Court File and Parties

COURT FILE NO.: 3283/08

DATE: 2021-03-18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Michael Durant

BEFORE: G. E. Taylor

COUNSEL: Andrew Sabbadini and Kevin Kim, for the Crown Joseph Wilkinson, for Michael Durant

HEARD: January 19, 20 and 21, 2021 by video conference

Endorsement

Admissibility of Statements of Dennis Miljour

Introduction

[1] Michael Durant is charged with first degree murder. There is an order that the deceased be only identified by the initials “C.C.”. Dennis Miljour was with C.C. on the last day she was seen alive. He gave a videotaped statement to the Niagara Regional Police on January 26, 2006. Dennis Miljour died in August 2006. The Crown seeks to introduce Dennis Miljour’s video statement at Michael Durant’s trial as proof of the truth of its contents. The Crown relies on the principled exception to the rule which excludes hearsay evidence. If the statement is not admitted in its entirety, the Crown then seeks that portions of the statement be admitted pursuant to the state of mind or narrative traditional exceptions to the hearsay rule.

Principled Exception

Evidence

[2] C.C. was last seen alive in the early morning hours of December 5, 2005. Her body was found on January 24, 2006. C.C. was last seen in the vicinity of Michael Durant’s apartment on Queen Street in Niagara Falls and there is some evidence that she was last seen entering that apartment. Dennis Miljour was with C.C. on the night she went missing.

[3] Dennis Miljour was interviewed by the police on January 26, 2006. The interview was audio and video recorded. No oath or affirmation was administered, and Dennis Miljour was not warned of the consequences of making a false statement. Dennis Miljour died in August 2006.

[4] In the statement, Dennis Miljour said that he knew C.C. but did not know her well. They lived in different rooming houses which were close to one another. The last time he saw her was the Sunday night before she went missing.

[5] A person by the name of Greg approached Dennis Miljour and said there was another male person who wanted to meet C.C. He passed this information along and then he and C.C. proceeded to the rooming house where Greg lived. Greg introduced them to Michael Durant, who was the person who wanted to meet C.C. Dennis Miljour identified a photograph of Greg Moore as the Greg who introduced them to Michael Durant.

[6] C.C. did not feel comfortable going alone with Michael Durant so Dennis Miljour went with them to Michael Durant’s storefront apartment on Queen Street in Niagara Falls. They entered Michael Durant’s apartment and while there consumed some beer and cocaine. Dennis Miljour initially said that the cocaine was supplied by Michael Durant. C.C. and Dennis Miljour left after about 45 minutes and returned to the rooming house where C.C. lived. Greg Moore was riding his bicycle in the vicinity of the storefront apartment, but he did not enter with C.C., Michael Durant and Dennis Miljour.

[7] Jennifer McCrae was a resident of the rooming house where C.C. lived. Dennis Miljour told Jennifer McCrae about he and C.C. consuming drugs and beer at Michael Durant’s apartment. Jennifer McCrae became upset because Michael Durant owed her money. Dennis Miljour took Jennifer McCrae to the store on Queen Street where Michael Durant lived. Jennifer McCrae was kicking at the door to Michael Durant’s apartment and yelling about him owing her money when C.C. returned to the vicinity. Jennifer McCrae and C.C. got into an argument. He said they were screaming at each other. Dennis Miljour and Jennifer McCrae were leaving when he saw C.C. knock on the door and enter Michael Durant’s apartment. That was the last time Dennis Miljour saw her. Greg Moore was also present riding his bicycle, but he did not enter Michael Durant’s apartment.

[8] Dennis Miljour was specifically asked by the interviewing police officer if, on the way to Michael Durant’s apartment, they had stopped to purchase drugs. He denied that they had done so. He said Michael Durant already had the drugs. He subsequently admitted that they had stopped to obtain drugs from a dealer who lived across the street from Michael Durant’s apartment.

[9] Dennis Miljour said he had been drinking on the day in question and at the time he went with C.C. to Michael Durant’s apartment he was “feeling no pain”.

