLeod and Dillon Dubé, as well as Dubé himself, arrived at 8:20 a.m. and had to wait for security to unlock the doors. My colleague, Meagan Fitzpatrick, was already here and waiting in line.

Cal Foote is calling in remotely today, as OK’d by the judge, because he’s attending a family wedding this weekend and was travelling. His lawyer says he’ll be in a room alone, without his cellphone.

The accused men have mostly worn dark suits throughout the trial. Today, McLeod is in a dark blue suit, Hart is in burgundy (with a blue dress shirt and bright tie), Formenton’s suit is forest green (with a white shirt) and Dubé is in a navy suit.

Good morning. I’m a producer based in Toronto and I’ll be curating our live page today.

Our team of reporters is back at the London courthouse. We’re expecting this to be the last day of proceedings in the eight-week trial before Justice Maria Carroccia hands down her decisions on July 24.

Court is getting underway today around 9 a.m. ET, an hour earlier than usual, to ensure the Crown and defence teams have enough time to finish their submissions.

Stay with us for all the latest developments.