Court File and Parties

Court File No.: CR-122-24 (London)
Date: 2025-05-26
Ontario Superior Court of Justice (Southwest Region)

Between:
His Majesty the King
and
Michael McLeod, Carter John Hart, Alexander Formenton, Dillon Dubé & Callan Hayden Foote, Accused

Appearances:

• Meaghan Cunningham and Heather Donkers, for the Crown
• David Humphrey and Anna Zhang, Counsel for Michael McLeod
• Megan Savard and Riaz Sayani, Counsel for Carter Hart
• Daniel Brown and Hilary Dudding, Counsel for Alexander Formenton
• Lisa Carnelos and Julie Santarossa, Counsel for Dillon Dubé
• Julianna Greenspan and Lauren Crawford, Counsel for Callan Foote

Heard: May 23, 2025

Restriction on Publication

By court order made under subsection 486.4(1) of the Criminal Code, RSC 1985, c C-46, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

Ruling on Voir Dire Re: The Admissibility of Evidence on the Principled Approach to Hearsay Evidence

Maria V. Carroccia

Introduction

[1] After I provided my ruling on May 23, 2025, dismissing the application brought by the Crown to admit into evidence as past recollection recorded a text message sent by Brett Howden to Taylor Raddysh on June 26, 2018, the Crown brought a further application to admit that same message into evidence pursuant to the principled approach to hearsay evidence.

[2] For the following reasons, the application will be dismissed.

The Legal Principles

[3] In R. v. Charles, 2024 SCC 29, the Supreme Court reaffirms the principles initially set out in R. v. Bradshaw, 2017 SCC 35, and R. v. Khelawon, 2006 SCC 57, regarding the dangers of admitting hearsay evidence at trial.

[4] At para. 43 of Charles, Moreau J. speaking for the majority of the Court said:

Hearsay evidence is presumptively inadmissible (see, e.g., Bradshaw, at paras. 1 and 21). Its presumptive inadmissibility is due to the fact that it is often difficult to assess the truth of a statement made outside the courtroom. In Bradshaw, Karakatsanis J. explained that, generally, “hearsay is not taken under oath, the trier of fact cannot observe the declarant’s demeanor as she makes the statement, and hearsay is not tested through cross‑examination” (para. 20). However, “[t]he truth‑seeking process of a trial is predicated on the presentation of evidence in court” (Bradshaw, at para. 19), and “our adversary system is based on the assumption that sources of untrustworthiness or inaccuracy can best be brought to light under the test of cross‑examination” (Khelawon, at para. 48). It is “mainly because of the inability to put hearsay evidence to that test” that such evidence is presumptively inadmissible (Khelawon, at para. 48; see also Bradshaw, at para. 1).

[5] Under the principled exception, hearsay evidence may be admitted at trial where the party tendering it establishes, on a balance of probabilities, that it is necessary and reliable. To establish threshold reliability, that party may demonstrate its procedural or substantive reliability (Charles, at para. 45) or a combination of both.

[6] Procedural reliability can be established where there are adequate substitutes for testing the truth and accuracy of the statement. This could include a videorecording of the statement, the presence of an oath or warnings about the consequences of lying: see Bradshaw, at para. 28.

[7] Substantive reliability is established when the statement is inherently trustworthy: see Charles, at para. 47. In assessing substantive reliability, the court can consider the circumstances in which the statement was made as well as evidence that corroborates or conflicts with it. The standard is a high one.

[8] In Bradshaw, at para. 31, Karakatsanis J. stated:

Substantive reliability is established when the statement “is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken” (Smith, at p. 933); “under such circumstances that even a sceptical caution would look upon it as trustworthy” (Khelawon, at para. 62, citing Wigmore, at p. 154); when the statement is so reliable that it is “unlikely to change under cross-examination” (Khelawon, at para. 107; Smith, at p. 937); when “there is no real concern about whether the statement is true or not because of the circumstances in which it came about” (Khelawon, at para. 62); when the only likely explanation is that the statement is true (U. (F.J.), at para. 40).

[9] The court must be cognizant of the fact that only hearsay that is necessary and reliable should be admitted to protect the fairness of the trial and the integrity of the truth-seeking process.

