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

[FlamesAddiction]

Originally Posted by taxbuster

The Defence absolutely barraged EM over inconsistencies…and it seems odd that the Crown has to make application to cross their own (apparently reluctant) witness.

I think it just has to do with how trials are organized. We are still in the Crown's case phase of the trial. The Crown presents witnesses, then the defense cross-examines, and the Crown can then re-examine. When it is the defense's turn, they present witnesses and the Crown crosses. So it isn't like the accused was being unfairly cross-examined on her inconsistencies, it was just their turn.

If the Crown wants to cross-examine a witness at this phase because the witness seems to be testifying for the defense, it's outside of the normal procedure. If the defense doesn't call him, the Crown wouldn't get an opportunity to cross examine. I don't see an issue if the judge allows it, but for the sake of having a clean trial, I can see why it needs to be debated and subject to a judge's discretion. There could be valid reasons to not allow it I assume as well.

[MBates]

Originally Posted by FlamesAddiction

I think it just has to do with how trials are organized. We are still in the Crown's case phase of the trial. The Crown presents witnesses, then the defense cross-examines, and the Crown can then re-examine. When it is the defense's turn, they present witnesses and the Crown crosses. So it isn't like the accused was being unfairly cross-examined on her inconsistencies, it was just their turn.

If the Crown wants to cross-examine a witness at this phase because the witness seems to be testifying for the defense, it's outside of the normal procedure. If the defense doesn't call him, the Crown wouldn't get an opportunity to cross examine. I don't see an issue if the judge allows it, but for the sake of having a clean trial, I can see why it needs to be debated and subject to a judge's discretion. There could be valid reasons to not allow it I assume as well.

In general terms the party calling the witness to give testimony in their case is not allowed to challenge the truthfulness of the evidence the witness gives...and direct examination must be open ended questions that do not 'lead' the witness by suggesting answers or conclusions.

As with most things there are exceptions and asking the court for permission to deal with an adverse witness by being allowed to confront them with their prior statements using cross-examination techniques is one of those types of examples.

The trial judge has wide discretion to determine what process should be permitted in the interests of justice after considering all of the circumstances.

[Strange Brew]

Originally Posted by MBates

In general terms the party calling the witness to give testimony in their case is not allowed to challenge the truthfulness of the evidence the witness gives...and direct examination must be open ended questions that do not 'lead' the witness by suggesting answers or conclusions.

As with most things there are exceptions and asking the court for permission to deal with an adverse witness by being allowed to confront them with their prior statements using cross-examination techniques is one of those types of examples.

The trial judge has wide discretion to determine what process should be permitted in the interests of justice after considering all of the circumstances.

Thank you for this.

Some people are saying it was the prosecution’s plan all along to apply to cross examine their own witness. I’m not a lawyer, but this seems to defy common sense. No guarantee this would even be allowed by the judge. More likely case is that they are not getting what they hoped and this is their best hope now. Would you agree?

[FlamesAddiction]

So the judge came back and said there were only 4 inconsistencies in Howden's testimony, not 18 as the prosecutions sees it. The judge also feels that he was not feigning lack of memory or being insincere about whether he has a recollection of his earlier statements.

The judge hasn't ruled yet whether the prosecution will be allowed to cross-examine.

[IamNotKenKing]

Originally Posted by Strange Brew

Thank you for this.

Some people are saying it was the prosecution’s plan all along to apply to cross examine their own witness. I’m not a lawyer, but this seems to defy common sense. No guarantee this would even be allowed by the judge. More likely case is that they are not getting what they hoped and this is their best hope now. Would you agree?

There is no way the Crown would roll the dice with such a strategy, and it would serve no benefit. They may have been prepared to amend strategy if needed, but no way it was the plan going in. My guess is they hoped he stated what he (apparently) stated in his prior statements, at trial.

[GioforPM]

Originally Posted by IamNotKenKing

There is no way the Crown would roll the dice with such a strategy, and it would serve no benefit. They may have been prepared to amend strategy if needed, but no way it was the plan going in. My guess is they hoped he stated what he (apparently) stated in his prior statements, at trial.

The wrench was the previous ruling that the statements in the2022 investigation were inadmissible. I think they were at the very least, prepared to go this route.

There really is almost no other way to get that conduct before the court.

[chedder]

From Rick Westhead on X today:

Crown attorney Meaghan Cunningham claimed in court that Brett Howden was being untruthful when he testified he couldn’t recall details that could hurt 5 of his former teammates on Canada’s 2018 world junior hockey team who are on trial for sexual assault.
Cunningham: “Mr. Howden’s memory loss is a feigned memory loss, not a sincere one... He remembers some details but doesn’t remember the details that are particularly damning to his friends and teammates.”
Howden has testified he did not see Dillon Dube slap E.M.
Cunningham read a text message Howden sent to Team Canada teammate Taylor Raddysh in 2018 in which Howden wrote, “Dude, I’m so happy I left when all the #### went down. Haha. Man, when I was leaving, Duber was smacking this girl’s ass so hard. Like, it looks like it hurt so bad.”
Cunningham said that in 2022, Howden told an investigator, “I 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…”
Cunningham also said that in a 2018 interview with an investigator, Howden said, “I just heard her kind of weeping. I didn’t know what was going on. I went to my room because I didn’t want to be part of anything.

