Hart, McLeod, Dube, Foote, Formenton charged with sexual assault

[Flamesfan05]

No wonder Dube was playing like #### and had to claim mental illness

He knew this day will come and he has to pay

[powderjunkie]

Originally Posted by Hackey

If it was a single smack that seems like a strange sticking point. If it was continued after she said no then that makes more sense. Most people don't ask permission for every single thing they're going to do during sex. A butt slap isn't out of the ordinary for sex. Obviously depending on how it was actually done. But if you thought everything was fine and consensual doesn't seem like a huge leap. If you thought she didn't want to be involved then everything is an issue.

Apparently we need to keep posting this quote because a few of you refuse to see it

Dude, I'm so happy I left when all the #### went down haha. When I was leaving, Duber was smacking this girl's ass so hard, like it looked like it hurt so bad.

There is no past tense here. Calling it "a butt slap" is a ridiculous way to diminish something that "looked like it hurt so bad."

I'd also say it's noteworthy that the action was remarkable enough to warrant comment at all. It's fair to infer that it was something beyond the pale. It's also reasonable to infer that it was just the start, and "all the #### went down" continued [and likely escalated] after Howden left...he's glad that he wasn't there for it.

[GioforPM]

Originally Posted by MBates

Slapping someone on the bare buttocks without their consent in circumstances where they are engaged in sexual contact with others is absolutely capable of leading to a conviction for sexual assault according to Canadian law.

That is true before even taking into account that the actual evidence includes the complainant's testimony that she never asked to be spanked or consented to such contact, that it was hard enough to cause unwanted pain, and it made her expressly ask it to be stopped.

I am one of the first to be willing to debate the merits of what the law currently is versus what it ought to be, and whether we should be criminalizing as much conduct as we currently are, but with respect, how you have articulated yourself in your post is entirely consistent with people who currently get charged and convicted of sexual assault on a fairly regular basis, and many would say is why we do criminalize as much conduct as we do.

Even if it is true that the complainant asked everyone in the room to have sex with her, can you explain how you think that automatically means she was asking / consenting to be physically slapped (on any part of her body for that matter)?

And if you doubt my take on the law, you can review a recent Supreme Court of Canada decision upholding a trial judge's assessment that it made no sense for an accused to claim that a complainant had "out of the blue" asked to be spanked:



https://decisions.scc-csc.ca/scc-csc...20315/index.do

I'm sorry, but you seem to have overlooked the "no way no how" defence.

[FlamesAddiction]

Originally Posted by Flamesfan05

No wonder Dube was playing like #### and had to claim mental illness

He knew this day will come and he has to pay

His mental health was good enough to go and play in the KHL.

Of course everyone knew what was really going on. The denial statement coming from his lawyer was always one of the weakest ones and his involvement didn’t come as a surprise.

[Locke]

I dont like the use of AI in a lot of Professional settings, largely because I dont trust it, but also because the grunt work involved in completing these tasks is a huge element in training up-and-coming Professionals.

If you dont train people in these skills you're putting a lot of trust in that AI algorithm and you're going to have an upcoming generation of 'Professionals' who dont have the require skills to determine if something is or isn't right because they never acquired those skills and experiences because it was automated and done for them.

Getting your hands into the much and doing the dirty work? Thats how you learn. It sucks, but thats life.

[Hackey]

Originally Posted by powderjunkie

Apparently we need to keep posting this quote because a few of you refuse to see it



There is no past tense here. Calling it "a butt slap" is a ridiculous way to diminish something that "looked like it hurt so bad."

I'd also say it's noteworthy that the action was remarkable enough to warrant comment at all. It's fair to infer that it was something beyond the pale. It's also reasonable to infer that it was just the start, and "all the #### went down" continued [and likely escalated] after Howden left...he's glad that he wasn't there for it.

Ok fair enough. Then the issue would be the severity of the action more so than the consent of the action. Either she wasn't cool with any of it or she was okay with some of it and guys took it to far.

[taxbuster]

Originally Posted by Hackey

Ok fair enough. Then the issue would be the severity of the action more so than the consent of the action. Either she wasn't cool with any of it or she was okay with some of it and guys took it to far.

Think this is misstating the issue, which remains "consent".



As @itse pointed out in an earlier post, people experienced in the field have things like "safe words" and as well to protect the person...AND they check in on "severity"....AFTER they have "consent".


So a person might be OK to play with light smacks, where they are not OK with a physically powerful hockey player applying who knows how much force....and can consent to light smacks whereas a full whack is out of bounds. It's definitely out of bounds if no consent was provided I'd think, regardless of "severity".

