Justice Maria Carroccia, who has been presiding over the case, announced her ruling Monday morning in a London, Ont., courtroom.Nicole Osborne/The Globe and Mail
A text message that the Crown says is crucial evidence against one of the five former members of Canada’s 2018 world junior hockey team who is on trial for sexual assault has been ruled inadmissible.
It was Crown attorney Meaghan Cunningham’s second attempt at getting the text message – which describes one of the accused players hitting the complainant hard on the buttocks – entered into evidence.
But on Monday morning, Justice Maria Carroccia told a London, Ont., courtroom that she has concerns about the accuracy of the message.
The text was sent by former junior player Brett Howden to his then-teammate Taylor Raddysh a week after five other members of the world junior team are alleged to have sexually assaulted a woman – known publicly as E.M. − in a hotel room on June 19, 2018, after a Hockey Canada gala.
Mr. Howden and Mr. Raddysh are not accused of any wrongdoing, but both were in the hotel room on the night in question and have appeared as witnesses in the trial.
Court has heard that on June 26, 2018, Mr. Howden texted Mr. Raddysh: “Dude I‘m so happy I left . . . Man, when I was leaving, Duber was smacking this girl‘s ass so hard. Like, it looked like it hurt so bad.”
“Duber” is a reference to Dillon Dubé, court has heard, who – along with Michael McLeod, Carter Hart, Alex Formenton and Cal Foote − is on trial for sexual assault. Mr. McLeod faces a second charge of being a party to sexual assault.
All have pleaded not guilty.
Justice Carroccia’s decision on Monday is a blow to the prosecution’s case. Last week, Ms. Cunningham characterized Mr. Howden’s text message as “critical corroboration” of E.M.’s testimony and “direct evidence” of the offence.
(Earlier this month, E.M. testified that she was slapped hard on the buttocks by one of the players in room 209 at the Delta Armouries hotel.)
The Crown has twice tried to put the text message on the record. The latest attempt was under what’s called the “principled exception” to hearsay rule for evidence. Last week, Ms. Cunningham lost another application called the “past recollection recorded.”
In both instances, Justice Carroccia told the court she was persuaded by arguments from the defence lawyers that the text exchange did not meet the legal test to be included.
While Mr. Howden has testified that he believed he was being truthful when he sent the message – “I had no reason to lie” – he also said he did not remember sending that specific message. He also conceded under questioning that the conversation was “casual” and that he was not concerned at the time about every word being factual, the judge found.
On Monday morning, Justice Carroccia told the court she still has concerns about how the accused players’ lawyers will be able to cross-examine Mr. Howden on the text message, given that he can’t verify the accuracy of the message. The judge said it was possible that Mr. Howden – who currently plays in the NHL for the Vegas Golden Knights – was mistaken or exaggerating.
Justice Carroccia concluded that the message amounts to hearsay evidence.
When evidence is deemed inadmissible, it means a judge cannot consider it when rendering a verdict.
After Justice Carroccia’s ruling on the text admissibility, lawyers representing each of the accused players had a chance to cross-examine Mr. Howden on the evidence he’s given while in the witness box over the past week.
Megan Savard, who is representing Mr. Hart, asked Mr. Howden about a traumatic head injury he suffered in March, 2022, during an NHL game.
“I think you were unconscious for something like nine minutes on the ice?” Ms. Savard asked, adding that she understood he suffered a serious concussion. “Have you noticed that since you suffered your head injury that you’ve had more trouble remembering things than you did before?”
Mr. Howden said it wasn’t something he had thought much about before the trial: “I’ve never really had to remember- try to remember so many little details like this before. And it’s definitely gotten a lot harder over time.”
The NHL player’s memory has been an issue throughout his testimony. Under questioning from the Crown last week, Mr. Howden said he had no memory of events that he has previously described as happening.
For example, court has heard that Mr. Howden told a Hockey Canada investigator in 2018 that he believed E.M. was “weeping” in the hotel room. He also told the investigator that he saw Mr. Dubé slap E.M.’s buttocks. But at the trial Mr. Howden said he could not recall either event happening. (Hockey Canada is the sport’s national governing body. In 2018, the organization hired Toronto lawyer Danielle Robitaille to investigate the alleged attack.)
Mr. Howden’s previous statements came up again in court during his cross-examination.
Hilary Dudding – the lawyer for Mr. Formenton – asked Mr. Howden about statements he’s given concerning her client, who court has heard had sex with E.M. in the hotel room bathroom.
In 2018, Mr. Howden told Ms. Robitaille that he and Mr. Formenton spoke while the latter was walking to the bathroom: “I remember on the way he [Mr. Formenton] asked me, he said, ‘like, do I get in trouble for this? Like, am I okay to do this?’ ”
Under questioning from Ms. Dudding, Mr. Howden clarified that the quotes he gave to Ms. Robitaille weren’t likely the exact words Mr. Formenton used, rather he was trying to convey the idea that Mr. Formenton was asking: “Should I do this?”
Mr. Howden agreed with an assertion from Ms. Dudding that it was clear E.M. was consenting.
At the end of court on Monday, Julianna Greenspan – Mr. Foote’s lawyer – showed Mr. Howden video of himself at Jack’s bar, which is where E.M. and the players met. In the video, Mr. Howden can briefly be seen dancing with E.M. and Mr. McLeod. Then, as Mr. Howden turns to walk away, he appears to pat E.M. on the buttocks.
Ms. Greenspan asked Mr. Howden why he never mentioned this event to police or Hockey Canada.
“Because I didn’t even remember that happening,” Mr. Howden said.
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