Court watches police interview with a 2nd accused player speaking on what led up to alleged sex assaults

WARNING: This post has graphic details.

Formenton tells the detective that after he and the woman had sex in the bathroom, she walked out naked. Then, he says, he had a shower to get ready for bed.

“I was pretty tired.”

He says he left the bathroom and saw the woman naked and giving oral sex to Hart again, before giving oral sex to Dillon Dubé “for 10 minutes.” Then, Formenton adds in the police interview, “she took a break for like, three minutes, and started crawling on the bed where McLeod was laying and started giving him oral sex.”

After that, the woman was on the floor “playing with herself” and seemed to get “frustrated” that no one was doing anything with her, Formenton says.

“She kind of took it personally, like she wasn’t hot enough, but really the guys just had girlfriends and didn’t want to do it in front of each other.”

WARNING: This post contains graphic details.

Formenton tells the detective in the video that when he, Hart and Thomas walked into the hotel room, the woman was on the bed and chicken wing boxes were everywhere.

The woman was “fully clothed,” Formenton says.

“She seemed normal,” he says when the detective asks. “She seemed pretty happy. She was talking to the guys.”

The woman was not drunk, Formenton says.

Formenton said he saw Hart speaking to the woman, flirting and “talking nice,” and then, “I saw her go down on her knees and give oral sex to Hart…. I’d say it was pretty mutual. He pulled down his pants and she went down on her knees.”

After about five minutes, the woman said, “‘Is anyone going to bang me? Is anyone going to do something to me or do I have to do everything.’” But, Formenton says, the men didn’t want to get naked in front of everyone.

“I volunteered,” Formenton says. “I obviously didn’t want to do it in front of the guys, that felt awkward, so we walked into the washroom and we had intercourse.”

What exactly did McLeod’s text say, the detective asks Formenton in the 2018 interview.

“He said there’s a girl in the hotel who wants to have a threesome, so I assumed he was there with a girl, so I said, ‘OK, I’ll come back to the hotel now.’”

Formenton says McLeod told him they were getting food and the girl “would probably be there for awhile.” Formenton, Hart and Thomas made their way back to the hotel together.

“What did you think was going to happen?” the detective asks Formenton.

“I just assumed that this girl wanted to have a threesome with me and Mikey McLeod,” Formenton responds.

He says McLeod only sent the text to him, not to a group chat.

Formenton tells the detective he no longer has those texts because he has a new phone.

Formenton says in the recorded police interview that after the ring ceremony and gala, he and his teammates decided to go out on Richmond Street, a popular drag in London, Ont.

“I was with the whole team walking downtown. We do everything as a team,” Formenton told the detective in 2018.

Formenton, 18 at the time, and teammate Rob Thomas were not able to get into Jack’s because the legal drinking age in Ontario is 19, so they went to another bar, Joe Kool’s, where some of the coaches were.

“We had nachos and a couple of drinks with the coaches,” Formenton tells the detective.

After about an hour or an hour and a half of “casual drinks” with the coaches, Formenton says, he got a text from McLeod saying, “There’s a girl in the hotel room who wants to have a threesome.”

Immediately after receiving that text, Carter Hart showed up at Joe Kool’s, at about 2 a.m. Formenton tells the detective.

The police interview with Formenton was conducted on Nov. 24, 2018.

In the video presented in court, Formenton is wearing a checkered dress shirt and black blazer. He’s in a small office, with his lawyer at the time, Louis Strezos, sitting off-camera. (Strezos is now a judge so no longer represents Formenton).

Newton starts by giving Formenton standard legal information about his rights, and tells him he is not charged and there are no grounds to lay charges at the moment, but that his interview could be used later in a police investigation or court proceedings.

The investigation dates back to that summer and wasn’t supposed to take that long, Newton tells Formenton.

In his 2018 interview, McLeod said he sent a text message to some guys that he’d ordered food, Cunningham reminds Newton.

“In the course of your investigation, did you see that text message mentioning food?” she asks Newton.

“No, I did not,” he answers.

