COURT OF APPEAL FOR ONTARIO
Rouleau, Huscroft and Trotter JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Iain Taylor
Appellant
James Lockyer and Jack Gemmell, for the appellant
Molly Flanagan and Maria Anghelidis, for the respondent
Heard: September 16, 2025
On appeal from the conviction entered by Justice Alexander Sosna of the Superior Court of Justice, sitting with a jury, on October 27, 2016.
A. Introduction
1The appellant appeals his conviction for the first degree murder of his wife, Wendy, whom he bludgeoned and stabbed to death.
2At the outset of the trial, the appellant entered a plea of guilty to manslaughter, a plea that was not accepted by the Crown. At trial, the Crown sought to prove that this was a planned and deliberate murder.
3The appellant relied on the defence of provocation. He wanted to start a new life with a woman he had recently met, Sonja Aldred. According to the appellant, on the night of the killing, he told Wendy about his infidelity. He wanted a divorce. She refused. Wendy threatened to ruin him financially and destroy his reputation at their church. The appellant flew into a rage and killed her.
4The jury evidently rejected this account and found the appellant guilty of first degree murder.
5There was a formidable body of evidence from which the jury could conclude that the appellant planned to kill Wendy. In the months before the killing, the appellant conducted various internet searches, including: “fast acting natural poisons”; “thallium poisoning”; “drugs that cause a heart attack”; “how to pull off the perfect murder”; and “the best way to kill your wife”. On the night in question, the appellant was working on a job a couple of hours from their home. He unexpectedly decided to come home. The appellant turned his phone off and did not bring it with him. He avoided toll roads on his way to and from the killing.
6This appeal turns largely on other evidence introduced by the Crown that the appellant contends was problematic. The police seized documents from the appellant’s two laptop computers. One document was entitled “Iain’s list of lies to Sonja” (“the List”) in which he itemized his deceptions to Ms. Aldred. The List included a graphic and vulgar description of the appellant’s sexual exploits (“Item 21”), along with a reflection on his church life (“Item 29”). The police also discovered an internet browser bookmark for an article entitled “Compulsive Liar Treatment”.
7No objection was made to the admission of these pieces of evidence before they were led. However, during the cross-examination of the appellant about the List, the trial judge, without prompting, expressed concern that Item 21 should not have been admitted. He prohibited the Crown from cross-examining the appellant on it. He also gave a cautionary instruction about Item 21 in his final instructions to the jury. Even so, an unredacted, poster-sized version of the List was made an exhibit and was in the jury room during deliberations.
8The appellant acknowledges that the defence of provocation advanced at trial was tenuous. He accepts that the evidence supporting a conviction for second degree murder was overwhelming, and that the evidence of planning and deliberation was strong. However, he submits that he had a realistic shot at being acquitted of first degree murder had it not been for Items 21, 29 and the bookmarked webpage. He says these erroneously admitted pieces of evidence unfairly tipped the scales in favour of a conviction for first degree murder and resulted in a miscarriage of justice.
9In support of this submission, the appellant advances a claim of ineffective assistance of counsel (IAC). He submits that trial counsel should have challenged the admissibility of these items of evidence, or, in the alternative, done more to ensure that the appellant was not prejudiced by their admission. The failure to do so fell below the standard of reasonable professional assistance in the circumstances.
10The appellant also argues that the trial judge’s instructions to the jury on the defence theory were deficient. He contends that the trial judge did not fairly outline the evidence relied upon by the appellant in defending his liability on first degree murder.
11The Crown submits that Item 29 and the bookmarked webpage were admissible. The Crown concedes that Item 21 should not have been admitted into evidence, but submits that the trial judge’s cautionary instruction was effective in minimizing the impact of this evidence.
12As for the IAC claim, the Crown submits that the decisions taken by trial counsel concerning the admissibility of the impugned evidence do not reflect poor professional judgment. And, even if trial counsel’s performance was deficient, the appellant has not established that this amounted to a miscarriage of justice.
13The Crown also submits that the trial judge’s instructions on first degree murder were adequate. The trial judge put the defence theory to the jury, both when addressing the provocation defence and when describing the evidence.
14Finally, the Crown relies on the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 on the basis that the evidence of first degree murder was overwhelming.
