COURT FILE NO.: CR-16-50000176-0000
DATE: 20180924
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
DELLEN MILLARD
J. Cameron and K. Lockhart, for the Crown
R. Pillay, for Dellen Millard
HEARD: May 17 and 31; June 1, 4, 5, 7, 8, 11, 12, 13, 14, 15, 18, 19, 21, 22 and 25, 2018
M. Forestell J.
REASONS FOR JUDGMENT
i. Background and Issues
[1] Dellen Millard is charged with the first degree murder of his father, Wayne Millard. Wayne Millard died sometime on November 29, 2012 as a result of a gunshot wound to his left eye. His death was initially classified as a suicide. On April 10, 2014, after further investigation, Dellen Millard was arrested and charged with the murder of Wayne Millard. Dellen Millard elected trial by judge alone and the trial commenced before me on May 31, 2018. Evidence was heard over 15 days. The evidence and submissions were completed on June 25, 2018 and I reserved judgment until today.
[2] The issue in the trial is whether I can be satisfied beyond a reasonable doubt that Dellen Millard killed Wayne Millard. If the Crown has proven beyond a reasonable doubt that Dellen Millard killed his father by shooting him in the eye, there is no real issue that the killing would have been intentional, planned and deliberate; and therefore would be first degree murder.
[3] The evidence against Dellen Millard is circumstantial. In a circumstantial case, as I will explain further in these reasons, in order for the Crown to prove the case beyond a reasonable doubt, an inference of guilt must be the only reasonable inference that the evidence permits.
[4] It was argued in this case that the evidence permits the reasonable inference that Wayne Millard died by suicide. If the evidence or lack of evidence reasonably permits such an inference, the Crown will have failed to prove the offence beyond a reasonable doubt.
[5] In these reasons, I will begin by setting out some of the legal principles that apply to my assessment of the evidence and to my ultimate decision. I will then summarize the evidence and explain my approach to certain aspects of the evidence. Finally, I will set out and explain the inferences that I have concluded may be drawn from the evidence as a whole and which determine the outcome of this case.
ii. Legal Principles
Presumption of Innocence and Burden of Proof
[6] The legal burden of proof is on the Crown to prove the guilt of Mr. Millard beyond a reasonable doubt. Molloy J., in R. v. Nyznik,[^1] explained the importance of the presumption of innocence and the requirement that the Crown prove guilt beyond a reasonable doubt. She wrote:
¶4 The presumption of innocence is a cornerstone of our criminal justice system, originally embedded in our common law tradition and now guaranteed as a fundamental legal right under our constitution.
¶5 The presumption of innocence, and along with it the standard of proof beyond a reasonable doubt, are important safeguards to ensure that no innocent person is convicted of an offence and deprived of his liberty. Without these protections, there would be a serious risk of wrongful convictions – an outcome that cannot be accepted in a free and democratic society.
¶6 The concept of proof beyond a reasonable doubt is not an easy one to define. It is clearly more rigorous than the balance of probabilities standard applied in civil cases. The balance of probabilities requires the party bearing the onus to establish that the proposition they advance is “more likely than not” – i.e. better than 50/50. In its landmark 1997 decision in R. v. Lifchus, the Supreme Court of Canada held that the following definition would be an appropriate instruction for a criminal jury:
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict, since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.
¶7 This instruction, with very little modification, is now the standard instruction on reasonable doubt given to criminal juries throughout Canada. The same standard is applied by judges sitting without a jury on criminal trials. The bottom line is that probable or likely guilt is insufficient. If all I can say is that the defendant[ ] in this case [is] likely guilty, I must acquit. It would not be safe to convict someone of a criminal offence with only that degree of confidence. [citations omitted]
Proof Beyond a Reasonable Doubt and Circumstantial Evidence
[7] The application of the burden of proof beyond a reasonable doubt in a case that involves circumstantial evidence also engages other principles of law.
[8] The Supreme Court of Canada, in R. v. Villaroman,[^2] set out the principles applicable to cases involving circumstantial reasoning. In the case of R. v. Gill,[^3] Fairburn J. (as she then was) summarized those principles as follows:
• …Where one or more element of an offence relies largely or exclusively on circumstantial evidence, ‘an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits’: Villaroman, at para. 30.
• Staying focused on the question of whether circumstantial evidence admits of other reasonable alternative inferences, ensures that the trier of fact does not ‘fill in the blanks’ or ‘jump to conclusions’ too quickly: Villaroman, paras. 29-30.
• While previous cases speak in terms of other ‘rational’ inferences, the unanimous Villaroman court settled upon the term ‘reasonable’: see, R. v. Griffin, 2009 SCC 28 at para. 33, Villaroman, at paras. 32-34. As Cromwell J. noted in Villaroman, while ‘reasonable’ and ‘rational’ inferences carry the same meaning, and it is not in error to speak in terms of ‘rational inferences’, the use of the term ‘reasonable’ guards against any confusion that may arise from the use of ‘reasonable doubt’ and ‘rational inference’.
• Inferences consistent with innocence do not have to arise from proven facts: Villaroman, at para. 35. As Fish J. observed in R. v. Khela, 2009 SCC 4 at para. 58, the defence does not have to ‘'prove' certain facts in order for the jury to draw an inference of innocence from them’. To make this a requirement for finding alternative rational inferences would be to reverse the burden of proof. Ultimately, the court must consider the ‘range of reasonable inferences that can be drawn’ from the circumstantial evidence. As in Villaroman, at para. 35, ‘[i]f there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.’
• A theory alternative to guilt is not ‘speculative’ simply because there is no affirmative evidence supporting the theory. A ‘theory alternative to guilt’ can arise from a lack of evidence: Villaroman, at para. 36. Gaps in the evidence can result in inferences other than guilt, but they must be ‘reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense’: Villaroman, at paras. 36-38.
• Reasonable possibilities and theories inconsistent with guilt must be considered, but this does not require the Crown to ‘negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused’: Villaroman, at para. 37, adopting R. v. Bagshaw, 1971 CanLII 13 (SCC), [1972] S.C.R. 2 (S.C.C.), at p. 8. Other reasonable inferences must find support in logic and experience and not rest on speculation.
• As noted by Cromwell J., at para. 38, the ‘basic question’ is whether the circumstantial evidence, ‘viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty’.
[9] In addition to the principles from Villaroman summarized above, I would add the principle enunciated by Cromwell J. at paragraph 42 that “alternative inferences [to guilt] must be reasonable, not just possible”.
[10] In R. v. Morin, the majority held that even in a circumstantial case, the standard of proof beyond a reasonable doubt applies to the essential elements of the offence, but not to individual findings of fact.[^4] The Court of Appeal for Ontario, in R. v. Uhrig,[^5] explained the approach to circumstantial evidence as follows:
When arguments are advanced, as here, that individual items of circumstantial evidence are explicable on bases other than guilt, it is essential to keep in mind that it is, after all, the cumulative effect of all the evidence that must satisfy the standard of proof required of the Crown. Individual items of evidence are links in the chain of ultimate proof: R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 361. Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction: Cote v. The King (1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76.
Although evidence must be assessed as a whole and cumulatively, if critical aspects of the evidence are weak, they will not necessarily be cured by their combination.[^6]
Assessing Credibility and Reliability
[11] In assessing the evidence and finding the facts, I must weigh the evidence and assess the credibility and reliability of the witnesses.
[12] Whether or not to accept the evidence of a witness and how much weight to give that evidence depends on an assessment of the credibility and reliability of the testimony. Credibility refers to the truthfulness of the witness. Factors such as previous lies or a motive to lie are relevant considerations in assessing credibility. Reliability relates to the accuracy of the testimony. A sincere witness may not be reliable because of a number of factors. The witness may not have had an opportunity to accurately observe and remember the events in question; their memory may be affected by the passage of time; their ability to recall may be impaired by the consumption of drugs or alcohol at the time of the events or later, they may be confused; or the witness may have been unconsciously influenced by extraneous information. Witnesses may speculate on matters that are beyond their actual knowledge.
[13] In assessing both the credibility and reliability of witnesses, I must consider the consistency of the testimony internally, with other statements of the witness and with other evidence in the case. I must also consider any explanation offered by the witness for inconsistencies in their testimony.
[14] In the case of a witness who has lied under oath in the past, I must approach that witness’s evidence with caution. Previous lies under oath may demonstrate that the oath or affirmation means little to the witness.
[15] The assessment of credibility and reliability is not an “all or nothing” proposition. I may accept some, none, or all of the evidence of any witness.
Opinion Evidence
[16] In this case I heard opinion evidence from both lay witnesses and experts. Generally, non-expert witnesses are not permitted to offer opinion evidence. An exception to this rule is that a non-expert may be permitted to give opinion evidence on the emotional state of a person.[^7] Several witnesses, therefore, were permitted to offer their opinions on Wayne Millard’s demeanour as circumstantial evidence of Wayne Millard’s state of mind.
[17] Expert opinion evidence was also led. Dr. Jayantha Herath was qualified as an expert in forensic pathology. Dr. Herath offered opinion evidence on the cause of death, including the path or trajectory of the bullet that killed Wayne Millard.
[18] The coroner, Dr. Evans, also gave expert opinion evidence on the time of death and the cause of death.
[19] D.C. Grant Sutherland was permitted to offer expert testimony on the operation of the firearm that killed Wayne Millard and the tendency of such a firearm to dispel Gunshot Residue (“GSR”) from the muzzle and the cylinder gap.
[20] While experts are entitled to offer opinion evidence because of their training, education and experience, I must weigh the evidence of an expert in the same way that I weigh the evidence of any witness. As with any witness, I may accept some, all, or none of the evidence of an expert witness. I must consider the foundation for the opinion offered. Where I find facts that are different from those assumed or relied upon by the witness, I may give less weight to the opinion.
Out-of-Court Statements of Dellen Millard
[21] The Crown led evidence of several out-of-court statements of Dellen Millard. Marlena Meneses testified that Dellen Millard said that he did not like the way that his father was running the business and that he preferred how his grandfather had run the business. This evidence was led as evidence of motive.
[22] A series of statements were made by Dellen Millard to the police on the night that his father’s body was found. The first statements were made at the house and the last one was made at the police station on video. The statements made to the police after Wayne Millard’s death were conceded to be admissible, having been made voluntarily. I will address those statements in the context of post-offence conduct evidence.
Post-Offence Conduct
[23] Post-offence conduct evidence is evidence of words or acts of an accused person after the alleged crime was committed that are relevant to an issue at trial.
