Former members of Canada’s 2018 World Juniors hockey team, left to right, Alex Formenton, Cal Foote, Michael McLeod, Dillon Dubé and Carter Hart as they individually arrived to court in London, Ont., on April 30.Nicole Osborne/The Canadian Press
Crown attorney Meaghan Cunningham asserted in a London, Ont., court on Wednesday that an NHL player testifying as a witness in the sexual-assault trial of five former members of Canada’s 2018 world junior team is purposefully omitting details on the stand to help his friends and former teammates.
Ms. Cunningham made the claim during a voir dire, which is a trial within a trial, where Justice Maria Carroccia will decide whether previous statements from the Crown’s latest witness – Brett Howden, who plays for the Las Vegas Golden Knights – will be entered into evidence.
The Crown interrupted testimony from Mr. Howden on Tuesday, to ask Justice Carroccia for permission to cross-examine Mr. Howden about statements he previously gave to a Hockey Canada investigator.
Mr. Howden’s former teammates – Michael McLeod, Dillon Dubé, Carter Hart, Alex Formenton and Cal Foote – are each accused of sexually assaulting a woman known publicly as E.M. in a London hotel in the early morning hours of June 19, 2018, after a Hockey Canada gala. Mr. McLeod faces a second charge of being a party to sexual assault. They have all pleaded not guilty.
Court has heard that Mr. Howden was in the hotel room on the night in question, but he is not accused of any wrongdoing.
While testifying, witness hockey players have been permitted to read previous statements they gave to Hockey Canada as a way to jog their memory, however, the statements have not been presented in court. (Statements three of the accused players gave to Hockey Canada in 2022 were deemed inadmissible during pre-trial motions, though the issues in that proceeding were different than those being argued in court on Wednesday.)
After questioning Mr. Howden on Tuesday, Ms. Cunningham told the court that his testimony contained as many as 15 inconsistencies with his prior statements.
“It‘s the Crown’s submission that Mr. Howden’s memory loss is a feigned memory loss, not a sincere one. His memory loss, in my submission, is directly related to details that will be particularly damning for the defendants, who are his former teammates and friends,” Ms. Cunningham said.
She noted that Mr. Howden seems to have clear memories of the complainant, E.M., “begging” his former teammates to engage in sexual activity, but he claims not to remember other details about her that he has said before.
For example, court heard that in 2018, Mr. Howden told Hockey Canada investigator Danielle Robitaille that he believed he heard E.M. “weeping” in the hotel room on the night of the alleged assault.
“I just heard her, kind of weeping, and I didn’t know, like, what was going on,” court heard Mr. Howden told Ms. Robitaille, a Toronto lawyer the sports organization hired to investigate the incident in 2018 and 2022. He added that he decided to go to his room because he “didn’t want to be part of anything.”
When pressed by Ms. Robitaille, court heard Mr. Howden said he didn’t physically see the weeping, but he was “pretty sure it was crying.”
On Tuesday, the Crown asked Mr. Howden if he saw or heard of any signs that E.M. was upset. He said he could not recall.
Earlier this month, E.M. was challenged by defence lawyer Megan Savard under cross-examination about her claims that the players the room saw her crying in the hotel room.
At one point, E.M. was asked to read through a transcript of a police interview she gave in 2018. “It‘s right there where I say ‘and I could hear them. They’re like, ‘Oh, she, she’s crying.’ That‘s exactly me speaking on what I heard them say,” E.M. said.
The Crown also asserted that, in the past, Mr. Howden has described E.M. getting dressed and going to leave the room, but players telling her to stay: “oh baby, don’t leave.”
Another point of contention for Ms. Cunningham were alleged inconsistencies between Mr. Howden’s assertion at trial that he does not recall whether he saw Mr. Dubé slap E.M.’s buttocks, which she said contradicts previous statements Mr. Howden has given.
