ONTARIO COURT OF JUSTICE

DATE: 2025-03-14
COURT FILE No.: Hamilton 998 23 47102956

BETWEEN:
His Majesty the King (Applicant)
— AND —
Frank Dimillo (Respondent)

Ruling on Hearsay Applications

Before Justice Davin M.K. Garg
Heard on: February 18-21, 26, 2025
Reasons released on: March 14, 2025

Counsel:
Sean Doherty — counsel for the Crown
Ian McCuaig — counsel for the accused Frank Dimillo

I Overview

[1] The accused allegedly shot the complainant in the face. The complainant survived. The bullet is said to have passed through his left cheek and out his neck. The alleged shooting occurred inside a trailer parked at the accused’s residence.

[2] The complainant testified. But he did not incriminate the accused. He disavowed any knowledge of the shooting. He disavowed any knowledge of the accused altogether. The complainant’s testimony was in direct contrast to his police statement, in which he described the accused shooting him.

[3] The accused’s son, Blake Dimillo, also testified. He acknowledged telling the police that he overheard the accused confess to the shooting. But he testified that he misspoke and did not adopt that part of his statement.

[4] The Crown applies to admit the hearsay statements of the complainant and Blake.[1] For the reasons that follow, I deny the application to admit the complainant’s statement, and I grant the application to admit Blake’s statement.

II General Principles

[5] Hearsay is an out-of-court statement tendered for the truth of its contents. It is presumptively inadmissible. Unlike trial testimony, hearsay statements lack cross-examination that is contemporaneous to the making of the statement. Allowing the trier of fact to consider hearsay can compromise trial fairness and the trial’s truth-seeking function: R. v. Bradshaw, 2017 SCC 35 at para. 20. There is a fear that untested hearsay evidence might be afforded more weight than it deserves: R. v. Khelawon, 2006 SCC 57 at para. 35. Despite these concerns, hearsay can be admitted into evidence when the applicant establishes on a balance of probabilities the necessity of adducing the statement and the statement’s threshold reliability: Bradshaw at para. 23.

[6] Threshold reliability is the primary issue on this application. To gain admission, the statement must be sufficiently reliable to overcome the hearsay dangers. Threshold reliability can be shown by establishing procedural reliability or substantive reliability. Considering one form of reliability does not preclude considering the other: Khelawon at para. 49; R. v. Couture, 2007 SCC 28 at para. 80. “[The] two approaches to establishing threshold reliability may work in tandem”: Bradshaw at para. 32.

[7] Procedural reliability requires adequate substitutes for testing the truth and accuracy of the statement. Traditional safeguards include a video recording of the statement, the statement being made under oath or solemn affirmation, and the declarant being warned about the consequences of lying: R. v. B.(K.G.), [1993] 1 S.C.R. 740 at 795-796. Some form of cross-examining the declarant is usually required: Bradshaw at paras. 27-28.

[8] Substantive reliability requires sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy. Relevant factors include the circumstances in which the statement was made and evidence that corroborates the statement: Bradshaw at paras. 27, 30-31. On this basis of reliability, “the contents of the hearsay statement [is] so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process”: Khelawon at para. 49.

III Potential Corroborative Evidence

[9] Corroborative evidence is relevant to establishing substantive reliability. Corroborative evidence must be trustworthy. To be relied on, the evidence must corroborate material portions of the hearsay statement. “[T]o overcome the hearsay dangers and establish substantive reliability, corroborative evidence must show that the material aspects of the statement are unlikely to change under cross-examination”: Bradshaw at para. 47.

[10] Below I outline the potential corroborative evidence on this application. Whether the evidence is indeed corroborative is addressed later in these reasons.

A. Evidence of there being an incident on the accused’s property

[11] People saw the accused and the complainant together on the accused’s property on May 12, 2023, which is the date and location of the alleged shooting. A cab driver picked up the complainant from the property. He received the fare call around 2:38pm. He observed that the complainant was covering the left side of his face with what appeared to be a white cloth. Meanwhile, Blake testified that he arrived home around 3:00pm. He saw the accused, the complainant, the accused’s girlfriend Chantel, and his grandmother Sue Ann. He described them as “panicked” and “frantic”. Blake also saw the complainant holding his cheek with a white scarf wrapped around his head.