[10] At para. 44 of Bradshaw, Karakatsanis J. explained how corroborative evidence can be used in assessing the substantive reliability of a hearsay statement. She said:

In my view, the rationale for the rule against hearsay and the jurisprudence of this Court make clear that not all evidence that corroborates the declarant’s credibility, the accused’s guilt, or one party’s theory of the case, is of assistance in assessing threshold reliability. 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.

[11] Corroborative evidence must work in conjunction with the circumstances to overcome the specific hearsay dangers raised by the tendered statement. As a result, the corroborative evidence must show that material aspects of the statement are unlikely to change under cross-examination. Put another way, if the combined effect of the corroborative evidence and the circumstances of the case show that the only likely explanation for the hearsay statement is that the declarant was telling the truth, then this overcomes the hearsay dangers associated with admission of the statement: see Bradshaw, at para. 47.

[12] In Bradshaw, at para. 57, the Court set out a framework for determining whether corroborative evidence assists in the substantive reliability analysis as follows:

1. Identify the material aspects of the hearsay statement that are tendered for their truth;
2. Identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;
3. Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and
4. Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.

[13] Corroborative evidence that merely supports the truthfulness of the statement, supports the allegation or corroborates the declarant’s credibility is not enough: see R. v. Mohamed, 2023 ONCA 104, para 55. “The function of the corroborative evidence at the threshold reliability stage is to mitigate the need for cross-examination, not generally, but on the point that the hearsay is tendered to prove” (Mohamed, at para. 55 citing Bradshaw at para. 46).

The Positions of the Parties

[14] In determining threshold admissibility, the Crown submits that the evidence meets the criteria of both necessity and reliability. The evidence is necessary because Mr. Howden has no present recollection of the incident to which he refers in the text message and his memory was not refreshed by reviewing the message.

[15] Furthermore, the Crown submits that the evidence meets both procedural and substantive reliability factors, and the court can rely on a combination of both to admit the evidence under the principled exception to the hearsay rule.

[16] As for the procedural reliability of the statement, the Crown submits that Mr. Howden is available to be cross-examined and so the statement’s truth and accuracy can be tested.

[17] In relation to the substantive reliability factors, the Crown asks the court to consider that there is corroborative evidence to show that the only likely explanation for the hearsay statement is its truth. The Crown identifies the material aspects of the text that are being tendered for its truth are that Mr. Dubé was “smacking E.M.’s buttocks” and that the smacking “looked so hard” that it appeared to Mr. Howden that it “hurt so bad”.

[18] The Crown submits that there is a rational basis to reject alternative explanations including the remote possibility that the statement is false or inaccurate. The text exchange occurred only one week after the events described while they were fresh in Mr. Howden’s mind, and he testified that he believed he was being truthful in the text messages. The corroborating evidence upon which the Crown relies, the evidence of E.M. and Tyler Steenbergen, makes the likelihood that Mr. Howden was mistaken or exaggerating unlikely.

[19] Finally, the Crown submits that the probative value of the statement is high and the prejudicial effect is low, given the unlikely possibility that the evidence will be misused if admitted.

[20] The defence takes the position that while the Crown has met its onus regarding the necessity of the evidence, the reliability of the evidence has not been made out on a balance of probabilities.

[21] In considering the procedural reliability criteria, the defence submits that the test has not been met. There are no adequate substitutes to test the truth and accuracy of the statement. In fact, the witness did not vouch for the accuracy of the statement and admits that it could be inaccurate. He acknowledged other falsehoods in the text message conversation.

[22] The defence submits that the same reliability dangers exist that the court considered when the Crown sought to introduce this very evidence as past recollection recorded. The ability to cross-examine the witness is illusory given his inability to recall the event, and it is unclear whether the statement is from his own observation or whether he is reporting what someone else told him.

[23] Furthermore, the witness cannot vouch for the accuracy of the text message and the value of the corroborative evidence is minimal. The defence, and in particular Ms. Carnelos, counsel for Mr. Dubé, does not dispute what Tyler Steenburgen testified to, that is, that Mr. Dubé’s hand was placed on the buttocks of E.M.

[24] The defence submits that the important details of the text message are not corroborated. The complainant testified that she was slapped hard, but she described a different scenario with a number of persons slapping her as hard as they could while she was performing sex acts. Furthermore, she does not identify Mr. Dubé as being one of the persons who slapped her hard on her buttocks. She described slaps to her buttocks happening on several occasions and not a single hard “smack”.