[10] Michael Durant made two statements to the police which have been ruled admissible at trial.

[11] In a statement made on December 11, 2005, Michael Durant said he met C.C. and a male riding a bicycle on Sunday night. He was outside his storefront apartment smoking marijuana. They entered his residence and he shared his marijuana with them. C.C. asked to borrow his cell phone. C.C. offered to provide sexual services for a fee. Michael Durant did not have any money. The male with the bike was present when the offer was made. After using his cell phone, C.C. and the male she was with went into a building which was directly across the road. While they were in the storefront apartment Jennifer McCrae was banging on the door.

[12] Michael Durant thought the name of the male with C. C was Rob. He said Rob lived in a boarding house on Bridge Street with Jennifer McCrae.

[13] In a statement made on July 12, 2006, Michael Durant denied killing C.C. He said that on the last night C.C. was alive he, C.C. and Dennis Miljour went to Al Saunders apartment where they smoked cocaine. Michael Durant said he purchased $80 worth of cocaine which they took back to the storefront apartment to share. Michael Durant said he provided the other two with beer, but he denied consuming any cocaine. He said C.C. made sexual advances to him but he did not have sex with her. Michael Durant said he gave C.C. a red velvet curtain which was in his apartment. Dennis Miljour carried the curtain when they exited the apartment. Michael Durant denied that C.C. returned to his storefront apartment after she had left with Dennis Miljour.

[14] Greg Moore testified previously that he met Michael Durant when he came to the rooming house looking for crack cocaine. Michael Durant gave him $160 and he went to the rooming house where Jennifer McCrae lived and acquired the crack cocaine. They consumed drugs at Greg Moore’s rooming house for about 45 minutes. They then went to a bar. Michael Durant said he was looking for some female companionship for the night.

[15] Greg Moore testified that when he was picking up the cocaine at Jennifer McCrae’s rooming house, he mentioned that he was with a person who was looking for a female companion. When they returned to the rooming house after attending at the bar, C.C. and another person arrived. He knew this other person as Dennis or Jim. Dennis or Jim and C.C. left with Michael Durant.

[16] Greg Moore said he knew where Michael Durant lived because they had stopped there briefly on the way to the bar. After C.C. and Michael Durant departed the rooming house, he decided to go to Michael Durant’s apartment. His intention was to obtain more cocaine if Michael Durant wanted some. When he arrived, Jennifer McCrae was kicking and punching at the front window of Michael Durant’s storefront apartment because he owed her money. He walked around to the back door and there was no answer when he knocked.

[17] When Greg Moore returned to the front of the store where Michael Durant was living, the person who lived in the same boarding house as Jennifer McCrae was hiding behind the corner of the building. He had not seen him before on that evening. That person was not Dennis Miljour. While Jennifer McCrae was pounding at the window, C.C. arrived in the vicinity. He had a brief conversation with C.C. Jennifer McCrae’s friend said they should leave, and they did.

[18] After Jennifer McCrae and her friend left, he went to the back door of Michael Durant’s apartment. He heard someone being let in through the front door. He heard some talking. He heard someone yell two or three times and then he heard the sound of someone being struck in the neck or chest. There were no more yells.

[19] Jennifer McCrae testified on a previous occasion that one night in late 2005 she was awakened at 3 a.m. by her friend Dennis Miljour who told her he had been partying with C.C. and a person by the name of Mike. She realized that Mike was Michael Durant who owed her $100. Dennis Miljour took her to Michael Durant’s residence. They were accompanied by Greg Moore. She began knocking on the door of Michael Durant’s residence, but no one answered. She began yelling, demanding that the door be opened.

