Hockey Canada trial pores over NHLer's ‘lack of memory' about night of alleged sex assaults

Toronto Star

22-05-2025

The Oxford Dictionary defines feigning as 'the act of pretending or faking, especially with the intent to deceive.'
A nicer way of saying liar-liar-pants-on-fire.
It took nearly a full day of voir dire in a London, Ont., Courtroom — legal arguments betwixt the prosecution and the defence, plumbing case law and pondering as they retreated to their own corners of the ring — before Justice Maria Carroccia ruled that there was no feigning in the testimony (thus far) of a former junior hockey player called as a witness by the Crown in the trial of five former junior hockey players charged with a range of sexual assaults.
And then they knocked off early. Because, you know, they have to give the next step in this interminable proceeding a good think.
Basically, Crown attorney Meaghan Cunningham had been vexed by the testimony of Brett Howden, a member of the 2018 world championship squad and now with the Las Vegas Golden Knights. She had sought leave under a section of the Canada Evidence Act to cross-examine Howden — her own witness. That is an infrequent but not necessarily rare strategy. Cross-examination is typically more confrontational and the domain of the defence.
Howden's recollections of what happened in Room 209 in the early morning hours of June 19, 2018, were patchy in some areas and, said Cunningham, contradicted what he'd said in previous statements to investigators.
'Mr. Howden's memory loss is a feigned memory loss,' Cunningham told Carroccia in what is now a judge-alone trial, following a mistrial and a dismissed jury in the last few weeks. 'This is not a complete memory loss. He remembers some details but doesn't remember the details that are particularly damning to his friends and teammates.'
Not that Howden got a complete pass from the defence, either. Itching to get their hands on him, I'd say. Megan Savard, lawyer for Carter Hart, described the witness as unsophisticated — goodness, he testified via video link from Vegas wearing a hoodie! — inarticulate and sloppy with language. But had Howden been deliberately feigning, then surely he would have tried being more efficacious towards the accused, said Savard.
'I would say, if anything, we may all say at the end of the day this witness is generally useless, but certainly not helpful to the defence.'
Savard argued that, for the judge to accept that Howden is feigning memory loss would be to accept that the witness had deliberately decided to 'come to court and perjure himself for a group of men he hasn't really talked to in seven years. That's a pretty tall order.'
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Lisa Carnelos, representing Dillon Dubé, pointed out that the Crown had met with Howden in Calgary in preparation for trial. 'They know he has legitimate memory issues.'
Carroccia: 'As opposed to feigning.'
Hart, Dubé, Michael McLeod, Alex Formenton and Cal Foote have all pleaded not guilty to sexually assaulting a then-20-year-old woman in the hotel room after meeting at a bar. Their accuser spent nine days on the witness stand — actually from another location in the courthouse — most of it under gruelling interrogation by the top-drawer D-corps.
News
'My truth': What we heard from the Hockey Canada sex assault complainant in nine days of testimony
The jury has heard — in graphic detail — her allegations about what took place inside a London, Ont., hotel room in 2018.
News
'My truth': What we heard from the Hockey Canada sex assault complainant in nine days of testimony
The jury has heard — in graphic detail — her allegations about what took place inside a London, Ont., hotel room in 2018.
The complainant, known only as E.M. — her identity protected by a standard publication ban —remained adamant throughout that she'd willingly had sex only with McLeod (the first time; there was allegedly a second episode in the bathroom later) and was shocked when he surreptitiously invited teammates to the room for a 'three-way'. The experience was so devastating that E.M. detached mind from body as a coping mechanism. She conceded, however, that she'd never said 'no', never tried to leave, and made sexually enticing comments to the young men, assuming a 'porn star identity' to make it through the ordeal.
But, apart from the initial episode with McLeod, it was not consensual. That's at the heart of the case.
Howden, who began testifying on Tuesday, is one of four ex-teammates thus far who've been called by the Crown. In the voir dire, Cunningham has raised 18 areas where Howden's testimony was markedly different from what he'd said in 2018, 2022 and 2023 in statements to London police, investigators hired by Hockey Canada — which launched its own internal probe in 2018 — and in text messages.
E.M. testified that she became obviously upset when Dubé allegedly slapped her on her naked buttocks without her consent. Howden — who was in the room but didn't participate in the alleged events — told court on Tuesday that he'd heard a slap but hadn't actually seen it.
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Cunningham countered by reading a text message from Howden to teammate Taylor Raddysh in 2018, in which he wrote: 'Dude, I'm so happy I left when all the s—- went down. Haha. Man, when I was leaving, Duber was smacking this girl's ass so hard. Like, it looks like it hurt so bad.'
There are, apparently, two other statements in which Howden claims to have seen the slap. But at trial, he testified he has no present memory of the smack.
Cunningham also raised Howden's testimony about a phone call he'd had with Dubé in 2018, in which Dubé asked him to leave his name out when Howden was about to be questioned by Hockey Canada's investigator. Continuing, Cunningham put it to Howden that Dubé said he was 'not happy that I did that'.
'I don't remember the conversation (with Dubé),' said Howden, who couldn't even recall who'd called whom. 'I just remember being asked to leave his name out of things.'
The prosecutor noted contradictions in Howden's evidence of an interaction he'd had with Formenton in the hotel room. Court has heard that E.M. had led Formenton into the bathroom to have sex more privately and Formenton said to Howden: 'Should I do this?' But Cunningham pointed to a 2018 Howden statement in which he quoted Formenton as saying: 'Will I get into trouble for this? Am I OK to do this? Am I allowed to do this?'
Cunningham: 'There is a material difference between 'should I do this' versus 'will I get into trouble if I do this'.
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In 2022, Howden told Danielle Robitaille, the lawyer hired by Hockey Canada to investigate, 'I do remember seeing the smack. That was drawing a line for me to leave because I had felt uncomfortable to that point. Once I had seen that, I just wanted to be out of there.'
Cunningham: 'He's clearly connecting the slap to his decision to leave.'
Further, Howden testified that E.M. had been flirtatious, egging on the players to have sex with her, presenting the complainant as the instigator. Yet he didn't remember other significant details, such as E.M. allegedly weeping and others in the room saying: 'Baby, don't leave.'
When court resumed Wednesday following the late lunch break, Carroccia delivered her ruling specifically on the 'feigning' submission.
'In my view, at this stage, I cannot find that Mr. Howden is feigning lack of memory or is being insincere about whether he has a recollection of his earlier statements or particulars of the events that he's being asked to describe. On more than one occasion, when given an opportunity to refresh his memory, Mr. Howden has testified that he has no present recollection but was telling the truth when he answered questions previously. He was effectively adopting his earlier statements.
'He was not apparently trying to distance himself from his earlier statements. In fact, it is apparent he had a lack of memory in relation to some areas, even in 2022 and 2023. On the totality of the evidence, I incur there is no basis that Mr. Howden is being untruthful about his lack of memory in certain details about which he has been asked and I will not make such a finding.'
The matter is far from settled, though. On Thursday, Carroccia will rule on the specifics of four instances where she found inconsistencies in Howden's testimony, from the perspective of memory loss over time and discrepancies in statements.
Carroccia has yet to rule on the core issue of whether Howden can be cross-examined by the Crown.