[CliffFletcher]

Originally Posted by taxbuster

. It's definitely out of bounds if no consent was provided I'd think, regardless of "severity".

But in practice, it’s not really, is it? I’d be surprised if more than a fraction of the sexual ass-smacking that will place in Canada today has consent provided.

That’s what MBates means when he talks about our sexual consents laws being out of step with how people actually behave, and how a large amount of sexual activity that most Canadians happily participate in without considering it criminal can, by the letter of the law, warrant charges of sexual assault.

Which isn’t to say what Dube did was okay. Just that as much as we want consent laws to be clear and unambiguous, they really can’t be without criminalizing normal behaviour and turning sex into something weirdly formal and procedural.

[Coach]

There's a difference between a sexy smack and straight up hitting someone and anyone that's ever had sex knows what it is.

If you're swinging to hurt someone, you better have permission.

[CliffFletcher]

Originally Posted by Coach

There's a difference between a sexy smack and straight up hitting someone and anyone that's ever had sex knows what it is.

If you're swinging to hurt someone, you better have permission.

Read the comment I was responding to.

[Locke]

Originally Posted by Coach

There's a difference between a sexy smack and straight up hitting someone and anyone that's ever had sex knows what it is.

If you're swinging to hurt someone, you better have permission.

I dont know...I guess everyone is different, obviously, but that does nothing for me. If I'm 'swinging to hurt someone' it would have to be at their very specific request. Cuz it doesnt do anything for me. It wouldnt be my idea.

[Coach]

I wasn't directly responding to you, but there's been a few people mentioning it.

In any case, I think the spitting is the worst part of all of it. No one thinks spitting on someone is anything but pure degradation, and the people the want it, want it because they want to be degraded.

Originally Posted by Locke

I dont know...I guess everyone is different, obviously, but that does nothing for me. If I'm 'swinging to hurt someone' it would have to be at their very specific request. Cuz it doesnt do anything for me. It wouldnt be my idea.

This is what I mean, a spank is either explicitly asked to be harder from a starting point of essentially zero, or you are entering an encounter where a person has already told you they like to be hit hard. If you are throwing painful force behind an initial slap, you're doing it wrong. If you're doing it to the lone woman in a room full of dudes, you better check yourself.

[taxbuster]

Originally Posted by CliffFletcher

But in practice, it’s not really, is it? I’d be surprised if more than a fraction of the sexual ass-smacking that will place in Canada today has consent provided.

That’s what MBates means when he talks about our sexual consents laws being out of step with how people actually behave, and how a large amount of sexual activity that most Canadians happily participate in without considering it criminal can, by the letter of the law, warrant charges of sexual assault.

Which isn’t to say what Dube did was okay. Just that as much as we want consent laws to be clear and unambiguous, they really can’t be without criminalizing normal behaviour and turning sex into something weirdly formal and procedural.

Agreed of applicability - where the parties know each other, live together, or have "history". Don't know that really applies between people who have never previously met, particularly in a group situation...?


There is a fascinating (from a legal standpoint) article in the Alberta Law Review here: https://albertalawreview.com/index.p...2821/2769/3173. (Warning: not recommended unless you really wish to delve deeply into the many legal considerations around consent and violent activity associated with sexual activities.)


This case, no doubt, will have many more twists and turns as time goes on. I cannot imagine how hard it is for the Judge (Carroccia) to deal with this...no doubt it occupies her every waking, and possibly sleeping, thought. Maybe that's the case for all of them?

[jayswin]

Originally Posted by Scroopy Noopers

When randoms stick up for rich famous people for doing abhorrent things, I can’t help but just assume it’s because they have done the same. I have no idea why you’d jump in otherwise.

Or would do the same if they could get near a woman.

[taxbuster]

Howden’s texts are ruled OUT. This would appear to be problematic for the Crown. (Grounds for appeal, too, if necessary?)

[dieHARDflameZ]

Why would the texts be ruled out?

[taxbuster]

Originally Posted by dieHARDflameZ

Why would the texts be ruled out?

From CBC:
Justice Maria Carroccia has just ruled the text messages sent from Brett Howden to teammate Taylor Raddysh on June 26, 2018 , are not admissible.

The texts centre on the butt slap Howden says he heard Dillon Dubé give E.M. in the London hotel room.

Carroccia says the texts are hearsay evidence and their truth and reliability cannot be guaranteed.

