Judge rejects final attempt to have Howden’s text message admitted as evidence

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

Justice Maria Carroccia has rejected the Crown’s final attempt to have Brett Howden's June 26, 2018, text message to former teammate Taylor Raddysh admitted as evidence under the principled approach to hearsay at the sexual assault trial of five former members of Canada’s 2018 world junior hockey team.

Crown attorney Meaghan Cunningham had argued with defence counsel for several days over the admissibility of a text message sent by Howden to 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.”

In her decision on Monday, Carroccia reiterated that Howden said he has “no present recollection of the incident [in Michael McLeod's hotel room].”

“The witness did not vouch for the accuracy of the statement and admits it could be inaccurate,” Carroccia said. “It's unclear whether it’s from his own observation or if it is something someone else told him.”

Carroccia said in her ruling that it was possible Howden was lying to Raddysh or was being careless with the truth. Cunningham had told Carroccia that Howden's text was “critical” to the government's case.

Michael McLeod, Alex Formenton, Carter Hart, Dillon Dube, and Callan Foote are accused of sexually assaulting a then-20-year-old woman, referred to as E.M. in court documents, in McLeod’s hotel room. McLeod is facing a second charge as being a party to the act. The players have all pleaded not guilty.

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 has been testifying remotely from Las Vegas where he plays for the Golden Knights, said last week 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.

Dube’s lawyer, Lisa Carnelos, previously 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 “wasn’t hard, but it didn’t seem soft either.”

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

After Carroccia announced her ruling, defence lawyers for the defendants began cross-examining Howden.

Another Hart lawyer, Megan Savard, asked Howden to confirm that his discomfort in McLeod’s hotel room “had nothing to do with a sexual assault, correct?”

“Yeah,” Howden answered. “I just felt like we were put in a weird position with how forthcoming the woman was being.”

Howden said he did not recall much about the oral sex that E.M. provided to McLeod and Hart. In 2018, Howden told Hockey Canada investigators that what he witnessed was not “an aggressive blow job.”

“Throughout your time in the room, you have no doubt that what you saw was 100 per cent consensual?” Savard asked.

“Yes,” Howden answered.

Savard also asked Howden about a “pretty serious head injury” he suffered in March 2022 when he was hit into the boards during a game against the Nashville Predators. At the time, Howden was knocked unconscious and lay on the ice for nine minutes before he was taken off on a stretcher and taken to hospital, Savard said.

Savard said that Howden did not play for a period of time after that injury and asked whether he subsequently had difficulty with his memory.

“I honestly have never thought of it before like that,” Howden answered. “I’ve never had to remember so many little details like this before, and it’s definitely gotten harder over time.”

Six months after that injury, on Sept. 17, 2022, Howden was interviewed by Toronto lawyer Danielle Robitaille, who was investigating the alleged sexual assault for Hockey Canada.

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

Howden was also asked on Monday about a moment during the early morning hours of June 19, 2018, in which Formenton asked Howden and others if he should go into the bathroom with E.M. to have sex.

Formenton’s lawyer, Hilary Dudding, asked whether Howden had any question in his mind about whether E.M. was consenting to sex with Formenton.

“What she wanted was clear...she was expressing her consent to have sex?” Dudding asked.

“Yes,” Howden answered.

“You never thought E.M. was out of control or unable to agree to sex because she was too drunk to do that?” Dudding asked.

“No, I just said it like, ‘It’s kind of your call,’” Howden answered.

Foote’s lawyer, Julianna Greenspan, was the final defence lawyer to cross-examine Howden.

Greenspan played a black and white surveillance video from Jack’s bar in which Howden can be seen on a crowded dance floor clearing space for Foote to do the splits.

Greenspan then played a second video clip that appeared to show Howden slapping E.M. on the buttocks several times on the dance floor.

“I pat her on the butt,” Howden said. “It looked like it was just once… I personally don’t think it was a few times.”

While Greenspan played the video three times and slowed down the video, Howden did not change his answer.

“I just see once,” he testified.

Howden is scheduled to finish his cross and re-examination on Tuesday. After that, Cunningham said she would call former London police detective Steve Newton to testify. Newton investigated E.M.’s complaint in 2018 and closed the case without filing charges in early 2019.