R. v. Beak, 2025 ONCA 506

Court of Appeal for Ontario

Date: 2025-07-14
Docket: C70275 & C70310
Coram: Huscroft, Copeland and Monahan JJ.A.

Parties

Docket: C70275
Between:
His Majesty the King (Respondent)
and
David Beak (Appellant)

Docket: C70310
And Between:
His Majesty the King (Respondent)
and
Yostin Murillo (Appellant)

Counsel:
Stephen Whitzman and Iris Liu, for the appellant David Beak
Nathan Gorham and Breana Vandebeek, for the appellant Yostin Murillo
Jamie Klukach and Nicole Rivers, for the respondent

Heard: 2025-06-18

On appeal from the convictions entered by Justice Ian A. MacDonnell of the Superior Court of Justice, sitting with a jury, on August 21, 2021.

Monahan J.A.:

OVERVIEW

1On May 26, 2018, between 12:10 and 1:45 a.m., 41-year-old Rhoderie Estrada was bludgeoned to death in her bedroom at the home where she lived with her husband and their three daughters. In addition to being badly mutilated, she had been sexually assaulted.

2The appellants were charged with first degree murder and sexual assault. The Crown’s theory was that, after breaking into Ms. Estrada’s home, the appellants had murdered her while confining her both physically and psychologically, and sexually assaulting her. Therefore, in addition to being guilty of sexual assault, the appellants were also guilty of first degree murder, pursuant to s. 231(5) of the Criminal Code, RSC 1985, c C-46.

3Both appellants testified at trial. Mr. Murillo admitted that he unlawfully caused Ms. Estrada’s death by striking her with a crowbar and was therefore guilty of manslaughter but maintained that he did not intend to kill her. Mr. Beak admitted to having broken into Ms. Estrada’s home with Mr. Murillo but denied any involvement in her killing. He also claimed that he was not guilty of sexual assault since, although he admitted to having sexually violated Ms. Estrada’s body, by the time he did so she was already dead.

4It is evident that the jury accepted the Crown version of these events and rejected that of the appellants, as it found both appellants guilty of sexual assault and first degree murder.¹

5The appellants advance five distinct grounds of appeal.

6Mr. Beak argues that the trial judge erred in two respects: (i) by insufficiently instructing the jury on the causation requirement for constructive first degree murder under s. 231(5); and (ii) by erroneously instructing the jury with respect to evidence of his post-offence conduct.

7Mr. Murillo alleges the following three errors on the part of the trial judge: (i) by failing to rule, in advance of Mr. Murillo presenting his case, on whether Mr. Beak would be permitted to adduce evidence from two jailhouse informants; (ii) by failing to cure the prejudice caused by an erroneous comment in the Crown’s closing address about Mr. Murillo’s pants; and (iii) by insufficiently instructing the jury on forcible confinement and sexual assault as routes to constructive first degree murder under s. 231(5).

8As I explain below, the trial judge made none of these alleged errors. His instructions on the essential elements of first degree murder under s. 231(5) were accurate and complete, including the fact that each appellant had to have actively participated in killing Ms. Estrada in order to be found guilty of first degree murder, and the circumstances in which forcible confinement and/or sexual assault could lead to a finding of constructive first degree murder. The trial judge also correctly instructed the jury on the manner in which they should approach the evidence of Mr. Beak’s post-offence conduct; remedied any unfairness arising from the Crown’s erroneous comment about Mr. Murillo’s pants by issuing a corrective instruction; and appropriately exercised his discretion with respect to the process to be followed before deciding to admit the evidence of the two jailhouse informants.

9Accordingly, I would dismiss both appeals.

THE TRIAL

(1) The appellants’ theory of the case

10The appellants were tried together over a period of six weeks in June to August 2021. Their accounts of the events that occurred over the evening of May 25 and early morning of May 26, 2018 were broadly similar and aligned with each other.

