minicounsel

CITATION: R. v. Dowman, 2025 ONSC 354

COURT FILE NO.: CR-24-40000001-0000

DATE: 20250116

BETWEEN:

HIS MAJESTY THE KING

– and –

DYLON DOWMAN

Defendant

Maureen Pecknold and Christina Jabbour, for the Crown

Tyler Smith and Mitchell Huberman, for the Defendant

HEARD: January 6, 7, 8 and 13, 2025

(ANTE MORTEM STATEMENTS AND PRIOR DISCREDITABLE CONDUCT)

1The defendant, Dylon Dowman, is charged with the first degree murder of Daniella Mallia who died on August 18, 2022 from gunshot wounds. A four-week jury trial is scheduled to commence on February 3, 2025.

2There are three pre-trial motions before me:

(a) The Crown’s motion to introduce into evidence several ante mortem statements of Ms. Mallia which include allegations of prior discreditable conduct by Mr. Dowman and other prior discreditable conduct evidence.

(b) The defence motion to introduce into evidence additional text messages sent by Ms. Mallia to her sister and Mr. Dowman on August 15, 2022 should any of her ante mortem statements be admitted. The Crown does not oppose the admission of this evidence if certain evidence they seek to admit is permitted to be introduced at trial.

(c) The defence motion seeking the exclusion of certain after-the-fact conduct evidence the Crown intends to introduce at trial.

3All materials filed on these motions were put onto a USB and made lettered Exhibit A, and an index of what is contained on the USB is lettered Exhibit B. These are my reasons with respect to the first two pre-trial motions. My ruling regarding the third will be delivered separately.

1. BACKGROUND

4Shortly before noon on August 18, 2022, the deceased, Daniella Mallia, was attacked as she was walking out of her building complex at 2265 Jane Street in Toronto and taken into the complex’s parking garage where the perpetrator confined her and then shot her. Ms. Mallia died from these gunshot wounds. There is no issue that Ms. Mallia was unlawfully killed. The two issues at the trial will be the identity of the perpetrator and level of culpability.

5On the evidence filed on this motion, the Crown’s case against Mr. Dowman is strong, even without Ms. Mallia’s ante mortem statements that the Crown seeks to introduce on this motion.

6Ms. Mallia’s homicide was captured on various surveillance videos. I have reviewed the video compilation the Crown intends to use at trial that captures the events leading up to and including the homicide. It also traces the movements of the perpetrator before and after the homicide. Much of the video captured in the compilation is of high quality.

7The video compilation shows the distinctive looking perpetrator walk from the direction of 77 Amethyst Circle in Brampton and get into an Uber parked on the street in front of 80 Amethyst Circle at approximately 9:50 a.m. on August 18, 2022. Approximately 20 minutes later, that Uber drops the perpetrator off at 2265 Jane Street, where Ms. Mallia was residing, and it appears the perpetrator remains outside. At approximately 11:50 a.m., Ms. Mallia can be seen walking through the courtyard of her building complex towards Jane Street. As she walks down the stairs towards the parking garage entrance and Jane Street, the perpetrator runs up behind her, grabs her around the neck and forces her into the parking garage. Inside the parking garage, he pulls out a handgun and points it at her. He racks the gun, points it at her again and pushes her behind a car. For the next three to four minutes, Ms. Mallia moves side to side in what appears to be attempts to get away but is prevented from leaving. Ms. Mallia is clearly distraught throughout. Ms. Mallia is forced behind an adjacent minivan or SUV and can no longer be seen on the video, though the perpetrator remains partially visible. It appears the perpetrator shoots her more than once. The perpetrator then walks out of the parking garage. The video compilation then shows the perpetrator walking to a bus stop and getting on a TTC bus. The perpetrator’s face can be seen on the video inside the bus. Further movements of the perpetrator are contained in this video compilation.

8The Crown alleges the defendant, Mr. Dowman, is the perpetrator and that he and Ms. Mallia were intimate partners in a tumultuous on and off again relationship. The nature of their relationship demonstrates Mr. Dowman’s animus against Ms. Mallia and gave him motive to kill her. The Crown seeks to introduce several ante mortem statements Ms. Mallia made to various people to establish the nature of the relationship and her fear of Mr. Dowman, including just three days before the murder. I was advised during submissions that the only other evidence of their intimate partner relationship that that Crown will be introducing at trial is:

(a) the testimony of Mr. Dowman’s landlord prior to and at the time of the homicide (Mr. Dowman was residing at 77 Amethyst Circle in Brampton) who will testify that Ms. Mallia was Mr. Dowman’s girlfriend;

(b) when the police executed a search warrant at 77 Amethyst Circle, they found a love letter from Ms. Mallia to Mr. Dowman and a date book with her contact information; and

(c) an August 14, 2022 text message exchange between Ms. Mallia and Mr. Dowman in which Mr. Dowman threatens to kill her (the “August 14, 2022 Text Messages”). On August 15, 2022, Ms. Mallia spoke with police as captured on a body worn camera, described further below (the “August 15, 2022 Police Statement”). Ms. Mallia emailed screenshots of the August 14, 2022 Text Messages to the police after meeting with them.¹ These screenshots are reproduced here:

2. EVIDENCE THE CROWN AND DEFENCE SEEK TO ADMIT INTO EVIDENCE

9As noted, the Crown seeks to introduce evidence of Mr. Dowman’s intimate relationship with Ms. Mallia as contained in a series of ante mortem statements Ms. Mallia made between October 2021 and August 15, 2022 (three days before her death). The Crown seeks to introduce these statements for the truth of their contents and, as such, the statements are presumptively inadmissible hearsay.

10The statements the Crown seeks to introduce are as follows (listed in reverse order by date):

(a) August 15, 2022 Police Statement: Ms. Mallia called and spoke to police after receiving the August 14, 2022 Text Messages reproduced above.

(b) July-August 2022 statements Ms. Mallia made to her co-workers at Pet Valu and her employment counsellor at Covenant House.

(d) October 13, 2021 text messages Ms. Mallia sent to Mr. Dowman’s lawyer.

11The Crown provided a “Compendium of Evidence Sought to be Adduced” that itemizes the specific portions of each statement the Crown seeks to introduce for the truth of their contents and for what purpose (the “Crown Compendium”). This compendium is contained in Exhibit A and is attached as Appendix A to these reasons.

12Certain portions of this hearsay evidence are sought to be introduced to prove Ms. Mallia’s state of mind. The evidence demonstrates their relationship was tumultuous, that Ms. Mallia was afraid of Mr. Dowman and that she intended to end the relationship at different points. This may assist in establishing Mr. Dowman held an animus towards Ms. Mallia and had motive to kill her, which in turn is relevant to identity and Mr. Dowman’s state of mind.

13Portions of this hearsay evidence are sought to be introduced to prove Mr. Dowman’s state of mind and/or to prove the truth of the factual assertions contained in the statement regarding the actions of Mr. Dowman. This evidence enhances the probability that Ms. Mallia had reason to fear Mr. Dowman, that he held an animus towards her and motive and intention to kill her.

14The statements of Ms. Mallia are also presumptively inadmissible as they contain prior discreditable conduct evidence of Mr. Dowman.

15Relatedly, if any of Ms. Mallia’s statements are found to be admissible, the defence seeks to introduce the following text messages Ms. Mallia sent on August 15, 2022:

(a) texts to her sister in which Ms. Mallia writes “I can’t do this sober”; and

(b) texts to Mr. Dowman after she spoke with police as follows:²

Mr. Dowman sent screenshots of these messages from Ms. Mallia to police after speaking with them on August 15, 2022.

16Aside from the ante mortem statements, the Crown seeks admission of two other pieces of evidence which are described in the Crown Compendium as other discreditable conduct (items #50 and #51): (1) the August 14, 2022 Text Messages; and (2) an information sworn October 2, 2020 charging firearms offences (the “2020 Information”) and the related June 11, 2021 bail order (“2021 Release Order”).

17No viva voce evidence was called on these motions. Rather, copies of text messages, transcripts of proposed witnesses’ statements to police,³ the video and transcript of the August 15, 2022 Police Statement, the video compilation and other documents were filed.

3. LEGAL PRINCIPLES

a. Nature of the Relationship, Animus and Motive in Intimate Partner Homicide Prosecutions

18Evidence of a deceased’s mental state and the nature of an intimate partner relationship leading up to the unlawful killing may help establish a motive or animus on the part of the accused. Evidence tending to show a person has a motive to unlawfully kill another is circumstantial evidence relevant to prove that person did the act (identity) and the state of mind that accompanied the killing: R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at paras. 51 and 72.

19While motive or animus has to do with an accused’s state of mind, “evidence of the deceased’s state of mind may constitute a link in a chain of reasoning that could lead a trier of fact to conclude that an accused bore the deceased some animus or had a motive to kill the deceased”: Candir, at para. 52. The deceased’s state of mind may be demonstrative of the fact that the relationship was acrimonious at the time of his or her death, and that acrimony may provide motive. Where the deceased’s contemporaneous mental or emotional state with respect to the accused is dislike, hatred, fear and/or an intention to leave the relationship, an inference may be drawn that the deceased acted in accordance with their emotional state and that their conduct may have supplied the accused with motive to act: Candir, at para. 55. What inferences are properly available to be drawn by the trier of fact will depend on all the evidence at trial.