15The following reasons explain why I would dismiss the appeal. Although Item 21 and the bookmarked webpage should not have been admitted into evidence, the trial judge’s instructions to the jury were sufficient to prevent any prejudice. Item 29 was admissible. The ineffective assistance of counsel claim must also fail. Trial counsel’s approach to this evidence was reasonable and motivated partly by tactical considerations. Finally, the trial judge’s instructions on first degree murder were adequate. The appellant has failed to establish a miscarriage of justice. There is no need to consider the application of the curative proviso.
B. Factual Overview: The Evidence At Trial
(1) Background
16At the time of the murder, the appellant was 57 and Wendy was 59. They had been married for 13 years. The appellant worked as an electrician. Wendy worked at the OLG Slots at Kawartha Downs.
17In June of 2013, the appellant matched with Ms. Aldred on the eHarmony website. Upon chatting with her, the appellant lied to Ms. Aldred and told her that he was a widower and that his wife died in a car accident. As the relationship progressed, the appellant told Ms. Aldred many other lies about his day-to-day life in an effort to cover up his marriage.
18But, on August 12, 2013, these lies all came apart. The appellant mistakenly sent a text message to Ms. Aldred that was intended for Wendy. As a result of this errant message, Ms. Aldred discovered that the appellant was not a widow and in fact still lived with his wife. Ms. Aldred ended the romantic part of their relationship and encouraged the appellant to focus on his marriage.
19The same day that Ms. Aldred ended their romance, the appellant created the List. The appellant testified that it was a private record of his deceptions. He intended to disclose all of his lies to Ms. Aldred. He marked items on the list as “DONE” when he disclosed them.
(2) The Internet Searches
20The appellant repeatedly searched the internet about how to kill his wife.
21The appellant started his internet searches about poisons and other methods to kill his wife within days of meeting Ms. Aldred. His initial searches, from late June and early July of 2013, included “fast acting natural poisons”, “drugs that cause a heart attack” and “how to pull off the perfect murder”.
22After the text message fiasco, the intensity of the appellant’s internet searches increased. On August 16, 2013 – four days after the appellant accidentally sent the text to Ms. Aldred – the appellant searched “the best way to kill your wife”, “the best way to kill your spouse”, “untraceable poisons”, “Easy to Make Poisons”, and “the perfect murder”. The appellant also accessed webpages including “How to: Murder Your Wife on a Budget”, “KILLMYWIFE.COM” and “If You’re Going To Kill Your Spouse, You Probably Shouldn’t Google ‘How To Commit Murder’”.
23At trial, the appellant agreed that, when he conducted these searches, he intended to kill Wendy. However, he testified that he “more or less” gave up on the idea and conducted no further searches in the 40 days before the murder.
(3) The Day of the Murder
24The appellant killed Wendy on the evening of September 26, 2013.
25The appellant was not expected to be at home that night. Earlier in the day, he drove to perform an electrical job at a Scouts Canada facility in Acton, Ontario, a couple of hours away from his home. He was supposed to stay there overnight. However, he changed his mind and returned home that night.
26The appellant explained that, as he went to bed, he began to pray. He said that he “pray[ed] to God, ‘Give me the strength to do this’” – that is, according to him, to ask Wendy for a divorce. The appellant had spoken to Wendy about a divorce in the past, but she had refused. The appellant then had an “epiphany or revelation”. He remembered a time before he married Wendy when she told him: “If you ever step out…I will divorce you immediately.” “I mean it.” “Don’t forget, you’ve got a reputation for doing this.” Remembering this exchange with Wendy made him feel like he “actually won the lottery”. The appellant thought that, if he confronted Wendy about his relationship with Ms. Aldred, she would have to agree to a divorce. He explained: “[N]ow she couldn’t turn me down for a divorce. There’s absolutely no way. This was her golden rule. How can she turn me down? That’s why I drove home that night.”
27In cross-examination, the appellant acknowledged that he did not need Wendy’s permission to get divorced. However, he said he wanted it to be her idea. If he told Wendy that he had been unfaithful, the divorce would be on her.
28Armed with this plan, the appellant made his way back home. He left his watch and phone in Acton. Although the appellant took the 407 Express Toll Route to Acton earlier that day, he took a different route home that night; he drove on the 401, a toll-free highway. After killing Wendy, he again avoided the toll route and took the toll-free highway back to Acton. When he went back home the following day, he used the toll route.
