E.M. was ‘in over her head’ and resisted sex acts in ‘passive ways,’ Crown argues at ex-world juniors trial

‘Words matter, but so does context’

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Defence lawyers have been “nitpicking” at words that E.M. has used in different contexts – in her 2018 interviews with police, her 2022 statement to Hockey Canada, and while testifying over nine days, Cunningham says.

For example, E.M. said “I think” and “I feel” during testimony, but it was often when she was pressed on something she didn’t remember. She also used “asked” and “told” interchangeably, but Cunningham says that for E.M., there was no difference.

“It felt the same. Being asked to do something is the same as being told to do something, when you feel like you can’t say no,” Cunningham says.

“Words matter, but so does context. She was very careful about her words, but she was testifying for nine days and that is an extraordinarily long time for a witness to be in the witness box.”

Greenspan took issue with E.M. saying “in my face” and “on my face” when speaking about Foote’s penis and testicles during the splits.

“With the greatest respect to Ms. Greenspan, there’s no particular difference in this word choice,” Cunningham says, referring to Juliana Greenspan, Cal Foote’s lawyer.

Many people don’t understand that in a courtroom, the difference between “in” and “on” could be so important, Cunningham says.

She suggest that the judge focus on the substance of what E.M. is saying.