Please call to schedule your free initial consultation: 403.262.1110|melanie@yycdefence.ca

Appeal Lawyers Calgary

Sitar & Milczarek

Criminal Appeals & Complex Trials

The Defence Toolkit – February 1, 2025: Disclosure of Videos of Complainant Violence

Posted On 1 February 2025

This week’s top three summaries: R v Haley, 2025 ONSC 265: s.7 #disclosure, R v AV, 2025 ONSC 57: #similar fact, and R v Lemay-Storms, 2025 ABKB 39: #principled exception

R v Haley, 2025 ONSC 265

[January 16, 2025] Charter s.7: Past Complainant Violence Video and Collateral Fact [J.R. Presser J.] 

AUTHOR’S NOTE: The Crown often opposes disclosing a complainant’s past misconduct outside of criminal records. In this case, the defence sought video evidence of past violence involving the complainant, which had led to a peace bond. While peace bonds have little probative value, the recording was deemed potentially relevant and disclosable, especially since the complainant had denied aspects of the incident. The appeal justice also rejected the Crown’s argument that the evidence was inadmissible due to the collateral fact rule, clarifying that this rule applies to admissibility, not disclosure.


[1] The appellant, Andrew Haley, appeals his convictions for one count of assault and one count of assault with a weapon, contrary to ss. 266 and 267, respectively, of the Criminal Code, R.S.C., 1985, c. C-46.

[2] Mr. Haley was convicted after trial of assault with a weapon for spraying bleach on a neighbour, Raymond Whyte; and of assault for pushing another neighbour, Justin Zaza. The assaults were found to have occurred when Mr. Whyte and Mr. Zaza attended at the appellant’s apartment door to confront him about an earlier incident in the building. The defence position at trial was that the Crown had not proven that this was not a consensual fight beyond a reasonable doubt given what it said were significant credibility problems in the evidence of the two complainants. The defence also argued that there was an air of reality to the defence of selfdefence, and that the Crown had not proven that the appellant was not acting in self-defence beyond a reasonable doubt. The trial judge found the complainants credible and found that there was no air of reality to the defence of self-defence. He found that the Crown had proven the charges beyond a reasonable doubt. He convicted the appellant.

[3] The issue on appeal surrounds an application, brought by the defence mid-trial, for disclosure of a video in the possession of the police. The appellant submits that the trial judge erred in failing to order disclosure.

[4] The video apparently depicts an altercation between the complainant, Mr. Whyte, and another resident in the same building, which took place approximately 16 months before the incident at issue in this case. A police synopsis relating to the earlier incident was disclosed to the defence mid-trial. It referred to a video of the earlier incident and noted that the video showed Mr. Whyte chasing the neighbour up the stairs, pushing him down, and punching him twice in the head. Police charged Mr. Whyte with assault after viewing the video. This assault charge was ultimately resolved by way of peace bond. After receiving the synopsis, the defence brought an application for disclosure of the video of the earlier incident. The trial judge dismissed the disclosure application, on the basis that the video was collateral. He did allow defence counsel to crossexamine Mr. Whyte about the earlier incident. In cross-examination, Mr. Whyte denied that he had chased his neighbour up the stairs or punched him in the head. The defence renewed the application for disclosure of the video. The trial judge again dismissed the application. He held that the video was collateral and irrelevant.

[5] On appeal, the appellant submits that the video was “obviously relevant” both to his ability to impeach Mr. Whyte and challenge his credibility, and to his defence of self-defence. As a result, in the defence submission, it should have been disclosed as part of the Crown’s ongoing first party disclosure obligation. When the Crown did not disclose the video, on his application, the trial judge was required to do so. The appellant’s position is that the non-disclosure violated his right to disclosure and his right to make full answer and defence. He seeks a new trial.

[7] The issues for my determination are whether the appellant had a right to disclosure of the video, and if so, whether the breach of that right violated his right to make full answer and defence.

[8] For the following reasons, I find that the appellant had a right to disclosure of the video, which was breached when the trial judge refused to order disclosure, and that this violated his right to make full answer and defence in the circumstances of this case. The trial judge erred in failing to order disclosure of the video.

III. MID-TRIAL PROCEEDINGS RELATING TO DISCLOSURE

[33] In cross-examination, Mr. Whyte was asked whether he had a criminal record. He acknowledged that he did but said that it had been clean for 30 years except for one recent minor incident of which he was found not guilty. When pressed for further information, Mr. Whyte said that a neighbour had accused him of assault, but that he had not assaulted the man.

[34] Mr. Whyte was excused from the courtroom. Crown counsel indicated that Mr. Whyte’s criminal record, which had been disclosed, did not reflect any recent assault charge. Police assigned to this case were unaware of it. At defence counsel’s request, the trial judge asked the Crown to make further inquiries. After inquiring further, the Crown located a SCOPE file and a synopsis relating to a June 2021 assault charge against Mr. Whyte that was resolved by way of peace bond.

[36] After reviewing the synopsis, counsel for the appellant sought disclosure of a video it referred to:

….The victim recorded, partially recorded this assault, and police have said this in the synopsis:

The victim had recorded part of the assault as it was taking place. One police [- once – sorry] – when police viewed the victim’s recording, the accused was arrested and advised of his rights, et cetera.

So clearly police reviewed a recording. I would think that that recording was preserved and it’s a recording of Mr. Whyte being assaultive towards another neighbour, having the other part of this synopsis tells us that the victim in this matter was pursued up the stairs, there was an argument. Mr. Whyte ran up the stairs or the fire escape stairs and confronted the victim. The accused pushed the victim down to the ground and punched him twice in the face. So given that we have a recording of that assaultive behaviour, it’s my submission that it’s clearly relevant to the issues at hand, including what Your Honour will have to assess. The air of reality to a self-defence or consent fight scenario here, and had I had this in advance, there would have been a disclosure motion brought in advance of trial, but here we are. . . It’s unfortunate in terms of the timing, but notwithstanding the fact that the matter was resolved by way of peace bond, we have the police telling us that there was a video of an alleged assault or of the assault, and it’s not too far off. It was June 15, 2021.

[37] The trial judge dismissed the disclosure application, without hearing from the Crown, holding:

Well, it’s a collateral issue. It’s not – we’re not dealing with that trial issue. We’re not dealing with that case. This case is about your client and Mr. Whyte. You can ask this witness about the case, but we’re not getting into the details of that case in terms of videos and police witnesses. We’re not trying that case. That case ended with a peace bond. You can ask him questions, and we’ll move on.

[38] After the application for disclosure was denied, Mr. Whyte was brought back into the courtroom. Counsel for the appellant cross-examined him about the 2021 incident with his neighbour that led to an assault charge. Mr. Whyte admitted to pushing his neighbour to the ground in what he described as a “pushing match.” But he denied that he chased the man up the fire escape and he denied that he punched the man twice in the head, as alleged in the synopsis which appeared to be informed by the police review of the video.

