Judge rules Howden didn’t feign memory loss at London hockey trial

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

LONDON, ONT. – Justice Maria Carroccia ruled Wednesday that while there were some inconsistences in the testimony of Brett Howden, he was not feigning a lack of memory or being insincere on Tuesday when he said he couldn’t remember details around an alleged sexual assault involving five of his former teammates on Canada’s 2018 world junior hockey team.

The ruling came after Crown attorney Meaghan Cunningham applied to cross-examine Howden, who is a Crown witness, under Section 9 (2) of the Canada Evidence Act. Cunningham asked for permission to cross-examine Howden on 18 areas of his previous testimony.

The high-profile trial was paused on Wednesday to deal with Cunningham’s request.

Hours later, Carroccia said there were four areas in which there were inconsistencies in Howden’s testimony. Before court adjourned for the day, Cunningham said that she would meet with defence lawyers to decide how to proceed.

“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 he's asked to describe,” Carroccia said in her decision.

“On more than one occasion when given an opportunity to refresh his memory Mr. Howden has testified that he has no present recollection of his telling the truth when he answered the questions previously. He was effectively adopting his earlier statements due to his present lack of memory.”

Carroccia still has not decided whether the Crown can cross-examine Howden, who currently plays for the Vegas Golden Knights.

Cunningham claimed earlier Wednesday that Howden was being untruthful when he testified he couldn’t remember details that could hurt his former teammates. She also alleged that Howden’s testimony was markedly different from what he previously said in statements to London police, Hockey Canada investigators, and in text messages.

Michael McLeod, Dillon Dube, Alex Formenton, Carter Hart and Callan Foote have been accused of sexually assaulting a woman in McLeod’s hotel room in the early morning hours of June 19, 2018, following a night of dancing and drinking at a downtown London bar. McLeod has also been charged with being a party to the offence of sexual assault. All of the players have pleaded not guilty.

E.M., the complainant in the case whose identity is protected by a publication ban, has alleged that after she had consensual sex with McLeod, he surreptitiously texted his Team Canada teammates and invited them to his hotel room to take part in group sex.

McLeod’s lawyer, David Humphrey, has suggested that E.M. asked McLeod to invite other players back to his room to have a “wild night” with her.

Howden testified Tuesday that he didn’t remember many of the moments of June 19, 2018, or other events afterwards, even after he was given the opportunity to review his prior statements.

“Mr. Howden’s memory loss is a feigned memory loss, not a sincere one,” Cunningham told Carroccia on Wednesday morning. “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.”

Cunningham referred to the notes of an interview Howden did with London police in 2023, in which he allegedly remembered many elements of what happened in McLeod’s hotel room and afterwards

“In his 2023 interview, he does remember many details from 2018, including details he claims to have no memory of today,” Cunningham said. “It’s not the case where we can simply chalk this up to the passage of time.”

Howden testified Tuesday that he didn’t see E.M. putting her clothes back on at any point in McLeod’s hotel room. In 2018, however, he told Hockey Canada investigator Danielle Robitaille that E.M. started to get dressed and say, “I’m way too sober for this,” Cunningham said.

Cunningham also said that while Howden testified on Tuesday that he didn’t hear anyone talk to E.M. when she was getting dressed, he told Robitaille in 2018 that he heard his teammates say, “Oh no baby, don’t leave.”

“He clearly has a memory of this,” Cunningham said.

The court has heard testimony from E.M. that at one point in the early morning hours of June 19, 2018, she and Formenton went into the bathroom and had sex.

Howden testified on Tuesday that he remembered Formenton asking his teammates “Should I be doing this?” as he walked towards the bathroom with E.M.

Cunningham said that Howden told Robitaille in 2018 that he remembered Formenton saying, “Will I get in trouble for this? Am I okay to do this? Do you think it’s fine? Am I allowed to do this?”

“There’s a material difference between ‘Should I do this?’ versus saying, ‘Will I get into trouble if I do this?’” Cunningham said.

