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It took nearly a full day of voir dire in a London, Ont., Courtroom 鈥� legal arguments betwixt the prosecution and the defence, plumbing case law and pondering as they retreated to their own corners of the ring 鈥� before Justice Maria Carroccia ruled that there was no feigning in the testimony (thus far) of a former junior hockey player called as a witness by the Crown in the trial of five former junior hockey players charged with a range of sexual assaults.听

And then they knocked off early. Because, you know, they have to give the next step in this interminable proceeding a good think.听

Basically, Crown attorney Meaghan Cunningham had been vexed by the testimony of Brett Howden, a member of the 2018 world championship squad and . She had sought leave under a section of the Canada Evidence Act to cross-examine Howden 鈥� her own witness. That is an infrequent but not necessarily rare strategy. Cross-examination is typically more confrontational and the domain of the defence.听

Howden鈥檚 recollections of what happened in Room 209 in the early morning hours of June 19, 2018, were patchy in some areas and, said Cunningham, contradicted what he鈥檇 said in previous statements to investigators.听

鈥淢r. Howden鈥檚 memory loss is a feigned memory loss,鈥� Cunningham told Carroccia in what is now a judge-alone trial, following a mistrial and a dismissed jury in the last few weeks. 鈥淭his is not a complete memory loss. He remembers some details but doesn鈥檛 remember the details that are particularly damning to his friends and teammates.鈥澛�

Not that Howden got a complete pass from the defence, either. Itching to get their hands on him, I鈥檇 say. Megan Savard, lawyer for Carter Hart, described the witness as unsophisticated 鈥� goodness, he testified via video link from Vegas wearing a hoodie! 鈥� inarticulate and sloppy with language. But had Howden been deliberately feigning, then surely he would have tried being more efficacious towards the accused, said Savard.听

鈥淚 would say, if anything, we may all say at the end of the day this witness is generally useless, but certainly not helpful to the defence.鈥澛�

Savard argued that, for the judge to accept that Howden is feigning memory loss would be to accept that the witness had deliberately decided to 鈥渃ome to court and perjure himself for a group of men he hasn鈥檛 really talked to in seven years. That鈥檚 a pretty tall order.鈥澛�

Lisa Carnelos, representing Dillon Dub茅, pointed out that the Crown had met with Howden in Calgary in preparation for trial. 鈥淭hey know he has legitimate memory issues.鈥澛�

Carroccia: 鈥淎s opposed to feigning.鈥澛�

Hart, Dub茅, Michael McLeod, Alex Formenton and Cal Foote have all pleaded not guilty to sexually assaulting a then-20-year-old woman in the hotel room after meeting at a bar. Their accuser spent nine days on the witness stand 鈥� actually from another location in the courthouse 鈥� most of it under gruelling interrogation by the top-drawer D-corps.听

The complainant, known only as E.M. 鈥� her identity protected by a standard publication ban 鈥攔emained adamant throughout that she鈥檇 willingly had sex only with McLeod (the first time; there was allegedly a second episode in the bathroom later) and was shocked when he surreptitiously invited teammates to the room for a 鈥渢hree-way鈥�. The experience was so devastating that E.M. detached mind from body as a coping mechanism. She conceded, however, that she鈥檇 never said 鈥渘o鈥�, never tried to leave, and made sexually enticing comments to the young men, assuming a 鈥減orn star identity鈥� to make it through the ordeal.听

But, apart from the initial episode with McLeod, it was not consensual. That鈥檚 at the heart of the case.听

Howden, who began testifying on Tuesday, is one of four ex-teammates thus far who鈥檝e been called by the Crown. In the voir dire, Cunningham has raised 18 areas where Howden鈥檚 testimony was markedly different from what he鈥檇 said in 2018, 2022 and 2023 in statements to London police, investigators hired by Hockey Canada 鈥� which launched its own internal probe in 2018 鈥� and in text messages.听

E.M. testified that she became obviously upset when Dub茅 allegedly slapped her on her naked buttocks without her consent. Howden 鈥� who was in the room but didn鈥檛 participate in the alleged events 鈥� told court on Tuesday that he鈥檇 heard a slap but hadn鈥檛 actually seen it.听

Cunningham countered by reading a text message from Howden to teammate Taylor Raddysh in 2018, in which he wrote: 鈥淒ude, I鈥檓 so happy I left when all the s—- went down. Haha. Man, when I was leaving, Duber was smacking this girl鈥檚 ass so hard. Like, it looks like it hurt so bad.鈥澛�

There are, apparently, two other statements in which Howden claims to have seen the slap. But at trial, he testified he has no present memory of the smack.听

Cunningham also raised Howden鈥檚 testimony about a phone call he鈥檇 had with Dub茅 in 2018, in which Dub茅 asked him to leave his name out when Howden was about to be questioned by Hockey Canada鈥檚 investigator. Continuing, Cunningham put it to Howden that Dub茅 said he was 鈥渘ot happy that I did that鈥�.听

鈥淚 don鈥檛 remember the conversation (with Dub茅),鈥� said Howden, who couldn鈥檛 even recall who鈥檇 called whom. 鈥淚 just remember being asked to leave his name out of things.鈥澛�

The prosecutor noted contradictions in Howden鈥檚 evidence of an interaction he鈥檇 had with Formenton in the hotel room. Court has heard that E.M. had led Formenton into the bathroom to have sex more privately and Formenton said to Howden: 鈥淪hould I do this?鈥� But Cunningham pointed to a 2018 Howden statement in which he quoted Formenton as saying: 鈥淲ill I get into trouble for this? Am I OK to do this? Am I allowed to do this?鈥澛�

Cunningham: 鈥淭here is a material difference between 鈥榮hould I do this鈥� versus 鈥榳ill I get into trouble if I do this鈥�.听

In 2022, Howden told Danielle Robitaille, the lawyer hired by Hockey Canada to investigate, 鈥淚 do remember seeing the smack. That was drawing a line for me to leave because I had felt uncomfortable to that point. Once I had seen that, I just wanted to be out of there.鈥澛�

Cunningham: 鈥淗e鈥檚 clearly connecting the slap to his decision to leave.鈥澛�

Further, Howden testified that E.M. had been flirtatious, egging on the players to have sex with her, presenting the complainant as the instigator. Yet he didn鈥檛 remember other significant details, such as E.M. allegedly weeping and others in the room saying: 鈥淏aby, don鈥檛 leave.鈥澛�

When court resumed Wednesday following the late lunch break, Carroccia delivered her ruling specifically on the 鈥渇eigning鈥� submission.听

鈥淚n my view, at this stage, I cannot find that Mr. Howden is feigning lack of memory or is being insincere about whether he has a recollection of his earlier statements or particulars of the events that he鈥檚 being asked to describe. On more than one occasion, when given an opportunity to refresh his memory, Mr. Howden has testified that he has no present recollection but was telling the truth when he answered questions previously. He was effectively adopting his earlier statements.听

鈥淗e was not apparently trying to distance himself from his earlier statements. In fact, it is apparent he had a lack of memory in relation to some areas, even in 2022 and 2023. On the totality of the evidence, I incur there is no basis that Mr. Howden is being untruthful about his lack of memory in certain details about which he has been asked and I will not make such a finding.鈥澛�

The matter is far from settled, though. On Thursday, Carroccia will rule on the specifics of four instances where she found inconsistencies in Howden鈥檚 testimony, from the perspective of memory loss over time and discrepancies in statements.听

Carroccia has yet to rule on the core issue of whether Howden can be cross-examined by the Crown.听