[39] Defence counsel renewed his application for disclosure of the video, which he said he understood police had in their possession.

[40] The trial judge dismissed the renewed application, again without calling on the Crown, as follows:

It’s an entirely collateral issue. It’s another trial – another case. We’re not going to muddy the waters in this case with another case. You’ve asked your questions. You’ve got your answers.

[41] The video of the June 15, 2021 incident between Mr. Whyte and his neighbour was never disclosed to the defence. It was not before this court on appeal.

IV. ANALYSIS

A. WAS THERE A VIOLATION OF THE APPELLANT’S RIGHT TO DISCLOSURE THAT VIOLATED HIS RIGHT TO MAKE FULL ANSWER AND DEFENCE?

(1) Was there a violation of the appellant’s right to disclosure?

(a) Applicable legal principles

[43] Disclosure in criminal cases is governed by two different regimes: R. v. Abdella, 2021 ONSC 3932, 2021 CarswellOnt 7852, at para. 11.

[44] The first, known as first-party disclosure, requires the prosecuting Crown to provide the defence with all material in its possession that is not “clearly irrelevant” or privileged: R. v. Stinchcombe, [1991] 3 S.C.R. 326, at p. 339; R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35, at para. 29.

[45] The defence has a right to first party disclosure on request: Abdella, at para. 11. The right is ongoing and constitutional, protected by s. 7 of the Charter: Stinchcombe, at p. 342; Gubbins, at paras. 18-19; R. v. Pascal, 2020 ONCA 287, 387 C.C.C. (3d) 236, at para. 100. It “helps to guarantee the accused’s ability to make full answer and defence”: R. v. Taillefer; R. v. Duguay, 2003 SCC 70, [2003] 3 S.C.R. 307, at para. 61.

[46] In Abdella, at paras. 12-13, Schreck J. gave the following helpful explanation of the two ways in which the Crown can come into possession of material that triggers its first party disclosure obligations:

First, the police have a duty to provide the Crown with all of the information pertaining to its investigation of the accused, which is sometimes referred to as the “fruits of the investigation”: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at paras. 14, 24; Gubbins, at para. 21; Pascal, at para. 104.

Second, where “obviously relevant” material is in the possession of some other governmental agency and the Crown is put on notice of its existence, the Crown has a duty to make reasonable inquiries of that agency and obtain the material if it is feasible to do so: McNeil, at paras. 48-50; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, at para. 12; Gubbins, at para. 23; Pascal, at paras. 104, 106. Once the Crown comes into possession of such material, it must be disclosed.

[47] Material will be “fruits of the investigation” where it was “generated or acquired during or as a result of the specific investigation into the charges against the accused”: Gubbins, at para. 22.

[48] Material will be “obviously relevant” where it “relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence”: Gubbins, at para. 23.

[49] The second disclosure regime governs material that is in the hands of third parties. This regime governs the disclosure of material that is not in the possession of the prosecuting Crown, the investigating police service in relation to its investigation of the accused, nor another governmental body that is required to provide the material to the Crown because it is “obviously relevant.” The Crown is not required to seek out or disclose such material from third parties. Instead, the defence must bring an application for third party production and establish that the material is “likely relevant”: R. v. O’Connor, [1995] 4 S.C.R. 411.

[50] In order to determine which disclosure regime applies to any material, a reviewing court must consider two questions. As set out in Pascal at para. 107, these questions ask whether:

i. the information sought is in the possession or control of the prosecuting Crown; and

ii. the nature of the information sought is such that the police or another Crown entity in possession or control of it should have supplied the information to the prosecuting Crown.

The second question will be answered affirmatively where the information is part of “the fruits of the investigation” or is “obviously relevant”. An affirmative response on either of these issues means that the first party or Stinchcombe disclosure regime applies: Gubbins, at para. 33

[51] It is clear that the video of the prior incident was not in the possession or control of the prosecuting Crown. Crown counsel learned of it for the first time mid-trial, when it sought out and obtained the synopsis. Accordingly, I must consider whether the video is “fruits of the investigation” or “obviously relevant.”

(b) Was the video “fruits of the investigation”?

[52] It is clear that the video was not “fruits of the investigation.” It was acquired by police in the course of their investigation of the 2021 incident that led to Mr. Whyte being charged with assault. It was not acquired or generated by the police in the specific investigation that led to the appellant being charged with the offences at issue in this trial.

(c) Was the video “obviously relevant”?

[53] The video was of an altercation between Mr. Whyte and a neighbour that took place in the same building as these events, 16 months earlier. The synopsis in relation to the assault charge against Mr. Whyte that arose from that altercation indicates that police viewed the video. It indicates that the video shows Mr. Whyte chasing a neighbour, pushing him to the ground, and punching him twice in the head when he was on the ground. The synopsis also indicates that police decided to criminally charge Mr. Whyte after seeing the video. This means that the video at least contributed to the police forming reasonable grounds to believe that Mr. Whyte had assaulted his neighbour.

[55] The defence position at trial was that credibility and reliability concerns with the complainants’ evidence raised a reasonable doubt and that there was an air of reality to selfdefence.

[56] Relevance, for the purpose of triggering the Crown’s first party disclosure obligations, is defined broadly: Stinchcombe, at p. 339; Taillefer, at paras. 59-60. Moreover, as noted in Abdella, at para. 22:

In determining whether the material in question is “obviously relevant” such that the Crown’s duty to inquire is engaged, it is important [to] recall that relevance is a binary concept. As pointed out in R. v. Jackson, 2015 ONCA 832, 128 O.R. 161, at para. 121, “[t]he law of evidence knows no degrees of relevance” and evidence is either relevant or not: see also Gubbins, at para. 23. Evidence will be relevant where “as a matter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence or non-existence of another fact more probable than it would be otherwise”: Jackson, at para. 122; R. v. Cloutier, [1979] 2 S.C.R. 708, at p. 731.

[58] I will consider the potential usefulness of the undisclosed video to the defence further when I assess whether the appellant’s right to make full answer and defence was infringed. Here, suffice it to say that the video was potentially relevant as independent evidence of Mr. Whyte’s propensity for violence: R. v. Scopelliti (1989), 63 C.C.C. (2d) 481 (Ont. C.A.). As such, it was potentially relevant to the defence of self-defence. The video also had some potential relevance as evidence of Mr. Whyte’s prior discreditable conduct, which in turn, had potential relevance to his credibility: Pascal, at para. 109. And, as this litigation unfolded, the video was potentially relevant to the defence’s ability to impeach Mr. Whyte’s credibility by cross-examining him on inconsistencies between his trial testimony and what was shown on the video (recalling that Mr. Whyte testified that he did not chase the neighbour upstairs or punch him twice in the head when he was on the ground, which conflicted with the summary of the video contained in the synopsis). [Emphasis by PJM]

