Judge rules against Crown's bid to have Brett Howden's text admitted
A text message sent by Brett Howden to a teammate describing Dillion Dubé smacking the complainant in the Hockey Canada sexual assault trial is not admissible as evidence, the judge in the high-profile case ruled on Friday.
Justice Maria Carroccia denied the Crown's request to have admitted as evidence a text sent by Howden to Taylor Raddysh on June 26, 2018, in which he described relief having left a London, Ont., hotel room after a woman was slapped on the buttocks by Dubé.
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'Dude, I'm so happy I left when all that sh– went down. Ha, ha,' Howden wrote to Taylor Raddysh, also adding, 'Man, when I was leaving, Duber was smacking this girl's ass so hard. It looked like it hurt so bad.'
Howden and Raddysh were roommates at the hotel, where they stayed during a Hockey Canada gala and golf tournament. Neither Howden — now a member of the Vegas Golden Knights — nor Raddysh, who plays for the Washington Capitals, are accused of wrongdoing.
After Howden was unable to recall the events described in the text message during testimony earlier this week, Crown attorney Meaghan Cunningham appealed to have it included as evidence as 'past recollection recorded.'
The prosecution and defense attorneys for the five accused former members of the 2018 World Junior team charged with sexual assault argued over its admissibility during a voir dire hearing on Thursday.
In her ruling on Friday, Carroccia said that though the text message met several criteria for 'past recollection recorded' — it was timely, Howden believed he was being honest when he wrote it, but could not remember sending it — it could not be admitted because its reliability and accuracy could not be proved.
'This is a text message sent to a friend during a casual conversation. It is not a statement made under oath,' she said.
Howden is a key witness in the Crown's case against the five former members of the 2018 Canadian World Junior team accused of sexually assaulting a woman in the early hours of June 19, 2018, while in London, Ont., for a Hockey Canada gala and golf tournament.
Dubé, Michael McLeod, Carter Hart, Alex Formenton and Cal Foote have all pleaded not guilty.
The Crown says that McLeod, Hart and Dubé all obtained oral sex from E.M. without her consent, and that Formenton had vaginal sex with E.M. without her consent. The Crown has also told the jury that Dubé slapped E.M.'s naked buttocks while she was engaged in a sexual act with another person, and that Foote did the splits and grazed his genitals over her face as she laid on the ground.
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On Thursday, Howden recalled being shocked when he read the contents of his text exchange with Raddysh during a later Hockey Canada investigation. He said he could not recall sending those messages. But he told Cunnigham that he had 'no reason to lie' at the time.
Howden's fuzzy memory has been a topic of heated discussion since Tuesday, when he first appeared on the stand as the Crown witness. Despite having access to transcripts from past statements he made to Hockey Canada investigators and police, Howden repeatedly said he couldn't recall details about the alleged incident. That prompted Cunningham to accuse him of being dishonest about his lack of memory.
After a voir dire hearing over a Canada Evidence Act application by the Crown to be able to cross-examine its own witness, Carroccia ruled that she did not believe Howden was feigning a lack of memory — but that there were some inconsistencies he could be further questioned on.
The Crown then brought its application to have Howden's texts admitted as 'past recollection recorded,' which essentially means that past statements can be admitted when a witness cannot remember making them (if they meet specific criteria).
After that application was rejected on Friday, the Crown appealed to have the text messages included through a hearsay application, to admit an out-of-court statement as truthful so it can be considered as evidence.
Legal arguments between the Crown and defense have been heard throughout the morning session. The trial continues next week.
(Courtroom sketch of Justice Maria Carroccia sitting before several of the defendants earlier in the Hockey Canada sexual assault trial in London, Ont., by Alexandra Newbould / The Canadian Press via AP)
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