[24] Post-offence conduct may take many different forms. The use of the evidence will depend on the type of conduct alleged and the issue to which it relates.
[25] The Supreme Court of Canada, in R. v. White,[^8] described the range of conduct that falls under the rubric of post-offence conduct and warned of the dangers of misuse of such evidence:
21 Evidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence. In some cases it may be highly incriminating, while in others it might play only a minor corroborative role. Like any piece of circumstantial evidence, an act of flight or concealment may be subject to competing interpretations and must be weighed by the jury, in light of all the evidence, to determine whether it is consistent with guilt and inconsistent with any other rational conclusion.
22 It has been recognized, however, that when evidence of post-offence conduct is introduced to support an inference of consciousness of guilt it is highly ambiguous and susceptible to jury error. As this Court observed in Arcangioli [[1994] 1 S.C.R. 129, 1994 CanLII 107 (SCC)], the danger exists that a jury may fail to take account of alternative explanations for the accused's behaviour, and may mistakenly leap from such evidence to a conclusion of guilt. In particular, a jury might impute a guilty conscience to an accused who has fled or lied for an entirely innocent reason, such as panic, embarrassment or fear of false accusation. Alternatively, the jury might determine that the conduct of the accused arose from a feeling of guilt, but might fail to consider whether that guilt relates specifically to the crime at issue, rather than to some other culpable act.
[26] As Laskin J.A. wrote in R. v. Angelis:[^9]
Post-offence conduct, therefore, is not subject to blanket rules. It is circumstantial evidence whose probative value depends on the nature of the evidence, the issues at trial and the positions of the parties. Thus, we do not automatically label certain kinds of post-offence conduct as always or never relevant to a particular issue. Rather, we must consider all the circumstances of a case to determine whether the post-offence conduct is probative and, if so, what use the jury may properly make of it. In the words of Rothstein J., at para. 36 of R. v. White, the overriding question is this: what do ‘logic and human experience’ suggest that a jury can legitimately or rationally infer from the accused's post-offence conduct?
[27] Post-offence conduct, therefore, is a form of circumstantial evidence, but it is a special kind of circumstantial evidence which carries an elevated risk of speculative reasoning.
[28] Because there is a range of conduct that may fall under the heading of post-offence conduct and there are no blanket rules, before relying on post-offence conduct I must identify the material issue to which the evidence relates and articulate the inference or inferences that I draw from it and the reasoning process that leads me to those inferences. The Crown relies on four types of post-offence conduct in this case:
(1) the demeanour of Dellen Millard after finding his father’s body i.e., not touching the body and calling his mother rather than 911;
(2) Dellen Millard’s statement to the police, that he stayed at Mark Smich’s house the night before discovering the body;
(3) Dellen Millard’s statement to the police, that he was not aware of his father having any other guns in the house; and
(4) Dellen Millard’s actions in closing the business shortly after his father’s death.
Evidence was also led of statements made by Dellen Millard at the scene on November 29, 2012, when he told the police that there may be a firearm in a bag in the basement and asked if the gun that killed Wayne Millard was a revolver.
[29] I must be particularly careful in my consideration of post-offence ‘demeanour’ evidence. As Paciocco J. (as he then was) points out in his article, “Simply Complex: Applying the Law of Post-offence Conduct’ Evidence”: “Post-offence ‘demeanour’ evidence is not relevant unless the circumstances surrounding the evidence make it sufficiently unambiguous to demonstrate reasonably and clearly the relevant emotional state or attitude of the accused at the time.”[^10]
[30] There are also dangers associated with false post-offence statements of an accused person. Using mere disbelief of the statement of an accused as circumstantial evidence of guilt reverses the burden of proof.[^11]
[31] The legal framework for the approach to lies or false alibis was summarized in R. v. Oland[^12] as follows:
…Conduct by the accused in the aftermath of an offence may assist in establishing guilt. However, because the significance of certain types of post-offence conduct, such as the articulation of false alibis or lies, can be easily exaggerated and their occurrence misapplied, particularly by non-jurists, the law has developed rules that seek to safeguard against the risk of any prejudicial impact on trial fairness. Those rules may be summarized as follows: (1) a false alibi or a lie, without more, is not evidence that can assist the prosecution in establishing guilt; (2) a false alibi or a lie may constitute incriminating evidence if and only if, in addition to being an intentional falsehood, it was fabricated or concocted by the accused for the purpose of concealing his or her involvement or participation in the offence charged. A fabricated or concocted lie is one that is made up after giving it some thought; as such, it is distinguishable from a spontaneous unreflected or unconsidered lie; (3) in this context, a finding of fabrication or concoction cannot be made simply because the accused lied; [and] there must be other evidence, independent of that finding upon which the trier of fact can find fabrication or concoction…
[32] Before relying on a statement of the accused as evidence of guilt, I must not merely disbelieve the statement; there must be independent evidence from which I infer that the accused fabricated or concocted the statement to conceal his involvement in the offence charged.
[33] Where any of the post-offence conduct evidence supports competing inferences that are as persuasive as the inculpatory inference, the evidence will have no probative value in determining whether the Crown has proven guilt.
[34] I will now turn to the evidence and the application of the legal principles that I have just outlined to the evidence in this case.
iii. The Evidence
Evidence of Wayne Millard’s State of Mind
Introduction
[35] A considerable body of evidence was called on the issue of Wayne Millard’s state of mind in the time period preceding his death. From that body of evidence the Crown and defence have asked me to draw starkly different inferences. The Crown argued that the evidence demonstrated that Wayne Millard had a new romantic relationship, was in improving physical health, was drinking less, was excited about a new business venture, was financially stable and was in a positive frame of mind. Therefore, it is argued, Wayne Millard was unlikely to kill himself. The defence argued that the evidence demonstrated that Wayne Millard was depressed, had a debilitating health issue, was an alcoholic and was facing significant business and financial problems. These problems, it was argued, support an inference of suicide. I will review the evidence relating to Wayne Millard’s state of mind and explain my assessment of it.
New Romantic Relationship
[36] In the months preceding his death, Wayne Millard had commenced a new relationship with Janet Campbell, a woman he had dated in his teens. Janet Campbell testified that the relationship began with email and then telephone contact in January of 2012. Over the months before Wayne Millard died on November 29, 2012, Janet Campbell and Wayne Millard spoke frequently and at length on the telephone. In the month before his death, they met face to face at Wayne Millard’s hangar at the Kitchener-Waterloo airport, at Wayne Millard’s home and at Janet Campbell’s home. Wayne Millard spent the night at Janet Campbell’s home. He spoke of leaving some things at her home for times that he would stay in the future.
[37] In November, before his death, Wayne Millard made plans with Janet Campbell to celebrate her birthday, which was on December 4, 2012. He forwarded an email to her showing that he had refused to schedule a business meeting on that day. He told her that he had bought her a card and a present. After the death of Wayne Millard, Ms. Campbell received the present from Dellen Millard. Wayne Millard had bought her flying lessons for her birthday. Ms. Campbell and Wayne Millard were both interested in genealogy and had made plans to go to Stratford together to visit a cemetery where their relatives were buried.
[38] Ms. Campbell spoke to Wayne Millard the night before he died. They spoke on the phone for several hours from around 10:30 or 11:00 p.m. on November 28th until around 3:00 a.m. on November 29th. She testified that they spoke about “everything”. She testified that Wayne Millard seemed “fine” and “normal”. In the weeks and days prior to his death, Wayne Millard had expressed his strong feelings for Janet Campbell.
[39] In his interview with the police, Dellen Millard was asked if his father had a girlfriend. He told the police that his father had asked him about a week earlier if he would be alright if he was seeing a woman named Janet. Dellen Millard told the police that he had never met Janet, but that he was aware of frequent telephone calls at night over the previous year and that he believed the calls were from Janet. He also told the police that his father had ‘disappeared’ the previous weekend and he believed that his father had been with Janet. Dellen Millard told the police that when his father asked if he was alright with him dating Janet he said, “I told him that so long as it didn’t create any legal issues with me I wanted him to go and find his happiness.”
[40] The evidence supports a finding that Wayne Millard, in the months before his death, had become involved in a serious romantic relationship. Although the face to face meetings were few, Wayne Millard spoke daily to Ms. Campbell and confided in her about personal matters.
Drinking
[41] Janet Campbell testified that Wayne Millard told her that he had a drinking problem. He told her that he believed that being with her would help him to deal with it. She testified that at times when they spoke on the phone she could tell that he had been drinking. He did not drink when they were together.
[42] In his statement to the police, Dellen Millard said that his father was a regular drinker who drank every night. He used to drink a 40-ounce bottle of whiskey every two weeks before he hurt his back. He stopped drinking when he hurt his back. However, in the two months before his death he had started drinking again and would drink 8-10 small bottles of wine a night.
[43] In the scene photographs, found at Exhibit 3, Tab 6, page 13, small bottles of wine can be seen on the shelves in the study of Wayne Millard’s house. An LCBO bag is also visible in one of the photographs.
[44] The findings of the pathologist of damage to the liver of Wayne Millard were consistent with chronic alcohol use.
[45] During the phone call on the night before his death, Ms. Campbell believed that Wayne Millard had had something to drink, but that he was not drunk. He was not slurring his words.
[46] The toxicology testing of Wayne Millard’s blood showed that the level of alcohol in Wayne Millard’s blood at the time of death was 85 mg of alcohol in 100 ml of blood.
[47] The Crown argued that I could find that Wayne Millard was not drinking before his death or was drinking less than the blood/alcohol toxicology result suggests. There was evidence given by the coroner, Dr. Evans, which indicated that the level of ethanol in blood after death may test at a higher level because of decomposition. According to Dr. Evans, the breakdown of tissue after death may release ethanol. Dr. Evans qualified this evidence by saying that he was not a toxicologist and that this evidence was not strictly within his area of expertise. I do not rely upon the theory that the toxicology results are due to decomposition. Dr. Evans was not qualified to offer such an opinion.
[48] The toxicology results indicate that Wayne Millard had consumed alcohol on the night of his death. This is consistent with the evidence of Janet Campbell, that Wayne Millard had a drinking problem and that she believed that he was drinking, but not drunk, when they spoke on the telephone.
[49] I find that Wayne Millard had a drinking problem. I accept Janet Campbell’s evidence that Wayne Millard told her this and I find that he had no reason to lie to her about it. The autopsy findings support the conclusion that he had overused alcohol for a lengthy period of time. The toxicology testing supports the finding that he had consumed alcohol before he died.