[12] The police attended the property on the day of the alleged shooting. They made limited observations that day. They saw that the trailer doors were closed. They also saw a hose that was spewing water onto a garden bed, apparently directed at some fresh dirt. Blake turned off the hose when he came home.

B. Evidence of there being a shooting inside the trailer

[13] The next day, the police executed a search warrant inside the trailer where the alleged shooting occurred. The police saw what appeared to be a bullet hole in the wall. They cut holes in the two sheets of plywood and three pieces of Styrofoam that made up the wall, without piercing the trailer’s external shell. On the ground behind these materials, they located a “full metal jacket” projectile.

[14] The police also searched inside the home. When searching the basement, they located a bag hidden on ductwork near the ceiling. They found a .357 Magnum revolver inside the bag. The projectile located behind the trailer wall could have fired from the gun (i.e., the projectile was compatible with the gun).

[15] The police found a spent casing loose in the bag with the gun. This casing could have housed the projectile that was found behind the trailer wall.

C. Evidence of the accused being the shooter

[16] The police sent the gun for testing at the Centre of Forensic Sciences (CFS). Two DNA profiles suitable for comparison were located on the gun. A swab of the textured areas (i.e., the grip, hammer, and button) detected the DNA from one male, labelled as “STR Profile 2”. The accused cannot be excluded as the source of this profile. The STR DNA results are estimated to be greater than one trillion times more likely if STR Profile 2 originates from the accused than if it originates from an unknown person unrelated to the accused. The CFS expert used plain language in his testimony: “it’s essentially inconceivable to me that this DNA profile, STR Profile 2, would originate from anyone other than [the accused], including family members … this is an unambiguous DNA profile with information at all of the available testing locations”.

[17] The gun was found in the basement. The accused’s bedroom was also in the basement.

[18] The presence of the accused’s DNA does not speak to when the DNA was deposited. The expert recognized that DNA could theoretically persist for years on the textured areas of the gun.

D. Evidence of the complainant being shot

[19] The complainant approached Officer Libby on the street the morning after the alleged shooting. He tried to get her attention while she was busy diffusing an unrelated matter. Once Officer Libby turned her attention to the complainant, she noticed an injury on his left cheek that was scabbed over and bleeding. As the complainant turned away, Officer Libby saw a second injury below the angle of his left jaw. This wound was completely open, and Officer Libby could see flesh. After some convincing, the complainant agreed to attend the hospital, where he gave his statement.

[20] The police photographed the complainant’s injuries two days after the alleged shooting (see Exhibit 2). The photos depict two obvious wounds to the left side of the complainant’s face. The first is a hole on his cheek; the second is a hole on his neck behind the ear. Both wounds are slightly inflamed. Some swelling is visible.

[21] The CFS swabbed flaked staining on the left side of the gun. The swab detected blood and DNA from at least two people, including at least one male. The blood stain provided one DNA profile suitable for comparison, labelled as “STR Profile 1”. The complainant cannot be excluded as the source of this profile. The STR DNA results are estimated to be greater than one trillion times more likely if STR Profile 1 originates from the complainant than if it originates from an unknown person unrelated to the complainant.

[22] The CFS also found blood on a paper manual that was somewhere in the trailer. The swab of the staining contained DNA from two people, including at least one male. The STR DNA results are estimated to be greater than one trillion times more likely if the complainant contributed to the mixture, and 660,000 times more likely if the accused was the other contributor. The expert testified that it was more likely that the blood originated from the complainant because he contributed more DNA to the mixture.

[23] The manual’s precise location within the trailer at the time of the alleged shooting cannot be determined because items in the trailer shifted considerably during towing. Police did not take photographs of the trailer’s contents until after the towing.

IV Admissibility of the Complainant’s Statement

[24] I conclude that the complainant’s hearsay statement is inadmissible based on the following analysis.

A. Necessity

[25] The complainant’s statement is necessary. While the complainant attended court and took the oath, functionally he did not testify. Many of his answers were non-responsive. He denied making the statement and therefore did not adopt its contents.

B. Procedural reliability

[26] The Crown points to the following circumstances to establish procedural reliability: the statement was recorded, the complainant knew he was being recorded, the police reminded the complainant to tell the truth, and the complainant knew that his statement would be disclosed to the accused. The complainant knew that his statement would give rise to criminal charges and require him to testify. As he said in the statement, “I fully intend to testify. I fully intend to put this guy on the cross”.

