R. v. O.W., 2025 ONSC 2554

Court File No.: 23-Y1140207-A
Date: 2025-04-28
Ontario Superior Court of Justice

Between:
His Majesty the King, Applicant
– and –
O.W., Defendant/Respondent

Malcolm Savage and Victoria Di Iorio, for the Crown
Richard Addelman and Samantha Robinson, for the Defendant/Respondent

Heard: April 24, 2025

Publication Ban

These reasons are subject to a publication ban pursuant to sections 110 and 111 of the Youth Criminal Justice Act , S.C. 2002, c. 1.

Introduction

[ 1 ] O.W. is charged with first-degree murder and attempt murder, contrary to sections 235(1) and 239(1) of the Criminal Code . At the time of the alleged offences, O.W. was a young person within the meaning of the Youth Criminal Justice Act , S.C. 2002, c. 1. The Crown alleges that O.W., along with another youth, J.A., followed through on a premeditated plan to shoot and kill the deceased in the early morning hours of December 6, 2021. Another young person, X.R., was shot multiple times as well but fortunately survived. J.A. has already pleaded guilty to first-degree murder and attempt murder for his role in the shooting. The identity of the second perpetrator is the primary issue in this trial.

[ 2 ] Pursuant to the principled exception to the hearsay rule, the Crown seeks to tender for their truth certain statements made by the deceased to his friend, Rebecca Guindon, approximately six weeks before his death. Ms. Guindon testified that weeks before the homicide, the deceased arrived at her home unannounced, both sweating and scared, and told her that O.W. and his crew had just taken shots at him and a friend at Bayshore Park. The hearsay statement supports the Crown’s theory that O.W. had both the means and motive to kill the deceased.

[ 3 ] The Crown also seeks to rely on the hearsay statements to prove the deceased’s state of mind at the time of the alleged Bayshore shooting. The Crown argues that the deceased’s state of mind weeks before the shooting is relevant because a reasonable inference can be drawn from it that O.W. had an animus towards the deceased.

[ 4 ] The defence opposes the application. First, it maintains that the hearsay statements are not sufficiently reliable to be tendered into evidence. Second, the defence argues that the alleged shooting at Bayshore Park constitutes bad character evidence, and the inherent frailties in the deceased’s identification of O.W. diminish its probative value to such an extent that the prejudicial impact of the evidence far outweighs it.

[ 5 ] For the following reasons, the Crown’s application is dismissed.

Principled Exception

[ 6 ] Ms. Guindon testified that approximately a month and a half before the homicide, the deceased arrived at her home scared and out of breath. The deceased purportedly told Ms. Guindon that “he got chased down by T.T.’s crew and that they were going to shoot him.” O.W. admitted in these proceedings that he went by the street name T.T. at the relevant time. Ms. Guindon testified that the deceased told her that shots had been fired but he dodged them. When asked if the deceased told her how he knew it was T.T., she responded, “he said he saw T.T. and somebody else. I don’t remember it was so long ago.” In cross-examination, Ms. Guindon agreed that the discussion was “very brief,” and that she felt at the time that she did not know enough about the alleged incident to make a report to the police. The Crown seeks to rely on the deceased’s hearsay statements as positive evidence that O.W. was involved in an attempted shooting of the deceased approximately six weeks before the homicide.

[ 7 ] Hearsay evidence is presumptively inadmissible because in the absence of in-court cross examination the trier of fact cannot easily investigate a declarant’s perception, memory, narration, or sincerity at the time a statement was made: R v Khelawon , 2006 SCC 57 , [2006] 2 S.C.R. 787, at para. 2 . As a result, assessing the truth or reliability of an out-of-court statement is difficult for the trier of fact, a challenge that may threaten the integrity of the truth-seeking function of a trial: R v Bradshaw , 2017 SCC 35 , [2017] 1 S.C.R. 865, at para. 1 .

[ 8 ] As explained by Fish J. in R v Baldree , 2013 SCC 35 , at para 32 :

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.

[ 9 ] Hearsay statements can be admitted into evidence pursuant to the principled exception, however, if doing so is necessary and the statements are sufficiently reliable. The party seeking to tender the hearsay statement must demonstrate the twin criteria of necessity and threshold reliability on a balance of probabilities. The threshold reliability analysis has a constitutional dimension because the difficulties in testing hearsay evidence implicate an accused’s fair trial rights: Bradshaw , at para. 24 . Here, the declarant is deceased, so the necessity criterion is easily established. The admissibility inquiry therefore turns on the question of threshold reliability.

