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Canada Trial
LONDON, Ont. – Justice Maria Carroccia ruled Monday morning that a key piece of evidence in the Crown’s case will not be admissible in the Hockey Canada sexual assault trial. It was the second failed attempt to have the evidence included.
Carroccia determined that a text message sent from Brett Howden, a member of the 2018 Canadian World Junior hockey team, to teammate Taylor Raddysh on June 26, 2018 about Dillon Dubé slapping the buttocks of the complainant in the case would not be allowed as “hearsay evidence” based on what she described as a lack of “reliability.”
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“I have concerns regarding the accuracy of the statement,” Carroccia said.
In explaining her decision, Carroccia said that unlike traditional statements, Howden did not send the text under oath or while being recorded and that he was “scared,” “nervous” and “not attempting to be factual” at the time he sent the message. Howden, a Crown witness, previously testified that he sent the message after learning that Hockey Canada was investigating allegations that a number of players sexually assaulted a 20-year-old woman over the span of several hours in a London, Ont., hotel room in the early morning hours of June 19, 2018.
The text message was previously ruled out as “past recollection recorded” following an application from the Crown to have the communication considered.
The text between Howden and Raddysh, his roommate during the weekend of the Hockey Canada golf and gala celebration to celebrate their team’s 2018 World Juniors championship run, read:
“Dude, I’m so happy I left when all that sh– went down. Ha, ha … Man, when I was leaving, Duber was smacking this girl’s ass so hard. It looked like it hurt so bad.”
During his testimony, Howden has said that he did not remember the incidents described in his texts, but believed he was being truthful when he wrote them.
He told Crown attorney Meaghan Cunningham that he “had no reason to lie” at the time.
According to the Crown’s case, Dubé slapped E.M.’s naked buttocks while she was engaged in a sexual act with another person. The Crown also says that Michael McLeod, Carter Hart and Dubé all obtained oral sex from E.M. without her consent, that Alex Formenton had vaginal sex with E.M. without her consent and that Cal Foote did the splits over her as she laid on the ground, grazing his genitals over her face.
E.M. said these incidents took place as she was sexually assaulted by the five players over the span of several hours in a London hotel room in June 2018. In her testimony, she described being spit on, slapped, degraded and coerced into a number of sexual acts.
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All five have pleaded not guilty.
Howden continued on the stand Monday morning as he was cross-examined by the defense. Multiple attorneys probed what they described as the “limits” of his memory from the night and early morning hours in question, as well as his own actions during that time frame.
They questioned him about his alcohol consumption, impairment and about a 2022 head injury he sustained prior to making a pair of statements.
Megan Savard, who represents Hart, asked Howden about whether he noticed any memory loss following a March 2022 incident in a game against the Nashville Predators when a collision with an opposing player left him unconscious for close to nine minutes; he was taken off the ice on a stretcher and taken to the hospital. At first, Howden wasn’t certain which injury Savard was referring to.
“I appreciate it as one of the risks of your profession, that there might be more than one head injury in your past,” she said.
Howden said he hadn’t thought about that and had not encountered many scenarios where he is being asked to recall many details from years ago.
Savard — who has previously called Howden an unsophisticated and inarticulate witness — pressed him on whether he was familiar with common symptoms of a concussion like the one he sustained, such as difficulty concentrating, processing and loss of memory. He acknowledged those symptoms are not uncommon for such an injury.
“I’ve never really had to try to remember so many little details like this before,” Howden said. “And it’s definitely gotten a lot harder over time.”
Howden has been asked to refer to past statements to Hockey Canada investigators and London Police to “refresh” his memory during various points of his testimony.
Attorneys also questioned him on phrases he used to describe events in various statements, such as “kind of” and “like” to suggest that he was imprecise with his language as it related to his memory of what happened in the hotel room and his interpretation of events.
