COURT OF APPEAL FOR ONTARIO
Feldman, Tulloch and Jamal JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Mathew Hayes Appellant
Counsel: James Harbic and Robert Harbic, for the appellant Sean Horgan and Craig Harper, for the respondent
Heard: December 5, 2019
On appeal from the conviction entered by Justice M. Gregory Ellies of the Superior Court of Justice, sitting with a jury, on December 14, 2016.
I. OVERVIEW
1On June 4, 2013, at approximately 7:30 a.m., Christopher Parsons’ body was found by his roommate, Laura Heavens. He was naked, lying face down on the floor, with a pool of blood under his head. There was blood spatter surrounding his body, including on the walls and ceiling.
2Forensic analysis revealed that Mr. Parsons had suffered at least seven blows to his head, a sharp force injury to his neck, as well as lacerations to his forehead, face, and scalp. There were also minor injuries consistent with a physical altercation. The murder weapon was not identified or located.
3The appellant, Mr. Hayes, a friend of Mr. Parsons, was charged and subsequently convicted of first-degree murder in his death.
4Mr. Hayes now appeals his conviction. For the reasons that follow, I would dismiss the appeal.
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The day before the murder
5Mr. Parsons worked at a gas station in Haileybury, Ontario. On the day before the murder, he worked a shift from 2:00 p.m. to 10:00 p.m. After his shift ended, he met up with his roommate, Laura Heavens, and friends, Caitlin Willard, and the appellant. He drove them to various locations and eventually dropped Ms. Heavens off at a friend’s house, where she spent the night. He dropped Ms. Willard and the appellant off at the Silverland Motel in Cobalt, Ontario, which is about an eight minute drive from Haileybury. At some point during the car ride, Mr. Parsons mentioned that he was receiving money in his bank account that night.
6The appellant and Ms. Willard spent the night at the Silverland Motel. Earlier that day, they had moved their belongings out of their motel room with the help of Ms. Heavens. Both the appellant and Ms. Willard were unemployed and were being forced to leave their room at the Silverland due to their inability to pay rent. At trial, Ms. Heavens described them as in dire financial circumstances, “[a]lmost starving broke.” She testified that the appellant had asked her if she would drive the car while he robbed the gas station where Mr. Parsons worked. She thought he was joking.
7At trial, Ms. Willard acknowledged the occurrence of this discussion between the appellant and Ms. Heavens. She stated that the two also discussed the possibility of robbing Mr. Parsons, and that Ms. Heavens had mentioned that Mr. Parsons kept his bank PIN on the back of his bank card.
The day of the murder
8At approximately 7:30 a.m. on June 4, 2013, Ms. Heavens returned to her and Mr. Parsons’ apartment after spending the night at her friend’s house. At 7:36 a.m., Ms. Heavens called 911 to attend to her apartment where she found Mr. Parsons lying on the floor in his bedroom.
9A few hours prior, at 5:23 a.m., the appellant was identified on video surveillance leaving the Silverland Motel. He appeared to be carrying something in his hand.
10At 5:37 a.m., he was again observed on video, this time at a convenience store. He was carrying a white plastic bag. The video appears to show a rigid object inside the bag.
11Later, at 6:17 a.m., the appellant was seen on video using Mr. Parsons’ bank card to withdraw $160 from an ATM.
12At approximately 6:41 a.m., the appellant was seen again on video at the convenience store. He no longer appeared to be carrying the white bag with the rigid object inside.
13At trial, Ms. Willard claimed that, before he left that morning, the appellant told her that he was going to rob Mr. Parsons. She testified that he left their room and, when he returned, told her that Mr. Parsons had not been home, but that he had run into his father, who had given him some money.
14The appellant testified at trial. He claimed that he arrived at Mr. Parsons’ house around 5:50 a.m. to ask whether he had left his morphine pills in Mr. Parsons’ car. He testified that he went early in the morning because he was worried that someone else would find the pills. He hitchhiked from Cobalt to Haileybury. He was dropped off at a convenience store. He then walked to Mr. Parsons’ house, taking an indirect route. When he got to Mr. Parsons’ house, he knocked but there was no answer. He then went into Mr. Parsons’ car, which was unlocked, and took Mr. Parsons’ wallet and his own morphine pills. He then used the card at an ATM, withdrawing $160, before hitchhiking back to Cobalt.
15With regards to the white plastic bag and the apparent object inside, he testified that he was a regular cannabis user and that the bag contained a bong. He claimed that, on his return trip, he put the bong up his coat sleeve and no longer carried the bag.
16At approximately 7:14 a.m., the appellant was seen on camera walking back to the Silverland Motel after being dropped off nearby.
17Later that day, at approximately 2:10 p.m., the appellant was again seen on camera walking with a black garbage bag.
18The appellant’s DNA was not found at the apartment, nor on any of the items seized from it. At trial, however, a forensic scientist testified to the fact that the absence of evidence (of someone being present) was not evidence of absence.
The days following the murder
19On or about June 8, 2013, a few days after Mr. Parsons was killed, the appellant and Ms. Willard took a trip together to Kirkland Lake. Ms. Willard testified that, during the trip, they got into an argument while they were intoxicated. She claimed that, during the fight, the appellant told her that he had murdered “Crispy”, the name by which she knew Christopher Parsons. In her eventual statement to police, Ms. Willard noted that the appellant had told her that he had killed Mr. Parsons with a hammer and a pocket knife. At trial, she initially could not remember any details of what he had told her, other than that he had killed Mr. Parsons. Crown counsel then presented her with her police statement for the purpose of refreshing her memory. She then testified that the appellant had told her that he had used a hammer and a pocket knife as weapons. A hammer in the appellant’s possession was later recovered. Blood was not detected on it and no DNA testing was performed.
20Ms. Willard also testified that she believed the appellant had communicated to her that he had burned the clothes he was wearing on the day of the murder. He did not say this to her explicitly but, when she asked him about his clothing, he communicated it through a motion of setting something on fire with a lighter.
