Court of Appeal for Ontario

Date: 2023-04-05 Docket: C66410

Judges: Gillese, Huscroft and Paciocco JJ.A.

Between:

His Majesty the King Respondent

and

Dellen Millard Appellant

Counsel: Dellen Millard, acting in person Benita Wassenaar, Katie Doherty and Heather Fregeau, for the respondent

Heard: March 17, 2023

On appeal from: The conviction entered on September 24, 2018, with reasons at 2018 ONSC 5602, and the sentence imposed on December 18, 2018, with reasons at 2018 ONSC 7578, by Justice Maureen D. Forestell of the Superior Court of Justice.

Reasons for Decision

[1] At the end of the oral hearing, we dismissed Dellen Millard’s appeal of his September 24, 2018, conviction for the murder of Wayne Millard, for reasons to follow. We also provided reasons for granting his sentence appeal and quashing the s. 745.51 order, while otherwise leaving his sentence intact. These are our reasons for dismissing Dellen Millard’s conviction appeal.

[2] Dellen Millard identified five points in oral argument in support of his contention that the verdict of guilt was unreasonable: (1) the reliance by the trial judge on the evidence of Marlena Meneses, who the trial judge recognized to be a dangerous witness; (2) the insufficiency of the evidence that he had concocted an alibi; (3) the finding that he lied to the police about his whereabouts; (4) the findings of the trial judge relating to one of the cellphones registered to him, 647‑892‑3355; and (5) the failure of the Crown to prove that Wayne Millard died during the period Dellen Millard was found to be in the area of the shooting.

[3] There is no merit to any of these submissions. We reject Dellen Millard’s submission that the verdict was unreasonable.

[4] The trial judge was entitled to rely on the testimony of Marlena Meneses, despite recognizing that Ms. Meneses was a dangerous witness. The credit card evidence, the phone records, the Pizza Pizza receipt, and the evidence of Mr. Singh was clearly independent evidence and entirely capable of restoring the confidence of the trial judge in the testimony Ms. Meneses provided. A trial judge’s credibility determinations warrant deference. The trial judge provided a careful and compelling analysis of Ms. Meneses’ evidence before accepting it.

[5] Together, this independent evidence and the testimony of Ms. Meneses amply supported the trial judge’s finding that Dellen Millard had concocted his alibi that he spent the night of November 28-29 at Mark Smich’s house to conceal his involvement in his father’s death.

[6] We also reject the argument that the evidence did not support the trial judge’s finding that Dellen Millard lied to the police when telling them he “stayed” at his friend, Mark Smich’s, home on the night before Wayne Millard’s death. The inference was open to the trial judge that in making this statement, Dellen Millard was falsely communicating his alibi to the police. Indeed, in the context of the evidence of concoction, this inference was compelling.

[7] The trial judge considered the cellphone evidence carefully, and she drew appropriate inferences. The cellphone records show that Ms. Meneses must have been mistaken in testifying about the phone that was left behind.

[8] Although the time of Wayne Millard’s death could not be determined with precision, it was proved that Dellen Millard purchased the handgun that was used to kill Wayne Millard in July 2012 and that he possessed that gun in the months before his father’s death. The handgun bore Dellen Millard’s DNA, but not Wayne Millard’s. This evidence, coupled with the compelling evidentiary foundation that permitted the trial judge to find that Dellen Millard was in the area of the Maple Gate home during the window in which Wayne Millard died, after Dellen Millard attempted to construct a false alibi, provided an overwhelming foundation for Dellen Millard’s conviction. We therefore dismissed his conviction appeal.

“E.E. Gillese J.A.”

“Grant Huscroft J.A.”

“David M. Paciocco J.A.”