[ 10 ] The central concern about the hearsay statements is the inability to cross-examine the deceased on the truth and accuracy of what he purportedly said to Ms. Guindon. My role as gatekeeper is to determine whether this concern is sufficiently overcome in the circumstances of this case to justify receiving the evidence. Threshold reliability can be established by showing that the trier of fact can place sufficient trust in the truth and accuracy of the statements because of the circumstances in which they were made (substantive reliability), or by showing that, in the circumstances, the trier of fact is well-positioned to sufficiently assess their worth (procedural reliability). These two ways of demonstrating threshold reliability are not mutually exclusive: R v Blackman , 2008 SCC 37 , [2008] 2 S.C.R. 298, at para. 35 ; Bradshaw , at para. 32 . However, “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 dangers”: Bradshaw , at para. 32 .

[ 11 ] The first stage of the analysis requires me to determine the specific hearsay dangers that arise from the hearsay statements. I must do so with precision. And I must do so with the material aspects of the hearsay statement in mind. Only then can I meaningfully assess whether the hearsay dangers of the evidence are overcome by substantive or procedural guarantees of reliability: Bradshaw , at para. 26 .

[ 12 ] Here, the Crown is seeking to rely on the hearsay statements to establish that it was O.W . who attempted to shoot the deceased on a prior occasion. The simple fact of the deceased having been the target of a prior shooting does nothing to advance the Crown’s current case against O.W. The relevance of the hearsay statement flows from the deceased’s identification of O.W. as having been involved. Therefore, the specific hearsay dangers that arise in the case relate to my ability to assess the truth or accuracy of the deceased’s identification of O.W. in the absence of cross-examination.

[ 13 ] Having identified the precise hearsay dangers associated with the hearsay statements, I will now assess whether the statement is sufficiently reliable to overcome them.

[ 14 ] I will address procedural reliability first. Procedural reliability arises when notwithstanding the out-of-court nature of the hearsay statement, there are adequate substitutes for testing the evidence: Khelawon , at para. 63 . Again, this is not assessed in a vacuum, but with reference to the material aspects of the hearsay statement. The question is whether there are adequate substitutes for testing the accuracy and reliability of the deceased’s identification of O.W . as having been involved in the alleged shooting at Bayshore Park.

[ 15 ] To establish procedural reliability, the adequate substitutes relied upon “must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement”: Bradshaw , at para. 28 . These may include a videorecording of the statement, the presence of an oath or affirmation, or a warning about the consequences of lying. In addition, some form of cross-examination of the declarant is typically required: Bradshaw , at para. 28 . However, the existence of the typical indicia of procedural reliability are not conditions precedent that must necessarily be satisfied in every case: R v K.G.B . , [1993] 1 S.C.R. 740, at para. 98 .

[ 16 ] Here, the Crown accepts that none of the above-mentioned procedural substitutes for testing the evidence are present. It argues, however, that the availability of Ms. Guindon for cross-examination provides some measure of procedural safety against the hearsay dangers. I disagree. Ms. Guindon testified that the deceased told her something along the lines of “T.T. and his crew” took shots at him while at the park. Ms. Guindon did not ask the deceased any questions about why he believed that T.T. was involved, nor did he proactively offer her that information in any degree of detail. The deceased did not confirm for Ms. Guindon whether he saw T.T.’s face or whether he inferred that T.T. was involved based on the other individuals present, what was said and by whom, or what the shooter may have been wearing or the car in which he may have been travelling. Ms. Guindon has no information to offer regarding the foundation of the deceased’s identification of O.W. as the Bayshore shooter. That being the case, I fail to see how her availability for cross-examination goes any distance in procedurally overcoming the dangers of the hearsay statement on that front.

[ 17 ] In my view, there are no procedural guarantees of reliability respecting the hearsay statements made to Ms. Guindon.

[ 18 ] The Crown relies mainly on substantive reliability. Specifically, the Crown argues that the deceased’s account emerged naturally and without prompting; that the statements were made immediately after the alleged event; that the deceased made the statement to a close friend who had no authority over the deceased or O.W.; and there is an absence of evidence of a motive to fabricate.

