REASONS FOR RULING ON MOTION TO INTRODUCE EVIDENCE OF ALLEGED PRIOR DISCREDITABLE CONDUCT and ante mortem statements

LEIBOVICH J.

[1] Mr. Weldon is charged with manslaughter and indignities to a dead human body. The victim was Melanie Vachon, Mr. Weldon’s fiancé. It is the Crown’s theory that Mr. Weldon killed Ms. Vachon and then buried her in a shallow grave to cover up his crime. Ms. Vachon went missing on May 7^th, 2018. Her body was found down by the Whitby waterfront on June 2, 2018.

[2] The Crown has brought a motion to introduce evidence of alleged prior discreditable conduct by Mr. Weldon, including anti-mortem statements by the deceased to others describing Ms. Vachon’s intention to leave the relationship and describing various acts of domestic violence, in particular, prior acts of choking. The Crown submits that the evidence is critical to show Mr. Weldon’s animus towards the victim and to support the Crown’s position that Mr. Weldon caused her death and that she did not die of a drug overdose. The defence opposes the application and states that the probative value of the evidence is low or nonexistent, the underlying evidence intended to establish the factual basis for the discreditable conduct is not reliable and the prejudicial effect of the evidence outweighs the probative value.

[3] The Crown also seeks to call evidence that shortly after Ms. Vachon disappeared, Mr. Weldon robbed a pharmacy in a failed suicide attempt.

[4] The parties did not call any viva voce evidence at this motion. Instead they agreed to rely on the various witnesses’ testimony from the preliminary inquiry.

Law and Analysis

[5] The evidence that the Crown wishes to lead falls into three categories: 1) evidence that Mr. Weldon and Ms. Vachon frequently argued and that Ms. Vachon wanted to leave the relationship; 2) evidence that Mr. Weldon choked Ms. Vachon on a number of occasions; and 3) evidence that after Ms. Vachon went missing Mr. Weldon tried to kill himself. I will detail the evidence later in these reasons.

[6] The Crown faces two hurdles to have their proposed evidence admitted: 1) the proposed evidence, with some exceptions, is evidence of prior discreditable conduct[^1], which is presumptively inadmissible; and 2) the source of parts of the proposed evidence are ante-mortem statements of the deceased and are thus hearsay and also presumptively inadmissible.

[7] Evidence of an accused’s prior discreditable conduct is presumptively inadmissible: R. v. Z.W.C., 2021 ONCA 116, 155 O.R. (3d) 129 at paras. 96 and 97. Evidence of bad character, general propensity that only goes to show that the accused is the type of person likely to have committed the offence(s) in question is presumptively inadmissible. However, such evidence is admissible if it is both relevant and material and the Crown establishes, on the balance of probabilities, that its probative value outweighs its prejudicial effect: R. v. J.H., 2020 ONCA 165, [2020] OJ No 937 (QL) at para. 54.

[8] The meanings of relevance, materiality and admissibility was helpfully explained by Watt J.A. in R. v. J.H. at para. 52:

To be receivable in a criminal trial, evidence must be relevant, material and admissible. Evidence is relevant if it tends to prove what it is offered to prove. Evidence is material if what it is offered and tends to prove is something with which the law is concerned. And evidence is admissible if its reception does not offend any exclusionary rule of evidence and its probative value exceeds its prejudicial effect: R. v. Calnen, 2019 SCC 6, 374 C.C.C. (3d) 259, at paras. 107-109; R. v. J.A.T., 2012 ONCA 177, 288 C.C.C. (3d) 1, at para. 49.

[9] Prior discreditable conduct that shows animus or motive on the part of Mr. Weldon can be admitted if it meets the applicable test. Such evidence may be admitted to show the nature of the relationship between the parties and is relevant to prove the identity of the deceased’s killer and the state of mind that accompanied the unlawful killing. As stated by Watt J.A. in R. v. Skeete, 2017 ONCA 926, 357 C.C.C. (3d) 159, at para. 82:

It is commonplace that evidence of the relationship between an accused and the deceased in a prosecution for a crime of unlawful homicide may be relevant to establish an animus or motive on the part of the accused to kill the deceased.

See also R. v. Boukhalfa, 2017 ONCA 660, 350 C.C.C. (3d) 29.

