Court of Appeal for Ontario

Date: 2025-04-17
Docket: C69411 & C69462
Panel: Simmons, Copeland and Pomerance JJ.A.

Parties and Counsel

Docket: C69411
Between:
His Majesty the King (Respondent)
and
Thomas Lako (Appellant)

Docket: C69462
And Between:
His Majesty the King (Respondent)
and
William McDonald (Appellant)

Counsel:

• Jessica Zita and Linnea Kornhauser, for the appellant, Thomas Lako
• Erin Dann and Shannon Darby, for the appellant, William McDonald
• Elise Nakelsky and Dana Achtemichuk, for the respondent

Heard: 2024-11-19

On appeal from the convictions entered on October 25, 2019, and the sentences imposed on January 13, 2021, by Justice Helen A. Rady of the Superior Court of Justice, sitting with a jury.

A. Introduction

[1] Following a jury trial, the appellant, William McDonald, was convicted of second-degree murder and the appellant, Thomas Lako, was convicted of manslaughter. They appeal their convictions and seek leave to appeal sentence.

[2] The main issues on appeal are whether the trial judge erred in admitting a police statement made by a witness who died prior to trial for the truth of its contents and in her instructions to the jury concerning other discreditable conduct.

[3] Sometime after midnight on May 31, 2012, 29-year-old Jonathan Zak was fatally shot in the chest with a shotgun as he walked home through a park following an evening of playing board games with friends.

[4] The appellants were not arrested for this random act of deadly violence until 2017. There were no eyewitnesses to the murder and witnesses who had observed events before and after the shooting were reluctant to cooperate with the police. Nonetheless, over time, the police gathered evidence, including statements allegedly made by the appellants, that supported a theory that, on encountering Mr. Zak in the park, the appellants decided to rob him. According to this theory, during their attempt, Mr. McDonald shot Mr. Zak with a shotgun provided by Mr. Lako. Mr. McDonald subsequently handed the shotgun to Khaneequia Gregory (“Nancy Gregory” or “Ms. Gregory” [1]) who was drinking with friends in a nearby yard. She then ran to her home and hid the shotgun in her attic.

[5] Although the police later obtained a search warrant to search Ms. Gregory’s home, the murder weapon was never found. One of the statements obtained by the police alleged that Mr. Lako destroyed the shotgun soon after the murder by breaking it into pieces with an axe.

[6] That Mr. Zak was murdered was not in issue at trial. The issues concerned the identity of Mr. Zak’s assailant(s) and whether Mr. Lako was guilty of manslaughter under s. 21(2) of the Criminal Code, RSC 1985, c C-46 because he had agreed with Mr. McDonald to rob Mr. Zak and knew that Mr. Zak would likely be at risk of bodily harm as a result of carrying out that agreement.

[7] Nancy Gregory died prior to trial. She did not testify at the preliminary inquiry. At the request of the Crown, the trial judge made a pre-trial ruling admitting for the truth of its contents a June 2017 police statement made by Ms. Gregory following her arrest as an accessory after the fact to Mr. Zak’s murder (the “Statement”). The police had formally interviewed Ms. Gregory in 2012 and 2014. However, it was only in the Statement that she claimed for the first time that Mr. McDonald handed her a shotgun on May 31, 2012, and later told her that he had “caught a body”. According to the Crown, the latter phrase meant he had killed someone. As part of its pretrial application, the Crown proposed, and the trial judge accepted, that videotapes of Ms. Gregory’s 2012 and 2014 police statements should also be played for the jury to assist with credibility assessment.

[8] In its written pretrial application, the Crown requested that two material aspects of the statement be admitted for their truth: i) that Mr. McDonald handed Nancy Gregory a shotgun on May 31, 2012; and ii) that Mr. McDonald subsequently told her he “caught a body”. However, in oral submissions on its application, the Crown requested that only the first aspect be admitted for its truth and conceded there was insufficient corroborative evidence to support the threshold reliability of the “caught a body” aspect of the Statement. Nonetheless, the trial judge ruled both aspects of the Statement admissible for their truth. Because the Statement was made in the context of a lengthy police interview, following that ruling, the trial judge redacted portions of the Statement based on the submissions of counsel in an effort to preserve trial fairness.

[9] The Crown also adduced evidence at trial concerning a confrontation between the appellants and three other men just after 1 a.m. on May 31, 2012, near the park where the deadly shooting took place. Although no prior application had been made, the evidence included testimony that the three men believed that, shortly before the confrontation, Mr. McDonald shot at them while they were walking to a pizza place (the “other discreditable conduct evidence”).

