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 18 and 19, 2021 by video conference

Endorsement

Admissibility of Antemortem Statements of Deceased

Corrected decision: The correction was made on March 29, 2021. The year in the citation number was noted as being 2011. A correction has now been made to change the citation identification from R. v. Durant, 2011 ONSC 2024 to R. v. Durant, 2021 ONSC 2024

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.”. C.C. disappeared on 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. C.C. is alleged to have made statements to several people in the days leading up to her disappearance. The Crown seeks to have those statements introduced as evidence at trial on the basis of a traditional exception to the hearsay rule as narrative or state of mind. The Crown also relies on the principled exception to the hearsay rule to justify the admission of at least one of the statements C.C. is alleged to have made.

Statements Admitted on Consent

[2] The admissibility of a number of the antemortem statements of C.C. are not contested. I will deal with those first.

[3] Sharon Evans is the mother of C.C. She is expected to testify that C.C. told her she would come home before Christmas and spend Christmas with her mother. It is agreed that the statement is admissible pursuant to the present intention exception to the hearsay rule.

[4] William Ennest was an acquaintance of C.C. It is anticipated he will testify that he spoke by telephone with C.C. on December 4, 2005. C.C. said her feet were cold. Arrangements were made for William Ennest to take C.C. to purchase a pair of boots the following morning. It is agreed that the statement by C.C. that her feet were cold is admissible as an exception to the hearsay rule about her physical condition. It is also agreed that the arrangement to purchase boots on December 5 is evidence of C.C.’s intention to meet and go shopping with William Ennest.

[5] Kevin Janzen was the landlord of the rooming house where C.C. lived. His anticipated testimony includes statements made by C.C. on December 4, 2005 that she was planning to visit her mother the following morning, that she had a rash and was planning to go to the hospital to have it treated and that she had lost one or more phones given to her by Kevin Janzen. It is agreed that the first two statements made to Kevin Janzen are admissible as evidence of present intention or physical condition. The third statement, also by agreement, is admissible as narrative.

[6] Greg Moore lived in a rooming house next to the rooming house where C.C. lived. He was present outside Michael Durant’s storefront apartment in the early morning hours of December 5, 2005 when C.C. was in the same area on Queen Street. At some point he went around to the back of the building where he heard C.C. say “Hi”. There is no objection to the admissibility of that evidence. It is not subject to hearsay concerns. It is admissible to prove the fact that C.C. said it.

[7] Jennifer McCrae was a resident of the same rooming house as C.C. She will testify that in the early morning hours of December 5, 2005, C.C. asked where she was going to which Jennifer McCrae responded by saying she was going to see C.C.’s buddy. It is agreed that this evidence is admissible as narrative to explain how C.C. knew where Jennifer McCrae was going.

[8] Jennifer McCrae is further expected to say that she asked C.C. if “he” answered the phone and C.C. said “no’. It is agreed that C.C.’s one word response is admissible but there is disagreement about the basis of the admissibility. The Crown maintains that the utterance is admissible pursuant to the principled exception while Michael Durant takes the position that it is admissible as circumstantial evidence that C.C. made a phone call to Michael Durant using a telephone belonging to Allan Saunders, who I will mention shortly. On either basis of admissibility, C.C.’s statement that “he” did not answer the phone is substantively admissible on the issue of whether C.C. attempted unsuccessfully to telephone Michael Durant in the early morning hours of December 5, 2005.

[9] The third utterance made by C.C. which is expected to be reported by Jennifer McCrae and to which no objection is taken is C.C. saying “it’s just me”. In my view this statement is admissible for the purpose of proving that the words were spoken by C.C. and not for a hearsay purpose.

[10] Allan Saunders was a drug dealer who lived with Sanceray Hightower in an apartment in a building on the opposite side of Queen Street from Michael Durant’s residence. It is expected he will testify that early in the morning on December 5, 2005 he received a telephone call from C.C. asking if she could come to his apartment to purchase cocaine. It is agreed that this statement is admissible to prove C.C.’s state of mind which is that she wanted to purchase cocaine.