Mental and Physical Health
[50] In the early part of 2012 Wayne Millard had a back problem that caused him to be housebound and at times bedridden. By the autumn of 2012 his physical issues were improving. He continued to use a scooter when he was at the hangar where his business was located, but he was able to leave his house and to walk short distances.
[51] There was no evidence that Wayne Millard had a medical history of depression. Dellen Millard told the police in his statement that his father “had depression in him…he carried some pretty sadness with him throughout life that I never knew what it exactly was. He never really wanted to share it with me. It wasn’t like he was always sad either.” He told the police that his father was not treated for depression.
[52] Janet Campbell testified that Wayne Millard was not depressed in a clinical sense, but that he could be down or have a depressed mood from time to time. She agreed, that in an earlier interview with the police, she had told the police that she thought that Wayne Millard had depression, but that she saw him coming out of it and improving. Ms. Campbell explained the apparent inconsistency between her earlier statement to the police about Wayne Millard’s depression and her testimony at trial by saying that at the time of the interview she made a bad choice of words. She also explained that at the time of the interview she was searching for some explanation for Wayne taking his life.
[53] Janet Campbell also told the police in the interview that Wayne Millard was a recluse and that this was a comfort zone for him. In her testimony at trial, Ms. Campbell said that when she said that Wayne was a recluse she meant that he was not a ‘social butterfly’. She agreed that she never met any of his friends and did not recall him speaking of close friends.
[54] Some evidence of Wayne Millard’s mood or mental state also came from Marlena Meneses. Marlena Meneses was the girlfriend of Mark Smich, a close friend of Dellen Millard. She testified that she spent a great deal of time at the Millard house over the eight months prior to Wayne Millard’s death. She saw Wayne Millard, but did not have any conversations with him. She did not know if he knew her name. He would generally be in his bedroom. At times his clothes did not appear to be clean and at times he did not appear to have washed. Ms. Meneses was not able to say when these observations were made. They would have occurred, at least in part, during a time that Wayne Millard was dealing with his debilitating back condition.
Business and Finances
[55] Wayne Millard had embarked on a new business venture in the months before his death. His previous business had involved operating a hangar that was essentially for storage. The new business was a Maintenance and Repair Operation (“MRO”). Wayne Millard told several people that his intention was to create a legacy for his son Dellen. This new venture required that a large hangar be built and that a special license be obtained. At the time of his death, the hangar was complete and the license to operate the MRO had been granted 28 days earlier. Staff had been hired and trained. No contracts had yet been obtained. The business was not yet earning any money.
[56] Wayne Millard’s attitude toward the new business was the subject of conflicting evidence. John Barnes, a senior employee of the business, testified that Wayne Millard was ‘upbeat’, excited and enthusiastic about the MRO. Philip David Woodward, another senior employee, testified that at the time just prior to his death, Wayne Millard was excited about the fact that they had obtained their license to operate the facility.
[57] Chris Wood, the airport general manager at the Kitchener Waterloo airport where the MRO was being built, testified that Wayne Millard was very excited and happy about the business.
[58] Janet Campbell also testified that Wayne Millard was excited about the business. He gave her a tour of the hangar in November of 2012, shortly before his death. Ms. Campbell testified that he had expressed concerns about the business over the months that she was in contact with him by telephone and email, but that he was more positive about it in the time period from September to November 2012.
[59] Ms. Campbell agreed that she had told the police in an interview that during her last telephone conversation with Wayne Millard he told her that the business was “sucking the life out of him”.
[60] During that last telephone call Wayne Millard also spoke to her about John Barnes. He told her that he was not very happy with him, and it had something to do with a “Fall Arrest System”. He also told her that Dellen was not happy with John Barnes.
[61] John Barnes testified that in the meeting he attended with Wayne Millard and others the day before Wayne Millard died, he had made an error in his pricing of the “Fall Arrest System”. Mr. Barnes told Wayne Millard that the system would cost $180,000.00 when it would actually cost $18,000.00. He received an email from Wayne Millard at 2:50 a.m. on November 29, 2012. The email from Wayne Millard stated that the figures put forward by Mr. Barnes made no sense and that this was “blatantly irresponsible”.
[62] John Barnes also testified that, in the meeting the day before, Wayne Millard had wondered aloud about giving up the MRO and going back to his old business. Wayne Millard expressed concerns about running out of cash.
[63] Philip Woodward testified that when the business venture began, Wayne Millard had indicated that he had $10 million available to set up the business. At the time of Wayne Millard’s death they had not used $10 million. John Barnes and Philip Woodward were both aware that Wayne Millard had borrowed money to finance his business. They were aware that there was a shortfall in the payment to the construction company that built the hangar. They were aware that the business would require a continued cash flow to operate until contracts were obtained and the business began to make a profit. Mr. Barnes was surprised and concerned that there could be cash flow issues in November of 2012. This is expressed in his email to Wayne Millard sent on November 29, 2012 in response to Wayne Millard’s email concerning the error with respect to the Fall Arrest System.
[64] In his statement to the police, Dellen Millard said that the business was a source of ‘lots of stress’ and that there was more than a chance that the business would fail. He indicated that everything he and his father had was tied up in the business. There was a large loan from RBC and a loan was taken out with the house as security. In the messages extracted from the computer back-up of Dellen Millard’s iPhone was a message from Dellen Millard’s phone to David Gwillams on May 9, 2012 saying, “You wouldn’t happen to know anyone that would want to invest $2 million in an MRO (maintenance and repair operation). The business we’ve been building in Waterloo is on track and looking good to open in September, but we’re outta capital.”
[65] Janet Campbell testified that Wayne Millard had spoken to her about his concerns about borrowing money. He told her that his father would not have borrowed money. She reassured him that times had changed.
Plans for the Future
[66] There was evidence that Wayne Millard was making plans for the short term and long term in the days, months and hours before he died.
[67] Dina Collangelo, the housekeeper who worked for Wayne Millard, saw him the day before he died. He asked her to put out his heavy clothes because he planned on going to the hangar the next day. This evidence was unchallenged.
[68] Wayne Millard had plans to see Janet Campbell on her birthday and longer term plans to take a trip with Ms. Campbell to Stratford.
[69] Tracy Reddy, an organizer and trainer for the air cadets, testified that she had discussed with Wayne Millard using his hangar for an air cadet event in the Spring to coincide with the official opening of the hangar.
Conclusions on Wayne Millard’s State of Mind
[70] Considering the evidence relating to Wayne Millard’s state of mind as a whole I reach the following conclusions.
[71] I cannot draw any inferences concerning Wayne Millard’s state of mind from Ms. Meneses’ observations of him. I will have more to say about Ms. Meneses’ credibility and reliability at a later point in these reasons. On this issue, her evidence is of little value, given the lack of context for her observations.
[72] I find that Janet Campbell was an honest witness who was doing her best to tell the truth. I find, however, that her perception of Wayne Millard’s state of mind was influenced by what she was told had happened to him. At a point when she believed that he had died by suicide she said that he was depressed. Later, when she came to believe that Wayne Millard did not kill himself, she changed her opinion about his depression. It is difficult for anyone to assess another person’s mood or state of mind. It is natural that Ms. Campbell’s perception of Wayne Millard’s mood would be coloured by her belief as to the cause of his death. In the circumstances, I cannot rely on her conclusions as to his level of happiness or level of sadness or depression.
[73] I find Ms. Campbell to be a credible and reliable witness with respect to the meetings that she had with Wayne and their plans for the future. I find her to be reliable with respect to matters conveyed to her by Wayne Millard, including his drinking problem; his concerns about the loans he had taken out; his unhappiness with John Barnes on the night before he died; the fact that he had been drinking the night before he died; and the fact that Wayne Millard did not appear to socialize much, but was somewhat reclusive.
[74] I find that while business associates who testified about Wayne Millard’s positive attitude towards his new business were sincere, their evidence is not reliable on the issue of Wayne Millard’s emotional state. Chris Wood, Philip Woodward and John Barnes were not friends of Wayne Millard. They did not socialize with him. He did not confide in them about personal matters. There is no reason that Wayne Millard would disclose any emotional problems to his employees or business associates. To the extent that these witnesses testified about statements made by Wayne Millard concerning the business and his finances I rely on their evidence of the content of the statements. I do not rely on the evidence of their impressions of his positive attitude and excitement.
[75] I find that the business had used up much of Wayne Millard’s available money and that the business was expected to require more money in the future. I find that Wayne Millard went into the business expecting the licensing process to take time and money, but I also find that the uncertainty of having a great deal of debt and having no contracts in place to produce income was stressful. Wayne Millard expressed his concerns about the business and his loans to Janet Campbell.
[76] To summarize, I have considered the evidence of Wayne Millard’s positive state of mind from Ms. Campbell, Mr. Wood, Mr. Woodward and Mr. Barnes, but I find it unreliable.
[77] I find that Wayne Millard had significant financial and business stresses and that he had drinking problem. His physical health was poor but improving. He was somewhat isolated socially. He was never treated for depression.
[78] I also find that Wayne Millard was making plans for the future and in particular, that he was planning to meet on December 4, 2012 with Janet Campbell to celebrate her birthday.
Motive
[79] The Crown relies on evidence of motive as circumstantial evidence of guilt. While there is some evidence of a possible motive, I have given this evidence no weight in determining whether the Crown has proven the case against Dellen Millard.
[80] Dellen Millard, in his statement to the police, indicated that he believed he was likely the beneficiary of his father’s estate.
[81] Marlena Meneses testified that Dellen Millard had said that he did not like the way his father ran the business. He preferred the way his grandfather had run the business. Ms. Meneses could not recall when Dellen Millard said this. She could not recall any context to the statement.
[82] Several witnesses testified that they never witnessed Dellen and Wayne Millard argue or disagree. They appeared to get along well. There was no evidence of any animosity between them.
[83] A text message from Dellen Millard to David Gwillam in May of 2012 said that they had run out of capital for the business in Waterloo. There is evidence of financial problems with the business.
[84] There is also evidence that Dellen Millard closed the MRO business immediately following his father’s death. He dismissed the employees and indicated that he would be returning the MRO license. This evidence is post-offence conduct evidence that provides some corroboration of the evidence that Dellen Millard did not wish to operate an MRO and did not approve of the business plans of his father. It offers some confirmation of the evidence of Marlena Meneses, that Dellen Millard said he did not like what his father was doing with the business and preferred how his grandfather had run the business. While the evidence of closing the business has some corroborative value on this limited point, I am also conscious of competing inferences from this evidence, including that Dellen Millard was grieving or, that he was ill-equipped to run a complex business.
