Complainant in Gee-Gees sexual assault trial 'didn't say no,' accused testifies

WARNING: This story includes graphic details some readers may find disturbing.

One of the two former University of Ottawa hockey players accused of sexually assaulting a woman testified in his own defence Thursday, telling court he and the complainant engaged in consensual sex and that "she didn't say no."

Guillaume Donovan and David Foucher are facing sexual assault charges in relation to an alleged incident at a Thunder Bay hotel in 2014. They were in town with the University of Ottawa hockey team, the Gee-Gees, at the time.

The complainant has previously testified she was having consensual sex with one member of the team, when another two players entered the room and initiated sexual contact without her consent. Her identity is protected by a publication ban.

Donovan, 27, began testifying in French Thursday morning in a Thunder Bay courtroom and finished early in the afternoon. He faced the judge as he responded to questions from his lawyer, Christian Deslauriers.

Donovan said he saw and heard his roommate having sex with a woman when he returned to their hotel room on the night of the alleged assault. He then entered an adjoining room to chat with other Gee-Gees players.

'It was all consensual'

Donovan testified he eventually decided to go to bed and returned to his room, where his roommate and the woman were still having sex. As Donovan got undressed, he became sexually aroused and approached their bed.

His roommate asked the woman if she was "OK for two," Donovan told court, and she agreed.

He said she began to perform oral sex as his roommate continued to have sex with her. Donovan said after his roommate got off the woman, he took his place. 

"The entire time I was with her she had her eyes open and was looking at me," Donovan said in French.

Donovan told court it ended when another Gee-Gees player entered the room, naked except for a pair of boots. The woman noticed and signalled for Donovan to stop. 

"As soon as she indicated she wanted to stop, I stopped. It was all consensual with her," Donovan said, telling court he turned on the lights for her as she gathered her things.

Donovan said he did not see the other accused player, Foucher, until he noticed him naked in the room when the lights were turned on.

Crown attacks judgment of accused

The Crown and Donovan were talking over each other at times, during a tense cross-examination, prompting Justice Chantal Brochu to intervene. 

​Crown lawyer Marc Huneault raised his voice at times as he asking Donovan repeatedly about what he was thinking that night when he began having sex with the woman without talking to her first.

"She didn't push back and we were looking at each other," Donovan said in French, repeating that she had agreed to sex with two men when his roommate had asked her.

Donovan said he didn't ask the woman or his roommate directly to establish consent.

Consciousness no bar, Crown argues

Donovan agreed with the Crown's suggestions that he had no way of assessing the woman's state of mind, and no way of knowing how much alcohol she had consumed.

"She was conscious," Donovan said. 

"That's the bar for respecting women? She's conscious?" Huneault shot back.

Donovan told court he did not wear a condom at the time. Huneault pressed him on whether he knew what kind of contraception the woman had been using and Donovan said he had no way of knowing.

Huneault said having sex without a condom requires specific consent and, asked if by having unprotected sex with a stranger Donovan had demonstrated poor judgment.

"I could have had better judgment," Donovan said.

Naked group sneaks into room

The other accused Foucher, 28, told court he had no memory of ever interacting or speaking with the complainant on the night in question — or at any other point. In previous testimony, she said she had been introduced to the Gee-Gee captain at the bar on the night before grabbing a taxi back to the hotel.

In Foucher's version of events, he had continued to drink and party with his teammates at the hotel after coming back from the bar.

Foucher addressed himself to the judge directly when facing questions from his lawyer, Celina Saint-Francois, and the Crown.

He and two other players began to "challenge" each other and, in the course of their horseplay, they stripped naked to their boots in a teammate's hotel room.

Foucher said the three of them eventually decided to sneak into another teammate's room through an adjoining door where they heard what sounded like sex.

"The goal was to see the action a little bit so we could comment about it in the other room," he said in French, telling court they did not intervene at any point.

'It wasn't my business'

He said he slid onto the unoccupied bed about two metres from where Donovan having sex with a woman and, when he noticed them changing position and reaching for the light switch, he threw himself between the bed and the wall. He said he and his teammates were comfortable being naked together after spending so much time in change rooms and hotels together, but he wanted to hide himself from the woman.

"It can be funny to be naked with friends, but with someone we don't know, not as much," Foucher said.

Foucher said he didn't come forward in the aftermath because he didn't think he had been involved in anything that could lead to a sexual complaint.

"It wasn't my business what happened with the woman," Foucher said.  "I wasn't the one who brought her back. I wasn't the one who had sex with her."

Crown says no respect for complainant

Foucher and Crown lawyer Marc Huneault clashed at various points in the cross-examination, with Foucher rejecting the premise of the questions and the two men frequently talking over each other.

Huneault asked him why he wouldn't, at least, put clothes on to go into another room where a woman he didn't know was having sex. Foucher said he and the other players who entered were already naked and that it was part of the prank.

"If we were clothed, it wouldn't have been as funny, Mr. Huneault," Foucher said.

Foucher said the players didn't intend for the woman to ever see them — the jokes were intended for teammates in the adjoining room — and that they showed concern for her by hiding when the lights came on.

Though, he later said, he now realizes the woman may have been affected by what she saw despite not having considered it at the time.

Huneault said Foucher was effectively a voyeur in the hotel room that night.

Crown questions leadership

Foucher told court he considered himself a "quiet captain," who led by his performance in the classroom and on the ice. He rejected Huneault's suggestion that he would stand up for his teammates no matter what.

The Crown pressed Foucher about why he didn't come forward when the allegations were raised and why he didn't speak to the Gee-Gees coach until two days after the alleged incident. Foucher said he had a "blank" in his memory according to the coach's report, which was part of testimony Wednesday.

Foucher disputed whether the coach's report reflected what he said four years ago. He said he didn't have anything to add because he didn't have sex with the woman and the coach had told him other players, including Donovan, had come forward.

Afterward, he and other members of the team weren't comfortable going to university administrators after the hockey program was cancelled with "no proof," he said.

"After the university went behind our backs, we didn't want to go the university's directors," Foucher said.

"We thought we were being congratulated on our seasons at the same time they held a press conference that they were shutting down the hockey team."

Closing arguments are expected to begin Friday at 9 a.m.

​CBC Ottawa's Matthew Kupfer is in Thunder Bay covering the trial. You can review his live tweets here.