21The appellant denied confessing to Ms. Willard that he killed Mr. Parsons. He agreed that they had gone to Kirkland Lake together and had a fight. He also agreed that he had burned his clothes from the day of the murder, but denied that this was because there was blood residue on them. Instead, he testified that, after Ms. Willard was shown a picture of him at a bank machine during a meeting with a police officer on June 7, 2013, she told him he would get blamed for the murder because he had stolen Mr. Parsons’ bank card, and that he should burn his clothes. He ended up burning the clothes along the shoreline of Cobalt Lake and throwing the remains in the water.
The appellant’s arrest and statement to police
22The appellant was arrested on July 10, 2014, and gave a statement to the police on October 7, 2014. The interview lasted approximately five hours. In the interview, he told the police that he did not use Mr. Parsons’ bank card to take money out of his bank account.
23At trial, the Crown sought to introduce the statement the appellant made to the police denying that he had withdrawn money from Mr. Parsons’ account as a form of after-the-fact conduct: R. v. Hayes, 2016 ONSC 6178. The appellant argued that it should be excluded because it was obtained in oppressive circumstances, using police trickery and was therefore involuntary. Among other things, he argued that the police officer undermined his right to counsel by telling him a story about Al Capone’s lawyer, which was designed to, and had the effect of, undermining the appellant’s confidence in his own lawyer.
24The trial judge granted the application to include the statement, finding that the story was not told for the purpose of undermining the appellant’s confidence in his own lawyer, nor did it have such an effect. In context, it appeared to be a story about the lawyer’s moral duty to his children, told to convince the appellant to confess for the sake of his own children.
Crimestoppers tip
25In February 2015, the Crown was advised that the police had received an anonymous Crimestoppers tip relating to the murder of Mr. Christopher Parsons. The tip had been submitted anonymously in writing through an online portal called “Webtip”. On March 11, 2015, the Crown informed defence counsel that a tip had been received and that it suggested that someone other than the appellant was responsible for Mr. Parsons’ murder. The tip also suggested a motive for the commission of the murder. However, the Crown noted that it did not intend on disclosing the wording of the tip, because doing so could reveal the identity of the person who provided it. Neither the police nor the Crown were aware of the identity of the tipster.
26Prior to trial, the appellant brought an application seeking an order compelling the Crown to disclose the wording of the tip on the basis that his innocence was at stake: R. v. Hayes, 2015 ONSC 6366. The application judge denied the application, finding that the appellant had failed to meet the threshold test to trigger the innocence at stake exception to informer privilege. The appellant failed on the basis that there was other evidence with which he could raise a reasonable doubt as to his guilt. Specifically, there was circumstantial evidence on which the appellant could raise an alternate suspect defence.
Third-party suspect application
27Prior to trial, the appellant sought to introduce alternate suspect evidence against three people: Laura Heavens (Mr. Parsons’ roommate), Roger Busch (his neighbour), and Vanessa Tracey (his friend): R. v. Hayes, 2016 ONSC 6103. [1] The trial judge allowed the application with respect to Ms. Tracey, but denied it for Ms. Heavens and Mr. Busch. The appellant argued that Ms. Heavens had a motive to kill Mr. Parsons because he had reported her for welfare fraud a few days earlier. Mr. Busch had a motive, either out of greed to fund a drug habit or out of jealousy because Mr. Parsons lived with Ms. Heavens, who was Mr. Busch’s former girlfriend. The trial judge found that there was no air of reality to Ms. Heavens as an alternate suspect, as there was no evidence that she knew that the victim had reported her for welfare fraud until after he was murdered. He similarly found that there was no evidence connecting Mr. Busch to the murder and no coherent evidence of motive or animus.
Jury trial and verdict
28The appellant was tried before a jury and found guilty of first-degree murder.
III. ISSUES
29The appellant appeals his conviction and raises the following nine issues:
Did the trial judge err by not excluding the appellant’s statement to the police on the basis of police trickery?
Did the trial judge err in denying the third-party suspect applications against Laura Heavens and Roger Busch?
Did the trial judge err in failing to order the disclosure of the Crimestoppers tip?
Did the trial judge err in not directing a verdict of acquittal on the charge of first-degree murder?
Did the trial judge err in his W.(D.) instructions about the proper use of the evidence of the white plastic bag?
Did the trial judge err in his instructions to the jury on circumstantial evidence?
Did the trial judge err in failing to correct the Crown’s misstatement of evidence in its closing address?
Did the trial judge err in failing to correct the accidental disclosure of bad character evidence?
Did the trial judge err in accidentally informing the jury that the appellant was in custody during the trial?
IV. ANALYSIS
1) Did the trial judge err by not excluding the appellant’s statement to the police on the basis of police trickery?
30After the appellant was arrested, he was transported from the North Bay Jail (where he was in custody for another matter) to the North Bay Detachment of the Ontario Provincial Police. He spoke twice with legal counsel. He was later transported to the Temiskaming Detachment where he was interviewed on October 7, 2014, by Detective Sergeant Darren Miller. The interview began around 12:49 p.m. and ended at 5:55 p.m., lasting approximately five hours.
31Approximately four hours into the interview, Detective Miller began telling the appellant the story of “Easy Eddie” O’Hare, who, according to Detective Miller, was Al Capone’s lawyer. According to the story, after the birth of his son, O’Hare had a change of heart about representing Capone. O’Hare subsequently went to the authorities and betrayed Capone’s confidence, thereby breaching his solicitor-client relationship.
