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Appearing virtually in a London, Ont., courtroom from the United States��wearing a hoodie��in May, he testified he couldn’t remember whether the woman was upset; he couldn’t remember if world juniors team captain Dillon Dubé slapped her, or about sending a text to another player saying Dubé smacked the woman’s buttocks��so hard that it looked like it hurt; and he couldn’t remember the woman getting dressed to leave but men persuading her to stay.

The prosecution said that Howden’s testimony had not proceeded “as anticipated,” and found itself in the position of having to argue that his memory loss was not “sincere,” but rather “feigned.” The Crown was calling its��own witness a liar.

It was just one example of the struggles faced by Crown attorneys Meaghan Cunningham and Heather Donkers to prove their case during the eight-week, high-profile sexual assault trial of five former world juniors who went on to play in the NHL,��which ended in acquittals��delivered Thursday��by Superior Court Justice Maria Carroccia. In doing so, the judge completely rejected the testimony of the complainant, known to the public as E.M. due to a publication ban on her identity, finding her evidence was both not credible and unreliable.��

“With respect to the charges before the court, having found that I cannot rely upon the evidence of E.M. and then considering the evidence in this trial as a whole, I conclude that the Crown cannot meet its onus on any of the counts before me,” Carroccia told a packed courtroom as dozens of people supporting the complainant rallied outside the building.��

The case that captured the country’s attention and sparked a reckoning about sexual misconduct in professional sports was always going to be a challenge to prove, not only because it’s notoriously difficult to secure a conviction in a sexual assault case, but because as the prosecutors themselves said during the trial, the case was more “nuanced” than what a person might think a sexual assault looks like.��

E.M. never said no nor resisted, but testified she engaged in sexual activity with multiple players as a coping mechanism for being in a room full of men she didn’t know; she maintained that she was not consenting. But Carroccia found as a fact based on the evidence that E.M. did consent, that she was expressing her willingness to engage in sexual activity with the men throughout the night, and that contrary to the Crown’s arguments, there was no evidence that her consent had been “vitiated”��— invalidated��— by her fear of being in the room.��

To understand how the��players ended up being found not guilty��means taking a look at the few new pieces of evidence London police collected after reopening the case in 2022 against Michael McLeod,��Alex Formenton, Carter Hart,��Dillon Dubé, and Cal Foote��— a reopening the force itself acknowledged in court records was due to public pressure, and the fruits of which slowly began to unravel both before and during the trial.

It included a new written statement from E.M. outlining her allegations, one that she would later distance herself from in court as it contained errors that she blamed on her lawyers; a group chat from June 2018 that the Crown argued showed the players getting behind a false narrative about what happened in the hotel room,��but the judge thought otherwise; statements that the accused players were compelled to give to a Hockey Canada investigation that were then tossed from the criminal case because of the “unfair and prejudicial” way in which they were obtained; and then there was Howden and his memory problems, which meant that his text message about the Dubé slap, that the Crown said provided��“very critical corroboration” for E.M.’s testimony, was excluded from the trial because he couldn’t even remember sending it.��

London police had originally investigated E.M.’s allegations in 2018,��but declined to lay charges after an eight-month investigation, as��the lead detective at the time doubted her claim that she was too intoxicated to consent based on her demeanour in surveillance footage. And he wondered in his report whether she had been an “active participant.”��

But everything changed in the spring of 2022 when TSN reported that Hockey Canada had��quickly��settled, for an undisclosed sum, E.M.’s $3.5-million sexual assault lawsuit brought against the organization and eight unnamed��John Doe��players. The public backlash was fierce, as sponsors began to dump Hockey Canada and the organization’s executives were called to testify��before Parliament.��London police was also feeling the heat.��

“Given a resurgence��in media attention, the London Police Service has reviewed this investigation with the aim of determining what other investigative means exist and whether reasonable grounds exist to charge any person,” London police officer David Younan wrote in 2022 in an application for a warrant to seize evidence.��

“The media attention surrounding this event is significant.”