[85] Disapproval for the business style of his father and concerns about money may provide some evidence from which I could infer motive, but I find that the evidence relied upon to show motive is weak and easily supports other reasonable inferences. The evidence of motive plays no role in my decision.
The Discovery of the Body and the Time of Death
[86] Evidence was called relating to the circumstances and timing of the discovery of the body of Wayne Millard. I will review this evidence and explain my approach and my findings.
Dellen Millard’s Discovery of the Body
[87] In his video recorded statement to the police on November 30, 2012, which was conceded to have been made voluntarily, Dellen Millard told the police that he had arrived at 5 Maplegate Court, the home of his father Wayne Millard, between 6:00 and 6:30 p.m. on November 29, 2012.
[88] Cell tower records show Dellen Millard’s phone using the cell tower closest to 5 Maplegate Court at 5:45 p.m.
[89] I rely upon the evidence of the cellphone towers used by the telephones registered to Dellen Millard and others. I have, at every point that I have relied on the records, borne in mind that the cellphone tower used by a telephone is not necessarily the closest tower to the phone. There are times that a tower further from the phone will be used for the reasons set out in the Agreed Statement of Facts. I rely on the cellphone towers for the general, but not the precise, location of the telephone and I consider the evidence in the context of all of the other evidence relating to the location.
[90] Dellen Millard told the police that after he arrived at the house, he went to his bedroom to get a sweater. He noticed that his father was still in bed and went to check on him. Dellen Millard said that he saw blood and saw that his father was dead. He did not touch his father’s body. He phoned his mother. The call to his mother appears in the phone records at 5:56 p.m. Dellen Millard’s mother, Madeline Burns Millard, drove to 5 Maplegate Court. She called 911 after she arrived.
[91] The Crown submitted that the demeanour and conduct of Dellen Millard on November 29, 2012, when he reported finding his father’s body, can be used as post-offence conduct evidence consistent with guilt. The Crown argued that a person who discovered their parent’s body and was previously unaware of the death would touch or shake the body when they found it. I reject this submission. It cannot be said that on the basis of human experience and logic, an innocent person finding the dead body of a parent would touch the body. There is a range of human reaction to the discovery of a body. I cannot generalize about what is normal in the circumstances. The circumstances of Dellen Millard’s conduct in finding and reporting the finding of the body of his father is not so unambiguous that it demonstrates reasonably and clearly the thinking or emotions of Dellen Millard. I do not find that the reported demeanour of Dellen Millard after finding his father’s body has any probative value in determining if the Crown has proven the guilt of Dellen Millard.
Timing of Wayne Millard’s Death
[92] Dr. Evans, the coroner, was agreed by the parties to be an expert qualified to give opinion evidence in the area of medical science.[^13] He testified that when he first examined the body at around 9:00 p.m., lividity was full in some areas of the body and there was blanching in other areas. He testified at one point that lividity is fixed (with no blanching) after 6-8 hours. At another point in his testimony, he testified that lividity is fixed after 8-10 hours. Rigor mortis was complete when he first examined the body. Rigor mortis usually starts after 4-6 hours and is complete at around 18-20 hours. In a warm environment rigor mortis can occur more quickly. Dr. Evans did not recall the room being hot, but the body was under blankets and some heat would have been retained.
[93] The Crown has argued that the evidence of Dr. Evans assists in fixing the time of death in the early morning hours of November 29th. I do not find the evidence helpful in inferring the time of death. I have no evidence about the temperature of the room. Moreover, the evidence of Dr. Evans was that lividity would be fixed after 6-8 hours and it was not fixed in this case because there was blanching. This is not consistent with his evidence that rigor would be complete after 18-20 hours and was complete in this case. Dr. Evans’ testimony about the timing of his examination of the body was also unclear. He testified at one point that he examined for rigor mortis immediately upon attending the scene (around 8:30 to 9:00 p.m.) and at another point said that he did not examine the body until after officers with Forensic Identification Services (“FIS”) attended and took photographs (at around 11:25 p.m.). Without knowing the time of Dr. Evans’ examination, the observations with respect to rigor mortis have no context and cannot assist in narrowing the timeframe for the death. I have not relied on Dr. Evans’ evidence concerning the timing of lividity and rigor.
[94] The evidence that assists in determining the general timeframe of the death is the evidence of Janet Campbell, that she ended her telephone call with Wayne Millard at around 3:00 a.m., the evidence of the email sent to John Barnes by Wayne Millard at 2:50 a.m. and the preliminary inquiry testimony of Dina Collangelo that she generally arrived at the Millard house between 8:00 and 8:30 a.m. Ms. Collangelo arrived at her usual time on November 29th. The salad that she had left for Wayne Millard was gone and the bowl was in the sink. She made toast for him and left it on his desk. She did not go down the hall to the bedroom. Wayne Millard’s car was still at the house, but she thought that he might have driven to the hangar with Dellen. She took care of the pets and then left to do some shopping. She came back with the shopping. She saw that Wayne Millard’s car was still in the driveway. She went into the house again, but did not check to see if the toast and juice had been eaten. She did not go down the hallway to the bedrooms. She left the house. The timing of her departure that day is not clear. Ms. Collangelo did not see Wayne Millard at all on November 29th. Later that night when the body was found, the toast and juice that Ms. Collangelo had left for Wayne Millard was found where she had left it.
[95] As I have already indicated, Dellen Millard phoned his mother at 5:56 p.m.
[96] Considering all of the evidence, all that I am able to conclude with respect to the time of death is that Wayne Millard died sometime after 3:00 a.m. and before 5:56 p.m. on November 29th. The presence of Dina Collangelo by 8:00 or 8:30 a.m. on the 29th of November and intermittently throughout the day makes it more probable that Wayne Millard died before 8:30 a.m. However, it is possible that he died after that time, but before 5:56 p.m.
Physical Evidence
[97] I will now review the evidence relating to the scene of the shooting, the body and the findings at autopsy and explain my approach to it.
Observations at the Scene
Blankets
[98] Paramedics arrived at the house at 7:00 p.m. William Smith, one of the paramedics who attended the scene, testified that he arrived at the address and was met by a man who identified himself as the son of the deceased and by the mother of this man. Mr. Smith went into the bedroom of Wayne Millard. He testified that Wayne Millard was flat on his back on the bed and there was blood and vomit coming from his mouth. Other witnesses and the physical evidence and photographs show that Wayne Millard was on his side and that there was blood from his eye but no blood or vomit from his mouth.
[99] Mr. Smith observed that Wayne Millard’s skin was a dark colour and he was obviously dead. Mr. Smith recalled that there were blankets on the deceased, but he did not recall the position of blankets or the clothing, if any, worn by the deceased. He did not recall if he moved the body. In cross-examination he said that he touched the neck of the deceased. Although Mr. Smith had no recollection of the blankets, there is an orange blanket evident in the scene photographs that appears to be a blanket that would have originated with the paramedics.
[100] Mr. Smith’s evidence concerning the details of the scene and his actions in relation to the blankets, is not reliable. Mr. Smith did not have a good recollection of the details and his recollection was not consistent with other more reliable evidence.
[101] Sgt. Nimmo was one of the first police officers on the scene. He received the call at 7:12 p.m. and arrived at 5 Maplegate Court at 7:24 p.m. Upon arrival, he spoke with the paramedics on scene. At this point, the paramedics believed that Wayne Millard had died as a result of cardiac arrest. The blood on the pillow was attributed to burst blood vessels. This was communicated to Sgt. Nimmo by the paramedic who took him to the bedroom where he saw the body of Wayne Millard.
[102] P.C. Leonard and P.C. Bevilacqua arrived at 7:20 p.m. and went into the house with Sgt. Nimmo and into the bedroom with the paramedic.
[103] Sgt. Nimmo saw the deceased on the bed, covered with an orange paramedic blanket. After they entered the bedroom, Sgt. Nimmo testified that the paramedic pulled the blanket down. At this point, Sgt. Nimmo could see a male on the bed, lying on his left side with his right hand under his left cheek and his left hand extended off the bed. There was blood all over the pillow and down the side of the bed. There was blood on the face of the deceased.
[104] Sgt. Nimmo did not touch the deceased. Other than seeing the paramedic pull down the blanket, Sgt. Nimmo did not see the paramedic touch the deceased.
[105] Sgt. Nimmo was shown the photographs of the body of Wayne Millard taken by the FIS officer after 11:25 that night. The photographs show the body of Wayne Millard on the bed, lying on his side with a white patterned blanket and an orange blanket at around the mid-thigh level. Sgt. Nimmo testified that he remembered seeing the orange blanket, but did not recall seeing a white sheet or blanket.
[106] Sgt. Nimmo and P.C. Bevilacqua left the bedroom. Sgt. Nimmo spoke to Dellen Millard and Madeline Burns Millard and then he made phone calls. P.C. Bevilacqua left the house. P.C. Leonard remained in the bedroom or just outside the bedroom.
[107] P.C. Leonard did not remember if he touched the body, but believed that he just observed it. P.C. Leonard did not have a clear recollection of how long he was in the bedroom or what he did while in the bedroom.
[108] Sgt. Nimmo testified that he went back into the bedroom at some point when P.C. Leonard told him that he had located an air rifle under, or behind a dresser.
[109] Shortly after 8:30 p.m. the coroner, Dr. David Evans, arrived at the house.
[110] Dr. Evans testified that after he arrived, he went into the bedroom with Sgt. Nimmo and that there were a number of officers in the bedroom.
[111] The deceased was in bed with the blankets pulled up. Dr. Evans testified that he could see the face of the deceased when he moved beside the bed. There was blood coming from the left eye and from the nose of the deceased. There did not appear to be blood coming from the mouth. The blood ran to the side of the bed and down the side of the bed. Mr. Millard was lying on his left side; his right hand was under the left side of his face; his left arm was under the right arm and outstretched with the palm of his left hand facing up and the fingers partly curled. Dr. Evans observed lividity in the body that was consistent with the body having been lying in the position in which it was found.
[112] Dr. Evans was shown the photograph in Exhibit 3A, Tab 8, p. 3. This was a photograph of the body as it appeared when the FIS photographer arrived. When shown the photograph, Dr. Evans agreed that the photograph accurately depicted the appearance of the deceased when Dr. Evans first came into the room. In the photograph, the blankets are pulled down to about the mid-thigh level. He could not remember if the blankets were in the same position as depicted in the photograph. Dr. Evans did not recall if he pulled down the blankets from the deceased.