11Both appellants testified that they were together for several hours in the late evening of May 25, 2018, consuming drugs and alcohol. Before entering Ms. Estrada’s home, they broke into a number of residences, including a garage where Mr. Murillo acquired a crowbar. Mr. Murillo then broke into Ms. Estrada’s house through a basement window and acquired a prybar before going upstairs and opening a side door through which Mr. Beak entered.

12The appellants went upstairs where they saw Ms. Estrada’s three daughters sleeping in their bedrooms. They then came upon Ms. Estrada, who was alone in the master bedroom. Both appellants claimed that Mr. Murillo alone killed Ms. Estrada by bludgeoning her multiple times in the face with one of the metal bars they recently found. Mr. Beak said he stood in the master bedroom doorway at some point and witnessed the bludgeoning but was not involved in the killing.

13Mr. Murillo then left the master bedroom while Mr. Beak remained. Mr. Beak covered the bedroom window with a blanket and admitted to sexually violating Ms. Estrada’s body but claimed this happened only after she was already dead.

14After the appellants left the house Mr. Murillo went back inside to retrieve a prybar which he had left behind but was unable to locate it. The appellants then went to a nearby coffee shop to drink and go through the items stolen from the house.

15In essence, the appellants’ position was that what occurred that evening was not a joint effort. Mr. Murillo was intent on breaking into homes and garages to steal property, while Mr. Beak was just tagging along. Mr. Murillo alone killed Ms. Estrada and, while Mr. Beak did sexually touch Ms. Estrada, he did so only after Mr. Murillo had already killed her and had left Mr. Beak alone in the master bedroom.

(2) Other Evidence

16In addition to the appellants’ testimony, the jury heard evidence from a number of Crown witnesses, including: Ms. Estrada’s husband, who discovered her body when he returned home from work at approximately 2:00 a.m. on May 26, 2018; paramedics who responded to the husband’s 911 call; medical examiners who conducted a post-mortem examination of Ms. Estrada; and police officers who investigated the crime and later arrested and charged the appellants.

17This evidence, none of which was contested, included the following:

• Ms. Estrada’s body was found on the bed in the master bedroom. The room was in disarray, with clothes and other items strewn around the foot of the bed. There was a significant amount of blood on the pillow and bed, and additional bloodstains on surrounding walls and furniture;
• Ms. Estrada was wearing a T-shirt, her arms and lower legs exposed but her torso covered in a blanket. She was described as “unrecognizable” as there was “so much trauma”. There were both blunt force injuries and a penetrating injury to the left side of her head with exposed brain matter;
• a metal prybar was found at the foot of the bed. There was blood on the prybar with female DNA consistent with that of Ms. Estrada. The remaining DNA components were from two other individuals but were not suitable for comparison;
• a second metal bar was discovered inside a sewer grate in front of Ms. Estrada’s home. No blood was detected on the second metal bar, although there was evidence indicating that when an item is placed in liquid it can cause material to be removed, lessening the chances of finding blood;
• Ms. Estrada’s cause of death was massive and multiple traumas to the head;
• Ms. Estrada had suffered a minimum of eight blows to the head. The injuries suggested the use of an elongated heavy object, which would include a metal bar such as the prybar found at the foot of Ms. Estrada’s bed, or the second metal bar found inside the sewer grate in front of Ms. Estrada’s home, or both;
• Ms. Estrada suffered possible defensive injuries to her right hand; and
• the medical examiner’s opinion was that Ms. Estrada’s death would not have been immediate and each of the blows occurred while she still had a heartbeat.

(3) Crown’s theory of the case

18The Crown’s position was that the appellants’ account of what happened was false and that both of them had bludgeoned Ms. Estrada while they were jointly confining her in her bedroom and sexually assaulting her. The Crown therefore argued that the appellants were guilty of first degree murder pursuant to ss. 231(5)(b) and/or (e), either because they both caused her death while committing a sexual assault, contrary to s. 271, and/or while they were forcibly confining her, contrary to s. 279.

GROUNDS OF APPEAL

19As noted above, the appellants raise five grounds of appeal, two by Mr. Beak and three by Mr. Murillo.