[27] The evidence falls well short of establishing procedural reliability. The factors in favour of procedural reliability do not overcome the factors against. Crucially, I find that the complainant is not available for meaningful cross-examination: see Bradshaw at para. 28. The truth and accuracy of the complainant’s statement cannot be tested when he denies making the statement. The complainant also refused to answer many questions or provided unintelligible responses. The complainant is only available for cross-examination in the sense that he will sit in the witness stand and listen to questions. But the opportunity for cross-examination in this case is “illusory” and insufficient to overcome the hearsay dangers: R. v. Youvarajah, 2013 SCC 41 at para. 41.

[28] I also accept defence counsel’s argument that I should consider the complainant’s contemptuous attitude to the court process. Ordinarily, a declarant’s knowledge that their statement might be used in court adds solemnity to the occasion and thus some reliability to the statement. But in this case, even if the police had put the complainant under oath and warned him about the consequences of lying, I am doubtful that these safeguards would have bound the complainant’s conscience.

C. Substantive reliability

[29] The Crown focused its submissions on substantive reliability and the force of the corroborative evidence. The Supreme Court’s decision in Bradshaw sets the structure of my analysis.

Material aspects of the hearsay statement

[30] The complainant described how the accused shot him in the face. He gave a detailed account. The complainant declared how the accused shot him with a .357 Magnum. He proffered a motive for the shooting. He described how the accused had reproached him for stealing his drugs, money, and gun. When the accused’s girlfriend said that she found the money in the complainant’s bag, the accused snapped. He dragged the complainant into the trailer,[2] put the gun to the complainant’s face, and pulled the trigger. The accused told the complainant that the bullet hit the back of the trailer. After the shooting, the accused tried to clean up the blood with water. The accused gave the complainant a towel, which the complainant ripped in half. The complainant eventually left and went to his mother’s place, taking the towel with him.

Specific hearsay dangers

[31] The complainant’s sincerity when giving his statement is clearly at issue. There is a danger that the complainant was not being truthful.

[32] Defence counsel argued that memory, narration, and perception are live dangers as well. I agree, albeit to a lesser degree than sincerity. Counsel posited that the complainant told a fantastical story while high on pain killers or opioids. There is evidentiary support for this position. One would not expect a shooting victim to resist medical treatment while munching on doughnuts and slurping an A&W soda, yet that is what the police observed. While the complainant might have accurately recounted being shot, I agree there is some question on whether he reliably recounted the details.

Alternative explanations for the statement

[33] In assessing substantive reliability, I must identify alternative and even speculative explanations for the hearsay statement: Bradshaw at para. 48. With the assistance of counsel, I have identified the following alternatives:

1. The complainant was shot or otherwise injured before attending the trailer.
2. The complainant shot himself in the trailer.
3. Someone other than the accused shot the complainant in the trailer.
4. The accused shot the complainant in the trailer by accident.

Defence counsel recognized that the complainant being shot from attempting suicide was not a viable alternative.

Whether corroborative evidence rules out the alternative explanations

[34] I can only rely on corroborative evidence to establish threshold reliability if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the statement is the complainant’s truthfulness and accuracy with respect to the material aspects of the statement: Bradshaw at paras. 40, 44, 47. I must be able to “rule out any plausible alternative explanations on a balance of probabilities”: para. 49.

[35] To be considered, corroborative evidence must itself be trustworthy. All the potential corroborative evidence that I outlined above is trustworthy. Much of this evidence was uncontroversial or only lightly challenged by the defence. Instead, the defence added qualifiers to the evidence or highlighted the limits of its corroborative force.

[36] There is force to the Crown’s argument that the corroborative evidence establishes substantive reliability. That evidence comes close to ruling out the alternative explanations. But ultimately, I am not satisfied that the complainant’s statement is “so reliable that contemporaneous cross-examination of [him] would add little if anything to the process”: Khelawon at para. 49. I cannot say that the only likely explanation is that the statement is true: Bradshaw at para. 31.