[113] P.C. Leonard testified that he saw Dr. Evans pull the sheet off the deceased when Dr. Evans first arrived.
[114] As I will describe in more detail below, Dr. Evans located a gun beside the bed and notified the police officers on scene who called for detectives to attend. Dr. Evans also called for the FIS to attend and take photographs.
[115] Detective Hutcheon was one of the detectives who attended the scene after the gun was located. He entered the room after 9:00 p.m. with Detective Tracey Johnston and the coroner. He testified that the coroner went up to the body and pulled off the sheets. He saw that the deceased was wearing a white t-shirt and black underwear. There was blood on the bed, running down the side of the bed. The blood had dropped onto a bag between the bed and the credenza. Before the coroner pulled down the sheets, there was a bed sheet covering the deceased up to about shoulder height.
[116] When Detective Hutcheon was shown the photographs in Exhibit 3A, at Tab 8, of the body of the deceased with the orange EMS blanket and white sheets at about the mid-thigh level, he said the sheets and blanket were not in that position when he went into the room. He recalled the white sheet up around the shoulders of the deceased before it was pulled down by Dr. Evans.
[117] Detective Tracey Johnston was shown the photographs taken by FIS. She testified that the position of the bed clothes depicted in the photographs was identical to what she had observed when she first entered the bedroom.
[118] D.C. Jeff Johnston testified that the photographs of the body were taken after he and his partner arrived at 11:25 p.m. and that they were taken without moving anything on the bed. The photographs show the blankets at mid-thigh.
Gun
[119] Dr. Evans testified that when he arrived and examined the body of Wayne Millard, he visually followed the trail of blood from the eye of the deceased along the side of the bed in order to assess the amount of blood lost.
[120] Between the bed and a dresser, Dr. Evans saw a carrier bag. He pushed the side of the carrier bag in order to see where the blood was travelling. It was at this point that he saw a gun which appeared to be lying on the side of the carrier bag. He told the police officers about the gun and called for a photographer.
[121] Dr. Evans testified that he did not hold up the carrier bag and the gun to show to anyone. He touched the bag only to move one side of it with the back of his hand and he did not touch the gun.
[122] P.C. Leonard testified that Dr. Evans held up a black Lululemon bag with a revolver on top. P.C. Leonard then notified Sgt. Nimmo who called for FIS and for detectives to attend.
[123] Detective Tracey Johnston testified that the coroner told her about the firearm that was located between the bed and the credenza. The firearm was difficult for Detective Johnston to see, but she could see that it had a wooden handle and looked like a revolver. She did not touch the gun and did not see anyone else touch the gun. The gun was in the space between the bed and the dresser. It was on top of a Lululemon bag.
[124] She further testified that the position of the bag depicted in the FIS photographs was the same as when she first observed it.
[125] Detective Hutcheon, who entered the room at the same time as Det. Tracey Johnston, testified that while the coroner was beside the bed, the coroner reached down and picked up a bag and pulled it out. There was a gun on top of the bag. The coroner moved the bag about two feet out from where it had been in order for everyone to see what was on the bag.
[126] Dr. Evans was shown a photograph of the carrier bag taken by the FIS when they arrived later that night (p. 4 of Tab 8 of Exhibit 3A and p. 5 of Tab 8 of Exhibit 3A). The photograph shows the bag in front of the space between the bed and the dresser. Dr. Evans testified that when he found the carrier bag it was not in the location depicted in the photograph.
[127] D.C. Jeff Johnston of the FIS testified that when they first entered the room where the deceased lay, Dr. Evans directed the FIS officers to the bed and pointed out a bag on the floor. D.C. Jeff Johnston observed a hand gun on the bag. D.C. Jeff Johnston took an initial look at the gun and then directed his partner, D.C. Linley, to photograph the bag and the gun. This occurred within 10 to 15 minutes of their arrival. The photographs were taken without moving the bag or the gun. After the photographs were taken of the gun and the bag, D.C. Jeff Johnston made the gun safe and seized the gun.
Examination of the Body and the Location of Soot
[128] Dr. Evans testified that in his initial examination upon arrival at the scene, he would have checked to see whether the body was hot or cold and he would have moved the arm to check for rigor mortis. Dr. Evans also testified that it was only after the FIS later arrived and took photographs that he examined the deceased.
[129] Dr. Evans remembered that the deceased was wearing shorts, socks and a t-shirt. He made no note of the colours. He noted bleeding from the left eye and nostrils. He saw no other injuries. The left eye was absent.
[130] Dr. Evans testified that he assumed that the wound was a gunshot wound. He testified that he saw no exit wound.
[131] Dr. Evans noted what appeared to be soot on the pillow where the deceased was lying. He also remembered noting some soot on the deceased, although he did not put this in his report. Dr. Evans was asked whether there was soot on both of the deceased’s hands or just one. He testified that he believed there was soot on only one hand and that it was the deceased’s left hand. The photographs and the evidence of the pathologist indicate that there was soot on the back of the right hand of the deceased.
[132] Several photographs were taken of the head and upper body of the deceased and the wound to his eye. Photographs were taken of the pillow and the soot-like stain on the pillow. The position of the body on the bed and the position of the blankets at the time of the arrival of the FIS are also depicted in the photographs.
[133] D.C. Jeff Johnston testified that they did not seize the pillow which was under the deceased and which appeared to have a soot-like stain on the pillow case. They did not take any measurements of the pillow, the location of the head of the deceased on the pillow or the location of the soot marks on the pillow. D.C. Johnston agreed that they did not seize the bag upon which the firearm was resting nor did they look into the bag. Neither did they seize the blankets from the bed.
[134] After leaving the scene, D.C. Jeff Johnston and D.C. Linley went back to FIS and took more photographs. D.C. Johnston took swabs from the gun for DNA testing.
[135] D.C. Sutherland, who was qualified as an expert to give evidence on the operation of the revolver that killed Wayne Millard, testified that the revolver would have discharged GSR from the muzzle and from the cylinder gap. The cylinder gap is a small gap between the barrel and the cylinder. The GSR would be dispersed from the cylinder gap to the right and left of the barrel. It would likely have been visible.
[136] During his testimony, D.C. Sutherland was shown a photograph of a blanket that was near the foot of the bed. There was an apparent blood stain on the blanket. All of the blood from the wound was otherwise observed in the area around Wayne Millard’s head.
Pathology Evidence
[137] Dr. Jayantha Herath was the forensic pathologist who performed the autopsy on Wayne Millard. He was qualified to give expert opinion evidence in the area of forensic pathology. Dr. Herath testified that death was caused by the gunshot wound to Wayne Millard’s head. The entrance to the wound was on the medial angle of the left eye or close to the nose. The upper and lower lids were lacerated, suggesting that the eye was closed when the shot was fired. There was an oval shaped deposit of soot around the entrance wound. This would be consistent with the gun partially touching the eye or being within one centimeter of the eye when it was fired.
[138] Dr. Herath testified that the bullet passed through the eye, eye globe and orbit and passed into the brain. It passed through the dura, the left frontal lobe, crossed the midline and ended at the right parietal lobe of the brain. The bullet was recovered from the right parietal lobe of the brain. The bullet was deformed at the tip. Dr. Herath testified that the bullet appeared to have travelled in a straight line, but that it may have deviated somewhat. The trajectory of the bullet was from the left to right and backwards.
[139] Dr. Herath observed punctate abrasions on the back of Mr. Millard’s right forearm in a 16 cm by 6 cm area and on the front of his left upper arm in a 7cm by 6 cm area. These injuries could be caused by partially burnt gunpowder. The abrasions could also have been caused by something other than gunpowder and Dr. Herath could not say when the abrasions were sustained.
[140] Dr. Herath observed lividity on the body that was consistent with Wayne Millard being in the position shown in the scene photographs: on his left side with his right hand under the left side of his face and the left arm under the right arm and extended with the palm up.
[141] The coroner, Dr. Evans, expressed the opinion that the death of Wayne Millard was suicide. He based this opinion on his observations of the scene and his consideration of the autopsy and toxicology reports.
Conclusions with Respect to the Physical Evidence
[142] In its totality, the evidence of the witnesses who attended the scene and of the photographs of the scene leads me to conclude that the scene of the shooting was disturbed by the first responders. The blankets may have been moved three times: once by the paramedic and twice by Dr. Evans. Based on the blood stain on the blanket that was nearer to the foot of the bed I infer that there was, at the time that the gun was discharged, a blanket in the area near Wayne Millard’s head that was subsequently pulled down. The bag with the gun on it was moved before the arrival of the FIS to take photographs.
[143] Revolvers disperse GSR from the muzzle and from the cylinder gap. Although no chemical testing was conducted, it is reasonable to infer that the soot mark on the pillow, on the back of the right hand of Wayne Millard and around the wound to his eye was GSR. The absence of visible GSR on the left hand of Wayne Millard by the time the FIS arrived or at the time of the autopsy does not mean that there was no visible GSR on his hand before the scene was disturbed.
[144] The precise position of the gun when it fired the shot that killed Wayne Millard cannot be determined from the physical evidence or injuries. The physical evidence and the evidence of the injuries leads only to the fairly obvious inferences that the muzzle of the gun was near Wayne Millard’s eye when it was fired in order to deposit soot around the wound; that the gun was on or near the pillow when it was fired in order to deposit soot on the pillow; and that the gun was on or near the back of Wayne Millard’s right hand in order to deposit soot on the back of his right hand.
[145] The physical evidence supports the inference that Wayne Millard was in the position shown in the photographs when the shot was fired. This is consistent with the lividity, the deposit of GSR on his right hand and the punctate abrasions on the back of his right forearm. The punctate abrasions on his left forearm suggest that the front of his left arm was facing the gun when the shot was fired. The physical evidence is obviously consistent with someone entering the bedroom and firing the shot into Wayne Millard’s eye as he slept. The physical evidence and injuries are also consistent with Wayne Millard inflicting the wound by pulling the trigger of the gun himself with a finger or thumb of his left hand as he lay on his side in the bed. The position would be awkward but possible.
The Gun that Killed Wayne Millard
[146] I will now review the evidence relating to the gun that killed Wayne Millard, including Dellen Millard’s statements concerning the gun and the evidence connecting Dellen Millard to the gun.
