His Majesty the King v. Justin Steeves, 2025 ONSC 3372

CITATION: R. v. Steeves, 2025 ONSC 3372

COURT FILE NO.: CR-25-11-00BR

DATE: 20250605

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Applicant

– and –

JUSTIN STEEVES Respondent

Counsel:

Kerry Ann Kennedy and David Morgan, for the Crown Applicant

Tyler Smith and Kaitlyn Mathews, for the Respondent

HEARD: May 6^th^ and May 28^th^, 2025

Before: Justice M. Henschel

REASONS FOR JUDGMENT: Admissiblity of Statement Under the PRINCIPLED EXCEPTION TO THE HEARSAY RULE

A. Overview

1Justin Steeves is charged with the second degree murder of Kenneth Chopee. The murder is alleged to have occurred on or about January 25, 2023.

2The Crown has applied to introduce the out of court video statement of witness Brent Gavine, who is now deceased, for the truth of its contents under the principled exception to the hearsay rule.

3On the morning of January 27, 2023, Region of Durham employees attended Mr. Chopee’s home, a micro housing unit, Unit 1 - 328 Drew Street, Oshawa to conduct a wellness check.

4Mr. Chopee, a fentanyl user, had not responded to door knocks to receive his methadone delivery since January 25, 2023. This was out of character. An unknown male, later identified as Mr. Steeves, was inside, which was not permitted. He did not let the workers enter the unit and the workers contacted the police for assistance to conduct the wellness check.

5Several officers including Sgt. Colin Lemanis, responded to the unit. Sgt. Lemanis opened the door, went inside, and found Mr. Steeves. Mr. Steeves told Sgt. Lemanis that Mr. Chopee was his uncle and he had gone out to get groceries. Sgt. Lemanis checked the bathroom and located Mr. Chopee, deceased, on the floor of the shower. A plastic bag was around his head and face and a wooden handled knife was sticking out of his neck.

6Mr. Steeves was arrested for outstanding warrants and was transported to the police station where he was arrested for the murder. He has remained in custody since that time.

7Brent Gavine provided a one-hour video statement to DC Craig Willis on January 31, 2023. The statement was under oath, and Mr. Gavine was cautioned about the consequences of failing to tell the truth. During the interview Mr. Gavine was impacted by fentanyl use and was extremely fatigued. Mr. Gavine passed away on July 7, 2023.

8The following is a brief summary of the substantive content of the statement related to the material aspects of the statement the Crown seeks to rely on for the truth of the contents:

• Mr. Gavine said he had known Mr. Chopee for several months. He mentioned dropping off a gift for him “a couple days ago”. He said when he stopped in Justin Steeves was there and told him he had known Kenny for years. He said Ken Chopee was at the unit and agreed with Mr. Steeves.

• Mr. Gavine said he knows Justin Steeves and does not like him.

• He said he heard Mr. Chopee was beaten to death and also that Justin Steeves was beaten to death. He said he would not believe what he heard until he “talked to a guy like you”. DC Willis asked Mr. Gavine who he had heard things from. He said somebody told him about it because “they knew I’d be like wow, you know”. DC Willis asked if he knew Simon. Mr. Gavine responded, “Oh yeah, he was there, yeah”.

• DC Willis asked Mr. Chopee to tell him about Simon. Mr. Gavine said he did not really know him. He said he quit “smashin the shit like crazy ‘cuz I’m working a different job”. He said he stopped at Mr. Chopee’s to get out of the wind and to have a “couple tokes” and then planned to be on his way. He said Ken was out of control and that he had an issue, if there was “dope on the table” he would do all of it.

• DC Willis suggested to Mr. Gavine that they were smoking fentanyl stating “So when you say that you’re smoking is this fentanyl?”. Mr. Gavine agreed.

• DC Willis asked Mr. Gavine numerous leading questions about the circumstances surrounding his attendance at the unit. For example:

  DW: How did you get there? Did you walk, did you get a ---Bicycle? Okay. So you go there this is down on Drew Street right?

  BG: Mmm

• Mr. Gavine said Mr. Chopee’s neighbour Greg is also his friend. DC Willis asked a further leading question:

  DW: Okay. So when you …so when you go to when you go to Ken’s place riding your bicycle, um, who else is there?

  BG: Mm. Just the three of them.

  DW: So, who’s that, Ken and

  BG: Like Simon uh, dickhead, and uh Ken.

• DC Willis repeated “and then you showed up on a bicycle, okay. And you said that there were drugs on the table?” Mr. Gavine said they were “going crazy” and DC Willis Stated: “With fentanyl?” and Mr. Gavine agreed.

• Mr. Gavine told DC Willis that “they” were doing huge smashes. He said when he left, he made sure he (Mr. Chopee) was okay, and he did not expect “that sort of outcome to happen”. DC Willis suggested that Mr. Chopee was injecting fentanyl into his arms. Mr. Gavine agreed.

• DC Willis told Mr. Gavine there was video surveillance at 328 Drew Street and told him he “showed up” on Wednesday January 25 “which would be last Wednesday”. Mr. Gavine asked, “When I dropped my stuff off?”. DC Willis told him he believed he showed up by a bicycle.

• When DC Willis asked Mr. Gavine if he went there and stayed for a bit or if he left and came back or what he recalled, Mr. Gavine said “I was there for a day or two”.

• DC Willis asked Mr. Gavine if there was any type of disagreements or arguments going on. Mr. Gavine initially said “none”.

• DC Willis suggested to Mr. Gavine that “the four of you were all using fentanyl in some capacity” … “is that fair to say”? Mr. Gavine responded “yeah”. Mr. Gavine said he tried to inject fentanyl, but he could not because they were arguing. He said they were “debating about shit” and he could not remember what it was about.

• DC Willis suggested that Simon and Justin were also using fentanyl. Mr. Gavine responded “mmhmm”.

• DC Willis asked Mr. Gavine about his earlier comment that he made sure Mr. Chopee was okay before he left:

  DCW: And you made mention earlier when we were talking that before you left you checked on him to make sure he was okay?

  BG: I didn’t need to check on him, I just looked at him and I could hear him breathing

  DCW: Okay was he uncon…was he asleep?

  BG: He was asleep, he was fuckin snoring.

  DCW: Okay. And what about Justin and Simon, what were they doing?

  BG: They were in the bathroom. Or not in the bathroom, kitchen.

