Judge in hockey players' trial rules ex-teammate's texts not currently admissible

Texts sent by a former member of Canada's world junior hockey team cannot currently be admitted at the sexual assault trial of five of his ex-teammates, an Ontario judge ruled Friday, prompting prosecutors to seek a different route to introduce the messages as evidence.

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, Howden describes 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.

"Dude, I'm so happy I left when all the s--t went down haha," the message reads. "When I was leaving, Duber (Dube) was smacking this girl's a-- so hard, like it looked like it hurt so bad."

Dube, Michael McLeod, 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 Crown alleges 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 Crown sought to introduce the messages related to the slap as a "past recollection recorded" — a prior statement captured in some form — due to Howden's lack of memory on certain details of the events, even after reviewing his previous statements.

Part of the test to admit a recorded recollection as evidence is establishing whether the witness can vouch for its truthfulness, and Ontario Superior Court Justice Maria Carroccia said Howden didn't meet that threshold.

"Although Mr. Howden testified that he wasn't trying to lie when he sent that message, he did not testify that that message was true," the judge said.

"He was uncertain and said different things in examination in chief and cross-examination about that message, at times agreeing that he cannot say that it was accurate, and at other times saying he had no reason to lie."

The Crown is now seeking to have the texts admitted through what it called the last avenue available: 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.

Carroccia is expected to rule on the application Monday.

Picture Courtesy; THE CANADIAN PRESS/Nicole Osborne