NHLer's text about alleged slap can't be used as evidence at ex-world junior hockey trial, judge rules

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WARNING: This post contains graphic details.

Justice Carroccia cites E.M.’s testimony in this trial as one of the reasons she’s not allowing Howden’s text messages as evidence.

E.M. Had testified she was smacked on her buttocks, while on her knees performing oral sex as well as really hard by multiple people while she was on a bed performing oral sex on Michael McLeod. E.M. Said it started to hurt and she told the men to stop.

That does not jive exactly with Howden’s text message.

The judge has explained the legal reasons for not admitting the texts.

Howden will soona be cross-examined.

We’re just waiting for him to connect remotely from Las Vegas.

Justice Maria Carroccia has just ruled the text messages sent from Brett Howden to teammate Taylor Raddysh on June 26, 2018 , are not admissible.

The texts centre on the butt slap Howden says he heard Dillon Dubé give E.M. In the London hotel room.

Carroccia says the texts are hearsay evidence and their truth and reliability cannot be guaranteed.

She told court today that she sent her decision to the lawyers last night. She’s now reading the legal reasons for why she won’t allow the texts to be considered as evidence.

The Crown tried multiple times to get the texts admitted, but this is the final kick at the can and the final ruling.

It’s not uncommon for witnesses testifying in trials to experience memory problems, especially if alcohol or trauma was involved in the original event and also because of the passage of time, says Christopher Sherrin, an associate law professor at Western University in London.

Sherrin, who isn’t involved in the world junior trial and was speaking generally, says how the courts deal with memory loss depends on a number of factors — the most important being whether it concerns peripheral or central matters to the case, and then, whether the memory loss is accepted as genuine.

“To the extent that somebody forgets things that are not terribly significant to their overall evidence or to the live issues in a case, courts are more willing to accept that, forgive that and allow for that,” Sherrin says.

It gets more complicated if the memory loss is connected to crucial evidence because the witness becomes less reliable.

“If a witness can recount only part of an event or only pieces of an event, then there's always a risk that the trier of fact will be receiving a misleading picture and might be led astray, even from the testimony of an entirely honest witness,” Sherrin says.

“If a court feels that a witness is feigning memory loss, in other words, they actually do remember but are claiming falsely that they do not, that can have a more significant impact on the assessment of their credibility.”

A memory can also be different every time a person recalls it, says Barense.

“Our memories change. They're constantly being updated to reflect new information that we've learned along the way.”

Howden has told the court he has tried to forget the night of the alleged assaults and put it behind him.

Barense says forgetting is an active process — people can make themselves forget specific details, and peripheral details are often lost with time.

“But forgetting a central moment in an event is if that event is important to the individual who's experiencing it? That is unlikely.”

Memory has played a big role in the sexual assault trial of the five former Canadian world junior hockey players.

E.M. 's testimony revealed multiple gaps and uncertainty about the chronology of some alleged events at the London hotel on the night in question in June 2018. More recently, NHL player Brett Howden’s memory issues prompted a wave of evidentiary applications, wrangling and delays.

One thing important to the Crown’s case that Howden can’t recall is what he previously told investigators and world junior teammate Taylor Raddysh about the alleged actions of Dillon Dubé. Essentially, Howden testified he couldn’t remember saying Dubé slapped E.M. So hard on her buttocks that it made him uncomfortable and prompted him to leave the room.

Morgan Barense, the Glassman Chair in Neuropsychology at the University of Toronto, says, “Memory in the real world versus memory in the courtroom are often at odds.

“As a memory scientist, I often find that what is expected of witnesses or of alleged victims there, what is demanded of their memories, is not what their memories can actually produce,” says Barense, who isn’t involved in the world juniors case and spoke to me generally about how memory may play a role in a trial.

WARNING: This post contains graphic details.

In a series of texts, Howden tells then teammate Taylor Raddysh he was happy he left the hotel room when he did because Dubé "was smacking the girl’s behind so hard, it looked like it hurt so bad.”

Raddysh, who testified earlier in the trial, is now a forward with the NHL’s Washington Capitals and also doesn’t face any charges.

The two players’ text messages were not entered as evidence originally because they’re considered hearsay — an out-of-court statement that is generally inadmissible over concerns of reliability and accuracy.

Those are the arguments the defence has been making, to keep them off the court record.

Cake, the former Crown attorney who’s now a defence lawyer, says there’s a lot at stake here, for both sides.

“It’s important for the Crown and E.M. Because it works to corroborate some of the things that she was saying. When you're looking at issues of credibility and reliability, one of the things that you're looking at for reliability are, ‘Is it corroborated by any other piece of evidence?’ So this definitely helps,” he explains.

“In relation to the defence, this is an important piece of evidence to keep out, as would any piece of evidence that implicates your client.”

By the end of Friday, the Crown did manage to get some admissions from Howden on the record.

Cunningham had him read from previous statements he gave to police and Hockey Canada investigators.

One statement included his recollection of hearing the complainant crying. In another, he described feeling “uncomfortable” by Dubé’s alleged slap.

Crown pushes to admit ‘critical’ texts at hockey sex assault trial

After questioning witness NHLer Brett Howden over possible inconsistencies in his testimony at the sexual assault trial of five former world junior hockey players from Team Canada, the Crown is again pushing to admit a series of texts from 2018 between Howden and defendant Dillon Dubé.

In a high-profile trial that has already hit more than its share of roadblocks and delays, another prominent issue arose last week that once again stalled the proceedings.

The Crown’s witness, Brett Howden, was unable to recall writing text messages — after the alleged assault of E.M. €” to his world junior hockey teammate that described Dillion Dubé hitting the complainant’s buttocks. Howden is now a forward with the NHL’s Vegas Golden Knights and faces no charges in this case.

Sam Puchala is a criminal defence lawyer in London who’s not involved with this trial, but is following it closely.

Puchala said Howden’s lack of memory is “an extra hurdle for the Crown.”

“The Crown is exercising every possible and available option to them to try to get these text messages made as an exhibit and admissible evidence in the trial, and that's because Brett Howden is not giving the Crown the evidence that they anticipated,” she said.

Assistant Crown attorney Meaghan Cunningham told court she believes Howden was pretending not to remember details that would hurt his former teammates.

That led to days of legal arguments, most of which were rejected by Justice Maria Carroccia. She did, however, allow Cunningham to make one final argument on Friday.

“Essentially what the Crown wants to do is take an out-of-court statement and admit it into the court record for the truth of its contents, and they're saying that they need to do that because there is necessity — the necessity being Mr. Howden's lack of recollection,” says Nick Cake, a former Crown attorney, and now criminal defence lawyer, who’s also watching the case.

Carroccia — who is now hearing the case alone after discharging the jury earlier this month — is expected to give her decision on the admissibility of the text messages first thing this morning.

I’m a producer based in Toronto and I’ll be curating our live page today.

Our team of reporters is back at court in London, Ont., to cover the latest developments from the trial.

Stay with us. Proceedings are set to get underway around 9:30 a.m. ET.

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