[60] The video does not have to be certainly helpful to the defence to be “obviously relevant.” It need only “relate” to the defence’s “ability to meet the Crown case, raise a defence, or otherwise consider the conduct of the defence” (emphasis added): Gubbins, at para. 23. Relevance for the purpose of triggering the Crown’s first party disclosure obligations must be assessed not only in relation to the charge, but also in relation to whether it can “reasonably be used by the accused”: Taillefer, at para. 59, citing R. v. Egger, [1993] 2 S.C.R. 451. [Emphasis by PJM]

[61] In this case, non-disclosure of the video prevented the defence from considering whether and how independent evidence of a recent prior altercation with a neighbour involving Mr. Whyte might affect the conduct of the defence. Disclosure of the video, depending on what it showed, may have led the defence to do any of the following: interviewing or even calling the complainant in the prior incident to testify; interviewing other residents in the building; seeking to have the video admitted in evidence; cross-examining Mr. Whyte on the video in-depth, with a view to impeaching his credibility; and relying on the video to help establish an air of reality to selfdefence. Consideration of these avenues in the conduct of the defence was foreclosed here because the video was not disclosed. The video could reasonably have been useful to the defence. The threshold of “obvious relevance” does not require more. [Emphasis by PJM]

[63] On appeal, the Crown argued that its disclosure obligation in relation to the prosecution witness’ prior discreditable conduct and criminal antecedents, as established in Pascal, extends only to prior convictions and outstanding charges. It does not, in the Crown submission, extend to an obligation to disclose everything about past charges and the entire investigative file. This, it says, is for sound public policy reasons: to require the prosecution to disclose more broadly would create an overwhelming and unmanageable disclosure burden for the police and the Crown.

[64] I agree that there is no general rule that every detail about a prosecution witness’ past charges, the circumstances underpinning them, and everything in the investigative file about them is automatically subject to disclosure in the ordinary course. However, the Crown’s obligation to disclose is not solely determined by the category of the material at issue. Rather, it is determined by relevance. Relevance is a case and context specific inquiry: R. v. Cloutier, [1979] 2 S.C.R. 709; R. v. Evans, 2019 ONCA 715, 377 C.C.C. (3d) 231, at paras. 182-186. Where the law has determined that disclosure of certain categories of material, such as a prosecution witness’ criminal record, will generally be required, this is because material in that category will generally be relevant: s. 12 of the Canada Evidence Act, R.S.C., 1985, c. C-5; Pascal, at paras. 108-109. Material that does not fall into a category for which the law generally requires disclosure may still fall under the Crown’s duty to disclose, if it is relevant.

[65] The video is disclosable here because it is obviously relevant in all the circumstances of this case. Even though it may not fall into a category of material that will always or generally be disclosed.

[66] This does not create the floodgates problem anticipated by the Crown at this appeal. Everything in past police investigative files about a witness is not automatically subject to disclosure. But there may be case, fact, or circumstance specific reasons for which a past investigative file, or elements of it, or specific pieces of evidence in it, are relevant and must be disclosed in aid of the right to make full answer and defence. For the reasons set out above, this was the case here.

(2) Was there a violation of the appellant’s right to make full answer and defence?

(a) Applicable legal principles

[67] Not every infringement of the right to disclosure will amount to an infringement of the right to make full answer and defence, entitling an appellant to a remedy on appeal: Taillefer, at para. 71; R. v. Dixon, [1998] 1 S.C.R. 244, at paras. 23-24; Pascal, at para. 111. To establish a breach of the right to make full answer and defence and the need for a remedy, an appellant “will have to show that there was a reasonable possibility that the failure to disclose affected the outcome at trial or the overall fairness of the trial process”: Taillefer, at para. 71; Dixon, at para. 34.

[69] The appellant must establish a reasonable possibility that, possessed of all the relevant evidence, the trier of fact might have had a reasonable doubt as to guilt: Taillefer, at para. 82. That is, “a reasonable possibility that the verdict might have been different but for the Crown’s failure to disclose all of the relevant evidence” (emphasis in the original): Taillefer, at para. 81. This is not a heavy burden: the appellant need only demonstrate a reasonable possibility, not “that it is probable or certain that the fresh evidence would have affected the verdict”: Taillefer, at para. 81. At the same time, mere speculation will not satisfy the standard of reasonable possibility: Pascal, at para. 113.

(c) The first step: did non-disclosure affect the reliability of the verdict in this case?

[72] Without knowing what is on the video, it is difficult to assess whether its non-disclosure affected the outcome at trial.

[75] In my view, there is a reasonable possibility that the video does show Mr. Whyte chasing his neighbour up the stairs, pushing him to the ground, and punching him twice in the head. The police who investigated the 2021 neighbour incident wrote in their synopsis that they viewed the video, that this is what they saw in it, and that they charged Mr. Whyte as a result. In this way, it might be thought that there is a reasonable possibility that non-disclosure of the video affected the outcome at trial. Indeed, the appellant is not required to establish a certainty or even a probability that the non-disclosure affected the verdict: Taillefer, at para. 81.

[77] For this reason, although it is a close call, I cannot find that there is a reasonable possibility that the failure of disclosure affected the outcome at trial. Without knowing the content of the video, its impact on the verdict would be too speculative to allow me to conclude that there was a reasonable possibility of a different outcome at trial had it been disclosed.

[78] But this does not end the inquiry. I must now proceed to consider whether the failure to disclose adversely affected overall trial fairness: Taillefer, at paras. 83, 99

(d) The second step: did non-disclosure affect overall trial fairness in this case?

[79] I find that non-disclosure of the video affected overall trial fairness. There were reasonable possible uses of the non-disclosed evidence and reasonably possible avenues of investigation that were closed as a result of the non-disclosure.

[80] It is reasonably possible that, if it had been disclosed to the defence, the video could have been used to cross-examine Mr. Whyte as to his prior disreputable conduct, as may have been evidenced by the video. This cross-examination could have been useful to the defence in impeaching Mr. Whyte’s credibility: Pascal, at para. 109.

[81]….I conclude that the video may have added little to what was already available to the defence in terms of impeaching Mr. Whyte’s credibility through evidence of prior discreditable conduct. But it is reasonably possible that having the video itself on which to cross-examine Mr. Whyte could have contributed something to the defence’s ability to impugn his character and thereby his credibility.

[82] It is also reasonably possible that, if it had been disclosed to the defence, the video could have been used to cross-examine Mr. Whyte as to inconsistencies between his trial testimony about the 2021 incident, and what the video shows about it. This cross-examination could have been useful to the defence in impeaching Mr. Whyte’s credibility, by demonstrating through inconsistencies that he was not a truthful witness.

[83] The defence’s inability to pursue this line of cross-examination and thereby challenge Mr. Whyte’s credibility was potentially significant here. The credibility of the complainants was a major focus of the defence. In the Reasons for Judgment at trial in this case (unreported decision of Maylor J., June 12, 2024), at para. 13, after noting the defence challenges to Mr. Whyte’s credibility, the trial judge held that “[t]he cross-examination did not diminish the core of Whyte’s evidence as to what occurred.” The loss, through non-disclosure of the video, of a potential avenue for further challenge to Mr. Whyte’s credibility was the loss of a potentially meaningful evidential resource for the defence. In this way, the failure to disclose the video adversely affected trial fairness.

