Judge In World Junior Trial Rules Text Exchange Between Two NHLer Witnesses Is Inadmissible
The judge in the world junior sexual assault trial ruled again Monday that text messages sent between Brett Howden and teammate Taylor Raddysh on June 19, 2018, are inadmissible in court.
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The Crown had submitted a hearsay application on Friday to have these texts analyzed further through a cross-examination of Howden by the Crown. The text messages in question feature Howden discussing with Raddysh about how their world junior teammate, Dillon Dube, 'was smacking this girl's ass so hard' and that 'it looks like it hurt so bad.'
Dube is one of five members of Canada's 2018 World Junior Championship team each facing a charge of sexual assault in relation to a June 2018 incident in which a woman, referred to in court documents as E.M., alleges she was sexually assaulted in a London, Ont., hotel room following a Hockey Canada gala. The other four accused are Michael McLeod, Carter Hart, Alex Formenton and Cal Foote.
All five men pleaded not guilty to their charges, with McLeod pleading not guilty to an additional charge of sexual assault as party to the offense. Howden and Raddysh have been witnesses in the trial and are not accused of any wrongdoing.
The presiding judge, Justice Maria Carroccia, explained the 'truth' and 'reliability' of the text messages could not be confirmed. Additionally, she said details in the texts weren't said under oath or while being recorded, unlike traditional admissible statements.
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The Crown had put forth two other applications to have these texts examined further as evidence, but with this last application ruled against, that was the last chance.
The Hockey Canada sexual assault trial is taking place at Ontario Superior Court in London, Ont. (Anthony Fava)
Following Carroccia's ruling, the defense began its cross-examination of Howden.
One of Formenton's lawyers, Hilary Dudding, questioned Howden on his memory of when Formenton allegedly went with the woman in the hotel room to the bathroom to have sex. Howden said in a 2018 interview with an investigator that he briefly spoke to Formenton on his way to the bathroom, with Formenton asking Howden if it was 'OK to do this.'
'If she consented, you can if you want, but it's up to you,' Howden said in that interview.
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On Monday, Dudding went further into this moment from the hotel room, asking the witness if he thought the woman was 'out of control' due to her intoxication or if she was unable to consent to sex. Howden said she didn't seem too drunk and that she seemed fine leading Formenton to the bathroom.
'What I was seeing was her taking him to the bathroom because she wanted to have sex,' Howden said.
Just before Dudding, Hart's lawyer had some questions for Howden, particularly about his recollection of the events from June 2018.
Megan Savard suggested to Howden that it was hard for him to recall certain events when speaking to investigators just weeks later. Howden agreed.
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Savard went further, pointing out that Howden had suffered a head injury during an NHL game in March 2022. The injury in question came when Howden went head-first into the boards following a hit from Nashville Predators left winger Filip Forsberg, and Howden ended up being taken off the ice on a stretcher. Although he didn't confirm with Savard that this hit made his memory worse, he did agree that concussions can lead to memory loss and difficulty concentrating.
As the day neared its end, one of Foote's lawyers showed Howden security videos from Jack's Bar in London – the bar where the men met the complainant on the night of the incident. One of these videos showed Howden and McLeod on the dance floor, with E.M. sandwiched between them.
As the video finished up, Howden appears to place his hand on or around the buttocks of E.M. Defense lawyer Julianna Greenspan asked Howden what he was doing in that moment.
'Looks like I pat her on the butt,' Howden said.
The trial is expected to resume on Tuesday with Greenspan continuing her cross-examination of Howden.
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