[10] Neither appellant testified at trial.

[11] The appellants were convicted in October 2019 following a jury trial. Mr. McDonald was sentenced to life imprisonment with no eligibility for parole for 25 years, to be served consecutively to a prior sentence of life imprisonment with no eligibility for parole for 23 years. Mr. Lako was sentenced to 12 years’ imprisonment.

[12] Mr. McDonald raised four issues on appeal:

i) the trial judge erred in her application of the Bradshaw [2] framework and in concluding the Statement was admissible for its truth;

ii) if the Statement was properly admitted, the trial judge erred in failing to give the jury a sufficient warning concerning how to assess it;

iii) the trial judge failed to adequately caution the jury about their use of the discreditable conduct evidence; and

iv) the trial judge erred in imposing a consecutive period of parole ineligibility.

[13] For the reasons that follow, I conclude that the trial judge erred in admitting the Statement and further erred in failing to adequately caution the jury about their use of the discreditable conduct evidence. I would therefore allow Mr. McDonald’s conviction appeal and order a new trial. Although it is therefore unnecessary that I address his sentence appeal, had it been necessary, I would have accepted the Crown’s concession that the trial judge erred in ordering Mr. McDonald’s parole ineligibility period to run consecutively to the period of parole ineligibility to which he was previously subject: see R. v. Bissonette, 2022 SCC 23; R. v. Ostamas, 2022 MBCA 68. In fairness to the trial judge, she did not have the benefit of Bissonette, which was decided after her sentencing decision.

[14] Mr. Lako advanced three grounds on his conviction appeal and sought leave to appeal sentence. [3] We did not call on the Crown to address the issues raised on his conviction appeal. [4] However, the Crown conceded, and I agree, that Mr. Lako’s conviction was dependent on a finding that Mr. McDonald murdered Mr. Zak and therefore, if Mr. McDonald’s conviction appeal is allowed, Mr. Lako’s conviction appeal must also be allowed. I would therefore allow Mr. Lako’s conviction appeal and order a new trial.

B. Background

(1) Overview of Events Prior to the Shooting and the Discovery of Mr. Zak’s Body

[15] Mr. Zak was found dead in a park located north of a housing complex on Boullee Street in London, Ontario, at around 6:50 a.m. on May 31, 2012.

[16] Sometime before 1 a.m. on May 31, 2012, William Cote, Trevor McGregor and Emmanuel Awai (the “group of three”) were walking from the housing complex through the area of the park and an adjacent cemetery to get a pizza. At some point, shots were fired toward the group of three, one of whom returned fire before carrying on to the pizza place. While there, Mr. Awai called Mr. McDonald at around 1 a.m. and accused him of shooting at the group of three. Mr. McGregor grabbed the phone and demanded to know what Mr. McDonald thought he was doing. Mr. McDonald hung up.

[17] On returning to the housing complex, the group of three encountered Mr. McDonald and Mr. Lako. Mr. Awai and Mr. McDonald got into an argument during which Mr. Awai took a 9 mm handgun from Mr. McDonald. Mr. Cote described Mr. McDonald as “pissed” and “going crazy, acting like an animal.” Mr. McDonald and Mr. Lako walked away toward the park located north of the housing complex. According to Mr. Cote, Mr. Lako was carrying a backpack that had a “weird shape to it”. Because he had previously seen Mr. Lako with a shotgun, Mr. Cote believed there was a shotgun in the backpack.

[18] Police received reports that shots had been fired in the area and attended at the housing complex just after 1:30 a.m. They saw someone dressed in dark clothing riding away on a bicycle and subsequently found the bicycle behind a townhouse at 400 Boullee Street. They spoke to some women outside the townhouse, including the owner, Natasha Jackson, and her sister, Khasheequia (“Sheequia”) Gregory [5]. Natasha Jackson allowed the police into her home. The police found three men inside: Juan Perez, Nancy Gregory’s partner at the time of her subsequent arrest; Natasha’s son, Mecko Jackson, who was dressed in dark clothing; and Mr. McDonald, who was apparently asleep in an upstairs bed. None of the people the police spoke to provided any information concerning the shots so the police eventually left. Although the police searched the area around the housing complex, they did not find Mr. Zak’s body.