Criminal defence lawyer Alison Craig, who is not involved in the case, wondered in an interview with the Star this month if the reopening was less about investigating whether a crime had been committed, and more about figuring out how to make criminal charges stick in the face of public outrage.��

“Because not a whole lot changed between investigation number one and number two,” Craig said. ”The police��should never be bowing to public pressure. It’s a really slippery slope.��If you start charging people as a result of public pressure, wrongful convictions and accused people’s lives getting ruined are going to skyrocket.”��

At a packed news conference last year announcing the charges,��London police chief Thai Truong apologized to E.M.��for the time it had taken to get to that point; on Thursday, the chief said little about his force’s investigation, other than noting in a statement that it had sparked important discussions about sexual violence.��

Crown attorneys have complete��discretion over which charges laid by police��— if any��— should be prosecuted. In Ontario, they’re required by policy to only prosecute if there’s a reasonable prospect of��conviction and it’s in the public interest, but they don’t have to publicly explain their reasoning.��

The test to prosecute is lower than in some other provinces — such as British Columbia, where a “substantial likelihood of conviction” is required — and one that critics have argued in the past needs to be changed to filter out weaker cases from Ontario’s backlogged justice system.

“The office of the Crown attorney knew what today’s verdict was likely to be, and the evidence at trial came as no surprise to them or anyone with full knowledge of the investigation,” Hart’s lawyer, Megan Savard, told reporters after Carroccia delivered her decision.��

As the Star first reported in May, Cunningham, the province’s lead sexual assault prosecutor as chair of the Crown office’s sexual violence advisory group, had even warned E.M. in a meeting several weeks before charges were laid in 2024 that it was��“not a really, really strong case,” but that a conviction was possible.��On Thursday, she told reporters that the success of a prosecution is “not measured solely by whether there are guilty verdicts at the end,” saying the Crown always wanted to ensure there was a fair trial.��

“Under the current��policy, there was next to no chance that this case wouldn’t proceed,” Michael Coristine, a former Crown attorney who now works as a criminal defence lawyer, told the Star this month.��

“It’s easy for defence lawyers��and people who aren’t in the Crown’s shoes to say ‘I would have pulled that case right away or never prosecuted it,’ but that’s not the reality that is being lived by these senior Crowns who do have these difficult decisions to make.”

‘No witness is a perfect witness’: E.M.’s testimony��

E.M. met McLeod at Jack’s Bar��with some of his teammates while the world juniors were in London for a fundraising event; she agreed to go back to his room��at the Delta Armouries��where they had consensual sex, only for multiple players to show up afterward, some prompted by texts from McLeod about a “3 way.”

Testifying in graphic detail��over nine days, E.M. said that the men placed a bedsheet on the floor and asked her to fondle herself, slapped and spat on her, obtained oral sex, and engaged in intercourse. She��testified that her mind went on “autopilot,” as she engaged in the sexual activity as a way of protecting herself while she was drunk and naked in a room full of strangers.��

The Crown alleged that McLeod had intercourse with E.M. a second time in the hotel room bathroom; that��Formenton separately had intercourse with her in the bathroom; that McLeod, Hart, and Dubé obtained oral sex from her; that��Dubé slapped her naked buttocks, and that Foote did the splits over her head and his genitals “grazed” her face��— all without her consent.��

During a marathon seven days of cross-examination by the defence, E.M. was confronted with the fact that the written statement she provided to police as part of their reopened investigation contained a number of errors. It��failed to mention that she initiated physical contact with McLeod on the dance floor at Jack’s, that she bought most of her own alcohol including a drink for McLeod, and kissed him. It also incorrectly stated she only learned later that he and his friends were hockey players, when she testified that she pieced together they were hockey players while at Jack’s.��

The statement had originally been written for a separate Hockey Canada probe, and in her testimony E.M. blamed her civil lawyers who drafted it for the mistakes.��“I was able to review the final copy, but really it wasn’t something that I was taking the charge on I guess,” she testified.��

That did not sit well with the judge. “When confronted with inconsistencies between her evidence and her earlier statements, E.M. had a tendency to blame others,” Carroccia said.

