Judge rules Howden text message inadmissible at London hockey trial

Content advisory: This article includes graphic language and details of alleged sexual assault

The judge overseeing the sexual assault trial of five former members of Canada’s 2018 world junior hockey team ruled Friday she will not allow prosecutors to enter into evidence a 2018 text message in which one player who has not been accused of criminal wrongdoing discussed seeing the complainant in the case being slapped “so hard.”

Crown attorney Meaghan Cunningham had argued with defence counsel over the admissibility of a text message sent by Brett Howden to Taylor Raddysh roughly a week after an alleged sexual assault at the Delta Armouries Hotel in downtown London, Ont.

“Dude, I’m so happy I left when all the s--t went down,” Howden’s June 26, 2018, text message said. “Haha. Man, when I was leaving, Duber was smacking this girl’s ass so hard. Like, it looked like it hurt so bad.”

Michael McLeod, Alex Formenton, Carter Hart, Dillon Dube, and Callan Foote are accused of sexually assaulting a then-20-year-old woman in McLeod’s hotel room. McLeod is facing a second charge as being a party to the act.

The woman, whose identity is protected by a publication ban and is referred to as E.M. in court documents, has alleged that after she had consensual sex with McLeod in the early morning hours of June 19, 2018, he surreptitiously invited his teammates to his room and that she was sexually assaulted for hours.

The Crown has alleged that Formenton had sex with E.M. in the bathroom, that McLeod, Hart and Dube received oral sex from the complainant, that Dube slapped E.M.’s naked buttocks, that Foote did the splits over E.M.’s head and “grazed” his genitals over her head, and that McLeod had sex with E.M. for a second time in the hotel room bathroom.

Howden, who is now 27 and who was testifying remotely from Las Vegas, said Tuesday that he didn’t remember sending Raddysh that message. Both Howden and Raddysh were in McLeod’s hotel room when E.M. was there with as many as 10 men. Neither Howden nor Raddysh have been accused of criminal wrongdoing.

Justice Maria Carroccia said Friday morning that she agreed with the defence that Howden’s text message should be excluded.

“Although Mr. Howden testified that he wasn't trying to lie when he sent that message, he did not testify that that message was true,” Carroccia said in her ruling. “He was uncertain and said different things in examination in chief and cross examination about that message.

“At times agreeing that he cannot say that it was accurate and at other times saying he had no reason to lie… the court should not be left to speculate as to whether the record to be admitted as an exception to the hearsay rule is accurate. This is a text message sent to a friend during a casual conversation. It is not a statement made under oath.”

Carroccia said that Howden was under stress, was talking about events that occurred when he was drunk, and was worried about himself when he learned that Hockey Canada was investigating the alleged incident.

“Under all the circumstances, I find that the Crown has not met its onus to satisfy me that all the conditions for admissibility have been met to justify admission under this exceptional procedure, and the text message will not be admitted as past recollection recorded.”

After Carroccia’s decision on Friday morning, Dube’s lawyer, Lisa Carnelos, told the court that Dube would not dispute that he put his hands on E.M.’s buttocks in the physical manner described by former Team Canada player Tyler Steenbergen in previous testimony.

Steenbergen testified that Dube’s slap as “wasn’t hard, but it didn’t seem soft either.”

Hart’s lawyer, Riaz Sayani, has previously suggested that when Dube slapped E.M., it was not a hard slap but rather a “butt pat.”

After Carroccia’s decision, Cunningham and defence lawyers continued their arguments over whether Howden’s text – which Cunningham has described as “critical” to the prosecution’s case – should be admitted via the principled approach to hearsay exception.

Cunningham told Carroccia that the details Howden provided in his text message were “correct and accurate, not mistaken or exaggerated.”

Watching Dube smack E.M. “basically pushed him out the door,” Cunningham said.

“The smack would not have had that impact on him unless it were hard and looked like it did hurt,” she said. “He was telling the truth… nothing else makes sense.”

