Hockey Canada trial judge limits Crown's efforts to press Brett Howden

New York Times

21-05-2025

LONDON, Ont. – After a day of arguing over Brett Howden's truthfulness, the judge in the Hockey Canada sexual assault trial said she did not believe he feigned a lack of memory during his testimony, as prosecutors alleged. But Justice Maria Carroccia did agree there were some inconsistencies that could be questioned.
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Howden — now a member of the Las Vegas Golden Knights — is a key Crown witness in the case against five of his former teammates from the 2018 Canadian World Junior team who are accused of sexually assaulting a woman in the early hours of June 19, 2018, after a Hockey Canada gala in London, Ont.
Earlier, Howden's inability to recall details of the events at the center of this trial was challenged by Crown prosecutor Meaghan Cunningham, who suggested that Howden was being dishonest to protect his former teammates.
'Mr. Howden's memory loss is a feigned memory loss, not a sincere one,' Cunningham said.
On Wednesday, Cunningham made a Canada Evidence Act application, under section 9-2, which allows a party producing a witness to cross-examine them because they feel past statements they made are inconsistent with their current testimony. Carroccia heard arguments from both the Crown and defense throughout the day's deliberations and ruled against the Crown on the issue of his memory.
In past statements, Howden has said that he heard the complainant at the center of this trial 'weeping' the night of the alleged attack and that he heard Dillion Dubé smack her buttocks so hard 'it looked like it hurt so bad.'
But during his testimony, Howden said he was unable to recall many details about what occurred in the early hours of June 19, 2018.
Cunningham outlined what she said were 18 issues and inconsistencies between Howden's testimony and his past statements about the incidents to Hockey Canada investigators, police and in text messages to his teammates after the incident.
Dubé, Michael McLeod, Carter Hart, Alex Formenton and Cal Foote have all pleaded not guilty to the charges they face. They each sat at separate tables in the courtroom next to their counsel and Howden appeared by a video feed from Las Vegas, where he resides.
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The complainant in the case has testified that after a night of drinking and dancing at Jack's bar she went to a hotel with McLeod and engaged in consensual sex. Afterward, she said, men showed up in the hotel room without her consent and over a couple of hours she was coaxed into sexual acts against her will.
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.
After a day of arguments between the Crown and defense, Carroccia ruled that four of those 18 areas could be further examined by Cunningham because of inconsistencies between Howden's testimony and past statements. Those areas include his recollection of Dube smacking the complainant's buttocks, and his interactions with Formenton before he had sex with E.M. in the hotel bathroom. Cunningham will now confer with defense attorneys on how to proceed regarding those areas.
On Tuesday, Howden testified that he couldn't recall how he felt after hearing Dubé slap E.M. in the hotel room. But during her appeal on Wednesday, Cunningham referred to past statements in which Howden said the smack had drawn 'a line for me to leave' and that it 'pushed me out the door.'
Cunningham also discussed a text message Howden sent to Taylor Raddysh, his roommate at the hotel, on June 26, after learning of Hockey Canada's investigation into the incident. Howden was allowed to read it during his testimony.
'Dude, I'm so happy I left when all that sh– went down. Ha, ha,' he wrote.
He also wrote: 'Man, when I was leaving, Duber was smacking this girl's ass so hard. It looked like it hurt so bad.'
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Howden also said during his testimony that he didn't know if E.M. was clothed at the time of the slap, but Cunningham noted, in the past he told investigators that 'it sounded like it was skin to skin.'
In past statements, Howden also described hearing E.M. crying.
'I just heard her kind of weeping, and I didn't know, like, what was going on. I went to my room because I didn't want to be part of anything,' Howden said to lawyer Danielle Robitaille, hired by Hockey Canada to conduct its investigation in 2018.
When Robitaille asked him whether he saw her or heard her, he replied, 'I didn't physically see her crying, but I heard — it sounded like crying anyway.'
In response to the Crown's appeal, Megan Savard — counsel for Hart — said that Howden was clearly a 'plainly unsophisticated' and 'inarticulate' witness who was careless with words. She noted that he didn't even appear dressed for court. Howden wore a hoodie during his first day of testimony.
Savard, arguing from past legal precedents, noted that in order to grant the Crown's request to cross-examine its own witness, Carroccia had to decide that there is evidence of collusion in Howden's testimony and that he was prepared to perjure himself 'for a group of men he hasn't really talked to in seven years.'
'That is a pretty tall order on the record we have,' Savard said.
Savard noted that Howden was prone to overstatement, retraction and then more overstatement.
'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 defense,' she said.
Hilary Dudding, counsel for Formenton, argued that Howden's testimony was not inconsistent with past statements — rather, it was a matter of 'loose speech' — with the intent of what he was conveyed remaining the same.
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Lisa Carnelos, counsel for Dubé, argued that Howden was a 'straw man witness' and that the Crown was well aware of his 'legitimate memory issues' before the trial.
Wednesday's proceedings highlighted the chasm between what the Crown is able to address via present testimony and what remains inadmissible as a result of pre-trial motion rulings. While Cunningham may potentially question Howden about the discrepancies from his present testimony and previous statements, the Crown will not have that same opportunity to refer back to previous statements made by some of the accused.
In a pre-trial ruling in December 2024, Justice Bruce Thomas decided that certain 2022 statements — from McLeod, Formenton and Dubé — gathered by Henein Hutchison, a third-party law firm that Hockey Canada hired to perform an arm's-length investigation, were inadmissible because they 'offended their right to a fair trial.'
Thomas, in his ruling, said that these statements were not admissible because they were not made voluntarily. In his ruling, Thomas found that cooperation from those individuals was coerced under threat of a lifetime ban from Hockey Canada and public disclosure of those who refused to participate in interviews.
— The Athletic's Kamila Hinkson reported remotely from Montreal. The Athletic's Katie Strang contributed additional reporting.
(Courtroom sketch of Crown prosecutor Meaghan Cunningham from earlier in the trial by Alexandra Newbould / The Canadian Press via AP)