ONTARIO COURT OF JUSTICE
DATE: 2025 03 28
COURT FILE No.: Hamilton 998 23 47102956
BETWEEN:
HIS MAJESTY THE KING
— AND —
FRANK DIMILLO
Reasons for Judgment
Before Justice Davin M.K. Garg
Heard on February 18-21, 26, and March 18-19, 26-27, 2025
Reasons released on March 28, 2025
Sean Doherty — counsel for the Crown
Ian McCuaig — counsel for the accused Frank Dimillo
GARG J.:
Overview
[1] Blake Dimillo told the police that he heard his father confess to shooting a man in the face. He then testified in court that he misspoke. The purported confession is the only direct evidence against the accused. The alleged victim of the shooting did not incriminate the accused.
[2] I find that Blake Dimillo told the truth to the police and gave a reliable account of what he heard. His recounting of the accused’s confession combines with the circumstantial evidence to prove the accused’s responsibility for the shooting beyond a reasonable doubt. These reasons explain my conclusions.
General Principles
[3] The Crown bears the onus of proving each and every element of the offences charged beyond a reasonable doubt. The accused carries no onus to prove or disprove anything. He is presumed innocent of all charges. The burden of proof never shifts to the accused. It is not enough for me to believe that the accused is probably or likely guilty of an offence. In that situation, I would need to acquit. While the Crown is not required to prove its case to an absolute certainty, proof beyond a reasonable doubt falls much closer to an absolute certainty than the balance of probabilities. Reasonable doubt can arise from the evidence or from the absence of evidence.
[4] The Crown presents a largely circumstantial case to prove that the accused intentionally shot the alleged victim, Morgan Richardson. I must conduct an analysis pursuant to the principles articulated in R. v. Villaroman, 2016 SCC 33. I must consider other reasonable possibilities or plausible theories that are inconsistent with guilt to decide whether an inference of guilt is the only reasonable inference. Reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence. “[I]t is for the trier of fact to determine whether any proposed alternative way of looking at the case as a whole is reasonable enough to raise a doubt about the guilt of the accused”: R. v. Lights, 2020 ONCA 128 at para. 39.
Blake Dimillo’s Statement to the Police
[5] After considering the entire trial record, I find as fact that Blake Dimillo heard the accused’s purported confession to the shooting. The accused was speaking to visitors on the porch of his home. I find that Blake properly recounted what he heard to the police.[^1] I reject Blake’s testimony that he misspoke.
Factual overview
[6] Blake gave a statement to the police on the day following the alleged shooting. I granted the Crown’s application to admit the following excerpt of Blake’s statement into evidence for the truth of its contents:[^2]
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 the 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.
[7] At trial, Blake recanted his recounting of the confession. When asked what the accused had 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”.
Blake later added:
… 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. I misspoke in this statement.
[8] Blake testified that he was highly emotional when speaking with the police. He was also angry at the accused for leading a drug-filled lifestyle that caused chaos and disruption to the household. He agreed with defence counsel’s initial suggestion that he recounted the information that he had received from third parties, and not what he had heard from the accused.
[9] The Crown put to Blake that his recounting to the police of the accused’s confession was unequivocal—he did not say that he assumed or inferred that the accused was confessing.[^3] 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.
Analysis
[10] I rely on Blake’s statement wherein he detailed the accused’s purported confession. I will explain why I prefer the content of this statement over the in-court recantation. This conclusion requires me to accept parts of Blake’s evidence and reject others, which I am entitled to do: R. v. S.H., 2011 ONCA 215 at para. 8.
Substitutes for the oath or affirmation
[11] Blake testified under solemn affirmation whereas his statement to police was unsworn. I nevertheless decline to view his statement as inherently less trustworthy. There was no real challenge to Blake’s testimony that he was truthful with the police when giving his statement, 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.
Concerns with Blake’s credibility at trial
[12] I have concerns with Blake’s testimonial credibility. I find that he did not give frank evidence and dealt in half-truths.