32The relevant portion of the exchange is captured below:
Detective Miller: no well Easy Eddie was a lawyer for Al CAPONE so you can imagine what kinda lawyer that would be right he’d definitely be aware of the corruption and murder and everything else involved with the mafia obviously but he was a really good lawyer and he was really really well taken care of by the mafia and Al CAPONE and all his mafia ya know tonnes of money flashy cars nice house everything else and um well everything was wonderful he had a really good looking woman that he hooked up with who was attracted to him and you know what they ended up falling in love and she ended up having a baby well after they had a baby and he now had a son it was a baby boy um it changed for him and he looked ya know as the baby was growing and developing as a baby he looked and went ya know I don’t want this lifestyle this is not what I wanna bring my child into ya know and and learn from me ya know like parents watch their parents learn from their parents children sorry learn from their parents right uh at all ages right out even through adulthood let’s face it like we still talk to our parents right we still learn from em or or people we like or respect uncles aunts it doesn’t matter not just parents grandparents right that continues all through life so anyway Easy Eddie who was the best lawyer there was got CAPONE off on numerous things decided ya know what I can’t do this what’s more important for me is my son to learn the importance of of good being good so he made a very big decision to turn against Al CAPONE and kinda come forward with all the things that he was aware of and he knew what that would in in result in ya know and I don’t even think I have to spell it out we’re talking mafia with the worst of the worst right so you know it’s gonna be his demise but he made that decision Mat now I’m gonna tell you another story you know the O’Hare airport in Chicago
Detective Miller: but the thing is ya know do you see where I’m going with that though do you understand because this is an opportunity for you
The appellant: I understand I understand what you’re trying to do yeah
Detective Miller: but but the last thing you wanna do Mat the last thing you wanna do is send a message to your kids ya know they’re not going anywhere they’re gonna be here your got a lotta life left but it goes that far ya know how I said like outside impact and stuff but you can show your kids that people make mistakes but the last thing you wanna show them is to le ya know and to take responsibility and admit that they own mistakes…
33Prior to trial, the Crown brought an application to have the videotaped interview admitted as evidence. The Crown argued that the statements made by the appellant during the interview, including his lie about the use of Mr. Parsons’ bank card, were voluntary. Defence counsel disagreed, arguing that the “Easy Eddie” story amounted to police trickery, and that the effect of the story was to undermine the appellant’s confidence in his lawyer to maintain confidentiality.
34The trial judge held that, while a police attack on an accused’s willingness to trust in their lawyer could constitute police trickery, the “Easy Eddie” story was not told for the purpose of undermining the appellant’s relationship with his lawyer. Rather, Detective Miller had “told the story in an attempt to persuade Mr. Hayes to tell the truth for the sake of [his] children”: R. v. Hayes, 2016 ONSC 6178, at para. 46. None of the comments during the exchange can be reasonably construed as suggesting that the appellant’s lawyer would betray his confidence and there was no evidence to suggest that the appellant interpreted the story that way.
35On appeal, the appellant submits that the trial judge erred in his interpretation of the story. The true purpose of the “Easy Eddie” story was to suggest to the appellant that, despite any assurances made to him by counsel regarding privilege, there was a real possibility that his lawyer would share privileged information against his best interest. The appellant points to the case of R. v. Jackson (2009), 190 C.R.R. (2d) 72 (Ont. S.C.), 2009 ONSC 18682, in which one of the accused, Mr. Serieaux, was charged with first-degree murder. During an interview with police, an officer stated that, “Your lawyer has given you your rights and told you not to say anything but also your lawyer’s not the one that first facing [sic] the First Degree Murder charge either so I’m not sure if he took the time and I don’t want to know”: at para. 75. The officer then suggested that the “right thing” would be to give a statement. The trial judge found that the comment by the officer “was made to induce the defendant to make a statement contrary to the advice of the defendant’s lawyer” and was “tantamount to him saying that giving a statement would make things better for him in the trial process than following his lawyer’s advice to remain silent”: at para. 79. He found that the “effect of that statement was to undermine the client/lawyer relationship and hence, the balance of the statement should not be admitted into evidence”: at para. 80.
36The appellant argues that the comments made in this case are comparable, as a reasonable person in his situation would have drawn the inference that his lawyer could betray his trust.
37I do not agree.
38The confessions rule, as outlined by the Supreme Court of Canada in R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38, establishes that, whenever a person in authority questions a suspect, any statement made can only be admitted where the Crown can demonstrate, beyond a reasonable doubt, that it was made voluntarily: at para. 30. The rule is animated by “[o]ne of the overriding concerns of the criminal justice system” – that “the innocent must not be convicted”: at para. 36.
39Where the voluntariness of an accused’s statement is at issue, a trial judge must engage in a contextual analysis, with an eye to a number of relevant factors, including: 1) whether there were any threats or promises; 2) whether there were any oppressive circumstances; 3) whether the accused had an operating mind; and 4) whether there were any instances of police trickery: Oickle, at paras. 47-71.
40Where, as here, there are allegations of police trickery, the trial judge must engage in an inquiry which, while “related to voluntariness”, has a “more specific objective [of] maintaining the integrity of the criminal justice system”: Oickle, at para. 65. While the police may resort to tricks or other forms of deceit in order to legitimately pursue their investigations, a confession induced by the use of police trickery will not be admissible where the conduct of the police would “shock the community”: at para. 66, citing Rothman v. The Queen, [1981] 1 S.C.R. 640, 1981 SCC 23, at p. 697 per Lamer J. (concurring); R. v. Collins, [1987] 1 S.C.R. 265, 1987 SCC 84, at p. 286-287.
41Overall, in undertaking the confessions rule analysis, the trial judge “should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account all aspects of the rule”: Oickle, at para. 71. If a trial judge “properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only be overturned for ‘some palpable and overriding error which affected [the trial judge’s] assessment of the facts’”: at para. 71, citing Schwartz v. Canada, [1996] 1 S.C.R. 254, 1996 SCC 217, at p. 279 (emphasis in Schwartz).
42In determining whether the use of the story of “Easy Eddie” amounted to police trickery, the trial judge considered the appropriate test as outlined in Oickle. His decision regarding the voluntariness of the appellant’s statement was, therefore, a finding of fact. Absent a palpable and overriding error, his decision is subject to deference. In reading the exchange between Detective Miller and the appellant, it is clear that the purpose of the story was to attempt to persuade the appellant to admit to the murder of Mr. Parsons for the sake of his children, as the trial judge found. Detective Miller suggested that “Easy Eddie”’s decision to turn against Al Capone for the sake of his son was the right thing to do and that, likewise, it would be good for Mr. Parsons to act honestly and be a model for his children. In this way, the story is clearly dissimilar to the comment made by the police in Jackson, where the thrust was to impugn the accused’s lawyer and their advice. There was no error.
2) Did the trial judge err in denying the third-party suspect applications against Laura Heavens and Roger Busch?
