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Crown prosecutors are reattempting to have a text conversation initiated by a member of Canada’s 2018 world junior hockey team admitted as evidence after an Ontario judge’s earlier inadmissible ruling.
The arguments made inside a London, Ont., courthouse on Friday centre around Crown witness Brett Howden’s text conversation with then-teammate Taylor Raddysh on June 26, 2018 — days after the alleged incident at the heart of the sexual assault trial of five of their ex-teammates.
Howden and Raddysh are not facing charges.
Howden faced questions Thursday in a voir dire — essentially a trial within a trial — over that text conversation. In it, the Vegas Golden Knights forward describes some parts of the June 19, 2018, encounter, including a moment when he said one of the accused, Dillon Dube, slapped the female complainant on the buttocks.
“Dude, I’m so happy I left when all the s–t went down haha,” the June 26, 2018, message reads. “When I was leaving, Duber (Dube) was smacking this girl’s a– so hard, like it looked like it hurt so bad.”
The Crown wanted to introduce that text as evidence due to Howden’s lack of memory on certain details of the events, as well as statements he has made in the past.
Howden teared up Thursday as he described feeling scared and nervous after learning Hockey Canada had launched an investigation into the encounter and realizing he would have to explain the situation to his parents and his girlfriend, now his wife.
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Superior Court Justice Maria Carroccia said Friday that the Crown did not meet the onus for it to be admissible under its “past recollection recorded” application — a prior statement captured in some form.
Part of the test to admit a recorded recollection as evidence is establishing whether the witness can vouch for its truthfulness, and Carroccia said the Crown didn’t meet that threshold.
“This is a text message sent to a friend during a casual conversation. It is not a statement made under oath,” she said.
“Mr. Howden was understandably under stress and worried about himself when he learned that an investigation has been undertaken by Hockey Canada and was talking about events that occurred when he was drunk.”
Crown prosecutor Meaghan Cunningham then began an argument to have the texts submitted through a hearsay application, a mechanism in which hearsay evidence can be admitted if it is deemed necessary and reliable.
“The Crown should be afforded an opportunity to advance all legitimate avenues for putting this important information into evidence in the trial,” she said.
The defence sought to have it dismissed, saying it was received last minute and would delay the trial further, and that defence lawyers would’ve questioned Crown witnesses differently should they have known the texts would be admitted.
Carroccia said she would permit the Crown to bring forward the new application, and arguments began shortly afterwards. Carroccia is expected to issue a ruling on the matter on Monday.
Dube, Michael McLeod, Alex Formenton, Carter Hart and Callan Foote have pleaded not guilty to sexual assault stemming from what the Crown alleges was non-consensual group sex with a 20-year-old woman in McLeod’s London, Ont., hotel room in June 2018.
McLeod has also pleaded not guilty to an additional charge of being a party to the offence of sexual assault.
Court has heard the team was in town for events marking its gold-medal performance at that year’s championship, and the woman, known as E.M. in court documents, was out with friends when they met at a downtown bar on June 18, 2018.
After being with McLeod and his teammates at the bar, E.M. would go on to have consensual sex with McLeod in his room in the early morning hours of June 19. Court has heard E.M., who testified she was drunk and not of a clear mind, was in the washroom after she had sex with McLeod and came out to a group of men in the room allegedly invited for a “3 way” by McLeod in a group chat.
Defence lawyers have suggested E.M. wasn’t as drunk as she has testified she was, wanted a “wild night” with the players, was “egging” them on to have sex with her and accused her of having a “clear agenda” at the trial.
E.M. has pushed back against those claims in a several-days-long cross-examination and at points outright rejected them, saying she was coaxed into staying in the room, was disrespected and was taken advantage of by the group who she said “could see I was out of my mind.”
The trial, which has seen two juries dismissed since it began in late April, is proceeding by judge alone and is expected to unfold over eight weeks.
— with files from The Canadian Press
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