• Mr. Gavine told DC Willis he assumed he (Ken) would be over or would get a hold of him within hours (after he left). He said that when he went there the next day there were lights everywhere. DC Willis told Mr. Gavine he believed he was there “on Wednesday, last Wednesday afternoon...And you were there for a period of time”. Mr. Gavine said “Yeah, cuz, I waited for him, eh, and I waited for Greg too and uh obviously Ken, but the second time I was like… all the lights down there, that’s when I knew something was up and I didn’t talk to you yet cuz I was fuckin shittin my pants, I didn’t know what to do, right”.

• DC Willis asked Mr. Gavine whether he left with anyone the day when Mr. Chopee was “going hard at fentanyl”. Mr. Gavine said he left with Simon. They walked uptown and then they parted ways. DC Willis asked where Justin was, and Mr. Gavine said Justin “was gonna take care of Ken”. DC Willis asked Mr. Gavine how Justin looked. Mr. Gavine said he did not know the guy. DC Willis asked if Justin seemed upset or sad or angry and asked if there was “any type of falling out or anything with anybody?”. Mr. Gavine said “No, not really, no”.

• DC Willis suggested to Mr. Gavine that prior to “that day” he had not seen Simon or Justin there before. Mr. Gavine said he might have brought them there.

• DC Willis suggested to Mr. Gavine that when he left on his bike that day, Ken was snoring, and Simon left at the same time and Justin was going to stick around to look after Ken. Mr. Gavine replied, “Yeah, I rode my bike”.

• Near the end of the statement DC Willis suggested to Mr. Gavine that when he left Ken was “fast asleep, he was snoring”. Mr. Gavine responded “Mm”. DC Willis suggested “He’s in that chair, he is in a chair or…” Mr. Gavine said “Mm. Yes. Yeah”. Later when DC Willis asked again if Ken was in a chair, Mr. Gavine said he “went up to get in one”. He said “he was not snoring he was being good”. DC Willis asked if Mr. Chopee was sitting or gearing up to sit down. Mr Gavine replied “Mm, I don’t know man, uh, like I’m so burnt out I couldn’t tell ya...I’m not gonna lie to you”.

9The material aspects of Mr. Gavine’s statement the Crown seeks to rely upon for the truth of the contents include i.) Mr. Gavine attended at Mr. Chopee’s unit on January 25, 2023; ii.) Mr. Chopee, Mr. Steeves, and Simon LeBlanc were also there; iii.) Mr. Gavine left the unit with Mr. LeBlanc on January 25, 2023; iv.) Mr. Chopee and Mr. Steeves remained in Mr. Chopee’s unit when Mr. LeBlanc and Mr. Gavine left; and v.) Mr. Chopee was alive when Mr. LeBlanc and Mr. Gavine left.

10In support of the application the Crown relies upon January 25, 2023 video surveillance clips obtained by investigators from 328 Drew Street, an investigative report containing still images from the video surveillance, and a summary of the surveillance. For the purposes of the application the continuity of the video from 328 Drew Street was admitted and it was agreed that the date and time stamps on the videos are accurate. The Crown submits the video surveillance corroborates Mr. Gavine’s statement.

11The Drew Street video surveillance is of good quality. It shows on January 25, 2023, at 1:45 p.m., persons the Crown alleges are Kenneth Chopee, Justin Steeves, and Simon LeBlanc entered Unit 1, Mr. Chopee’s unit. About thirteen minutes later, at 1:58 p.m. a male, the Crown alleges is Brent Gavine, arrived on a bicycle. He knocked on the door but was not admitted. He went to unit 3. A person the Crown has identified as Mr. Chopee opened the door slightly, looked outside and then shut the door. At 2:15 p.m. the man the Crown alleges is Mr. Gavine arrived back at Unit 1, knocked on the door, and entered Mr. Chopee’s Unit at 2:16 p.m.

12At 4:43, approximately 2.5 hours later, persons the Crown alleges are Mr. Gavine and Mr. LeBlanc leave unit 1.

13The Crown advises that the video surveillance shows that no one else entered or exited the unit after the persons believed to be Brent Gavine and Simon LeBlanc left the unit on January 25, 2023, until the police entered the unit for the wellness check on January 27, 2023.

14The Crown also filed the preliminary hearing evidence of Simon LeBlanc as corroborative evidence on the hearsay voir dire. In his evidence, Mr. LeBlanc said he last saw Mr. Chopee at his home. He said he entered Mr. Chopee’s home with Justin and Ken to consume drugs and he consumed fentanyl. He said Brent was also there at some point. He said when he left Mr. Chopee was passed out at the table and Justin (Steeves) was still there.

15Mr. LeBlanc viewed the January 25, 2023 Drew Street video surveillance. He identified himself, Justin Steeves, and Ken Chopee arriving at and walking up to the front door of the Unit. He also identified himself and Brent Gavine leaving the unit.

16During cross-examination, Mr. LeBlanc said he believed Ken was alive when he left the unit because he was loudly snoring.

17On May 28, 2025, I ruled that Mr. Gavine’s statement was not admissible under the principled exception to the hearsay rule. These are my reasons.

B. Governing Legal Principles.

18Hearsay evidence is presumptively inadmissible unless it falls under a traditional exception to the hearsay rule, or, alternatively, is admissible under the principled exception. It is presumptively inadmissible because it is difficult for the trier of fact to assess the truth of a statement made outside of court and without contemporaneous cross-examination. The onus is on the party tendering the evidence to show that it meets the requirements of a traditional exception or the principled approach.¹

19Under the principled exception, hearsay evidence may be admitted for the truth of its contents if the party tendering the statement establishes on a balance of probabilities that it meets the criteria of “necessity” and “threshold reliability”.²

20In this case, the parties agree that “necessity” is established because Mr. Gavine is unavailable to testify. At issue is whether the Crown has established “threshold reliability”.

21In Bradshaw Karakatsanis J., writing for the majority of the Supreme Court of Canada, explained that “threshold reliability” is established when hearsay “is sufficiently reliable to overcome the dangers arising from the difficulty of testing it” due to the absence of contemporaneous cross-examination of the hearsay declarant under oath before the trier of fact. In assessing threshold reliability, “the trial judge must identify the specific hearsay dangers presented by the statement and consider any means of overcoming them”. The potential hearsay dangers “relate to the difficulties of assessing the declarant’s perception, memory, narration, or sincerity and should be identified with precision to permit a realistic evaluation of whether they have been overcome”.³

22Perception, memory, and narration relate to the accuracy of the statement. Sincerity is a matter of the truthfulness of the declarant. It requires consideration of whether the declarant may have lied.⁴

23Threshold reliability can be established on the basis of “procedural reliability” or “substantive reliability”, or a combination of both. The “threshold reliability” standard always “remains high”. However, “threshold reliability” is not to be confused with “ultimate reliability” which is a matter for the fact finder to decide in light of all admissible evidence.