[147] Dellen Millard told the police that he believed that his father had given away his guns years prior to his death. Bruce Finn, who was a firearms officer with the Toronto Police Service in 2010, testified that he attended at Wayne Millard’s house on December 2, 2010 pursuant to a request to pick up guns from Mr. Millard. One of the guns that Wayne Millard owned had become a prohibited firearm and had to be given to the police. Wayne Millard also gave them four other guns that he no longer wanted. All of the guns had been registered.
[148] The gun that fired the shot that killed Wayne Millard was a .32 calibre Smith and Wesson revolver with a wooden handle.
[149] Detective Sergeant Kenneth James Falconer, a computer forensic analyst, testified that he was able to extract from the computer seized from the Millard home, back-up records for an iPhone identified as “Dell’s iPhone” with the telephone number “647-892-3355”. In the extracted back-up data is a series of messages between that telephone number and a person identified as “Isho” with a telephone number of 647-704-8614. The messages were exchanged on July 1st, 2nd and 3rd, 2012. The content of the messages is as follows:
From Isho (8:14 p.m., July 1st): “.32 but it’s a really nice nice compact piece I’m sure ud like it.”
To Isho (5:48 p.m., July 2): “7:30”
From Isho (7:48 p.m., July 2): “OK its here wanna get her out lol. Paranoid my girl’s gonna come home.”
From Isho (8:07 p.m., July 2): “Keep that on a low.”
From Isho (8:58 p.m., July 2): “Hey might get them today. But its gonna cost a lil. Thayve been prohibited for 30yrs here now. So u got a very rar thing lucky u. Won’t be like last time thow. Ill let u know soon.”
From Isho (9:00 p.m., July 2): “Thay said thay gonna tell me how much in 5mins then ill tell ya. Don’t think its gonna be much thow.”
From Isho (2:56 p.m., July 3): “If all goes as planned u will have domes tonight for the 500 we agreed. Ur actn like there’s a prob when there’s not. So just stop.”
From Isho (3:24 p.m., July 3): “OK so dude got back to me he was upset but he’s taking 23.”
From Isho (3:24 p.m., July 3): “Lol”
From Dell’s iphone to Isho: (6:19 p.m., July 3): “Tru my bad, shits been more hectic than usual. That’s great news! It says ‘32 long’ on the side of it. Can send pic as soon as I’m home.”
[150] On the side of the revolver barrel of the gun that killed Wayne Millard is written “32 Long CTC”.
[151] The content of each of the above messages was deleted from the phone. Det. Sgt. Falconer testified that some deleted messages may be retrieved while others may not be available because they have been overwritten. He agreed that the apparent dialogue between “Dell’s iPhone” and “Isho” may not be complete. I recognize that the messages may not represent the entire conversation and that some context may be missing as a result.
[152] Celltower records show that on July 2, 2012 the cellphones used by Isho and Dellen Millard moved from different locations to converge near 289 The Kingsway just after 8:00 p.m.
[153] Marlena Meneses was Mark Smich’s girlfriend in 2012. She met Mr. Smich early in 2012. She moved in with him about two months later. Her relationship with Mr. Smich ended in May 2013 when he was arrested.
[154] Mark Smich was a very close friend of Dellen Millard. Ms. Meneses met Dellen Millard a few weeks after moving in with Mr. Smich. During the time that she was seeing Mr. Smich, she and Mr. Smich often went to Dellen Millard's house and Dellen Millard often came to Mark Smich's house.
[155] Ms. Meneses testified that she met a person named "Isho". Isho was short, chubby and had tattoos from head to toe. She met him a few times, always with Dellen Millard and Mark Smich. When they went to Isho's house, Dellen Millard would drive them and they would hang out there.
[156] Marlena Meneses testified that she saw Dellen Millard with a gun at his house. She described it as a ‘Western looking’ gun with a wooden handle and a metal tube. She, Mark Smich and Dellen Millard were at the Millard house when she saw this gun. Mark Smich and Ms. Meneses had been downstairs and went upstairs to find Dellen Millard, who was in his bedroom. She saw the gun on his bed. It seemed to her that he was moving it from one place to another. She asked him why he had it and he said he had it for himself. Ms. Meneses testified that this occurred sometime before Wayne Millard died, but she did not remember how long before.
[157] Ms. Meneses testified in her examination-in-chief that she had not seen the gun before that day and could not remember seeing it after that day. She testified in her examination-in-chief that she did not remember seeing the gun anywhere else.
[158] In cross-examination, Ms. Meneses agreed that she had lied under oath many times. It was put to Ms. Meneses that she had fired the gun that she described on a previous occasion. Ms. Meneses disagreed. She was taken to her testimony at the trial of Dellen Millard for the murder of Laura Babcock. In that trial, she testified that she had fired a gun at the farm. Ms. Meneses explained that it was a black gun that she fired at the farm and not the Smith and Wesson revolver. She was again taken to her testimony at the Laura Babcock trial where she said she had fired an "old school gun". She agreed that the Smith and Wesson with the wooden grip was what she would call an “old-school gun” and that she had only ever seen one “old-school gun”. She testified that she had been confused by the questions at the Laura Babcock trial.
[159] Ms. Meneses agreed that in her May 22, 2013 statement to the Hamilton police, when asked about a gun, she told them that she didn't really know if Mr. Millard and Mr. Smich had a gun. She agreed that this was a lie. She agreed that she was under oath at the time.
[160] Ms. Meneses agreed that in subsequent statements to the police, she did not tell them that she had held and fired a gun. She testified that this was because she was not asked. She was taken to a portion of her statement made to the police in June of 2013 where she was asked, "Did you hold it?" and she said, "No." She testified that she "forgot". It was not until the Laura Babcock trial that she said she had held and fired a gun.
[161] I have carefully considered the credibility and reliability of Ms. Meneses’ testimony. Ms. Meneses, at the time of the events in question, was using alcohol and drugs. Her ability to recall events accurately and in detail would have been impacted by her use of alcohol and drugs. Ms. Meneses has engaged in criminal activity in the past. She admitted to assisting Mark Smich in trafficking drugs. She admitted to lying under oath numerous times in the past. Given Ms. Meneses’ past criminal conduct and her past lies under oath, I have looked for confirmatory evidence independent of Ms. Meneses before relying on her testimony.
[162] In considering Ms. Meneses’ testimony regarding Dellen Millard’s connection to the gun that killed his father, I find confirmation for Ms. Meneses’ evidence that she saw Dellen Millard with a western style gun with a wooden handle. There is confirmation for this aspect of her evidence by the evidence of the text messages to and from Isho that were retrieved from Dellen Millard’s computer and by the evidence that Dellen Millard’s DNA was found on the gun.
[163] The report and testimony of Mr. Brian Peck, a scientist at the Centre for Forensic Sciences (“CFS”), indicate that when the swab taken from the grip of the revolver was analyzed, DNA from two individuals was located. Only one profile suitable for comparison could be developed. Wayne Millard was excluded as the source of the DNA profile that was suitable for comparison. Dellen Millard could not be excluded as the source of that DNA. The Random Match Probability or the probability that a randomly selected individual unrelated to the person in question would coincidentally share the DNA profile was 1 in 5 quadrillion.
[164] Mr. Peck agreed that DNA can be transferred between people and between items. He agreed that he could not say whether DNA from Dellen Millard was deposited on the grip of the gun as a result of Dellen Millard handling the gun or because of secondary or even tertiary transfer of cells.
[165] I have considered the evidence that DNA can be transferred and that the presence of the DNA in itself does not mean that Dellen Millard handled the gun. I have considered the evidence that text messages between Dellen Millard and Isho may be missing and that the whole dialogue cannot be assumed to be contained in the messages retrieved. Viewed as a whole and cumulatively however, the evidence of the text messages between Dellen Millard’s phone and Isho, the testimony of Marlena Meneses and the DNA evidence leads to the inference that Dellen Millard purchased and possessed the gun that killed Wayne Millard. Based on the totality of the evidence with respect to the gun, I find that Dellen Millard purchased the revolver that killed Wayne Millard in July of 2012 and that he possessed the gun during the months before Wayne Millard’s death. This is the only reasonable inference from this evidence.
Dellen Millard’s Movements on November 28 and 29, 2012
[166] I will now review the evidence of Dellen Millard’s words and conduct on November 28th and 29th 2012.
Phones Registered to Dellen Millard
[167] Phone records filed in this trial show that Dellen Millard had five phones registered in his name in November of 2012. Detailed records for two of the phones were filed as evidence of Dellen Millard’s movements on November 28 and 29, 2012. Those two numbers are “647-892-3355” and “647-501-7151”.
[168] As I have already indicated in the context of the messages to and from Isho, the extraction of data from the computer in the Millard home produced records and messages related to a phone identified on the computer as “Dell’s iPhone” with a number of 647-892-3355. This phone was clearly being used by Dellen Millard in 2012 and up until early December 2012. Several of the messages retrieved contain messages such as ‘it’s Dell’.
[169] There are no calls or messages to or from this number in the phone records after December 5, 2012. The extraction report with respect to the back-up of the phone on Dellen Millard’s computer shows a change to a contact on January 19, 2013, but no activity after that date.
[170] Also on the computer, was back-up data for a phone identified as “Andrew’s iPhone”. Messages were retrieved that were sent between “Andrew’s iPhone” and the 647-501-7151 number which is identified on “Andrew’s iPhone” as a number for “DellenMillard”. On January 15, 2013 there is a message from Andrew’s iPhone asking: “Is your other number done or still just I message?” 647-501-7151 responds: “other one’s malfunctioning”.
[171] Robert Burns, Dellen Millard’s uncle, testified that in the Spring of 2013 he received a message from his office to call Dellen Millard. The number he was given was 647-501-7151. When he called the number Dellen Millard answered the call.
[172] Exhibit 11(b) sets out subscriber information for numbers that placed calls to or were called by 647-892-3355. One of the numbers that called the phone was 416-621-1492. The records indicate that this number was registered to Dellen Millard. It was activated on January 27, 2009 and deactivated on February 1, 2013. There is no indication as to who was using that telephone number. The extraction report (Exhibit 17) shows a message from 647-892-3355 to 416-621-1492 on November 9, 2011 that says, “I have Pedo –Dell”. Given the content of that message, I infer that the telephone number 416-621-1492 was not being used by Dellen Millard, at least at that point in time.
[173] Another number that was registered to Dellen Millard was 647-531-2521. This number was activated on December 6, 2011. The number is listed in the contacts for Dellen Millard’s iPhone as being associated with the MillardAir office.