Admissibility of Statements Not on Consent

[11] Kevin Janzen is expected to testify that at approximately 11:00 p.m. on December 4, 2005, C.C. told him that she was going to party with a person by the name of Mike, who lived on Queen Street. Michael Durant challenges the admissibility of the statement on the basis that it incorporates what was said to her by Dennis Miljour. That may be true but in my view, it is evidence which goes to C.C.’s intention to party with a person by the name of Mike, who lived on Queen Street. The statement is admissible as evidence of present intention.

[12] Greg Moore is anticipated to testify that while he and Jennifer McCrae were standing in front of Michael Durant’s apartment, he observed C.C. approaching. He asked her if she was there for a date and C.C. denied she was there for a date but was planning to meet a friend. It is expected that Jennifer McCrae testify about having a similar conversation with C.C. As I appreciate the Crown’s submission is that the statements to Greg Moore and Jennifer McCrae are admissible because they are untrue. According to the Crown, C.C. was present near Michael Durant’s apartment on Queen Street for the purpose of meeting him, but she did not want Greg Moore and Jennifer McCrae to know that. In my view, the statements are being tendered to prove a fact contrary to the content of the statements. I am not aware of any authority that would allow me to rule these statements admissible to prove that C.C. intended to enter, and did in fact enter, Michael Durant’s apartment. The statements are inadmissible.

[13] Allan Saunders is anticipated to testify that C.C. returned to his apartment about an hour after she had attended to purchase the cocaine. She said she was looking for the telephone number for the phone she had used when she called to arrange purchase of the cocaine. She said she needed to call the telephone number because she could not return if someone else was there. The Crown submits that these statements are evidence of CC’s state of mind or present intention. Michael Durant argues that the statements are not admissible because they do not evidence a present intention but rather referred to a past event. In my view, the statements are admissible as evidence of C.C.’s present intention of returning to a location where she believed a telephone she had used earlier was located. The statements allegedly made by C.C. are also circumstantial evidence that she went to the place where she believed the telephone was located (see R. P. (R.) , [1990] O.J. No. 3418 at paragraph 23 ).

[14] Sanceray Hightower will give evidence similar to that of Allan Saunders about C.C. wanting to call the telephone number of one of the men she had been with when they attended at the apartment to purchase cocaine. This evidence is admissible for the same reason that Allan Saunders’ evidence about the same conversation is admissible.

Summary of Conclusions

[15] The following table summarizes my various rulings with respect to the admissibility of the antemortem statements of C.C.:

Recipient	Statement	Admissibility	Basis
Sharon Evans	Coming home to spend Christmas	Yes	Present intention
William Ennest	Going to buy boots	Yes	Present intention and physical condition
Kevin Janzen	Planning to visit her mother	Yes	Present intention
Kevin Janzen	Had a rash and planning to go to the hospital	Yes	Present intention and physical condition
Kevin Janzen	Lost phones	Yes	Narrative
Kevin Janzen	Going to party with Mike on Queen Street	Yes	Present Intention
Greg Moore	Hi	Yes	Statement of fact
Greg Moore	Not there for a date but to meet a friend	No	Not admissible to prove the contrary
Jennifer McCrae	Where are you going?	Yes	Narrative
Jennifer McCrae	Not going to Queen Street	No	Not admissible to prove the contrary
Jennifer McCrae	Not there to see Michael Durant	No	Not admissible to prove the contrary
Jennifer McCrae	He did not answer the telephone	Yes	Principled exception or circumstantial evidence
Jennifer McCrae	It is just me	Yes	Statement of fact
Allan Saunders	Arrangements to purchase cocaine	Yes	Present intention
Allan Saunders	Wanted to call telephone number and go there	Yes	Present intention and circumstantial evidence that acted accordingly
Sanceray Hightower	Wanted to call telephone number and go there	Yes	Present intention and circumstantial evidence that acted accordingly

G.E. Taylor J. Date: March 18, 2021