(2) Evidence Concerning Police Interviews of Nancy Gregory

[19] Nancy Gregory became a person of interest in relation to Mr. Zak’s murder after Mr. McDonald was arrested in relation to a separate matter on June 1, 2012. On searching Mr. McDonald’s Blackberry phone, the police found Blackberry (“BBM”) messages exchanged between Mr. McDonald, under the name “Dolo”, and a “Mz. Fabulous”, whom they linked to Nancy Gregory’s phone number. The most significant messages were exchanged on May 31, 2012, and appear to indicate that Nancy Gregory was in possession of a firearm and that she was aware that, at some point, Mr. McDonald and others had been shooting guns. The relevant messages read as follows:

Mz. Fabulous (11:05 a.m.): I told u pick up tha shells
Dolo (11:06 a.m.): Wut shells?
Mz. Fabulous (11:06 a.m.): Ohmy nvm .. Wen u guys shot off and shit fell on the floor and you said fuck it I don’t give a fuck
Dolo (10:58 p.m.): Trynna say I’m in possession of a fire arm… U better stop… I don’t carry those things
Mz. Fabulous (10:58 p.m.): I kno I’m in possession at tha moment lmao =))
Mz. Fabulous (10:58 p.m.): Locks wants to take it did he tlk to u
Mz. Fabulous (10:59 p.m.): And whas his number?
Dolo (10:59 p.m.): Give it to him… Get it out ur crib
Dolo (10:59 p.m.): And I donno his number ask lyle
Mz. Fabulous (11:00 p.m.): Okay I jus wanna ask him wen he wants it
Dolo (11:05 p.m.): Kk… Make sure dey don’t get book wit it… Oh wow
Mz. Fabulous (11:06 p.m.): Thas derr biz they shud be smart
Dolo (11:07 p.m.): Guess so

[20] The police spoke to Nancy Gregory about their investigation of Mr. Zak’s murder at least four times between June 2012 and June 2017.

[21] She was uncooperative when the police spoke to her at the front door of her home on June 11, 2012.

[22] On June 13, 2012, the police conducted a formal, videotaped interview of Ms. Gregory after executing a search warrant at her home and charging her with two firearm-related offences. [6] During that interview, the interviewing officer questioned her about Mr. Zak’s murder and various parts of the BBM messages. She said she was “at home” the night of the shooting with her “daughters watching movies”. She denied any connection to a firearm, saying: “You know I didn't have no gun”, and “I would never hold a gun in my house with my children there.”

[23] The police interviewed Nancy Gregory again on June 5, 2014. The interviewing officer told her she may be charged as an accessory after-the-fact to murder and formally cautioned her. During the interview, the interviewing officer told her he “[knew] the firearm went through [her] house” and that he had read the text messages in which she talked about the firearm and “how it had to get out of [her] house.” He said the messages were “very clear”. She wanted the firearm out of her house the next day because by then she knew what it was used for. Nonetheless, he continued to press her about what she knew when. Ms. Gregory deflected the officer’s questions about the firearm, and also commented, “I don't protect nobody”. She indicated she no longer spoke to Mr. McDonald. At the end of the interview, the interviewing officer told her she should understand that the murder weapon went through her house and that the police would continue to ask her about who handled it, including Mr. Perez and Mecko, “all those people”.

[24] Mr. McDonald was arrested and charged with the second-degree murder of Mr. Zak in late May 2017. Nancy Gregory was charged as an accessory after-the-fact to the murder on June 27, 2017. Mr. Perez, her then-partner and the father of their seven-month-old baby, was present when she was arrested.

[25] Following her arrest on June 27, 2017, Ms. Gregory was interviewed for nearly four hours, between 4:12 p.m. and 7:59 p.m. As with her previous formal statements, the interview was videotaped but not taken under oath. Nor was she warned about the consequences of not telling the truth.

[26] The police interviewer did virtually all the talking for the first three hours. Among other things, he informed Nancy Gregory that Mr. McDonald had been arrested and charged with Mr. Zak’s murder and that Mr. McDonald had also killed her friend, Mr. Awai. He advised Ms. Gregory that the charge she was facing was “super serious” and that anyone found guilty of being an accessory after the fact to murder was liable to imprisonment for life. He said such charges “don’t get laid a lot … you need evidence … and there’s a lot of evidence”. He told her that Mr. McDonald was “a very, very dangerous person.” He also told her multiple times that the police knew that Mr. McDonald had killed Mr. Zak and knew that she had taken the shotgun from Mr. McDonald. He said they had eyewitnesses. Throughout the interview, he told her this was her chance to explain and that her actions were explainable. The interviewer said she was “a good person.” At one point, he said,

You know what I think? I think you were out there spur of the moment, had some alcohol on board, caught up in the moment, took it and ran. That’s what I think. My opinion doesn’t matter though.