24“Procedural reliability” is concerned with whether there is a satisfactory basis for the trier of fact to rationally evaluate the evidence considering the evidence was not given in court, under oath, and under the scrutiny of contemporaneous cross-examination before the trier of fact. It considers whether there are adequate substitutes to allow the trier of fact to evaluate or test the evidence.⁵

25Relevant factors include whether the statement was video recorded (for accuracy), the presence of an oath, warning of the consequences of lying (for veracity), and whether the declarant is available for or has been subject to cross-examination. Some form of cross-examination is generally required to establish procedural reliability, such as at a preliminary inquiry or of a recanting witness at trial, to ensure that untested hearsay evidence will not be afforded more weight than it deserves.⁶

26“Substantive reliability” refers to circumstances where there are sufficient circumstantial guarantees that the statement is “inherently trustworthy”. To determine whether this is the case, trial judges may consider the circumstances in which the statement was made as well as the evidence that corroborates or conflicts with it.⁷

27“Substantive reliability” is established when the statement is made “under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken”.⁸ “Substantive reliability” is concerned with whether the circumstances in which the statement was made, and any corroborative evidence provide a rational basis to reject competing explanations for the statement, other than the declarant’s truthfulness and accuracy.⁹ While the standard for substantive reliability is high, it need not be established to an absolute certainty. However, to meet the standard of substantive reliability, “the trial judge must be satisfied that the statement is so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process”.¹⁰

28Bradshaw established a four-step analysis to determine whether corroborative evidence is of assistance in establishing substantive reliability:

1. identify the material aspects of the hearsay statement tendered for their truth.
2. identify the specific hearsay dangers they raise in the circumstances of the case.
3. based on the circumstances and those dangers, consider alternative, even speculative explanations for the statement; and
4. determine whether the corroborative evidence rules out the 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.¹¹

29It is not enough that the declarant’s truthfulness is more likely than any of the alternative explanations: based on the circumstances and any evidence led on the voir dire, the trial judge must be able to rule out any plausible alternative explanations to the truth of the statement on a balance of probabilities.¹²

30Procedural and substantive reliability are not mutually exclusive and “factors relevant to one can complement the other”. However, great care must be taken to ensure that a combined approach to threshold reliability does not lead to the admission of statements despite insufficient procedural safeguards and guarantees of inherent trustworthiness to overcome the hearsay dangers.¹³

31A trial judge has discretion to exclude evidence that otherwise meets the requirements for admission under the principled approach to the hearsay rule where the prejudicial effect of the evidence exceeds the probative value.¹⁴

C. Position of the Crown

32The Crown submitted that threshold reliability has been established on a balance of probabilities based on a combination of procedural and substantive reliability including corroborative evidence.

33Regarding procedural reliability, the Crown submits the statement was audio and video recorded and the recording was of good quality and accompanied by a transcript, which would afford the trier of fact the ability to clearly evaluate the declarant’s demeanour when he gave the statement. In addition, the statement was made under oath and cautioned, factors which support the veracity of the statement.

34The Crown, relying on S.S., submitted that absence of cross-examination is not necessarily fatal to the admissibility of an out of court statement. The statement itself (including the structure of a police interview, the complainant’s promise to tell the truth, the complainant correcting mistakes made by the interviewer, the interview being video recorded) and its context (knowledge of the consequences that would flow from making the statement) can convincingly address both procedural and substantive reliability.¹⁵

35In terms of substantive reliability, the Crown highlighted the following factors:

• The statement was given within days of the events in question, when events would be fresh in Mr. Gavine’s memory.
• DC Willis confirmed with Mr. Gavine that the statement was voluntary.
• DC Willis had not previously met Mr. Gavine.
• Mr. Gavine’s information about the identity of the parties who attended Mr. Chopee’s unit on January 25, 2023; including that he and Mr. LeBlanc left at the same time, and he left on his bike, is corroborated by the video surveillance obtained from the housing complex and the preliminary hearing evidence of Simon LeBlanc.
• Mr. Gavine’s information that Mr. Chopee was still alive when he left his residence is corroborated by the preliminary hearing evidence of Mr. LeBlanc.
• During the interview Mr. Gavine told DC Willis that his last fentanyl use was on the previous day, January 30, 2023, at noon.

36In addition, the Crown submitted that Mr. Gavine demonstrated the ability to correct or disagree with DC Willis, such as when DC Willis asked him if he panhandled and he forcefully responded that he did not panhandle, and when DC Willis suggested that Ken was going to kick out Mr. LeBlanc and Mr. Steeves, and Mr. Gavine corrected DC Willis and told him that he (Mr. Gavine) wanted to kick them out.

37The Crown submitted that there are no other exclusionary rules preventing the receipt of the evidence at trial. The probative value of the statement is greater than the risk of prejudice and there is no reason to otherwise utilize a residual discretion and exclude the statements.

D. Application of the Legal Principles to the Facts

Procedural Reliability

38Mr. Gavine’s statement was videotaped, under oath, and he was cautioned with the consequences of failing to tell the truth. However, Mr. Gavine was never subject to cross-examination on the January 31, 2023 statement. He was not available to testify at the preliminary hearing.

39There is good reason to doubt the usefulness of the oath and caution which the Crown submitted support the veracity of Mr. Gavine’s statement. Mr. Gavine was under the influence of fentanyl and extremely fatigued during the statement to the extent that he fell asleep or lost consciousness periodically throughout the statement, sometimes while DC Willis was speaking to him and sometimes during his own responses. He gave inconsistent information about when he last used fentanyl. At the beginning of the statement, he told DC Willis he used fentanyl that morning. Later, he said he last used fentanyl around noon the previous day.