[13] Blake’s efforts to distance himself from his statement undermined his credibility. Blake initially testified that he only heard the accused say “the” and “at” when talking to the visitors. When refreshed on his statement, Blake went further and testified that he did not hear any specific words. Often, little will turn on a witness changing their evidence after refreshing their memory. But the change in this case undermines Blake’s credibility. Since the relevant portion of the statement was admitted for its truth, I know what Blake reviewed to refresh his memory. It does not make sense that Blake testified to hearing two specific words, reviewed a statement where he recounted a confession, and then changed his evidence to be that he did not hear any specific words at all. I find that Blake was trying to distance himself from his statement.
[14] Another instance of Blake trying to distance himself from the statement involves his opportunity to hear the accused. Blake initially testified that he heard the accused speaking through a glass window. I understood this to mean that there was no other opening between Blake and the accused. But under cross-examination, Blake was shown images from inside the home. The images reveal that there is a doorway right next to the window.[^4] I find it strange that Blake volunteered hearing the accused through the window but did not mention the doorway until shown the images.[^5] The doorway must have provided an opportunity for Blake to hear the accused since he also testified that the door was partially open. I find that Blake’s initial focus on hearing the accused through a closed window was an attempt to limit his opportunity to hear the confession.
[15] Defence counsel argued that Blake’s testimony about the position of the door enhanced his credibility. If Blake wanted to fully distance himself from the confession, then he could have testified that the door was completely shut. This argument only goes so far. It is not as though Blake testified unequivocally that the door was open. He gave shifting evidence on the issue. When it was initially suggested to him that the door was closed, Blake testified that he did not recall and did not think that the door was closed. When later asked whether the door was open or closed, he responded “closed I believe? Maybe closed a third of the way”. He then testified that the door was “not fully closed but shut”. In re-examination, Blake resisted the suggestion that items in front of the door were propping it wide open, despite this being the setup the day after the confession.
[16] There are other examples of Blake modifying his testimony in a manner that undermines his testimonial credibility. He initially testified that the police, when executing the search warrant, invited everyone to leave the house. But he later agreed that the police “dragged” him out, and that both he and his grandmother were “pulled” out. In re-examination, Blake acknowledged that neither he nor his grandmother were dragged or pulled out of the house. His explanation for agreeing with defence counsel’s suggestions did not rehabilitate his credibility. For example, when asked why he went along with the word “pulled”, Blake shrugged his shoulders.
[17] Finally, I find that Blake was motivated to tell the truth to the police and motivated to recant that truth at trial. Blake admitted at trial that he loved the accused and did not want him to go to jail for a long period of time. These are perfectly normal feelings for a son to have for his father. But it nonetheless gave Blake a motive to recant the confession. By contrast, I find that Blake’s emotional state at the time of the statement, including his anger, motivated him to tell the truth. He told the truth in view of what he considered to be his father’s best interests at the time. As Blake told the police, “… 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”. It makes sense that, come trial two years later, Blake no longer thought that jail was the best place for his father: see R. v. Laboucan, 2010 SCC 12 at para. 11.
Precise language and limited tainting concern
[18] Another reason that I give full weight to Blake’s statement rests on the precision of his language in the statement. Relatedly, I am not concerned that his account was simply a regurgitation of what he had heard from third parties or otherwise tainted by earlier conversations. It is convenient to address these points together.
[19] First, Blake was unequivocal in his statement that he heard the accused confess to the shooting. 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 unknowns (like who the accused was speaking to). 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 the cheek, went through and up through his ear”. When sharing this last portion with the police, Blake used his hand to demonstrate the path of the bullet.[^6]
[20] Second, Blake testified that he “misspoke” in his statement because he did not actually hear the accused utter specific words. If Blake falsely put a complete confession in the accused’s mouth, then he did not misspeak. He outright fabricated his account. Blake’s effort to thread the needle—maintaining he was truthful with the police and only misspoke—did not succeed. I note that Blake only proffered Chantel as the source of the details in his statement when pressed on the stark contrast between that statement and his testimony. Examined holistically, I reject Blake’s explanation that he misspoke.[^7] He did not fabricate his account to the police.