[27] The interviewer also showed her a printout of, and asked her questions about, some of the BBM messages, saying he knew she had been told about them before but did not think she had actually seen them.

[28] Commencing around 7:10 p.m., Nancy Gregory began implicating Mr. McDonald. Shortly before that, the interviewing officer told her he knew Mr. Perez was there too. However, the officer said, “But he didn’t take the gun to your house.” Soon after that comment, Ms. Gregory said she was pretty sure she was home when the shotgun went off and not at her sister, Natasha Jackson’s house. Later she said she could have been at Natasha Jackson’s house. But if she was, she was not outside and did not think she heard it.

[29] Ms. Gregory said she went to her sister’s for cold shots. She got one and was in the yard when Mr. McDonald ran up to her, “freaked out”, and yelling “Yo, yo, yo, yo.” He passed the shotgun to her, saying, “you take this, go run, do this, go”. Ms. Gregory said she just ran and that “it didn't process” in her head. Although she knew it was a shotgun, she “wasn’t thinking at all. It didn’t click until after” and she was “like, shit, I wish I didn’t.”

[30] Initially, Ms. Gregory said she could not recall what she did with the gun. When pressed she said, “I ran upstairs. Think honestly I just threw it in the attic”. When asked “[h]ow the hell do you get up there”, she said, “I don’t know. I honestly don’t, it’s just so fast.” She did not go back to her sister’s because she was “freaking out.” Initially, Ms. Gregory said Mr. McDonald did not explain until later what he had done. At one point she said, “[y]eah, like days later.” Subsequently, she said, “I think it was like the – like not that night, think the day after … [l]ike the day after like on the phone, I talked to him.” All she remembered about the conversation was him saying “I caught a body.”

[31] Ms. Gregory acknowledged that, on the night of the events, she had heard others talking. So, she went to the park and saw Mr. Zak’s body. She said she was scared when Mr. McDonald called her. When asked if he told her what happened, she said, “I still don’t know what happened.” Later, she said, “I honestly don’t remember.”

[32] Ms. Gregory provided no real response to questions about how the shotgun left her house, nor did she respond to the question, “he caught a body, what does that mean to you?” She said Mr. McDonald never asked her where the gun was. Near the end of the interview, she said, “I didn’t really know. Believe it or not, I really didn’t. He didn’t ask or say anything.”

[33] In an agreed statement of fact filed at trial, it was confirmed that Nancy Gregory died accidentally on October 1, 2017.

(3) Other Evidence

(a) Sheequia Gregory

[34] Sheequia Gregory is the sister of both Nancy Gregory and Natasha Jackson. Prior to trial, she gave eight statements to the police concerning Mr. Zak’s killing.

[35] At trial, Sheequia Gregory initially testified that she had been at Natasha Jackson's home on the night of May 30, 2012, and that nothing unusual happened before the police arrived. She said Mr. McDonald had been at the house talking about a shooting, but she could not recall what he said. She denied any recollection of anything either Mr. McDonald or Mr. Lako had subsequently told her about the shooting. After having her memory refreshed with her prior police statements, she said that Mr. McDonald had told her that he had “caught a body”.

[36] Following a successful Crown application under s. 9(2) of the Canada Evidence Act, RSC 1985, c C-5, to cross-examine her, Sheequia Gregory’s evidence changed. She agreed that she had heard a shotgun blast while at her sister’s home and that Mr. Perez left the home after that blast. She also agreed that she had been given Mr. McDonald’s and Mr. Perez’s shirts to throw out, but had forgotten Mr. McDonald’s, which was subsequently found by the police. She agreed that “over the months and years that followed” that evening, Mr. McDonald told her that he and Mr. Lako saw Mr. Zak in the park and decided to rob him; that Mr. Zak saw the gun and tried to run before being knocked down by Mr. Lako and shot by Mr. McDonald.

[37] In cross-examination by defence counsel, Sheequia Gregory appeared to acknowledge that in an August 29, 2013 police statement she told police that Mr. Perez was out of the house before she heard the gunshot. Despite that acknowledgement, she maintained that what she told the police then was not true: Mr. Perez was inside the house when she heard the gunshot. She also denied telling police that Mr. Perez had passed Nancy Gregory the shotgun; that it was possible her nephew, Mecko Jackson, had been at the shooting; and that Mecko Jackson had a piece of the gun in his possession after the shooting. Crown counsel at trial stipulated that Sheequia Gregory had, in fact, made the latter three statements to the police.