[37] I will start with the strengths of the corroborative evidence. I find that it eliminates the plausibility of the complainant being shot or injured elsewhere and then attending the trailer. I appreciate that the complainant did not act as one might expect. He did not call 911 or rush to the emergency room. Still, it is implausible that the complainant was injured by an apparent gunshot wound at an unknown location, somehow attended the trailer while still bleeding from that wound, the gun was produced for some unknown reason, the complainant bled on the gun, people on the property were unsettled, and then the police found a bullet compatible with the gun implanted in the wall shortly thereafter. In this context, I do not find it conflicting that Blake’s grandmother saw the complainant already in possession of the white cloth before the alleged shooting. Examined holistically, the corroborative evidence entirely supports the complainant’s declaration that he was shot inside the trailer on May 12, 2023.

[38] The real issue is whether the evidence sufficiently corroborates the truthfulness of the complainant’s statement that the accused was the shooter. There is evidence that corroborates this material aspect of the statement. Only two DNA profiles were found on the gun: one from the complainant and one from the accused.[3] The accused’s DNA is located where a person would ordinarily touch a gun when using it as intended. The police then found the gun hidden in the same basement that housed the accused’s bedroom. This corroborative evidence must be considered alongside the evidence confirming that the shooting occurred in the trailer on May 12 because it creates a limited pool of people who could have fired the gun—the accused amongst them.

[39] The alternative that the accused shot himself with the gun is not very compelling. The corroborative evidence establishes that the complainant approached the police of his own volition to report the shooting. I do not see why the complainant would have done that if he shot himself. Defence counsel argued that the complainant might have felt that he had no choice—that he needed to explain his injury before the police investigated him. I do not accept this argument. Officer Libby was unequivocal in her testimony that the complainant tried to get her attention. He needed to be patient and wait until she had wrapped up another matter. From my sense of the evidence, Officer Libby would have had zero interest in the complainant but for his persistence. Counsel countered that the complainant might have wrongly perceived that the police were interested in him.[4] The flaw in this argument is that it relies on the complainant perceiving his circumstances irrationally but then making the rational decision of getting ahead of the investigation by deflecting blame for the shooting. I cannot accept this explanation for the complainant reporting the shooting.

[40] Nonetheless, the corroborative evidence does not show that the only likely explanation for the complainant’s statement was his truthfulness that the accused had shot him. The alternatives might not be compelling. But they do not need to be. The corroborative evidence needs to rule out the alternative explanations such that the only remaining likely explanation for the statement is the complainant’s truthfulness and accuracy: Bradshaw at paras. 57, 85. I conclude that substantive reliability is not established for the following four reasons.

[41] First, the complainant is an unsavoury witness as defined by Vetrovec v. The Queen, [1982] 1 S.C.R. 811. He cannot be trusted to tell the truth. He has a long record for crimes of dishonesty and offences against the administration of justice. There are some obvious falsehoods in the statement (e.g., the complainant said that he had 53 bitcoins). I also implicitly found that the complainant lied to the court while under oath.[5] Establishing the inherent trustworthiness of hearsay evidence from an unsavoury witness will be “extremely challenging”: Bradshaw at para. 69.

[42] Second, while it might be definitive that the accused’s DNA is on the gun, the corroborative evidence is not definitive on when or how he deposited the DNA. The expert agreed in cross-examination that the accused’s DNA could “theoretically” have persisted on the gun “for years”. The expert also acknowledged that ordinary handling of the gun was not the only way to deposit the DNA.

[43] Third, I must consider evidence that conflicts with the complainant’s statement: Bradshaw at para. 30. For example, the complainant in his statement described how “there’s blood everywhere” after the shooting and that the accused was using water to clean it up. The police, on the day of the alleged shooting and the next day when executing the warrant, did not see evidence of cleaning or copious amounts of blood. It is a stretch to connect the running hose in the garden with the accused’s alleged efforts to clean the scene. Furthermore, the complainant told the police that the accused robbed him. But the evidence does not disclose the police recovering any of his effects from the property.

[44] Fourth, substantive reliability remains concerned with the circumstances in which the statement was taken: Bradshaw at para. 30. The complainant had two gaping gunshot wounds. Yet he did not exhibit signs of pain or distress. Defence counsel raises the valid inference that the complainant was under the influence of drugs or strong medication when giving his statement, which undermines its reliability.

[45] Taking these four reasons collectively, the corroborative evidence does not exclude the alternative that the complainant was shot by someone other than the accused. The complainant’s truthfulness and accuracy provide a likely explanation for him implicating the accused. But I cannot rule out the plausible alternative explanations on a balance of probabilities: Bradshaw at para. 49.