[21] Third, the evidence at trial limited the tainting concern. In his statement, Blake gave details about what he heard the accused say, including the path of the bullet. At trial, Blake confirmed that he did not receive detailed accounts of the shooting from Angie or Chantel. On the final day of his testimony, Blake explained that Angie did not really describe the alleged incident but was angrily complaining about the accused’s behaviour. As for Chantel, Blake explained that she gave an angry rant and shared her grievances in a stream of consciousness. She did not give a step-by-step account of what had supposedly occurred.[^8] Information that the accused had “acted badly” is different from receiving a specific account that Blake then parroted to the police. While I cannot discount the tainting possibility altogether, examined in context, it does not prevent me from relying on Blake’s statement.
Ability to hear the accused
[22] I am satisfied that Blake could hear the accused. The photographs show that Blake was not far away when he heard the accused speaking. An open doorway allowed sound to pass through. I accept Blake’s testimony that the door was not closed enough to block sound from the outside.
Opportunity to hear the accused
[23] Defence counsel cautioned me from putting weight on Blake’s statement because it only captured a snippet of the accused’s conversation. Clearly some context is missing. Blake was not a party to the conversation. His statement does not outline what questions, if any, led the accused to recount the shooting.
[24] I nonetheless have sufficient context to rely on Blake’s recounting of the conversation. Blake could both see and hear the accused speaking. He was not far away. He knew that the accused was speaking to someone else. Implicit in Blake’s recounting is that the accused spoke loud enough to be heard. And the core portion was not presented as a partial thought: see R. v. Buttazzoni, 2019 ONCA 645 at para. 56. When the officer asked if the accused had detailed the event, Blake attributed specific details to the accused: “He said that he shot him in the cheek, went through and up through his ear. … he seemed kind of proud about it”.
[25] Corroborative evidence makes it more likely that the accused was talking about the shooting of Mr. Richardson. It also gives me comfort that Blake both accurately heard the accused and accurately recounted what he heard to the police. Blake recounted the accused giving details about the path of the bullet—in through the cheek and out through the ear. The photographs of Mr. Richardson show him with an obvious wound to his cheek and another behind his ear. I find that this second wound is close enough to the ear to match the accused’s utterance.
[26] To understand the force of this corroboration, it helps to consider a contrary scenario. If Blake had attributed to the accused details that were fundamentally different from Mr. Richardson’s shooting, it would suggest at least two possibilities: either the accused was talking about a different shooting altogether, or Blake misheard the accused. But since the utterance matches the injuries, it makes it more likely that Blake accurately heard the accused talking about Mr. Richardson’s shooting—even if his recounting of the conversation was not presented as a direct quote.
[27] Finally, I reject as implausible Blake’s testimony that he was only in position to hear the accused for a total of three seconds. I find that Blake saw and heard the accused discussing the shooting. His testimony that he only listened for three seconds was another attempt to distance himself from his statement.
Blake’s demeanor when giving the statement
[28] I must be cautious when relying on Blake’s demeanour during the statement. I do not know how Blake ordinarily presents when he is calm versus when he is rattled. But I am entitled to put some weight on his demeanour. It is one reason that a K.G.B. statement must ordinarily be videotaped. From the admissible portion of the statement, I see a mature young man who presented his account authentically and dispassionately.
Conclusion
[29] I find as fact that the accused told the visitor that he shot someone in the face. The conversation occurred during the evening after the alleged shooting. The accused said that he shot the person in the cheek and that the bullet went through and up through his ear. The accused seemed proud of the shooting.
Proof Beyond a Reasonable Doubt?