About a week after McLeod was interviewed in his lawyer’s office in Toronto, Alex Formenton was interviewed in a law office chosen by his lawyer in London, Ont.

That interview was also video recorded. Court will soon be shown that video.

Retired police officer Stephen Newton is back testifying.

He’s being questioned by Crown lawyer Meaghan Cunningham about the Michael McLeod interview conducted in the office of the then player’s lawyer in November 2018, five months after

Newton first spoke to E.M. in June 2018.

Cunningham asks Newton why it took so long to speak to McLeod and why it was done in Toronto at the lawyer’s office.

Newton says an interview before an accused person’s lawyer is unusual. In his whole career, the retired investigator says, that only happened “a handful of times.”

“The norm would be that people I interview don’t have counsel or the counsel is not attending the interview, but this was a more unique circumstance because the individuals already had counsel and they were already involved in the case.”

It was important to get McLeod’s side of the story, so Newton agreed to have it in the presence of his lawyer.

A dozen or so supporters of the trial’s complainant — E.M. as she’s known in court due to a standard publication ban — are again at the courthouse.

These supporters are from the Sexual Assault Support Centre of Waterloo and provide training to hockey organizations about consent and other issues.

As some of the defendants and their lawyers arrived at the courthouse, the supporters chanted: “We believe E.M.”

A community police liaison came to talk to them briefly, advising them to stay on the sidewalk and not disrupt anyone inside or outside. They were told not to bring their signs into court.

They’re all now sitting in the main courtroom, without signs.

Earlier in the trial, during E.M.’s testimony and cross-examination, there were more than 40 protesters chanting as the accused men and their legal teams walked into the courthouse.

One protester brought a sign into the courthouse, which is not allowed, and security guards were reminded to keep any signs and any chanting out of court.

Trask is also curious about the Crown’s decision to try this case. He wonders how much public outrage and pressure played a role.

“Any time that you have an investigation that's taken place and then a decision to not lay charges followed by a lengthy, lengthy delay, and then ultimately a decision to lay charges and proceed with a prosecution, that can be a red flag,” he said.

Trask says the Crown can only proceed if there’s a reasonable prospect of conviction and a public interest in prosecuting.

“Interestingly, Ontario has a lower standard, in that sense, compared to some other provinces,” he explained.

“So for instance, in B.C., or Alberta or New Brunswick, there needs to be a greater than 50 per cent chance of a conviction in order for the Crown to proceed. … But that same standard doesn't exist in Ontario. It's a lower standard. You just need a reasonable prospect of conviction. You don't need a reasonable likelihood of conviction like you do in some other jurisdictions.”

Trask’s book draft is due next Monday, so this case won’t be part of it, but he says it will definitely be in his lectures in the fall.

“These sorts of cases don't come up all that often where the public is so engaged in sort of the day-to-day developments in a case, and I think it's actually really good for the Canadian public to understand how our legal system works.”

I’m Karen Pauls, a senior reporter who’s covering this trial with my CBC colleagues at the London courthouse.

I had an interesting conversation with one of the many legal experts who’s not involved in the case but is following it closely.

Brandon Trask, an associate professor in the University of Manitoba’s faculty of law, is writing a book about Crown policies and prosecutions.

Speaking from Winnipeg, Trask says he’s curious to find out why the Crown called now-retired London police sergeant Stephen Newton to testify. Newton was the lead investigator in the original case, which he eventually closed.

Newton’s value may be the Crown’s ability to play the recorded interviews he conducted with several of the defendants in November 2018, Trask said.

Newton told court yesterday he did in-person interviews with Michael McLeod and Alex Formenton, and phone interviews with Cal Foote and Dillon Dube.

Court watched McLeod’s interview yesterday, and we may see Formenton’s as well, although it’s not certain when. These previous interviews may be the only time we hear from any of the defendants, who aren’t mandated to testify.

Newton started the video by saying he didn’t believe he had grounds to lay sexual assault charges and had no plans at that point to arrest McLeod.

“There's certainly a perception, at least at this stage, that some of these witnesses have been arguably more harmful to the Crown's case than helpful,” Trask said.