40At the beginning of the statement, Mr. Gavine fell asleep while he was being advised that the statement could be used for the truth of its contents if he changed his statement. As DC Willis instructed Mr. Gavine about the potential future use of his statement in court proceedings, he had to rouse Mr. Gavine asking him, “Brent? Hey Brent? Are you still with me?.” Mr. Gavine replied “Yeah, I’m still with you man”. DC Willis continued and cautioned Mr. Gavine with the consequences of providing false information. After doing so, when DC Willis asked Mr. Gavine if he was prepared to give a statement he twice responded “no” seeming to misunderstand the question. After DC Willis clarified asking “You don’t wanna give us a statement?”, he replied “oh, yeah, yeah”.

41Shortly before the Commissioner of Oaths entered the interview room, Mr. Gavine told DC Willis he was falling asleep. After the Commissioner entered the interview room, as he was swearing Mr. Gavine to tell the truth, the Commissioner became concerned that Mr. Gavine did not understand and asked him “Are you with me Brent?”.

42In these circumstances, the value of the oath and cautions about the future use of the statement and the consequences of failing to the tell the truth as procedural safeguards to enhance the likely veracity of the statement is questionable.

43Most significantly, the declarant, Mr. Gavine is not available for cross-examination. Generally, some form of cross-examination is required to establish procedural reliability. While the unavailability of a declarant for cross-examination is not always fatal to the admissibility of a hearsay statement under the principled approach, in this case the absence of opportunity for cross-examination is significant because of the obvious concerns surrounding the credibility and reliability of Mr. Gavine.

44Procedural reliability relates to whether there are adequate substitutes for cross-examination to test truth and accuracy.¹⁶ In this case, there is no adequate substitute for cross-examination to test the evidence of a declarant, The fact that the statement was video, and audio recorded, under oath, and subject to caution, in the circumstances of this case, is far from sufficient to permit the jury to adequately evaluate the truth and accuracy of the hearsay statement in the absence of cross-examination.

Substantive Reliability

45There are many serious concerns about the substantive reliability of the statement. The primary concern being the impact of Mr. Gavin’s fentanyl use and fatigue on his ability to perceive, remember, and narrate events.

46At the beginning of the statement, Mr. Gavine told DC Willis he had not slept for days. When DC Willis asked if there was anything that might affect his ability to accurately recall the events, Mr. Gavine told DC Willis his fentanyl use may affect his ability to accurately recall.

47Mr. Gavine recognized he was not in a sufficiently sober state to provide a police statement related to a serious investigation. At the beginning of the statement, after the administration of the cautions and oath, at 9:09 p.m., Mr. Gavine told DC Willis that he was “nodding out” and said, “it is not a good time when you are talking about serious stuff”. He suggested he return the next day for the interview.

48At 9:32 p.m., in mid-sentence, following his indication that he wanted to “kick out” Mr. Steeves and Mr. LeBlanc from Mr. Chopee’s unit, Mr. Gavine briefly fell asleep or lost consciousness, losing his train of thought. The following exchange took place:

DW: Just because you didn’t really care for them?

BG: No, yah, uh, ‘cuz…where the fuck am I?...I, I.. I lost it there dude, sorry I…

DW: yeah, uh, what…

BG: …gapped out.

49A short time later, at 9:33 p.m., Mr. Gavine became confused again and stated that he was “burnt right out”.

50At 9:42 p.m., after DC Willis briefly exited the interview room, Mr. Gavine fell asleep with his head on the table.

51At the end of the statement, like at the beginning, Mr. Gavine commented that he was in no condition to give a statement. At 9:49 p.m. when DC Willis asked if there was anything else important that he had not asked Mr. Gavine about, Mr. Gavine responded “Yah and I’m not all that confident because I am feeling pretty pretty tired right now, but I’m pretty sure you got everything pretty handled”. DC Willis asked Mr. Gavine how he could find him, and Mr. Gavine replied, “We need to talk some more cause I’m not leaving it like this”.

52After a few minutes of further discussion, DC Willis asked Mr. Gavine how Ken was positioned when he left. Mr. Gavine said “Mm I don’t know man; I’m so burnt I could not tell you. I’m not gonna lie to you”. Mr. Gavine again suggested he come back another time because “it’s a pretty serious conversation”.

53Mr. Gavine was so confused he did not know whether it was day or night. When DC Willis asked him about the time, Mr. Gavine thought it was 9:54 a.m. and was surprised when DC Willis told him it was 9:54 p.m. Mr. Gavine responded “Fuck, I’m so tired for p.m. its amazing”.

54Mr. Gavine repeatedly told DC Willis he was tired. He fell asleep or briefly lost consciousness at least four times during the statement. In addition, at the beginning of the statement he told DC Willis he was extremely hungry. Food was provided to him during the statement.

55From the beginning to the end of the statement Mr. Gavine’s ability to respond to questions, and to accurately recall events was impacted by his fentanyl use and tiredness.

56In addition, Mr. Gavine’s ability to accurately perceive the events he was being asked to describe would unquestionably have been impacted by his fentanyl use on January 25, 2023.

57Another factor undermining the substantive reliability of the statement is the nature of the questioning. DC Willis was faced with the difficult task of obtaining information from an important witness who was impacted by addiction and homelessness and who he reasonably believed may be uncooperative or difficult to locate in the future. As a result, DC Willis frequently resorted to leading questions. He suggested answers to Mr. Gavine, which Mr. Gavine often adopted with little further elaboration, explanation, or detail.

58Thirdly, Mr. Gavine’s statement is plagued by internal and external inconsistencies. A few examples of the internal inconsistencies include the following:

• As noted earlier, Mr. Gavine gave inconsistent answers about his last fentanyl use. He initially said he used fentanyl that morning. Five minutes later Mr. Gavine said his last use was “before noon yesterday”.

• When DC Willis asked Mr. Gavine how he knew Mr. Chopee, Mr. Gavine said that he met Mr. Chopee when he came to Oshawa and “he was a pretty solid guy”. Moments later, Mr. Gavine said that Mr. Chopee use to “piss me off too, right cuz he was a pretty selfish guy”.

• Mr. Gavine initially said he was smoking fentanyl instead of injecting it and that he stopped at Ken’s to get out of the wind and get a couple of tokes. Later, when DC Willis asked Mr. Gavine if he smoked fentanyl (at Mr. Chopee’s) he said “No, I will inject it, but I haven’t really been”. He said he tried to (inject some) but he gave up because the others were talking and arguing.

• Mr. Gavine initially said there were no arguments or disagreements between the men while at Mr. Chopee’s home. Moments later he said he could not inject fentanyl because “the guys were talking and arguing and stuff so much”. When DC Willis asked what the arguments were about Mr. Gavine said “I don’t even think they were arguing, they were just like, uh I honestly can’t remember, like debatin about shit and it was --”. He then said, “I honestly, I am not going to lie to ya, I can’t really remember. It was nothing of any real importance”.