[30] The next question is whether the Crown has proven its case beyond a reasonable doubt. Specifically, has the Crown proven that the accused possessed a firearm and intentionally shot Mr. Richardson? Inferences inconsistent with guilt do not need to arise from proven facts, as this would put an obligation on an accused to prove facts. The specific possibilities inconsistent with guilt that I must consider are that Mr. Richardson shot himself; someone other than the accused shot Mr. Richardson; or the accused shot Mr. Richardson by accident. Counsel also advanced the possibility that Mr. Richardson was not even shot.
[31] I find that none of the alternative possibilities are reasonably possible. I am satisfied beyond a reasonable doubt that, on May 12, 2023, the accused intentionally shot Mr. Richardson in the face inside the trailer parked on his property. This inference is the only reasonable one after considering the evidence as a whole. While defence counsel posited alternatives to individual pieces of evidence, I find that these alternatives do not survive consideration of the entire record: see R. v. J.M.H., 2011 SCC 45 at para. 31.
[32] Mr. Richardson technically gave exculpatory testimony. Despite disavowing any knowledge of the accused, he also claimed that the accused was innocent. I put no weight on Mr. Richardson’s testimony. I reject his testimony in its entirety. It lacked any credibility. The exculpatory aspects of his testimony do not raise a doubt. Defence counsel did not argue otherwise.
Mr. Richardson was shot inside the trailer
[33] I am satisfied that Mr. Richardson was shot on May 12 inside the trailer. I find that he was shot using the gun that the police found in the accused’s basement the next day.
[34] There is evidence of Mr. Richardson’s injuries on May 13 and 14. Mr. Richardson’s medical records from his hospital visit on May 13 were admitted on consent for the truth of their contents. Mr. Richardson suffered a penetrating injury through his left cheek and posterior neck. The penetrating injury tract was near branches of his left external jugular vein and internal jugular vein. Photographs from May 14 depict two obvious wounds to the left side of Mr. Richardson’s face. The first is a hole on his cheek; the second is a hole on his neck behind the ear.
[35] Mr. Richardson was present on the accused’s property on the afternoon of May 12. A cab driver picked up Mr. Richardson from the property. He observed that Mr. Richardson was covering the left side of his face with what appeared to be a white cloth. Meanwhile, Blake testified that he arrived home in the afternoon. He saw the accused, Mr. Richardson, Chantel, and his grandmother Sue Ann. He described them as “panicked” and “frantic”. Blake also saw Mr. Richardson holding his cheek with a white scarf wrapped around his head.
[36] The police executed a search warrant inside the trailer on May 13. The police saw a bullet hole in the wall. They cut holes in the wall without piercing the trailer’s external shell. They located a “full metal jacket” projectile.
[37] From my own review of the photographs, the bullet hole was around the height of the wounds to Mr. Richardson’s face. My assessment is inexact and worth little weight. The best I can say is that the bullet hole is consistent with Mr. Richardson being shot in the face, as compared to if the hole was near the ceiling or the floor.
[38] The police also searched inside the accused’s 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 behind the trailer wall could have fired from the gun (i.e., the projectile was compatible with the gun). The police also found a spent casing loose in the bag with the gun. This casing could have housed the projectile behind the trailer wall (it was also compatible).
[39] 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”. Mr. Richardson could not 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 originated from Mr. Richardson than if it originated from an unknown person unrelated to Mr. Richardson.
[40] 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 Mr. Richardson 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 Mr. Richardson because he contributed more DNA to the mixture.
[41] I draw the inference that the gun was used in the shooting. It was compatible with the projectile found in the trailer and found in a bag with a casing that was also compatible with the projectile. Furthermore, Mr. Richardson’s blood was on the gun. It is implausible that Mr. Richardson suffered a penetrating wound at an unknown location, continued bleeding when he attended a trailer in which a shooting had previously occurred, the gun was produced for some unknown reason, and Mr. Richardson then bled on the gun. Rather, Mr. Richardson’s blood is on the gun because he was shot by the gun.