[GioforPM]

Originally Posted by FlamesAddiction

So the judge came back and said there were only 4 inconsistencies in Howden's testimony, not 18 as the prosecutions sees it. The judge also feels that he was not feigning lack of memory or being insincere about whether he has a recollection of his earlier statements.

The judge hasn't ruled yet whether the prosecution will be allowed to cross-examine.

Well, it's not so much about the number (I suspect the argument is they are counting multiple reiterations of the same inconsistency), it's more about the probative value and the honesty of Howden.

If they can't use his previous statements or cross him on them (and other witnesses in the same boat), the Crown's case may be in serious trouble.

[traptor]

You hope one of these guys would step up.

Blows my mind that guys like Howden would risk perjury, while also making themselves look like complete buffoons, to toe the line.

Hearing those parts of his initial statement, it feels like there's definitely more to it then what's being presented in court.

Not really helping the hockey players are scumbags and "old boys club" counter narrative here.

[Titan2]

Originally Posted by chedder

...
Cunningham also said that in a 2018 interview with an investigator, Howden said, “I just heard her kind of weeping. I didn’t know what was going on. I went to my room because I didn’t want to be part of anything.

#### this ####. He heard a woman weeping and saw her getting hit, and he walked away. Weak, coward muther ####er. He should be in jail beside 'duber'.

[CalgaryFan1988]

Sounds like a bunch of entitled ###########, quite frankly.

Disappointing that their previous texts are inadmissible. Hockey Canada should be ashamed.

[GioforPM]

Originally Posted by traptor

You hope one of these guys would step up.

Blows my mind that guys like Howden would risk perjury, while also making themselves look like complete buffoons, to toe the line.

Hearing those parts of his initial statement, it feels like there's definitely more to it then what's being presented in court.

Not really helping the hockey players are scumbags and "old boys club" counter narrative here.

Honestly, a perjury charge isn't as big a risk as it's often made out to be. Almost never charged and even more rarely prosecuted. Because the judge in this case doesn't make a ruling beyond a reasonable doubt about the veracity of the testimony, much less the intention to lie under oath.

Most assertions of perjury in recent case law come from wingnut litigants who assert that the government/bank/big corp is out to get them and won a lawsuit against them based on perjury. Those cases get tossed.

[Strange Brew]

Originally Posted by chedder

From Rick Westhead on X today:

Crown attorney Meaghan Cunningham claimed in court that Brett Howden was being untruthful when he testified he couldn’t recall details that could hurt 5 of his former teammates on Canada’s 2018 world junior hockey team who are on trial for sexual assault.
Cunningham: “Mr. Howden’s memory loss is a feigned memory loss, not a sincere one... He remembers some details but doesn’t remember the details that are particularly damning to his friends and teammates.”
Howden has testified he did not see Dillon Dube slap E.M.
Cunningham read a text message Howden sent to Team Canada teammate Taylor Raddysh in 2018 in which Howden wrote, “Dude, I’m so happy I left when all the #### went down. Haha. Man, when I was leaving, Duber was smacking this girl’s ass so hard. Like, it looks like it hurt so bad.”
Cunningham said that in 2022, Howden told an investigator, “I 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…”
Cunningham also said that in a 2018 interview with an investigator, Howden said, “I just heard her kind of weeping. I didn’t know what was going on. I went to my room because I didn’t want to be part of anything.

This is the first I have heard of that text message. "it looks like it hurt so bad". Was he asked about that already during his testimony and said he doesn't remember?

[chedder]

Originally Posted by Strange Brew

This is the first I have heard of that text message. "it looks like it hurt so bad". Was he asked about that already during his testimony and said he doesn't remember?

Not sure. This came from Rick's tsn article.

https://www.tsn.ca/hockey-canada/ric...rial-1.2309834

[Paulie Walnuts]

Just proud of the leader "Duber" is. As captain participated in the assault, which caused a player to leave and was the guy who organized the team chat. Just a great leader.

[Matt Reeeeead]

LOL - you dont forget this stuff

[GioforPM]

Maybe MBates can help me - I know generally that you cannot appeal a pre-trial ruling in criminal proceedings. Is that ruling a potential ground of appeal of an acquittal? I think it was a different judge.

[The Big Chill]

It does seem like saying she was weeping to saying she was begging is a bit of an inconsistency

[MBates]

Originally Posted by GioforPM

Maybe MBates can help me - I know generally that you cannot appeal a pre-trial ruling in criminal proceedings. Is that ruling a potential ground of appeal of an acquittal? I think it was a different judge.

Pre-trial rulings cannot be appealed as interlocutory appeals (very rare exceptions apply that are not relevant here). But if the judge made an "error of law alone" (as opposed to an error of fact or mixed fact and law) when ruling material prosecution evidence inadmissible, that can certainly form the basis of a Crown appeal from acquittal after the trial is done.

Canada has one of the broadest jurisdictions for appeals by the state in criminal matters.

[NegativeSpace]

Originally Posted by FlamesAddiction

I am kind of confused though because of this statement from the CBC reporting today:



So they won't be heard, but they can still be referred to I guess?

Don't confuse statements of the accused versus statements of witnesses. Witness statements are fair game. Accused statements were compelled by Hockey Canada and are contrary to the right to remain silent.