Judge left to weigh hearsay video evidence

It’s up to the judge now. Superior Court Justice Gerald Taylor will decide what to do with videotaped evidence from the former boyfriend of the victim in Michael Durant’s first-degree murder trial after hearing arguments from the Crown and the defence.

The police recorded the video statements when John McNeil was a suspect in the days and weeks after the victim’s body was discovered in August 2003 on the outskirts of Niagara Falls.

McNeil died in 2004, two years before police arrested Durant and eight years before Durant first went to trial.

Defence attorney Joe Wilkinson, during a hearing being conducted remotely using the Zoom app, said he intends to use an alternative suspect defence. Police wiretaps recorded Durant and his former wife, Dana Arnold, blaming the murder on McNeil and another member of their social circle, Raymond Gallon, who is also dead.

The Crown contends the couple knew the police were listening, and the jailhouse conversations were part of a ruse to clear Durant. The defence said they were telling the truth, but Durant’s former wife changed her story in exchange for immunity from prosecution.

Wilkinson’s argument kicked off a series of exchanges between the lawyers and judge on hearsay and admissibility of evidence.

Wilkinson told Taylor he intends “to prosecute” John McNeil for the murder and use part of the taped interview to show the court McNeil is lying about the last time he saw the victim — and that McNeil’s statements are inherently unreliable.

“What you are saying is the only use for this evidence is to prove John McNeil is a liar,” Taylor told Wilkinson. “When it comes to fairness, that seems to me to be very much like a one-way street.”

Wilkinson replied, “I get the point that this is a one-way street, but this is a pretty narrow piece of evidence, and apart from the general rules about afterthe-fact conduct or false alibis, it is where we find ourselves.”

Wilkinson told Taylor part of Durant’s defence will be “to prosecute” John McNeil for the murder.

Durant, who has been in custody since Niagara Regional Police arrested him in January 2006, was convicted of the murder in 2012 and sentenced to life with no possibility of parole for at least 25 years. The Ontario Court of Appeal overturned the verdict and ordered a new trial in 2019. A publication ban protects the victim’s name. She is being referred to as DD during the trial.

Crown attorney Andrew Sabbadini told Taylor it would be a mistake “to conflate ultimate reliability with threshold reliability.”

“There is good information there, and the tape is an adequate substitute for it being heard in court.”

Sabbadini said the judge needs to listen to what else is on the McNeil tapes.

“It also has to be open to you also to consider that John McNeil is telling the truth,” Sabbadini said. “Can we really just pick the bits that the defence wants, but not the other bits the defence doesn’t want?

“The different parts of the statement have an inherent relationship. The defence wants to get into the false alibi part, but not McNeil’s denial that he committed the offence.”

“I suppose you could be convinced it is true that John McNeil never saw DD again,” Wilkinson said. “The defence, by running the alternative suspect defence, is engaging on that battlefield.

“If that’s the road you need to go down, I’m not shying away from having that battle. I threw that gauntlet down several months ago.”

Taylor said he would get his reserved decision into the hands of the lawyers as soon as possible.

The trial, which began in January, had been recessed since early March and is scheduled to reconvene June 22 by Zoom.