(b) Evidence of Trevor McGregor

[38] Mr. McGregor gave five statements to the police prior to trial. At trial, the Crown successfully brought hostile witness and K.G.B. [7] applications based on his “feigned memory loss” and refusal to acknowledge even the “most obvious” facts. [8] The trial judge admitted his October 11, 2015 police statement for the truth of its contents.

[39] In his October 11, 2015 police statement, Mr. McGregor told police that he saw Mr. Awai take a handgun from Mr. McDonald, and that, about 15 to 20 minutes later, he heard a loud blast. He also said he saw Mr. McDonald hand Nancy Gregory something. Initially, he said he did not know what the thing was as he did not see it directly. Later, he said it was something big. Finally, he said it was a shotgun, but he was unable to describe it. However, at trial, he denied these facts, saying his police statement was “false” and that he “did not see nothing”. He said that he had been under arrest at the time of his police statement and was under pressure.

(c) Golf Shirt/Bloodstain Pattern Evidence

[40] Video surveillance evidence from an LCBO showed Mr. McDonald wearing a white golf shirt with orange, red and black stripes on May 30, 2012. Police found a similar golf shirt in the basement of Natasha Jackson’s home on June 20, 2012. Mr. McDonald’s DNA was on the inside of the shirt’s collar. A small spot of blood was found on the shirt, but it was from a female donor, not Mr. Zak.

[41] A police bloodstain pattern expert testified that the bloodstain patterns on Mr. Zak’s body were consistent with him having been sitting up when shot, before falling backwards. Blood was found spattered in a ring extending up to five feet behind his body. Although the expert testified he expected the shooter would have been covered in Mr. Zak’s blood, in cross-examination, he said that it was possible the shooter could have avoided blood spatter due to environmental factors, such as a strong wind.

(d) Other Data on Mr. McDonald’s Cell Phone

[42] In addition to the BBM messages, police extracted the following significant data from Mr. McDonald’s cell phone:

• an incoming call from Mr. Awai’s number on May 31, 2012 at 1:01 a.m.;
• two incoming calls from Nancy Gregory’s number on May 31, 2012 at 2:33 a.m. and 5:05 a.m.;
• a download containing a written note of rap lyrics and a voice recording of them containing the phrase “catch a body”; and
• a voice note, dated April 25, 2012, in which Mr. McDonald raps the phrase “catch a body” and a fellow-rapper raps the phrase “caught a body”.

C. Analysis

(1) Did the Trial Judge Err by Admitting the Statement?

(a) Legal Principles

[43] Hearsay evidence is presumptively inadmissible unless it falls under a traditional exception to the hearsay rule. This is because it is difficult to assess the truth of a statement made outside of court. Such a statement is not taken under oath, the trier of fact cannot observe the maker’s demeanour while making the statement, and, most importantly, the statement is not tested by cross-examination: R. v. Charles, 2024 SCC 29, para 43, citing R. v. Bradshaw, 2017 SCC 35, at paras. 1, 19, and 20; and R. v. Khelawon, 2006 SCC 57, at para. 48.

[44] Under the principled exception to the hearsay rule, a presumptively inadmissible hearsay statement can be admitted for the truth of its contents where the party tendering it demonstrates on a balance of probabilities that it meets the criteria of necessity and threshold reliability: Charles, at para. 45, citing Bradshaw, at para. 23. However, even where the statement meets those criteria, the trial judge retains discretion to exclude it if its prejudicial effect outweighs its probative value: Bradshaw, at para. 24.

[45] That the witness is unavailable usually satisfies the necessity criterion: R. v. B. (K.G.), at p. 796.

[46] Threshold reliability is established when the hearsay statement is “sufficiently reliable to overcome the dangers arising from the difficulty of testing it”: Charles, at para. 47, quoting Bradshaw, at para. 26, quoting Khelawon, at para. 31. Those dangers arise from the absence of contemporaneous cross-examination of the maker under oath before the trier of fact. They “relate to the difficulty of assessing the maker’s perception, memory, narration, or sincerity, and should be defined with precision to permit a realistic evaluation of whether they have been overcome”: Bradshaw, at para. 26.

[47] Threshold reliability can be established by showing that there are adequate substitutes for testing truth and accuracy (procedural reliability) or sufficient circumstantial guarantees that the statement is inherently trustworthy (substantive reliability): Bradshaw, at para. 27.

[48] Substitutes for testing truth and accuracy (procedural reliability) can include a video recording of the statement, the presence of an oath, and a warning about the consequences of lying. However, some form of cross-examination, for example at a preliminary inquiry or of a recanting witness at trial, is generally required. The substitutes must provide a sufficient basis for the trier of fact to assess the truth and accuracy of the statement: Charles, at para. 46, citing Bradshaw, at para. 28.

