Judge in hockey players’ trial rules text messages cannot be made evidence in sexual assault trial of ex-teammates

The judge ruled that text messages were inadmissible in Friday’s proceedings of the World Junior's sexual assault trial, CTV London's Nick Paparella has more.

Warning: This story contains graphic details and allegations of sexual assault

After lengthy delays for legal arguments, Brett Howden returned to the witness stand in a London, Ont., courtroom Friday in the sexual assault trial of five of his former Team Canada World Junior hockey teammates.

Crown Attorney Meaghan Cunningham continued her examination in chief by asking Howden about a July 3, 2018 interview he had with Hockey Canada about an alleged sexual assault that happened in room 209 of the Delta hotel in London, Ont., on June 19, 2018 after a Hockey Canada event.

He was asked to review a portion of his interview with Hockey Canada investigator Danielle Robitaille where he said: “By the end, like, when I was leaving, like she [the complainant, E.M.] kept saying she’s too sober for this. Like she’s like, ‘I’m too sober.’”

Cunningham went on to question Howden about the events in room 209 and asked about a moment in the night where Alex Formenton reportedly went into the bathroom with the E.M. where they had sex.

“I didn’t see anything else, but I’m pretty sure Formenton went to the bathroom with her [E.M.]. And I don’t know if... he did anything with her. I remember on the way he asked me. He said, like, ‘Will I get in trouble for this? Like, am I okay to do this.?’ He’s like, ‘Do you think I’m fine?’ And at the time, I [Howden] was like, I was like, I don’t know. Like, I was like, if she wants to have sex with you, like, I guess it’s okay. I was like... I really don’t know, I was like, if she can, if she consents, and she wants to, then sure.”

After reading the transcripts, Howden was asked multiple times: “Do you remember all of those details now?” to which he’d answer. “No, I don’t.”

Cuningham asked, “At the time you said this, did you know those things to be true?” to which he responded, “Yep.”

Voir Dire

The Crown is now seeking to have text messages admitted through the principled exception to hearsay, a mechanism through which hearsay evidence can be admitted if it is deemed necessary and reliable.

Defence lawyers for the players are opposing the application.

The second application was made after Justice Maria Carroccia ruled that texts sent by a former member of Canada’s world junior hockey team cannot be admitted as evidence at the sexual assault trial of five of his ex-teammates.

“I find that the Crown has not met its onus to satisfy me that all of the conditions for admissibility have been met to justify admission under this ‘exceptional procedure’ and the text message will not be admitted as past recollection reporting.”

Brett Howden faced questions Thursday in a voir-dire — essentially a trial within a trial — over a text conversation he had with another then-teammate, Taylor Raddysh, on June 26, 2018.

In the exchange in question, Howden described some parts of the June 19, 2018 encounter at the heart of the trial, including a moment when he says one of the accused, Dillon Dube, slapped the complainant on the buttocks.

The Crown wanted to introduce some of those texts as evidence due to Howden’s lack of memory on certain details of the events and the statements he has made in the past.

After Carroccia gave her decision, Dube’s lawyer, Lisa Carnelos, said to the court: “On behalf of Dillon Dube, I can say that we do not dispute the evidence of Mr. Steenbergen regarding the fact that Mr Dube’s hand was placed on the buttocks of E.M. [the complainant] in the physical manner described by him.”

Earlier in the proceedings, Steenbergen testified that Carter Hart received oral sex from E.M., and Dube slapped the female on the buttocks - Steenbergen said he didn’t recall hearing a noise from the slap.

Day 16: ‘We should put allegations on her’: Another former player testifies in sexual assault case of former junior hockey players

Day 17: Defence attorney slams witness as ‘useless’ in Team Canada sexual assault trial

Day 18: Howden breaks down on witness stand in sexual assault trial of five of his ex-teammates

Dube, Michael McLeod, Alex Formenton, Hart and Callan Foote have pleaded not guilty to sexual assault.

McLeod has also pleaded not guilty to an additional charge of being a party to the offence of sexual assault.

If you or someone you know is struggling with sexual assault or trauma, the following resources are available to support people in crisis:

If you are in immediate danger or fear for your safety, you should call 911.

A full list of sexual assault centres in Canada that offer information, advocacy and counselling can be found ​on the website for Ending Sexual Violence Association of Canada.

Helplines, legal services and locations that offer sexual assault kits in Alberta, B.C., Saskatchewan, Manitoba, Quebec, Ontario and Nova Scotia can be found here.

National Residential School Crisis Line: [phone]

24-hour crisis line: 416 597 8808

Canadian Human Trafficking Hotline: [phone]

Trans Lifeline: [phone]

Sexual misconduct support for current or former members of the Armed Forces: [phone]

Read about your rights as a victim here.