[ 19 ] Substantive reliability is established where the statement is inherently trustworthy given the circumstances in which it was made, when considered alongside any evidence that corroborates the statement within the test set out in Bradshaw and re-affirmed in R v Charles , 2024 SCC 29 . The trial judge must be satisfied that the statement is so reliable “that contemporaneous cross examination of the declarant would add little to the process” or that the evidence would be “unlikely to change under cross-examination”: Bradshaw , at para. 31 . With that said, substantive reliability need not be established with absolute certainty: Bradshaw , at para. 31 .

[ 20 ] I am nowhere near satisfied that the deceased’s statement, specifically, his identification of O.W., is so inherently reliable that cross-examination would likely be fruitless. There is a complete dearth of evidence regarding how the deceased identified O.W. as having been involved in the alleged Bayshore shooting, in circumstances where the basis for it is not otherwise obvious from the context. The hearsay statement was made during a very brief discussion with Ms. Guindon. As it relates to O.W.’s alleged involvement, the deceased’s statements were conclusory and perfunctory. Ms. Guindon has no information regarding whether the deceased saw O.W.’s face, and, if so, for how long and from what vantage point. Ms. Guindon has no information about whether the deceased concluded that it was O.W. because the two had “beef” at the time, or because of something the shooter was wearing, the other people present, or because the deceased thought that he recognized O.W.’s voice. I can envision a detailed and piercing cross-examination in many of these areas. The brief, conclusory identification of O.W. purportedly made by the deceased to Ms. Guindon cannot support a conclusion that cross examination “would add little to the process.”

[ 21 ] If there was some relevance to the deceased having been shot at weeks earlier, independent of any involvement on the part of O.W., the cumulative effect of the unprompted nature of the disclosure, the deceased’s apparent demeanor when speaking with Ms. Guindon, the proximity of the disclosure to the event described, and the absence of evidence of a motive to fabricate, could potentially give rise to substantive reliability. But the hearsay dangers in this case relate predominantly to the deceased’s identification of O.W. The evidence of the shooting is irrelevant without that nexus. Therefore, substantive reliability must present itself in relation to that specific nuance. The evidence before me does not meet the necessary threshold, particularly given that no procedural guarantees of reliability are present.

[ 22 ] Because the circumstantial guarantees of reliability advanced in this case do no more than potentially address the accuracy and truthfulness of the statement insofar as there having been a shooting, I would ultimately be left without the tools or information necessary to evaluate the accuracy or truthfulness of the deceased’s identification of O.W., the very fact that the Crown seeks to rely upon to further its case. As a result, I could not fairly give O.W.’s alleged participation in the prior shooting any weight when assessing whether he was the second shooter on December 6, 2021.

[ 23 ] In summary, I find that the hearsay statements present significant dangers that are not overcome by procedural or substantive guarantees of reliability, or some combination of the two.

[ 24 ] I will make one final point before turning to the Crown’s argument on the “state of mind” hearsay exception. The defence argues that Ms. Guindon’s credibility and reliability are relevant to the issue of threshold reliability. I disagree on this point with one caveat as set out below. Had I been satisfied that the deceased’s purported statements were sufficiently reliable to warrant admission, I would not have excluded them because of potential issues with Ms. Guindon’s evidence. Threshold reliability stands “as a substitute for cross-examination of the declarant not the narrator of the out-of-court statement”: Blackman , at paras. 48, 50 . Difficulties regarding the credibility of the recipient are properly left to the ultimate trier of fact given that they can fully assess the truthfulness and accuracy of their testimony: Blackman , at para. 50 . As stated by Paciocco J.A. in R v Dion , 2025 ONCA 7 , at para 38 : “the threshold reliability inquiry is concerned with the reliability of the hearsay assertion itself, not the reliability of the testifying witnesses who are recounting the hearsay assertion.”

[ 25 ] With that said, there may be rare cases where the credibility or reliability of the recipient is “so deficient” that it robs the out-of-court statement of any potential probative value. In those exceptional circumstances, trial judges may exercise their residual discretion to exclude the hearsay statement: Blackman , at para. 51 . I would not have exercised my residual discretion in such a manner here had the hearsay statement otherwise met the twin criteria of threshold reliability and necessity.