[49] To determine whether a statement is inherently reliable (substantive reliability), the trial judge can consider the circumstances in which it was made and the evidence, if any, that corroborates or conflicts with it: Charles, at para. 47. To meet the standard of substantive reliability, the trial judge must be satisfied that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process”: Khelawon, at para. 49 (quoted in Bradshaw, at para. 31, and Charles, at para. 47).

[50] Although procedural and substantive reliability are not mutually exclusive and “factors relevant to one can complement the other” (Bradshaw, at para. 32, quoting R. v. Couture, 2007 SCC 28, at para. 80), great care must be taken to ensure that a combined approach to threshold reliability does not lead to the admission of statements despite insufficient procedural safeguards and guarantees of inherent trustworthiness to overcome the hearsay dangers: Bradshaw, at para. 32. The threshold reliability standard “always remains high” and “the statement must be sufficiently reliable to overcome the specific hearsay dangers it presents”: Bradshaw, at para. 32.

[51] In Bradshaw, the Supreme Court of Canada established a framework for determining whether corroborative evidence is of assistance in the substantive reliability inquiry. The Court emphasized that to be of assistance, corroborative evidence must go to the truthfulness or accuracy of the material aspects of the hearsay statement that the moving party seeks to rely on and show that these aspects would be unlikely to change under cross-examination. It will do so only if “its combined effect, when considered in the circumstances of the case, shows that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.” It will be of assistance in establishing substantive reliability if “it shows that … alternative explanations are unavailable, if it ‘eliminate[s] the hypotheses that cause suspicion’”: Bradshaw, at paras. 47-48 (emphasis in original). A trial judge must be able to rule out any plausible alternative explanations on a balance of probabilities: Bradshaw, at para. 49.

[52] At para. 57 of Bradshaw, the Court set out the following framework for trial judges to follow in determining whether corroborative evidence is of assistance in the substantive reliability inquiry:

1. identify the material aspects of the hearsay statement that are tendered for their truth;
2. identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;
3. based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and
4. determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.

(b) Standard of Review

[53] The admissibility of hearsay evidence is a question of law. However, a trial judge’s factual findings underlying an admissibility ruling are subject to deference. Further, trial judges are “well-placed to assess the hearsay dangers in a particular case and the effectiveness of any safeguards to assist in overcoming them”. Accordingly, absent an error in principle, a trial judge’s assessment of threshold reliability is entitled to deference: Charles, at para. 41, quoting Youvarajah, at para. 31.

(c) The Crown’s Pretrial Application

[54] The Crown’s pretrial application was extensive. It consisted of almost 1,000 pages of material, including a 60-page factum, multiple transcripts of witness statements, together with various audio and video statements. In addition to Ms. Gregory’s police statements, included among the witness statements were Mr. McGregor’s October 11, 2015 police statement, [9] and at least five police statements by Sheequia Gregory. [10]

[55] The application also included the BBM messages and the cell phone records showing that Nancy Gregory called Mr. McDonald on May 31, 2012 at 2:33:24 a.m. and 5:05:08 a.m.

(d) The Trial Judge’s Ruling

[56] As previously noted, the trial judge ruled the Statement admissible for the truth of its contents under the principled exception to the hearsay rule. Necessity was conceded. The issue was whether the Crown had established threshold reliability.

[57] Before commencing her analysis, the trial judge reviewed the general principles relating to the admissibility of hearsay statements. She then set out the four-step Bradshaw framework, saying that it “provided a framework to evaluate substantive reliability.”

[58] At step one, the trial judge identified the two material aspects of the Statement the Crown had identified in its factum as being tendered for their truth: that Mr. McDonald handed the shotgun to Ms. Gregory, who hid it in her attic, and that he subsequently told her he had “caught a body”, which according to the Crown meant that he had killed someone.

[59] At step two, the trial judge said the hearsay danger raised was the truthfulness of the Statement. Accuracy was not in dispute because Nancy Gregory’s words were captured on video. Before turning to step three, the trial judge considered what she said were several “indicia of truthfulness”. These included:

• Nancy Gregory was under arrest and charged with being an accessory after the fact to murder, a serious charge with serious consequences on conviction;
• she was given her right to counsel and cautioned by the police;
• she was treated courteously by the police;
• she spoke to a lawyer;
• she showed no signs of cognitive impairment or disorientation;
• she admitted to taking the gun from Mr. McDonald, which implicated her as an accessory after-the-fact and thereby bolstered the reliability of her statement;
• there was corroborative evidence that added to the reliability of her statement.