[10] In order to establish animus or motive, the Crown may rely on evidence from a number of sources but “whatever the source, the evidence tendered to establish animus or motive must be such to render the existence of the animus or motive slightly more probable than it would be without the evidence, according to everyday experience and common sense. In other words, the evidence tendered to establish animus or motive must be relevant to their proof.”: R. v. Boukhalfa, at para. 191; R. v. J.H.; R. v. S. (P.), 2007 ONCA 299, 221 C.C.C. (3d) 45, at paras. 27 and 39; R. v. Johnson, 2010 ONCA 646, 262 C.C.C. (3d) 404, at paras. 97-100; R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 57.

[11] Things said by the deceased may reflect the deceased’s state of mind. These statements may afford evidence of the nature of the relationship between a deceased and an accused. Evidence of a deceased’s state of mind, contemporaneous with the unlawful killing, may provide a link in a chain of reasoning that could support an inference that the accused bore the deceased some animus or had a motive to kill the deceased. As stated by Watt J.A. in R. v. Skeete, at para. 92:

One method of establishing the contemporaneous state of mind of the deceased, and thus the animus or motive of an accused, is by the introduction through a recipient of ante mortem statements of the deceased: Blackman, at para. 31; Candir, at para. 55. These statements are evidence of the deceased’s state of mind, not that of the accused, and a trial judge should instruct the jury accordingly: Griffin, at para. 71. That said, the connection between a deceased’s state of mind and that of an accused arises by virtue of a pre-existing relationship between the two principals. That the relationship was acrimonious or that the principals had been involved in a dispute in the period leading up to an unlawful killing afford evidence relevant to the issue of motive, because such information may afford evidence of an accused’s animus or intention to act against the deceased: Griffin, at para. 63.

Hearsay ante-mortem statements

[12] As stated, the Crown seeks to introduce evidence that Melanie Vachon said to a number of people that she wanted to leave the relationship. In addition, the Crown seeks to introduce evidence that Melanie Vachon told others that Mr. Weldon had previously choked her. These statements are hearsay and to be admissible, they must be reliable and necessary. There is no issue regarding the necessity requirement as Ms. Vachon is deceased. The issue is whether they are sufficiently reliable.

[13] There are number of concerns regarding admitting hearsay statements. As stated by Justice Smith in R. v. Dion, 2021 ONSC 4916 at para. 9:

There are a number of dangers and pratfalls inherent in any ante mortem statement which must be kept in mind when considering the admissibility of such statements. The declarant may misperceive the underlying facts while the recipient may misperceive the statement. The declarant may misremember the relevant facts underlying the statement while the recipient may misremember the statement itself. As well, both declarant and recipient may make or convey the statement in issue in a misleading manner, either knowingly or unknowingly: see R. v. Baldree, 2013 SCC 35, at para 32.

[14] Therefore, the trial judge must establish, on a balance of probabilities that the proposed evidence meets the threshold reliability standard. Ultimate reliability is for the trier of fact.

[15] Even where hearsay evidence satisfies the requirements of a common law exception or qualifies for reception as necessary and reliable, a trial judge retains a discretion to exclude it where its prejudicial effect exceeds its probative value: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 3, R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at pp. 20-21.

[16] As summarised by Lauwers J.A. in R. v. McMorris, 2020 ONCA 844, 398 C.C.C. (3d) 179, at paras. 25-27:

The methodology for trial judges to follow in determining threshold reliability, was prescribed in Bradshaw, at paras. 26-28, and 30-32. I re‑state the methodology in brief.

Threshold reliability is established by showing that cross-examination of the declarant is unnecessary because there are: (1) adequate substitutes for testing truth and accuracy (procedural reliability); or (2) sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability); or (3) a combination of elements of both procedural and substantive reliability (which plays no role in this case).

The trial judge must specify the statement’s particular hearsay dangers regarding the declarant’s perception, memory, narration, or sincerity, and must evaluate whether and how the dangers specific to the case can be overcome because the truth of the statement cannot be tested by the declarant’s cross-examination.

[17] Procedural reliability is generally established when there are adequate substitutions for cross-examination that can be used for testing the reliability of the evidence. These include video or audio recordings of the statements in question, or the fact that the statement was given under oath, or that the declarant was aware of, and potentially subject to, the possible consequences of making a false declaration. None of those factors exist in this case. Substantive reliability is shown by evidence tending to show that the statement is inherently trustworthy because it was made in such a way and in such circumstances so as to give rise to a circumstantial guarantee of trustworthiness. This does not require absolute certainty: R. v. McMorris, at paras. 28-30.