Sayani told the judge that there were a number of “falsehoods” in the text messages between Howden and Raddysh.

“Most of the time she was in the bathroom with [Formenton],” Howden wrote in one message to Raddysh that Sayani read aloud.

Sayani said that a week after his text messages with Raddysh, Howden told lawyer Danielle Robitaille, an investigator hired by Hockey Canada, that Formenton was not in the bathroom long enough to have had sex with E.M.

“This is someone who is either lying to Mr. Raddysh or careless with the truth,” Sayani said.

Carnelos told the court that Howden wasn’t concerned with being truthful in his texts to Raddysh and that he was trying to conceive a cover story to tell his father, who had been contacted by Hockey Canada.

“Does Hockey Canada know who was in the room?” Howden wrote in a text message to Raddysh that was read aloud by Carnelos.

“So if I tell my dad I was in there eating and things got out of hand and I left?” Howden wrote in another text to Raddysh.

“He seems to be distancing himself,” Carnelos told Carroccia. “The story he’s creating while he’s waiting to call his dad back is that he’s distancing himself. He’s putting a story together. That’s a real observation that I would respectfully suggest can be made in those texts.”

Cunningham later told Carroccia that Howden was covering for Formenton when he told Robitaille in 2018 that they probably didn’t have sex in the hotel room bathroom.

Cunningham pointed out that Howden also admitted in 2022 that Dube had asked him four years earlier not to tell Robitaille about the slap.

Carroccia said she would read her decision on the Crown’s last-ditch effort to admit the text message on Monday.

Howden, who now plays for the Vegas Golden Knights, testified remotely for about 30 minutes early Friday afternoon before court adjourned for the day at 1 p.m.

He spent most of the time reading into evidence statements that he made to Robitaille in 2018 and 2022 as part of the Hockey Canada investigations, and to London police detective Tiffany Waque in 2023.

Howden told the court that he no longer remembers what he told Robitaille or Waque, but said he believed he would have been truthful in the prior interviews.

“She was talking, she would start to get dressed and she’s like, ‘I’ll way too sober for this’,” Howden told Robitaille on July 3, 2018.

“As I was leaving with a couple guys I remember hearing her crying and I didn’t know like why. I was like okay, this can’t be good, but I don’t know what happened, so I just went to my room,” Howden later told Robitaille in the same interview.

“When did the crying happen?” Robitaille asked.

“That was when I was leaving the room I just heard her kind of weeping,” Howden told Robitaille. “I didn’t know what was going on. I just went to my room because I didn’t want to be a part of anything.”

“Is that something that you’ve heard? Did you see her?” Robitaille asked Howden.

“No, I just heard,” Howden said. “I’m pretty sure it was crying… I just heard and it sounded like crying anyways.”

“Did she say anything while she was crying that you heard?” Robitaille asked.

“No, I didn’t hear anything,” Howden answered. “But Mikey [McLeod] showed that video of her consenting the next day. He said that was after she had her little episode. He’s like, ‘This is when was when she calmed down.’ So I don’t know if that means after she was crying and stuff. … what he said to me is he thinks she was embarrassed. that’s what I kind of thought and I think he kind of thought that. too.”

“So what you know is what Mike said. Was that video taken after the crying?” Robitaille asked.

“Mmm hmm, after she had calmed down,” Howden answered at the time.

Robitaille interviewed Howden again on Sept. 17, 2022.

“I do remember once seeing the smack,” Howden told Robitaille. “That was drawing a line for me to leave because I had felt uncomfortable… to that point and then once I had seen that I wanted to just be out of there.”

Waque interviewed Howden on Aug. 23, 2023, and discussed topics including Dube’s alleged slap of E.M.

“I just remember once I heard it, that was my time to go,” Howden told Waque. “I was just not enjoying myself obviously. That was basically the thing that finally pushed me out the door.”