20Evidence regarding the nature of the relationship is subject to the ordinary rules of evidence. All relevant evidence is presumptively admissible subject to any exclusionary rule such as the rules excluding hearsay and prior discreditable conduct evidence.

b. Hearsay

21Hearsay – out of court statements tendered to establish the truth of its contents – is presumptively inadmissible as it is often difficult to assess its truth given the inability to test its reliability through cross-examination. Without the declarant, it may not be possible to inquire into that person’s perception, memory, narration or sincerity. In some circumstances though, hearsay evidence “presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding. Hence, over time a number of exceptions to the rule were created by the courts” (emphasis in original): R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 2; see also R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at paras. 20-22; and R. v. Charles, 2024 SCC 29, at para. 45.

22On this motion, two exceptions to the hearsay rule are applicable, namely, the traditional “state of mind” exception and the principled approach exception.

i. State of mind exception to the hearsay rule

23The Ontario Court of Appeal released its decision in R. v. Dion, 2025 ONCA 7, the day after submissions were completed.⁴ The general principles relating to the admissibility of hearsay statements made by a person as evidence of their own state of mind are helpfully summarized in this decision.

24Hearsay is admissible under the traditional state of mind exception where the party proposing admission demonstrates on a balance of probabilities that the preconditions for admissibility exist.

25Under the traditional state of mind exception, the hearsay statement may be admitted to demonstrate the intentions or state of mind of the declarant at the time the statement was made if it: (1) discloses their relevant, present existing state of mind; and (2) the statement was made in a natural manner and not under circumstances of suspicion. If these preconditions are met, the statement is admissible without any inquiry into reliability. If admitted under this exception, the hearsay statement cannot be used to establish the acts or events the statement describes: Dion, at paras. 29 and 41.

26In Dion, at para. 42, Paciocco J.A. explained the “present” state of mind requirement as follows:

42… It is not concerned with how long ago the speaker held the state of mind. It requires instead that the state of mind must be “present” at the point in time that the statement evidencing that state of mind is made. Justice lacobucci made this clear in Starrwhen he explained that the “exception to the hearsay rule arises when the declarant’s statement is adduced in order to demonstrate the intentions, or state of mind, of the declarant at the time when the statement was made”: at para. 168, quoting Smith, at p. 925 (emphasis added). The reason that the exception requires the statement to be contemporaneous with the state of mind it is said to show is that this coincidence in time permits the context in which the statement was made to be considered in deciding whether the speaker was actually experiencing that state of mind: See the discussion of McLachlin C.J., dissenting in the result but not on this ground, in Starr, at paras. 6–7. [Emphasis in original.]

27Where the preconditions for establishing the state of mind exception are not met, the hearsay evidence may be admissible to establish the declarant’s state of mind pursuant to the principled exception: Dion, at paras. 30-31.

ii. Principled approach to hearsay

28Hearsay is admissible under the principled approach where the party proposing admission demonstrates the twin criteria of necessity and threshold reliability on a balance of probabilities. The motion judge acts as a gatekeeper in making the preliminary assessment of threshold reliability of the hearsay statement. Ultimate reliability is determined at the conclusion of the trial by the trier of fact based on a consideration of the statement in the context of all the evidence at trial: see Khelawon, at paras. 2, 47, 50; Bradshaw, at paras. 23-24, Charles, at para. 45.

29In describing threshold reliability in Bradshaw, at para. 26, Karakatsanis J. explains:

26… Threshold reliability is established when the hearsay “is sufficiently reliable to overcome the dangers arising from the difficulty of testing it” (Khelawon, at para. 49). These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact (Khelawon, at paras. 35 and 48). In assessing threshold reliability, the trial judge must identify the specific hearsay dangers presented by the statement and consider any means of overcoming them (Khelawon, at paras. 4 and 49; R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043, at para. 75). The dangers relate to the difficulties of assessing the declarant’s perception, memory, narration, or sincerity, and should be defined with precision to permit a realistic evaluation of whether they have been overcome.

30Threshold reliability can be established where the party can demonstrate procedural or substantive reliability. Neither ground excludes consideration of the other; factors relevant to one can complement the other: Khelawon, at para. 65; Bradshaw, at para. 32.

31Procedural reliability is met where there are adequate substitutes for testing the truth and accuracy of the statement. Substitutes include video recordings of the statement, the presence of an oath and a warning about the consequences of lying. Some form of cross-examination of the declarant is usually required: Bradshaw, at para. 28; Charles, at para. 46.

32Substantive reliability is established when the statement is inherently trustworthy. In making this determination, the judge can consider the circumstances in which the statement is made and evidence that corroborates or conflicts with the statement. The standard for substantive reliability is high: Bradshaw, at paras. 30-31.

33Evidence used to corroborate must be connected to the material aspect of the statement sought to be proved, even when the evidence confirms another material aspect of the statement in question. As explained in Charles, at paras. 54-55:

54At the threshold reliability stage, “not all evidence that corroborates the declarant’s credibility, the accused’s guilt, or one party’s theory of the case, is of assistance” (Bradshaw, at para. 44). Accordingly, one can “only rely on corroborative evidence . . . 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” (para. 44). The function of corroborative evidence is thus to “mitigate the need for cross‑examination, not generally, but on the point that the hearsay is tendered to prove” (para. 45 (emphasis in original)).

55It 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. [Emphasis in original].

34To be relied on for the purpose of rejecting alternative hypotheses for the statement, the corroborative evidence must itself be trustworthy: Bradshaw, at paras. 50 and 74.

35In this case, there is no issue that necessity is met given Ms. Mallia’s death.

iii. Residual discretion to exclude admissible hearsay

36Judges have a residual discretion to exclude any admissible hearsay evidence where the prejudicial effect of the evidence outweighs its probative value: Khelawon, at para. 3; Candir, at para. 59; Dion, at paras. 32-33.

c. Prior Discreditable Conduct Evidence

37Evidence of an accused’s prior discreditable conduct is presumptively inadmissible because of the exclusionary rule against evidence of general propensity, disposition, or bad character: R. v. Z.W.C., 2021 ONCA 116, 155 O.R. (3d) 129, at para. 96.

38However, such evidence will be admitted if it is relevant and material and the Crown establishes on the balance of probabilities that its probative value outweighs its prejudicial effect: Z.W.C., at para. 97.

39Prejudice in this context comes in two forms. Moral prejudice refers to the risk that the jury may convict based on “bad personhood” or punish the accused for their “prior bad acts”. Reasoning prejudice involves the risk that the jury will be diverted from its task and give the evidence more weight than is logically justified; for example, the danger of potential confusion and distraction from the crime charged. See Z.W.C., at paras. 101-104.

40Strathy C.J. noted in Z.W.C., at paras. 94-95, the potential prejudicial effect of prior discreditable conduct evidence and the challenges it poses, especially in jury trials:

94One of the greatest challenges faced by a trial judge is a request by the Crown to introduce evidence of an accused’s uncharged prior discreditable conduct – sometimes called “extrinsic” discreditable conduct evidence, because it is extrinsic to the conduct on which the indictment is based. In a judge-alone trial, experience and training enables the judge to appreciate the purposes for which such evidence is proffered, and to self-instruct on its limited use(s). A jury obviously does not have the benefit of that training and experience to assist them in discriminating between permitted and prohibited logical thought processes when judging the conduct of an accused. The jury can all too readily use the evidence for an improper purpose. For example, the jury may conclude that the accused is a bad person who did bad things and ought to be punished, whether or not they committed the offences with which they are charged. And, as will be described below, there is a risk that evidence of uncharged allegations will confuse the jury and cause them to lose track of what the trial is all about – whether the prosecution has proven each of the counts on the indictment beyond a reasonable doubt.

95For these reasons, a trial judge must take great care to ensure that such evidence goes before the jury only after a determination that its probative value outweighs its prejudicial effect. If the evidence is admitted, the jury must be instructed, in an appropriate and timely way, about the proper and improper use(s) of the evidence. In order to make that distinction, the jury must be clearly informed of the purpose for which specific pieces of evidence may be used.

41The balancing of probative value and prejudicial effect is a fact sensitive and case specific exercise: Candir, at para. 80.

4. MR. DOWMAN’S AUGUST 14, 2022 TEXT MESSAGES TO MS. MALLIA

(Crown Compendium, item #51)

42During submissions, I raised the issue of whether these text messages constitute evidence of prior or other discreditable conduct at all. The Crown submitted they do not constitute evidence of prior discreditable conduct. The defence position was that they are prior discreditable conduct evidence.

43On the Crown’s theory, these messages are direct evidence of an intention to kill Ms. Mallia with a firearm on Jane Street, which is precisely how Ms. Mallia was unlawfully killed four days after the texts were sent and three days after Ms. Mallia called the police and Mr. Dowman became aware she called police.

44In my view, these texts do not constitute evidence of a prior or extrinsic bad act not directly connected to the offence charged. The texts are not a separate act or an extrinsic threat made that is unconnected to the offence – they are not “extrinsic to the conduct on which the indictment is based”: Z.W.C. at para. 94. They are more properly characterized as evidence of an intention to carry out the very crime charged. They are therefore presumptively admissible.