V Admissibility of Blake Dimillo’s Statement

[46] I conclude that the hearsay statement of the accused’s son, Blake, is admissible based on the following analysis.

A. Circumstances and content of the statement

[47] I start with a detailed review of the evidence going to the circumstances and content of Blake’s statement. This context is relevant to the procedural reliability of the statement, and defence counsel’s argument that the probative value of the statement is surpassed by its prejudicial effect.

Blake discussed the alleged shooting

[48] Blake arrived home after the alleged shooting and saw that people were unsettled. He talked about the incident with his aunt Angie on the telephone. At home, Blake discussed the events with the accused’s girlfriend Chantel. She told Blake an extensive account of what she thought had happened. Blake did not know how Angie or Chantel obtained their information. Blake testified that, after speaking with Angie and Chantel, he had developed a fairly detailed picture of the day’s events.

Circumstances leading to the statement

[49] Blake was home when the police came to execute the search warrant the day after the alleged shooting. The police were reasonably polite and invited everyone to leave the house. Blake was only wearing gym shorts when he walked outside that spring morning. He waited outside for about 15 to 20 minutes until he was put in a detective’s car and brought to the station. It was Blake’s first time in a police car or at a police station. Upon arriving at the station, the police gave him coveralls to wear. He then waited in a room for up to two and a half hours. He did not have access to speak with someone during this time. He testified that no one told him that he was free to leave. He did apparently drink water and use the washroom while he was waiting.[6] There is no evidence that he required police permission or remained under police supervision during this waiting period.

[50] The officer started Blake’s interview by apologizing for keeping him waiting. The officer informed Blake that the statement would be recorded by video and audio. The officer told Blake that he was a witness, not in any trouble, not under arrest, not detained, and not being investigated for any crime. The officer indicated that he anticipated a quick chat and hoped to get him home quickly.

Blake’s knowledge when giving the statement

[51] Blake testified that he was truthful with the police. He understood that he “could get in trouble” if he lied to the police. He also understood that lying could result in “something bad” happening to someone else.[7] Blake knew that the police were recording his statement. He knew that the police were collecting witness accounts to be used as evidence, and he knew that the police would use the statement in their investigation against the accused. He knew that the police had come for the accused from the moment that they arrived at his home.

Material content of the statement

[52] I have reproduced the material content of the statement based on what I can hear from listening to it:

Blake: … I went downstairs to ask [the accused] like, just basically what the fuck is wrong with him? Why is he involving us? Like, this isn’t, like, it’s not safe, obviously. But he was out. So, I talked …
Officer: What time did that [indiscernible] at roughly?
Blake: That was around 6:30. And that’s when I talked to Chantel. That’s when I found out from her. Because she was sleeping. But I woke her up. And I said like, I wanted to hear her point of view. Because I had Angie’s. So I wanted to hear what was going on from her. And then he came upstairs around, I wanna say eight o’clock, nine o’clock. And he, um, he asked me if I knew what happened and I was like, yeah. I was like, what do you want me to say? Like, you’re a fucking idiot. Like, if they question me, like I’m gonna tell them the truth, type thing. And um, he, uh, he had a couple friends come over. Um, I don't know them, but it was just, it was just people. Um, I’m assuming he was trying to cover it up, trying to get things situated. But I didn’t have any involvement in that. I didn’t leave my room, didn’t really hear anything. I heard he told, he told someone about what happened. I didn’t see the person, cause it’s hard to explain, cause you didn’t go inside, but it's like when you come outta my room, you look in the kitchen at the back door, there’s like a pillar. Like the doorway. So I couldn’t see him, but I could see my dad explaining it and I could hear …
Officer: What was he saying?
Blake: Just saying that he shot him, like he shot him in the face.
Officer: He was telling the person that he shot him in the face.
Blake: Yeah. I don’t know who the person was, but he was telling someone. It was one of his friends.
Officer: Was he like detailing what it, what it, what had happened?
Blake: He said that he shot him in cheek, went through and up through his ear. I don’t, he seemed kind of proud about it, but that’s why I’m being completely truthful. I, it doesn’t [indiscernible] …
Officer: I can’t tell you how, how much we appreciate, uh, you telling the truth. Um, because it just makes it easier for everybody. Easier on you, easier on us. Even ultimately easier on your dad in the sense that you, you know, you’re not getting into these lies, trying to spin stories or anything like that. I mean, it’s, it’s, it’s one of those things where the truth is always gonna be the best, the best route, right?
Blake: He’s my dad. Like, I get the whole protecting, but there’s nothing to protect. Like, this was just a very stupid decision he made. And I knew that eventually he was gonna end up in jail or dead. So I just, I’d rather him be in jail right, can at least still see him. But, it is what it is.