[20] After she stopped knocking on the door, Jennifer McCrae observed C.C. walking towards Michael Durant’s apartment. As a result of the conversation they had had at the rooming house, Jennifer McCrae said to C.C. that she thought C.C. would not be returning to Michael Durant’s residence. C.C. said she was not there to see Michael Durant and turned away and went behind an apartment building. After C.C. had gone behind the apartment building Jennifer McCrae heard a telephone ringing inside Michael Durant’s residence. As she was leaving, Jennifer McCrae saw C.C. again. Jennifer McCrae testified that she was upset with C.C. and threatened her. C.C. did not reply. C.C. knocked on the door of Michael Durant’s apartment, and when the door was opened, she entered. She did not see C.C. again.

[21] Allan Saunders testified in an earlier proceeding that in December 2005, he lived in an apartment on Queen Street in Niagara Falls with Sanceray Hightower. He knew C.C. He supplied her with drugs from time to time. On December 5, 2005 C.C. telephoned wanting some cocaine. He was asleep at the time. C.C. came to his apartment with two other males, one of whom was Michael Durant. He sold them $60 worth of cocaine and they left. The transaction took approximately four minutes. About an hour later, C.C. returned. She wanted to use his telephone to call the number of the telephone which she had used earlier to call him. C.C. found the telephone number she was looking for, called it and then left. He never saw her again.

[22] Sanceray Hightower testified previously that in November 2005 she moved into an apartment on Queen Street near St. Lawrence Avenue in Niagara Falls. She shared this apartment with Allan Saunders. She testified that in the early morning hours of December 5, 2005, C.C. arrived at the apartment with two males. One of the males purchased cocaine from Allan Saunders. C.C. and the two males left after a few minutes. Later that same morning, about 3 a.m., C.C. returned to the apartment wanting the number of the telephone she had used to call Allan Saunders earlier. Sanceray Hightower found the number in Allan Saunders’ cell phone and called it but there was no answer.

[23] Blood samples were obtained from the back of the riser on the stairs leading to the basement in Michael Durant’s residence at 4670 Queen Street. A DNA profile was developed from those blood samples. When compared to the DNA profile of C.C., the probability that a randomly selected individual, unrelated to C.C., was the source of the DNA from the blood on the stair riser is 1 in 6.8 trillion.

Position of the Crown

[24] The Crown seeks to have Dennis Miljour’s statement to the police admitted as evidence of the truth of its contents at the trial of Michael Durant on the basis of the principled exception to the rule prohibiting the introduction of hearsay evidence. The Crown says that necessity has been made out by the death of Dennis Miljour and that the statement ought to be admitted on the basis of its substantive reliability. Alternatively, the Crown seeks to have portions of Dennis Miljour’s statement to the police ruled admissible on the basis that they are evidence of narrative or of Dennis Miljour’s present state of mind.

Position of the Defence

[25] Michael Durant agrees that the necessity requirement for admissibility of Dennis Miljour’s statement, as required by the principled exception, has been met by reason of Dennis Miljour’s death. However, Michael Durant submits that the statement is inadmissible pursuant to the principled exception because the hearsay dangers, if the statement is admitted, are not negated by either the circumstances of the making of the statement or based on corroborative evidence.

[26] The defence says that some of Dennis Miljour’s statements are admissible as narrative, but not all of them. The defence says none of Dennis Miljour’s utterances are admissible pursuant to the present state of mind exception to the hearsay rule.

Discussion and Analysis

[27] It is by now without controversy that hearsay evidence, although presumptively inadmissible, is admissible on a principled basis if the requirements of necessity and reliability are established. In this case there is no issue with respect to necessity due to the untimely death of Dennis Miljour. The issue is therefore whether the videotaped statement made by Dennis Miljour on January 26, 2006 is sufficiently reliable to be introduced as Dennis Miljour’s testimony at this trial. At the admissibility stage, threshold reliability, as opposed to ultimate reliability, must be established by the proponent of the evidence on a balance of probabilities (R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, paragraphs 47and 50).