[84] It is further reasonably possible that, if it had been disclosed to the defence, the video could have been used to support the defence of self-defence. In Scopelliti, the Court of Appeal for Ontario held that an accused advancing a defence of self-defence can lead evidence that the complainant committed specific unprovoked acts of violence against third parties, even if these were unknown to the accused at the time of the alleged offence. The court held that evidence of prior acts of violence by a complainant that are unknown to the accused obviously cannot be relevant to whether the accused reasonably believed that force or threat of force was being used against them: Scopelliti, at para. 30. However, evidence of the complainant’s “character (i.e. disposition) for violence is admissible to show the probability of the deceased having been the aggressor and to support the accused’s evidence that he was attacked by the deceased”: Scopelliti, at para. 30.

[85] In this case, the defence position was that there was an air of reality to the defence of selfdefence, and that as a result the Crown had to prove beyond a reasonable doubt that the appellant had not acted in self-defence, which it failed to do.

[86] Even though the appellant did not testify and no other defence evidence was called, there was some evidence in the Crown case that could have contributed to a finding that there was an air of reality to self-defence. It should be recalled that in assessing air of reality, a trial judge must consider the totality of the evidence and assume that the evidence relied upon by the defence is true: R. v. Cinous, 2002 SCC 29, [2009] 2 S.C.R. 3, at para. 53. The trial judge assessing air of reality must not “make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences”: Cinous, at para. 54. In other words, in assessing whether there was an air of reality to self-defence here, the trial judge was required to take the evidence that supported self-defence at face value.

[87] The evidence that could have contributed to a finding of air of reality to self-defence in this case was as follows. This was a two-on-one situation. Mr. Whyte marshalled Mr. Zaza to support him before he went to the appellant’s unit. There was at least some evidence that they went to the appellant’s home to confront him. They sought him out when he was in his home. Mr. Whyte was at least somewhat inebriated. He was upset. There was evidence suggesting that he was also angry, agitated, and aggressive. Mr. Zaza was filming. All three men were yelling. Mr. Whyte was very loud, “mildly threatening,” and the evidence was that it was possible that he provoked the appellant. The evidence suggested that Mr. Whyte used a racial slur against the appellant. The appellant used a homophobic slur against the complainants. Mr. Zaza subsequently deleted his video of the altercation because it showed all three men in a negative light. It was also possible that he deleted the video because it showed Mr. Whyte as the aggressor in the confrontation with the appellant, or otherwise contradicted the complainants’ version of events.

[89] The defence was precluded, by the disclosure failure, from exploring the possibility that the video could have provided independent evidence of Mr. Whyte’s propensity for violence. This, in turn, deprived the appellant of the potential evidentiary value of the video to his defence of selfdefence. This was meaningful because it represented the loss of the possibility to tender evidence that could have answered one of the trial judge’s reasons for finding no air of reality: the absence of evidence that Mr. Whyte threatened or assaulted the appellant: Scopelliti, at para. 30. Accordingly, failing to disclose the video amounted to the loss of a potentially meaningful evidential resource for the defence. For this reason, non-disclosure of the video negatively impacted on trial fairness.

[92] An accused is not required to testify or call any evidence in order to establish an air of reality: Cinous, at para. 53. The evidential foundation required to make out an air of reality “can be indicated by evidence emanating from . . . Crown witnesses,” and it can “rest upon the factual circumstances of the case or from any other evidential source on the record”: Cinous, at para. 53. This is true for all defences, and all required elements of defences: Cinous, at para. 57. Even those defences that are subjective or contain a subjective element, like the requirement set out in s. 34(1)(a). In other words, an air of reality can emerge from any source in the record or circumstance of a case.

[93] In this case, that the appellant did not testify or call evidence does not preclude a finding that there was an air of reality to the requirement that he had a reasonable belief that Mr. Whyte was threatening to use force or actually using force against him. This could have been drawn from other evidence in the case. Here it could be drawn from the evidence and circumstances that: the appellant was a Black man who was subjected to a racial slur; the appellant was living in a building in which many unpleasant things occurred regularly; the two complainants came to the appellant’s door to confront him; and Mr. Whyte was angry, upset, very loud, agitated, and provoking. These circumstances, combined with other evidence, could have contributed to a finding that an air of reality to the element in s. 34(1)(a) was made out.

[94] There is a reasonable possibility that non-disclosure of the video prevented the defence from investigating whether such other evidence was available. On appeal, counsel for the appellant (who was also defence counsel at trial), argued that if he had had the video, he might have interviewed the complainant in the 2021 incident, or considered calling that complainant as a witness. It is no stretch to imagine that the defence might have interviewed other residents in the same building as well. It is reasonably possible that this would have yielded other evidence from which a reasonable subjective belief of threat or force could have been drawn to establish an air of reality.

[95] However, in assessing the effect of the non-disclosure of the video on trial fairness, I am not to consider whether the missing evidence could have affected the outcome at trial: Taillefer, at para. 83. These are two separate inquiries: Taillefer, at para. 83. In other words, it is of no moment to trial fairness if the content of the undisclosed evidence could not have affected the reliability of the verdict. The question of trial fairness turns on whether reasonably possible uses of the evidence or reasonably possible investigative avenues were foreclosed by the disclosure failure: Dixon, at para. 34. Here, even if the undisclosed video on its own could not have contributed to an air of reality to self-defence, the non-disclosure deprived the defence of reasonably possible investigative avenues. Trial fairness was adversely affected. [Emphasis by PJM]

B. DID OPERATION OF THE COLLATERAL FACT RULE OBVIATE THE NEED FOR DISCLOSURE?

[102] The collateral fact rule “prevent[s] contradictory evidence on issues that relate solely to a witness’ credibility on a collateral issue” (emphasis in the original): R. v. A. C., 2018 ONCA 333, 360 C.C.C. (3d) 540, at para. 50; R. v. P. (G.), 95 O.A.C. 200. If the video showed Mr. Whyte chasing the complainant up the stairs, pushing him down, and punching him twice in the head, it would have been relevant both to Mr. Whyte’s credibility and to his propensity for violence. The video went to more than simply Mr. Whyte’s credibility. It also went to the defence theory of the case that the appellant acted in self-defence. The trial judge erred in holding that the video was collateral.

[103] Moreover, the collateral fact rule could not properly have been the basis for dismissing an application for disclosure. It is a rule of evidence, governing the admissibility of evidence. It is not a rule governing disclosure. The video was obviously relevant because it was potentially useful to the defence, as described above. For that reason, disclosure was required. The defence was entitled to receive it. Whether the video would ultimately be receivable in evidence, or whether its reception would be barred by the collateral fact rule, was a separate and subsequent question. One to be determined by the trial judge on the basis of the uses for which the defence wanted to adduce it, against the backdrop of the evidence in the case and theories of the prosecution and defence. The trial judge erred in holding that the video was collateral, and in denying disclosure on that basis.

