Crown at world juniors trial hammers ex-player Carter Hart on his memory of what happened in London hotel room

In Room 209 are Drake Batherson, Sam Steel, Brett Howden and McLeod, Hart says.

His first memory of the room is E.M. on a bed sheet on the floor, touching herself.

He says he has no memory of how the sheet got on the floor, of how E.M. got to the sheet, or of food being ordered or people eating it.

Hart says he believes he was the first person to have sexual contact with E.M., but the Crown says he has no way of knowing that.

He says “that’s the way it unfolded; I was the first one.”

But the Crown says it’s not possible for him to say he was the first one, because he has a memory gap.

“You can’t say whether someone asked her or told her to touch herself?” Cunningham asks. Hart responds he cannot say that.

“I felt like she was getting pleasure out of us kind of watching her,” Hart says.

“The fact that it looked to you that she was getting pleasure tells you that no one could have asked her or told her to do it before it started?” Cunningham asks.

“Throughout the whole night she was the one who asked guys to do stuff with her continuously,” Hart says.

“We’ll get to that,” Cunningham says.

Thomas, Formenton and Hart arrive to Room 209 at the Delta hotel together.

Hart testifies he remembers other guys in the room, including McLeod, who is on the far bed with his pants on but no shirt.

Cunningham suggests it wasn’t pants that McLeod was wearing, and Hart says that’s possible.

“Your memory of him wearing pants is not an accurate memory?” Cunningham asks.

“Right,” Hart concedes.

Hart says he received the text from McLeod while walking to the hotel.

He agrees with Cunningham that he showed up at the room with Rob Thomas and Alex Formenton after they received the text invitation.

Formenton also received a text from McLeod that wasn’t in the group chat and invited him to a threesome, court has heard.

Cunningham suggests this was an “unusual situation,” that they were all together while walking back to the hotel and they “must have talked about it.”

Hart says he doesn’t remember that.

McLeod also called Hart after he sent the text, and Hart agrees with Cunningham that the phone conversation was brief and he didn’t ask McLeod what the woman looked like, what she was into or whether she was interested in getting together with them.

“You were putting a lot of faith in your friend Mr. McLeod to set something up that was morally acceptable to you,” Cunningham says.

“Yes,” Hart answers.

Hart testifies that when he answered “I’m in” to the three-way text, he hadn’t made up his mind about whether he wanted to take part in sexual acts with her.

Cunningham pushes back on that.

“Did you like the idea of engaging in sexual activity with McLeod and a woman?” Cunningham asks.

“I was OK with it,” Hart answers.

“You don’t know her age, her level of intoxication, her physical appearance, her degree of willingness, and despite not knowing any of those things, you say, ‘I’m in,’” Cunningham says.

“You were drunk that night. You were hoping for sexual encounters that night. You didn’t meet anyone for that purpose and now all of the sudden this opportunity has presented itself,” she states to him.

“I’m going to suggest to you that you didn’t have any reservations. You were in.”

At 2:10 a.m., Michael McLeod texts the group chat, saying, “Who wants to be in a 3-way quick” and including his room number. It was sent to the whole team, but Hart says he thought the offer was for him only.

Hart responds, “I’m in,” at 2:19 a.m.

“You knew the invitation wasn’t just to you?” Cunningham asks.

But Hart insists that when he saw the text, he didn’t think it was an invitation for the team to engage in sexual activity.

Hart agrees he assumed “it was an agreed-upon plan” between McLeod and the woman.

“Why assume that?” Cunningham asks.

“Usually, most people don’t send out a text if you have a person who is not agreeing to it,” Hart says.

“You’re just assuming that he wouldn’t make that invitation if it wasn’t something she’d be interested in?” she asks.

“That’s correct,” Hart answers.

Hart agrees with Cunningham that he was out to celebrate the world junior hockey win, but also looking to have a sexual encounter.

“You got to do both of those things at the same time,” Cunningham states.

Hart says he danced and talked to women at Jack’s bar.

Cunningham suggests there were “lots of young women at Jack’s bar, lots of opportunities to meet someone and go back to your hotel for a one-on-one encounter.”

Hart agrees.

He says he doesn’t remember seeing E.M. at Jack’s bar or McLeod and some of the other men “dancing closely” with a woman at the bar.

At 1:13 a.m., Hart sends a text to the group chat saying, “Rippers anyonr” (sic), and then, “I’m going.”

(Rippers is slang for strip club).