[18] Corroborative evidence, if it exists, may also be used in the process of establishing substantive and threshold reliability. In doing so, it is first necessary to identify exactly what aspect of the statement in question is being tendered for its truth, identify the hearsay dangers and then consider any alternate explanations or interpretations of the statement. Having done so, it then becomes necessary to determine if the corroborative evidence available rules out any alternative explanations such that the only conclusion that can be reached is the truthfulness of the statement: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865 at para. 57.

[19] In this case, the Crown seeks to introduce ante-mortem statements as evidence of the deceased’s state of mind regarding her relationship with Mr. Weldon, but also with respect to the alleged prior assaults, for the truth of their contents.

Probative vs. Prejudice

[20] The court must still consider whether the probative value of the proposed evidence outweighs its potential prejudicial effect. The potential prejudicial effect of the discreditable conduct evidence needs to be assessed in relation to “moral prejudice” (i.e. the danger of convicting the accused “based on nothing more than bad personhood”), and “reasoning prejudice” (e.g. the danger of the trier of fact getting confused or distracted by the multiplicity of incidents; excessive time consumption). As stated in R. v. Ansari, 2015 ONCA 575, 330 C.C.C. (3d) 105, at para. 111, an assessment of prejudicial effect should consider:

i) The degree of discreditable conduct disclosed by the evidence;

ii) The extent to which the proposed evidence may support an inference of guilt on the sole basis of bad character;

iii) The extent to which the evidence may confuse issues; and

iv) The ability of the accused to respond to the evidence.

[21] Strathy C.J. noted in R. v. Z.W.C., 2021 ONCA 116, 155 O.R. (3d) 129 at paras. 94 and 95 the potential prejudicial effect of evidence of prior discreditable conduct and the challenges it poses, especially in a jury trial:

One of the greatest challenges faced by a trial judge is a request by the Crown to introduce evidence of an accused’s uncharged prior discreditable conduct – sometimes called “extrinsic” discreditable conduct evidence, because it is extrinsic to the conduct on which the indictment is based. In a judge-alone trial, experience and training enables the judge to appreciate the purposes for which such evidence is proffered, and to self-instruct on its limited use(s). A jury obviously does not have the benefit of that training and experience to assist them in discriminating between permitted and prohibited logical thought processes when judging the conduct of an accused. The jury can all too readily use the evidence for an improper purpose. For example, the jury may conclude that the accused is a bad person who did bad things and ought to be punished, whether or not they committed the offences with which they are charged. And, as will be described below, there is a risk that evidence of uncharged allegations will confuse the jury and cause them to lose track of what the trial is all about – whether the prosecution has proven each of the counts on the indictment beyond a reasonable doubt.

For these reasons, a trial judge must take great care to ensure that such evidence goes before the jury only after a determination that its probative value outweighs its prejudicial effect. If the evidence is admitted, the jury must be instructed, in an appropriate and timely way, about the proper and improper use(s) of the evidence. In order to make that distinction, the jury must be clearly informed of the purpose for which specific pieces of evidence may be used.

Evidence that Mr. Weldon and Ms. Vachon argued and that Ms. Vachon wanted to leave the relationship

[22] The Crown wishes to lead the following evidence to show that at the time of her death, Ms. Vachon’s relationship with Mr. Weldon was in turmoil and that she wanted to end it:

Mr. Mike Sneed met Ms. Vachon in 2009. He bought pills from her regularly over the years, almost on a daily basis. They became friends. He stated that he attended her apartment in April 2018 to buy pills. She told him that her relationship with Mr. Weldon was not going well. Two weeks earlier, she told Mr. Sneed that she wanted to end her relationship with Mr. Weldon and wanted to leave him. She had caught Mr. Weldon “shooting” up in a church and that she was “sick of the situation that she was in with him.”
Robert Anderson was Mr. Sneed’s co-worker and would attend with him at Melanie Vachon’s apartment to purchase prescription medication. Mr. Anderson knew Ms. Vachon for approximately eighteen months to two years. She was an acquaintance. He did not know her well. During one of his visits, three to four months before she disappeared, she told him that she wanted to leave Mr. Weldon;
In 2017 and 2018, Nicole Ferron resided in the apartment unit directly above Jeffrey Weldon and Melanie Vachon’s unit. She would regularly hear heated arguments between Ms. Vachon and Mr. Weldon. On several occasions, she became so concerned that she contacted the police. Most of the time she could not make out what was said. But she often heard “get the f out” and “you are a fuckin’ liar”. She testified that she mostly heard Melanie’s voice. They yelled and argued every day. She said that “every day she would just go off at Jeff.” The last argument that Ms. Ferron heard was a week before Ms. Vachon went missing;
Ms. Saunders lived down the hall from Ms. Vachon. Ms. Saunders described Ms. Vachon’s and Mr. Weldon’s relationship as “hostile” and that they were constantly arguing. At the preliminary hearing, she testified that, while she would not always know what the arguments were about, she believed the majority of the arguments would be about Mr. Weldon stealing Ms. Vachon’s prescription medication. Ms. Vachon told her that Mr. Weldon had been stealing her fentanyl. I note that during one of the undercover operations (uco46), Mr. Weldon said that they had a fight because Ms. Vachon wrongly accused him of taking her medication.

Ms. Vachon told Ms. Saunders that she wanted Mr. Weldon out of her life. She said that she had been telling him to leave for years but he refused to leave. Ms. Saunders said that Ms. Vachon told her for years up to the time of her death in May of 2018 that she wanted to leave Mr. Weldon.

[23] The defence opposed the admission of the above evidence (although with less vigour than it opposed the introduction of the alleged prior acts of assault). The defence submits that there is no evidence that Mr. Weldon threatened to kill Ms. Vachon if she left him and that without this link the evidence is not relevant. As set out in his factum:

There is no evidence that Mr. Weldon would respond to an indication of an ending relationship with violence. If there is no evidence that a spouse would react violently to an intention by his partner to leave the relationship, how can that evidence be probative with respective to a motive?

[24] I disagree. The nature of the relationship between the accused and the deceased is critically important in these proceedings. It is the accused’s position, as evidenced by his statements to the undercover officers and his post-arrest statement, that he loved the deceased and that she died of a drug overdose. The Crown is entitled to lead evidence to contradict that statement and to show that their relationship was tumultuous, that the accused and the deceased frequently argued and that the deceased wanted to leave the relationship. The various ante-mortem statements by the deceased regarding the status of her relationship with the accused are clearly admissible as they reflect the deceased's state of mind. “These statements may afford evidence of the nature of the relationship between a deceased and an accused. And the deceased’s state of mind is an item of evidence that may be relevant to an accused's motive”: R. v. Skeete at para. 84. The statements that she wanted to leave the relationship were in the months proceeding her disappearance and continued to the time she disappeared. There is no legal requirement, as the defence contends, that in order for the evidence to be admitted, the accused must have threatened to kill the victim if she left. Clearly such evidence would make the proffered evidence even stronger, but the proffered evidence is still probative and relevant to the issue of motive.

[25] Ms. Ferron’s evidence derives from her own observations having lived above the deceased in the apartment building. The defence submits that the evidence has diminished value since she often heard Ms. Vachon yelling at the accused. I disagree. The evidence is probative because it demonstrates that the relationship was not healthy and it supports the deceased’s ante-mortem statements that she wanted to leave the relationship.

[26] In my view, the proposed evidence’s prejudicial effect is low. The evidence does have some elements of bad character as it does describe the accused’s drug use but the degree of discreditable conduct is light. In addition, the jury can be cautioned in that regard. Furthermore, while the evidence will take some time, the evidence is relatively contained and would not distract or confuse the jury from its task. Finally, the accused is able to respond to the evidence through the cross-examination of the witnesses or by testifying, if he so chooses.

Prior acts of choking

[27] The Crown wishes to lead evidence that Ms. Vachon told others that Mr. Weldon had choked her in the past. The Crown wishes to lead the following:

At the end of April 2018, Mr. Sneed attended Ms. Vachon’s apartment to purchase pills while on his way to work. While at the apartment, Ms. Vachon was crying. She told Mr. Sneed that Mr. Weldon had choked her to the point that she nearly lost consciousness. She told Mr. Sneed that she was in a fight with Mr. Weldon over a “point” of heroin. They were on the bed and he was on top her, choking her. Just before she passed out, she opened her hand and allowed Mr. Weldon to take the heroin from her. Mr. Sneed observed a mark on her neck that he described as a “finger mark.” He said that she tried to cover it up with make up, it was not totally visible but he saw a finger mark or a scratch. Given the presence of the mark on her neck and her emotional state while recounting the incident, Mr. Sneed believed that the incident had occurred recently but he did not know when it had happened.
Ms. Vachon also told Mr. Sneed of an argument she had with Mr. Weldon, during which he pushed her up against the wall of their apartment, putting a hole in the drywall. Mr. Sneed said that Ms. Vachon told him about this incident in the weeks prior to the incident described above. He made no mention of this other incident in his statement to the police. When asked about the discrepancy, he commented, “what do you think, they’ve been together for 15 years, the perfect relationship, this is the first time he’s touched her.”
Mr. Anderson testified that Ms. Vachon mentioned that Mr. Weldon choked her and that she had to hit him in the head with an ashtray. This conversation took place five to six months before Ms. Vachon went missing;
Ms. Saunders testified that in the summer of 2017, Ms. Vachon attended Ms. Saunders apartment at approximately 9:30 am as Ms. Saunders was getting ready to go out for the day. Ms. Vachon was upset and crying so Ms. Saunders invited her into her apartment. Ms. Vachon told Ms. Saunders that she had been in an argument with Mr. Weldon and, during the argument, she had thrown a bottle of Mr. Weldon’s pills against the wall causing them to spill onto the floor. In response, Mr. Weldon grabbed Ms. Vachon by the neck and threw her up against a wall.
Rachel Adams-D’Ornellas is the former girlfriend of Melanie Vachon’s son, Josh Vachon. Ms. Adams-D’Ornellas and Josh Vachon dated for approximately 3 years, from 2016 until December of 2019. In February of 2018, Ms. Adams-D’Ornellas and Mr. Vachon attended the Iroquois Park recreation facility in Whitby to go skating. Prior to attending the arena, they attended Ms. Vachon’s and Mr. Weldon’s residence. Afterwards, while walking into the arena, approximately 30 minutes later, Ms. Adams-D’Ornellas received a phone call from Melanie Vachon. Ms. Vachon sounded “intensely distraught.” She told Ms. Adams-D’Ornellas that Mr. Weldon had just “grabbed her by the throat” and that she was frightened. After a short conversation, she passed the phone to Josh Vachon. Ms. Adams-D’Ornellas and Mr. Vachon then went into the rink and went skating. After they were finished skating, Ms. Adams-D’Ornellas called Ms. Vachon back. Ms. Vachon told her that everything was fine. Ms. Adams-D’Ornellas described Ms. Vachon as being “a lot more mellow” during the second phone call.

[28] The defence strongly objects to the evidence. It is the Crown’s theory that the accused choked or strangled Ms. Vachon. There is no forensic cause of death. The cause of death has been marked as undetermined. Expert evidence will say that it is possible that Ms. Vachon died of a drug overdose but it is also possible that she was choked to death. The defence is concerned that the jury will misuse the evidence of prior choking and use it as a substitute for the lack of forensic evidence; that they will conclude that, because Mr. Weldon choked her last time, he must have choked her this time, even though there is no scientific evidence that the victim was choked to death.

[29] Each proposed hearsay statement must be considered to see if it is sufficiently reliable to render it admissible. As stated, there is no procedural reliability in this case. Rather, I must see if the statement is inherently trustworthy because it was made in such a way and in such circumstances so as to give rise to a circumstantial guarantee of trustworthiness. The following factors are relevant in assessing the circumstances in which a statement is made:

i) the timing of the statement in relation to the event reported;

ii) the presence or absence of a motive to lie on the part of the declarant, or any other reason to doubt the truthfulness of the statement;

iii) the presence or absence of leading questions or other forms of prompting;

iv) the nature of the event reported;

v) the likelihood of the declarant’s knowledge of the event, apart from its occurrence;

vi) whether there would be any difficulties with respect to the declarant’s capacity to perceive or remember events;

vii) the condition of the declarant at the time the statement was made;

viii) the amount of detail in the statement; and,

ix) the demeanour of the declarant at the time the statement was made.