45Regardless, I have the discretion to exclude any presumptively admissible evidence if its prejudicial effect outweighs its probative value. I find the probative value of the messages far outweighs any possible prejudicial effect. These messages are clearly highly probative. They are powerful evidence of identity, motive and intent. There is minimal prejudicial effect.

46Evidence is not prejudicial simply because it operates to the detriment of one of the parties, such as increasing the chance of conviction; rather, prejudice involves evidence that might be improperly used by the trier of fact: R. v. L.B. (1997), 1997 CanLII 3187 (ON CA), 35 O.R. (3d) 35 (C.A.), [1997] O.J. No. 3042 at para. 22; Dion, at para. 54. There are no, or minimal, dangers of moral or reasoning prejudice with these messages. Defence counsel suggested in submissions that Ms. Mallia’s text messages to Mr. Dowman on August 15, 2022 (the subject of their motion discussed further below) wherein she indicates she lied to police about him harassing and sending the messages ought to be considered in any prejudice-probative analysis of the August 14, 2022 Text Messages and that Ms. Mallia’s August 15 texts tip the balance towards exclusion. I disagree. The actual text messages are available as outlined above. Beyond Ms. Mallia’s texts to Mr. Dowman, there is no evidence before me that suggests she doctored the screenshots of the texts she emailed to police or would have had the skills to do so. Moreover, as can be seen on the August 15, 2022 body-worn camera video, the police see these very texts directly on Ms. Mallia’s phone as they are scrolling through her text messages.

47If I am incorrect and these texts are presumptively inadmissible other discreditable conduct evidence, the burden would be on the Crown to establish the probative value outweighs the prejudicial effect on the balance of probabilities. The result from balancing probative value and prejudicial effect remains the same. The August 14, 2022 Text Messages are admissible.

5. AUGUST 15, 2022 HEARSAY STATEMENT TO POLICE

(Crown Compendium, items #14 to #49)

48On August 15, 2022, three days before she was unlawfully killed, Ms. Mallia called police. Toronto Police Constables Alfonso and Lee attended and met Ms. Mallia outside her building complex. Their entire interaction with Ms. Mallia between 12:25 and 1:03 p.m. is captured on PC Lee’s body worn camera. The video, together with a transcript, was filed on this motion.

49The Crown seeks admission of the entire August 15, 2022 Police Statement with small portions redacted referring to Mr. Dowman’s past charges and time in jail. They seek admission of specified portions of this statement for the truth of the contents to prove (a) Ms. Mallia’s state of mind; and (b) specific actions attributed to Mr. Dowman. Therefore, my analysis must consider the specific statements tendered for the truth and the specific purpose or purposes for which they are tendered.

a. Truth of Ms. Mallia’s State of Mind

50The material aspects of the August 15, 2022 Police Statement the Crown seeks to admit to prove Ms. Mallia’s state of mind are itemized in the Crown Compendium. All of these relate, at least in part, to the August 14, 2022 Text Messages and can be grouped as follows (with item numbers from the Crown Compendium noted):

(a) Ms. Mallia expressing she wants a restraining order or peace bond and her intention to get one (items #15, #31 and #39).⁵

(b) Ms. Mallia’s belief that the texting is harassment (items #16 and #29).

(c) Ms. Mallia expressing not wanting to call police, not wanting Mr. Dowman charged with a criminal offence, and her reasons for not providing a formal statement (items #27, #31, #32, #33, #35 and #38).

(d) Ms. Mallia’s fear of Mr. Dowman, including her belief that she knows what’s coming: “A fucking storm. If I don’t do this and he finds, he’s gonna kill me”; and that her safety plan is to stay at a friend’s (items #36 and #42).

51All these portions of Ms. Mallia’s statement satisfy the prerequisites for admission under the traditional state of mind exception. They are clearly relevant as they are demonstrative of her fear of Mr. Dowman, her intention to be done with him as expressed in the text messages, and the acrimony between them only three days before the homicide. That acrimony may have motivated Mr. Dowman to kill her. They disclose her present existing state of mind at the time she made the statement.

52The second prerequisite is also met. Defence counsel argues that the text messages Ms. Mallia sent on August 15, 2022 to her sister and Mr. Dowman ought to be considered as raising suspicions as to her sincerity, including the following messages: “I can’t do this sober”, “I lied to police about you harassing and sending me those messages”, “I was high on crack” and “you kinda piss me off, when you blocked me”. However, as the Crown points out, inferences other than lack of sincerity can be drawn from all the circumstances. In the context Ms. Mallia found herself in, her texts do not constitute circumstances of suspicion. I note that Ms. Mallia chose to call police, expressed several times that she does not want Mr. Dowman to get charged, and wanted a restraining order/peace bond and to be safe. Ms. Mallia takes responsibility for being the “instigator” of disputes at times. The video of the statement shows her demeanour, the manner in which she spoke, and ability to respond to questions. I am satisfied on the balance of probabilities that the statement was made in a natural manner and, in context, not under circumstances of suspicion.

53I would also admit these statements under the principled approach. The circumstances in which the statement was made, as outlined below, and the content of the August 14, 2022 Text Messages corroborate Ms. Mallia’s state of mind. The contents of Mr. Dowman’s texts are specific and chilling. Ms. Mallia’s declared state of mind following them is reasonable. That she wanted a restraining order is corroborated by her internet searches on August 14, 2022 regarding how to get a restraining order.⁶

54Moreover, as explained by Watt J.A. in R. v. Carroll, 2014 ONCA 2, 304 C.C.C. (3d) 252, at para. 111:

111Fourth, in large measure, the appellant’s complaints about the inadequate showing of reliability relate to ultimate rather than threshold reliability. As proponent of otherwise inadmissible hearsay, Crown counsel need not eliminate all possible sources of doubt about the perception, memory or sincerity of the declarant. All that was required in this case was that the circumstances in which the statements were made and any relevant extrinsic evidence provided the trier of fact with the means to critically evaluate the honesty and accuracy of the declarant: R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 56; Khelawon, at para. 50; R. v. M.(J), 2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 54.

55In determining her credibility and ultimate reliability with respect to her state of mind, the jury will be well placed to watch the video to assess her sincerity and level of intoxication, if any, in light of what she texted to her sister and Mr. Dowman. Ms. Mallia’s account as to her own state of mind is sufficiently reliable to overcome the dangers arising from the difficulty in testing it, and threshold reliability is met.

b. Truth of Mr. Dowman and Ms. Mallia’s Actions – Principled Approach

56The specified portions of the August 15, 2022 Police Statement the Crown seeks to introduce to prove the factual assertions contained therein (acts of Mr. Dowman and Ms. Mallia) under the principled approach to hearsay are itemized in the Crown Compendium. I agree with defence counsel that the primary hearsay danger related to these material aspects is the inability to inquire into Ms. Mallia’s sincerity, especially in light of her August 15, 2022 texts to her sister and Mr. Dowman.

57The Crown argues that unlike the other ante mortem statements, procedural reliability is met in relation to the August 15, 2022 Police Statement as a whole. I agree that the circumstances in which the statement was made provide some guarantees of trustworthiness common to all the material aspects of this statement. Ms. Mallia chose to call the police. The statement was made to police, and the video and audio recording is of remarkable quality and is a tool that assists a viewer tasked with assessing her sincerity. While not taken under oath, police cautioned her twice to tell the truth and once that failing to tell the truth could lead to charges against her. Despite having called the police, Ms. Mallia declined to make a formal statement as she did not want Mr. Dylon to be charged with a criminal offence and stated she only wanted a restraining order/peace bond and to feel safe. I agree with defence counsel’s submission that Ms. Mallia refusing to provide a formal statement cuts both ways with respect to her sincerity.

58In my view, however, threshold reliability is not established on procedural reliability. On their own, these circumstantial guarantees of trustworthiness are not adequate substitutes for testing the truth and accuracy of the material aspects through cross-examination, in particular the damaging factual assertions against Mr. Dowman. This is especially true given her texts to her sister and Mr. Dowman the same day she spoke to police indicating that Mr. Dowman had “pissed her off” when he blocked her, she was high on drugs (which also raises accuracy concerns) and lied to police to get Mr. Dowman’s attention. As well established, some form of cross-examination of the declarant is usually required to meet procedural reliability.

59Procedural reliability and substantive reliability are not mutually exclusive categories: Khelawon, at para. 65; Bradshaw, at para. 32. These circumstances are still relevant to my analysis and I consider them in determining whether threshold reliability is met with respect to these material aspects which I will analyze now by topic (with reference to the item numbers in the Crown Compendium).

60Threshold reliability is met in relation to these material aspects, and they are admissible under the principled approach.

61In addition to the circumstances of the statement, there is evidence that corroborates these material aspects. First, the content of the August 14, 2022 Text Messages confirms Ms. Mallia’s assertions that the text messages were sent and the content she describes. Her identification of Mr. Dowman as the sender is also confirmed by the content – she refers to him as Dylon, and he responds.

62I have also considered the evidence that conflicts with Ms. Mallia’s statement, which are the text messages she sent to her sister and Mr. Dowman on August 15, 2022. For the reasons I set out above in relation to the admissibility of the portions of the statement related to Ms. Mallia’s own state of mind, her August 15 text messages do not detract from the threshold reliability of these material aspect of her statement. While Ms. Mallia cannot be cross-examined, I reject the alternative explanation that she lied about these material aspects given the evidence that confirms what she said. There are no alternate explanations for these portions of the statement other than her truthfulness and accuracy given the corroborative evidence.