20Mr. Beak raises the following two grounds:

(i) the trial judge failed to adequately instruct the jury on the “substantial cause” requirement for first degree murder under s. 231(5); and
(ii) the trial judge’s instructions on post-offence conduct were erroneous and that such evidence was prejudicial.

21Mr. Murillo argues that the trial judge erred in the following three respects:

(iii) near the end of the Crown’s case, counsel for Mr. Murillo learned that Mr. Beak was considering adducing evidence of statements made by Mr. Murillo to two jailhouse informants. He sought a ruling in advance of presenting his own case as to whether Mr. Beak would be permitted to adduce this evidence. The trial judge declined to do so until such time as it was clear whether Mr. Beak intended to rely on the evidence. Mr. Murillo argues the trial judge’s failure to make a ruling in advance was prejudicial in that it forced him to testify;

(iv) in the course of the Crown’s closing submission, counsel made an erroneous comment about Mr. Murillo’s pants. The trial judge refused Mr. Murillo’s request to reopen his case and instead provided a corrective instruction to the jury. Mr. Murillo argues that this corrective instruction was insufficient and resulted in an unfair trial; and

(v) the trial judge erroneously instructed the jury on forcible confinement and sexual assault as routes to constructive first degree murder under s. 231(5).

22After the appellants’ oral submissions, we only called on the Crown to address Mr. Beak’s argument on the trial judge’s instructions on constructive murder, and Mr. Murillo’s argument dealing with the evidence of the jailhouse informants. I will nevertheless deal with all five grounds of appeal.

ANALYSIS

(1) The trial judge’s instructions on constructive first degree murder were accurate and complete

(a) Principles governing appellate review of jury instructions

23Appellate courts apply a “functional approach” when reviewing jury instructions for legal error. Pursuant to this functional approach, an accused is entitled to a jury that is properly, not perfectly, instructed.

24The charge must be read as a whole and in the context of the trial, which includes the live issues, the positions of the parties, counsel’s closings, pre-charge conferences and any objections raised or not raised by trial counsel. The overriding question is whether the instructions properly equipped the jury in the circumstances of the trial to decide the case according to the law and evidence: R. v. Abdullahi, 2023 SCC 19, paras. 4, 34-37, 57; R. v. Goforth, 2022 SCC 25, paras. 20-22.

25The failure to say all that could be said does not constitute an error of law if the instructions sufficiently equipped the jury with what they had to consider. The fact that something may not have been said does not amount to misdirection unless that which was unsaid makes wrong something that was said, or where what was left unsaid was essential to an accurate instruction on the subject: R. v. Wood, 2022 ONCA 87, paras. 131-32.

(b) The trial judge did not err in instructing the jury on the “substantial cause” requirement for the offence of constructive first degree murder

26An accused can be convicted of constructive first degree murder only if they “participated in the murder of the victim in such a way that the accused was a substantial cause of the victim’s death”: R. v. Parris, 2013 ONCA 515, para. 44.

27Mr. Beak argues that the trial judge’s instructions on this “substantial cause” requirement were confusing, circular, and inadequate. The trial judge used the terms “substantial cause” and “active participation” interchangeably but defined neither. Mr. Beak also argues that the trial judge failed to give examples of actions that would constitute “active participation” or “substantial cause”, even though in one of their questions the jury had asked for examples. This manner of proceeding, he claims, confused the jury, as is reflected in the fact that they raised several questions on this aspect of the charge during their deliberations.

28I see no merit to this ground of appeal. The trial judge’s instructions on the “substantial cause” requirement were clear, consistent, and legally correct.

29Early in his charge, the trial judge told the jury that a murder that would otherwise be second degree murder will be first degree murder if the Crown proves, among other things, that the accused was an active participant in the killing. He explained the “active participation” requirement as follows:

The requirement of active participation means that the Crown must prove that the participation of the defendant was a substantial cause of the death of the victim. It would not be enough that a defendant played some minor role. Obviously, by bludgeoning Ms. Estrada, Mr. Murillo actively participated in the killing. If both defendants bludgeoned her, then both actively participated. As you are aware, whether Mr. Beak bludgeoned her, and whether he actively participated in her killing if he did not bludgeon her, are issues that you will be called upon to decide.

