(Updated) Videos not evidence of complainant's consent, Crown argues at hockey players' trial

Two cellphone videos in which a woman says she's "OK with this" and that "it was all consensual" are not evidence that she actually consented to the sexual acts that took place inside a London, Ont., hotel room, prosecutors argued Friday at the sexual assault trial of five former members of Canada's world junior hockey team.

Prosecutor Meaghan Cunningham argued the videos, taken about an hour apart in the early hours of June 19, 2018, also did not constitute reasonable steps to determine whether the woman voluntarily consented to specific sexual acts with any specific person. At most, they were a kind of "token lip service box checking," she added.

Michael McLeod told police in 2018 he took the first video because he was worried "something like this," meaning the investigation, might happen, and the second because he wanted to get the woman's consent for "the whole thing," Cunningham said.

In the first video, a voice off camera asks the woman twice if she is “OK with this” and she agrees, repeating the words. 

The woman was naked, on her knees, wiping her eye, with men all around her speaking loudly, and according to what McLeod told police, had just been upset and calmed down, the prosecutor said. 

"In that context, getting her to confirm some kind of broad advance consent to unknown acts, that is not a reasonable step to ascertain valid consent," Cunningham said.

The second video starts with McLeod telling the woman to "say it," the prosecutor said. The woman then says it was "all consensual" and that she "enjoyed it."

"The recording of that video is not getting her consent to anything. Everything's already happened," and consent must be communicated for each specific act at the time it takes place, Cunningham said.

In both cases, the woman was simply telling McLeod what he wanted to hear, and she testified at trial it did not reflect how she truly felt in the moment, the prosecutor said.

Over the course of the night, no one attempted at any point to have a sincere conversation with the woman about what she wanted, or thought about whether she was really consenting, Cunningham said. 

That's because they were "thinking in terms of rape myths and mistakes of law about what consent is and how it can be communicated," she said.

McLeod, Carter Hart, Alex Formenton, 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.

McLeod, Hart and Dube are accused of obtaining oral sex from the woman without her consent, and Dube is also accused of slapping her buttocks while she was engaged in a sexual act with someone else.

Formenton is alleged to have had vaginal sex with the complainant inside the hotel room's bathroom without her consent, and Foote is accused of doing the splits over her face and "grazing" his genitals on it without her consent.

The events at the heart of the trial took place as most of the team was in London for a series of events celebrating their gold-medal performance at that year's championship. 

The complainant first encountered some of the players at a downtown bar, court heard. She and McLeod left together and had sex in his hotel room, an encounter that is not part of the trial, court heard. The charges relate to what happened after several other teammates came into the room.

It's important to remember that it was "no ordinary night" for anyone involved, and the men in the room couldn't believe what was happening, Cunningham argued.

"In circumstances where they significantly outnumbered an intoxicated woman they had never met before, each of the accused were legally required to have taken more steps than they did to ascertain her consent, to ascertain whether she was voluntarily agreeing to each of the specific acts they engaged in at the time that it happened," she said.

Defence lawyers representing the players made their closing submissions to the judge earlier this week, focusing largely on the complainant's credibility and reliability as a witness.

Lawyers for McLeod, Hart, Formenton and Dube argued their clients had consensual sexual contact with the woman, while Foote's lawyer argued he didn't touch her, sexually or otherwise.

The Crown argued Thursday that the complainant's actions should not be judged based on what others believe she should have done that night, nor should her demeanour at trial be scrutinized based on myths about how an "ideal victim" behaves.

Ontario Superior Court Justice Maria Carroccia is expected to deliver her ruling in the case on July 24.

This report by The Canadian Press was first published June 13, 2025.