See: R. v. J.M., 2010 ONCA 117, 251 C.C.C. (3d) 325, at para 54 and R. v. Hindessa, 2009 CanLII 48837 (ON SC), [2009] O.J. No. 3837, 95 WCB (2d) 436 at para 14; R. v. Smeltzer, 2021 ONSC 4927, [2021] O.J. No. 3859, at para. 47

Statements to Mr. Sneed

[30] Mr. Sneed said that Ms. Vachon told her that Mr. Weldon choked her over a point of heroin. I am satisfied that with respect to this alleged incident there are circumstantial guarantees of trustworthiness that allow the evidence to pass the initial reliability threshold. Furthermore, the evidence’s probative value exceeds it prejudicial effect. I say this for the following reasons:

Mr. Sneed was a friend of Ms. Vachon. While he started as a client, that relationship progressed over the years. He saw her often during the week. She visited him when he was in rehab. He testified that he cared for her. The evidence does not reveal any motive for Ms. Vachon to lie to Mr. Sneed. The defence submits that she was romantically interested in him and thus there is a motive. The only evidence on this point is that she tried to kiss him at some point. However, when this occurred is unknown and there is nothing in the recounting of the incident that suggests that Ms. Vachon was using this event as a means to develop a romantic relationship with him;
Ms. Vachon told Mr. Sneed about the incident without prompting or prodding;
Ms. Vachon was crying when she described the incident;
Ms. Vachon’s description of the incident is detailed;
Mr. Sneed saw a mark on Ms. Vachon’s neck, that he described as a finger mark, which corroborates the story; and
While the time of the incident is unknown, Mr. Sneed’s assumption that it took place close to the time of the recounting (April 2018, a month before the victim disappeared) is logical given that the mark was still visible on the neck.

[31] With respect to prejudice, I appreciate the concern raised by defence counsel. However, it can be addressed with a strong caution regarding the limited use of the evidence. Defence counsel also submits that the evidence will distract from the jury’s function given that the cross-examination will be lengthy and take up a significant amount of time. However, irrespective of this evidence, Mr. Sneed will be a witness at this trial and will be cross-examined. Furthermore, Mr. Weldon is able to respond if he chooses.

[32] However, there is not sufficient indicia of reliability regarding the second incident of abuse that Ms. Vachon described to Mr. Sneed. While it appears that the incident occurred proximate in time to Ms. Vachon’s disappearance, the sum total of the alleged statement by the deceased is as follows:

Q. Well, give me one other example of when she said he touched her?

A. Prior weeks to that, he pushed her up against a wall. There was hole actually in – you've probably looked at pictures, I'm sure there was a hole in the – in the wall of the apartment.

[33] Contrary to the first incident described by Mr. Sneed, there are no details regarding how this conversation started, what was the context of the assault, or what was the demeanour of Ms. Vachon when she described the incident. In addition, it is quite unclear from the above if Mr. Sneed actually saw a hole in the wall and if so when did he see it. The evidence does not have sufficient probative value to merit its admission.

Statement to Mr. Anderson

[34] Mr. Anderson testified that Ms. Vachon mentioned that he choked her and that she had to hit him in the head with an ashtray. This conversation took place five to six months before Ms. Vachon went missing. I would not admit this evidence for the following reasons:

a. While there is no reason for Ms. Vachon to lie to Mr. Anderson there is also no reason why she would have confided in him. He bought drugs from her. He considered her as simply an acquaintance;

b. While the conversation took place 5-6 months before she disappeared it is unclear when this incident is alleged to have happened;

c. By Mr. Anderson’s own admission, Ms. Vachon did not get into any details. The sum total of his evidence is:

She mentioned one thing to me, didn’t really get too far into detail about him apparently choking her and she had to hit him with an ashtray and then it was over after that, so.

d. There is no evidence regarding Ms. Vachon’s demeanour at the time she made the statement; and

e. There is no confirmatory evidence

The February 2018 Phone Call to Rachel Adams-D’Ornellas

[35] Ms. Adams-D’Ornellas testified that during February 2018, Ms. Vachon called her upset and said that Mr. Weldon had just grabbed her by the throat and she was frightened. I would not admit this evidence for the following reasons:

a. While Ms. Adams-D’Ornellas testified that Ms. Vachon said she was frightened, she did nothing in response to Ms. Vachon’s complaint. She went skating, clearly not thinking that the victim was in any danger;

b. The conversation was brief, there is no description provided regarded why Mr. Weldon grabbed her by the throat;

c. There is no confirmatory evidence; and

d. When Ms. Adams-D’Ornellas called Ms. Vachon back a little later, everything was fine.