[105] The appeal is allowed. A new trial is ordered.

R v AV, 2025 ONCA 57

[January 23, 2025] Cross-Count Similar Fact Evidence [Dawn Pentelechuk, William T. de Wit, April Grosse JJ.A.]

AUTHOR’S NOTE: If a justice prohibits the Crown from using similar fact evidence across counts, they must instruct the jury accordingly. The jury must understand that each allegation is separate, requiring independent consideration and verdicts. They should be told that verdicts do not have to be the same and that each decision must be based solely on the evidence for that specific count.


A. OVERVIEW

[1] The appellant on the conviction appeal was convicted of six counts of sexual assault involving six separate complainants, all of whom worked at an adult massage parlour. The appellant was the owner and operator of this business.

[2] The offences occurred over approximately eight years, between 2003 and 2010. They involved a similar modus operandi, which included the appellant asking the complainants for a massage. While the massages started consensually, each complainant testified about how it evolved into non-consensual sexual activity which ranged from attempted vaginal penetration to, in one case, anal penetration.

[5] The appeal from conviction rests on an objection to the jury charge. The charge is said to fail to adhere to the similar act evidence ruling in the sense that the jury was not told about the dangers of propensity reasoning and to avoid applying the evidence across the counts.

B. THE FRAILTIES IN THE CHARGE

[8] The appellant argues that there are two fundamental errors in the jury charge. They are said to be errors of omission and arise largely from the fact that the trial judge dismissed the Crown’s application to have the evidence of all complainants apply across the counts, in what we refer to as the similar act evidence ruling. The appellant contends that, in light of that ruling, the jury should have been specifically told not to apply the evidence across counts, and to avoid engaging in propensity reasoning. The trial judge’s silence on these points is said to constitute reversible error because, while they would have been contingent instructions, they were anything but optional in the circumstances of this case: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at para. 49.

[9] In our view, the appellant is right on this point. The instructions were required.

[10] In the context of a multi-count indictment where similar act evidence has not been admitted, such as this case, and where there exists a risk that evidence on one count could be used by the jury as proof that the accused committed the offences in other counts, the trial judge should instruct the jury not to engage in cross-count reasoning. This instruction must bring home to the jury that each allegation is a separate one that is demanding of separate consideration and a separate verdict, that the verdicts need not all be the same, and that their decisions on each count should be based on the evidence relating only to that count: see e.g., David Watt, Watt’s Manual of Criminal Jury Instructions, 2023 ed. (Toronto: Thomson Reuters, 2023), at pp. 464-465 (Final 44-A).

[11] In addition, and regardless of whether similar act evidence has been admitted to permit the cross-count application of evidence, if there remains a risk that a jury could engage in prohibited propensity reasoning, a limiting instruction is required. That instruction involves telling the jury that they must not rely on the cross-count evidence as proof that the accused is the type of person who would have committed the offence(s): R. v. M. (B.) (1998), 42 O.R. (3d) 1 (C.A.), at para. 42; R. v. M.R.S., 2020 ONCA 667, 396 C.C.C. (3d) 172, at para. 68. [Emphasis by PJM]

[15] Second, Crown counsel points to the fact that the only real issue for the jury to decide was whether the complainants in each count consented to the sexual activity in issue. Given that consent was the only live issue for the jury’s consideration, Crown counsel argues that the risks typically associated with crosscount reasoning were diminished….

[16] Respectfully, the difficulty with this position is that without any instruction on the prohibited use of evidence across counts, the jury may well have reasoned that one complainant’s evidence regarding the lack of consent could lend credibility and reliability to another complainant’s evidence regarding the lack of consent.

[18] Finally, the Crown points to the fact that there was no objection to the charge from experienced defence counsel. While that is correct, this was a legal error, and a significant one at that. It was for the trial judge to get it right and the failure to object in these circumstances is of no assistance to the Crown.

D. CONCLUSION

[26] It is for these reasons that we allowed the conviction appeal, set aside the convictions and ordered a new trial. We would simply note that, to the extent necessary, if there is a new application by the trial Crown for the admission of similar act evidence across counts, the trial judge should not feel bound by the earlier ruling.

 

R v Lemay-Storms, 2025 ABKB 39

[January 24, 2025] The Principled Exception to Hearsay: Prior Domestic Partner [Justice W.N. Renke]

AUTHOR’S NOTE: The principled exception to hearsay requires both necessity and threshold reliability for admissibility. Threshold reliability can be undermined if the declarant is a disreputable (Vetrovec) witness, but this is not the only factor. A witness’s credibility may be questionable due to their motivations when giving statements to the police. In this case, the concern was that the deceased witness, a former conflictual domestic partner, may have been motivated to lie about the accused. Such a history can suggest a motive to harm the accused, which must be considered when applying the rest of the Bradshaw test to assess whether the dangers of hearsay can be mitigated.


[1] Mr. Lemay-Storms is charged with the second-degree murder of Stephen Pond. Amanda Mark was a friend and, for a period, the intimate partner of Mr. Lemay-Storms.

[2] Ms. Mark died on December 29, 2023.

[3] She had made two statements to the RCMP in 2023, the first to SSgt Paul Glanville on January 28, 2023 at her residence in Red Deer, Alberta (the January Statement), the second to Cpl. Megan Evans on March 31, 2023 at the Parkland Detachment in Spruce Grove, Alberta (the March Statement). Both statements were audio-recorded and transcripts were provided for both statements (referred to by page.line).

[4] In this voir dire, the Crown seeks the admission of portions of the March Statement (3.1- 5.15, 7.4-9.15, 12.12-16.15, 17.13-21). Many other portions of the statement concerned irrelevant or prejudicial (bad character evidence) matters and would have been inadmissible, resulting, in effect, in a redacted statement.

[5] While the Crown did not seek the admission of the January Statement, the Crown included this statement and evidence relating to this statement on the voir dire record, to ensure a fair and full record for the March Statement admissibility determination.

II. The Structure of Exceptions to the Hearsay Inadmissibility Rule

A. Bases for Admissibility

[12] Hearsay may be admitted under a traditional exception to the hearsay rule or the principled exception to the hearsay rule (hearsay may be admissible by statute, but no such statutory provisions apply in the present instance).

[13] The principled exception applies if the evidence satisfies the criteria of “necessity” and “reliability.” The background to this exception is the general rule that evidence should be provided by a witness under oath, affirmation, or suitable assurances in a public courtroom, with the witness being subject to cross-examination respecting his or her testimony, concerning the witness’s sincerity, observations, memory, and narration of events. Very generally, “necessity” is established if the declarant of a statement is unable to testify or the declarant’s evidence (e.g., because of memory loss or a changed account) is otherwise unavailable. Very generally, “reliability” concerns circumstances that warrant admissibility, even if the usual mode of transmitting evidence through live witnesses subject to contemporaneous cross-examination is not possible. Reliability may be procedural or substantive, and the two types of reliability may operate in tandem.

