A former member of Canada's world junior hockey team is pretending not to remember details that could be damaging to five of his ex-teammates currently on trial for sexual assault, prosecutors argued Wednesday.
The Crown is making an application to cross-examine one of its witnesses, Brett Howden, on 18 areas of his testimony it says are inconsistent with what he has previously said in statements and text messages.
Among them are details Howden testified Tuesday he did not recall, even after reviewing his previous statements. The Crown argues his loss of memory on these points is "not sincere," noting he seems to recall other details related to the complainant and her behaviour that night.
Howden has no issue remembering the complainant being flirtatious or instigating sexual activity, for example, but doesn't remember hearing her weep at one point or that some of the men said "oh no, baby, don't leave" when she started getting dressed to go, prosecutor Meaghan Cunningham argued.
"This is not a complete memory loss. He remembers some details, but he doesn't remember the details that are particularly damning to his friends and teammates," Cunningham said.
Defence lawyers are asking the judge to dismiss the application, arguing Howden's lack of memory is genuine and the bulk of the details highlighted by the Crown aren't inconsistencies.
Howden is "unsophisticated," "inarticulate," a poor communicator and careless with words, with a memory that seems to waver even within a single statement, argued defence lawyer Megan Savard. As a result, he is also "not helpful" to the defence as a witness, she said.
Savard also argued it would be premature to make a negative finding on Howden's credibility.
Michael McLeod, Dillon Dube, Alex Formenton, Carter 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.
The charges relate to an encounter with a woman in a London, Ont., hotel room in the early morning hours of June 19, 2018.
Prosecutors allege McLeod, Hart and Dube obtained oral sex from the woman without her consent, and Dube slapped her buttocks while she was engaged in a sexual act with someone else.
Foote is accused of doing the splits over her face and grazing his genitals on it without her consent. Formenton is alleged to have had vaginal sex with the complainant without her consent inside the bathroom.
The woman has testified she was naked, drunk and scared when men started coming into the hotel room where she'd had sex with McLeod. That initial encounter alone with McLeod is not part of the trial, which centres on what happened after others arrived.
The complainant, whose identity is protected under a publication ban, said she felt the men expected a "porn scene" and she had no choice but to go along with what they wanted her to do. She felt numb and on "autopilot" as she engaged in sexual acts, she said.
Over days of cross-examination, lawyers for the players suggested the woman wanted the men's attention and repeatedly urged them to engage in sexual activity with her, even taunting them at times.
Howden, who now plays in the NHL for the Vegas Golden Knights, told the court Tuesday he went to McLeod's room to order food and hang out with his teammates, and was surprised to see a woman there.
The woman started "begging" the men to have sex with her, he said, and gave oral sex to Hart and McLeod. He mentioned Dube "spanking" the complainant but didn't remember seeing it himself.
At another point, he recalled Formenton asking some of the others something along the lines of “should I be doing this?” as he headed to the bathroom with the woman. He said the players left the decision to Formenton, but he couldn't recall if anyone had responded to Formenton's question.
That exchange is one of the things the Crown is seeking to examine through cross-examination.
In a statement in 2018, Howden said Formenton asked the others, "Will I get in trouble for this? Like, am I OK to do this?" as well as "Am I allowed to do this?" Cunningham said in her submissions.
The Crown said he described his response in the same statement: "If she wants to have sex with you, like, I guess it's OK. ... but I, like, I was just kind of, like, I really don't know. Like I was, like, if she'd consent and she wants you, then sure. But I was like, I don't know."
Howden's testimony that he didn't see Dube slap the complainant's buttocks is also different from what he said in the past, prosecutors argued.
In a 2018 text exchange, Howden told another teammate, Taylor Raddysh, that he was happy he'd left the hotel room when he did, Cunningham said. "When I was leaving, Duber (Dube) was smacking this girl's a-- so hard, like it looked like it hurt so bad," the Crown said Howden wrote.
The Crown also wants to challenge Howden on his testimony regarding two phone calls, one with Dube and one with Foote, in which he said the players asked him not to bring them up in his interview with Hockey Canada investigators.
Picture Courtesy: THE CANADIAN PRESS/Nicole Osborne