[174] The telephone number 416-829-9372 was also registered to Dellen Millard. It was activated on January 22, 2012 and deactivated on February 1, 2013. This is the telephone used by Mark Smich. Exhibit 17, the extraction report from the computer back-up of Dellen Millard’s telephone, contains numerous communications between Dellen Millard’s number 647-892-3355 and 416-829-9372. The messages are attributed to ‘Say10’ – a name used by Mark Smich.
[175] Therefore, although there were five telephones registered to Dellen Millard in 2012, only two of those phones were being used by Dellen Millard: 647-892-3355 and 647-501-7151. 647-892-3355 was being used by Dellen Millard throughout 2012 up to December of that year. 647-501-7151 was activated on November 1, 2012 and used by Dellen Millard into the Spring of 2013.
Phone and Credit Card Records for November 28 and 29, 2012
[176] One of Dellen Millard’s cellular telephones (647-501-7151) used a cell tower in Oakville at 1:02 a.m. on November 29, 2012 to make a call to a taxi company. The same telephone, at 6:10 to 6:11 a.m. on the 29th, used a cell tower close to 5 Maplegate Court to call a different taxi company.
[177] A taxi driver, Mr. Singh, testified that he worked the 5:00 a.m. to 5:00 p.m. shift in the Etobicoke area in November 2012. Mr. Singh testified that when he was dispatched to pick up a fare and the fare was not at the expected location his practice was to call the company and then to call the fare. Mr. Singh’s cellular phone used a cell tower in Etobicoke, a short distance from 5 Maplegate Court, to place a call to the phone registered to 647-501-7151 at 6:15 a.m. on November 29, 2012. Two minutes before that call, Mr. Singh’s phone had called the taxi company for whom he worked.
[178] The 647-892-3355 telephone called Pizza Pizza from Oakville at 12:36 a.m. on the 29th of November using a cell tower in Oakville, near the home of Mark Smich.
[179] Dellen Millard’s credit card was used to pay for a charge of $27.50 to Pizza Pizza in Oakville on November 29, 2012. A review of the cellular telephone records for 647-892-3355 from the middle of May to late December 2012 shows that the telephone called Pizza Pizza 31 times. Only on November 29, 2012 was the call to Pizza Pizza made from Oakville.
Testimony of Marlena Meneses
[180] Ms. Meneses testified that she found out from Mark Smich that Dellen Millard's father had died. The last time that she saw Dellen Millard before learning of his father's death, Dellen Millard came to Mark Smich's house at 1081 Montrose Abbey Drive in Oakville. Dellen Millard said that he had a date that night. He came to the house in the afternoon and hung out with Mr. Smich and Ms. Meneses. His dog, Pedo, was with him. The three of them drank alcohol. Dellen Millard had driven to the Smich house in his GMC truck. Ms. Meneses said that she smoked some marijuana that night. She did not smoke "that much" and she said she was "pretty stable". That evening, she, Mr. Smich and Dellen Millard had dinner together. Mark Smich's mother made food for them.
[181] Ms. Meneses testified that at around 9:00 p.m. she and Mr. Smich walked Dellen Millard to a corner store. It was dark outside. The corner store was about a 10-minute walk from Mark Smich's house. Dellen Millard told them that he was getting picked up from there. He said he was going on a date with someone other than his girlfriend, Christina. Before he left on the date he said that he would be coming back.
[182] Ms. Meneses and Mark Smich walked back to Mark Smich's house. About ten minutes after they got back, they ordered a pizza. They paid for it with a credit or debit card that Dellen Millard had left at the house. Ms. Meneses said that Mark Smich and Dellen Millard had had a discussion about using the card before Dellen left that evening. Mark had asked to use it.
[183] Ms. Meneses testified that Dellen Millard had two phones on the night of the date. He left one phone at the house and took the other phone with him.
[184] Ms. Meneses testified that one of Dellen Millard’s phones was an iPhone and one was a Samsung. Both were white. She recalled that she noticed one phone in Mark Smich’s bedroom after Mr. Millard had left. She thought that it might be a birthday present for her. Her birthday was in late February. She recalled that the phone that was left behind was the Samsung.
[185] After they ate the pizza, Ms. Meneses and Mark Smich watched movies and then fell asleep. Ms. Meneses testified that she woke up and Dellen Millard was standing over them. He said he was back from his date. It was still dark outside. She gave him a blanket and pillow and he slept on the floor.
[186] Ms. Meneses testified that Dellen Millard had never slept over at Mark Smich's house before that night, to her knowledge. She and Mr. Smich had never walked him to the store before. He had never left his credit card for them to order pizza before. She had never seen him with two phones before.
[187] The next day, the three of them ate breakfast, hung out and went out to eat. After they went out to eat, Dellen Millard drove Mark Smich and Ms. Meneses back to Mark Smich's house and Dellen Millard left. She did not see Dellen Millard again for some period of time. During the intervening time, she learned that his father had died.
[188] Ms. Meneses agreed that in 2012 she drank and used a lot of drugs. She used cocaine in 2012 and sometimes used too much cocaine, although she said she was not addicted to cocaine. In the spring of 2012, Mark Smich was not working, but was selling drugs. Ms. Meneses was not working and had dropped out of school. When she was living with Mr. Smich, she participated in the drug dealing. She got a job in late 2012 or early 2013. When she had the job, she stopped drinking and doing drugs.
[189] As I have already indicated, Ms. Meneses agreed that she had lied under oath numerous times. She testified that she always corrected her false statements. She testified that she lied in sworn statements to the police because she was young at the time and was scared.
[190] Counsel for Mr. Millard argued that Ms. Meneses was neither credible nor reliable in her account of the night she described. He also argued that even if some of the events occurred as described by Ms. Meneses, they likely occurred at some time other than November 29, 2012.
[191] There are inconsistencies between Ms. Meneses’ testimony at trial and her earlier statements. There are also inconsistencies between Ms. Meneses’ account of some of the details of the events and the other evidence in the trial. I will now review some of those inconsistencies.
[192] Ms. Meneses testified that Dellen Millard came to the Smich house in the afternoon of November 28th and then had dinner with them. Mark Smich’s mother made them dinner. In an earlier statement she said that Mr. Millard arrived and had lunch with them.
[193] Ms. Meneses said that Dellen Millard’s dog was with him, but in an earlier statement she said that the dog was not with him.
[194] Ms. Meneses testified that Dellen Millard was wearing a leather jacket when he left on his date but in an earlier statement she said that he wore jeans and a t-shirt.
[195] Although Ms. Meneses testified that the night that she described occurred shortly before she learned of Wayne Millard’s death, Ms. Meneses testified that when she saw Mr. Millard’s phone in Mr. Smich’s bedroom she thought that it could be a present for her birthday. Her birthday was in February and Wayne Millard died at the end of November.
[196] Ms. Meneses testified that it was not Dellen Millard’s iPhone that was left at the house. Phone records show that it was the iPhone that called for the pizza on November 29th and the other phone associated with Dellen Millard that called for the taxi.
[197] Ms. Meneses recalled that Dellen Millard left Mark Smich’s house at around 9:00 p.m. and that she and Mr. Smich ordered a pizza ten minutes after returning to Mr. Smich’s home. Phone records show that the pizza was ordered with one phone in Oakville at 12:36 a.m. and the taxi was called by the other phone in Oakville at 1:02 a.m.
[198] Ms. Meneses testified that she woke up hours after Dellen Millard left on his date and that Dellen Millard was standing over her and Mr. Smich, saying that he was back from his date. In an earlier statement Ms. Meneses said that she saw Dellen Millard asleep on the floor when she woke up and wondered why he did not wake them so that she could have given him a pillow and blanket.
[199] Ms. Meneses testified in her examination in chief that she learned of Wayne Millard’s death a long time after the night of the date. After refreshing her memory, she testified that she learned of the death of Wayne Millard a few days after the night of the date. Under cross-examination she said that it was more than a few days later that she learned of the death and ‘maybe a week’. She was taken to her statement to the police on June 13, 2013 in which she said, “…like I didn’t know his dad dies like two weeks, like till a week after. But I saw him after his dad died but I didn’t know anything.” Ms. Meneses testified that she later remembered that she had learned of Wayne Millard’s death from Mark Smich before she next saw Dellen Millard. She testified that it was over a week after the night of the date before she next saw Dellen Millard.
[200] Ms. Meneses recalled that during the day on the 29th of November she and Mark Smich and Dellen Millard had breakfast, went out to eat and then Mr. Millard dropped her and Mark Smich at Mark Smich’s house. Records show that Dellen Millard’s phone moved from the area of the Millard hangar in Waterloo to the area of the Smich house at 4:59 p.m. on November 29th before moving to the area of 5 Maplegate Court. This appears to support the inference that Mark Smich went to the hangar with Dellen Millard on the 29th. Dellen Millard told the police that Mr. Smich went with him to the hangar and that he dropped Mr. Smich off in Oakville later.
[201] As I explained in relation to Ms. Meneses’ testimony regarding the revolver, given Ms. Meneses’ past criminal conduct and her past lies under oath, I have looked for confirmatory evidence independent of Ms. Meneses before relying on her testimony. Having done so, I find that the central aspects of her account are supported by other evidence.
[202] I have considered the inconsistencies in parts of Ms. Meneses’ evidence. I find that with respect to some of the details of the events her memory may be unclear or mistaken. Almost six years have passed since the night that Ms. Meneses described. I find that her recollection of details is imperfect. In particular, her assessment of the time of the day or night that events occurred is not reliable. As Ms. Meneses testified, at this point in her life, her days were unstructured. She was not working or attending school.
[203] Ms. Meneses’ inconsistency with respect to the timing and peripheral details of her interaction with Mr. Millard does not detract from the reliability of her evidence on the central aspects of the events and the sequence of events which is confirmed by other evidence.
[204] Ms. Meneses testified that Dellen Millard left one phone at the Smich residence and took another phone with him on the same night that he left a credit or debit card for Mr. Smich to order a pizza. Cell phone and credit card records support this account. One phone registered to Dellen Millard and used regularly by him in November 2012 (647-892-3355) was in Oakville at 12:36 a.m. on November 29th and used to call for a pizza. Dellen Millard’s credit card paid for a pizza. Another phone registered to Dellen Millard (647-501-7151) was used a short distance away at 1:02 a.m. and then again in Etobicoke at 6:10 a.m.
[205] Ms. Meneses testified that Dellen Millard left Mark Smich’s house on foot, leaving his truck at the house. The cellphone records support this account. The 647-501-7151 number was used to call taxis in Oakville and Etobicoke.