[53] Blake appeared calm and coherent when speaking to the police. He exhibited no signs of distress or discomfort. He freely shared his account without pointed examination by the police.

The recantation

[54] Blake testified about the visitors that attended his home during the evening after the alleged shooting. The visitors went to the back porch with the accused. Blake was in his bedroom at the time. He could hear and see the accused speaking with the visitors through a closed kitchen window. His bedroom was about ten feet from the kitchen, and the kitchen itself was about eight or ten feet wide.[8] The accused was standing about a metre from the window.

[55] When asked what the accused said, Blake testified:

I heard his tone of voice. I could hear mumbling and like I could hear his voice, but I couldn’t make out exactly what he was saying. I picked up some words through the glass window in our kitchen.

When asked what words he heard, Blake testified:

Nothing specific, like, “the” and, “at”.

After refreshing his memory, Blake backtracked further:

I heard his voice, but I didn’t pick up any words. I was going based off what I had heard from other people that day, and based on his hand gestures, not his hand gestures, his motions. I didn’t hear specific words.

[56] I permitted the Crown to cross-examine Blake on the recantation under s. 9(2) of the Canada Evidence Act. The Crown put to him that his initial recounting of the accused’s confession was unequivocal—he did not tell the police that he assumed or inferred that the accused was confessing. Blake responded:

The statement I made there [to the police] and the statement I gave you [in court] was a clarified version of what I meant, and I understand that I didn’t say “I think” or “I assume”, but that is what I meant by “I misspoke” in that statement. That day was a very rough day and if I forgot to say, “I think”, I apologize. But that’s what I meant by today when I told you I misspoke, and that’s what I actually meant.
I could hear [the accused’s] voice, but not his words, which is what I said earlier, which is what I should have told the detective, but it was a pretty busy day.

[57] Blake agreed with defence counsel’s suggestion that he recounted to the police the information he received from Angie and Chantel, and not what he heard from the accused. When asked by the Crown why he had attributed such specific comments to the accused, Blake explained:

The information I got from that about [the bullet] going through the cheek and the ear is what I heard from Chantel. That’s what she told me. That’s why it seems so exact or seems a little specific.

B. Necessity

[58] Blake recanted hearing the accused’s confession. His police statement is inconsistent with his trial evidence. Defence counsel rightly conceded that necessity is established. As the majority held in B.(K.G.) at 799:

… the recanting witness holds the prior statement, and thus the relevant evidence, “hostage”. The different “value” of the evidence is found in the fact that something has radically changed between the time when the statement was made and the trial and, assuming that there is a sufficient degree of reliability established under the first criterion, the trier of fact should be allowed to weigh both statements in light of the witness’s explanation of the change.

C. Procedural reliability

[59] When assessing procedural reliability, the court must assess whether the trier of fact can meaningfully choose between explanations for the hearsay statement through adequate substitutes for contemporaneous cross-examination. “[P]rocedural reliability is concerned with whether there is a satisfactory basis to rationally evaluate the statement”: Bradshaw at para. 40. If there is, the trier of fact at the end of trial will decide whether to ultimately rely on the hearsay statement: Khelawon at para. 50.

[60] The traditional safeguards—a video recording, an oath, and a warning about lying—are not essential preconditions to admission of a prior inconsistent statement. Each case requires a contextual analysis. For example, there can be sufficient substitutes for the oath: B.(K.G.) at 796, 805.

[61] An essential precondition is the full opportunity to cross-examine the declarant. “The most important factor supporting the admissibility of a prior inconsistent statement of a non-accused witness for the truth of its contents is the availability of the non-accused witness for cross-examination”: Youvarajah at para. 35. The Supreme Court has held that availability for cross-examination “goes a long way to satisfying the requirement for adequate substitutes” and that “the opportunity to cross-examine is the most powerful factor favouring admissibility”: Couture at paras. 92, 95; see also B.(K.G.) at 794-795.