State of Mind Exception

[ 26 ] The Crown also seeks to adduce the deceased’s statement regarding O.W.’s alleged participation in the Bayshore shooting to establish the deceased’s state of mind at the time. The Crown argues that the accuracy or truthfulness of the deceased’s identification of O.W. aside, the fact that the deceased either genuinely believed the shooter to have been O.W. or even falsely accused him, constitutes some evidence that the two had “beef.” Put another way, the Crown maintains that an inference of animosity can be drawn solely from the fact that the deceased said the shooter was O.W., which in turn supports an inference that O.W. felt the same, giving rise to a motive on the part of O.W. six weeks later to commit the homicide. The Crown maintains that because the probative value of the statement flows solely from the fact that it was made and not from its accuracy or truth, the hearsay dangers that present themselves pursuant to the principled exception do not arise. The Crown raised this argument for the first time during oral submissions.

[ 27 ] Pursuant to the traditional “state of mind” hearsay exception, an out-of-court statement may be admitted into evidence if, at the time it was made, the statement disclosed the declarant’s relevant, existing state of mind and the statement was made in a natural manner and not under circumstances of suspicion: R v Dion , 2025 ONCA 7 , at para 29 . Evidence admitted under this exception must only be used to demonstrate the intentions or state of mind of the declarant at the time the statement was made and not to establish the past acts or event that the statement describes: R v Starr , 2000 SCC 40 , [2000] 2 S.C.R. 144, at para. 168 ; Dion , at para. 29 . Under this traditional exception, I am not required to consider whether the admission of the evidence would cause prejudice to the accused: Dion , at para. 41. Nor must I engage in the kind of general reliability inquiry required by the principled exception: Dion , at para. 41 .

[ 28 ] Though trial judges possess a residual discretion to exclude hearsay evidence that otherwise meets the test for a traditional hearsay exception, the exercise of this discretion in favor of exclusion should be rare: Dion , at paras. 32-33 . The set preconditions for traditional, fixed hearsay exceptions are tailored to ensure that only sufficiently reliable hearsay statements meet the test for admission. That being said, a party may still argue that even though the preconditions to a traditional exception are met, the evidence nonetheless lacks sufficient reliability in the unique circumstances of the case and should therefore be excluded: R v Mapara , 2005 SCC 23 , [2005] 1 S.C.R. 358, at para. 15 ; Dion , at para. 33 .

[ 29 ] Finally, as noted above, the reliability of the witness recounting the hearsay statement is not a relevant factor when assessing whether the preconditions of the traditional exception have been met. At most, the reliability of the recipient can influence the exercise of my residual exclusionary discretion: Dion , at para. 38 .

[ 30 ] I am satisfied that the deceased’s statements were made in a natural manner and not under circumstances of suspicion. The deceased purportedly told Ms. Guindon about the alleged shooting without prompting. He did so while out-of-breath and seemingly scared. There is an absence of evidence that he sought to gain anything from this narrative. There is no evidence that he was in trouble with Ms. Guindon at the time and looking to engender sympathy. He did not ask Ms. Guindon to take any action like call the police. Indeed, he did not ask her to tell anyone or do anything, and he never spoke to her about it again. There is no evidence that Ms. Guindon was in a position of trust or authority over O.W. such that the deceased’s statements to Ms. Guindon could have been intended to negatively impact O.W. in some way.

[ 31 ] Though I am satisfied that the statement was made naturally and not in suspicious circumstances, a state of mind cannot be proved pursuant to this exception unless it is relevant to an issue in the case: R v Griffin , 2009 SCC 28 , [2009] 2 S.C.R. 42, at para. 59 ; Dion , at para. 43 . The passage of time between the hearsay statement and the alleged criminal act can undoubtedly render a prior state of mind irrelevant: Dion , at para. 43 . With that said, I have no specific concerns regarding remoteness given that the hearsay statement was purportedly made approximately six weeks before the homicide. However, I am concerned about what inferences can reasonably be drawn from the deceased’s statements given the evidentiary record before me.