30Later, near the end of the charge, the trial judge reiterated that a person can be convicted of first degree murder pursuant to s. 231(5) only if their conduct was a “substantial cause of the victim’s death.” He explained that this requires that the defendant “actively participated in the death”. He then gave examples of conduct that would fall short of this requirement:

It is not enough that the defendant was there when the victim was killed. Nor is it enough that the defendant played some minor role in the events surrounding the death. The mere fact that a defendant may have been a party to a murder, as an aider or an abettor, or pursuant to the common unlawful purpose doctrine,² is not by itself sufficient to establish that he did something that was a substantial cause of the death. Indeed, in this case, if you find that Mr. Beak committed murder but that the basis for that finding is the common unlawful purpose doctrine rather than participation, the requirement of active participation cannot be satisfied.

31The trial judge then provided guidance to the jury on conduct that would amount to active participation in the death of Ms. Estrada. He made the obvious point that whoever struck the blows to Ms. Estrada’s head had actively participated in her death. While it was admitted that Mr. Murillo had bludgeoned Ms. Estrada, and therefore had actively participated in her death, it was in dispute whether Mr. Beak had also done so. This gave rise to the following issues that the jury needed to grapple with in relation to whether Mr. Beak had actively participated in Ms. Estrada’s death:

I have already reviewed at length the evidence that bears upon the question of Mr. Beak’s participation. It is for you to say whether you are satisfied beyond a reasonable doubt that he also beat Ms. Estrada with one of the two bars that Mr. Murillo said he brought into Ms. Estrada’s bedroom that morning. If you are not satisfied beyond a reasonable doubt that Mr. Beak actually inflicted any of the blows to Ms. Estrada’s head and face, you must consider whether he nonetheless actively participated in the killing by doing something else that played a substantial role in the killing.

32There is nothing erroneous or confusing in these instructions. The jury would have understood that in order to find Mr. Beak guilty of first degree murder, they had to be satisfied beyond a reasonable doubt either that Mr. Beak had actually inflicted blows to Ms. Estrada’s head or did something else that played a substantial role in her killing. The trial judge was not required to specify what that “something else” might entail. The instructions clearly conveyed to the jury that Mr. Beak could only be convicted of first degree murder if he took an active role in killing Ms. Estrada.

33I note that this court has consistently approved jury instructions which have equated “substantial cause” of death with “active participation” in the murder: see Parris, at para. 48 (stating that the substantial cause requirement in s. 231(5)(e) requires the Crown to prove “that the accused played a very active role – usually a physical role – in the killing”); R. v. MacDonald, 2008 ONCA 778, paras. 17-18 (agreeing that the phrase “active participant in the killing” is equivalent to doing “something that is an essential and integral part of the killing”); R. v. Bailey, 2022 ONCA 502, paras. 52-53 (stating that doing something that was an “essential, substantial, and integral part of the killing” means that the accused “actively participated in the killing”); and R. v. I.M., 2023 ONCA 378, para. 35 (stating that the “central question” on the substantial cause requirement was “did the appellant actively participate in the killing”).

34Mr. Beak’s claim that the jury questions on the “substantial cause” requirement reflected confusion on their part is speculative. In fact, the trial judge described the jury questions as “insightful” and “thoughtful”. He also declined to offer examples of conduct amounting to “active participation” beyond that set out in the main body of his charge for fear that any such examples may not fit the facts of the case and might well skew the jury’s analysis. The trial judge was in the best position to make that discretionary decision, and there is no basis to interfere with it.

35Finally, I observe that experienced trial counsel raised no objection or concern in relation to the trial judge’s instructions on the “substantial cause” requirement, nor with trial judge’s answers to the jury questions.

