R. v. Dowman, 2025 ONSC 434
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Respondent
– and –
DYLON DOWMAN
Defendant/Applicant
Maureen Pecknold and Christina Jabbour, for the Crown
Tyler Smith and Mitchell Huberman, for the Defendant
HEARD: January8, 2025
REASONS ON PRE-TRIAL MOTION #3
(to exclude after-the-fact conduct evidence)
SHIN J.
1The defence has brought a motion to exclude certain after-the-fact conduct evidence the Crown intends to introduce at trial which is the third pre-trial motion before me. I provided the parties with the bottom line on what was admissible and not admissible in court on January 16, 2025, with reasons to follow. These are those reasons.
2The defendant Dylon Dowman is charged with the first degree murder of Daniella Mallia who died on August 18, 2022 from gunshot wounds. The issues in this case are identity and level of culpability. I will not repeat the background with respect to this matter as it is set out in my rulings on pre-trial motions #1 and #2: see 2025 ONSC 354 and 2025 ONSC 381.
3On August 18, 2022, the same day as the homicide, police identified Mr. Dowman as a suspect and commenced efforts to locate him. These efforts are outlined in the agreed statement of fact filed on this motion (the “ASF”) which are attached to these reasons as Appendix A. The Crown intends to call this after-the-fact conduct evidence as circumstantial evidence of identity, and not level of culpability.
4The Crown posits that the following evidence as set out in the ASF is relevant to identity as it is circumstantial evidence that supports an inference that Mr. Dowman was actively evading police:
(a) Mr. Dowman’s absence from his rental room or unit at 77 Amethyst Circle in Brampton after the homicide and leaving behind his key and other belongings police found when executing a search warrant. The Crown intends to introduce this evidence through Mr. Ansari, who was Mr. Dowman’s landlord, and police witnesses. The defence contests the admissibility of this evidence except the evidence related to the execution of the search warrant.
(b) The police efforts to locate Mr. Dowman at locations other than 77 Amethyst Circle before September 22, 2022. The Crown intends to introduce this evidence through police witnesses only. The defence contests the admissibility of this evidence.
(c) The circumstances of Mr. Dowman’s arrest on September 22, 2022, including that when the police attended 100 High Park Avenue in Toronto based on a Crime Stoppers tip and Mr. Dowman saw the police there, he called 911 to surrender himself. The defence does not contest the admissibility of this evidence.
5In para. 11 of the Crown’s factum:
The Crown argues that following the homicide, the Applicant was not living in his rental room and known address to avoid detection by police because he was responsible for the killing of Daniella Mallia. The fact that he was not where he was expected to be, or where he could easily be found, has probative value in establishing the Applicant’s connection to the murder.
6The position of the defence is that the evidence they contest ought to be excluded as it is: (1) not relevant; and (2) if it is relevant, its relevance is marginal at best, and it ought to be excluded as its prejudicial effect far outweighs its probative value.
LEGAL PRINCIPLES
7After-the-fact conduct encompasses what an accused said and did after the alleged offence. It is admissible if it is relevant, material, not subject to a specific exclusionary rule, and if its probative value exceeds its prejudicial effect: R. v. Calnen, 2019 SCC 6 at paras. 106-107 (Martin J. dissenting, but not on this point).
8The probative value of after-the-fact conduct evidence is a question of relevance. Evidence is relevant if it makes the fact for which it is tendered more probable than without the evidence. Like all circumstantial evidence, after-the-fact conduct is evidence from which a trier of fact can draw reasonable inferences based on logic, common sense and experience: Calnen at paras 111-112 and 132. As Martin J. explained in para. 142 of Calnen:
142As noted, if a trial judge finds that a piece of evidence is not relevant to a live issue (i.e., if it is incapable of making the proposition for which it is advanced more likely than it would be in the absence of the evidence), then it is her responsibility to either exclude the evidence, or, if it is already admissible for another purpose, provide a limiting or no probative value instruction. If, however, the evidence is found to be relevant (i.e., it has some tendency to make the proposition more likely), then it will be up to the trier of fact to determine how much weight it should be given.
9After-the-fact conduct does not lose its value simply because there are alternative explanations for, or inferences that can be drawn from, the conduct. Only where, in light of all the evidence, the overall conduct and context makes it no longer possible to choose between the available inferences as a matter of logic, common sense and human experience (they are “equally consistent”) is relevance lost and the evidence inadmissible. In making this threshold determination, a trial judge ought to be careful to not usurp the jury’s exclusive fact-finding role and must respect that it is the function of the trier of fact to determine what inferences are accepted and the weight to be given to them: Calnen at paras. 124, 134 and 143-145.
ANALYSIS
(a) After-the-fact conduct evidence related to 77 Amethyst Circle, Brampton
1077 Amethyst Circle was where Mr. Dowman was living at the time of the homicide and for some time prior. Mr. Ansari will be a Crown witness at trial regardless of my ruling as it is anticipated that he will give relevant evidence regarding his knowledge and observations before the homicide on August 18, 2022. This includes his knowledge of Mr. Dowman’s relationship with Ms. Mallia and the history of Mr. Dowman’s residency at 77 Amethyst Circle including that he signed a six-month lease on June 1, 2022.