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Savard suggested that when he said in a previous statement that he heard E.M. was “kind of weeping” that it was because he wasn’t sure he was using the appropriate word to describe what he heard. She suggested that loud crying would be unambiguous and that it’s possible he heard something else.
“I’m not going to ask you to tell me what sounds you heard,” Savard said. “But fair to say it’s something that’s maybe a bit more ambiguous, like maybe blowing a nose or a sniffle or a hiccup, something like that?”
“Yeah, I mean, it could have been,” Howden said. “I just don’t have a memory of that going on.”
On Monday, the defense lawyers repeatedly asked Howden whether he agreed that the sexual acts that occurred that night appeared to be consensual.
Howden said he recalled E.M. repeatedly asking players to have sex with her and “chirping” them when they declined.
Hilary Dudding, an attorney for Formenton, asked Howden about his previous statement to investigators referring to Formenton “taking her up” on her offer to have sex.
“My memory is that he essentially said he didn’t want to do it in front of anybody,” Howden said.
Howden also said he didn’t remember exactly where he was sitting at the time or where Formenton had come from but said: “I do remember her taking Alex to the bathroom.”
Dudding also questioned Howden on the nature of a brief conversation he had with Formenton as he walked to the bathroom with E.M. In 2018, Howden told Hockey Canada investigators that Formenton asked: “Will I get in trouble for this? Am I OK to do this? Do you think I’m fine?”
Dudding suggested that his recollection of multiple questions at the time was just Howden trying to get a sense of what the actual question Formenton asked was. Howden agreed it was just a brief question.
Howden also recalled that the conversation was more about seeking advice or assurance for himself rather than concern about whether E.M. had expressed consent.
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“I just said … ‘It’s your call if you want to or not,’” Howden said. “Because what I was seeing was her taking him to the bathroom because she wanted to have sex.”
Howden, who got emotional on the stand last week, appeared to do so again when asked about the week following the incident when Hockey Canada launched an inquiry into the matter and the organization began calling parents.
Lisa Carnelos, attorney for Dubé, pressed him on the contents of the phone call he had with her client around that time. Howden previously testified that Dubé asked him not to discuss his actions with Hockey Canada investigators.
Carnelos suggested instead that Dubé insisted that he wanted to tell members of Hockey Canada’s staff himself; Howden said he couldn’t remember specific details.
“I just don’t remember the exact conversation,” Howden said.
Howden got choked up again at the end of Monday’s proceedings, when he was shown a surveillance video of himself “grinding” with E.M. and McLeod, as Cal Foote’s attorney Julianna Greenspan described, before slapping E.M. on the buttocks three times on the dance floor at Jack’s bar before walking away.
When Greenspan asked him to describe what he saw himself doing, Howden paused and struggled to articulate a response:
“I … uh … it looks like I patted her on the butt,” Howden answered.
“A couple of times, would that be fair?” Greenspan pressed.
“I don’t know,” Howden said, prompting Greenspan to play the video clip for Howden again.
“You see that now? That there’s sort of a few times you do that as you walk away?” Greenspan said after the video stopped.
Howden indicated that the strobing lights on the video made it hard for him to discern, but that he thought “it looked like it was just once.”
“I personally don’t think it was a few times,” Howden said.
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Greenspan played the video for him a third time, with a portion of the video slowed down.
“Can you confirm now or not that it happens a few times?” Greenspan asked.
“I can’t confirm that it happens more than once,” Howden replied. “I just see once.”
“OK. Well, we have the video to show that, but in your view, as you’ve watched this now three times, all you see is once, right?” Greenspan confirmed.
“Yes,” Howden replied.”
Greenspan confirmed with Howden that he did not mention this incident in any of his previous statements to police or Hockey Canada investigators.
Howden will continue to be cross-examined on Tuesday. The Crown will then have the chance to question him again before calling retired London Police sergeant Stephen Newton to the stand as a witness.
— The Athletic’s Dan Robson reported remotely from Toronto.
(Photo by Minas Panagiotakis / Getty Images)
