Content warning: This story includes allegations of sexual assault.
LONDON, Ont. — Brett Howden’s memory was again the focus of questioning at the trial of five former NHLers accused of sexual assault on Monday.
Howden testified toward the end of the day that he patted E.M., as the complainant is known because of a publication ban on her name, on the buttocks after he had been dancing with her and Michael McLeod at Jack's bar on the night of June 18, 2018.
“Looks like I pat her on the butt,” said Howden as court was shown security video from the Jack's bar dancefloor. Howden, now a forward with the Vegas Golden Knights, was testifying remotely from Las Vegas.
Julianna Greenspan, who represents Cal Foote, asked whether it looked like Howden patted the woman’s buttocks a “couple of times? A few times?”
Howden said he saw only one pat because of the flashing strobe lights and it was hard to see more in the black-and-white security video clip. Greenspan played the video twice more.
“I personally don’t think it was a few times,” Howden said of the butt pat, after the video was shown for the third time. Greenspan maintained it was “a few times.”
During cross-examination before that by Megan Savard, a lawyer for Carter Hart, Howden’s memory was called into question when Savard introduced that Howden had suffered a “serious concussion” in March 2022.
News reports from the time state Howden lost his balance and was sent head-first into the boards by Nashville’s Filip Forsberg during a game on March 24, 2022. Court heard he was knocked unconscious for nine minutes and had to be taken off the ice on a stretcher.
Savard asked Howden, who gave a second statement to Hockey Canada investigators in September 2022, if he had trouble remembering things since his injury.
“I honestly have never thought of it before like that,” Howden said. “I’ve never had to remember so many little details like this before and it’s definitely gotten harder over time.”
The day started with Justice Maria Carroccia ruling for a second time that the text exchange between 2018 Canada world juniors teammates Howden and Taylor Raddysh was not admissible because it was considered “hearsay.”
Lawyers for the five defendants maintained the text exchange was not reliable because Howden couldn’t remember the texts and might have been lying or exaggerating in the exchange with Raddysh. The judge agreed those concerns had merit.
In addition, Carroccia said in her ruling she had concerns about the accuracy of the text messages, especially in light of the fact they were not given under oath.
Howden and Raddysh have not been accused of any wrongdoing.
After the submission was denied on Friday, assistant Crown attorney Meaghan Cunningham sought to have the text messages introduced via an alternative application. Carroccia shared her decision with the lawyers on both sides of the case over the weekend and read her reasons for the decision on Monday.
At the heart of the issue were 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 only likely explanation for Mr. Howden sending that text message is that he was telling the truth and was accurately describing what he saw,” Cunningham said on Friday, while making an argument to have the text messages entered into evidence. “Nothing else makes sense.”
McLeod has been charged with two counts of sexual assault, including one relating to aiding in the offence. Dube, Foote, Alex Formenton and Hart have each been charged with one count of sexual assault. All have pleaded not guilty to their charges.
The trial, now in its sixth week, continues Tuesday with the Crown’s cross-examination of Howden. Also expected to testify virtually is retired London police detective Stephen Newton, who conducted an investigation into the alleged incident in 2018 before closing it in 2019.