London police chose not to re-interview E.M. as part of their reopened probe. Lead detective��Lyndsey Ryan testified that she believed the written statement��“did clarify some points,” and that a��new interview would have been “re-traumatizing.” Despite not interviewing her, Ryan felt that the statement suggested E.M. had come to realize between 2018 and 2022 that she��was not to blame for what happened in the room and that her “acquiescence did not equal consent,” according to part of Ryan’s report read in court.��

Ryan acknowledged��on the stand it was “possible” she would have re-interviewed E.M. had there been no new statement. Court records suggest it played an important role in the decision to lay charges. Younan quoted parts of it in his application for a warrant, saying E.M. “most clearly expressed her subjective non-consent to any sexual activity” in the written statement.��

While police obtained surveillance footage in 2018 from Jack’s Bar, they never looked at it; investigators did analyze some of it in 2022, and the Crown argued it bolstered E.M.’s claim that she��was intoxicated because it showed how much alcohol she had consumed.��

But the defence used the footage to��their advantage,��pointing out that it showed E.M. buying most of her own drinks��when she had said the men bought most of the alcohol. And while she testified that the men were trying to move her hands toward their crotches on the dancefloor, McLeod’s lawyer David Humphrey pointed out the only instance caught on camera was��E.M. appearing to touch McLeod’s crotch without being directed.

The footage ended up causing the judge to find E.M. unreliable, and that she “exaggerated” her level of intoxication in her testimony.��As one example, E.M. testified she appeared in one clip to be drunk because she was leaning on the bar.��

“But a close examination of that portion of the recording seems to reveal that after ordering a shot for herself, E.M. looked at the change provided to her by the bartender, and she called her back because she had been short-changed,” Carroccia said, noting the bartender then returns to the cash register, removes a bill and gives it to E.M.��

“That conduct seems to be inconsistent with her assertion that she was leaning on the bar because she was drunk.”

Overall, the defence argued that E.M.’s “terror narrative” of being scared in the room was something she and her lawyers cooked up in 2022 for her lawsuit, as she never told police in 2018 that she had been scared.����

“They were all like ‘no you f—- her, no you f—- her’...I don’t know what they were getting at with that...I think I was just getting frustrated at that point,��I’m like ‘seriously guys,’” E.M. told Det. Steve Newton during the first police investigation in 2018.��

“I would get annoyed when like, when things weren’t happening.”��

She told Newton that��at first,��“I was liking the attention for a little bit,” but that as the night went on and the alcohol wore off, “I was realizing what’s happening, I was sobering up, like I would get up to the bathroom, I would start crying.”

In court, she testified she was “worried” when men made comments about “putting golf balls in me, in my vagina, and asking if I could take the whole club...It just sounded really kind of extreme and painful.” But in 2018 to London police, she referred to the men’s golf ball comments as them “joking” and “just being stupid” and making fun of her.��

Carroccia pointed to E.M.’s words to the police in 2018 in her findings that there wasn’t evidence to support the argument that E.M. was scared to be in the hotel room.��

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Unlike defence lawyers, who��typically meet a number of times with their clients, Crown attorneys have limited interactions with their witnesses prior to trial, and so may not always be aware of problems with their version of events until they come out in cross-examination, Coristine said.��

“No witness is a perfect witness,” he said.��

Crown preparation meetings are typically limited to explaining to people what to expect once they take the stand. Coristine explained that any clarifications or entirely new details offered in those��meetings by complainants would then have to be disclosed to the defence, who can use that information in cross-examination.��

“The Crown has to rely on what the victim has already told the police,” he said.��“The Crown isn’t typically looking to get new information.”