• In respect of whether Mr. Chopee was alive when Mr. Gavine left his unit, after describing Mr. Chopee “going crazy” with fentanyl, Mr. Gavine said he checked on Mr. Chopee when he left and made sure he was okay. A short time later, when DC Willis asked Mr. Gavine about his comment that he had checked on Mr. Chopee before he left, he responded “I didn’t need to check on him, I just looked at him and I could hear him breathing…. He was asleep, he was fuckin snoring.” Mr. Gavine said Justin was going to take care of Ken.

• At 9:34 p.m., the following exchange occurred between DC Willis and Mr. Gavine about Mr. Chopee’s state when Mr. Gavine left:

  DW: So…no, so…so when you left though Ken’s fast asleep, he’s snoring?

  BG: Mm.

  DW: He.. he’s i--…he’s in the chair, he’s in a chair or--?

  BG: Uh, yeah, he was yeah.

  DW: Okay. Justin sticks around and you left with Simon.

  BG: Mm, yes. Yeah.

  DW: Okay. Give me a couple minutes.

  BG: You know what, normally I’d be yeah, yeah, yeah, yeah, yeah, yeah, but I’m just so fuckin’…

  DW: no

  BG: …tired right now I don’t wanna—

  DW: Yeah, yeah…

  Eight minutes later, Mr. Gavine agreed with DC Willis’s suggestions to him that when he left Mr. Chopee was snoring and fast asleep, that Justin was going to stay with him, and that he left on his bicycle with Simon.

  Ten minutes later, near the end of the statement, when DC Willis asked Mr. Gavine if Mr. Chopee was snoring and was in the chair (as he had indicated previously), Mr. Gavine implied Mr. Chopee was not asleep and was not snoring. He said he was so burnt he “could not tell you”:

  DW: Was he in one of those (chairs) when you left?

  BG: He friggen went up to get in one.

  DW: Yeah? But you said when you left he was snoring.

  BG: Uh, he wasn’t snoring, he was just fuckin..he was being.. I guess good is the word you could say.

  DW: Okay. But he was…

  BG: So –

  DW: But you… so was he sitting or is he gearing up to sit down?

  BG: mm, I don’t know man, uh, like I’m so burnt out I couldn’t tell you.

  DWF: ‘kay. Okay.

  BG: I’m not gonna lie to you.

  DW: No.

  BG: You know…It’s a pretty serious conversation.

59There are also external inconsistencies between Mr. Gavine’s statement and the video surveillance. For example, Mr. Gavine said he saw Mr. Steeves after January 25, 2023, but then immediately changed his answer and said he did not see him after January 25, 2023. When DC Willis asked Mr. Gavine how long he stayed at Mr. Chopee’s home, Mr. Gavine said “I was there for, uh a day or two”. This is contradicted by the video surveillance which suggested he was at Mr. Chopee’s unit for approximately 2.5 hours on January 25, 2023. At another point, Mr. Gavine said he saw the police at Mr. Chopee’s unit the day after he was there. In fact, the police were at the unit two days later, on January 27, 2023.

60Sincerity is also a hearsay danger with respect to Mr. Gavine’s statement. Mr. Gavine, had he testified, would have been a Vetrovec¹⁷ witness. “Where there are objective reasons to suspect the credibility of the testimony of a Crown witness, the witness is a Vetrovec witness, and the trial judge must, within the bounds of reasonable discretion, warn a jury to view their evidence with caution”. In Mohamed, Justice Paciocco emphasized that it will be extremely challenging to establish that hearsay evidence from a Vetrovec witness is inherently trustworthy.¹⁸

61Mr. Gavine had a criminal record for numerous crimes of dishonesty including multiple convictions for break and enter, theft, and possession of property obtained by crime. He had a history of disobeying court orders, including convictions for failing to comply with probation, failing to appear, and failing to comply with the conditions of an undertaking.

62Although DC Willis told Mr. Gavine that he was not obliged to provide a statement and his participation in the interview was voluntary, the statement was provided under coercive circumstances and Mr. Gavine may have had an interest in appearing to assist police. On January 31, 2023, the day of his statement, Mr. Gavine was involved in a disturbance at Tim Horton’s shortly before he was transported to the police station. During the statement he was informed that the police were looking into an outstanding warrant for his arrest. He was advised near the end of the statement that the police service would not be picking him up.

63Other factors that raise concerns regarding Mr. Gavine’s sincerity include that Mr. Gavine expressed animus towards Mr. Steeves, he said he did not like him. He also said he heard rumours about what had happened to Mr. Chopee, something which may have tainted not only his memory but also his belief regarding Mr. Steeves involvement in the offence.

64The Crown, relying on S.S., submitted that Mr. Gavine demonstrated the ability to correct or disagree with DC Willis and this was a factor that supported the substantive reliability of the statement. In S.S. the Supreme Court of Canada, reversing the Ontario Court of Appeal, upheld a trial judge’s decision to admit the hearsay statement of an eight-year-old complainant who was unable to testify at trial. The majority of the Supreme Court of Canada allowed the appeal and restored the conviction “substantially” for the dissenting reasons of Justice MacPherson.

65In S.S., the child disclosed to her CAS worker that her uncle had sexually assaulted her and subsequently provided a statement to the police. One factor Justice MacPherson considered was the child’s ability to correct or disagree with the interviewing officer. However, the circumstances of the statement in S.S. were very different. Two key factors in Justice MacPherson’s conclusion that the statement was properly admitted were that the interview was conducted in a non-leading manner and in accordance with best practices; and the fact that the statement’s inherent trustworthiness came from the child’s detailed description of sexual acts well beyond her developmental stage. Justice MacPherson found that the only likely explanation for the statement was its truthfulness.

66Mr. Gavine’s interview was replete with leading questions. His responses were rarely detailed and often limited to a single word. One of the examples relied upon by the Crown to demonstrate Mr. Gavine’s willingness to disagree with DC Willis was when Mr. Gavine said that it was he, not Ken, who wanted to kick Mr. Steeves and Simon LeBlanc out of the unit. It was during this discussion that Mr. Gavine became confused and asked DC Willis where he was. The two examples relied upon by the Crown of Mr. Gavine disagreeing with DC Willis provide no assistance in establishing the inherent reliability of Mr. Gavine’s statement.