[25] The defence submits that it is entirely possible that Mr. Howden was lying to Mr. Raddysh or careless with the truth or otherwise exaggerating such that it has not been established that the only likely explanation for the statement is that it is the truth.

The Principles Applied

[26] In considering the admissibility of the text message for its truth pursuant to the principled exception to the hearsay rule, the court must first consider whether the evidence is necessary. Necessity does not require that the witness have a total absence of memory. In this case, the witness has no recollection of the observation he made that he relates to Mr. Raddysh in that text message, but does remember other events that occurred that evening. This is sufficient to meet the necessity criteria.

[27] Next, I must assess the reliability criteria to determine whether the Crown has met its onus. When determining the procedural reliability of the text message, I have considered whether there are adequate substitutes present to test the truth and accuracy of the statement.

[28] In this case, I find that those safeguards are absent. The statement was not provided in a setting that would provide the necessary assurances required. The text message is in writing in the sense that it was written and sent by Mr. Howden. However, it was not provided in the same manner that a traditional statement is provided. The statement is not videorecorded, it was not given under oath, nor was it provided in circumstances where it was intended to be relied upon. As I indicated previously, I have concerns regarding the accuracy of the statement. And, with no recollection of the events referred to in the text, effective cross-examination will be impacted.

[29] However, that is not the end of the analysis. The court must now consider the substantive reliability of the statement. In assessing substantive reliability, the court should consider the circumstances in which the statement was made and the evidence which corroborates or conflicts with that statement. In this case, the “statement” is a text message sent by Mr. Howden to a friend during which they are conducting a casual conversation. He expressed, as I indicated in my earlier decision, that he was scared and nervous. He was not attempting to be factual. He had no reason to believe that the statement would be used for any purpose and cannot vouch for its accuracy although he was not trying to lie.

[30] The Crown asks the court to consider whether other evidence corroborates the statement to a sufficient degree to alleviate any concern as to substantive reliability, and recognizes that although the standard for substantive reliability is high, it does not need to be established to an absolute certainty.

[31] The court must consider the inherent trustworthiness of the statement. In accordance with the principles set out in Bradshaw, at para. 57, the court must assess the four factors set out there:

1. Identify the material aspects of the hearsay statement that are tendered for their truth.

[32] In this case, the material aspects of the statement relied upon for its truth are that Mr. Dubé “smacked” E. M.’s buttocks and that it “looked so hard” that it appeared to hurt. Mr. Dubé does not dispute that he touched E.M.’s buttocks, but the characterization of that touching and the force applied is an issue.

[33] At the next step, the court must:

2. Identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case.

[34] As identified by the Crown, the hearsay danger raised is that the statement is untrue or unreliable. The defence also raises the possibility that the evidence could have been contaminated by post-offence discussions with others.

[35] At the next step, the court must then:

3. Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement.

[36] Given the evidence, it is possible that Brett Howden made up a lie about seeing Mr. Dubé smack E.M., or that he was mistaken about what he saw, or he was mistaken or exaggerating about the force of the hit.

[37] Finally, at step 4 the court must:

4. Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.

[38] The Crown submits that Mr. Howden expressed no reservations about his memory while texting with Mr. Raddysh. It must also be remembered that Mr. Howden testified that he was drunk the night of June 18, 2018, and into June 19, 2018, and his evidence was equivocal about the accuracy of those text messages.

[39] The Crown relies on the evidence of E.M. as corroborative of the text message in issue. On May 5, 2025, in examination in chief, E.M. testified that as she was performing oral sex on three men “there was some slapping at that point, too, I believe so”.

[40] When asked to describe what she experienced, the complainant said:

A. I remember just, yeah, again, I didn’t know that was about to happen. I wasn’t looking, you know, behind me, but I felt just slapping start to happen on my butt while I was performing oral on the other ones.

[41] She also describes performing oral sex on Mr. McLeod while he is lying on the bed and that there were people behind her who started slapping her at that point too. She described multiple people slapping her, taking turns, trying to hit as hard as they could. E.M. testified that it started to hurt and she told them to stop.