[28] In R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, the Supreme Court, when dealing with the admissibility of a prior inconsistent statement, stated at paragraph 30:

However, the K.G.B. indicia are not the only means of establishing threshold reliability. The prior inconsistent statement's threshold reliability may be established by: (1) the presence of adequate substitutes for testing truth and accuracy (procedural reliability); and (2) sufficient circumstantial guarantees of reliability or an inherent trustworthiness (substantive reliability). These two principal ways of showing threshold reliability are not mutually exclusive. [authorities omitted]

[29] The concept of procedural reliability was explained in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865 as follows, at paragraph 28:

Procedural reliability is established when “there are adequate substitutes for testing the evidence”, given that the declarant has not “state[d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination”. These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement. Substitutes for traditional safeguards include a video recording of the statement, the presence of an oath, and a warning about the consequences of lying. However, some form of cross-examination of the declarant, such as preliminary inquiry testimony or cross-examination of a recanting witness at trial, is usually required. [authorities omitted]

[30] The concept of substantive reliability was also discussed in Bradshaw at paragraph 31, as follows:

While the standard for substantive reliability is high, guarantee “as the word is used in the phrase ‘circumstantial guarantee of trustworthiness’, does not require that reliability be established with absolute certainty”. Rather, the trial judge must be satisfied that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process”. … Substantive reliability is established when the statement “is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken”; “under such circumstances that even a sceptical caution would look upon it as trustworthy”; when the statement is so reliable that it is “unlikely to change under cross-examination”; when “there is no real concern about whether the statement is true or not because of the circumstances in which it came about”; [and] when the only likely explanation is that the statement is true. [authorities omitted]

[31] At paragraph 32 of Bradshaw, the Court stated:

Procedural reliability and substantive reliability are not mutually exclusive and “factors relevant to one can complement the other”. That said, the threshold reliability standard always remains high — the statement must be sufficiently reliable to overcome the specific hearsay dangers it presents. For example, in U. (F.J.), where the Court drew on elements of substantive and procedural reliability to justify the admission of a hearsay statement, both cross-examination of the recanting witness and corroborative evidence were required to meet threshold reliability, though neither on its own would have sufficed. I know of no other example from this Court’s jurisprudence of substantive and procedural reliability complementing each other to justify the admission of a hearsay statement. Great care must be taken to ensure that this combined approach does not lead to the admission of statements despite insufficient procedural safeguards and guarantees of inherent trustworthiness to overcome the hearsay danger. [authorities omitted]

[32] In my view, from the passages quoted above the following principles arise:

a. there are two ways in which threshold reliability of a hearsay statement can be established: one is by way of procedural reliability and the other is by way of substantive reliability;

b. in exceptional cases threshold reliability can be established on the basis of a combination of procedural and substantive reliability;

c. procedural reliability means that there are adequate substitutes for the witness not presenting the evidence before the trier of fact and being subject to contemporaneous cross-examination;

d. to successfully rely on procedural reliability to establish threshold reliability, some form of cross-examination of the declarant is usually required;

e. for a hearsay statement to be admitted on the basis of substantive reliability, it must be established that the statement is so reliable that contemporaneous cross examination of the declarant would add little, if anything, to the trial process;

f. the instances of a statement being found to be sufficiently reliable to be admitted as evidence by way of a combination of procedural and substantive reliability will be rare;

g. the standard for threshold reliability is high and requires that the statement be sufficiently reliable to overcome the specific hearsay dangers it presents.

[33] Dennis Miljour’s statement was audio and video recorded. It was not made under oath or subject to a solemn affirmation. Dennis Miljour was not warned about the potential consequences of making a false statement. He did not promise to tell the truth. It was not impressed upon him that it was a solemn occasion and that what he said could or would be sought to be introduced at a trial on a charge of murder. The only feature of the statement that would support a finding of procedural reliability is that it was audio and video recorded. Because of these deficiencies, and because Dennis Miljour is not available to be cross examined, reliability cannot be established on the basis of there being adequate substitutes for the absence of the evidence being given under oath at trial.

[34] The Crown relies on corroborative evidence to establish substantive reliability of the statement.

