Hockey Canada trial: Judge downplays concerns over NHLer's memory
Legal arguments over potential evidence inconsistencies dominated Wednesday proceedings
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Hockey player Brett Howden didn’t return to testify at the Hockey Canada sexual assault trial as planned Wednesday, but his memory did.
Specifically, legal arguments took up most of the day at the high-profile trial of five 2018 Canada world junior hockey teammates, without the 27-year-old Vegas Golden Knights player present, and centred on some of the answers he gave the Crown during his testimony that began on Tuesday.
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The Crown began making an application under the Canada Evidence Act to seek permission for cross-examining their own witness, suggesting that what Howden couldn’t remember even after he was given opportunities to review his previous statements in 2018 and 2022 was feigned memory around issues that would be unhelpful for the defence.
Crown attorney Meghan Cunningham had pointed to 18 areas of potential inconsistency, many of them related to Howden’s earlier answers where he couldn’t remember specifics of the events. “His lack of recollection on those areas is not sincere,” she said.
The defence argued Howden’s memory lapses were genuine, considering the events occurred seven years ago. Defence lawyer Megan Savard pointed out Howden, who testified via remote link from Nevada, is “plainly unsophisticated.”
“He didn’t come dressed for court. He is inarticulate, a poor communicator, careless (with his) words,” she said.
“And if someone is deliberately feigning, you would expect a general trend towards being helpful, whereas I would say, if anything, we may all say at the end of the day, this witness is generally useless, but he’s certainly not helpful to the defence.”
At the end of the court day, Superior Court Justice Maria Carroccia agreed with the defence.
“In my view I cannot find that Mr. Howden is feigning lack of memory or being insincere about whether he has a recollection of his earlier statements or particulars of the events he is asked to describe.”
“On more than one occasion, when given an opportunity to refresh his memory, Mr. Howden has testified that he has no present recollection, but was telling the truth when he answered questions previously,” she said and added he was “effectively adopting his earlier statements due to his lack of memory” and “not attempting to distance himself from his earlier statements.
“There is no basis upon which I can conclude that Mr. Howden is being untruthful about his lack of details,” she said.
However, there were four areas of evidence on which the Crown could still seek to cross-examine Howden, the judge said. That argument is set to continue on Thursday morning.
Howden, whose Las Vegas team was recently eliminated from the NHL playoffs by the Edmonton Oilers, was already a constant presence in photos and videos made exhibits before he started his testimony at the trial of five former teammates who were in London on June 18 and 19, 2018, for a Hockey Canada gala and golf tournament to celebrate the championship.
Michael McLeod, 27, Carter Hart, 26, Dillon Dube, 26, Alex Formenton, 25, and Cal Foote, 26, have all pleaded not guilty to sexual assault. McLeod has also pleaded not guilty to a second sexual assault count for being a party to the offence.
The trial, which has received widespread media attention, is focusing on what happened in Room 209 at the Delta Armouries hotel where McLeod and a woman, then 20, returned after meeting for the first time at Jack’s Bar on Richmond Row when some members of the team were there drinking and dancing.
McLeod and the woman, now 27, had consensual sex. But the issue at the trial is what happened after their first sexual encounter.
The woman, whose name is protected under a publication ban, testified that unbeknownst to her, McLeod had invited teammates into the room for what she described as unwanted sexual activities with them.
She was a Crown witness for more than a week. She testified to having memory lapses about what happened that night and being extremely drunk after a night in the bar. She also said she had what could best be described as an out-of-body experience – separating her mind from what was happening to her body – to cope with the unwanted sexual activities.
But the defence has collectively presented a counter-scenario that the woman asked McLeod to invite the team to the room for “a wild night” and that she initiated the sexual activities and invited the men to participate
Howden is one of the first players identified in the Jack’s dance floor security videos played during the trial and appeared to be the first contact the woman made with a player that night. The woman testified that Howden introduced her to McLeod while at the bar.
Howden testified that while he was in the hotel room, he didn’t want anything to do with what he described as her inviting all of them to have sex with her. He recalled the woman flirting, “taunting,” “egging” and “chirping” the players when they refused to engage with her.
“Everybody was kind of in disbelief or shocked this was happening,” he said.
At times, however, even after opportunities given to him by the Crown to refresh his memory by being referred to segments of his 2018 and 2022 statements to the London police and Hockey Canada, Howden had little memory about certain issues.
The trial has seen its share of hiccups.
Two juries chosen to hear the case have come and gone, and mistrials declared in both cases. The first mistrial involved an unexpected contact a juror said she made with a lawyer during a lunch at the Covent Garden Market.
The other, made on Thursday, was a complaint that one of the defence teams were whispering to each other when the jury walked into the courtroom, which was perceived as them commenting on the jurors’ appearance. The note to the judge called them “unprofessional.”
The defence team for Formenton denied any impropriety.
Carroccia dismissed the jury on Friday and the case is now continuing on as a judge-alone trial.