43Prior to his trial, the appellant brought an application to introduce evidence of alternate suspects in the death of Mr. Parsons. Specifically, the appellant sought to introduce evidence with respect to Vanessa Tracey, Roger Busch, and Laura Heavens.
44The trial judge allowed the application with respect to Ms. Tracey, finding that there was evidence of a sufficient connection between her and the crime. Regarding Mr. Busch and Ms. Heavens, however, the trial judge found that there was insufficient evidence to establish an air of reality to the claim that either one of them was involved in the killing of Mr. Parsons: R. v. Hayes, 2016 ONSC 6103.
45Mr. Busch, who was Mr. Parsons’ neighbour, was a drug dealer and, at the time of the murder, was serving a conditional sentence that required him to remain in his place of residence, except for certain brief periods of time. He testified, along with another woman, Tessa Mercier, that they were at his apartment on the night of June 3, 2013. Mr. Busch had previously been in a romantic relationship with Ms. Heavens, who was living with Mr. Parsons at the time. The defence argued that Mr. Busch killed Mr. Parsons either as a result of jealousy over his relationship with Ms. Heavens, or because he wanted or needed Mr. Parsons’ money.
46The trial judge found, however, that there was no evidence that Mr. Busch was ever in Mr. Parsons’ apartment, that he had ever sold drugs to Mr. Parsons, or that he was jealous of Mr. Parsons’ relationship with Ms. Heavens. The trial judge also noted that, if Mr. Busch had killed Mr. Parsons for money, there was no evidence to explain why the appellant had been the one attempting to use Mr. Parsons’ bank card, as opposed to Mr. Busch.
47With respect to Ms. Heavens, she was living with Mr. Parsons at the time of his murder. Prior to his death, Mr. Parsons reported Ms. Heavens to the welfare authorities on allegations of fraud. On the night of June 3, 2013, she spent the night at the home of her friend, Rene Dumais. She found Mr. Parsons the next morning in their apartment. The defence contended that she had been involved in a plan with Mr. Busch to kill Mr. Parsons. The trial judge disagreed, finding that there was no evidence of any plan. Ms. Heavens was also without a key to Mr. Parsons’ apartment and was staying with Mr. Dumais the night before the murder (the door was unlocked when she arrived that morning). The trial judge also found that there was no evidence to refute that Ms. Heavens was unaware of the fact that Mr. Parsons had reported her to the welfare authorities until after his death.
48The appellant argues that the trial judge erred in dismissing the application to allow him to adduce evidence against Mr. Busch and Ms. Heavens. Ms. Heavens had a motive to kill Mr. Parsons, as he had recently reported her to the welfare authorities for two incidents of fraud. She was also alleged to have previously stolen money from him. At the time of the murder, Ms. Heavens was living with Mr. Parsons. She also had been in a prior relationship with Mr. Busch, a drug dealer with a criminal record for violence. His alibi for the night of June 3, 2013 was only corroborated by one person, Ms. Mercier. As such, there was an air of reality to the proposition that either of Ms. Heavens or Mr. Busch was involved in the death of Mr. Parsons.
49I do not agree.
50Where an individual is charged with an offence, it is open to the accused, as part of the defence, to adduce evidence to prove that someone else, in fact, committed the offence: R. v. Grandinetti, [2005] 1 S.C.R. 27, 2005 SCC 5, at para. 46. In Grandinetti, the Supreme Court identified the circumstances in which an accused may raise such evidence. The evidence must be relevant and have sufficient probative value, such that there is “a sufficient connection between the third party and the crime”: at para. 47. The evidence connecting the third party to the offence “may be inferential, but the inferences must be reasonable, based on the evidence, and not amount to speculation”: at para. 47. In other words, the “defence must show that there is some basis upon which a reasonable, properly instructed jury could acquit based on the defence”: at para. 48, citing R. v. Fontaine, [2004] 1 S.C.R. 702, 2004 SCC 27, at para. 70. If the accused cannot establish a sufficient connection, “the defence of third party involvement will lack the requisite air of reality”: at para. 48, citing R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29. A determination as to the existence of an air of reality is a legal one and therefore subject to a standard of review of correctness: R. v. Tran, [2010] 3 S.C.R. 350, 2010 SCC 58, at para. 40; Cinous, at para. 55.
51In this case, the trial judge made a finding that there was no air of reality to either of these two proposed alternative suspects. I see no error in his ruling. The trial judge properly applied the law governing third-party suspect evidence. Unlike with Ms. Tracey, there was no coherent evidence to connect Ms. Heavens or Mr. Busch to the death of Mr. Parsons. Both had alibis for the night before Mr. Parsons death and neither had a compelling motive for murder. The trial judge was correct to conclude that, outside of mere speculation, there was no evidentiary basis upon which a reasonable jury, properly instructed, could conclude that either Mr. Busch or Ms. Heavens were involved in Mr. Parsons’ death.
3) Did the trial judge err in failing to order the disclosure of the Crimestoppers tip?
52Before trial, the appellant brought an application for an order compelling the Crown to disclose a Crimestoppers tip relating to the death of Mr. Parsons. The appellant argued that, without the disclosure of the tip, he would be unable to raise an alternate suspect defence. The Crown disagreed, arguing that the appellant would likely be able to adduce evidence about the possible involvement of Laura Heavens, Roger Busch, Chantal Bujold, and others.
53The application judge held that, based on the evidentiary record, there was a likelihood of the appellant being able to adduce evidence against third parties and, therefore, it would be “inaccurate to say that, without the privileged information, the [appellant] is unable to raise a reasonable doubt about his guilt”: R. v. Hayes, 2015 ONSC 6366, at para. 47. The appellant thus failed to meet the threshold test for piercing informer privilege.
54On appeal, the appellant argues that, while the innocence at stake exception is exceedingly narrow, it is appropriate in this case. As a result of the rulings on third-party suspects, the appellant could only lead evidence relating to Ms. Tracey and Ms. Bujold as alternate suspects. The information within the tip could have established additional third-party suspects or strengthened the evidence against Ms. Tracey or Ms. Bujold. Even if the application judge did not err, this court should assess the significance of the tip. It came after the appellant was arrested for first-degree murder and the informant provided an alternate perpetrator and motive. The court may be able to provide some limited information without breaching privilege.