[35] Returning to Bradshaw, the Court stated at paragraph 44:

A trial judge can only rely on corroborative evidence to establish threshold reliability if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement. If the hearsay danger relates to the declarant’s sincerity, truthfulness will be the issue. If the hearsay danger is memory, narration, or perception, accuracy will be the issue.

[36] In paragraph 48 of Bradshaw, the Court directed that, when assessing substantive reliability, alternative and even speculative explanations for the hearsay statement must be considered and any plausible alternative explanations must be ruled out on a balance of probabilities. This was the approach taken in R. v. Smith, [1992] S.C.R. 915, one of the early decisions from the Supreme Court of Canada in the development of the principled exception to the hearsay rule.

[37] At issue in Smith was the admissibility of the three statements made by the deceased in telephone calls to her mother the night she was killed. The three statements were:

a. Larry [the accused] has left me;

b. Larry has not come back and I need a ride home;

c. Larry has come back and I no longer need a ride home.

[38] The Court ruled that the first two statements satisfied the criteria of necessity and reliability and were therefore admissible pursuant to the principled exception, but the third was not. With respect to the first two statements, the Court found that there was no reason to doubt the deceased’s veracity because she had no known reason to lie (para 39). With respect to the third statement, it was found that the deceased may have been mistaken (about Larry returning) or may have intended to deceive her mother (not wanting a certain third-party to pick her up and take her home). The Court then stated at paragraph 45:

I wish to emphasize that I do not advance these alternative hypotheses as accurate reconstructions of what occurred on the night of Ms. King's murder. I engage in such speculation only for the purpose of showing that the circumstances under which Ms. King made the third telephone call to her mother were not such as to provide that circumstantial guarantee of trustworthiness that would justify the admission of its contents by way of hearsay evidence, without the possibility of cross-examination. Indeed, at the highest, it can only be said that hearsay evidence of the third telephone call is equally consistent with the accuracy of Ms. King's statements, and also with a number of other hypotheses. I cannot say that this evidence could not reasonably have been expected to have changed significantly had Ms. King been available to give evidence in person and subjected to cross-examination. I conclude, therefore, that the hearsay evidence of the contents of the third telephone conversation did not satisfy the criterion of reliability set out in Khan, and therefore were not admissible on that basis. [underlining added]

[39] In my view, Dennis Miljour’s statement does not meet the threshold for admissibility based on substantive reliability.

[40] The statement is inherently unreliable. Dennis Miljour’s statement is inconsistent about the source of the cocaine consumed by he, C.C. and Michael Durant on the night/morning in question. Initially, he said that the cocaine was supplied by Michael Durant. However, later in the statement, when confronted, he acknowledged that they had acquired the cocaine from Allan Saunders on the way from the rooming house to Michael Durant’s storefront residence. By his own admission, Dennis Miljour was “feeling no pain” at the relevant time. I interpret this to mean that he was under the influence of some form of intoxicant.

[41] In R. v. Baldree, 2013 SCC 35 the Supreme Court identified four potential issues affecting the accuracy of a hearsay statement at paragraph 35:

First, the declarant may have misperceived the facts to which the hearsay statement relates; second, even if correctly perceived, the relevant facts may have been wrongly remembered; third, the declarant may have narrated the relevant facts in an unintentionally misleading manner; and finally, the declarant may have knowingly made a false assertion. The opportunity to fully probe these potential sources of error arises only if the declarant is present in court and subject to cross-examination.

[42] In my view, the first two of theses concerns are implicated in Dennis Miljour’s statement. Because he was under the influence of an intoxicant, he might have misperceived the facts he was reporting, or he might have mis-remembered the events.

[43] The Crown submits that substantive of reliability has been established by reason of the striking similarity between Dennis Miljour’s statement and the statements and evidence of Michael Durant, Greg Moore, Jennifer McCrae, Allan Saunders and Sanceray Hightower. In my view, a consideration of Michael Durant’s statements and the previous testimony of the other witnesses shows a number of inconsistencies between that evidence and the statement of Dennis Miljour.