63There is one caveat to my finding that the portions of the statement relating to the August 14, 2022 Text Messages are admissible – item #43. When asked if she knew the reasons as to why this all started, part of Ms. Mallia’s answer is Mr. Dowman got mad because she thinks he saw her location at another guy’s house, which led to the texts. These statements are based on Ms. Mallia’s assertions that Mr. Dowman had hacked her phone and was tracking her, which are inadmissible for the reasons set out below. Therefore, item #43 is inadmissible.

ii. Mr. Dowman lives in Brampton (item #23)

64Threshold reliability is met in relation to this material aspect, and it is admissible under the principled approach.

65This aspect is corroborated by the anticipated evidence of Mr. Dowman’s landlord as described by the Crown in submissions.⁷ No concerns regarding her sincerity exist in these circumstances.

iii. Descriptions of the relationship (items #18, #21, #24, #28 and #47)

66Threshold reliability is met in relation to these material aspects, and they are admissible under the principled approach.

67In these portions of her statement, Ms. Mallia states that she and Mr. Dowman have been dating on and off for five or six years; that they were recently split up and Mr. Dowman started messaging her the week prior; that she was the instigator of a few incidents but he was the main instigator; and that she tried many times to end the relationship but she found it hard to do so.

68The anticipated evidence of Mr. Dowman’s landlord that Ms. Mallia was Mr. Dowman’s girlfriend and the content of the August 14, 2022 Text Messages corroborates an intimate partner relationship that involved acrimony and break-ups. For example, Ms. Mallia’s texts that “I’m not into you popping up and threatening me” and “Like goodbye for real”. I note that these portions include Ms. Mallia recounting how her own actions and intention to end the relationship contributed to the acrimony.

69Again, I have considered the evidence that conflicts with Ms. Mallia’s statement. First it is doubtful that her text that she “lied to police about you harassing and sending me those messages” actually conflicts with these material aspects as the “lie” she is referring relates to the August 14, 2022 text messages. In any event, for the reasons I set out above, her August 15th text messages do not detract from the threshold reliability of these material aspect of her statement.

70While Ms. Mallia cannot be cross-examined for obvious reasons, it is unlikely her evidence on the general nature of the relationship would change in these circumstances. I find no alternate explanations for these descriptions of their relationship other than her sincerity or accuracy.

iv. Past physical incidents and violence (items #14 and #37)

71Threshold reliability is not met in relation to these material aspects, and they are inadmissible under the principled approach.

72Ms. Mallia provided no details regarding past violence. Not the number of past incidents, when they occurred or the context or nature of the violence. All that she says in these portions of the statement is “…we’ve had, like, physical incident, um, I’ve never reported them…” and “…the only reason I continually break up with him is because of violence and harassment…”.

73As explained below in s. 6.b. of these reasons, I find the ante-mortem statements regarding the July 5, 2022 black eye are inadmissible hearsay. Therefore, there is no evidence that corroborates past violence by Mr. Dowman before me. There is no detail that would permit a properly instructed jury to assess the worth of these factual assertions. In these circumstances, I cannot say that the only likely explanation for these factual assertions is Ms. Mallia’s truthfulness or accuracy, and threshold reliability is not established on the balance of probabilities.

v. Mr. Dowman’s knowledge of where Ms. Mallia works and that he showed up there in the past (items #25 and #26)

74Threshold reliability is not met in relation to these material aspects, and they are inadmissible under the principled approach.

75In her statement to police, Ms. Bonnie Campsall, manager at Pet Valu, states that she saw Mr. Dowman at the Pet Valu store. However, as set out in section 6.d. below, I find this portion of Ms. Campsall’s statement inadmissible. Therefore, there is no evidence that corroborates these material aspects before me. The circumstances in which the statement is made alone is insufficient to establish the inherent trustworthiness of these material aspects.

vi. Mr. Dowman hacking Ms. Mallia’s email and using tracking software (items #26, #34, #43, #44, #45 and #46)

76Threshold reliability is not met in relation to these material aspects, and they are inadmissible under the principled approach.

77The only piece of potentially corroborative evidence of hacking filed before me is the screenshot of a Google account message indicating that there had been a change in the recovery phone number for Ms. Mallia’s account which Ms. Mallia sent to police in her August 15 email to PC Lee.⁸ As seen on the body worn camera video, Ms. Mallia shows this screenshot to the officers and states it is from April 18, 2022. It therefore cannot corroborate that Mr. Dowman hacked into her email or was tracking her phone in August 2022.

78With respect to her assertions that Mr. Dowman hacked into her email in the past, this Google account alert standing alone is not sufficiently reliable evidence that corroborates hacking by Mr. Dowman. There is no evidence before me that corroborates that the recovery phone number (289) 675-3706 is a phone number associated with Mr. Dowman⁹ or otherwise corroborates that he changed the recovery phone number. Nor is there any evidence that corroborates that Mr. Dowman had tracking software on his computer. In these circumstances, I cannot say that the only likely explanation for these factual assertions is Ms. Mallia’s truthfulness or accuracy, and threshold reliability is not established on the balance of probabilities.

vii. Mr. Dowman harassed Ms. Mallia in the past (item #37)

79Threshold reliability is not met in relation to this material aspect, and it is inadmissible under the principled approach.

80As I noted above, items #16 and #29 are admissible under the traditional state of mind exception as those statements relate to Ms. Mallia’s perception that the August 14, 2022 Text Messages harassed her.

81The situation with past “harassment” is different. This assertion by Ms. Mallia is not tied to any specific act or incident and, as such, I cannot confidently say that her perception of harassment here speaks only to her state of mind.

82Like Ms. Mallia’s statements as to past physical incidents and violence, she provides no details regarding this past harassment. All she says is “…the only reason I continually break up with him is because of violence and harassment…” There is no evidence before me that corroborates a past act or acts that would constitute harassment in fact or a perception of harassment. I cannot find that her evidence on this material aspect would not likely change under cross-examination.

viii. Mr. Dowman’s knowledge of where Ms. Mallia lives, that he has been there and that once there was “an issue” (items #40 and # 41)

83Threshold reliability is met only in relation to Ms. Mallia’s assertion that he knows where she lives. Threshold reliability is not met in relation to whether he had been there in the past and that there was “an issue”, and these points are inadmissible under the principled approach.

84Mr. Dowman’s August 14, 2022 Text Messages corroborate his knowledge of where she lives, specifically the text: “Do as you please, I’m see you just now, be waiting at Jane for ya”. Therefore, lines 1118 to 1120 on p. 38 of the transcript are admissible.

85However, there is no evidence before me that corroborates that Mr. Dowman had previously been to Ms. Mallia’s home on Jane Street or that there had been “an issue” there. Threshold reliability is not established, and the balance of p. 38 to line 1153 of p. 39 is inadmissible.

ix. Mr. Dowman’s (then) current email dmdbeats@gmail.com and phone #647-474-5874 (items #48 and #49)

86Threshold reliability is met in relation to these material aspects, and they are admissible under the principled approach.

87No specific submissions were made on these portions of the statement. In any event, in addition to the circumstances in which the statement was made, there is evidence that corroborates these portions of the statement. Ms. Mallia provided this email and phone number as Mr. Dowman’s current contact information to the police, and there is no issue that the police successfully contacted him later that same day. After speaking to the police, Mr. Dowman emailed them as described above. The only likely explanation for these portions of the statement is Ms. Mallia’s accuracy.

c. Defence Motion – August 15, 2022 Text Messages Ms. Mallia Sent to her Sister and Mr. Dowman

88The Crown reasonably concedes that if the August 15, 2022 Police Statement is admitted, the defence motion ought to be allowed and these text message to Mr. Dowman (and the text messages to her sister on August 15, 2022) should be admitted. I agree that these texts provide necessary context for the trier of fact to determine the ultimate reliability of Ms. Mallia’s statement and are admissible.

d. Probative Value vs. Prejudicial Effect

89Defence counsel’s position is that if I find this statement admissible under exceptions to the hearsay rule, I still ought to exclude it as its prejudicial effect outweighs its probative value.

90I have found the August 15, 2022 Police Statement admissible under exceptions to the hearsay rule, except the portions referencing the following:

(a) past physical incidents and violence;

(b) Mr Dowman’s knowledge of where Ms. Mallia works and that he showed up there in the past;

(d) Mr. Dowman’s harassment of Ms. Mallia in the past; and

(e) Mr. Dowman having been to Ms. Mallia’s Jane Street residence and that once there was “an issue”.

91In addition, the Crown proposes editing the portions of the statement that refer to Mr. Dowman’s past criminal charges and being in jail.

92For the most part, the “prejudice” in this edited statement is directly tied to the August 14, 2022 Text Messages and, as I explained above, this prejudice does not constitute moral prejudice for the purposes of my analysis here. The risk of any moral prejudice is significantly attenuated by the removal of the inadmissible parts of the statement as those portions raise the most risk of propensity reasoning. I do not see any reasoning prejudice associated with the edited statement. The prejudicial effect of the edited statement is low.