[42] The Crown also relies on Mr. Steenbergen’s evidence as corroborative of the text message in issue. Mr. Steenbergen testified that he saw Dillon (Mr. Dubé) slap the complainant’s butt. He described that it was not hard but it did not seem soft either. At another point, Mr. Steenbergen called it a tap. When he referred to an earlier statement to refresh his memory as to whether there was any response from E.M. to this slap, he testified that he did not hear a reaction from her and that he did not observe any other reaction from anyone else in the room. He said she was on her knees on the ground when the slap happened.

[43] In cross-examination, when it was suggested to the witness that the slap “looked like foreplay” Mr. Steenbergen said it was possible. He agreed that the mood was playful and it was not an abusive act. He did not get the impression that “anyone was trying to hurt anyone”.

[44] In his September 17, 2022 statement to Danielle Robitaille, at pages 8-10, Mr. Howden said that he did not visually remember seeing the slap, although he heard it and it was loud. He remembers hearing crying, and it could have been correlated to the slap, but he could not say 100 percent.

[45] In his statement to Detective Constable Tiffany Waque of the London Police Service provided on August 23, 2023, at pages 44-45, Mr. Howden is asked about his observations of “Dillon Dubé spanking the girl in the butt” and he says he remembers it happening and hearing it and he “thinks” he saw it when it happened and that it was loud and that that was the thing “that finally pushed [me] out the door”.

[46] At no point in those statements to the police or to Hockey Canada investigators does Mr. Howden say that the slap was so hard that it looked like it hurt.

[47] In Charles, at para. 59, the Court sets out the dangers of admitting a hearsay statement only because it may be consistent with other evidence at trial. The Court said at para. 59:

Admitting a hearsay statement only because it is consistent with other evidence treats it as a makeweight: the statement would be added to the other evidence even though its own weight actually depends entirely on that other evidence” (D. M. Paciocco, P. Paciocco and L. Stuesser, The Law of Evidence (8th ed. 2020), at p. 167). Moreover, “it can be difficult to control the length and complexity of the admissibility voir dire if the reliability of the hearsay statement derives from other evidence. Where the search for consistency is taken too far, the admissibility voir dire can easily become a time‑consuming shadow trial” (p. 167).

[48] The evidence of Mr. Steenbergen and E.M. differs as to the number of people who slapped her on the buttocks, the number of times she was slapped and the amount of force used by the individuals who allegedly engaged in this behaviour.

[49] I must consider whether the corroborative evidence rules out any alternative explanation such that the only remaining explanation for the statement is the declarant’s truthfulness or accuracy about the material aspects of his statement, that is that Mr. Dubé was responsible for the smack that was hard and that looked like it hurt.

[50] If E.M. is correct about the slapping of her buttocks, she was slapped by multiple people not just one individual both when she was on the floor and on another occasion when she was on the bed. She did not testify about the degree of force used the first time she was slapped by people and on the second occasion she said it was hard and it hurt. She does not identify any of the individuals who allegedly slapped her buttocks. Mr. Steenbergen testified that the slap by Mr. Dubé was not hard but not soft either. He describes it as happening when she was on the floor. E.M. did not describe the slapping that occurred when she was on her knees on the floor as hard or hurting her. Mr. Dubé does not dispute that he touched E.M.’s buttocks.

[51] Is it possible that Mr. Howden is mistaken about whether Mr. Dubé was the one who smacked E.M. so hard that it looked like it hurt? Or that he exaggerated the amount of force used? That is a possible explanation. Based on all of the evidence, it is possible that other people whom the complainant could not identify were responsible for smacking the complainant’s buttocks with such force that it hurt.

[52] When assessing threshold reliability, the court must consider whether in court, contemporaneous cross-examination of the hearsay declarant would add anything to the trial process, that is, that the material aspects of the statement are unlikely to change under cross-examination: see Bradshaw, at para. 47. If alternative explanations for the statements could have been elicited during cross-examination, then the hearsay dangers persist and the statement should not be admitted: see R. v. Tsega, 2019 ONCA 111, para 26.

[53] In the circumstances, those alternative explanations for the statement could be elicited during cross-examination such that the hearsay dangers persist. Considering all of the circumstances, including the corroborative evidence addressed, I am not satisfied that the high standard to satisfy the procedural or substantive reliability of the statement have been met and the text message will not be admitted as a principled exception to the hearsay rule.

Maria V. Carroccia
Justice

Released: Orally – May 26, 2025
In writing – May 29, 2025