An Ontario judge has ruled there is no basis to find that a former member of Canada's world junior hockey team was being untruthful about his lack of memory while testifying at the sexual assault trial of five of his ex-teammates.
Prosecutors sought to cross-examine their own witness, Brett Howden, on more than a dozen parts of his testimony they said were inconsistent with his previous statements, arguing the player was feigning memory loss on details that could be damaging to his friends.
Howden, they argued, 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.
"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," prosecutor Meaghan Cunningham argued.
Defence lawyers had asked the judge to dismiss the application, arguing Howden's lack of memory was genuine and the bulk of the details highlighted by the Crown weren't inconsistencies.
Ontario Superior Court Justice Maria Carroccia said Wednesday she could not find that Howden was feigning lack of memory or being insincere about whether he remembers details of the events or his previous statements.
When given the chance to refresh his memory by reviewing his past statements, Howden on more than one occasion said he had no present recollection but was telling the truth at the time the statement was made, the judge said.
"He was effectively adopting his earlier statements due to his present lack of memory. He was not apparently attempting to distance himself from his earlier statement," she said.
Of the 18 points listed by the Crown, there are four inconsistencies on details Howden at least partially remembers, the judge said, and the application to cross-examine him on those can proceed to the next step. Prosecutors said they would also seek to introduce Howden's statements and texts from 2018 as a past recollection.
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 by videoconference 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 was highlighted as an inconsistency by the Crown and is part of the four points on which its application can continue.
Howden told Hockey Canada investigators in 2018 that 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 interview: "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 reaction to the slap is also one of the areas on which the Crown's application can proceed. He testified he didn't remember how he felt when it happened, but described it in 2022 and 2023 as a pivotal moment that pushed him to leave the hotel room, prosecutors said.
His testimony on whether he saw the slap is one of the details identified by the Crown as an inconsistency but that the judge found was a memory issue.
Howden told another teammate, Taylor Raddysh, in a 2018 text exchange that he was happy he'd left the hotel room when he did, the Crown 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.
Another is Howden's testimony on the complainant's emotional state. Asked Tuesday whether he recalled seeing the complainant upset at any point, Howden said he knew he had said "something along those lines" in one of his past statements, but had no recollection of it.
In his 2018 statement, however, he described hearing the complainant cry, the Crown said.
"I just heard her kind of weeping and I didn't know, like, what was going on. So I went to my room because I didn't want to be part of anything," the Crown said he told investigators.
The Crown had also wanted 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.
This report by The Canadian Press was first published May 21, 2025.
Paola Loriggio, The Canadian Press