[60] The trial judge said the issue at step three was whether Nancy Gregory was being untruthful. She noted defence submissions that Nancy Gregory said nothing of substance until near the end of the lengthy interview after reference was made to her then-partner, Mr. Perez, and that Ms. Gregory may have been lying to protect him or to minimize her own involvement. The defence also suggested that the interviewing officer misled Nancy Gregory by overstating the evidence of other witnesses. In response, the trial judge held, first, that there was no evidence Ms. Gregory harboured any ill will toward Mr. McDonald, as they had been friends for a long time; second, that Ms. Gregory could not have been attempting to minimize her involvement because she admitted that she took the gun; and third, that since the interviewing officer had advised that Mr. Perez was not a suspect, Ms. Gregory would not have lied to protect him.

[61] At step four, the trial judge considered evidence tending to corroborate the accuracy of the Statement. Concerning the first material aspect (the fact that Mr. McDonald had handed the shotgun to Ms. Gregory, who hid it in her attic) the trial judge noted that corroborative evidence was found in the BBM messages. While at one point, Mr. McDonald denied carrying firearms, the trial judge observed, “[o]ne possible interpretation of his comment was that he was being sarcastic.” Ms. Gregory responded that she was in possession of a firearm at that time and Mr. McDonald said she should give it to Mr. Lako. The trial judge said this “arguably demonstrated that he ha[d] an element of control over it.” Mr. McDonald also expressed concern that Mr. Lako not get caught with the gun. The trial judge said, “[t]his may be interpreted as Mr. McDonald expressing concern that police might discover, seize the weapon and determine that it had been used during Mr. Zak’s murder.”

[62] The trial judge also found that other witness statements provided corroboration that Mr. McDonald gave Ms. Gregory the shotgun (a statement by Mr. McGregor), and that Mr. Lako later had possession of, and destroyed, the shotgun (a statement by Sheequia Gregory). The trial judge said this latter fact could be related to the BBM messages in which Nancy Gregory and Mr. McDonald discussed Mr. Lako taking possession of the gun.

[63] The trial judge also considered some potentially conflicting evidence.

[64] This evidence included the fact that Nancy Gregory’s home was searched on June 13, 2012 but no shotgun was found, and that following the search she said that she would never bring a shotgun into the house or store it there because of the presence of children. However, the trial judge observed that, in her June 2017 police interview, Ms. Gregory “was confronted for the first time with the text messages.” These, the trial judge concluded, “would be a powerful motivator to be truthful, essentially admitting her complicity in the offence with which she had been charged.”

[65] Sheequia Gregory’s statements provided what the trial judge called “different details of what happened that night, some of which [were] contradictory, others corroborative.” [11] The trial judge concluded, “[t]he important point is that notwithstanding the contradictions, Sheequia implicates her sister as an accessory and supports [her] statement in several respects.”

[66] Concerning the second material aspect of the Statement (i.e., the fact that Mr. McDonald told Nancy Gregory that he had “caught a body”) the trial judge found that cell phone records corroborated the fact that Ms. Gregory and Mr. McGregor spoke on the night of the murder. Further, a download and a voice note on Mr. McDonald’s cell phone confirmed that that the expression “caught a body” was part of his vocabulary.

[67] In her conclusion, the trial judge found that the Crown had “established threshold reliability through a combination of procedural and substantive reliability.” She also stated that “procedural reliability ha[d] been established” and that there was “sufficient corroborative evidence from a variety of sources to satisfy the substantive reliability requirement.”

(e) Discussion

[68] I would accept Mr. McDonald’s submissions that the trial judge made several errors in her application of the Bradshaw framework and in holding the Statement admissible for the truth of its contents.

[69] These errors include: i) identifying Ms. Gregory’s arrest and her admission of taking the gun as indicia of the truthfulness and reliability of the Statement at step two of the Bradshaw framework; ii) focusing incorrectly on the indicia of truthfulness of the Statement at step two of the Bradshaw framework rather than on the specific hearsay dangers the Statement presented; iii) misapprehending the evidence concerning when Ms. Gregory was first confronted with the BBM messages; iv) relying on corroborative evidence that is incapable of corroborating material aspects of the Statement or is itself untrustworthy; and v) failing to advert to the Crown’s modified request for admissibility of the Statement and its concession that there was insufficient corroboration to support the admissibility of the “caught a body” aspect of the Statement.

[70] Because of these errors, no deference is owed to the trial judge’s finding of threshold reliability. Moreover, following a review of these errors within the context of the Bradshaw framework, together with all the circumstances of the Statement, I conclude that the Statement did not meet the standard for threshold reliability and should not have been admitted.