[42] I respectfully reject defence counsel’s argument of there being insufficient blood in the trailer to conclude that Mr. Richardson was shot there. I do not know how much blood should be expected from a through-and-through wound that did not hit the jugular. Furthermore, Sue Ann testified that Mr. Richardson already had a cloth with him when he arrived that day, which the cab driver later saw wrapped around Mr. Richardson’s face. The driver did not testify to copious bleeding inside his vehicle. From the evidence before me, it would seem as though Mr. Richardson was able to contain much of the bleeding. In any event, the absence of abundant blood is a minor issue when considering that Mr. Richardson’s blood was indeed found in the trailer along with a projectile that had gone through the wall.
The accused intentionally shot Mr. Richardson in the face
[43] I am also satisfied beyond a reasonable doubt that the accused was the shooter.
[44] The accused had the opportunity to commit the shooting. The evidence puts him on the property around the time when Mr. Richardson was shot. The evidence also discloses a limited number of people on the property that morning or afternoon.
[45] The accused’s bedroom was in the same basement where the police found the gun used in the shooting.
[46] The accused’s DNA was on the gun. 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 could not 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 originated from the accused than if it originated 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”.
[47] The Crown adds that the CFS only found the DNA of the accused and Mr. Richardson on the gun. If someone else had shot Mr. Richardson, then they did so without leaving their DNA. I accept defence counsel’s warning to be cautious with this submission. The Crown did not ask the expert about the likelihood of someone firing the gun without leaving their DNA. At its highest, there is simply an absence of anyone else’s DNA on the gun.
[48] Finally, the accused said that he fired a gun and shot someone in the face. I find that the accused must have been referring to shooting Mr. Richardson. I draw this inference given that he made the statement on the same day that a shooting occurred inside his trailer. Furthermore, his description of the shooting—in the face, in the cheek—matches the injuries suffered by Mr. Richardson. The accused knew these details because he was present. Based on my assessment of the entire evidentiary record, I find that the accused was confessing to the shooting.
[49] The defence argued that the accused might have confessed to the shooting without being responsible for it. Mr. Richardson was unpopular, and for whatever reason, the accused might have wanted to take credit for his injury. This argument calls for speculation. I do not give effect to it.
[50] Finally, I am satisfied beyond a reasonable doubt that the shooting was intentional. Blake described how the accused “seemed kind of proud” about the shooting. Blake’s opinion that the accused was proud is a “compendious statement of facts that are too subtle and too complicated to be narrated separately and distinctly”: R. v. Walker, 2025 ONCA 19 at para. 18, citing R. v. Graat, 1982 SCC 33, [1982] 2 S.C.R. 819 at 841.[^9] I find that the accused was proud of what happened because he knew what he was doing and accomplished his intended result of shooting Mr. Richardson. The manner of the confession, including the accused’s emotional state, leaves the only reasonable inference that the shooting was intentional.
[51] On the evidence before me, a theory that the accused shot Mr. Richardson by accident is speculative. The Crown is not required to negative fanciful conjecture: Villaroman at para. 37; see also R. v. Epp, 2022 ONCA 613 at para. 3.
Absence of evidence
[52] Defence counsel emphasized the absence of evidence in this case. The accused bore no burden to establish any facts, much less prove his innocence. The absence of evidence included the limited forensic analysis, such as the absence of a gunshot residue analysis. Furthermore, the CFS analyst could not opine on when the DNA was deposited.
[53] The absence of evidence does not give me any doubt about the accused’s guilt. The question is not whether the Crown failed to call evidence that it might have called in a different case. The question is whether guilt is the only reasonable conclusion after considering the full trial record and the absence of evidence. In this case, any questions that might have remained after considering the circumstantial evidence were answered by adding the accused’s confession to the equation.
Findings of Guilt
[54] Having concluded beyond a reasonable doubt that the accused intentionally shot Mr. Richardson in the face, the question becomes what verdict to render on each count. The answer seemed straightforward. At first blush, I agreed with the concession made during submissions that findings of guilt would flow on all charges. But upon closer review, I questioned whether guilty verdicts were appropriate on some counts. I reconvened the parties to make submissions with respect to counts 1 and 4.