[36] The probative value is, in my view, too tenuous to be admitted.

The Summer 2007 Incident

[37] Ms. Saunders testified that in the summer of 2017, Ms. Vachon told her that she had been in an argument with Mr. Weldon and, during the argument, she had thrown a bottle of Mr. Weldon’s pills against the wall causing them to spill onto the floor. Mr. Weldon then grabbed Ms. Vachon by the neck and threw her up against a wall. I agree that there is no motive for Ms. Vachon to lie to Ms. Saunders, given that she had known Ms. Saunders for a long time. Ms. Saunders states that Ms. Vachon was crying at the time. There is no confirmatory evidence.

[38] However, in my view, the probative value of the evidence is diminished by the fact that it occurred in summer 2017. The purpose of the proposed evidence again is to describe the nature of the relationship between Ms. Vachon and Mr. Weldon at the time she disappeared. The more remote the evidence, the more it loses its probative force. I appreciate that there have been cases where more remote evidence of animus has been admitted. But in each situation, the trial judge must calculate the proposed evidence’s probative value against its prejudicial effect. The defence has raised the concern that the jury will improperly use this evidence as a substitute for the lack of scientific evidence regarding cause of death. In my view, the remoteness of the evidence tilts the equation against admission with the potential prejudicial effect outweighing the probative value.

Post Offence Discreditable Conduct – Suicide Attempt

[39] On May 11, 2018, after Melanie had disappeared but before her body was found, the accused robbed a pharmacy in Oshawa. The pharmacist, Alireza Hashemi, testified at the preliminary hearing regarding the circumstances of the robbery. Mr. Hashemi testified that Mr. Weldon entered the pharmacy brandishing a large knife. He locked the front door and confined Mr. Hashemi in the back room. He forced the pharmacist to provide him with a large amount of opiates. Mr. Weldon then consumed the opiates while in the pharmacy in an apparent attempt to commit suicide. During the robbery, Mr. Weldon repeatedly told the pharmacist that he wanted to die because his girlfriend or fiancé left him. He was subsequently arrested and pleaded guilty to the robbery.

[40] The Crown does not want to lead details of the robbery. The Crown does want to lead evidence that Mr. Weldon said he was trying to kill himself because his Ms. Vachon left him. The Crown intends to lead other evidence that Mr. Weldon’s comment that Ms. Vachon left him was a lie and that the suicide attempt was his guilt for having killed her.

[41] Both the Crown and the defence agree that the pharmacy robbery was a failed suicide attempt. Given that the Crown is not seeking to have the facts of the robbery admitted, just that the accused attempted to commit suicide with his stated explanation, the proposed evidence does not contain any extrinsic evidence of misconduct. [The Crown will have to edit out the reference to the robbery in the other statements, for example in Mr. Weldon’s May 18, 2018 interview.] I do not see any legal barriers for the Crown in calling this evidence nor do I see a reason I should exercise my residual discretion to exclude it. At the end of the case, the Crown and defence can submit how I should charge the jury in relation to this evidence.

Justice H. Leibovich

Released: August 9, 2022

OSHAWA COURT FILE NO.: CR-21-15565

DATE: 2022 08 XX

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Applicant

– and –

JEFFREY WELDON

Defendant

REASONS FOR RULING ON MOTION TO INTRODUCE EVIDENCE OF ALLEGED PRIOR DISCREDITABLE CONDUCT AND ANTE MORTEM STATEMENTS

LEIBOVICH J.

Released: August XX, 2022

[^1]: Although the suicide attempt during the pharmacy robbery post dated the death of Ms. Vachon.

R. v. Weldon, 2022 ONSC 4627

Case Summary

REASONS FOR RULING ON MOTION TO INTRODUCE EVIDENCE OF ALLEGED PRIOR DISCREDITABLE CONDUCT and ante mortem statements

Law and Analysis

Hearsay ante-mortem statements

Probative vs. Prejudice

Evidence that Mr. Weldon and Ms. Vachon argued and that Ms. Vachon wanted to leave the relationship

Prior acts of choking

Statements to Mr. Sneed

Statement to Mr. Anderson

The February 2018 Phone Call to Rachel Adams-D’Ornellas

The Summer 2007 Incident

Post Offence Discreditable Conduct – Suicide Attempt

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 2