Lawyers spar over Crown's push to cross-examine NHLer witness at sex assault trial of ex-world junior players

coronate suggests inconsistencies in see testimonial at hockey sexual urge assault trial

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Court is on recess until 3 p.m. ET.

We’re expecting Justice Maria Carroccia to return with a decision on whether she agrees there were inconsistencies in Brett Howden’s testimony.

We’ll continue our live updates as soon as we know more.

The defence teams are continuing to challenge the Crown's allegations of inconsistencies in Howden's testimony.

For an explanation of what the Crown is seeking today, we spoke with Sarah Leamon, a B.C.-based criminal defence lawyer.

“In order to engage in an attack or a question on the credibility of their own witness, they are required to ask the court to make a finding that they are able to cross-examine.”

On Tuesday, Cunningham asked Howden to read past statements, but would not herself read them or have Howden read them in court.

Leamon said that’s because a prosecutor in this scenario would not be able to ask a leading question on a contentious issue.

“It’s not for the Crown to then put suggestions to the witness, for example, or to read prior statements or pieces of evidence that the witness hasn't elicited themselves on the stand into the record,” she said.

“So in this situation, if the Crown wishes to introduce the evidence that this witness provided in a prior statement, on an out-of-court basis, they must do that by way of cross-examination.”

And that’s why, according to Leamon, Cunningham is seeking the Section 9(2) application of the Canada Evidence Act.

“I think the important thing to keep in mind here is that the Crown is likely going to be applying to do something that is a little bit unusual, although not unheard of, in relation to their own witness,” Leamon said.

“Ultimately the decision is going to rest with the court as to whether they allow them to proceed in this manner or not.”

Lisa Carnelos, lawyer for Dillon Dubé, raises the point that the Crown met with Howden in Calgary in preparation and that they proceeded to call a witness “they know has legitimate memory issues.”

“As opposed to feigning,” Justice Maria Carroccia said.

Court is now on a short break. We’ll continue our live updates once proceedings resume.

Hilary Dudding, a lawyer for Alex Formenton, is focussing on what Howden testified regarding any physical contact between the complainant, E.M., and Formenton.

Dudding is arguing there’s no inconsistency in Howden’s testimony on Tuesday, compared to past statements.

Howden testified he doesn’t remember seeing any physical contact between Formenton and the woman as they went to the washroom.

But Howden had said previously he couldn’t exclude whether he saw the woman holding Formenton’s hand.

Dudding said Howden may have been somewhat unclear, but that doesn’t mean he was inconsistent.

Savard is raising previous case law to Ontario Superior Court Justice Maria Carroccia regarding alleged “feigned memory.”

She also suggests that if the judge rules that Howden is feigning memory, that would be something very significant to have on the record relating to his credibility, and raises questions about whether he had come prepared to court to perjure himself.

Savard also described Howden as unsophisticated, that he didn’t come dressed for court (he was wearing a hoodie) and that he was inarticulate, a poor communicator and careless with words.

Savard said if his feigning memory was deliberate, you would expect a general trend towards being helpful.

“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 said.

Savard asks Carroccia to reject the Crown’s application.

Cunningham pointed out what she believes are 18 items of inconsistency in Howden’s testimony.

Now, Carter Hart’s lawyer, Megan Savard, is addressing the court about the alleged inconsistencies.

Cunningham raises Howden’s testimony about a call he had with Dubé in 2018, in which Howden said Dubé asked him to leave his name out when Howden was set to be questioned by Hockey Canada investigators.

Howden had testified he didn’t remember much about the call, but that Dubé had asked him to leave his name out.

Cunningham said that based on previous statements, Howden had recalled Dubé asked him to leave him out of it. But Cunningham also said, based on those statements, that Dubé told Howden that he wanted to be left out because Dubé was “not happy that I did that.”

Cunningham said there’s a material difference between what Howden said Tuesday in court and what he previously had said.

WARNING: This post contains graphic details.

Cunningham also raises Howden witnessing E.M. Allegedly being slapped on the buttocks by Dillon Dubé.

Howden had testified he didn’t recall how he was feeling when he saw the slap happen, but Cunningham said that Howden, in previous statements, had said he felt that smack was “drawing a line for me to leave” and that was what “pushed me out the door.”

Cunningham also read from a 2018 text message from Howden to world junior teammate Taylor Raddysh, in which he wrote: “Dude, I'm so happy I left when all the shit went down. Ha ha.”

And then he says: “Man, when I was leaving, Duber was smacking this girl's ass so hard. Like, it looks like it hurts so bad.”

“Duber” is a reference to Dubé.

Cunningham raises Howden’s testimony about Alex Formenton, one of the defendants, interacting with Howden on that night in June 2018.

Howden testified that when the woman and Formenton went to the bathroom, Formenton said to Howden: “Should I do this?”

However, Cunningham said that Howden said in a 2018 statement that Formenton said: “Will I get in trouble for this? Am I OK to do this? Am I allowed to do this?”

“There is a material difference between ‘should I do this’ versus ‘will I get into trouble if I do this,’” Cunningham said.

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