36Accordingly, I would dismiss this ground of appeal.

(c) The trial judge’s instructions on forcible confinement and sexual assault as routes to constructive first degree murder were free of error

37Mr. Murillo argues that the trial judge’s instructions on forcible confinement and sexual assault as routes to constructive first degree murder were flawed.

38Mr. Murillo argues, first, that there was no air of reality to the allegation that he had unlawfully confined Ms. Estrada and, thus, this path to liability for first degree murder should not have been left to the jury. He further argues that the trial judge’s instruction on sexual assault was confusing and might have left the jury with the impression that they had to believe all aspects of his testimony in order to acquit him of the charge of sexual assault (and thereby foreclosing this pathway to a finding of first degree murder on his part.)

39I consider each of these objections in turn.

(i) Forcible confinement as a possible route to constructive first degree murder was properly left with the jury

40Throughout his charge, the trial judge emphasized that neither appellant could be convicted of first degree murder unless they were also guilty of either unlawfully confining or sexually assaulting Ms. Estrada (an “underlying offence”), and, further, that they had killed her while committing the Underlying Offence. The trial judge also explained to the jury the essential elements of each Underlying Offence, and identified the evidence that they should consider in determining whether the Crown had established beyond a reasonable doubt that one or both of the appellants had committed one of these Underlying Offences. No objection was taken by Mr. Murillo’s trial counsel to any of these aspects of the jury charge.

41Mr. Murillo nevertheless argues on appeal that there was no basis upon which he could have been found to have unlawfully confined Ms. Estrada. He relies on his evidence that he began bludgeoning Ms. Estrada almost immediately upon hearing her wake up. He claimed that he did not threaten her, demand anything from her, or intend to confine her. When he approached her lying on the bed once she woke up, his only purpose was to strike her with the crowbar.

42On the other hand, there was ample evidence that contradicted his account. Ms. Estrada was described as a “neat freak”, and yet the room was in disarray with clothing strewn over the floor with the presence of his footprint underneath. There was also evidence of defensive injuries on Ms. Estrada’s hand. This evidence suggested that there had been a struggle between Ms. Estrada and the appellants before she was killed, which arguably supported the Crown’s theory that when the appellants came upon Ms. Estrada in the master bedroom, their original common intention (i.e., to commit a robbery) shifted to sexual assault. When Ms. Estrada resisted, the appellants coercively restrained and sexually assaulted her, while also beating her to death with metal bars. The trial judge properly instructed the jury that it was for them to decide whether the acts causing death were distinct from the acts constituting a confinement. As the trial judge pointed out in his reasons for sentence, it is evident that the jury accepted the Crown’s theory as to how Ms. Estrada was killed, since it found both appellants guilty of sexual assault as well as first degree murder.

43The trial judge also explained to the jury the Crown’s alternative argument, which was that even if they accepted Mr. Murillo’s account of the bludgeoning, they could still find that he unlawfully confined Ms. Estrada in the few seconds between the time she woke up and when he became striking her with a metal bar. On this theory, Mr. Murillo would have been guilty of unlawful confinement and first degree murder, but not sexual assault. But because the jury found Mr. Murillo guilty of sexual assault as well as first degree murder, they evidently rejected Mr. Murillo’s account of the bludgeoning.

44In short, there was ample evidence upon which the jury could have found that Mr. Murillo unlawfully confined Ms. Estrada before killing her, and the trial judge did not err in leaving forcible confinement as a possible route to conviction on the first degree murder charge.

(ii) The trial judge did not err in his instructions on sexual assault as a possible route to constructive first degree murder

45Mr. Murillo argues that the trial judge’s instructions on sexual assault could have left the jury with the impression that they could only acquit him on this count if they believed his evidence. This argument is based on a single sentence towards the end of the trial judge’s charge, in which he states the following:

If you believe Mr. Murillo’s evidence that there was no plan to sexually assault anyone inside [the house], that he was there to steal and for no other reason, that apart from the bludgeoning he never touched Ms. Estrada, that Mr. Beak was never in the master bedroom with him at any point, that he fled from the house immediately after he realized what he had done, and that no sexual contact with Ms. Estrada had occurred before he fled, then Mr. Murillo did not commit a sexual assault and was not a party to any sexual assault committed by Mr. Beak.