[14] “Procedural reliability” is made out if the trier of fact is able to rationally evaluate the evidence because of the circumstances in which it was elicited. For example, the statement of a witness may have been taken on oath or with a warning about the penalties for not telling the truth, may have been captured by an audio-visual recording, and the (e.g., revisionary) witness may be subject to contemporaneous cross-examination.

[15] Justice Moreau described “substantive reliability” as follows in R v Charles, 2024 SCC 29 at para 47:

[47] Substantive reliability is established when the statement is inherently trustworthy. To determine whether this is the case, trial judges may consider the circumstances in which the statement was made as well as the evidence that corroborates or conflicts with it. The standard is a high one ([R v Bradshaw, 2017 SCC 35], at para. 31). That being said, it is not necessary for reliability to be established with absolute certainty. Rather, judges must be satisfied that the statement is “so reliable that contemporaneous cross‑examination of the declarant would add little if anything to the process” ([R v Khelawon, 2006 SCC 57, Charron J] at para. 49, quoted in Bradshaw, at para. 31). In other words, the evidence must be “sufficiently reliable to overcome the dangers arising from the difficulty of testing it” (Bradshaw, at para. 26, quoting Khelawon, at para. 49). As Karakatsanis J. explained in Bradshaw, at para. 31:

Substantive reliability is established when the statement “is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken” ([R. v. Smith, [1992] 2 S.C.R. 915], at p. 933); “under such circumstances that even a sceptical caution would look upon it as trustworthy” (Khelawon, at para. 62, citing [J. H. Wigmore, Evidence in Trials at Common Law (2nd ed. 1923), vol. III], at p. 154); when the statement is so reliable that it is “unlikely to change under cross‑examination” (Khelawon, at para. 107; Smith, at p. 937); when “there is no real concern about whether the statement is true or not because of the circumstances in which it came about” (Khelawon, at para. 62); when the only likely explanation is that the statement is true ([R. v. U. (F.J.), [1995] 3 S.C.R. 764], at para. 40).

Substantive reliability concerns both the sincerity or credibility of a declarant and the accuracy of the declarant’s observations, memories, and descriptions of what the declarant claims to have recalled.

B. The Process of Determining Admissibility

[18] Since in this application, as will be seen below, the route to admissibility pursued by the Crown was through substantive reliability, I’ll focus my process remarks on this type of reliability. That process is as follows (Bradshaw at paras 57, 40).

III. The Admissibility of the March Statement

A. The Material Aspects of the Statement

[27] The material aspects of the statement were identified above, as the relevant aspects of the statement. It is clear that if the March Statement were admissible, Ms. Mark’s reports of Mr. Lemay-Storms’ comments to her would be significant evidence of identification of the perpetrator and would be relevant to the fault or mens rea for the murder charge.

[28] As also indicated, from a hearsay analysis perspective, the March Statement has two levels.

B. First Level: Party Admissions

[29] Ms. Mark claimed that Mr. Lemay-Storms made various admissions to her.

[30] The repetition of Mr. Lemay-Storms’ claimed admissions would be admissible under a traditional exception to the hearsay rule, as party admissions. A party admission includes “any ‘acts or words of a party offered as evidence against that party’ (Paciocco, Paciocco and Stuesser, at p. 191 (emphasis added)) …. I agree with the prevailing view set out by Charron J.: ‘. . . admissions from an accused fall within a well-recognized exception to the hearsay rule’ (R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 75; see also Paciocco, Paciocco and Stuesser, at p. 192):” Schneider at para 52.

[31] There was no suggestion of any complications respecting the claimed admissions that – as regards those admissions themselves – would have attracted the need for a voir dire within this admissibility voir dire: see Schneider at para 37.

[32] If Ms. Mark could have testified, she (like another of our witnesses) could have testified to Mr. Lemay-Storms’ admissions.

[33] The fact that Ms. Mark was repeating out-of-court statements of Mr. Lemay-Storms to be relied on as proof of the truth of their contents does not, in the circumstances of this case, pose any obstacle to the admissibility of the March Statement.

C. Second Level: Ms. Mark’s Statement to Cpl. Evans

[34] The March Statement, though, does not involve only the repetition of Mr. Lemay-Storms’ claimed words. The statement involves the repetition in court of Ms. Mark’s communications to Cpl. Evans as captured in the audio-recording.

[35] The communications by Ms. Mark to Cpl. Evans do not engage a traditional hearsay exception. The Crown sought to establish admissibility through the substantive reliability branch of the principled exception.

1. Necessity

[36] The Defence properly conceded that necessity was established since Ms. Mark was deceased at the time of trial.

2. Procedural Reliability

[37] The March Statement was not admissible through the procedural reliability branch of the principled exception since the statement was not made under oath or a caution about failing to tell the truth, it was not visually recorded, and cross-examination had not been available when the statement was made and was not available at trial: see Bradshaw at para 87.

3. Substantive Reliability

[41] The Crown contends that the March Statement is inherently trustworthy, as demonstrated by the circumstances in which it was made and corroborating evidence.

(a) Hearsay Danger

[42] The focus of the risk assessment of Ms. Mark’s statement is not on whether what Mr. Lemay-Storms is claimed to have admitted is true, that is, on whether the evidence supports a finding that he did what he said he did. Instead, the focus is on whether what Ms. Mark said to Cpl. Evans is true, that is, whether she told Cpl. Evans the truth when she made the claims that she did about what Mr. Lemay-Storms said.

[43] Put another way, the focus is on Ms. Mark and Ms. Mark’s communications to Cpl. Evans.

[44] The hearsay dangers of the March Statement do not concern its observational accuracy. It is not likely that Ms. Mark would have misheard or misunderstood what she claims was said to her. It is not likely that Ms. Mark would have forgotten or wrongly recalled what she claims was said to her. Her description of what was said was simple and straightforward. It is not likely that she would have misdescribed what she claims was said to her: see Bradshaw at paras 64-65.

[45] The specific hearsay danger of the March Statement concerns Ms. Mark’s sincerity or truthfulness. More bluntly, the risk posed by the statement is that Ms. Mark fabricated the statement, that Ms. Mark was lying about what she was told by Mr. Lemay-Storms.

(b) Alternative Hypothesis

[47] As in Bradshaw, serious concerns with Ms. Mark’s sincerity arise on the record. The hypothesis alternative to the Crown’s claim of inherent reliability, that Ms. Mark was lying, has an evidential foundation and is not merely speculative.

(ii) Character and General Trustworthiness

[54] Ms. Mark may not attract characterization as a Vetrovec witness: see Bradshaw at para 69. Nonetheless, there were some concerns about her general trustworthiness based on her propensity for anti-social conduct.

