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E.M. alleges that she agreed to leave a London bar and have consensual sex with one of the players. She alleges that after they were done, the player secretly texted World Junior teammates and invited them to come to his hotel room to also have sex with her. E.M. alleges that she was then sexually assaulted for hours and that the players forced her to record
two cellphone videos saying that she had consented to the sexual activity(opens in a new tab).
The first video is six seconds long and was filmed at 3:25 a.m. during the incident, Kaleigh Davidson, a lawyer working for the players, told TSN in 2022.
In that video, E.M., shown from her neck up, was asked, “You’re okay with this?” by an unidentified man, and she answered, “I’m okay with this.”
In another 12-second video which Davidson said was filmed at 4:26 a.m. after the incident, the woman was shown standing with a towel covering her chest.
“Are you recording me?” she said on the video. “Okay, good. It was all consensual. You are so paranoid. Holy. I enjoyed it. It was fine. It was all consensual. I am so sober, that’s why I can’t do this right now.”
The videos are critical evidence, said Andrew Furgiuele, a Toronto defence lawyer who represented former Soo Greyhounds player Andrew Fritsch when he was charged with sexual assault in 2012. (Charges against Fritsch and two other players were dropped before trial.)
“I expect the Crown to argue that the woman was coerced to make the videos,” Furgiuele said. “When you hear her say, ‘I am so sober, that’s why I can’t do this right now,’ that is an odd thing for someone to say and the defence are going to have to address that. The defence will also argue that the video is clear evidence from that moment that shows there was consent.”
According to Canadian law, an unconscious person cannot consent to sexual activity, and neither can someone who is so intoxicated that they are incapable of consenting.
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I'm guessing the Crown will argue that she was so intoxicated that she could not legally consent? It seems like the case will hinge on whether that consent in both videos is valid or not.