[ 32 ] I appreciate that the deceased’s state of mind regarding acrimony in his relationship with O.W., if established, could support a circumstantial inference about O.W.’s state of mind regarding same. As Paciocco J.A. stated in Dion at para. 45 : “…there is no bar on drawing circumstantial inferences about the likely state of mind of a person in a relationship with the speaker relating to that relationship, based on proof of the state of mind of the speaker about their relationship…If the speaker is troubled by their relationship, there is an increased likelihood of acrimony within the relationship that both would feel.” Paciocco J.A. described that logic as “unassailable.” In Dion , however, the prior statements made by the deceased clearly supported the inference that there was conflict in her relationship with the accused, and by further extension an inference that the accused was of the same mindset and therefore had a motive to kill the deceased.

[ 33 ] It follows from the above, however, that the weaker the connection between the declarant’s statements and what they reflect about their relationship with another individual, the weaker the inference that can be drawn regarding the supposed, co-existing state of mind of the other person. To that end, in the present case, the circumstances surrounding the deceased’s belief that O.W. was involved in the prior shooting are still relevant to the analysis under this traditional exception because they impact the reasonableness of the inferences the Crown seeks to rely upon. As stated in my analysis of the principled exception, the evidentiary record before me is bereft of detail regarding the foundation of the deceased’s identification of O.W.

[ 34 ] If the deceased’s supposed belief that O.W. shot at him derived solely from a mistaken identification on the day of the alleged shooting and nothing else, then his identification of O.W. as the shooter says nothing about whether there was conflict in their relationship. Consequently, it would equally tell us nothing about whether O.W. held animosity towards the deceased and therefore had a motive to harm him.

[ 35 ] On this evidentiary record, I simply lack the contextual information I need to carefully assess what inferences can be drawn from the deceased’s identification of O.W. as the shooter. The dearth of evidence regarding the circumstances that lead the deceased to believe that O.W. was involved in the Bayshore shooting significantly undermines the strength of any inference that can be drawn regarding O.W.’s state of mind towards the deceased. I cannot ascertain whether the deceased identified O.W. as the shooter solely because he thought he saw him, or because of that fact in combination with other factors like pre-existing conflict. Without that information, in my view, the deceased’s identification of O.W. as the shooter, regardless of whether true or accurate, cannot reasonably support an inference of pre-existing and ongoing conflict in the relationship, which could then support a related, secondary inference that O.W. felt the same way.

[ 36 ] In summary, the Crown asks me to accept Ms. Guindon’s evidence that the deceased told her that O.W. fired shots at him in Bayshore Park. Without assessing the reliability or truth of the deceased’s identification of O.W., as the evidentiary record does not permit me to do so, the Crown asks me to nonetheless infer from the fact that the deceased either genuinely believed O.W. to be the shooter or sought to falsely accuse him of that crime, that there was conflict in their relationship. From there, the Crown asks me to infer that O.W. harbored that same animosity towards the deceased, and therefore he is more likely to have been involved in the homicide. In my view, these inferences rest on an unstable foundation that factually I am unable to resolve.

[ 37 ] I appreciate that relevance is a low threshold. In my view, however, the deceased’s statements, for the mere fact that they were purportedly uttered, are incapable of reasonably supporting the inferences sought by the Crown, and therefore the Crown’s application fails on this branch as well. On this evidentiary record, the deceased’s state of mind cannot reasonably establish a motive on the part of O.W. to commit the crime alleged through the series of inferences that the Crown invites me to draw.

Conclusion

[ 38 ] Given the circumstances in which the hearsay statement was made, including that it was made during a very brief discussion with Ms. Guindon and that the deceased’s statements were conclusory and perfunctory in relation to O.W.’s purported involvement, I cannot adequately test the trustworthiness or reliability of the statement. The circumstantial guarantees of reliability cannot overcome the dangers presented. As a result, the statements purportedly made by the deceased to Ms. Guindon will not be admitted into evidence for the truth of their contents.

[ 39 ] Similarly, I decline to admit the statements to establish the deceased’s state of mind. The deceased’s state of mind is only relevant insofar as what can reasonably be inferred from it regarding O.W.’s state of mind. In my view, nothing about O.W.’s state of mind regarding his views of the deceased can be safely inferred from the deceased’s potential misidentification of him as the Bayshore shooter.

[ 40 ] For the above reasons, the Crown’s application is dismissed.

McVey J.

Released: April 28, 2025