Corroborative Evidence

Step 1: Identify the Material Aspects of the Statement Tendered for the Truth

67The Crown submitted the video surveillance evidence from 328 Drew Street and the statement of Simon LeBlanc is significant corroborative evidence that establishes the substantive reliability of the material aspects of Mr. Gavine’s statement. The Crown carefully outlined their position in accordance with the four step Bradshaw framework,

68The Crown identified the five material aspects of Mr. Gavine’s statement the Crown sought to tender for the truth as follows:

a. Mr. Gavine attended at Mr. Chopee’s residence on January 25, 2023.

b. Mr. Chopee, Simon LeBlanc, and the Respondent were also there.

c. Mr. Gavine left with Mr. LeBlanc.

d. Mr. Chopee and the Respondent remained in Mr. Chopee’s residence when Mr. LeBlanc and Mr. Gavine left.

e. Mr. Chopee was alive when Mr. LeBlanc and Mr. Gavine left.

69The Crown submitted that the first four points relate to the identity of the persons who attended Mr. Chopee’s residence on January 25, 2023, and the fifth related to Mr. Chopee’s status when he was allegedly left alone with Mr. Steeves in the unit.

Step 2: Identify the Specific Hearsay dangers Raised by Those Aspects of the Statement in the Particular Circumstances of the Case

70The Crown conceded that all the specific hearsay dangers articulated by the Supreme Court in R. v. Khelawon, [2006] 2 S.C.R., at para. 2, are present in the circumstances of this case. In other words, the Crown conceded there are concerns that must be considered relating to the ability of the trier of fact to adequately assess Mr. Gavine’s perception, memory, narration, and sincerity.

Step 3: Based on the Circumstances and Hearsay Dangers, Consider Alternative, Explanations for the statement.

71In respect of the identity of the persons who attended Mr. Chopee’s residence, the Crown submitted that the surveillance footage is good quality and shows the parties at Mr. Chopee’s residence on January 25, 2023. The Crown submitted that it confirms Mr. Gavine’s recollection of who attended at the residence such that there are no alternative explanations.

72In respect of the information from Mr. Gavine that Mr. Chopee was alive when he and Mr. LeBlanc left the residence, the defence set out a detailed non-exhaustive list of alternative explanations as follows:

• Mr. Gavine’s animus to Mr. Steeves as a motive to lie.
• Mr. Gavine is a Vetrovec witness who simply cannot be trusted to tell the truth even under oath.
• Mr. Gavine’s receipt of other hearsay as a foundation to have additional animus against Mr. Steeves as a motive to lie or be inaccurate due to inadvertent tainting.
• Mr. Gavine’s inability to accurately recall the events because of his serious drug use at the time and after the events. In addition, the likelihood that he was also under the influence of fentanyl when he made the statement. This would surely impact on both his truthfulness and accuracy.
• Mr. Gavine had an interest in the outcome of the statement (he was under arrest or detention when he spoke to the police).
• Mr. Gavine may well have had an interest to lie to deflect suspicion from himself for potential involvement in the killing or the clean up.
• At the time of the statement, Mr. Gavine was seriously fatigued and doubted his own accuracy; and
• Mr. Gavine gave contradictory statements casting doubt on the reliability of narration, memory, and sincerity.

73The Crown agreed that the alternative explanations advanced by the Respondent are potential alternative explanations for the portion of Mr. Gavine’s statement dealing with whether Mr. Chopee was alive when Mr. Gavine left the unit.

Step 4: Determine whether the corroborative evidence rules out the 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.¹⁹

74The Crown submitted that the video evidence rules out alternative explanations for Mr. Gavine’s statement on the issue of the identification of the parties attending Mr. Chopee’s residence on January 25, 2023, and submitted that Mr. LeBlanc’s testimony at the preliminary hearing confirmed that Mr. Chopee was alive when he and Mr. Gavine left the residence.

Does the Corroborative Evidence Rule Out Alternative Explanations Regarding the Material Aspects of the Statement

75In Charles, the majority of the Supreme Court of Canada held the material aspects of a hearsay statement must sometimes be separately examined in the threshold reliability analysis because evidence that corroborates one aspect of a statement is not necessarily admissible to establish the statement’s reliability with respect to its other material aspects.

76In Charles, the accused was charged with assault with a weapon, using an imitation firearm, and uttering threats. It was alleged that he pointed a pistol at the complainant in a school washroom and threatened him with it while K.A. and another student were present. After the incident, K.A. provided a statement to the police. He said he gave the accused a replica pistol and the accused used it to threaten the complainant in the school washroom. K.A. said after threatening the complainant, the accused wiped off the gun to remove any fingerprints and gave it back to him. K.A. told the police that the pistol used by the accused and a second pistol were at his home. Both pistols were subsequently seized from K.A.’s home by the police.

77At trial, K.A. claimed to have no memory of the events. The Crown sought to introduce K.A.’s statement under the principled exception to the hearsay rule on the basis of procedural and substantive reliability. To establish substantive reliability, the Crown relied upon the seizure of the pistols from K.A.’s home as corroborative evidence that acted to rule out alternative explanations other than the truth of his statement. The trial judge admitted the statement on the basis of procedural and substantive reliability, and in respect of substantive reliability relied upon seizure of the pistols as corroborative evidence. The Quebec Court of Appeal held that the trial judge erred in admitting the statement and ordered a new trial. The Crown appealed to the Supreme Court of Canada.

78Before the Supreme Court of Canada, the Crown submitted that K.A.’s statement served to establish two material aspects: (1) the use of the weapon and (2) the appellant’s degree of involvement. The Crown argued that since the search results served to corroborate the first aspect, they could serve to corroborate the statement in its entirety. The Crown submitted it was not necessary that evidence corroborate all material aspects of a statement. It is sufficient for it to corroborate just one aspect.

