A text message in which a hockey player described seeing his former teammate slap a woman on the buttocks will not be admitted at the sexual assault trial of five ex-world junior players, an Ontario judge ruled Monday, putting an end to prosecutors' efforts to use the message in their case.
In the text, Brett Howden describes to another then-teammate seeing one of the accused, Dillon Dube, "smacking this girl's a-- so hard" in a way that "looked like it hurt so bad.”
Prosecutors had described the text as important corroboration for the complainant's account that she was slapped on the buttocks — one of the offences alleged at trial.
Howden, who now plays in the NHL for the Vegas Golden Knights, previously testified he did not recall if he saw Dube slap the complainant, nor did he remember sending the text.
Superior Court Justice Maria Carroccia reiterated her concerns over the text's accuracy in dismissing the Crown's application Monday, noting Howden's lack of memory would affect the effectiveness of cross-examination.
There are other possible explanations for the text, the judge said, including that Howden was mistaken about who he saw slap the complainant or the amount of force used.
While Dube's lawyer has said her client does not dispute that his hand was placed on the complainant's buttocks at some point, "the characterization of that touching and the force applied is an issue," the judge said, and it's possible other people were responsible for slapping her in a way that hurt.
Dube, Michael McLeod, Alex Formenton, Carter Hart and Callan Foote have pleaded not guilty to sexual assault, and McLeod has also pleaded not guilty to an additional charge of being a party to the offence of sexual assault.
The trial centres on an encounter that took place in a London, Ont., hotel room in the early hours of June 19, 2018.
Many of the players on the 2018 national world junior team were in the city at the time for a Hockey Canada gala marking their victory at that year's championship, court has heard.
The complainant, who was 20 at the time, met some of the players at a bar and went with McLeod to his hotel room, where they had sex. That sexual activity is not part of the trial, which instead focuses on what happened after other men came into the room.
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 inside the bathroom without her consent.
The complainant told the court that she felt slaps on her buttocks as she was performing oral sex, and again later as she gave oral sex to McLeod. On the second occasion, she said, it seemed people were trying to hit as hard as they could.
Another player, Tyler Steenbergen, testified he saw Dube slap the complainant and that "it wasn't hard but it didn't seem soft either." Under cross-examination, he agreed the mood was playful and he didn't get the impression that "anyone was trying to hurt anyone."
Howden, who is testifying by videoconference, sent Taylor Raddysh the text a week after the encounter as part of a broader exchange on the events of that night and the news that Hockey Canada was looking into what happened.
Prosecutors previously sought to have the text related to the slap admitted as evidence as a "past recollection recorded" — a prior statement captured in some form — due to Howden's lack of memory even after reviewing his previous statements.
Part of the test for that is establishing whether the witness can vouch for the statement's truthfulness, court heard. Carroccia found that while Howden said he wasn't trying to lie when he sent the text, he didn't say it was true.
The Crown immediately sought to enter the text through a different route: the principled exception to hearsay, a mechanism through which hearsay — statements made outside court that lawyers raise to try to prove their contents are true — can be admitted as evidence if deemed necessary and reliable.
Carroccia ruled on Monday morning that the text did not meet the test for reliability.
Prosecutors said it would be their last avenue available to admit the text.
Picture Courtesy: THE CANADIAN PRESS/Nicole Osborne