[44] Dennis Miljour said that Greg Moore told him he was with a person, who turned out to be Michael Durant, who wanted to meet C.C. Michael Durant said in his first statement that he met C.C. and a male on a bicycle while he was in front of his residence smoking a marijuana joint. He said the male’s name was Rob. He said Rob and C.C. entered his apartment where he shared marijuana with them. He said that C.C. offered to exchange sexual services for a fee. Dennis Miljour said that there was no discussion about Michael Durant paying C.C. for sex.

[45] In his second statement, Michael Durant said that Dennis Miljour and C.C. took him to Allan Saunders’ apartment. He then corrected himself and said that it was Greg Moore who accompanied him and C.C. to Allan Saunders’ apartment. I am mindful of the submission by the Crown that Michael Durant’s statement ought to be read on the basis that he has confused Dennis Miljour and Greg Moore, but it seems to me that this is a tortured route to establish that Dennis Miljour’s statement is reliable because it is corroborated by Michael Durant’s statement.

[46] Dennis Miljour said that C.C. smoked cocaine while in Michael Durant’s apartment. He said he did not see C.C. injecting (cranking) cocaine. In his second statement Michael Durant said that C.C. did “a smash” in the bathroom. I interpret this to mean that she injected some cocaine.

[47] Greg Moore said when he was obtaining cocaine at Jennifer McCrae’s rooming house, he mentioned that he was with a male who was looking for female companionship. He did not say he approached Dennis Miljour. He said when he and Michael Durant returned from the bar, a person by the name of Dennis or Jim arrived with C.C. Dennis or Jim then left with C.C. and Michael Durant.

[48] Greg Moore said that a person who he had not seen previously on the evening in question was hiding behind the corner of the building. That person was not Dennis Miljour. The person who was hiding behind the corner of the building suggested to Jennifer McCrae that they leave, and they did. This description of events is at all odds with that of Dennis Miljour.

[49] Dennis Miljour talked about a verbal dispute that occurred in front of Michael Durant’s apartment between C.C. and Jennifer McCrae. He said they were screaming at each other. Jennifer McCrae acknowledges that she was upset with C.C. for returning to Michael Durant’s apartment and that she yelled at C.C., but Jennifer McCrae does not describe it as screaming at each other.

[50] Dennis Miljour made no mention of Jennifer McCrae banging on the door of Michael Durant’s apartment while he was inside with Michael Durant and C.C. He said Jennifer McCrae was banging on the door to the apartment when he returned after escorting C.C. back to her rooming house. Michael Durant said that Jennifer McCrae was banging on the door while the male on the bicycle and C.C. were inside the apartment.

[51] Allan Saunders and Sanceray Hightower confirm that portion of Dennis Miljour’s statement about two men and C.C. attending at their apartment to purchase cocaine. As previously noted, this was one of two versions provided by Dennis Miljour about the source of the cocaine.

[52] In R. v. U. (F.J.), 1995 74 (SCC), [1995] 3 S.C.R. 764 the statement of a recanting witness was admitted as proof of the truth of its contents on the basis that it was strikingly similar to a statement made by the accused. However, a condition of admissibility is that the recanting witness must be available for cross-examination at trial (paragraph 42).

[53] The similarities between the statement of the accused and the statement of the recanting witness, the accused’s daughter, were numerous. In his statement to the police, the accused said he had engaged in sexual intercourse with his daughter “many times”. When interviewed by the police on the same day as her father was arrested, the daughter said they had sex on a regular basis “almost every day”. The accused said his daughter performed oral sex on him “2 or 3 times … but she didn’t like it”. The daughter said on a few occasions her father had her perform oral sex. The accused said he performed oral sex on his daughter “once or twice”. The daughter said on a few occasions he performed oral sex on her. The accused said he had anal sex with his daughter “three or four times”. The daughter said her father “would have sex in my bum many times”. They both said last sex act had been the previous night. In my view, the similarities between the statements made by the accused and his daughter are much more strikingly similar than the similarities between Michael Durant’s statements and the previous testimony of the other witnesses and the statement of Dennis Miljour sought to be introduced as proof of the truth of its contents.