93The relevance and materiality of the admissible portions of this statement are obvious. The complainant’s state of mind three days before her murder and the information surrounding the August 14, 2022 Text Messages are highly probative. The general history of the relationship, which includes Ms. Mallia taking accountability for some of its tumultuous nature (she’s broken up and gotten back together with him several times and she’s been the instigator at times), is important context and background to assist the jury in understanding the relationship.

94This evidence is demonstrative of the acrimonious state of the relationship and Ms. Mallia’s fear just before the homicide. It also demonstrates that Ms. Mallia did in fact call the police as she threatened to in the August 14, 2022 Text Messages. All of this is circumstantial evidence of motive and relevant to identity and level of culpability. The edited statement is highly probative of the material issues in the case.

95Whether I am balancing probative value and prejudicial effect under my residual discretion or under prior discreditable conduct evidence (where the Crown has the onus on the balance of probabilities), the result is the same. The probative value of the admissible portions of the statement far outweighs any prejudicial effect.

96Defence counsel submitted that if I rule any portion of this statement admissible, I ought to exercise my discretion and exclude the video and only allow an edited transcript at trial. The Crown advised that they can easily edit the video and transcript based on my ruling. I decline to exclude the video of the statement for the following reasons:

(a) The recording itself is the best evidence of what was Ms. Mallia and the police officers said.

(b) Watching the unspoken parts of the video provides necessary context for understanding the words said. Portions of the transcript may not make sense without seeing the actions of the speakers. For example, the police can be seen scrolling through Ms. Mallia’s phone reading text messages and commenting. The police ask Ms. Mallia to email the texts from Mr. Dowman they viewed on camera, and she does so as described above.

(c) Watching the video allows the jury to observe Ms. Mallia’s demeanour, the manner in which she spoke, and ability to respond to questions, which will assist the jury in determining credibility and ultimate reliability. This is particularly important since the defence intend to challenge Ms. Mallia’s sincerity and reliability in light of the text messages she sent to her sister and Mr. Dowman.

97I recognize that the sympathies of the jury may be improperly raised by viewing Ms. Mallia’s emotional state in the video. However, I find this to present a low risk that can be attenuated by jury instructions, if necessary.

6. JULY-AUGUST 2022 HEARSAY STATEMENTS TO HER CO-WORKERS AND HER EMPLOYMENT COUNSELLOR

(Crown Compendium, items #4 to #13)

98Ms. Mallia participated in an employment program at Covenant House. Mr. Anthony Lohan was her employment counsellor. Through Mr. Lohan, Ms. Mallia secured employment at Pet Valu starting April 27, 2022. Two of Ms. Mallia’s co-workers at Pet Valu were Madison Quinn and manager Bonnie Campsall. Mr. Lohan, Ms. Campsall and Ms. Quinn provided short video recorded statements to police within a week of the homicide. None of these statements were taken under oath and no caution was provided by police. Transcripts of these police statements were filed on this motion. I understand that all are available to testify at trial.

99The Crown seeks to introduce certain material aspects of statements Ms. Mallia made to Mr. Lohan, Ms. Campsall and Ms. Quinn about her relationship with an “ex-boyfriend” for the truth of their contents.

100Two preliminary points. First, defence counsel urged me to consider Ms. Mallia’s texts to Mr. Dowman on August 15, 2022 that she lied to police, or lied to Mr. Dowman, as impacting her reliability in relation to these statements. In my view, Ms. Mallia’s August 15th texts are very specifically tied to the events of August 14 and August 15, 2022 and have, at most, a limited impact on the analysis of her sincerity in relation to these statements. I do however take this factor into consideration.

101Second, I note that in Ms. Mallia’s statements to Ms. Campsall and Mr. Lohan, she only referred to her “ex-boyfriend”, and to Ms. Quinn she referred to her “boyfriend”. It seems clear that she is talking about the same person throughout these discussions. In her statement to police, Ms. Campsall recounts that on or shortly after August 15, 2022, Ms. Mallia told her about her interactions with police on August 15, 2022 related to this “ex-boyfriend” (item #7 in the Crown Compendium). Ms. Mallia had also told Ms. Campsall that her “ex-boyfriend” was 10 years older than her (item #6 in Crown Compendium). It is not disputed that Mr. Dowman is 10 years older than Ms. Mallia. For the purposes of this analysis, I will assume that the “ex-boyfriend” Ms. Mallia was referring to in these conversations is Mr. Dowman.

a. Ms. Mallia’s State of Mind

102The Crown seeks to introduce one aspect of Ms. Mallia’s statements to Ms. Quinn and another made to Mr. Lohan as proof of Ms. Mallia’s state of mind. I will examine each material aspect, noting the item number in the Crown’s Compendium.

103Item #10: [10] Ms. Quinn told police that during conversations they had, Ms. Mallia told her that she tried to get out of that relationship before and that she “did like blatantly tell me like if she tried to get out of that relationship, like he would kill her.”

104I find that the first prerequisite of the traditional state of mind exception is met – the statement discloses Ms. Mallia’s relevant, present state of mind at the times she told Ms. Quinn these things. While not stated in Ms. Quinn’s police statement, this utterance by Ms. Mallia must have occurred relatively close in time to her homicide as Ms. Quinn said she only met Ms. Mallia within two or three months of the police interview on August 22, 2022. However, I am unable to find that the second prerequisite is met – that the statement was made in a natural manner and not under circumstances of suspicion. Ms. Quinn’s statement to police is bereft of any indication of the circumstances under which Ms. Mallia made this statement.

105Under the principled exception, given the lack of evidence regarding the circumstances under which this statement is made, substantive reliability is not met.

106Item #10 is inadmissible.

107Item #13: Ms. Mallia told Mr. Lohan that she was afraid that if she got a restraining order against Mr. Dowman, he would end up in jail, and she did not want him to go to jail. For proper context, I am including the relevant portion from Mr. Lohan’s transcript:

Lohan [speaking of a telephone conversation between July 5 and July 11, 2022]: Um, and that she was really afraid of him. And when I talked to her about what additional supports that I could help her access around that, um, she said it, she did want to connect with additional supports about it. Um, so I worked with the folks on my team here, the employment team. Um, we had someone who is connected to a place called Interval House

Det Kahnt: Yeah.

Lohan: In Toronto. So we connected with Interval House to find out, you know, how we could connect Daniella to them. Um, and the next phone call I had with her, I have it dated here July 11th, um, that I had a call with her and kind of offered those supports from Interval House and said, you know, we could make sure she was connected to them and, um, what kind of supports they would offer. Um, she on the phone that day, she, she felt like she, she told me she had a positive conversation with the ex-boyfriend and that she felt like he heard her and that it was over, and that he was gonna leave her alone and that everything was fine. Um, she also said she was afraid that if, um, she got a restraining order against him that he would end up in jail and she didn't want him to go to jail. She was kind of worried about him in that way.

Det Kahnt: Mm-hmm.

Lohan: um, you know, I tried to remind her like she had to look out for herself and her own safety, but, um, she had said at that point she wasn't gonna seek additional supports and she felt like everything was kind of handled

108The circumstances are different with respect to Mr. Lohan’s recounting of his conversations with Ms. Mallia than those of her co-workers. Mr. Lohan’s account is based, in part, on notes he took of conversations in what appears to be the ordinary course of his job duties. He provides the context of the conversations and the dates they occurred. I have no trouble finding that the prerequisites for admission under the traditional state of mind exception exist in these circumstances.

109With respect to my residual discretion to exclude,¹¹ I find Ms. Mallia’s state of mind between July 5 and 11, 2022 highly probative. These conversations occurred only five weeks prior to the August 14, 2022 Text Messages, Ms. Mallia’s August 15, 2022 Statement to Police, and the homicide. The inference that the ex-boyfriend Ms. Mallia was speaking about is Mr. Dowman is available based on the evidence filed on this motion and therefore this state of mind is relevant to the issues in this case. That Ms. Mallia feared Mr. Dowman on or around July 5 and only days afterwards felt things were positive and that she feared getting a restraining order would lead to her ex-boyfriend ended up in jail are all piece of circumstantial evidence relevant to the up and down nature of Ms. Mallia and Mr. Dowman’s relationship. On the other hand, the prejudicial effect is low.

110Ms. Mallia’s ante mortem statements to Mr. Lohan with respect to her then present state of mind are admissible.

b. Mr. Dowman’s Actions - Principled Approach

111The Crown seeks to admit specific statements made by Ms. Mallia to her co-workers and Mr. Lohan to prove various acts by Mr. Dowman under the principled approach to hearsay. Before addressing each material aspect separately, I will address some general issues applicable to all of them.

112The hearsay danger with these specific statements is the difficulty in assessing the sincerity of Ms. Mallia’s claims that Mr. Dowman did the specific things she recounts. The circumstances in which the deceased’s statements were made to her co-workers alone are insufficient to show these statements are inherently trustworthy.

113The statements made to her co-workers were not made under oath. They were not memorialized by the recipients. Ms. Mallia did not have a close or special relationship with any of these co-workers and she only started working at Pet Value in late April 2022. Some of Ms. Mallia’s remarks appear to result from questions asked, or it is unknown if they were spontaneous. Other than the black eye, Ms. Mallia’s remarks about Mr. Dowman’s actions either did not occur proximate in time to when she told these co-workers about them, or their proximity is unknown. On the statements before me, Ms. Mallia’s remarks to her co-workers lacked any detail, for example, the name of the “ex-boyfriend” or when any of the alleged actions of Mr. Dowman occurred (other than the black eye). For the most part, the proposed witnesses’ statements are also bereft of any detail describing the circumstances in which Ms. Mallia made the specific statements.