Video recording

[62] The entire statement is recorded by video and audio. Blake is well-positioned in the frame. The quality of the recording is sufficient. Blake’s demeanour and reactions are easily observed.

Cross-examination

[63] Blake is available for complete and meaningful cross-examination. This point is readily established by the cross-examination thus far. Counsel already elicited Blake’s explanation for the hearsay statement. Counsel also elicited evidence through Blake that could undermine whether he was positioned to hear the accused’s alleged confession. It is evident that Blake is willing and able to give thoughtful answers to questions.

[64] Blake’s availability for cross-examination is a powerful factor that favours admitting the statement. His evidence, considered in conjunction with the full trial record, will give the trier of fact a satisfactory basis to rationally evaluate his hearsay statement.

Oath and warning

[65] Blake was not put under oath or solemn affirmation before giving his statement. He was not warned about the consequences of lying.

[66] The substance of these safeguards was nevertheless in place. It is preferable that the police put a witness under oath and provide certain warnings. But more important is that Blake understood the solemnity of the occasion. I am entitled to consider Blake’s testimony on this issue: R. v. Devine, 2008 SCC 36 at para. 28; R. v. Trieu at paras. 84-87. There was no challenge to Blake’s testimony that he was truthful with the police, he understood the consequences of lying, he knew that his statement would have consequences for the accused, he knew that his statement was being recorded, and he knew that his statement would be used as evidence in the police investigation.

Circumstances of obtaining the statement

[67] I must also consider the circumstances of the statement to ensure that it was made voluntarily and that its admission would not bring the administration of justice into disrepute: B.(K.G.) at 803.[9]

[68] Defence counsel argued that Blake was unlawfully detained when he gave his statement. In my view, it is essential to not turn a hearsay application into a full-scale detention analysis under s. 9 of the Charter. The lens under s. 9 is different and broader. The purpose of s. 9 is to protect individual liberty interests from unjustified state inference: R. v. Grant, 2009 SCC 32 at para. 17. The section protects those interests separate and apart from whether the person gives a statement. By contrast, in a hearsay application there is no rationale to consider a declarant’s liberty interests unless they bear on the reliability of their statement.

[69] Multiple aspects of a detention analysis are not material to the hearsay application. For example, the focus on police conduct that is central to a detention analysis (Grant at para. 31) is misplaced in a hearsay analysis. Similarly, the broad examination of the entire interaction between the individual and the state (R. v. Lafrance, 2022 SCC 32 at paras. 31, 33) is less germane than the circumstances at the time of the statement. Extending the hearsay analysis to include detention issues would vastly expand the evidentiary scope of a hearsay application. The voir dire could overtake the trial: see Bradshaw at para. 42.

[70] In this case, Blake chose to share his account with the police. The video of the statement reveals a free-flowing conversation. The police told him that he was not detained, not under arrest, and not in any trouble. He drank water and used the washroom before starting the interview. He disclosed the accused’s alleged confession without the police asking probing questions. He knew that the police were investigating the accused. The statement is by all accounts voluntary. These circumstances are sufficient to warrant admission under the B.(K.G.) framework.

[71] Even if the hearsay application does include an embedded detention analysis, there is no basis to find that Blake was detained. A person is only detained “when the deprivation of liberty may have legal consequences”: Grant at para. 29. From the limited evidence on this issue, I find that the police only treated Blake as a witness. He was never singled out for investigation. He was not interrogated. He was “invited” to leave his home. The police did not occupy an adversarial role as against him: Grant at para. 36. “[I]nformation gathering in a non-adversarial context lacks the essential character of a section 9 detention”: R. v. Folker, 2016 NLCA 1 at para. 16. Blake was only “detained” in the sense that he was “kept waiting”: R. v. Mann, 2004 SCC 52 at para. 19.

[72] I acknowledge that the process of being transported to the station and waiting to give his statement might have been unsettling for Blake. Even if the video seems to show a calm and collected young man, it does not foreclose that Blake felt worried and anxious. Still, there is nothing in the circumstances of this statement that compromises the probative value of the evidence or that would cause its admission to bring the administration of justice into disrepute.

Conclusion on procedural reliability

[73] I am satisfied that the Crown has established the procedural reliability of Blake’s statement on a balance of probabilities. The trier of fact has sufficient tools to assess the truth and accuracy of the statement and consider how it compares to Blake’s in-court testimony. Procedural reliability is sufficient, on its own, to establish the threshold reliability of the statement. There is no need to examine whether the substantive reliability factors would tip the balance in favour of admission: R. v. T.R., 2007 ONCA 374 at paras. 22-23.