[54] It is also a significant feature of the present case that Dennis Miljour is not available to be cross examined. In order for a statement to be admitted pursuant to the principled exception based on substantive reliability, the Court in U. (F.J.) stated at paragraph 42:

… a threshold of reliability can sometimes be established, in cases where the witness is available for cross-examination, by a striking similarity between the two statements. [underlining added]

[55] This point was also made in Bradshaw where it was held that both cross-examination of a recanting witness and corroborative evidence are required to meet threshold reliability, and neither is sufficient on its own (paragraph 32).

[56] I do not find the evidence of C.C.’s DNA to be a significant factor in determining the substantive reliability of Dennis Miljour’s statement. The evidence is confirmatory of C.C. being in Michael Durant’s apartment. But that is not a contested issue. Dennis Miljour made it clear in his statement that C.C. did not inject cocaine while he was present. Therefore, this evidence does not confirm Dennis Miljour’s statement.

[57] For these reasons I have come to the conclusion that Dennis Miljour’s video recorded statement from January 26, 2006 is not admissible pursuant to the principled exception to the hearsay rule. The Crown has submitted that if the entire statement is not ruled to be admissible, I should nevertheless rule portions of the statement admissible as narrative or as corroborative of the testimony of other witnesses. The Crown says this is no different than some of the testimony of a witness being ruled inadmissible and portions of the testimony of the same witness being ruled inadmissible. No authority in support of this proposition was provided. In my opinion, if Dennis Miljour’s statement had been found to be admissible it would be appropriate to edit portions, which for some reason are not admissible. It is not appropriate to rule that the statement itself does not meet the test of reliability and then go back and parse portions of the statement to be admissible because they are reliable.

Traditional Exceptions

[58] The Crown seeks to have certain statements made by Dennis Miljour to Greg Moore and Jennifer McCrae admitted pursuant to the narrative exception or the state of mind exception to the hearsay rule.

The Statements

[59] The statements by Dennis Miljour to Greg Moore and Jennifer McCrae which the Crown seeks to introduce as evidence at the trial are the following:

A. To Greg Moore:

i) Dennis and C.C. came over to the house and said, where’s the guy? We have somebody for him if he wants to spend money;

ii) And they [Dennis Miljour and C.C.] said, well, we’ll see what we can do. Go back over to your apartment and we’ll be over in a bit;

iii) Dennis asked me to grab the guy and I said okay;

iv) Dennis said not to worry about it; he was taking care of it.

B. To Jennifer McCrae:

i) Dennis came over and said he was with – he couldn’t remember his last name, actually; he said he was with C.C. - partying with C.C. and some Mike guy. And he described him to me and I said – oh, Durant. And he said – yeah, that’s his last name;

ii) Because Dennis told me how much money Mike was spending…;

iii) Dennis said he [Mike] had been flashing money around that night;

iv) Dennis said he [Mike] is there ‘cause he just left’.

Discussion and Analysis

[60] In R. v. Khan 2017 ONCA 114 the Court stated at paragraph 30:

As pure narrative, prior consistent statements carry no weight because they are tendered simply to give the background to explain how the complaint came to be before the court. This court described the pure narrative exception in R. v. F. (J.E.) (1993), 1993 3384 (ON CA), 16 O.R. (3d) 1, [1993] O.J. No. 2589 (C.A.), as allowing the decision maker to understand the "chronological cohesion" of the case. The statement is not used to prove the truth of its contents, nor are there any inferences arising that would make the case of one person more compelling than that of another. It is merely an aid in understanding the case as a whole.