46There is no merit to this argument. Immediately following this impugned sentence, the trial judge stated that even if they did not believe Mr. Murillo’s evidence, they could not convict him of sexual assault unless the Crown had proven the elements of the offence beyond a reasonable doubt:

But even if you do not believe him in that respect, if his testimony leaves you with a reasonable doubt with respect to whether he was a party to the sexual contact that occurred, you cannot find that he committed a sexual assault. And even if his testimony does not leave you with a reasonable doubt in that regard, the burden would remain on the Crown to prove beyond a reasonable doubt that Mr. Murillo committed a sexual assault.

47In short, when the charge is read as a whole and in context, the trial judge did not instruct the jury that they could only acquit Mr. Murillo if they accepted his evidence. I am fortified in this conclusion by the fact that defence counsel took no objection to the trial judge’s instructions on sexual assault as a possible route to convict Mr. Murillo of first degree murder.

48I would therefore dismiss this ground of appeal.

(2) The trial judge did not err in admitting evidence of Mr. Beak’s post-offence conduct, and correctly instructed the jury on the manner in which they should consider this evidence

49Mr. Beak argues that evidence of his post-offence conduct had little or no probative value on the issue of whether he had participated in the killing of Ms. Estrada. As such, Mr. Beak argues that the trial judge ought to have excluded the evidence or at least cautioned the jury that the evidence could not be used as proof of his culpability for murder.

50The trial judge advised the jury that they might wish to consider Mr. Beak’s conduct after the killing of Ms. Estrada as relevant to the question of whether he had participated in the killing or aided Mr. Murillo in doing so. The conduct identified by the trial judge was as follows:

(i) after the bludgeoning, Mr. Murillo fled from the house but Mr. Beak remained behind;
(ii) Mr. Beak took no steps to obtain assistance for Ms. Estrada;
(iii) Mr. Beak not only remained in the room, but also took time to put a blanket over the window and then attempted to have sexual intercourse with Ms. Estrada’s body;
(iv) after they left the house, Mr. Beak waited while Mr. Murillo went back into the house to search for a prybar that had been left behind; and
(v) when Mr. Murillo came back out of the house, the two proceeded side-by-side at a normal walking phase and ended up behind a nearby coffee shop where they continued to drink together as they went through the stolen property.

51The trial judge told the jury that if they found that Mr. Beak did any of these things, they must then decide whether this conduct is consistent with that of someone who was surprised by the brutal beating that Ms. Estrada had suffered or, rather, whether it was consistent with that of someone who was not shocked or appalled by what had happened. If the jury drew the inference that Mr. Beak was not surprised or shocked or appalled, “his lack of surprise may assist you with respect to whether he had participated in the beating of Ms. Estrada… and… whether he knew that Mr. Murillo intended to commit murder, and whether he meant to help or encourage him to commit murder.”

52At the same time, the trial judge advised the jury to be cautious in relying on Mr. Beak’s after-the-fact conduct, since it had only an indirect bearing on whether he had participated in the murder. The trial judge noted that “what Mr. Beak did after the murder may be susceptible to faulty inferences”. He further instructed the jury to consider alternative explanations for Mr. Beak’s conduct and pointed out that Mr. Beak had explained his conduct on the basis that he was so intoxicated that he was “not in his right mind”. The jury could use Mr. Beak’s after-the-fact conduct as a circumstance supporting the inference of a lack of surprise at what happened to Ms. Estrada only if, having considered the evidence as a whole, they rejected any other explanation for it.

53There is no error in these instructions.