114Defence counsel argued that in considering threshold reliability, I ought to consider the possibility that the accounts of the co-workers of what Ms. Mallia told each of them was inadvertently tainted as they clearly spoke to each other about what Ms. Mallia told them and recounted to police things they heard from others. Difficulties related to the narrators’ credibility and reliability, however, are not relevant to threshold reliability but to ultimate reliability and can be tested by way of cross-examination of the narrator at trial: see R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at paras. 47-51; Dion, at para. 38.

115Similarly, I cannot use the fact that Ms. Mallia told several people similar things to enhance reliability as the Crown argues. This strikes me as an issue of ultimate reliability and in any event, repetition by the same person does not increase the likelihood of truth or accuracy.

116I turn now to each material aspect, noting the item number in the Crown’s Compendium.

117Items #5, 8, 9, 12 – black eye: On July 5, 2021, Ms. Mallia came to work with a black eye. Ms. Quinn described her as “bawling her eyes out and her face was all swollen and, and like black”. Ms. Quinn told police that when they were alone, Ms. Mallia told her “it was her boyfriend who did that.” Ms. Campsall told police she had to send Ms. Mallia home because she was crying, and she said her ex-boyfriend hit her in her face. Ms. Campsall also said Ms. Mallia had told her that “when she came with the black eye where he, she said that he was just like at her apartment and he was in her lobby and he wouldn’t let her leave. And, um, Eventually I guess that, I don’t know if that’s when he hit her or if it was before, she didn’t really elaborate”.

118That an assault occurred is corroborated by all the witnesses’ observations of the black eye and Ms. Mallia’s emotional state. However, the material aspect of this statement is not simply that the complainant was assaulted in July 2021, but critical is who punched her in the face. The Crown wishes to use this evidence at trial as proof that Mr. Dowman had assaulted Ms. Mallia prior to when she was unlawfully killed. Here, there is no evidence confirming that it was Mr. Dowman who assaulted Ms. Mallia. This is not to say that corroborative evidence of who a declarant says was her assailant is required in all cases, but rather, in theses specific circumstances, or lack of known circumstances and details, more is required to overcome the dangers of not being able to test this evidence. The police statements of the co-workers do not indicate that Ms. Mallia said anything about the assault except that her ex-boyfriend punched her and that he was in her lobby and wouldn’t let her leave. The corroborative evidence does not demonstrate that the only likely explanation for the existence of the black eye and her emotional state is that Ms. Mallia was truthful that Mr. Dowman is the one who assaulted her. The need for cross-examination is not mitigated on the point of identity of the assailant in these very specific circumstances.

119Mr. Lohan’s evidence about the black eye is also inadmissible for many of the same reasons. I also note that Mr. Lohan did not see Ms. Mallia but spoke to her on the phone sometime after her boss at Pet Valu called him. He therefore could not have observed her emotional state and only said he could “tell she was kind of fighting back tears”. It was only after Mr. Lohan “pushed her a bit” that Ms. Mallia told him her ex-boyfriend hit her in the face. This hearsay evidence is inadmissible through Mr. Lohan as well.

120Item #4 – hacking into email: In her police statement, Ms. Campsall recounts that Ms. Mallia “has like said things in the past where he’s been trying to like hack into her email…” (p. 3). No detail regarding the alleged hacking beyond that one line is provided in Ms. Campsall’s statement. There is no indication of when Ms. Mallia told her about this, Ms. Mallia’s emotional state, when the attempt to hack into her email occurred, or any other circumstances. The only extrinsic evidence before me is the April 18, 2022 Google account alert with recovery phone number (289) 675-3706, which is not corroborative evidence as discussed above in s. 5.b.vi of these reasons. There are insufficient indicia of reliability that would allow the trier of fact to properly evaluate the truth of these statements. As such, the Crown has not met threshold reliability.

121Item #6 – harassing her for years: According to Ms. Campsall, Ms. Mallia told her that her ex-boyfriend “has been harassing her for years.” Again, there are no details beyond these few words regarding the nature of the alleged harassment or when it occurred or the circumstances under which Ms. Mallia told this to Ms. Campsall. There is no corroborative evidence. The Crown has not met threshold reliability.

122Item #7 – went to police on August 15 to get a restraining order: The specific purpose for which the Crown seeks to introduce this aspect (and part of item #6 where Ms. Mallia said her ex-boyfriend was 10 years older than her) is to establish that the “ex-boyfriend” Ms. Mallia was speaking of in her discussions with the co-workers is Mr. Dowman. Since I have ruled all these statements are inadmissible, this aspect is neither relevant nor material. Moreover, this item is otherwise wholly unnecessary given I am admitting Ms. Mallia’s August 15, 2022 Police Statement.

123Item #11 – illegal firearms: During submissions, the Crown advised they are no longer seeking admission of this item.

c. Admissibility of Ms. Campsall’s Evidence That She Saw Mr. Dowman at Pet Valu

124Lastly, in submissions, the Crown sought the introduction of one item of prior discreditable conduct evidence from Ms. Campsall’s statement that is not hearsay. In response to police questions, Ms. Campsall told police about an incident the Saturday before the homicide. Ms. Campsall recounted that she went outside the Pet Valu store and saw a man who was trying to peek in the store and who gave her a very bad feeling. She did not know who the man was but, after the homicide, she saw a picture of Mr. Dowman and recognized him as the man outside the store. She told police it was the same guy “a hundred percent”.

125This identification is highly suspect and unreliable. No description of the person she saw is provided in this statement, nor is any description of the conditions under which she made her observations, such as lighting or her distance from the person. Ms. Campsall identified Mr. Dowman only after seeing a picture identifying him as a suspect in her co-worker’s murder. She had never seen him or the individual outside the store before. No picture of Mr. Dowman was shown to Ms. Campsall when making this statement. The parties agree that no photo line up was conducted. The well-known dangers of identification evidence are rife. In these circumstances, the probative value of this evidence is minimal and the prejudicial effect significant. This identification evidence is not admissible.

d. Conclusion on Statements to Co-workers and Mr. Lohan

126None of the proposed evidence of the Pet Valu co-workers with respect to hearsay statements attributable to Ms. Mallia is admissible at trial. The additional prior discreditable conduct evidence proposed to be admitted through Ms. Campsall is also not admissible at trial. In my view, the probative value of all this proposed evidence is too tenuous to be admitted.

127With respect to Mr. Lohan, Ms. Mallia’s hearsay statements regarding her own state of mind are admissible and Mr. Lohan is permitted to testify about this. The hearsay statements related to the black eye are not admissible and Mr. Lohan cannot testify about this; specifically, the bottom of p. 3 to the fifth line of p. 5 of his transcript.

7. DECEMBER 2021 HEARSAY TEXT MESSAGES TO FATHER

(Crown Compendium, items #2 and #3)

128The Crown seeks to introduce text messages Ms. Mallia sent to her father on December 28 and 29, 2021. The Crown does not intend to call Ms. Mallia’s father as a witness at trial. The primary purpose for which the Crown seeks to introduce these messages is the truth of Ms. Mallia’s allegations that Mr. Dowman hacked into her email, social media accounts and messages. There is no evidence before me with respect to the circumstances in which these texts were sent. The Google account alert with recovery phone number (289) 675-3706 post-dates this text – it is from April 18, 2022 and therefore cannot be considered evidence that corroborates that Mr. Dowman hacked into her email in December 2021. As such, the Crown has not met threshold reliability.

129Relatedly, the Crown seeks admission of other portions of these texts to prove Ms. Mallia’s state of mind and intentions at the time these texts were sent; namely, that she intended to get her laptop and blow dryer from Mr. Dowman’s residence and “be done with him”; and her text that “If anything happens to me dylons address is 77 amethyst circle in Brampton” as demonstrative of her fear.

130With respect to the first prerequisite under the traditional state of mind exception – that the statement discloses the declarant’s relevant, present existing state of mind – while the texts disclose Ms. Mallia’s state of mind at the time she sent them, I find the statement has no, or at best marginal, relevance to the issues in the case given its remoteness to the homicide and the lack of evidence of the circumstances in which the texts were sent. Ms. Mallia’s stated intention to end the relationship with Mr. Dowman and fear of him almost eight months prior to the homicide is too remote in time to be logically connected and relevant to the homicide: see Dion, at para. 43. This is particularly true since it seems from Ms. Mallia’s August 15, 2022 Police Statement that she got back together with him sometime after she sent these texts and that they had an on and off again relationship in which both were instigators. Moreover, the situation here is not similar to that in Dion where the admitted ante mortem statements were made by the deceased throughout the course of that relationship, thus making the remote statements about the deceased’s state of mind more important to demonstrating a continuing and evolving concern about that relationship as described by close family and friends who testified about their own observations, relevant events and what the deceased told them: Dion, at para. 46.

131In addition, I am unable to find that the second prerequisite is met – that the statement was made in a natural manner and not under circumstances of suspicion. The circumstances under which the texts were written are completely unknown.