Court heard about a text message Mr. Howden sent to his former teammate Taylor Raddysh – who is not accused of wrong doing – back in 2018, which allegedly read: “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.”
Another area that the Crown said was crucial to get on the record concerned a statement Mr. Howden gave in 2018 about the actions of Mr. Formenton, just before Mr. Formenton and E.M. had sex in the hotel bathroom. (Court has heard conflicting evidence about the extent to which Mr. Formenton and E.M. spoke before the sexual activity.)
Ms. Cunningham wants to question Mr. Howden about a 2018 statement he gave in which he described Mr. Formenton talking to him on the way into the bathroom.
“I remember on the way he asked me, he said, ‘like, do I get in trouble for this? Like, am I okay to do this?’ He’s like, ‘do you think I’m fine?” Ms. Cunningham said, reading from the statement by Mr. Howden.
The Crown alleged that Mr. Howden told Ms. Robitaille he replied: “I was like, ‘if she wants to have sex with you, like, I guess it’s okay. I was like, but I like- I was just kind of like, I really don’t know. Like I was like, if she’d consent and she wants you, then sure.”
Ms. Cunningham said Mr. Howden’s words suggest he was unsure whether E.M. was consenting.
Ms. Savard told the court that any alleged inconsistencies do not meet the legal test to be included in the court. Moreover, she said that there is no evidence that Mr. Howden’s apparent lack of memory today is anything but genuine.
“The witness is plainly unsophisticated. He didn’t come to court dressed for court. He is inarticulate and a poor communicator,” Ms. Savard said, noting that even some of the prior statements that the Crown is trying to introduce contain inconsistencies – such as his descriptions of her weeping, and then later clarifying he was only “pretty sure.”
“If someone is deliberately feigning, you would expect a general trend towards being helpful whereas, I would say, if anything, we may all say at the end of the day this witness is generally useless but he’s certainly not helpful to the defence,” Ms. Savard said.
Mr. Howden is one of four former members of the 2018 world junior team who have been called as witnesses in the sexual assault trial. The offence allegedly occurred in a London hotel in the early morning hours of June 19, 2018, after a Hockey Canada gala.
Several players have repeatedly claimed they cannot remember certain details. For example, Boris Katchouk, who plays for the Wilkes-Barre/Scranton Penguins of the American Hockey League, and Mr. Raddysh, who plays for the Washington Capitals in the NHL, both testified that they were invited to the room by Mr. McLeod, who offered them oral sex from E.M. They said they were only briefly in the room. Neither recalled if E.M. was wearing clothing.
On Tuesday, Mr. Howden told the court that he witnessed some of the accused players engaging in sexual acts with E.M., but he said he did not participate.
“The whole situation was not a situation I wanted to be in,” he said, “And I think, you know, just once sexual things started happening that‘s when it started getting out of hand.”
In one line of questioning, Ms. Cunningham asked Mr. Howden whether there were any “outward signs of the woman’s emotional state while you were in the room.”
“Can you rephrase the question? I don’t really understand,” Mr. Howden replied.
“Did you see or hear anything? Any signs that she was upset at any point?” the prosecutor said.
“I don’t remember that now,” Mr. Howden replied. “I have no memory of that. In a previous transcript, I‘ve mentioned something along those lines, but sitting here talking to you right now, I don’t remember that.”
Throughout the Crown’s examination, Ms. Cunningham repeatedly asked Mr. Howden to review statements he had previously made to Ms. Robitaille.
Some of the accused players provided statements to Ms. Robitaille before they were charged criminally. Three of those statements were ruled inadmissible last year after a pretrial judge concluded that the tactics with which they were obtained were coercive and that allowing them in would violate the fair trial rights of the accused.
During her questioning of Mr. Howden on Tuesday, Ms. Cunningham told the court she would be invoking Section 9.2 of the Canada Evidence Act – a power that allows lawyers to confront witnesses with their own past recollections in notes and statements that are not part of the official court record.
Legal arguments are continuing.