NHLer's testimony back under scrutiny at sexual assault trial of former world junior hockey players

WARNING: This post contains graphic details.

Assistant Crown attorney Meaghan Cunnigham has said there were 18 inconsistencies in the testimony from Howden.

But Carroccia ruled on Wednesday that there were only four.

The first inconsistency Carroccia found involved Howden’s testimony about watching E.M., the complainant, take Alex Formenton, one of the defendants, into the bathroom of the hotel room.

Howden testified on Tuesday that he watched the woman take Formenton into the bathroom. But in 2018, speaking to Hockey Canada investigators, Cunningham says Howden explicitly said when she walked to the bathroom, he didn't even watch her.

Another inconsistency was about Howden’s interaction with Formenton before he went to the bathroom.

Howden testified that before Formenton went into the bathroom with the woman, he asked Howden: “Should I be doing this?”

But in a 2018 statement, Cunningham said, Howden gave much more specific details of what Formenton said.

According to that statement, Cunningham said, Formenton also asked if he would get in trouble for doing this: “Am I OK to do this? Am I allowed to do this?”

Another inconsistency relates to Howden’s response given to Formenton as Formenton and the woman went to the bathroom.

Cunningham said Howden testified that he didn’t really remember, but that everyone was kind of just leaving it up to him to decide what to do.

But in 2018, Cunningham said Howden gave more details and that his response to Formenton included comments like “if she wants to have sex with you, like, I guess it's OK” and “if she’d consent and she wants you, then sure.” He also said in 2018 that “all I said to him was like, if she consented, you can if you want. But it's like, it's up to you, kind of thing.”

The fourth inconsistency relates to how Howden felt when Dillon Dubé is alleged to have slapped E.M., the complainant, on the buttocks.

Cunningham said Howden testified he didn't remember how he felt. But she said that in a 2022 interview with Hockey Canada investigators and a 2023 interview with London police, he provided more details.

In 2022, for example, he said seeing that smack “was drawing a line for me to leave because I had felt uncomfortable to that point.” And in 2023, he said that seeing the slap “was basically the thing that finally pushed me out the door.”

Nick Cake, a former Crown prosecutor who is now a London, Ont., criminal defence lawyer and also following the trial, is not surprised memories have faded.

“Witnesses' memory, of course, is of paramount importance. It all goes to their credibility and their reliability,” he says.

But, he adds, “I don't think that the message here is that all of the defendants have gotten together with all of their buddies and everyone's trying to cover something up.

“I think the message here is that this happened in 2018. It's now 2025. If you want people to remember things, maybe get the charges laid a bit earlier, right? There was an opportunity for that to happen, but for a variety of reasons that didn't happen. But if you want memories fresh, let's run criminal trials contemporaneously with the allegations.”

While the legal discussions may be frustrating and confusing, both lawyers say it’s important to make sure all the evidence is being presented and the law is being applied to try to prevent appeals later.

Still, Cake says if he were the Crown, he would take a look at the witness list to see what their value is in a judge-alone trial.

“Because ultimately, if you're now putting witnesses on the stand that aren't necessarily assisting your case, it may in fact devalue what [the complainant] E.M. had to say because it clouds the whole nature of the trial.”

I’m Karen Pauls, a senior reporter covering this trial.

Hockey fans will know Howden can get the job done on the ice — but it’s a different story in this court case, where his testimony is under scrutiny.

He’s a witness for the Crown. But he’s not providing the information the Crown was counting on.

“The evidence that was coming out at trial was not what they anticipated,” says Sam Puchala, a criminal defence lawyer from London, Ont, who is not involved in the case but watching it closely.

The Crown has argued Howden is pretending not to remember details that would hurt his former world junior teammates — details he has already provided in previous statements to investigators and details the Crown wants on the record.

Carroccia ruled yesterday that Howden is not feigning or being insincere but agreed there are some inconsistencies in his testimony.

The Crown wants permission to challenge him on that.

“Through cross-examination, you can suggest answers.… ‘Here's what you said in your statement, here's what you were saying earlier,’” Puchala says.

Proceedings usually resume at 10 a.m. ET each day.

Today’s start, however, has been pushed to at least 11 a.m. as the lawyers negotiate how each side wishes to continue this morning.

Hello. My name is Mark Gollom and I’m a senior reporter. I’ll be reporting from the courtroom today.

This morning, court is expected to continue to be focused on legal arguments over the Crown wanting to cross-examine Brett Howden, its own witness.

Howden is an NHL player for the Vegas Golden Knights and former teammate of the defendants.

Howden, who has not been charged with anything related to the case, was part of the celebration at Jack’s bar and also ended up in the London, Ont., hotel room where the alleged sexual assault took place.

Justice Maria Carroccia has not yet ruled on the Crown’s request. But on Wednesday, Carroccia ruled that there were some inconsistencies in Howden’s testimony.

However, she concluded that Howden was not feigning lack of memory or being insincere about whether he has a recollection of his earlier statements or particulars of the events he has been asked to describe.

That ruling came in the wake of the Crown’s application under Section 9(2) of the Canada Evidence Act. That would allow the Crown to cross-examine Howden.

Carroccia said she found four instances in which there were inconsistencies in Howden’s testimony.

Assistant Crown attorney Meaghan Cunningham made the application to deal with what she said were 18 inconsistencies between Howden's testimony Tuesday and what he had said in previous statements.

Throughout Tuesday’s testimony, Cunningham asked Howden about certain incidents or details related to the alleged assaults.

When Howden said he couldn’t recall those details, Cunningham asked him to refer to prior statements he had made in interviews with investigators.

Despite referring to those statements, Howden often testified that he still couldn’t recall the details.

I’m a producer based in Toronto and I’ll be curating our live page today.

Our team of reporters is back at Ontario Superior Court in London, Ont., to bring you the latest developments from the trial.

Stay tuned as the proceedings get back underway.