11During submissions, defence counsel acknowledged that Mr. Ansari’s anticipated evidence of the events after the homicide – that he did not see Mr. Dowman after August 18, 2022 and he left his key – may have relevance and some probative value as these aspects speak to actions by Mr. Dowman. However, the defence submitted that this evidence ought to be excluded as its prejudicial effect outweighs its probative value as inferences other than evasion from police are available.
12In my view, Mr. Ansari’s evidence about his observations after the homicide and police observations and actions with respect to 77 Amethyst Circle are relevant and material to the issue of identity. It is reasonable to expect Mr. Dowman to be at the place he was living at the time of the homicide. That Mr. Dowman was not seen there after the homicide and that his belongings including his ID, medication and key remained there may allow for the inference, based on all the evidence at trial, that he fled his home after the homicide to avoid detection by the police because he was involved in the homicide, whether or not he was aware the police were actively looking for him.
13There is little prejudicial effect at this stage. Mr. Ansari will be a witness at trial regardless of my ruling. Moreover, what inferences are properly available at the end of trial is not something I can determine at this stage. The parties ought to be allowed to explore Mr. Ansari’s knowledge and observations after the homicide and police efforts related to 77 Amethyst Circle at trial. What inferences the jury may properly draw from this evidence is best addressed by the trial judge after the evidence is complete as this issue depends on all the evidence at trial. Therefore, this evidence is relevant and admissible at this stage.
(b) Police efforts to locate Mr. Dowman other than at 77 Amethyst Circle before September 22, 2022
14I start with the observation that there is no evidence before me that Mr. Dowman was aware he was a suspect and wanted by police prior to September 22, 2022. Similarly, there is no evidence that Mr. Dowman was aware that the police attended any of the locations or spoke to the people they did. There is no evidence regarding where Mr. Dowman was staying between the homicide and his arrest.
15While it was prudent for police to check various addresses and speak to different people in their attempts to find Mr. Dowman, the fact that they checked these addresses alone does not make this evidence relevant to the issue of identity. Rather, the relevance and probative value of this evidence is dependent on whether Mr. Dowman would be expected to be at these locations.
16Contrary to the Crown’s submission, the locations the police attended are not locations where one would expect to find Mr. Dowman. One would not expect Mr. Dowman to be at addresses where he lived prior to 77 Amethyst Circle where there is no evidence that he had any ongoing connection to those addresses. There is no evidence before me that Mr. Dowman regularly went to any of the other locations prior to the homicide.
17Moreover, it is unknown if Mr. Dowman had a close connection to the people residing at the locations the police attended or to the individuals the police spoke to. Rather, the ASF reveals that at some of the locations, the people police spoke to did not recognize Mr. Dowman or were only “possible associates of his.” There is no information before me about the nature of Mr. Dowman’s relationship with his mother (other than she knew that he lived in Brampton with a friend and some of the places he previously lived), the mothers of his children or his children around the time of the homicide or anytime before. Therefore, there is no evidence to ground the inference that these people should have known where Mr. Dowman was as the Crown suggests.
18As a result, none of this evidence regarding the police efforts to locate Mr. Dowman before September 22, 2022 is relevant or material and it is inadmissible as circumstantial evidence of identity, at least at this stage.
19There is one issue related to the evidence outlined in the ASF that was not specifically addressed by either party that I address for the sake of clarity. Paragraph 13 of the ASF sets out the results of a production order for Mr. Dowman’s Uber account. This includes Uber pick up and drop off locations on August 18, 2022 before and after the homicide (the first two bullets). This evidence from August 18, 2022 is already admissible for a purpose other than as circumstantial evidence that Mr. Dowman was actively evading detection by police – it is highly relevant to the issue of identity as video evidence shows the distinctive looking perpetrator of the homicide being the one picked up and dropped off by the Uber at these locations as described in my rulings on pre-trial motions #1 and #2.
(c) Circumstances of Mr. Dowman’s arrest on September 22, 2022
20As noted above, the defence does not contest the admissibility of the evidence related to Mr. Dowman’s arrest at 1215-100 High Park Avenue including the evidence in paragraphs 24-26 of the ASF. This evidence is admissible.
CONCLUSION
21The defence motion is allowed in part as follows:
(a) The after-the-fact conduct evidence related to 77 Amethyst Circle, including the investigative steps of the police and Mr. Ansari’s evidence, is admissible.
(b) The evidence of the police efforts to locate Mr. Dowman other than at 77 Amethyst Circle before September 22, 2022 is inadmissible with the one caveat noted above in paragraph 19.
(c) The evidence related to the circumstances of Mr. Dowman’s arrest on September 22, 2022 is admissible.
22I agree with defence counsel’s submission that at trial, it will be open to the Crown to seek to call any of this after-the-fact conduct evidence I have excluded should the evidentiary landscape change during the trial.
23What inferences can or cannot be properly drawn from the admissible evidence at trial regarding events after the homicide are not issues that I can deal with at this juncture. These matters, including the need for limiting instructions, are best addressed with the trial judge.
Justice L. Shin
Released: January 21, 2025
COURT FILE NO.: CR-24-40000001-0000
DATE: 20250121
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
Respondent
– and –
DYLON DOWMAN
Defendant/Applicant
REASONS ON PRE-TRIAL MOTION #3
(to exclude after-the-fact conduct evidence)
The Honourable Justice L. Shin
Released: January 21, 2025