She told court today that she sent her decision to the lawyers last night. She’s now reading the legal reasons for why she won’t allow the texts to be considered as evidence.

The Crown tried multiple times to get the texts admitted, but this is the final kick at the can and the final ruling.

[The Cobra]

Originally Posted by taxbuster

From CBC:
Justice Maria Carroccia has just ruled the text messages sent from Brett Howden to teammate Taylor Raddysh on June 26, 2018 , are not admissible.

The texts centre on the butt slap Howden says he heard Dillon Dubé give E.M. in the London hotel room.

Carroccia says the texts are hearsay evidence and their truth and reliability cannot be guaranteed.

She told court today that she sent her decision to the lawyers last night. She’s now reading the legal reasons for why she won’t allow the texts to be considered as evidence.

The Crown tried multiple times to get the texts admitted, but this is the final kick at the can and the final ruling.

If Howden is giving evidence how can the texts be hearsay? I get that perhaps when he sent the texts he may have been exaggerating etc., but I think that should be up to him to clarify why the texts were not an accurate view of the facts as he saw them when he sent the texts.

All testimony is such that its truth and reliability cannot be guaranteed. Presumably it is up to the judge to weight the reliability and truthfullness of all evidence.

[GioforPM]

Originally Posted by taxbuster

Howden’s texts are ruled OUT. This would appear to be problematic for the Crown. (Grounds for appeal, too, if necessary?)

I think it adds to the grounds for an appeal to some which already existed (eg, exclusion of investigation interviews).

But appeals of trial judge's rulings on evidence are pretty difficult.

[MBates]

Originally Posted by The Cobra

If Howden is giving evidence how can the texts be hearsay? I get that perhaps when he sent the texts he may have been exaggerating etc., but I think that should be up to him to clarify why the texts were not an accurate view of the facts as he saw them when he sent the texts.

All testimony is such that its truth and reliability cannot be guaranteed. Presumably it is up to the judge to weight the reliability and truthfullness of all evidence.

Hearsay is any out-of-court statement being submitted as proof of the truth of its contents and as a default it is presumptively inadmissible.

Even when you call a witness who made a prior written statement, ordinarily you are still not introducing the prior statement because you have the witness and they just give their evidence. The problems all start when the witness on the stand says they have no present memory and therefore cannot really tell the court what happened / answer the lawyers' questions.

At that point various things can be done, all of which it would appear the Crown has tried in relation to Howden.

You can have the witness silently review their prior statement to see if it refreshes their present memory. It often does and you carry on with the in-court evidence from the witness who now remembers.

However, if after reading their prior statement the witness is still saying they have no present memory, you can seek to cross examine them on inconsistencies in their prior statement and their present evidence (either with or without asking them to be declared 'adverse'). You are still relying on the in-court evidence but now you are trying to draw it out of the witness by confronting them with what they have previously said.

This would have been the point where the judge was determining whether Howden was feigning his lack of memory and how many inconsistencies there were from his prior statements to his in-court testimony.

If cross examination is not permitted or is unsuccessful at getting the evidence, you can also attempt to introduce the prior statement itself as the evidence (in place of the evidence the witness cannot now give because they cannot remember). But, that means you are now needing to fit within an exception to hearsay.

This all then enters into some of the most complex evidence issues there are, but in general, the bottom line is evidence will often get over the threshold of admissibility (and then is available to be weighed for its ultimate truth and reliability) if it can be shown it was created in circumstances where it can be said to be reliable, and its probative value outweighs any prejudicial effect.

(These are all terms of art in criminal evidence law which themselves are often the subject of a continuing education course because even lawyers struggle with the various rules and exceptions).

Past recollection recorded appears to be the exception they were relying on as the last effort to get the text messages in. The most common example of that would be a police officer's contemporaneous notes or a memo to file written by a person who was purposely trying to make an accurate account of events so that they could be referred to later.

It would appear that when put into context of the circumstances under which Howden wrote the texts, the judge was not satisfied that he was being accurate, recording actual events (as opposed to just b-s ing with his buddy), and therefore there was no way to be satisfied that the contents of the texts had any reliability that they were true.

As a result, they were ruled inadmissible.

This is the type of ruling that can be the subject of a prosecution appeal and could lead to an order for a new trial in the event of an acquittal.

What this whole issue emphasizes, however, is that even where a journalist in the room is attempting to give live updates of proceedings, you only get what they can manage to hear, process and type and often you will not be getting the full context especially of complicated legal arguments and rulings.