Counts 2-3, 5-9
[55] I enter guilty verdicts on the following counts:
Count 2: point firearm. There is no issue that the gun was a “firearm”. The accused necessarily pointed the firearm at Mr. Richardson as part of an intentional shooting.
Count 3: discharge firearm with intent to endanger life. This count does not require proof that Mr. Richardson’s life was actually in danger. Having found that the accused intentionally shot Mr. Richardson in the face, I draw the common sense inference that the accused intended to endanger his life: see R. v. Walle, 2012 SCC 41 at para. 67. The intent to endanger someone’s life is not the same as trying to kill them: R. v. Owens, 1969 BC CA 964, [1970] 2 C.C.C. 38 at 47; Regina v. Boomhower (1974), 1974 ONCA 2650, 27 C.R. (ns) 188 at 191. Endangering life means to put a person’s life in danger or peril: R. v. MacKinnon, 2021 ONSC 4763 at para. 770. It is hard to conceive of how a person could intentionally shoot someone in the face without intending to put their life in peril. More importantly, no other explanation is available or reasonably possible in this case. The charge is proven beyond a reasonable doubt.
Count 5: possession of a firearm while prohibited. The defence admitted that the accused was prohibited from possessing firearms. It necessarily follows from the shooting that the accused possessed the firearm.
Count 6: careless use of a firearm. The intentional shooting establishes the accused’s careless use of a firearm.
Count 7: possession of a loaded prohibited or restricted firearm. The firearm was a “restricted” firearm and obviously loaded.
Count 8: possession of a firearm without registration. The accused was not registered to possess a firearm.
Count 9: possession of a firearm knowing its possession is unauthorized. Given that the accused was prohibited from possessing firearms, he knew that the possession was unauthorized.
Count 1: aggravated assault
[56] I enter a not guilty verdict on the count of aggravated assault. The charge is particularized to read that the accused “did endanger the life” of Mr. Richardson. There is a difference between whether the accused intended to endanger Mr. Richardson’s life (count 3) and whether his life was, in fact, in danger: R. v. de Freitas, 1999 MBCA 14071 at paras. 15-16; R. v. Guppy, 2020 ONCJ 413 at para. 25; see also R. v. Tebbs, 2022 ONSC 4325 at para. 20. I am not satisfied beyond a reasonable doubt that Mr. Richardson could have died. This conclusion might seem shocking given that Mr. Richardson was shot through his face and the injury tract came close to his jugular veins.[^10] But I must consider the complete record. Witnesses saw Mr. Richardson walking around after the shooting and getting picked up by a cab. The cab did not take Mr. Richardson to a hospital or medical clinic. Mr. Richardson did not seek medical attention until the day after the shooting—and after some convincing by the police. There is no expert opinion evidence on whether his life was in danger.[^11] On the contrary, Mr. Richardson attended the hospital with stable vitals and no active bleeding. He was seen eating and drinking as normal. Personnel explained to Mr. Richardson the risks of leaving the hospital. Those risks did not include the risk of death. Alternative routes to proving an aggravated assault were available, but the Crown did not seek to amend the charge.
[57] The next issue was whether I should find the accused guilty of a lesser included offence to aggravated assault. I initially thought the accused would be guilty of assault causing bodily harm. But I then raised the decision of R. v. Tenthorey, 2021 ONCA 324. As Paciocco J.A. held at para. 56: “Since the fourth mode of committing aggravated assault (endangering the life of another) can be committed without also committing an assault causing bodily harm, assault causing bodily harm is not ‘necessarily committed in the commission of the principal [or charged] offence’”. I cannot find the accused guilty of assault causing bodily harm.