(The remainder of the analysis, including detailed discussion of each error, is omitted here for brevity but is included in the full judgment above.)

D. Disposition

[127] Based on the foregoing reasons, I would set the guilty verdicts aside, rule the Statement inadmissible and order a new trial for both appellants.

Released: April 17, 2025

“J.S.”
“Janet Simmons J.A.”
“I agree. J. Copeland J.A.”
“I agree. R. Pomerance J.A.”

Endnotes

[1] Nancy Gregory’s sister, Khasheequia Gregory, was also a witness at trial. References to “Ms. Gregory” in these reasons are to Nancy Gregory.

[2] R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865.

[3] In oral submissions, counsel for Mr. Lako abandoned his grounds of appeal concerning post-offence conduct and whether his 12-year sentence was demonstrably unfit.

[4] One of the issues raised related, in part, to the order in which the trial judge instructed the jury on the offences charged. Even though Mr. Lako’s liability for manslaughter depended on a finding that Mr. McDonald committed second degree murder, in her jury instructions, the trial judge addressed the manslaughter charge against Mr. Lako first, before addressing the murder charge against Mr. McDonald, apparently because Mr. Lako’s name appeared first on the indictment. Although we are satisfied that this did not give rise to any possible confusion in the jury instructions concerning the route to Mr. Lako’s liability for manslaughter, we agree that addressing the murder charge first would have been appropriate in the circumstances.

[5] I will refer to Khasheequia Gregory as Sheequia throughout these reasons to avoid confusion with her sister, Nancy Gregory.

[6] Ms. Gregory was arrested and charged at the time of execution of the search warrant. During the search, police found a taser and various types of ammunition. She was then charged with possession of a prohibited weapon and careless storage of ammunition. The charges were dismissed following her death.

[7] R. v. B.(K.G.), [1993] 1 S.C.R. 740.

[8] For example, his appearance on video footage from the pizza restaurant, and information he described in detail in his police statements.

[9] In the trial Crown’s factum, the trial Crown acknowledged that Mr. McGregor had made four police statements prior to his October 11, 2015 statement, which was included in the pretrial application. In the factum, the trial Crown stated, “McGregor progressed through his statements from claiming that he didn’t know anything, to admitting parts of what transpired on the night of [Mr. Zak’s] death.”

[10] Statements dated June 21, 2012; July 30, 2012; October 25, 2012; August 29, 2013; and June 25, 2014. It is not clear that the entire pretrial application was produced on appeal. Mr. McDonald’s factum filed in response to the Crown’s pre-trial application also refers to certain additional police statements of Sheequia Gregory at para. 136. Tabs 29-36 of the pretrial application appear to have been omitted from the appeal record.

[11] The trial judge noted Sheequia Gregory had been interviewed several times and reviewed some of her statements. Sheequia Gregory initially said her sister would not keep a gun in her house. Subsequently, she said she saw Mr. McDonald pass the gun to Mr. Perez. However, she later said she did not see Mr. Perez with the gun; rather, he told her he had it. In another statement she told the police that she saw Mr. McDonald and Mr. Perez wrapping the gun and giving it to Ms. Gregory who put it in her pant leg and walked home. She also told police that Mr. McDonald confessed to her that he shot Mr. Zak.

[12] R. v. Vetrovec, [1982] 1 S.C.R. 811.

[13] At paras. 117-119 of their factum filed at trial, defence counsel elaborated on the memory concerns relevant to the hearsay danger of accuracy: the statement was given over five years after the events in question; Nancy Gregory had been drinking on the night of the killing, identifying herself at about a seven out of ten on a scale of intoxication; and her statement is rife with claims that she did not remember important details.

[14] In a police statement of October 25, 2012, Sheequia Gregory claimed that, while looking out a window from inside Natasha Jackson’s house, she saw Mr. Perez wrap a gun in one of two t-shirts Mr. Perez was wearing and give it to Nancy Gregory. Ms. Gregory then put the gun down her pant leg and walked away. Mr. McDonald was present at the time. In a police statement of August 29, 2013, Sheequia Gregory claimed that Mr. Perez was outside when she heard the shotgun blast while sitting in Natasha Jackson’s house. When she looked out the back window, she saw Mr. Perez pass Nancy Gregory a gun. Mr. McDonald was present at the time. In the same statement, Sheequia Gregory said Mr. Perez told her Mr. McDonald threw him the gun as he came down a walkway.

[15] It appears that the words “to conclude” may be missing following the word “evidence”.