54Dealing first with the admissibility of the evidence, the bulk of the post-offence conduct identified above arose on Mr. Beak’s own testimony. Aside from the surveillance footage depicting Mr. Beak and Mr. Murillo together after Ms. Estrada’s death (the admissibility of which counsel for Mr. Beak conceded), the remaining post-offence conduct arose on Mr. Beak’s own evidence. As such, there is no doubt that it was admissible.

55As for the probative value of the evidence, post-offence conduct is not subject to blanket rules. It is circumstantial evidence whose probative value depends on the nature of the evidence, the issues at trial and the positions of the parties: R. v. Angelis, 2013 ONCA 70, para. 55.

56As discussed, a central issue in relation to Mr. Beak’s culpability was whether he had participated or assisted in the bludgeoning of Ms. Estrada. The Crown’s argument was that the post-offence conduct was probative on this live issue, particularly his failure to offer assistance to Ms. Estrada, his remaining in the room even after Mr. Murillo had left, followed by his sexually assaulting the dead or dying victim. This behaviour was said to be more consistent than not with his having participated in the bludgeoning or, at a minimum, with his having aided or abetted Mr. Murillo knowing that Mr. Murillo intended to kill her.

57The trial judge agreed that the issue of Mr. Beak’s apparent lack of surprise was a matter that could be considered by the jury, relying on a decision of this court holding that evidence of an accused’s lack of surprise following a murder may be probative of that accused’s involvement in the murder: R. v. McLellan, 2018 ONCA 510, paras. 41-43. See also R. v. White, 2011 SCC 13, paras. 67, 70, 74, 77, 79.

58Mr. Beak argues that the trial judge erred by failing to instruct the jury that his post-offence conduct had “no probative value”, relying on cases that have required such a limiting instruction: see e.g., R. v. McIntyre, 2012 ONCA 356, paras. 40-44. But the cases in which such an instruction has been found to be necessary were ones in which the live issue was the accused’s level or degree of culpability, as opposed to whether the accused had any involvement in the commission of the offence. Thus, in McIntyre, the fact that the accused had assisted in disposing of a knife did no more than point to her involvement in the deceased’s death but was not probative on the live issue of whether she could be found guilty of first degree murder as opposed to second degree murder or manslaughter.

59That is not this case. Mr. Beak maintained he took no part in the killing of Ms. Estrada. The trial judge did not err in instructing the jury that they could consider Mr. Beak’s post-offence conduct as probative on that issue, provided that they were satisfied there was no other non-culpable explanation for it.

60I would therefore dismiss this ground of appeal.

(3) The trial judge did not err in declining to rule on whether Mr. Beak could adduce evidence from two jailhouse informants until such time as it was clear whether Mr. Beak intended to rely on the evidence

61Near the end of the Crown’s case, counsel for Mr. Murillo learned that Mr. Beak was considering calling evidence from two jailhouse informants who alleged that Mr. Murillo had admitted to his involvement in the killing of Ms. Estrada. It was anticipated that the defendants would put forward antagonistic defences. Mr. Murillo therefore brought an application for an order excluding the evidence of the jailhouse informants. The trial judge found that although the evidence of the jailhouse informants was potentially admissible, it was premature to hold a voir dire on the issue until such time as Mr. Beak decided that he actually wished to call that evidence. The trial judge ruled that such voir dire was not going to occur prior to Mr. Murillo entering upon his defence.

62Mr. Murillo argues that this failure to rule on the matter infringed his right to full answer and defence since it forced him to commence his defence without knowing the case he would be required to meet.³ This, in turn, gave him no option other than to testify in order to provide an explanation for the anticipated inculpatory evidence of the jailhouse informants.

63The short answer to Mr. Murillo’s objection is that in a trial with multiple accused, one accused does not have a right to know the position of his co-accused in advance of putting on his own defence: R. v. Sandham, para. 25. Thus, while the ordering of the names on an indictment undoubtedly entails tactical advantages and disadvantages to each of the accused (including the order in which an accused will be called upon to put forth a defence), such tactical advantages and disadvantages are inherent in the adversarial process and do not render the trial unfair: R. v. Suzack, paras. 61-63.