[61] A similar statement was made by the Court in R. v. S.K., 2019 ONCA 776 at paragraph 185:

The narrative exception is the usual mechanism to admit otherwise inadmissible evidence in order to provide overall context to the jury. As my colleague explains, the narrative exception takes two forms: true or pure narrative, and narrative as circumstantial evidence: see R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520 (Ont. C.A.), at paras. 29-31, leave to appeal refused, [2017] S.C.C.A. No. 139 (S.C.C.). Prior consistent statements adduced as pure narrative carry no weight. They are admitted so that the jury can understand the unfolding of events: Khan, at para. 30. Statements admitted as pure narrative provide background information that would "provide chronological cohesion and eliminate gaps which would divert the mind of the listener from the central issue": R. v. F. (J.E.) (1993), 1993 3384 (ON CA), 16 O.R. (3d) 1 (Ont. C.A.), at p. 18. In contrast, under the narrative as circumstantial evidence category, the circumstances surrounding the statement allow the statement to assist the trier of fact to assess the credibility and reliability of the witness' in-court testimony: Khan, at para. 31.

[62] Recently in R. v. Borel, 2021 ONCA 16, 2021 ONCA16, the Court cautioned against the inappropriate admission of narrative evidence stating at paragraph 48:

… “narrative” is too often used by counsel, supported by trial judges, as a vehicle for the admission of evidence that is otherwise inadmissible and prejudicial.

[63] In this case, the Crown seeks to introduce the statements made by Dennis Miljour to Jennifer McCrae as pure narrative. They are sought to be introduced in order to help the jury understand the events that occurred around the time C.C. was last seen alive.

[64] Michael Durant does not contest the admissibility, as narrative, of the four statements made by Dennis Miljour to Jennifer McCrae. I agree that the statements made by Dennis Miljour to Jennifer McCrae are admissible as pure narrative. These statements will assist the jury to understand why Jennifer McCrae went to Michael Durant’s storefront apartment and was yelling and banging on the door.

[65] In order to assess the admissibility of the statements made by Dennis Miljour to Greg Moore, some additional background information is necessary. It is anticipated that Greg Moore will testify about Michael Durant wanting to pay money for female companionship. Greg Moore will also testify that he mentioned to the people at Jennifer McCrae’s rooming house that he was with a person who was looking for some female companionship. Greg Moore will then testify that he returned to his rooming house and sometime later Dennis Miljour arrived with C.C. Dennis Miljour and C.C. then left with Michael Durant.

[66] In my view, the first statement listed above made by Dennis Miljour will assist the jury in understanding how Greg Moore came to introduce C.C. and Dennis Miljour to Michael Durant. Having reviewed the context of the second statement listed above, it is not clear to me that it was a statement made by Dennis Miljour. If the evidence develops that it was a statement made by Dennis Miljour, it will be admissible as narrative to assist the jury in understanding why C.C. and Dennis Miljour attended at Greg Moore’s rooming house. Otherwise the statement is inadmissible. In my view, the third and fourth statements listed above made by Dennis Miljour to Greg Moore are not necessary in order for the jury to understand the unfolding of events. They are inadmissible as narrative.

[67] In reply submissions, the Crown sought to justify the admission of the first listed statement to Greg Moore pursuant to the state of mind exception to the hearsay rule. Admissibility is said to be based on evidence of C.C.’s state of mind that she accepted the offer made by Michael Durant to spend time with him in exchange for money. I fail to see how a statement by Dennis Miljour can be evidence of C.C.’s state of mind. I therefore do not accept the Crown’s reply submission on this point.

Conclusion

[68] The audio and video recorded statement made by Dennis Miljour on January 26, 2006 is inadmissible.

[69] The statements made by Dennis Miljour to Jennifer McCrae are admissible as narrative.

[70] The statement by Dennis Miljour to Greg Moore indicating that he had found a female companion for Michael Durant is admissible as narrative. The remainder of the statements said to have been made by Dennis Miljour to Greg Moore are inadmissible.

G.E. Taylor J.

Date: March 18, 2021