Crown pushes to cross-examine NHLer over alleged inconsistencies at trial of ex-world junior players

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.

Cunningham said, for example, Howden remembers E.M., the complainant, trying to instigate sexual activity but doesn’t remember other details, which include her weeping or other people in the room saying: “Baby, don’t leave.”

Cunningham said Howden testified that he doesn’t remember the woman putting her clothes back on, but in 2018 said she would “start to get dressed.”

Cunningham is submitting to the court this morning that Howden’s lack of recall is a “feigned memory” and not a “sincere one.”

She is claiming that the details he can’t recall would be “particularly damning” for the defendants — his former teammates and friends.

Hello. My name is Mark Gollom and I’m a senior reporter with CBC News. I’ll be reporting from the courtroom today.

On Tuesday, court heard from Brett Howden, an NHL player for the Vegas Golden Knights and former teammate of the defendants.

Howden, who has not been charged with anything related to the case, was part of the celebration at Jack’s bar and also ended up in the London, Ont., hotel room where the alleged sexual assault took place.

Howden testified that the complainant, known as E.M, was the instigator of sexual activity in that room.

But assistant Crown attorney Meaghan Cunningham informed the court that she is making an application to the judge under Section 9(2) of the Canada Evidence Act in order to cross-examine her witness.

Cunningham said she is doing this to deal with what she believes are inconsistencies in the testimony of Howden, who is a Crown witness.

She is suggesting the testimony Howden gave on Tuesday does not match statements he gave to lawyers working on behalf of Hockey Canada to investigate the alleged assaults and to police.

Throughout the day, 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 past statements, Howden often testified that he still couldn’t recall the details.

Good morning. I’m Karen Pauls, a senior reporter covering this trial in London, Ont.

The dynamic in the courtroom has changed since the judge dismissed the jury last week. Ontario Superior Court Justice Maria Carroccia will decide the case now.

Lisa Dufraimont, a professor at Osgoode Hall Law School at York University in Toronto, doesn’t think the prosecution or defence will change their strategies because the issue of consent remains the same “and the evidence that's relevant to that is still relevant whether the case is being tried by a judge or by a jury.”

Still, I was curious to know if there’s a perceived advantage to either side with a judge-only trial.

Dufraimont says there’s very little solid research on jury decision-making in Canada, but “one intuition that people tend to have is that juries are probably more lenient in criminal cases generally … that it likely favours the defence to have a jury in many cases.”

The five accused men have now given up their right to a jury trial to avoid a second mistrial, something Dufraimont says was a “reasonable solution” in everyone’s best interests.

But she says it’s not the ideal scenario because the jury acts as the “conscience” of the community.

“It's because this is such an important court case that Canadians are watching that it would have been important to have a jury decide the case and bring that sort of community view to the decision,” she says. “That’s been lost and that is unfortunate.”

Because everyone ultimately agreed to a judge-alone trial, Dufraimont doesn’t see that being the basis of an appeal by either side.

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

It could prove to be another eventful day in court as the Crown presses for a chance to cross-examine its own witness over supposed inconsistencies in his testimony.

Stay tuned for all the latest updates.