64I would also observe that Mr. Murillo did not argue at the time that he needed to know whether the evidence of the jailhouse informants was admissible before deciding whether to testify. Moreover, Mr. Beak ultimately decided not to adduce evidence from the jailhouse informants and the matter was therefore never raised before the jury.

65I would therefore dismiss this ground of appeal.

(4) The trial judge’s corrective instruction remedied any unfairness arising from the Crown’s closing comments about Mr. Murillo’s pants

66Mr. Murillo testified that while in Ms. Estrada’s residence, he was carrying two metal bars, one zipped in the pocket of his sweatpants and the other in his hand when he went upstairs. In closing submissions, the Crown urged the jury to reject Mr. Murillo’s testimony that he carried one of the metal bars in his pocket, claiming that his sweatpants were unsecured by a drawstring or any other support and, had Mr. Murillo been carrying a metal bar in his pocket, the weight would have caused his pants to fall down. This was one of several arguments advanced in support of the Crown’s theory that both Mr. Murillo and Mr. Beak were carrying metal bars while in Ms. Estrada’s residence.

67Mr. Murillo’s counsel took issue with the Crown’s closing comments regarding the drawstring, arguing that there was no evidence as to whether Mr. Murillo’s sweatpants had a drawstring, and sought to reopen his defence.

68The trial judge agreed that there was no evidence as to whether Mr. Murillo’s sweatpants had a drawstring, but he declined to reopen the defence case since in his view he could remedy any unfairness resulting from the Crown’s erroneous statement through a clear corrective instruction. He dealt with the matter in his charge as follows:

In the close of her closing address, [the Crown] suggested that it defies logic that Mr. Murillo was carrying around a heavy bar in his pants pocket all this time. And she said specifically that his pants would have been at his ankles “with no belt, not even a drawstring”. Well with respect to the drawstring there is no evidence as to whether the pants had a drawstring at the time of the break-in. [Emphasis added.]

69After further commenting on the matter, the trial judge continued as follows:

Mr. Murillo was never asked anything about whether there was a drawstring. And accordingly, I am directing you that you must set aside the suggestion that his pants did not have a drawstring. There is simply no basis for you to make any decision on the assumption that the pants did not have a drawstring. You don’t have any evidence of that. [Emphasis added.]

70In the vast majority of cases, any unfairness arising from an improper Crown closing can be remedied through a timely and focused corrective instruction. The trial judge is best positioned to assess the impact and significance that an improper remark may have had on the jury. The trial judge’s decision on remedy is entitled to deference and appellate intervention is warranted only when there is a substantial wrong or a miscarriage of justice: R. v. McGregor, 2019 ONCA 307, paras. 182-84; R. v. Chacon-Perez, 2022 ONCA 3, paras. 111, 122-26, 129, 138-140.

71There was no unfairness in this case. The trial judge’s corrective instruction was specific, timely and unequivocal. It identified the improper suggestion made by the Crown, explained why it was improper, and told the jury in no uncertain terms to disregard it. Nothing more was required. In any event, the issue of whether Mr. Murillo was carrying one of the metal bars in his pocket was of marginal relevance to Mr. Murillo’s culpability since he admitted that he had struck the blows that killed Ms. Estrada with the metal bar he was carrying in his hand.

72I would therefore dismiss this ground of appeal.

DISPOSITION

73For these reasons, I would dismiss the appeals of Mr. Beak and Mr. Murillo.

Footnotes

1. 1The trial judge entered a stay on the convictions for sexual assault and imposed sentences only on the convictions for first degree murder because the rule against multiple convictions for a single criminal matter was engaged.
2. 2Earlier in the charge the trial judge had explained the meaning of party liability either as an aider or an abettor, or pursuant to the common unlawful purpose doctrine, and no objection has been taken to these aspects of this charge.
3. 3Mr. Murillo was listed first on the indictment and thus would be called upon to put on his defence in advance of Mr. Beak.