Warning: coverage of the Hockey Canada trial includes graphic details of alleged sexual assault that may be disturbing to readers.

The Crown in the Hockey Canada sexual assault trial alleged its current witness, Vegas Golden Knights center Brett Howden, intentionally failed to recall memories during his testimony on Tuesday.

The presiding judge does not believe that, but she did rule there were some inconsistencies.

Howden is the latest witness testifying in the Hockey Canada sexual assault trial that sees five of his former 2018 world junior teammates – Michael McLeod, Carter Hart, Alex Formenton, Dillon Dube and Cal Foote – facing charges of sexual assault. The five men have pleaded not guilty to these charges, with McLeod pleading not guilty to an additional charge of sexual assault as party to the offense.

These charges are in relation to an incident from June 2018 in which a woman, referred to in court documents as E.M., alleges that she was sexually assaulted in a London, Ont. hotel room following a Hockey Canada gala. Howden is not accused of any wrongdoing in connection to the incident.

Crown attorney Meaghan Cunningham initially made the argument at the end of Tuesday’s court proceedings but provided further details Wednesday morning. 

The Crown was seeking the ability to cross-examine Howden based on differences and “feigned memory loss” when comparing Tuesday’s testimony to previous statements Howden provided to investigators. Cunningham specifically said Howden was having a strong lack of memory when it came to aspects that could potentially hurt his former teammates’ case.

“When it comes to details that could hurt his friends or teammates, he doesn't have any memory of these things,” Cunningham said.

Throughout Howden’s testimony of the events from the Delta Armouries hotel during the early morning of June 19, 2018, Howden said he lacked memory of various alleged events. Cunningham asked Howden multiple times if he would like to refresh his memory by viewing portions of his transcripts, which Howden did. But, in nearly every instance, he said that despite seeing what he said previously, it did not help him remember what had happened. 

The Crown presented a total of 18 instances of inconsistency between Howden’s testimony and his previous statements to investigators. 

One such inconsistency Cunningham presented was that Howden said in his testimony that he didn’t see the moment Dube slapped the buttocks of the woman in the hotel room. However, in a 2018 text message to his former world junior teammate, Taylor Raddysh, Howden messaged, “Dude, I’m so happy I left when all the s--- 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 also said that in Howden’s testimony, he said that when Formenton went to the bathroom with the woman, Formenton simply asked his teammates, “Should I do this?” But Cunningham pointed to a 2018 statement where Howden says he remembers Formenton saying, “Will I get in trouble for this? Am I OK to do this? Am I allowed to do this?”

Additionally, Cunningham pointed out that Howden seemed to have a lot of memory regarding the various things the woman said to the players to instigate sexual activity but doesn’t remember things he said in previous statements about hearing the woman “weeping” and hearing other men trying to coax her into staying. 

Howden also testified that he didn’t remember the woman ever trying to put her clothes back on, despite stating in a previous statement that she would “start to get dressed” at points.

Hockey Canada Sexual Assault Trial: NHL Player Recalls Woman 'Chirping' Players In Hotel Room; Crown Suggests Inconsistencies Warning: coverage of the Hockey Canada trial includes graphic details of alleged sexual assault that may be disturbing to readers.

The defense had the chance to provide its argument as to why Howden’s lack of memory was not intentional. 

Hart’s lawyer, Megan Savard, and Dube’s lawyer, Lisa Carnelos, pointed to Howden’s shortcomings as a witness in general. Savard, specifically, referred to Howden as “unsophisticated” and “generally useless.” In her argument, Carnelos said, “Brett Howden is precisely the strawman witness.”

One of Formenton’s lawyers, Hilary Dudding, referenced how Howden testified Tuesday, when he didn’t remember seeing any physical contact between the woman and Formenton on their way to the washroom, despite him saying previously he couldn’t exclude the possibility that they may have held hands. Dudding argued that Howden was simply unclear but not inconsistent.

In the end, the presiding judge, Justice Maria Carroccia, found there were four instances of inconsistencies in Howden’s testimony but did not believe there was feigned memory loss. Cunningham will now work with the defense counsel to determine how they would like to proceed before Carrocia rules on whether the Crown will be allowed to cross-examine its own witness, Howden.

The trial is expected to resume Thursday morning with the results of the defense counsel and Crown’s discussions, as well as Carrocia’s decision on whether or not the Crown can press Howden.