‘This witness is generally useless’

The Crown described��Howden in their closing arguments as a “complicated witness.” One of only two players called by the prosecution who were in the room when some of the sexual activity happened, Howden either couldn’t remember certain things he had told the police and Hockey Canada’s investigation, or he gave answers on the stand that were inconsistent with what he had said in those other statements.

Where he was helpful for the��Crown was putting names to allegations, as E.M. couldn’t identify most of the men in the room; Howden testified��seeing Hart and McLeod receive oral sex from the woman at different times in the night, after she repeatedly demanded to have sex with players. He also remembered the woman “taking” Formenton to the bathroom.��

Howden’s testimony prompted Cunningham to ask for Carroccia’s permission to cross-examine her own witness about his inconsistencies, but first she would need to convince the judge that Howden’s memory loss was not genuine.��

“It’s the Crown’s submission that Mr. Howden’s memory loss is a feigned memory loss, not a sincere one,” Cunningham said in May.��“His memory loss, in my submission, is directly related to details��that will be particularly damning for the defendants who are his former teammates and friends.”��

Howden “seemingly had a very clear memory” of the complainant “begging guys to do stuff, being flirtatious, being the one instigating everything,” Cunningham said, yet failed to remember he had previously reported the complainant weeping in the room, and men persuading her to stay when she would start to get dressed to leave.��

“The very fact that the details he claims not to remember are the details the Crown is most interested in — and that they are the details that his friends and former teammates would not wish to have before the court��— that is enough for Your Honour to say there is evidence that this is not a sincere memory loss,” Cunningham said.��

Savard argued that it��was a “pretty tall order” for the Crown to suggest that their own witness had come to court to “perjure himself��for, as far as I can tell, a group of men he hasn’t really talked to in seven years.”��She argued that Howden was a witness who had trouble expressing himself.

“The witness is plainly unsophisticated, he didn’t come to court dressed for court,” Savard said, referring to Howden’s hoodie, which never made another appearance during his time on the stand.��“He is inarticulate,��a poor communicator, and careless with words...If��anything, we may all say at the end of the day this witness is generally useless, but he’s certainly not helpful to the defence.”��

Carroccia concluded that Howden’s memory loss was not feigned, and the Crown abandoned its application to cross-examine him.��

E.M. repeatedly demanding to have sex was a central feature of both Howden’s and player Tyler Steenbergen’s testimony for the Crown; prosecutors asked the judge to reject that part of their own witnesses’ evidence, arguing it was a false version of events cooked up by members of the team through a group chat in June 2018. But Carroccia found that the group chat simply showed the players “expressing their honest recollections” of what happened in the room, after finding out that Hockey Canada was looking into the alleged incident.��

“On the basis of all of the evidence, I find as fact that the complainant did express that she wanted to engage in sexual activity with the men by saying things like ‘Is someone going to f—- me?’ and masturbating,” Carroccia said.��

It’s not unusual for either side to ask that parts of their witness’s testimony be accepted or rejected, Coristine said. “But the more material you’re asking a judge to parse out��— asking them to accept this, but don’t accept that — you run the risk of watering down the case,” he said.��

Text message ‘important to the Crown’s case’ is excluded

The Crown fought hard to have admitted as evidence a text message Howden sent to fellow world junior Taylor Raddysh on June 26, 2018, regarding Dubé in the hotel room: “Man, when I was leaving, Duber was smacking this girl’s ass so hard. Like, it looked like it hurt so bad.”��

E.M. had testified about “multiple people” taking turns slapping her “as hard as they could”��and that it hurt, but was unable to identify anyone. Howden’s text would have been the piece of evidence most closely aligned to what the complainant had told the court about the slapping.��

Steenbergen had also testified about seeing Dub�slap the complainant on the buttocks, but agreed with a suggestion from the defence that it appeared playful and part of foreplay.��

Howden testified he didn’t remember sending Raddysh the text, which led the Crown to try to get it admitted through two different legal routes over several days of arguments. But both attempts failed.��

“The information contained in this text message is important to the Crown’s case,” Cunningham argued. “The text message provides what I submit is very critical corroboration for the complainant’s testimony about one of the actual offences that is charged before the court.”