Cunningham later Wednesday morning insisted that the exchange between Formenton and Howden was “critical” to the prosecution.

“This is a critical piece of information on the material issues relating to Formenton because the issues relating to the charges against Formenton include [whether there was] communicated consent,” Cunningham said.

“Did Formenton have an honest but mistaken belief in communicated consent? What reasonable steps were taken by Formenton in the circumstances that were known to him? What circumstances were known to him walking into that bathroom?

“If Formenton is saying, ‘Could I get into trouble for this?’ and Howden was saying, ‘I don’t know. I mean, you’re okay if she’s consenting,’ that suggests a few things… It suggests that Howden wasn’t sure that E.M. was consenting to anything based on what had happened up to that point… He doesn’t say, ‘Of course you’re fine. She just said she wanted to have sex with you.’ What he’s saying is, ‘I don’t know.’”

Cunningham told Carroccia that the exchange between the players would be an “absolutely critical piece of evidence for the factual matrix” the judge would use to assess the legal issues of the case.

E.M. also testified that, at one point on June 19, Dube slapped her on her buttocks without her consent.

On Tuesday, Howden testified he heard a slap but never saw it.

Cunningham read a text message Howden sent to Team Canada teammate Taylor Raddysh in 2018 in which Howden wrote, “Dude, I’m so happy I left when all the s--t 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.”

Howden also testified on Tuesday that he didn’t know whether E.M. was wearing clothing when she was smacked. In a 2023 interview with London police, Howden said, “It didn’t sound like she had clothes on… it sounded like it was skin to skin.”

Howden also testified on Tuesday that he did not remember how he felt when Dube allegedly slapped E.M. Howden said reviewing his prior statements did not help refresh his memory.

Cunningham said that Howden described how he felt at that time in interviews with Hockey Canada in 2022 and London police in 2023.

Cunningham said that in 2022, Howden told Robitaille, “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…”

In 2023, Howden told London police that witnessing E.M. being slapped “was basically the thing that finally pushed me out the door.

“He’s clearly connecting the slap to his decision to leave,” Cunningham said.

Howden testified Tuesday that he did not remember if E.M. said anything when she was allegedly slapped. Cunningham said that in 2023, Howden told London police, “I don’t remember… I know she didn’t ask for that… I don’t recall her saying anything.”

“I would say it is definitive with respect to spanking,” Cunningham told Carroccia on Wednesday. “He says ‘I know she didn’t ask for that.’”

Howden also testified on Tuesday that he didn’t remember E.M. being upset.

Cunningham said that in his 2018 interview with Robitaille, Howden said, “I just heard her kind of weeping. I didn’t know what was going on. I went to my room because I didn’t want to be part of anything.”

After Robitaille asked whether Howden saw E.M. crying, he answered, “No, no, I heard… It sounded like crying anyway.”

After Howden testified on Tuesday that he didn’t remember details of a phone call in which Dube allegedly asked him not to tell Hockey Canada investigators what he had done in McLeod’s hotel room, Cunningham pointed to a 2018 statement Howden gave to Robitaille in which he said Dube asked him to leave out details because Dube was “not happy that I did that.”

Hart’s lawyer, Megan Savard, told the judge that for her to accept that Howden has feigned his memory would be to accept that he has 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.”

Savard said that if Howden, who testified remotely from Las Vegas wearing an olive hoodie, was feigning his memory it would have been clear that he was doing so to help the defendants. His struggles to articulate himself have been “useless” to the defence, Savard said.

“This witness is clearly unsophisticated,” she said. “He didn’t come to court dressed for court. He’s inarticulate… Careless with words… He’s prone to overstatement, then retraction, and then further 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 defence.”

Savard suggested that Howden’s halting answers and memory issues could also be chalked up to him being nervous about testifying under oath in such a high-profile criminal trial.

“He has no agenda rather than a desire to be cautious,” Savard said.