(iii) Relationship History with Mr. Lemay-Storms

[59] The two statements show that Ms. Mark’s relationship with Mr. Lemay-Storms was complicated.

[60] They had been intimate partners, but they had screaming fights and Mr. Lemay-Storms physically abused her and tried to control her psychologically. They had serious disputes about property, about possession of or residence in the Parkside home, personal property, and the dog Sheeba. Ms. Mark sought to protect Mr. Lemay-Storms – she didn’t want him prosecuted for the assault she recounted in her January Statement. He had enough on his plate (40.7-9). But she called the police and told them about the gun in the residence. She told Cpl. Evans that Mr. Lemay-Storms was responsible for Mr. Pond’s death. Yet she helped him with his court matters, even saying “I was the lawyer” (see January Statement 4.12-16, 35.19-24; March Statement 18.19-22, 20.17). She talked to his probation officer to get him help (March Statement 41.25- 42.2). In the March Statement she elaborated on their January fight. She’d said in January that Mr. Lemay-Storms pointed a gun at her. In the March Statement she said he pointed the gun and pulled the trigger. The gun was loaded but there was no round in the chamber (35.1-9).

[61] Ms. Mark’s history with Mr. Lemay-Storms provides a reasonable foundation for an inference for motive to do him harm.

[62] Alternatively, in the March Statement, Ms. Mark not only said that Mr. Lemay-Storms shot Mr. Pond but emphasized that he said it was an accident, he never meant to do it (3.22-24, 4.1-6, 9.1-3, 13-15, 10.1-9, 18.4-7, 19.24-20.2). Cpl. Evans reported talking to Ms. Mark a few days later, when a DNA sample was taken from her. She said that Mr. Lemay-Storms was “a good person at the time.” She repeated that it was an accident, not murder. It was “manslaughter.” She had looked it up.

[63] These representations could have been her effort help him, to be Mr. Lemay-Storms’ “lawyer,” essentially taking it on herself to put a plea bargain before Cpl. Evans – not murder but manslaughter.

(iv) Information Access

[64] Ms. Mark had access to significant information about the case against Mr. LemayStorms. She read newspaper articles (January Statement 38.1). She was doing internet searches concerning forensics (March Statement 23.6-10). More importantly, she got and read his disclosure, she got his “paperwork” (March Statement 13.7-24, 17.19-20, 20.21-22).

[65] Everything that Ms. Mark says about Mr. Lemay-Storms committing the offence could have been drawn from what she read about the offence. It was not that he told her what he did. She constructed a narrative about what he did based on her review of disclosure.

(v) Inconsistent Accounts

[66] A serious concern arises from the inconsistency between her January account of Mr. Lemay-Storms’ involvement and the March account. She claimed to have known about his involvement in the shooting since July 2022 (March Statement 9.16-24), long before the January Statement. In the January Statement Ms. Mark said that Mr. Lemay-Storms was “bothered” by being accused of shooting Mr. Pond (36.17-21, 3878.15-16). She didn’t know who fired off the rifle (37.13-23). She did not think it was Mr. Lemay-Storms (38.3-5).

[67] In the March Statement, after Cpl. Evans said “tell me what you know about … what happened in June of 2022 in Eckville,” Ms. Mark opened by declaring that Mr. Lemay-Storms told her he did it but it was an accident (3.8-24).

[68] There was a substantial inconsistency on the central issue in two statements separated by a little more than 60 days or 2 months. [Emphasis by PJM]

[69] This inconsistency provides a foundation for a strong inference that the later story cannot safely be believed. It cannot be said that the story is likely true. It cannot be said that the earlier story does not have a likelihood of being true.

[70] I realize that there are explanations for the inconsistency. In January, Ms. Mark had concerns for her safety and she didn’t want Mr. Lemay-Storms to get into trouble. These are available explanations. But having regard to the relationship history factors I reviewed, these considerations do not explain away the inconsistency. Ms. Mark may not have wanted to get Mr. Lemay-Storms into trouble, but she did bring in the police. She did tell the police about the rifle and did permit the search. She was concerned about her safety, but she referred to her own safety plan that she was putting in place. She seemed more concerned with getting Mr. Lemay-Storms out of the house and out of her life.

[71] One might argue that this inconsistency should not preclude admissibility of the March Statement. Witnesses’ testimony sometimes is inconsistent with prior testimony or statements. They can be cross-examined on their prior testimony or statements and if KGB is satisfied, the prior testimony or statements may be admitted as evidence. A solution to the present inconsistency could be to admit both the January Statement and the March Statement (see, e.g., R v Hawkins, [1996] 3 SCR 1043, where a witness’s preliminary inquiry testimony for the Crown and its recantation were admitted under the principled exception).

[72] The difficulty is that Ms. Mark is not available for cross-examination and was not available for cross-examination when making the two earlier statements. There is no procedural basis for rationally assessing the conflict between the two statements. See Bradshaw at para 89.

[73] Do the circumstances of the March Statement and corroborating evidence show that, despite these concerns, the truth of Ms. Mark’s statement to Cpl. Evans is the only likely explanation of that statement?

(c) Circumstances of the March Statement

[74] It is true that Ms. Mark did not take the initiative to press her new account of the shooting on the police. She was called in by Cpl. Evans. During the March Statement Ms. Mark’s manner was calm, clear, and articulate, according to Cpl. Evans. She did not appear to be intoxicated. These circumstances do not support reliability, though. These circumstances point to an absence of factors that would undermine reliability. See Bradshaw at paras 91, 92.

[75] Ms. Mark’s revelation of the admissions by Mr. Lemay-Storms was “spontaneous” in the sense of being not elicited by any sort of interviewer suggestion or leading questions. That is true, but the concern is not with (in effect) police fabrication or planting of an account but with Ms. Mark walking into the interview with a new version of events. The possibility of fabrication is not affected by the lack of leading questions.

[76] Ms. Mark’s account in the March Statement was not “spontaneous” in the sense of occurring shortly after the relevant events occurred. The claimed conversations took place months before the March interview and after Ms. Mark had been interviewed in January.

[77] The Crown suggested that Ms. Mark and Mr. Lemay-Storms were no longer in the throes of conflict. She would no longer have had any motivation to concoct a false report about him. It is true that they were no longer living together and were not in the acute conflict of 5 Parkside Drive. Defence counsel pointed out, though, that the evidence does not show what had been going on between Ms. Mark and Mr. Lemay-Storms after the January Statement and before the March Statement. We do not have an evidential foundation for a conclusion that disputes between them had been resolved. We do not know what effect their history would continue to have on Ms. Mark. Certainly the dog remained an issue between them, since Ms. Mark was to regain custody of the dog. Cpl. Evans commented that when Ms. Mark talked about the January incident, she “teared up.” The incident still had an emotional valence, whatever that emotional valence may have been.

[78] The circumstances of the March Statement do not rule out fabrication on a balance of probabilities.

