Cal Foote arrives at the courthouse in London, Ont., on May 16.Nicole Osborne/The Globe and Mail
An NHL player told the sexual assault trial of five of his former world junior hockey teammates that he couldn’t remember whether the complainant in the case was upset in a London, Ont., hotel room on the night of the alleged assault in 2018.
But a prosecutor suggested that was inconsistent with what the player, Brett Howden of the Vegas Golden Knights, told a Hockey Canada investigator three years ago, as the Crown on Tuesday sought to have his statements to a lawyer hired by the sport organization entered into evidence at the trial. Mr. Howden is not accused of any wrongdoing.
If the judge agrees, it would be the first time anything from Hockey Canada’s investigation of the sexual assault allegations is allowed into the London trial of Michael McLeod, Carter Hart, Alex Formenton, Dillon Dubé and Cal Foote, who are each accused of sexual assault. Mr. McLeod faces a second charge of being a party to sexual assault. All have pleaded not guilty.
Up to now in the trial, hockey player witnesses have been permitted to read their own previous statements to Hockey Canada or police to jog their memories, but the statements themselves have not been entered as exhibits. And three of the accused players’ own statements to the Hockey Canada investigator were ruled inadmissible last year after a pretrial judge concluded that the tactics with which they were obtained were coercive and that allowing them in would violate the fair trial rights of the accused.
“I’m going to ask Your Honour for some time to prepare a chart for Your Honour to set out the inconsistencies where they are in the various statements,” Crown counsel Meaghan Cunningham told court.
“There are a number of areas that I wish to explore as part of this application. I think we are upwards of 15 at this point.”
The Crown alleges the five players assaulted a woman, who can only be referred to as E.M. owing to a publication ban, in a hotel room in June, 2018, after a night of drinking and dancing to celebrate the team’s win at the world junior championship.
The trial has been hearing from players who were in the room but aren’t charged, and in several instances, they have said they cannot remember what happened.
Mr. Howden testified on Tuesday that he saw E.M. involved in sexual acts with some of the accused players, but he said he did not participate.
“The whole situation was not a situation I wanted to be in,” he said, “And I think, you know, just once sexual things started happening that’s when it started getting out of hand.”
Ms. Cunningham frequently directed him to review the interviews he did in 2018 and 2022 with Danielle Robitaille, a lawyer who was then working for Hockey Canada.
“Did you see any outward signs of the woman’s emotional state while you were in the room?” Ms. Cunningham asked.
“Can you rephrase the question? I don’t really understand,” Mr. Howden replied.
“Did you see or hear anything? Any signs that she was upset at any point?” the prosecutor said.
“I don’t remember that now,” Mr. Howden replied. “I have no memory of that. In a previous transcript, I’ve mentioned something along those lines, but sitting here talking to you right now, I don’t remember that.”
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In early May, one defence lawyer challenged E.M. as she appeared as a witness about her account of players seeing her cry in the hotel room.
In one exchange, while being questioned on the stand, E.M. poured through a police transcript of an interview she gave in 2018. “It’s right there where I say ‘and I could hear them. They’re like, ”Oh, she, she’s crying.“’ That’s exactly me speaking on what I heard them say,” E.M. said.
During her questioning of Mr. Howden on Tuesday, Ms. Cunningham told the court she would be invoking Section 9.2 of the Canada Evidence Act – a power that allows lawyers to confront witnesses with their own past recollections in notes and statements that are not part of the official court record.
Mr. Howden was then excused for legal arguments.
The pretrial judge who last year excluded from evidence the three accused players’ 2022 statements to Hockey Canada was critical of the organization and Ms. Robitaille threatening the players with a lifetime ban and to publicly name them if they did not co-operate with interviews. Justice Bruce Thomas ruled that the tactic was coercive and noted that Hockey Canada was also telling the London Police that the organization wouldn’t object if detectives sought a handover of its investigative file.
Earlier on Tuesday, a defence lawyer representing Mr. Foote suggested that Hockey Canada was on a “rampage” to get players to divulge details about what happened.
Juliana Greenspan made the comments while cross-examining Tyler Steenbergen, a former member of the 2018 world junior team who sat down for an interview with Hockey Canada four years later.
Ms. Greenspan noted that Hockey Canada was under enormous pressure in 2022 to get statements from players.
She asked: “You might have felt that Hockey Canada was on a bit of a rampage to try to secure information from you. Is that fair?”
Mr. Steenbergen replied: “Yes.”
Ms. Greenspan continued: “Is it fair to say that you felt like Ms. Robitaille was trying to push you to confirm certain things during that meeting? … Is it fair to say [the notes] do not accurately reflect what it is that was actually said?”
He answered: “I believe certain parts definitely don’t.”
Last Friday, Justice Maria Carroccia dismissed the jury and decided to proceed with the case against the five accused players by judge alone.