55In response, the Crown argues that the application judge correctly found that, as the appellant had other evidence that could raise a reasonable doubt, the innocence at stake exception is not met.
56I agree with the Crown.
57As outlined in the Supreme Court’s decision in R. v. Durham Regional Crime Stoppers Inc., [2017] 2 S.C.R. 157, 2017 SCC 45, informer privilege is a class privilege “that prohibits the disclosure of an informer’s identity in public or in court”: at para. 11. The rationale for the protection is that, as informers play an essential role in the investigation of crime through the passing on of pertinent and otherwise inaccessible information, it is in the public interest to ensure their anonymity is secure: at para. 12. Informer privilege is particularly important for anonymous informers, as it is “the promise of anonymity which allays the fear of criminal retaliation which otherwise discourages citizen involvement in reporting crime”: R. v. Leipert, [1997] 1 S.C.R. 281, 1997 SCC 367, at para. 11, quoting People v. Callen, 194 Cal. App. 3d 558 (1987). The only exception to informer privilege is where the innocence of an accused is at stake: Crime Stoppers, at para. 14.
58The innocence at stake exception is operative where the disclosure of privileged information could raise a reasonable doubt as to the guilt of an accused: R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14; R. v. Brassington, [2018] 2 S.C.R. 617, 2018 SCC 37. In order for the exception to apply, the following test must be met: 1) the accused must establish that the information sought is not available from any other source and they are unable to raise a reasonable doubt as to their guilt in any other way; 2) if the first threshold is met, the accused must then provide some evidentiary basis upon which to conclude that the information could raise a reasonable doubt about the guilt of the accused (mere speculation will be insufficient); and 3) if there is such evidence, the judge must examine the privileged information to determine whether it is likely to raise a reasonable doubt as to the guilt of the accused. If this final stage is met, the judge should order the production of the privileged information: McClure, at paras. 48-61; Brassington, at paras. 36-38. However, the court “should only reveal as much information as is necessary to allow proof of innocence”: Leipert, at para. 33.
59In this case, the application judge correctly applied the test as outlined above. The appellant was permitted to adduce evidence against two individuals as third-party suspects in the death of Mr. Parsons. This evidence could have raised a reasonable doubt as to the appellant’s guilt, thus defeating his claim at the threshold stage of the innocence at stake test. While the tip may well have contained exculpatory details regarding the appellant’s role in the murder, informer privilege can only be pierced where the information is the accused’s sole means of raising a reasonable doubt. As expressed by Major J. in R. v. Brown, [2002] 2 S.C.R. 185, 2002 SCC 32, at para. 54:
I stress again that the trial judge should only allow the McClure application if and when she is of the view that the accused will be unable to raise a reasonable doubt without the evidence protected by the privilege. If there is or may be some evidence upon which a reasonable jury, properly instructed, could acquit, the McClure application should be denied or postponed.
60Here, there was such evidence. This ground of appeal is dismissed.
4) Did the trial judge err in not directing a verdict of acquittal on the charge of first-degree murder?
61After the close of the calling of evidence, the appellant brought a motion for a directed verdict of acquittal on the charge of first-degree murder. He argued that there was insufficient evidence of planning and deliberation. The motion was denied by the trial judge on the basis that there was evidence that the appellant had in his possession a long, hard object in a white plastic bag, that he attended Mr. Parsons’ residence, and that he no longer possessed the bag or the object when he was later seen again at the convenience store. It would not be impermissible speculation for the jury to infer that the object in the bag was a weapon used to cause the blunt force injuries or lacerations that were inflicted on Mr. Parsons. The fact that the weapon could have been used for robbery instead of murder does not disentitle the jury from considering murder.
62On appeal, the appellant argues that the trial judge erred in denying the motion. As there is no direct evidence of planning and deliberation, the trial judge was required to weigh the reasonableness of the inferences to be drawn from the circumstantial evidence. In weighing that evidence, the trial judge erred in finding that it reasonably supported an inference of planning and deliberation. Properly considered, the evidence suggested an absence of planning and deliberation. The appellant hitchhiked to and from Mr. Parsons’ residence (an unreliable form of transportation); he volunteered his name to the woman who gave him a ride; and he did not bring a change of clothes or wear clothes that would make him difficult to recognize. Even taking the Crown’s case at its highest, there was no evidentiary basis upon which a properly instructed jury could reasonably infer guilt.
63In response, the Crown argues that the trial judge was correct to find that there was sufficient evidence to instruct the jury on first-degree murder. The Crown identifies a number of pieces of evidence that could support inferences of planning and deliberation, including: the appellant was known to Mr. Parsons; the appellant was in a stressful financial situation; the appellant had discussed robbing Mr. Parsons the day prior to his murder; the appellant was aware that Mr. Parsons kept his PIN on the back of his bank card and that he had money in his account; the appellant was aware that Ms. Heavens would not be sleeping at her and Mr. Parsons’ apartment; the appellant took an indirect route to Mr. Parsons’ apartment; at 5:37 a.m., the appellant was seen at a convenience store, carrying an object in a white plastic bag that appeared long and hard enough to be used as a weapon to inflict blunt force injuries; at 6:41 a.m., after leaving Mr. Parsons’ residence, the appellant was no longer in possession of the object in the white plastic bag; at 2:10 p.m., the appellant was seen walking with a black garbage bag that may have contained clothes; the clothing the appellant was wearing on June 4, 2013 was never seen again; and the appellant told Ms. Willard that he killed Mr. Parsons using a hammer and a pocket knife. The trial judge correctly recognized that this evidence was sufficient to infer that the appellant may have armed himself, attended the deceased’s residence, and disposed of the weapon that could have caused the injuries to the deceased. When considered in the context of the entirety of the evidence, it was appropriate for the trial judge to have left the issue of first-degree murder with the jury.
64I agree with the submissions of the Crown and reject the appellant’s position on this issue.
