Hockey Canada trial: Judge excludes key piece of evidence for Crown
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The video clip shows Brett Howden perusing what appears to be a food menu at the front desk of the Delta Armouries hotel.
Howden, now in cross-examination by the defence teams at the sexual assault trial of five members of Canada’s 2018 world junior hockey squad, has little memory of events in Room 209, but he definitely was hungry in the early morning hours of June 19, 2018.
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“I just remember trying to find food. I don’t know how we ended up deciding we were getting food together, but I just remember being hungry, trying to find food,” he said on Monday to questions from Michael McLeod’s defence lawyer, David Humphrey.
The point Humphrey and others were showing was that some players ended up in McLeod’s room after a night out at Jack’s Bar on Richmond Row simply because they were hungry – drawn by the chicken wings and maybe some nachos, not because there was a naked woman there.
McLeod, 27; Carter Hart, 26; Alex Formenton, 25; Dillon Dube, 26; 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 complainant, now 27 and whose identity is protected by court order, was 20 when she met McLeod at Jack’s Bar just before midnight on June 18, 2018. She later went with him to the Delta Armouries hotel, where the team was staying for a Hockey Canada gala and golf tournament.
The woman settled a lawsuit with Hockey Canada in May 2022 – a month after filing a civil lawsuit against the organization, the Canadian Hockey League and eight unnamed players. She has testified that after having consensual sex with McLeod, several members of the team came to the room where she said she was sexually assaulted by them.
The defence has suggested the woman was the aggressor who encouraged McLeod to invite the players to the room, where she asked them repeatedly to have sex with her, even taunting them when they didn’t take her up on her offer.
Before Howden returned to testify on Monday, Superior Court Justice Maria Carroccia rejected the Crown’s third and final attempt to enter a text message between Howden and teammate Taylor Raddysh – sent a week after the hotel room encounter – into evidence as a hearsay exception.
The text message appeared to be the best evidence against Dube, whose charge related to him spanking the woman. Dube’s defence lawyer, Lisa Carnelos, conceded during the legal arguments that his hand did touch the woman’s buttocks, but important aspects of the text message had not been corroborated.
A teammate who testified, Tyler Steenbergen, said he saw “a slap” or “a tap” that wasn’t hard but wasn’t soft either. He also agreed the mood was “playful” and not hurtful. The woman testified to multiple people slapping her and didn’t identify Dube specifically.
In the message, Raddysh informed Howden Hockey Canada was investigating what happened with the woman. Howden wrote Dube was “smacking” the woman’s behind so hard “it looked like it hurt so bad.”
At trial, Howden has had memory issues but in statements to both Hockey Canada and London police, he never said the slap was so hard it hurt.
Carroccia said the text message was inadmissible because it wasn’t sufficiently reliable. “The statement was not video recorded, it was not given under oath, nor was it provided in circumstances where it was intended to be reliable,” she ruled.
Howden could be lying, exaggerating or simply be mistaken about what he saw. He was drunk at the time of the observations.
She said the exchange with Raddysh was a casual conversation during which Howden was nervous about the investigation and “he was not attempting to be factual. He had no reason to believe that the statement would be used for any purpose and cannot vouch for its accuracy, although he was not trying to lie.”
The judge added: “I am not satisfied that the high standard to satisfy the procedural or substantial reliability of the statement have been met and the text message will not be admitted as a principled exception to the hearsay rule.”
Howden, a member of the NHL’s Vegas Golden Knights, returned to testify remotely from Nevada. He began his testimony last week and his account continued to reflect what he has said earlier, that the woman wanted to have sex and the players were not taking her up on her offer.
The event was the first time the team had been able to celebrate together after the gold medal win in Buffalo, where they were under Hockey Canada rules. The gala included an open bar even before the men went out that night.
Howden agreed he was drunk, but he knew where he was and what was going on. He had no recollection of introducing the woman to McLeod.
He also confirmed he didn’t see a text message McLeod sent out to a group chat about “a three-way” in his hotel room, because he had changed phones and numbers since the tournament.
He could remember the men all talking to each other and wanting to hang out together. He also could remember the woman asking the men repeatedly to have sex with her. “I just remember nobody wanted to take her up on it,” he said.
Howden did have a memory of the woman giving oral sex to Hart and McLeod, and in neither instance was it forced. Hart, he recalled, “stopped for a bit,” then went back a second time, but the entire encounter was quick. McLeod wasn’t able to be aroused.
“It was just kind of awkward seeing this stuff or her kind of asking about this then having it happen and not wanting to stare at it,” he said.
Howden also recalled the woman saying she was “too sober for this.” The next day, he also saw the “consent video” taken by McLeod at the end of the night in which the woman says she was consenting to the activity. Howden said both he and McLeod agreed the woman was upset and crying because she was embarrassed.
Hart’s defence lawyer, Megan Savard, asked about the oral sex between the woman and Hart, appreciating “your evidence is kind of like looking at the sun at this point.” Howden agreed he told Hockey Canada the sex was short and “they even got embarrassed.”
He also agreed the oral sex with Hart and McLeod appeared to be “100 per cent consensual.”
Savard also questioned Howden about what he told Hockey Canada investigators in 2018 about the woman’s pronouncements, when she said she was leaving when no one would have sex with her. “And then she didn’t leave. She didn’t even try to leave. She started putting on her clothes and then took them right off again,” Savard said, quoting the transcript.
Howden told investigator Danielle Robitaille that a couple of the players said she didn’t have to leave “and that’s what she wanted to hear.” When Robitaille asked if anyone restrained her from leaving he replied, “No, not that I (have) seen at all or heard at all.”
Savard also suggested reasons for Howden’s foggy memory. Howden agreed he had suffered a serious head injury during an NHL game in 2022 where he was unconscious on the ice for nine minutes.
“I’ve never really had to remember so many little details like this before and it’s definitely gotten a lot harder over time,” he said.
Formenton’s defence lawyer, Hilary Dudding, asked Howden about Formenton agreeing to have sex with the woman after her repeated requests. Howden agreed Formenton didn’t want to have sex with her in front of everyone and wanted to go into the bathroom.
Formenton asked Howden if “he should be doing this” as he went into the bathroom with the woman. Howden agreed with Dudding it was clear what the woman wanted and agreed she “was expressing her consent to have sex.”
Dube’s defence lawyer, Lisa Carnelos, took Howden through the text message exchange between the men a week after the hotel room incident when they were discussing the potential Hockey Canada inquiry.
“You had no idea that somewhere down the line this was going to be some political hot potato,” Carnelos said.
“I just thought it was Hockey Canada. That’s all we worried about,” he said.
Foote’s defence lawyer, Juliana Greenspan, began her cross-examination by showing Howden Jack’s dance floor footage of Howden clearing an area so Foote could do the splits.
Greenspan’s cross-examination continues on Tuesday.
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