[206] It would defy logic and common sense to conclude that Ms. Meneses concocted the story or conflated events from other evenings and that her concocted or conflated account by coincidence was consistent with cell tower and credit card records for the morning of Wayne Millard’s death.
[207] I accept Ms. Meneses’ account of Dellen Millard’s words and conduct on the night that she described. I also accept Ms. Meneses’ evidence that Mr. Millard’s conduct on the night that he left and returned to Mark Smich’s house was unusual. Although they spent a great deal of time together, Mr. Millard had never, to Ms. Meneses’ knowledge, slept overnight at Mark Smich’s house. He had never previously left a credit card for the use of Mr. Smich and Ms. Meneses. She had not, before that night, seen him with two phones. The support for the account of Ms. Meneses from the telephone records and credit card records gives me confidence in her evidence that Dellen Millard left the house and returned hours later on a night shortly before Ms. Meneses learned of Wayne Millard’s death. The records situate that date on November 29, 2012.
[208] The cell tower evidence supports the inference that Dellen Millard’s phone was in the area of 5 Maplegate Court in the early morning hours before Wayne Millard’s body was found. I have considered this evidence in conjunction with the evidence of Ms. Meneses and the evidence of Mr. Singh and I infer that Dellen Millard was in the area of 5 Maplegate Court in the early morning of November 29th 2012.
Statements to the Police
[209] I will now review the evidence of Dellen Millard’s statements to the police. It was conceded that the statements of Dellen Millard at the scene and the video statement taken later at the police station were made voluntarily and were admissible. After the gun was located in Wayne Millard’s bedroom, Sgt. Nimmo told Dellen Millard that a gun had been located. Sgt. Nimmo testified that Dellen Millard asked, “Is it a revolver?” P.C. Bevilacqua spoke to Dellen Millard about whether there were other guns in the house. Dellen Millard advised P.C. Bevilacqua that there might be a bag with a firearm in the basement.
[210] In his video statement to the police in the early morning hours of November 30, 2018, Dellen Millard was asked, “did you stay at the house on Wednesday night?” He replied, “Mark’s house, yeah.” The detective then said, “Oh? Is that Mark, your friend?” and Dellen Millard answered, “Yeah.” The detective went on to ask about the location of Mark’s house in Oakville.
[211] At another point in the statement Detective Hutcheon asked, “Okay so to your understanding your dad didn’t have any guns left.” Dellen Millard replied, “No, I didn’t think so.”
[212] The Crown relied on two aspects of the statement of Dellen Millard to the police as circumstantial evidence of guilt. In his statement, Dellen Millard told the police that he stayed at Mark Smich’s house the night before his father died. He also said that he was not aware of his father having any other guns in the house. The Crown submitted that the statements were false and that there is independent evidence of fabrication. Independent evidence of fabrication means evidence independent of proof of the crime.[^14]
[213] Because the statement by Mr. Millard that he stayed at Mark Smich’s house, is, on its face exculpatory, the first step in the approach to the statement is to determine whether I believe that statement or have a reasonable doubt about the truthfulness of it.[^15] If I believe the statement, I must acquit Mr. Millard; if I do not believe the statement but am left in a reasonable doubt by it, I must acquit Mr. Millard.
[214] If I find an evidentiary basis to infer that Mr. Millard concocted or fabricated the statement, then I may use that finding, together with the other evidence in the case, in determining if the Crown has proven the case beyond a reasonable doubt.[^16]
[215] As I have already explained, there must be independent evidence of fabrication or concoction before a statement of the accused can be used as circumstantial evidence of guilt. Mere disbelief of the statement is not sufficient. Evidence of falsity is not evidence of fabrication. If I merely conclude that the statement of Mr. Millard was false but not that it was fabricated, I must disregard the statement and determine if the Crown has proven guilt beyond a reasonable doubt on the rest of the evidence.[^17]
[216] Even if I find an evidentiary basis to infer that the statement was fabricated, I must consider the inferences that are available for me to draw from the evidence, including that Mr. Millard told the lie or fabricated the statement for a reason other than to avoid detection of his involvement in the death of his father.
[217] I will first address Mr. Millard’s failure to be fully forthcoming about having a gun in the house which he had previously purchased. I have found that the revolver that killed Wayne Millard was purchased and possessed by Dellen Millard. I find that Dellen Millard’s failure to fully disclose the presence of a gun that he had purchased to the police is of no probative value. Dellen Millard was not under an obligation to tell the police that he had an illegal handgun. His failure to tell the police about the gun is equally consistent with concealing illegal possession of a gun as it is with involvement in the killing. Moreover, the evidence of Dellen Millard’s statements to the police at the scene, that there might be a gun in a bag and asking if the gun in his father’s room was a revolver, are evidence of an attempt to provide information to the police about the presence of a gun and Dellen Millard’s familiarity with the gun. There is no evidence of fabrication or concoction with respect to Dellen Millard’s statement that his father got rid of the guns in the house.
[218] I will now address the statement to the police that he ‘stayed’ at Mark Smich’s house the night of the 28th to 29th of November.
[219] I do not believe the statement of Dellen Millard, that he stayed at Mark Smich’s house the night of November 28th to 29th, 2012. I find that it was fabricated to conceal his involvement in the death of his father. As I have already explained, I find that Dellen Millard left Mark Smich’s house in the early morning of November 29th and travelled to the area of 5 Maplegate. I find that he did so after taking steps to establish an alibi in advance of leaving the Smich house. There is, in my view, no other reasonable inference to be drawn from the evidence. The independent evidence of concoction consists of Mr. Millard’s conduct in setting up the false alibi by leaving his truck, one of his phones and his credit card at the Smich residence and his conduct after the police interview when he sent a message to Mark Smich indicating that he had given the police Mr. Smich’s name.
iv. Reasonable Inferences from all of the Evidence and the Lack of Evidence
[220] As I explained at the beginning of this judgment, because the evidence that points to the guilt of Dellen Millard is wholly circumstantial, I cannot find Dellen Millard guilty unless guilt is the only reasonable inference to be drawn. I must consider any other reasonable possibilities and theories consistent with innocence. In this case, the alternative theory advanced is that Wayne Millard died by suicide.
[221] The evidence of Wayne Millard’s state of mind and the physical evidence at the scene and at autopsy, considered in isolation could support a reasonable inference of suicide. However, when the evidence is considered cumulatively death by suicide is not an available reasonable inference.
[222] In the time period before Wayne Millard’s death Dellen Millard bought and possessed the revolver that killed Wayne Millard. In the hours before his father’s death, Dellen Millard set up a false alibi by leaving his truck, phone and credit card at Mark Smich’s house. He travelled to the area of his father’s house and then returned to Mark Smich’s house hours later. He lied to the police when he told them that he ‘stayed’ at Mark Smich’s house.
[223] I can find no theory consistent with innocence that accounts for Dellen Millard leaving the Smich home and travelling to the area near his father’s home after setting up a false alibi on the day that his father was killed with the gun that Dellen Millard purchased. The only reasonable inference to be drawn from these facts which I find are proven is that Dellen Millard left the Smich home and went to his father’s home where he carried out a planned and deliberate killing of Wayne Millard.
[224] None of the individual facts of the false alibi, the gun purchase and Dellen Millard’s presence near the Millard home in the early morning of November 29, 2012 would, in themselves, support an inference of guilt beyond a reasonable doubt. These individual facts however, viewed cumulatively, support no other conclusion. I have considered the possibility that Dellen Millard concocted the false alibi to conceal some other wrongdoing. This is not a reasonable possibility given his presence near the home of his father and the fact that his gun was used in the killing. To conclude that this constellation of circumstances ‑ the false alibi, Dellen Millard near the Millard home and the use of Dellen Millard’s gun ‑ occurred coincidentally on the day that Wayne Millard was killed would be ‘irrational and fanciful’.
[225] I am satisfied beyond a reasonable doubt that Dellen Millard killed his father by shooting him in the eye as he slept. I am satisfied beyond a reasonable doubt that he planned and deliberated the intentional killing of his father based on the evidence of the steps he took to establish an alibi in advance of the killing. In order to prove guilt beyond a reasonable doubt the Crown need only negative reasonable alternative inferences from the circumstantial evidence. The Crown has met that burden.
v. Conclusion
[226] I find Dellen Millard guilty of the first degree murder of Wayne Millard
M. Forestell J.
Released: September 24, 2018
COURT FILE NO.: CR-16-50000176-0000
DATE: 20180924
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
DELLEN MILLARD
reasons for judgment
Forestell J.
Released: September 24, 2018
[^1]: 2017 ONSC 4392 at paras. 4-7 [^2]: 2016 SCC 33 [^3]: 2017 ONSC 3558 at paras. 9-13 [^4]: 1988 CanLII 8 (SCC), [1988] 2 SCR 345, 44 C.C.C. (3d) 193 [^5]: 2012 ONCA 470 at para. 13 [^6]: R. v. Dodd, 2015 ONCA 286 at para. 84 [^7]: R. v. Graat, 1982 CanLII 33 (SCC), [1982] 2 SCR 819, 1982 CarswellOnt 101 at para. 46 [^8]: [1998] 2 S.C.R. 72, 1998 CanLII 789 (SCC) at paras. 21-22 [^9]: 2013 ONCA 70 at para. 55 [^10]: 2016 63 C.L.Q. 276 at p 47; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433 at p. 77 [^11]: R. v. O’Connor, 2002 CanLII 3540 (ON CA), [2002] O.J. No. 4410 (C.A.), 170 C.C.C. (3d) 365 at para. 19 (Ont. C.A.) [^12]: 2016 NBCA 58 at para. 9, leave to appeal refused, [2016] S.C.C.A. No. 188 (S.C.C.) [^13]: Although Dr. Evans was not formally qualified to give opinion evidence at the time of his testimony, it was agreed by both parties when I inquired on July 19, 2018, that Dr. Evans should be permitted to give opinion evidence. I considered the evidence of his qualifications and experience and agreed that he should be so qualified. [^14]: R. v. Jones, 2006 CanLII 28086 (ON CA), [2006] O.J. No. 3315, 81 O.R. (3d) 481 at para 6 [^15]: R. v. Parrington, 1985 CanLII 3610 (ON CA), [1985] O.J. No. 1135, 20 C.C.C. (3d) 184 (Ont. C.A.) [^16]: O’Connor, supra, note 12, at paras. 35-37 [^17]: Ibid.; R. v. Laliberte, 2016 SCC 17 at para 3