132Moreover, these texts cannot be admitted to prove Ms. Mallia’s state of mind under the principled exception. Again, the circumstances under which these texts were written are completely unknown. The Crown submitted that I ought to consider that the texts are spontaneous, made to a close confidant, the odd detail about the blow dryer and that she follows up saying she wants to kill herself as circumstances establishing threshold reliability. I do consider these circumstances in which the texts were sent. For example, I cannot say with any confidence they are spontaneous for the purposes of my analysis as nothing beyond the content of the texts is known. Also, there is no evidence before me regarding the nature of her relationship with her father. Even if I consider these circumstances in which the statements were made, more is still needed and there is no corroborative evidence on the material aspects. The fact that she includes Mr. Dowman’s correct address in her text is not corroborative of the material aspect, which is her fear and intention to end the relationship.

133These texts have low probative value given their lack of or minimal relevance as discussed.

8. OCTOBER 2021 TEXT MESSAGES WITH MR. DOWMAN’S LAWYER

(Crown Compendium, item #1)

134On October 13, 2021, Ms. Mallia had a text message exchange with who she believed was Mr. Dowman’s lawyer, Mr. Gray.¹² The Crown seeks to introduce these texts for the truth of Ms. Mallia’s allegation that Mr. Dowman threatened her, as follows: “…you need to talk to your client he’s making pretty serious threats against me.”

135The Crown points to the content of Ms. Mallia’s texts in two respects as establishing threshold reliability.

Ms. Mallia’s use of the present tense in the text noted above; and
Ms. Mallia’s assertion that she did not want to get police involved.

136I disagree that these two points assist in establishing threshold reliability.

137The Crown also argues that the texts show that Ms. Mallia took the time to contact Mr. Dowman’s lawyer, figure out who Mr. Dowman’s lawyer was, and figure out how to contact him, and these circumstances are indicative of her truthfulness. Again, I disagree. Nothing is known about how Ms. Mallia came to learn who Mr. Dowman’s lawyer was or how she obtained his contact information, including whether doing so took any time or effort. There is no context to the threats and no indication of the nature of the threats made, other than Ms. Mallia describing them as “pretty serious.” In addition, the circumstances under which Ms. Mallia sent these text messages are unknown, including anything about Ms. Mallia or Mr. Dowman’s lives and their relationship at that time.

138Nor is there any evidence that corroborates the material aspect of these texts. That the information and bail order indicate Mr. Gray was Mr. Dowman’s lawyer at the time does not corroborate that Mr. Dowman in fact threatened Ms. Mallia, which is the material aspect of these texts.

139In these circumstances, there is nothing to point towards these texts being inherently trustworthy such that cross-examination of the declarant would likely add little. The Crown has not demonstrated threshold reliability on a balance of probabilities.

140In any event, I find the probative value of this prior discreditable conduct evidence marginal – it is a single vague uncorroborated instance of “pretty serious threats” reported by Ms. Mallia without any details as to circumstances and nature, which Ms. Mallia mentions 10 months prior the homicide. This low probative value is outweighed by its prejudicial effect. It has the potential of distracting the jury, leaving them wondering what was going on at that time. It raises the risk that the jury may speculate as to why Mr. Dowman had a lawyer and whether it was because of criminal charges or convictions.

9. THE 2020 INFORMATION AND 2021 RELEASE ORDER

(Crown Compendium, item #50)

141The Crown seeks to introduce this prior discreditable conduct evidence only if the October and/or December 2021 text messages are admitted.¹³ As I have ruled those text messages inadmissible, the 2020 Information and 2021 Release Order are not relevant and are inadmissible.

10. CONCLUSION

142The Crown’s motion is allowed in part.

143The August 14, 2022 Text Messages are admissible.

144The video and transcript of Ms. Mallia’s August 15, 2022 Police Statement is admissible except for the following inadmissible portions, which are to be edited out:

(a) Reference to past “physical incidents” (items #14 and #37 in the Crown Compendium).

(b) Reference to Mr. Dowman knowing where Ms. Mallia worked and showing up there (items #25 and #26).

(c) References to Mr. Dowman hacking her email and using tracking software (items #30, #34, #44, #45 and #46). I note that Ms. Mallia also mentions hacking on p. 33 and pp. 55-56 of the transcripts, and these must be edited out.

(d) When asked if she knew the reason why this all started, part of Ms. Mallia’s answer is Mr. Dowman got mad and she thinks he saw her location at another guy’s house which led to the texts (item #43). This must be edited out.

(e) Reference to Mr. Dowman harassing her in the past (item #37). Ms. Mallia’s perception of Mr. Dowman’s August 14, 2022 Text Messages being harassing to her is admissible and can remain in the statement as they are directly related to the texts and go to her state of mind (items #16 and #29).

(f) Reference to Mr. Dowman having been to Ms. Mallia Jane Street residence and there being “an issue” (items #40 and #41, transcript p. 38 line 1122 to p. 39 line 1153). I note that Ms. Mallia also mentions this on p. 13 of the transcript which must be edited out.

145Ms. Mallia’s ante-mortem statements to Ms. Campsall and Ms. Quinn are inadmissible.

146Ms. Campsall’s identification of Mr. Dowman as the person she saw outside the Pet Valu store is inadmissible.

147With respect to Mr. Lohan, Ms. Mallia’s ante-mortem statement to him regarding her fear of her ex-boyfriend and that she does not want to get a restraining order or see him charged is admissible. Ms. Mallia’s statement regarding the July 5, 2022 black eye is inadmissible and Mr. Lohan shall not testify about it (see the bottom of p. 3 to the fifth line of p. 5 of his transcript).

148The October and December 2022 text messages are inadmissible.

149The 2020 Information and 2021 Release order are inadmissible.

150The defence motion is allowed, and the text messages Mr. Mallia sent to her sister and to Mr. Dowman on August 15, 2022 are admissible.

151I am available to hear further submissions with respect to editing of Ms. Mallia’s August 15, 2022 Police Statement and any issues related to Mr. Lohan’s evidence if any party feels it is necessary.

Justice L. Shin

Released: January 16, 2025

CITATION: R. v. Dowman, 2025 ONSC 354

COURT FILE NO.: CR-24-40000001-0000

DATE: 20250116

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

DYLON DOWMAN

Defendant

REASONS ON PRE-TRIAL MOTIONS #1 AND #2

(ANTE MORTEM STATEMENTS AND PRIOR DISCREDITABLE CONDUCT)

The Honourable Justice L. Shin

Released: January 16, 2025

Footnotes

See Tab 22 of the Crown’s Application Record. These screenshots are undated; however, the body worn camera video shows the police viewing these texts directly on Ms. Mallia’s phone and Ms. Mallia advising she received them the day before. I therefore use the date August 14, 2022 as the date of these texts.
Police found these messages in deleted messages when analyzing Ms. Mallia’s phone.
There was no preliminary inquiry in this case as the Crown is proceeding on a direct indictment signed by the Deputy Attorney General on November 24, 2023.
On January 13, 2025, I provided Crown and defence counsel the opportunity to provide further short submissions on Dion if they thought necessary. Neither did.
I note that at p. 29 of the transcript, Ms. Mallia states that she had been looking into getting a restraining order. The Crown has filed a page from the analysis of Ms. Mallia’s phone indicating on August 14 and 15, 2022, she searched the internet for information on how to get help with domestic violence, how to get a restraining order, and courthouse hours as corroborative evidence on this motion. See Tab 24 of the Application Record.
See excerpts from the Cellebrite report on the analysis of Mr. Mallia’s phone at Tab 24 of the Crown’s Application Record.
For the purposes of this motion, the defence did not contest that the anticipated evidence of the landlord will be that Mr. Dowman lived at 77 Amethyst Circle in Brampton and that Ms. Mallia was his girlfriend.
See Tab 22 of the Crown’s Application Record. When I asked about corroborative evidence during submissions, the Crown indicated that there was other evidence from the Cellebrite report analyzing Ms. Mallia’s phone upon which one could draw an inference that Mr. Dowman had access to her email and other data. Defence counsel did not agree I could rely on the Crown’s submissions regarding evidence not in the record before me on this point. I am required to decide this issue only the evidence filed on these motions.
Paragraph 19 of the agreed statement of fact on the motion #3 (defence motion to exclude after-the-fact conduct evidence) indicates that a Det. Davis called 289-675-3706 in an effort to locate Mr. Dowman, which yielded a negative result. This was the only other reference to this phone number I saw in the evidentiary record before me.
In my view, this is not presumptively inadmissible prior discreditable conduct evidence. While it indicates that Ms. Mallia feared her ex-boyfriend no prior bad act is alleged. Moreover, Ms. Mallia makes positive comments about a conversation she had with the ex-boyfriend which are admissible in relation to her state of mind. Regardless, my analysis of probative value and prejudicial effect would be no different.
The Crown does not intend to call Mr. Gray or any witness in relation to these texts. Rather, the Crown seeks to rely on a copy of the 2020 Information which shows a Mr. Gray as Mr. Dowman’s defence counsel and George Gray’s LSO information page containing his contact information to establish Ms. Mallia was in fact speaking with Mr. Dowman’s lawyer.
Through this information and release order, the Crown seeks to establish Mr. Gray was in fact Mr. Dowman’s lawyer and that Mr. Dowman resided at 77 Amethyst Circle, Brampton, at the time Ms. Mallia sent the October and December 2021 text messages. The Crown acknowledges that this evidence is highly prejudicial and proposes that if the court admits this evidence, the prejudice can be greatly reduced by an agreed statement of fact that Mr. Dowman had counsel and was residing at that address at the time these texts were sent.
I note that Ms. Campsall told police that Ms. Mallia made a similar statement to her: “Maybe when she uh, just after she first started here, she said he’s [ex-boyfriend] gonna kill me” (Campsall transcript p. 2). No detail beyond that one line is provided in Ms. Campsall’s police statement. This does not appear in the Crown Compendium, but my analysis of item #10 is applicable to this statement.