“At this point in the night, you're in the mood to see naked women?” Cunningham asks.

“Yes,” Hart says.

He says no one took him up on his “rippers” offer.

Cunningham starts cross-examination of Hart by asking him about his alcohol consumption the night and early morning of June 18 and 19, 2018.

Hart agrees with the Crown that his memory is imperfect, partly because of the alcohol and also the passage of time.

He also agrees after Cunningham says he had five to eight drinks by the end of the Hockey Canada gala and ring ceremony (to celebrate the teams world championship win months earlier), and then three or four pints at Joe Kool’s bar, and three to five “dollar beers” at Jack’s bar (they’re smaller than regular beers).

When he returned to Joe Kool’s after Jack’s, Hart doesn’t remember if he drank anything, he testifies. He’d never been that drunk before, other than maybe the night before with his teammates.

The large gaps in his memory might be from being blackout drunk, but he was never passed out or unconscious, Hart says to Cunningham’s suggestions.

Good morning, I’m CBC reporter Kate Dubinski and have been covering this trial pretty much from the get-go.

We are all settling into the courtroom, where there are quite a few people, including family and people just wanting to watch it — as has been the case throughout the proceedings.

In the weeks since the trial began, there’ve been lots of turns and curveballs. And memorable moments.

Today, there are doughnuts in the courtroom.

It’s assistant Crown attorney Meaghan Cunningham’s 50th birthday, so the defence lawyers for co-accused former player Alex Formenton brought in doughnuts — one for every decade, lawyer Dan Brown told her as he delivered them to the Crown’s table.

Cunningham has a big day ahead of her for another reason.

She’s cross-examining Carter Hart, the first former player on trial to testify.

Hart walked into court this morning in the same burgundy suit he was wearing yesterday, but with a different dress shirt. He was flanked by his lawyers and his mom, who has been here every day since the trial began.

I’m Katie Nicholson, one of the CBC reporters covering the trial.

With Carter Hart entering the witness box yesterday to testify, a well-worn legal strategy may have been at play.

McLeod’s lawyer, David Humphrey, made it clear he would not call evidence. We don’t yet know if the other accused former world junior hockey players will also testify, but they may not need to.

Toronto-based defence lawyer Leo Adler says it isn’t uncommon, in a case where there are co-accused, to just call one of them to testify, especially if defence teams are working collaboratively.

“Hopefully you all have more or less the same theory of the defence, and hopefully only one person, perhaps the most articulate … can testify literally on behalf of everyone else,” says Adler says, who isn’t involved in this trial but is speaking as an observer.

The other defence teams can then use that witness to add in questions of observations that help them confirm their overall defence.

That is essentially what we saw play out as Hart gave evidence that may be helpful to other players, notably testifying that Cal Foote was fully dressed when he did the splits over E.M. and she was laughing. This would be at odds with E.M.’s allegation that he did the splits naked over her face.

Adler says the decision to testify is ultimately up to the accused individuals, but their lawyers would have to ask:

“How is my client best served? How do I show that there is reasonable doubt? How do I show that the main Crown witness is lacking in credibility and reliability?”

Adler says because this is now a judge-alone trial (following the jury’s discharge a couple of weeks ago), it is also likely Hart may be the only person to testify. In fact, he says, it’s a common strategy.

“The judge is supposed to know the law and appreciate that you don't need five people saying the same thing over and over in order to make the point."

Carter Hart, one of the five former world junior hockey players on trial, was cross-examined by the other defendants’ defence lawyers yesterday.

But, unlike some cases, his cross-exam wasn't hostile, says Toronto criminal defence lawyer Alison Craig.

“It wouldn't be the type of cross-examination that you see on TV with the lawyer finger-pointing, and yelling and making accusations. It would be a whole lot of softballs,” she says.

Nick Cake agrees.

“These defendants are friendly with each other and … they have all toed the party line from Day 1 that nothing wrong happened in that room,” says the London-based defence lawyer and former Crown attorney.

Hart was a goaltender for the NHL’s Philadelphia Flyers for six seasons. He’s now a free agent, which means he could sign a new contract as of July 1.

The trial and verdict are likely to impact his career, which is why Craig says his testimony is crucial — both professionally and personally.

“He can rejuvenate his hockey career if he's acquitted,” she says. “But more importantly, if it goes badly and he's convicted, he'll almost certainly serve jail time” and his life will be impacted by a criminal record, she says.

“It’s probably the biggest moment of his life to date."