65When an accused brings a motion for a directed verdict of acquittal, “the trial judge must decide whether there is any evidence on the basis of which a reasonable jury, properly instructed, could return a verdict of guilty” for the offence in question: R. v. Tomlinson, 2014 ONCA 158, 307 C.C.C. (3d) 36, at para. 151. To this end, the Crown “must adduce some evidence of culpability for every essential element of the offence for which the Crown has the evidential burden”: at para. 151. Where the Crown’s case is circumstantial, the trial judge must engage in a limited weighing of the evidence in order to determine whether it is “reasonably capable of supporting the inferences the Crown seeks to have the jury draw”: at paras. 153-154. The test to be met is “whether the evidence, if believed, could reasonably support an inference of guilt”: at para. 154. A trial judge’s decision on a motion for a directed verdict of acquittal is to be reviewed on a standard of correctness: at para. 155.
66Where the offence at issue is first-degree murder under s. 231(2) of the Criminal Code, R.S.C. 1985, c. C-46, the essential elements are: 1) culpable homicide; 2) an intent to cause death or an intent to cause bodily harm that is likely to cause death, while being reckless as to whether or not death ensues; and 3) planning and deliberation.
67In R. v. Robinson, 2017 ONCA 645, 352 C.C.C. (3d) 503, at para. 34, Doherty J.A. outlined the requirements for a murder to be planned and deliberate:
A murder is planned if it is the product of “a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed”. A murder is “deliberate” if it is “‘considered,’ ‘not impulsive’ … implying that the accused must take time to weigh the advantages and disadvantages of his intended action”. Murder, as defined in either s. 229(a)(i) or s. 229(a)(ii), can be planned and deliberate.
68Applying these legal principles to the case at bar, the trial judge was correct to put the issue of first-degree murder before the jury. There was direct evidence, via Ms. Willard’s testimony, that the appellant had murdered Mr. Parsons using a hammer and a pocket knife. There was also circumstantial evidence, including the early morning trip to Mr. Parsons’ apartment and the hard object in the white bag, that the appellant had visited Mr. Parsons with the intention of robbing and killing him. While it was not necessary for the jury to have concluded that the appellant did, in fact, attend Mr. Parsons’ apartment that morning with the intention of murdering him, there was sufficient evidence for them to so find.
5) Did the trial judge err in his W.(D.) instructions about the proper use of the evidence of the white plastic bag?
69In his charge, the trial judge instructed the jury regarding the proper use of the evidence of the white plastic bag the appellant was carrying. The instruction was as follows:
Mr. Hayes had with him a white plastic bag when he left. When he is seen at the One-stop on his way to Haileybury, he places that bag on the counter. When he picks it up, he does so in a way that could lead one to believe that the object inside is long and hard. He does not have this bag with him when he again stops at the One-stop on the way back to Cobalt. If you do not accept his evidence that the bag contained his bong, or are not left with a reasonable doubt by it, this evidence is evidence of planning and deliberation. [Emphasis added].
70The appellant submits that this instruction was a clear misdirection. The instruction erroneously suggested that if the jury did not accept the appellant’s explanation for the bag, they could jump to the conclusion that it was evidence that the appellant planned to murder the deceased. The trial judge failed to explain that the jury were not obliged to accept either explanation and that there was a third alternative where they could have a reasonable doubt. The jury did not have to “accept” anything that the appellant said for there to be reasonable doubt. The appellant submits that this instruction was not sufficient to meet the W.(D.) standard, as the trial judge incorrectly implied that the appellant had the burden of proof, when the burden of proof rests with the Crown. The appellant further submits that this error cannot be cured by the curative proviso because the error is not trivial and there is no overwhelming body of evidence that would suggest to this court that, by ordering a new trial, the appellant would surely be convicted again.
71After reviewing the charge, I agree that the trial judge’s instruction on the proper use of the white bag was problematic, as he failed to instruct the jury that, even if they did not accept the appellant’s evidence, they could have been left in reasonable doubt as to whether the white bag contained a weapon and was therefore evidence of planning and deliberation. However, in light of the charge as a whole, I am not convinced that the jury would have misunderstood that the burden was on the Crown to prove the element of planning and deliberation beyond a reasonable doubt.
72When assessing an alleged error in a trial judge’s jury instructions, an appellate court “must examine the alleged error in the context of the entire charge and of the trial as a whole”: R. v. Araya, [2015] 1 S.C.R. 581, 2015 SCC 11, at para. 39. The instructions must not be held to a standard of perfection and appellate courts “should not examine minute details of a jury instruction in isolation”: at para. 39. Rather, what matters is the “overall effect of the charge”: at para. 39, quoting R. v. Daley, [2007] 3 S.C.R. 523, 2007 SCC 53, at para. 31.
73Here, the alleged error pertains to a W.(D.) instruction. Pursuant to the Supreme Court’s decisions in R. v. W.(D.), [1991] 1 S.C.R. 742, 1991 SCC 93, and R. v. J.H.S., [2008] 2 S.C.R. 152, 2008 SCC 30, the W.(D.) framework “unpacks for the benefit of the lay jury what reasonable doubt means in the context of evaluating conflicting testimonial accounts” and alerts them to a “credibility contest” error: J.H.S., at para. 9. It requires that trial judges “impress on the jury that the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt”: at para. 9.
74In this case, the trial judge set out the correct instructions on reasonable doubt on three separate occasions and indicated seven times that the burden of proof was on the Crown. In his instruction on planning and deliberation, he explained that “Crown counsel must prove beyond a reasonable doubt not only that Mr. Hayes murdered Mr. Parsons, but also that the murder was both planned and deliberate.” He instructed the jury that, in deciding the issue, they “should consider all the evidence.” The impugned instruction then came during the trial judge’s identification of evidence relevant to the issue. Defence counsel did not object to the instruction.
75In these circumstances, I am not satisfied that the oversight by the trial judge would have mislead the jury as to their obligations in assessing the evidence and determining the issue. After hearing the whole of the charge, it would have been clear to the jury that they could only find that the murder had been planned and deliberate if, on the basis of all the evidence, the Crown proved the element beyond a reasonable doubt.