79The majority of the Supreme Court of Canada rejected the Crown’s arguments, finding them inconsistent with the reasoning in Bradshaw. The Court held that “evidence cannot serve to corroborate the aspects of a statement with which it is not connected, even when the evidence confirms another material aspect of the statement in question”. This is because the function of the corroborative evidence is to mitigate the need for cross-examination not generally but on the point that the hearsay is tendered to prove.²⁰

80The Supreme Court stated as follows at para. 56:

It is true that it is the combined effect of the corroborative evidence and the circumstances of the case, and not the evidence taken in isolation that must rule out plausible alternative explanations for the material aspects of the statement. (see Bradshaw, at para. 47). However, this does not mitigate the need for a connection between the evidence and the aspect sought to be proved. In the absence of such a connection, the evidence is quite simply of no assistance in determining whether that specific aspect is true or accurate; it merely corroborates the declarant’s credibility, the accused’s guilt or one party’s theory of the case, which is not sufficient. (see Bradshaw, at para. 44; see also paras. 45-46 and 72). Evidence that is not connected with the material aspects of the statement is therefore not capable, even in combination with the circumstances of the case, of ruling out plausible alternative explanations for those aspects.²¹

81The majority of the Supreme Court of Canada concluded that the trial judge erred in finding that the statement’s truth as regards to the location of the pistols corroborated the statement in its entirety. There was no connection, even an indirect one, between that evidence and the Appellant’s degree of participation. As a result, the majority held that the location of the pistols could not serve to establish threshold reliability through that aspect of the statement alone. Aside from establishing the truth of that aspect of the statement, that evidence was not capable of ruling out plausible alternative explanations for the events.²²

82The majority went on to conduct its own analysis of the admissibility of the statement and held that threshold reliability was not established. Important to the determination was that K.A. was an accomplice who had an interest in minimizing his role in the events. The majority concluded that in the absence of external evidence confirming that it was the appellant who played the primary role in the washroom, the circumstantial guarantees of trustworthiness could not overcome the dangers presented by K.A.’s statement. As a result, the appeal was allowed, the convictions were quashed, and a new trial was ordered.

83The majority of the Supreme Court of Canada in Charles did not comment on or provide guidance on the appropriateness of editing and admitting only one part of a witness’s statement.

Mr. Gavine’s statements that Mr. Chopee was Alive when Mr. Gavine left the Unit with Mr. LeBlanc

84Mr. Gavine’s statements about whether Mr. Chopee was alive were the product of leading questions by DC Willis. Moreover, Mr. Gavine gave inconsistent answers about where Mr. Chopee was and what he was doing when he left the residence. At the end of the statement, despite DC Willis’s suggestion that Mr. Chopee was in his chair snoring, Mr. Gavine said “I don’t know man, I’m so burnt I could not tell you”.

85Simon LeBlanc’s May 8, 2024 testimony at the preliminary inquiry that he knew Mr. Chopee was alive when he left the unit on January 25, 2023 because he could hear him snoring does not rule out alternative explanations other than the truth of Mr. Gavine’s statement. Mr. LeBlanc’s evidence raises many of the same concerns as Mr. Gavine’s statement. Like Mr. Gavine, there are inherent risks associated with Mr. LeBlanc’s evidence:

• Mr. LeBlanc was also using fentanyl on January 25, 2023 in Mr. Chopee’s unit, a factor which may have significantly affected the reliability of his recollection of the events.
• In respect of his ability to recall and narrate the events, Mr. LeBlanc said he was not paying attention to what the others were doing inside the unit.
• In respect of Mr. LeBlanc’s sincerity, he has a lengthy criminal record for crimes of dishonesty including multiple convictions for mischief, robbery, possession of property obtained by crime, break and enter, fraud, and theft. He also has multiple convictions for breaches of court orders.
• Like Mr. Gavine, Mr. LeBlanc expressed animus towards Mr. Steeves. At p. 68 of the preliminary hearing transcript, Mr. LeBlanc said Mr. Steeves was not his friend because he believed he was saying things about him to his friends in jail.
• Mr. LeBlanc provided his police statement and testimony under coercive circumstances. He was detained when he spoke to the police. During his preliminary hearing evidence, he said he was “pretty well” forced to give his statements. He was in custody when he testified and said he did not want to be in court.
• Like Mr. Gavine, Mr. LeBlanc said he heard rumours about what happened to Mr. Chopee prior to giving his statement.
• Like Mr. Gavine, Mr. LeBlanc may have had a motive to lie to deflect suspicion from himself for potential involvement in the killing or the clean up.

86Mr. LeBlanc’s preliminary hearing evidence is insufficiently reliable in all the circumstances to establish the substantive reliability of Mr. Gavine’s statement. To be relied on to reject alternative explanations, corroborative evidence must itself be trustworthy, a concern that is particularly acute when the corroborative evidence itself is in the form of a statement.²³

87The video surveillance does not corroborate what happened inside Mr. Chopee’s unit on January 25, 2023. Even if the video surveillance can corroborate the aspects of Mr. Gavine’s statement dealing with identification, it cannot serve to corroborate an aspect of the statement to which it is not connected, specifically that Mr. Chopee was alive when Mr. Gavine left the unit.

88In respect of Mr. Gavine’s statements that Mr. Chopee was alive when he left the residence, having regard to the many identified issues that potentially impacted Mr. Gavine’s perception, memory, narration, and sincerity as identified above, and having regard to the identified alternative explanations, the corroborative evidence relied upon by the Crown fails to rule out alternative explanations for this aspect of Mr. Gavine’s statement. There are other plausible possibilities, as set out by the Respondent, and acknowledged by the Crown.

89This is clearly not a circumstance where the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process”.

Mr. Gavine’s Statements about the Identity of the Parties at the Unit on January 25, 2023

90On a generous interpretation of his statement, Mr. Gavine said he arrived by bike at Mr. Chopee’s unit on January 25, 2023, and Ken Chopee, Simon LeBlanc, and Justin Steeves were already there. Later, he left with Simon LeBlanc, leaving Mr. Steeves alone with Mr. Chopee.

91The video surveillance in combination with Mr. LeBlanc’s preliminary hearing evidence is consistent with this information. Mr. LeBlanc identified the persons captured by the video surveillance as Mr. Chopee, Mr. Steeves, himself, and Mr. Gavine. He identified himself and Mr. Gavine leaving together on January 25, 2023. The reliability and credibility of this aspect of Mr. LeBlanc’s evidence is less susceptible to challenge than other aspects of his testimony.

92However, even having regard to the corroborative potential of the video surveillance in combination with Mr. LeBlanc’s statement, Mr. Gavine’s statement raises such significant reliability concerns the corroborative evidence is insufficient to establish the inherent reliability of the statement or the portions of the statement dealing with the identity of the parties who attended Mr. Chopee’s unit.