D. Probative value and prejudicial effect

[74] Having found that the Crown established the threshold reliability of Blake’s statement, the defence opposes admission on the basis that its prejudicial effect outweighs its probative value: see Bradshaw at para. 24; Khelawon at para. 49. This analysis requires me to consider whether the evidence is worthy of being heard by the trier of fact but does not involve wading into the ultimate question of whether the evidence should be accepted and acted upon: R. v. Hart, 2014 SCC 52 at para. 98.

[75] Defence counsel primarily advances two related arguments. First, Blake initially discussed the alleged incident with Angie and Chantel, which tainted his purported account of hearing the accused confess to the shooting. Second, Blake was not in a physical position to hear the accused allegedly confess. These are valid points to consider when analyzing the probative value versus prejudicial effect of a hearsay statement: Gourlay, Matthew, et al. Modern Criminal Evidence. Toronto: Emond Montgomery, 2022 at 197-198; see also R. v. Humaid at para. 57.

[76] I am satisfied that the probative value of the statement outweighs its prejudicial effect. The statement sufficiently assists in proving the accused’s identity as the shooter when balanced against any distortion to the trial process caused by the statement’s admission. I decline to invoke my discretion to exclude the statement.

[77] Tainting does not raise a significant concern at the admissibility stage in this case. Blake’s statement does not suggest that his recounting of the accused’s confession was influenced by earlier conversations. Even if the police did not instruct Blake to confine himself to things that he personally saw and heard, the statement shows that Blake chose his words carefully. He told the police when he was sharing an assumption (“I’m assuming he was trying to cover it up”). He shared that he received the perspectives of Angie and Chantel. He indicated uncertainties (“he seemed kind of proud of it”). And when it came to recounting the confession, he squarely put the words in the accused’s mouth: “I could see my dad explaining it and I could hear … Just saying that he shot him, like he shot him in the face. … He said that he shot him in cheek, went through and up through his ear”).

[78] I appreciate that a person can be subconsciously influenced by things they heard from others. The prejudicial effect here is moderated by Blake’s testimony that he mistakenly attributed the confession to the accused. The tainting argument would be harder to advance if Blake refused to acknowledge the possible influence of earlier conversations. In that situation, Blake’s statement might have distorted the fact-finding process. But the trier of fact will benefit from the complete trial record to decide whether Blake heard the confession from the accused, and if so, what weight to afford it.

[79] As for whether Blake could have heard the confession given the distance and closed window between him and the accused, that is a trial issue. It is not so implausible that Blake could have heard the confession such that the probative value of the evidence is outweighed by its prejudicial effect. Even when he recanted hearing the confession, Blake initially maintained that he could hear the accused utter some specific words.

VI Conclusion

[80] The complainant’s statement is not admissible. Blake’s statement is admissible.

Released: March 14, 2025
Signed: Justice Davin M.K. Garg

Footnotes

[1] I use Blake Dimillo’s first name to distinguish him from others in his family.
[2] While the complainant initially referred to the location as a “shed”, the statement as a whole establishes that he was referring to the trailer.
[3] The reports from the CFS say that the DNA results are estimated to be greater than one trillion times more likely if the respective profiles originated from the complainant and the accused than if they originated from unknown people unrelated to them. But the expert had no issue converting the “one trillion times more likely” estimation to a certainty. Defence counsel did not argue in submissions that the DNA might have been deposited by someone else.
[4] Defence counsel points to passages in the complainant’s statement to support this argument.
[5] I previously ruled that the complainant did in fact make the police statement at issue. Implicit in this finding is that the complainant was dishonest when he testified that someone else made the statement. It is not plausible that the complainant genuinely forgot about making the statement.
[6] I draw this fact from Blake’s statement. Defence counsel confirmed during submissions that I could consider the entire statement when assessing the application.
[7] I took the “someone else” to refer to accused and the “something bad” to refer to unwarranted charges and a deprivation of liberty.
[8] Blake’s grandmother confirmed the layout of the house in her testimony.
[9] These issues can be examined when considering the probative value and prejudicial effect of the statement. I do not see any material difference in this case from examining these issues here.