NHLer had inconsistencies in testimony at sex assault trial of ex-world junior players, judge rules

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Court has ended for the day, so we’re wrapping up our live coverage. Thanks for reading along.

If you’re just getting here, scroll down to get caught up on how the proceedings unfolded.

As always, we know testimony throughout the trial has included details that can be difficult to read. There are support services available. If you’re in immediate danger or fear for your safety or that of others around you, please call 911. For support in your area, you can look for crisis lines and local services via the Ending Violence Association of Canada database.

Justice Maria Carroccia has ruled that there were some inconsistencies in Brett Howden’s testimony.

But Carroccia concluded that Howden was not feigning lack of memory or being insincere about whether he has a recollection of his earlier statements or particulars of the events he has been asked to describe.

This ruling came in the wake of the Crown’s application under Section 9(2) of the Canada Evidence Act. That would allow the Crown to cross-examine Howden, who is a Crown witness.

Carroccia said she found four instances in which there were inconsistencies in Howden’s testimony.

Assistant Crown attorney Meaghan Cunningham said she would confer with defence lawyers on how to proceed, as Carroccia will still need to rule on whether the Crown can cross-examine Howden.

Cunningham made the application to deal with what she said were 18 inconsistencies between Howden's testimony Tuesday and what he had said in previous statements.

Throughout Tuesday’s testimony, Cunningham asked Howden about certain incidents or details related to the alleged assaults.

When Howden said he couldn’t recall those details, Cunningham asked him to refer to prior statements he had made in interviews with investigators.

Despite referring to those statements, Howden often testified that he still couldn’t recall the details.

Justice Carroccia is now back and addressing the court.

Proceedings have not resumed quite yet.

The lawyers and defendants are all back in the courtroom after the extended lunch break, but Justice Maria Carroccia has not returned.

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.

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