Footnotes

See Tab 22 of the Crown’s Application Record. These screenshots are undated; however, the body worn camera video shows the police viewing these texts directly on Ms. Mallia’s phone and Ms. Mallia advising she received them the day before. I therefore use the date August 14, 2022 as the date of these texts.
Police found these messages in deleted messages when analyzing Ms. Mallia’s phone.
There was no preliminary inquiry in this case as the Crown is proceeding on a direct indictment signed by the Deputy Attorney General on November 24, 2023.
On January 13, 2025, I provided Crown and defence counsel the opportunity to provide further short submissions on Dion if they thought necessary. Neither did.
I note that at p. 29 of the transcript, Ms. Mallia states that she had been looking into getting a restraining order. The Crown has filed a page from the analysis of Ms. Mallia’s phone indicating on August 14 and 15, 2022, she searched the internet for information on how to get help with domestic violence, how to get a restraining order, and courthouse hours as corroborative evidence on this motion. See Tab 24 of the Application Record.
See excerpts from the Cellebrite report on the analysis of Mr. Mallia’s phone at Tab 24 of the Crown’s Application Record.
For the purposes of this motion, the defence did not contest that the anticipated evidence of the landlord will be that Mr. Dowman lived at 77 Amethyst Circle in Brampton and that Ms. Mallia was his girlfriend.
See Tab 22 of the Crown’s Application Record. When I asked about corroborative evidence during submissions, the Crown indicated that there was other evidence from the Cellebrite report analyzing Ms. Mallia’s phone upon which one could draw an inference that Mr. Dowman had access to her email and other data. Defence counsel did not agree I could rely on the Crown’s submissions regarding evidence not in the record before me on this point. I am required to decide this issue only the evidence filed on these motions.
Paragraph 19 of the agreed statement of fact on the motion #3 (defence motion to exclude after-the-fact conduct evidence) indicates that a Det. Davis called 289-675-3706 in an effort to locate Mr. Dowman, which yielded a negative result. This was the only other reference to this phone number I saw in the evidentiary record before me.
In my view, this is not presumptively inadmissible prior discreditable conduct evidence. While it indicates that Ms. Mallia feared her ex-boyfriend no prior bad act is alleged. Moreover, Ms. Mallia makes positive comments about a conversation she had with the ex-boyfriend which are admissible in relation to her state of mind. Regardless, my analysis of probative value and prejudicial effect would be no different.
The Crown does not intend to call Mr. Gray or any witness in relation to these texts. Rather, the Crown seeks to rely on a copy of the 2020 Information which shows a Mr. Gray as Mr. Dowman’s defence counsel and George Gray’s LSO information page containing his contact information to establish Ms. Mallia was in fact speaking with Mr. Dowman’s lawyer.
Through this information and release order, the Crown seeks to establish Mr. Gray was in fact Mr. Dowman’s lawyer and that Mr. Dowman resided at 77 Amethyst Circle, Brampton, at the time Ms. Mallia sent the October and December 2021 text messages. The Crown acknowledges that this evidence is highly prejudicial and proposes that if the court admits this evidence, the prejudice can be greatly reduced by an agreed statement of fact that Mr. Dowman had counsel and was residing at that address at the time these texts were sent.
I note that Ms. Campsall told police that Ms. Mallia made a similar statement to her: “Maybe when she uh, just after she first started here, she said he’s [ex-boyfriend] gonna kill me” (Campsall transcript p. 2). No detail beyond that one line is provided in Ms. Campsall’s police statement. This does not appear in the Crown Compendium, but my analysis of item #10 is applicable to this statement.

1. BACKGROUND

2. EVIDENCE THE CROWN AND DEFENCE SEEK TO ADMIT INTO EVIDENCE

3. LEGAL PRINCIPLES

a. Nature of the Relationship, Animus and Motive in Intimate Partner Homicide Prosecutions

b. Hearsay

i. State of mind exception to the hearsay rule

ii. Principled approach to hearsay

iii. Residual discretion to exclude admissible hearsay

c. Prior Discreditable Conduct Evidence

4. MR. DOWMAN’S AUGUST 14, 2022 TEXT MESSAGES TO MS. MALLIA

5. AUGUST 15, 2022 HEARSAY STATEMENT TO POLICE

a. Truth of Ms. Mallia’s State of Mind

b. Truth of Mr. Dowman and Ms. Mallia’s Actions – Principled Approach

i. Describing the August 14, 2022 Text Messages, identifying they are from Mr. Dowman and related portions (items #16, #17, #19, #20 and #22)

ii. Mr. Dowman lives in Brampton (item #23)

iii. Descriptions of the relationship (items #18, #21, #24, #28 and #47)

iv. Past physical incidents and violence (items #14 and #37)

v. Mr. Dowman’s knowledge of where Ms. Mallia works and that he showed up there in the past (items #25 and #26)

vi. Mr. Dowman hacking Ms. Mallia’s email and using tracking software (items #26, #34, #43, #44, #45 and #46)

vii. Mr. Dowman harassed Ms. Mallia in the past (item #37)

viii. Mr. Dowman’s knowledge of where Ms. Mallia lives, that he has been there and that once there was “an issue” (items #40 and # 41)

ix. Mr. Dowman’s (then) current email dmdbeats@gmail.com and phone #647-474-5874 (items #48 and #49)

c. Defence Motion – August 15, 2022 Text Messages Ms. Mallia Sent to her Sister and Mr. Dowman

d. Probative Value vs. Prejudicial Effect

6. JULY-AUGUST 2022 HEARSAY STATEMENTS TO HER CO-WORKERS AND HER EMPLOYMENT COUNSELLOR

a. Ms. Mallia’s State of Mind

b. Mr. Dowman’s Actions - Principled Approach

c. Admissibility of Ms. Campsall’s Evidence That She Saw Mr. Dowman at Pet Valu

d. Conclusion on Statements to Co-workers and Mr. Lohan

7. DECEMBER 2021 HEARSAY TEXT MESSAGES TO FATHER

8. OCTOBER 2021 TEXT MESSAGES WITH MR. DOWMAN’S LAWYER

9. THE 2020 INFORMATION AND 2021 RELEASE ORDER

10. CONCLUSION

Footnotes

1. BACKGROUND

2. EVIDENCE THE CROWN AND DEFENCE SEEK TO ADMIT INTO EVIDENCE

3. LEGAL PRINCIPLES

a. Nature of the Relationship, Animus and Motive in Intimate Partner Homicide Prosecutions

b. Hearsay

i. State of mind exception to the hearsay rule

ii. Principled approach to hearsay

iii. Residual discretion to exclude admissible hearsay

c. Prior Discreditable Conduct Evidence

4. MR. DOWMAN’S AUGUST 14, 2022 TEXT MESSAGES TO MS. MALLIA

5. AUGUST 15, 2022 HEARSAY STATEMENT TO POLICE

a. Truth of Ms. Mallia’s State of Mind

b. Truth of Mr. Dowman and Ms. Mallia’s Actions – Principled Approach

i. Describing the August 14, 2022 Text Messages, identifying they are from Mr. Dowman and related portions (items #16, #17, #19, #20 and #22)

ii. Mr. Dowman lives in Brampton (item #23)

iii. Descriptions of the relationship (items #18, #21, #24, #28 and #47)

iv. Past physical incidents and violence (items #14 and #37)

v. Mr. Dowman’s knowledge of where Ms. Mallia works and that he showed up there in the past (items #25 and #26)

vi. Mr. Dowman hacking Ms. Mallia’s email and using tracking software (items #26, #34, #43, #44, #45 and #46)

vii. Mr. Dowman harassed Ms. Mallia in the past (item #37)

viii. Mr. Dowman’s knowledge of where Ms. Mallia lives, that he has been there and that once there was “an issue” (items #40 and # 41)

ix. Mr. Dowman’s (then) current email dmdbeats@gmail.com and phone #647-474-5874 (items #48 and #49)

c. Defence Motion – August 15, 2022 Text Messages Ms. Mallia Sent to her Sister and Mr. Dowman

d. Probative Value vs. Prejudicial Effect

6. JULY-AUGUST 2022 HEARSAY STATEMENTS TO HER CO-WORKERS AND HER EMPLOYMENT COUNSELLOR

a. Ms. Mallia’s State of Mind

b. Mr. Dowman’s Actions - Principled Approach

c. Admissibility of Ms. Campsall’s Evidence That She Saw Mr. Dowman at Pet Valu

d. Conclusion on Statements to Co-workers and Mr. Lohan

7. DECEMBER 2021 HEARSAY TEXT MESSAGES TO FATHER

8. OCTOBER 2021 TEXT MESSAGES WITH MR. DOWMAN’S LAWYER

9. THE 2020 INFORMATION AND 2021 RELEASE ORDER

10. CONCLUSION

Footnotes