NHLer Brett Howden's text message can't be used as evidence at trial of ex-world junior players, judge rules

Court has resumed after a short break to allow the defence teams to meet.

Assistant Crown attorney Meaghan Cunningham is now making a new submission as to why Howden's text messages should be entered into evidence in the trial.

Carrocia has ruled she will allow the Crown to bring forth a new legal application to try to enter the text messages into evidence.

The court has recessed while the defence considers their next moves.

Cunningham says the defence has made much of the fact that the Crown knew for a long time that Howden had memory issues.

But she said the Crown began expecting that Howden’s memory would be refreshed and he would be able to testify about the things he said before had happened.

“Memories can be refreshed,” she said.“This has always been a fluid issue.”

Cunningham said the Crown didn’t know it would need to make substantive use of the text messages.

And if Howden testified he saw Dillon Dubé slap the complainant, the text message would have been inadmissible, she said.

Riaz Sayani, a lawyer for Carter Hart, is countering that the Crown knew Howden had serious memory issues and that for more than a year, the Crown has said it was not seeking to introduce these text messages as evidence.

He also said there were weeks and weeks of court time set aside to deal with the issue of entering the text messages as evidence.

The defence, Sayani said, would also have cross-examined differently two witnesses, former teammates Taylor Raddysh and Tyler Steenbergen, if the text messages were going to be entered into evidence.

Assistant Crown attorney Meaghan Cunningham is addressing Carroccia, explaining why she believes the text messages should be entered into evidence.

Cunningham says Howden seemed ready to adopt many of the prior statements he had made.

During Howden’s time in the witness box, 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.

“The Crown should be afforded an opportunity to advance all legitimate avenues for putting this important information into evidence in the trial,” Cunningham said.

Justice Maria Carroccia has ruled that a text message exchange between former world junior hockey teammates Brett Howden and Taylor Raddysh shortly after the alleged sexual assault in 2018 is inadmissible as evidence.

A text message “sent to a friend … is not a statement made under oath,” she said.

One of the text messages the Crown wanted to include as evidence is one that involves Howden’s comments to Raddysh regarding the alleged slap of the complainant’s buttocks by one of the defendants, Dillon Dubé.

Carroccia said while Howden testified he wasn’t trying to lie, he believed he was being truthful when he texted those messages. She said he didn’t testify that the message was true.

Assistant Crown attorney Meaghan Cunningham, however, is seeking another legal avenue to get those text messages admitted into evidence.

If the text exchange is allowed, some legal experts say it could be significant for Dubé.

“It sounds like this is critical evidence with respect to the defendant, Mr. Dubé, and whether or not he's culpable for having sexually assaulted the complainant by virtue of slapping her,” says Sarah Leamon, a criminal defence lawyer in Vancouver.

She’s not involved in the case, but is watching it closely.

“The question is whether or not those text messages are an accurate or reliable depiction of what was going on, or if they were just simply something that was texted to a friend flippantly, maybe as a joke or a comment, and, of course, never intended to be relied upon for their accuracy to reflect what happened years ago now at trial in a criminal proceeding.”

The complainant has testified someone slapped her on the buttocks without her consent. Other players have also testified she was spanked and at least one identified Dubé.

He and the other players have all pleaded not guilty to the charges against them.

Cunningham had also been seeking to cross-examine Howden over inconsistencies in his testimony.

On Wednesday, Carroccia ruled that she found four instances in which there were inconsistencies between Howden’s testimony and previous statements to investigators.

But she also found 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.

WARNING: This post contains graphic details.

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

Ontario Superior Court Justice Maria Carroccia is expected to rule this morning on the admissibility of a text message exchange between former world junior hockey teammates Brett Howden and Taylor Raddysh shortly after the alleged sexual assaults in 2018.

Both Howden, who plays for the Vegas Golden Knights, and Raddysh, who plays for the Washington Capitals, have been Crown witnesses in this trial but neither has been charged with anything.

Howden and Raddysh, court has heard, were in the London,Ont., hotel room where the sexual assaults on the complainant, known as E.M., are alleged to have occurred in June 2018.

Thursday’s proceedings were taken up mostly by legal arguments from the Crown and defence over the admission of these text messages between Howden and Raddysh.

The Crown is seeking to have these text messages entered into evidence and to cross-examine Howden about these messages.

One of the text messages the Crown is keen on questioning Howden about and entering into evidence is one that involves Howden’s comments to Raddysh regarding the alleged slap of the complainant’s buttocks by one of the defendants, Dillon Dubé.

.In one of the messages, Howden says: “Dude, I’m so happy I left when all the shit went down.”

“Man, when I was leaving, Duber [Dubé] was smacking this girl’s ass so hard. Like it looked like it hurt so bad,” Howden texted.

Assistant Crown attorney Meaghan Cunningham has argued that Howden was being truthful when he sent those text messages. Howden also told court that he believed he was being truthful when he wrote those messages, but has repeatedly said he can’t recall those messages.

Defence lawyers have countered that the text exchange is not necessarily an accurate reflection of what Howden remembered from that night.

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

Our team of reporters is back in Ontario Superior Court in London, Ont., to cover the latest developments in the trial.

Stay with us to see how the day unfolds.