Content warning: This story includes allegations of sexual assault.
The judge ruled Friday that a text exchange between two players who were in the room during an alleged sexual assault in 2018 is not admissible as evidence.
Justice Maria Carroccia ruled at the trial of five former NHLers accused of sexual assault that the text exchange between friends and 2018 Canada world juniors teammates Brett Howden and Taylor Raddysh “is not a statement made under oath.”
However, assistant Crown attorney Meaghan Cunningham is seeking to have the text messages introduced through an alternative application, which Carroccia ultimately said she would consider.
“The Crown should be afforded an opportunity to advance all legitimate avenues for putting this important information into evidence in the trial,” Cunningham told the court.
The judge heard arguments both for and against allowing the text messages under the alternative method and said she would make her second ruling on the admissibility of the evidence on Monday.
Members of the defence team had earlier bristled at learning of the application, saying the Crown knew Howden had memory issues as recently as 2023, when Howden had trouble recalling events he said he saw that were documented in previous statements to Hockey Canada investigators.
Cunningham said the Crown was aware Howden had issues remembering details of the alleged incidents of June 2018 but didn’t know until his testimony this week that his memory would not be refreshed by reviewing his previous statements, which is a relatively common process for witnesses trying to remember past evidence.
At the heart of the issue are texts in which Howden told Raddysh he saw Dillon Dube, one of the defendants, smacking “the girl’s (butt) so hard, it looked like it hurt so bad.”
The defence contended the application is “frivolous” and effectively will slow down the progress of the trial. In her ruling to hear the second application from the Crown, Carroccia said she “cannot say it is manifestly frivolous,” citing case law that supports all means necessary for a “trial to arrive at the truth.”
Court concluded on Friday with a brief appearance by Howden via Zoom from Las Vegas, in which he read into the record portions of statements he gave to Hockey Canada investigator Danielle Robitaille in 2018 and 2022, as well as to Det. Tiffany Waque of the London Police Service in 2023.
A noteworthy excerpt he read, accompanied by Cunningham reading the parts of Robitaille, from the 2018 statement was a reference to E.M., the complainant in the case, that he “didn’t see her crying, but I just heard, it sounded like crying” while in Room 209 of the Delta Armouries hotel on June 19, 2018.
Michael McLeod has been charged with two counts of sexual assault, including one relating to aiding in the offence. Dube, Cal Foote, Alex Formenton and Carter Hart have each been charged with one count of sexual assault. All have pleaded not guilty to their charges.
The trial is concluding its fifth week.