6) Did the trial judge err in his instructions to the jury on circumstantial evidence?
76At trial, the Crown’s case relied almost exclusively on circumstantial evidence. Consequently, in his final charge to the jury, the trial judge provided an instruction regarding the proper treatment of such evidence. On appeal, the appellant argues that part of the instruction, reproduced below, was erroneous:
Because of the fundamental principle that the Crown is required to prove a person’s guilt beyond a reasonable doubt, in order to find Mr. Hayes guilty on the basis of circumstantial evidence alone, you must be satisfied beyond a reasonable doubt that his guilt is the only rational inference that can be drawn from the whole of the evidence. If there is any other rational inference available, you cannot find Mr. Hayes guilty.
The only direct evidence of Mr. Hayes’ involvement in this crime is that of Caitlin Willard, who testified that Mr. Hayes confessed to her. I will have more to say about her evidence later. For now, what I wish to convey to you is that, if you do not believe Mr. Hayes’ evidence that he did not kill Mr. Parsons, which, of course, is direct evidence, if you are not left with a reasonable doubt by Mr. Hayes’ evidence, and if you do not believe Caitlin Willard’s evidence that Mr. Hayes confessed to her, then you are left only with circumstantial evidence. In that case, you must be satisfied beyond a reasonable doubt by the rest of the evidence that the only rational inference is that Mr. Hayes is guilty of first or second degree murder, as I will explain those offences to you. [Emphasis added.]
77The appellant argues that the instruction contains an error in that it suggests that the jury should compartmentalize the circumstantial evidence from the appellant’s testimony. The instruction is problematic because the jury could not properly determine whether the appellant’s evidence raised a reasonable doubt without simultaneously considering the circumstantial evidence. This is the same error as in R. v. Miller (1991), 5 O.R. (3d) 678 (C.A.), 1991 ONCA 2704, in which the trial judge instructed the jury to consider the evidence in different stages. In Miller, this court held that the effect of the instruction was to eliminate from the jury’s consideration evidence which was neither accepted nor rejected and therefore prevent a consideration of the evidence as a whole. The appellant submits that this error cannot be cured by the curative proviso.
78I disagree.
79Where the Crown’s case rests entirely or substantially on circumstantial evidence, the standard of proof requires that the trier of fact be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference to be drawn from the evidence as a whole: R. v. Lights, 2020 ONCA 128, at para. 36; R. v. Villaroman, [2016] 1 S.C.R. 1000, 2016 SCC 33, at para. 20.
80In this case, I am satisfied that the trial judge’s instruction on circumstantial evidence was correct. Contrary to the position of the appellant, I do not agree that the instruction directed the jury to consider the evidence in different stages, as occurred in Miller. When read in its entirety, the instruction was clear that the evidence needed to be assessed as a whole. The impugned instruction merely attempted to safeguard the appellant’s presumption of innocence by highlighting that, if the jury did not accept the direct evidence of his confession, they could only be satisfied of his guilt on the circumstantial evidence if there was no other rational inference available. Further, the fact that no objection was taken to the charge on this issue during the pre-charge or post-charge submissions is indicative of the absence of any meaningful issue. There was no error.
7) Did the trial judge err in failing to correct the Crown’s misstatement of evidence in its closing address?
81During the Crown’s closing address, Crown counsel argued that a soaking wet towel, found in Mr. Parsons’ bathroom, had been used to wash away any blood that had sprayed onto the appellant’s clothing. The Crown argued that the fact that the towel was still soaked a few days after the murder suggested that a lot of water had been used to remove any staining:
Now, you’ll recall Mike Cruickshank testified that the red and white towel in the bathroom was soaked with water. And here you have a couple of pictures. That picture and the next slide are two pictures that show that towel. You’ll recall that he testified that it was still soaked with water some three days or so after June 4th. In our view, this is indicative that this towel was used to wash something. It is our view that it was used to wash away the splatter that may have been on the jacket, may have been on the clothing. And as a matter of common sense, when you’re washing away blood or wine or something that stains a lot, [you’ll use] a lot of, you’ll end up using a lot of water. You’ll soak the item so that all of the staining is away. And that, in our submission, is consistent with that towel being used to wash away blood.
82The appellant argues that the trial judge erred by failing to provide a corrective instruction to the jury with regards to the Crown’s misstatement that the towel was wet and had Mr. Parsons’ DNA on it. The statement was misleading because the towel was not tested for DNA and it did not have blood on it (though there was blood near it). According to the appellant, it impacted his fair trial rights and to rectify this, the trial judge should have provided a curative instruction to the jury: R. v. Bolus, [2002] O.J. No. 386 (C.A.), at para. 2.
83In response, the Crown argues that Crown counsel at trial submitted that the wet towel had been used by the appellant to wipe away blood spatter on his jacket. Crown counsel did not, however, state that the towel had blood or DNA on it. The jury was aware that the deceased’s blood or DNA was not found on any of the items seized by police. They also were aware that the appellant had admitted to burning his clothes after police had spoken to Ms. Willard. The comment did not prejudice the appellant’s fair trial rights. However, if the trial judge did err in not addressing the issue, the curative proviso should be applied.
84In my view, there was no need for a corrective instruction by the trial judge. While the appellant is correct to suggest that the Crown’s statement regarding the red and white towel may have implied that blood or DNA was found on it, the Crown’s emphasis on the towel being “soaked” suggested that, even if it had blood or DNA on it at one point, the blood and DNA would have been washed away by the water. In effect, the Crown’s position was that the towel had no blood or DNA on it because it had been thoroughly washed. This, in my view, was not a misstatement of the evidence and no corrective instruction was required.
8) Did the trial judge err in failing to correct the accidental disclosure of bad character evidence?
85On or about June 8, 2013, a few days after Mr. Parsons was killed, the appellant and Ms. Willard were in Kirkland Lake, visiting a friend. After they missed their bus to return to Cobalt, they got into a heated argument. Ms. Willard testified that it was during this argument that the appellant confessed to her that he had killed Mr. Parsons.