[58] After hearing from counsel, however, I am satisfied that it is proper to find the accused guilty of attempting to commit an aggravated assault: s. 660; see also R. v. G.R., 2005 SCC 45 at paras. 29-31. Since I found the accused guilty of discharging a firearm with the intent to endanger Mr. Richardson’s life, it necessarily follows that the accused attempted to endanger Mr. Richardson’s life by committing an aggravated assault.[^12]
Count 4: use firearm while committing an aggravated assault
[59] The count of using a firearm while committing an aggravated assault does not particularize the route to committing the aggravated assault (i.e., by wounding, maiming, disfiguring, or endangering life). While the evidence fell short of proving that Mr. Richardson’s life was in fact endangered, he was clearly wounded: see R. v. Pootlass, 2019 BCCA 96 at para. 3; MacKinnon at para. 770. And there is no doubt that the accused intentionally used the firearm to wound Mr. Richardson. I am satisfied that the accused committed an unparticularized aggravated assault.
[60] However, I asked counsel about the application of the Supreme Court’s decision in R. v. Pringle, 1989 SCC 65, [1989] 1 S.C.R. 1645 at 1652-1656. That decision makes clear that it is not sufficient for me to find as fact that the accused used a firearm to commit an unparticularized aggravated assault. Rather, to enter a guilty verdict on this charge, it is mandatory that the accused be found guilty of the underlying indictable offence.
[61] After hearing from counsel, I accept their position that it is nonetheless proper to find the accused guilty of this charge. While the accused was found not guilty of aggravated assault, he was found guilty of attempted aggravated assault. Attempted aggravated assault is necessarily included in the particularized indictable offence of aggravated assault. The accused had fair notice that a guilty verdict could follow on count 4 if he were found guilty of aggravated assault or one of its included offences. The count reads that the accused committed an offence contrary to s. 85(1). That section explicitly states, in subsection (b), that a person commits an offence who uses a firearm while attempting to commit an indictable offence.
[62] Finally, I reject the Crown’s argument that I should find the accused guilty of an unparticularized aggravated assault by virtue of that offence being specified in count 4. To give one reason, it was not made clear to the accused that count 4 put him in jeopardy of being found guilty of two offences: Pringle at 1654-1655.
Conclusion
[63] The accused is found not guilty on count 1 as charged but found guilty of attempted aggravated assault. The accused is found guilty as charged on counts 2 through 9.
Released: March 28, 2025
Signed: Justice Davin M.K. Garg
[^1]: I use Blake Dimillo’s first name to distinguish him from others in his family.
[^2]: R. v. Dimillo, 2025 ONCJ 142. Counsel confirmed that this excerpt correctly sets out the admissible portion of the statement.
[^3]: I permitted cross-examination under s. 9(2) of the Canada Evidence Act.
[^4]: See Exhibit 10-3.
[^5]: Blake volunteered the information about the window and said nothing about the open door. The Crown asked: “What did you hear your father say to [the visitors]?” Blake responded: “... I picked up some words through the glass window in our kitchen.”
[^6]: See around 00:16:25 on the scroll bar of the video statement.
[^7]: I reject this explanation from Blake: “No, yes, it is misspeaking. What I said there [in the statement] is not fully completely what I meant, and I didn’t elaborate because I just, I’ll be honest, I didn’t really care to, and he didn’t ask him more questions about it”.
[^8]: This evidence conflicted with Blake’s testimony on a prior day, where he agreed that talking to Angie and Chantel afforded him a fairly detailed picture of the alleged events. Regardless, for the reasons provided above at paragraph 19, I find that Blake would have told the police if he was only repeating the accounts of Angie or Chantel as opposed to recounting what he had heard directly from the accused.
[^9]: Defence counsel took no issue with the admissibility of Blake’s opinion when I broached the issue during submissions.
[^10]: See Exhibit 9, pp. 35-36.
[^11]: I do not know how to decipher many of the CT findings on page 35 of the medical records (e.g., “likely injury to a distal branch of the left transverse facial artery, which is irregular, but without active extraversion”; “There is a large intramuscular hematoma of the left masseter and sternocleidomastoid muscle”; “…however note convincing intraluminal thrombus is identified”).
[^12]: There is no need to address the Crown’s alternative submission that the accused could be found guilty of simple assault.