93As noted previously, DC Willis’s questions were often leading. He gave Mr. Gavine information about the circumstances surrounding his attendance at Mr. Chopee’s unit on January 25, 2023. Mr. Gavine often agreed with DC Willis’s suggestions with little explanation. Even though Mr. Gavine made numerous inconsistent utterances, DC Willis continued to ask leading questions.

94Notably, Mr. Gavine did not independently remember the day of the week or the date he was at Mr. Chopee’s unit. He talked about dropping off a gift for him “a couple of days ago”, although the video surveillance footage suggested he was last at Drew Street six days before giving his statement.

95Mr. Gavine did not independently disclose that he came on a bicycle. DC Willis told him there was video surveillance of the unit and that he showed up on January 25 “which would be last Wednesday”. Mr. Gavine asked him “When I dropped my stuff off?” and DC Willis told him he believed he showed up on a bicycle.

96In terms of the length of time he was at Mr. Chopee’s unit, Mr. Gavine said he was there for a day or two. The video surveillance suggests he was there for 2.5 hours. Mr. Gavine said after he left, when he went back the next day, there was lights everywhere. However, based on the video surveillance, it was two days before the police arrived at the unit on January 27, 2023.

97Mr. Gavine’s account of his attendance at Mr. Chopee’s home and his description of the identity of the persons he was with is neither coherent nor detailed. The identifying information is not contained in a discrete part of the statement. It emerges at various points in the statement and is intertwined with many problematic aspects of the statement. It would be extremely difficult to edit the statement in order to redact unreliable information and to leave only the information about the identity of the parties who attended Mr. Chopee’s unit. If the entire statement was played for the jury it would be very difficult to craft an adequate limiting instruction about the other parts of the statement.

98Mr. Gavine’s statement is inherently unreliable and cannot be admitted. The video surveillance evidence cannot be used to establish the general reliability of the statement or the material aspects of the statement other than identity. Given the many concerns surrounding substantive reliability outlined above, the corroborative evidence relied upon is insufficient to establish threshold reliability.

99In short, the indicia of reliability – substantive reliability, procedural reliability, or both – do not support the admissibility of Mr. Gavine’s out-of-court statement. Procedural reliability has not been established. It cannot be said that cross-examining Mr. Gavine at the time he made his statement to the police would have added little if anything to the process.

100In respect of substantive reliability, the statement is inherently unreliable because of Mr. Gavine’s use of fentanyl at the time of the material events, the impact of fentanyl and fatigue at the time he gave the statement, internal and external inconsistencies, and concerns surrounding Mr. Gavine’s sincerity, including his criminal history, animus towards Mr. Steeves, and potential motive to lie to distance himself from Mr. Chopee’s death and the offence.

101The combined effect of the procedural safeguards, corroborative evidence, and the circumstances of the statement do not overcome “the specific hearsay dangers raised by the statement” such that its “only likely explanation…is [Mr. Gavine’s] truthfulness about, or the accuracy of the material aspects of the statement”.²⁴ I am not satisfied that the evidence advanced on the application rules out the possibility that Mr. Gavine was inaccurate or untruthful.

102Threshold reliability has not been established on the basis of either the procedural or substantive reliability or a combination of the two. The procedural measures in combination with the circumstances of the statement and available corroboration are insufficient to satisfy the many hearsay dangers that Mr. Gavine misperceived, misremembered, inaccurately described, or gave false information to DC Willis.

103As a result, the application to admit Mr. Gavine’s January 31, 2023 statement for the truth the contents under the principled approach to the hearsay rule is dismissed.

Justice Marcella Henschel

Released: June 5, 2025

CITATION: R. v. Steeves, 2025 ONSC 3372

Footnotes

1. 1R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865.
2. 2R. v. Lako, 2025 ONCA 284, at para. 44.
3. 3Bradshaw, at para. 26. R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 49.
4. 4Lako, at para. 80.
5. 5Bradshaw, at para. 28.
6. 6Lako, at para. 48; Bradshaw, at para. 28, 68-69. R. v. Charles, 2024 SCC 29, at para. 74.
7. 7Charles, at para. 47. R. v. Mohamed, 2023 ONCA 104, at para. 59.
8. 8Bradshaw, at para. 31.
9. 9Bradshaw, at paras. 31 and 40. R. v. S.S., 2022 ONCA 305, reversed 2023 SCC 1, 2023 SCC1, at paras. 38-53 (C.A.).
10. 10Bradshaw, at para. 31; Lako, at para. 25.
11. 11Bradshaw, at para. 57.
12. 12Lako, at para. 85; Bradshaw, at para. 49.
13. 13Lako, at para. 50.
14. 14R. v. McMorris, 2020 ONCA 844, at para. 4, application for leave to appeal dismissed 2023 CanLii 19735 (SCC).
15. 15S.S., at paras. 91-96
16. 16Lako, at para. 78.
17. 17R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, 67 C.C.C. (2d) 1.
18. 18R. v. Mohamed, 2023 ONCA 104. In Mohamed, the Ontario Court of Appeal upheld the trial judge’s decision refusing to admit the hearsay statement of A.A. in a murder case. A.A., an accomplice, provided a statement, implicating himself and the accused, prior to pleading guilty to the lesser offence of manslaughter. He subsequently refused to testify at Mohamed’s trial, even after being cited for contempt. Because the Crown preferred a direct indictment, A.A. was not called as a witness or subject to cross-examination at a preliminary hearing. A.A. was a Vetrovec witness. His evidence was suspect due to a number of objective factors including that he was an accomplice who provided his second statement on the understanding it may assist him to resolve to a lesser charge; he suffered from a major mental illness and addiction; he had a lengthy criminal record; and his statements contained internal and external inconsistencies and “progressed” after he received disclosure. The Crown argued threshold reliability was established by a combination of procedural and substantive reliability. Justice Paciocco, writing for the Court, upheld the trial judge’s decision not to admit the statement. He emphasized that some form of cross-examination of the declarant is usually required to establish threshold procedural reliability in the case of a recanting witness. He held it will be extremely challenging to establish that hearsay evidence from a Vetrovec witness is inherently trustworthy. He also found that corroborative evidence that merely increases confidence in a witness’s general credibility is insufficient to support substantive reliability.f.
19. 19Bradshaw, at para. 57.
20. 20Charles, at paras. 53 and 54.
21. 21Charles, at para. 56.
22. 22Charles, at para. 62.
23. 23Lako, at para. 101 citing Bradshaw, at para. 50.
24. 24Bradshaw, at para. 47; Charles, at para. 75.