86The appellant and Ms. Willard returned to Cobalt the next day. Shortly after returning, Ms. Willard was at a friend’s house with two other women, Chelsey Leonard and Shaylee Beaulieu. Ms. Willard had been texting the appellant, as they were in an argument. Ms. Willard and Ms. Leonard testified that during the evening, a man wearing a ski mask entered the apartment with a lighter and a container of oil, some of which he poured in the apartment and on Ms. Willard’s lap. He attempted to take Ms. Beaulieu’s cell phone, but did not succeed. Ms. Willard and Ms. Leonard testified that the appellant was the man in the ski mask. The man then left. The lighter was never lit.
87Prior to the trial, the Crown brought an application to introduce evidence of the incident as post-offence conduct. The Crown argued that the appellant’s threat to set fire to Ms. Willard showed the appellant’s consciousness of guilt because it demonstrated his concern that Ms. Willard might reveal his confession. It also provided an explanation as to why Ms. Willard did not come forward with the information about the alleged confession until March 2015.
88The trial judge denied the application, finding that the evidence was not probative. He also found that the evidence constituted bad character evidence and that, even if it was probative, its prejudicial effect would outweigh any probative value: R. v. Hayes, 2016 ONSC 5209.
89At trial, Detective Sergeant Carrie Morgan Bertoncello testified regarding her dealings with Ms. Willard. During her testimony, the following exchange occurred:
Q. And specifically do you have the dates of roughly when you were trying to get a hold of [Ms. Willard]?
A. Yeah, so the first time I was asked to speak to her was actually on the 5th of June, but I didn’t speak with her that day. The first time I did speak with her is the 11th of June, and I saw her actually just outside the courthouse.
Q. This courthouse here?
A. That’s right. She was on the street in Haileybury. She was sitting on a retaining wall with another female, and myself and another detective approached her and were – were trying to get her to come in and provide a statement, both in regards to the homicide as well as an – in regards to the investigation into the domestic situation that had happened between her and Matt Hayes.
Q. Okay, we can’t get into that.
A. Okay, sorry.
[Emphasis added.]
90The appellant argues that Detective Sergeant Bertoncello’s testimony regarding “the domestic situation that happened” between Ms. Willard and the appellant was in direct violation of the trial judge’s exclusionary ruling. Regardless of whether the evidence was tendered intentionally or accidentally, the fairness of the trial was impacted and a new trial should be ordered.
91The Crown argues that there was no error. Following the instruction by Crown counsel that “we can’t get into that”, there was no further testimony regarding the domestic situation. Counsel for Mr. Hayes did not seek a limiting instruction. The comment was ambiguous, innocuous and had little, if any prejudice to the accused.
92I agree with the submissions of the Crown. Although Detective Sergeant Bertoncello mistakenly mentioned the domestic situation between the appellant and Ms. Willard, there was no prejudice to the appellant due to Crown counsel’s immediate action to quell the line of testimony. The reference to a “domestic situation” was vague and would not have left the jury with any basis to engage in propensity reasoning. The absence of an objection or a request for a corrective instruction is also indicative of the absence of prejudice. There was no error.
9) Did the trial judge err in accidentally informing the jury that the appellant was in custody during the trial?
93At the end of proceedings on December 13, 2016, the trial judge accidentally mentioned to the jury that the appellant was in custody:
Long day. Thanks very much for your efforts today. I’ve discussed it with counsel, and in light of the fact that Mr. Hayes is being kept in North Bay and brought every day here, I thought we should convene tomorrow at nine-thirty. And so that’s what I’m going to order. You know you’re going to the hotel tonight and that you’ll be brought there and back, and you’ll begin your deliberations again tomorrow at nine-thirty. Mr. Hayes will be here, as will counsel and I. Okay? I bid you goodnight, ladies and gentlemen. Thank you very much. [Emphasis added.]
94The next morning, in response to defence counsel’s concerns that the remark could result in prejudice against the appellant, the trial judge provided a limiting instruction to the jury:
I also wanted to mention one thing that I spoke of last night. Last night I, as we wrapped up, I said that Mr. Hayes is being kept in North Bay. And counsel, I think quite rightly, pointed out to me afterward that that would convey something to you that you might not be aware of, and that is that Mr. Hayes is in custody. That fact might be obvious to many of you given that there are police officers sitting on either side of him and that there were police officers who moved up and back with him as he gave his evidence.
It’s important, though, for you to understand that you should take nothing from that. It’s very common that someone charged with murder would be kept in custody pending the result of the trial. A person can be kept in custody for a lot of reasons, including simply the seriousness of the offence. And so, please, I ask you to take nothing from that, it’s irrelevant to your considerations. Okay?
95The appellant argues that the trial judge undermined trial fairness when he mentioned to the jury that the appellant was being kept in North Bay during their deliberations. By stating that the appellant was in custody, the trial judge caused prejudice to the appellant. He failed to adequately address the error. The presumption of innocence was not protected.
96The Crown argues in response that any prejudice arising from the jury’s knowledge of the appellant being in custody was addressed by the instruction given to the jury before it resumed deliberating. Counsel for the appellant was satisfied by the instruction and did not bring an application for a mistrial.
97Again, I agree with the Crown’s response. Once the issue was raised with the trial judge by defence counsel, the trial judge immediately responded with a corrective instruction to the jury.
98The trial judge correctly noted that he mistakenly commented to the jury that the appellant was in custody. He then gave a corrective instruction which had been approved by defence counsel. Defence counsel made no further submissions. In all the circumstances, it would have been clear to the jury that they could not consider the fact that the appellant was in custody during their deliberations. In addition, throughout the charge, the jury was instructed that the appellant was presumed innocent and that the burden of proving his guilt rested on the Crown. There was no error.
V. DISPOSITION
99In all the circumstances, I would dismiss the appeal.
Released: “K.F.” May 4, 2020
“M. Tulloch J.A.”
“I agree. K. Feldman J.A.”
“I agree. M. Jamal J.A.”
Footnote:
1The appellant also brought another application, during trial, to adduce evidence with respect to Chantal Bujold. This application was allowed. It is, however, not directly relevant to the issues on appeal: R. v. Hayes, 2016 ONSC 7607.