Carroccia excluded the text��message from the trial; among other reasons, the fact Howden didn’t even remember sending it meant cross-examination by the defence would have been impossible, the judge found.��

Coristine said he imagines Cunningham would have been “alive to the possibility” that Howden would have memory problems; in trying to get the text admitted,��the Crown was likely keeping in mind the need to show they did everything they could, should they choose to appeal.��

“The Crown has to look to the future beyond the trial, even if they don’t know what the result will be,” Coristine said.

Ultimately, Carroccia did find that��Dubé slapped E.M. at some point in the night, but was not one of the multiple men E.M. referred to, and the judge said it would be wrong to separate this one instance from the “broader consensual conduct” she had already found.��

‘Treasure trove of evidence’ from Hockey Canada’s investigation gets thrown out��

As the Star reported in May, a different judge excluded during pre-trial hearings last year statements that McLeod, Formenton, and Dubé gave to prominent ��ѻ��ý lawyer Danielle Robitaille in 2022 as part of Hockey Canada’s independent investigation into what happened at the Delta Armouries. The players had been declining to speak to the police’s reopened probe to maintain their right to silence, but were being compelled to speak to Robitaille under penalty of a lifetime ban from Hockey Canada��activities and programs, which would have meant not being able to play in the Olympics, or even coach a hockey team.��

What Robitaille didn’t tell the players was that by August 2022, London police had told her of their intention to get a warrant for her investigative file. She pressed ahead with her interviews of the players, keeping them in the dark about the police’s plans while she grilled them about the events in the hotel room. Once the warrant was served on Robitaille’s firm in the fall of 2022, the statements were turned over to the police, and Robitaille cancelled her upcoming interviews with Hart and Foote.��

Humphrey, McLeod’s lawyer, described Robitaille’s investigative file as a “virtual treasure trove of evidence” when he questioned her during pre-trial hearings last year. Was she “oblivious,” Humphrey asked her, to how potentially valuable these statements could be in the hands of the police and the Crown, as they made their case for criminal charges?��

McLeod admitted to Robitaille he had sent a text to his teammates about coming to his room for a three-way, while claiming it was E.M.’s idea.��

Dubé admitted to slapping E.M.’s buttocks. He told Robitaille he had been holding a golf club in his hand and E.M. said to him: “Are you going to f-‌-‌- me or play golf?”

And Formenton said he witnessed Foote do the splits over E.M.’s face without pants.��“A guy says Foote can do the splits; she says OK,” Formenton recalled. “So she’s laying on the ground parallel between the beds.��I remember he takes pants off, top clothes still on, does splits over her upper body.”

The Crown had hoped to use the statements to highlight any inconsistencies between what the players said on the stand, should they choose to testify, versus what they told Robitaille. But in the end only Hart, who had never given a previous statement about the events in the hotel room,��testified in his own defence.��

‘The burden rests squarely on the Crown’

In her judgement Thursday, Carroccia said the case had a “lengthy and contorted history” involving multiple investigations by different agencies, leading to conflicting statements from E.M., the accused men and other witnesses. “With five accused and that barrage of evidence, I can say that counsel conducted the trial efficiently, and that the time spent, particularly in the cross-examination of E.M., was entirely appropriate,” she said.��

The judge emphasized that a person accused of a crime is innocent unless and until the Crown has proven their guilt beyond a reasonable doubt. In the face of ongoing criticism of what happened in the room��— the NHL said Thursday that despite the not-guilty verdicts, the allegations were “very disturbing and the behaviour at issue was unacceptable”��— Carroccia reminded the public through her ruling what the real purpose was of this eight-week trial.��

“It is not the function of this court to make determinations about the morality or propriety of the conduct of any of the persons involved in these events,” she said.��

“The sole function of this court is to determine whether the Crown has proven each of the charges against each of the accused beyond a reasonable doubt. The burden rests squarely on the Crown and does not shift.”