(d) Corroboration

[79] Again, for corroborative evidence to be considered properly in the admissibility assessment, the evidence must bear on the specific hearsay danger borne by the March Statement. Corroborative evidence must show that Ms. Mark did not fabricate her statement to Cpl. Evans.

(i) Ultimate but not Threshold Corroboration

[80] In my opinion, nearly all the corroborative evidence relied on by the Crown concerned the ultimate issue of Mr. Lemay-Storms’ criminal responsibility and not the issue of whether Ms. Mark was truthful with Cpl. Evans. The claimed corroborative evidence does not assist in demonstrating that it is likely that Mr. Lemay-Storms said the things to Ms. Mark that she claims he said. The evidence does not assist on this issue at all. I refer to the following:

 Cpl. Geiger – respecting damage to the pole at the battery site and dents on the tailgate of Mr. Pond’s truck

 Cst. Wheeler – items seized from Mr. Lemay-Storms’ residence on his grandparents’ lands

 Cst. McLellan – attended at 5 Parkside Drive – knew that Mr. Lemay-Storms and Ms. Mark lived there

 Cst. Kavanaugh – attended at 5 Parkside Drive – knew that Mr. Lemay-Storms and Ms. Mark lived there (the only occupants)

 Cpl. Bauer – observations of Ms. Mark’s bedroom at 5 Parkside Drive

 Daniel Storms (Mr. Lemay-Storms’ father) – confirmation that before the shooting, when Mr. Lemay-Storms was living on his grandparents’ land, he had a .22 rifle, and the nature of that weapon

 Leanne Low – eyewitness account of the events preceding the shooting, the shooting of her husband, Mr. Pond, and events after the shooting

(ii) AB’s Testimony

[82] This leaves the testimony of AB, the friend of Mr. Lemay-Storms. Three features of her testimony are significant.

[83] First, AB reported that Mr. Lemay-Storms admitted to her that he was responsible for the shooting of Mr. Pond. He told her he had done “it” and acknowledged by conduct (nodding Yes) that “it” was the shooting. He told her that he shot him (32.30-33.2, 34.25-31, 39.38-39).

[84] Potentially, similarities between admissions given by an accused to two separate people could show that each had in fact received the admissions from the accused – the similarities would be unlikely unless the accused were the source of the admissions.

[85] In this case, though, the information provided to AB was conclusory only. There was no detail. There was not even the qualification “but it was an accident.” There was no reference to seeing a light or firing warning shots. The mere fact of the two claims of admissions, given what was admitted to each recipient, does not mutually enhance the reliability of the admissions reports.

[86] A further difficulty is that the source of any similarities in the admissions may lie not with the accused, but with the recipients of the claimed admissions. There are similarities because the individuals each claiming to be recipients had talked to one another. One may have been a recipient of an admission, the other may not, and the other may have constructed a claim of receiving an admission based on what she was told. In the present circumstances, AB, Ms. Mark and Mr. Lemay-Storms had frequent contact. Ms. Mark and AB were not independent parties. Given their social linkages, the transmission of information about an admission may have been between them, and not between Mr. Lemay-Storms and each of them separately.

[90] Third, AB was asked the following: after the “incident in November,” when Mr. LemayStorms made the claimed admission to AB, “did you ever discuss this with Dustin again?” AB answered as follows (37.40-41):

Specifically with Dustin, no, but his girlfriend talked about it but not in detail. She just had mentioned to me that it looked like it was tearing him up.

If Ms. Mark had conveyed to AB that Mr. Lemay-Storms had admitted responsibility to her too and that he was “torn up” because of what happened, these conversations could be regarded as rebutting what amounts to an allegation of recent fabrication in the March Statement. The conversations with AB could be pre-March Statement references by Ms. Mark to the admissions she later discussed with Cpl. Evans. The conversations would show, at least, that what she told Cpl. Evans was not fabricated only for the purposes of her March statement.

[91] The difficulty is that AB said only that “his girlfriend talked about it but not in detail.” We do not know what Ms. Mark talked about. We therefore do not know what it was that was causing Mr. Lemay-Storms emotional difficulty. The questioning at this juncture moved to another area, due, in hindsight, to not appreciating the relevance of this evidence for a future voir dire.

[92] A further difficulty, again, is that the direction of transmission of information cannot be ascertained. AB claimed to receive the admission. She told Ms. Mark. We do not have evidence from AB that would permit the inference that Ms. Mark had independently received an admission from Mr. Lemay-Storms.

[93] AB’s testimony, I find, does not establish that the only likely explanation for Ms. Mark’s claims to Cpl. Evans is that those claims were true.

(e) Conclusion

[94] Neither the circumstances of Ms. Mark’s March Statement nor the proffered corroborative evidence support the conclusion that the only likely explanation for Ms. Mark’s claims about receiving admissions from Mr. Lemay-Storms is that her claims were true.

[95] It follows that the Crown has not established the substantive reliability of Ms. Mark’s March Statement. The statement, in its entirety, is inadmissible.

Also on the Blog

The Defence Toolkit – February 8, 2025 – Severing Charges

This week's top three summaries: R v Boucher, 2025 ABKB 56: charges #severance, R v Leonard, 2025 ONCA 57: insufficient #reasons and R v Buonomo,...

The Defence Toolkit – January 25, 2025: Video Statements

This week's top three summaries: R v Reves, 2025 ABCA 5: s.715.1 #statements, R v SLB, 2024 ABCA 412: #historical memory, and R v RB-C, 2024 ONCA...

The Defence Toolkit – December 21, 2024: Non-stranger Identification

This week's top three summaries: R v DGA, 2024 SKCA 114: prior ID non-stranger, R v Watson, 2024 ONSC 6781: #duress, and R v Osaigbovo, 2024 ONSC...

About Us

Working through your complex trial materials

Our lawyers have been litigating criminal trials and appeals for over 16 years in courtrooms throughout Canada. We can be of assistance to your practice. Whether you are looking for an appeal referral or some help with a complex written argument, our firm may be able to help. Our firm provides the following services available to other lawyers for referrals or contract work:

  1. Criminal Appeals
  2. Complex Criminal Litigation
  3. Ghostwriting Criminal Legal Briefs

Please review the rest of the website to see if our services are right for you.

Pawel Milczarek, Appellate Lawyer in Calgary, AB.

Written By Pawel Milczarek

Pawel is a partner at Sitar & Milczarek. When he’s not litigating he writes the Defence Toolkit blog.

Related Posts

The Defence Toolkit – October 5, 2024: The Principled Exception

The Defence Toolkit – October 5, 2024: The Principled Exception

This week's top three summaries: R v Charles, 2024 SCC 29: #principled exception, R v R.A., 2024 ONCA 696: #spontaneous utterance, and R v DPT, 2024 ABCA 299: cross-count #evidence R v Charles, 2024 SCC 29 [September 25, 2024] The Principled Exception to Hearsay...