29The appellant denied avoiding the toll route to conceal his movements that night. Had he taken the toll route back and forth on the night of the murder, his transponder would have registered the trips. The appellant said he chose his routes based on the traffic. As he testified, “There’s no necessity of taking the 407. Why spend 23 dollars for nothing?”
30As mentioned above, the appellant turned off his cell phone and did not bring it with him to the house. He testified that he turned off his cellphone to save battery life and then forgot it in his rush to get home. According to him, “I never go anywhere without my phone, so that just goes to show you how excited I was, how fast I wanted to get the hell out of there and get home so I could meet Wendy and have this conversation.” Of course, had he brought his phone, it could have generated evidence that he was present at the scene of the killing.
31The appellant arrived at the house before Wendy returned from work. He parked in his usual spot and waited for Wendy to arrive. He went into the garage and attended to the family dog. Then Wendy came home. The Crown argued that the appellant immediately attacked Wendy from behind. However, the appellant denied this. Instead, he said that they spoke. He told Wendy about his infidelity. That is when she threatened to ruin him. According to the appellant, she told him: “I already told you, Iain. We’re not getting divorced. We are not getting divorced. And you can tell your fuckin’ little tootsie roll she can’t have you.” Wendy’s words caused the appellant to go into a “wild rage”, a “blind rage”, or an “angry fit.” He bludgeoned her with a small sledgehammer, delivering many blows to her head, some of them penetrating her skull.
32Wendy also suffered at least 15 stab wounds close to her heart. The appellant denied equipping himself with the knives before Wendy returned home. According to the appellant, after he bludgeoned Wendy, he went into the house to clean up. While in the house, he retrieved two knives, returned to the garage and stabbed her.
33Before returning to Acton, he left a playing card – the queen of spades – on Wendy’s neck. He retrieved it from a deck of cards inside the house. He said it was a “calling card”, left to suggest that a jilted lover killed Wendy. He considered the queen of spades to be the “black bitch” card. In one of the items on the List, the appellant referred to Wendy as “one of the most miserable bitches in the world.” At trial, he ultimately acknowledged that leaving the card was a “stupid idea”.
34After killing Wendy, the appellant placed the two knives, along with a sheath, the sledgehammer, the rest of the deck of playing cards, his clothing, Wendy’s purse, and her cellphone, in garbage bags. He drove back to Acton, via the toll-free highway, where he hid or discarded these items.
(4) The Aftermath
35The next day, the appellant left three voice messages on Wendy’s phone asking where she was. He ended each message with “love you”.
36When Wendy did not show up for work that day, the appellant’s daughter from a previous marriage, Jennifer, was concerned and contacted the appellant. The appellant encouraged Jennifer to go to the house to check on her. The appellant also texted and called Ms. Aldred that day and told her that he could not get in contact with Wendy and that her work colleagues were unable to reach her.
37Jennifer went to the house with one of Wendy’s work colleagues. They found Wendy dead and called 911.
38The appellant arrived home about 90 minutes after the 911 call. The police and other emergency services were there. The appellant pretended to be shocked.
39The appellant gave two video-recorded statements to the police, one on September 28 and the other on September 29. He denied having anything to do with Wendy’s death. He also lied about his relationship with Ms. Aldred. After his second interview with the police, the appellant spoke to Ms. Aldred and asked her to lie to the police about their relationship. The next day, Ms. Aldred told the police about this conversation and her relationship with the appellant.
40On Monday, September 30, the appellant spoke to the police again. He went to the station and handed an officer clothing that he said he had been wearing on the day of the murder. The police told him that this clothing did not match the clothing he was seen wearing in a video from a Tim Horton’s he visited that day. The appellant said he had nothing further to say and left.
41Jennifer picked the appellant up from the police station at 11:30 p.m. and dropped him off at a friend’s house. When the appellant discovered that the friend’s house was locked, he walked for 20 kilometers through the night to Ms. Aldred’s nail salon. Ms. Aldred arrived at work the next morning and discovered the appellant hiding in nearby bushes. She let him rest at the salon. The police eventually arrived and found the appellant hiding in a closet.
42Ms. Aldred testified that, before he left, the appellant told her: “Sonja, she wouldn’t give me a divorce. I had to kill her.” The appellant testified differently, saying that he told Ms. Aldred “I never, ever wanted this to happen” and “I think I did this”. It was only later, when he was in jail, that the appellant told Ms. Aldred that Wendy would not give him a divorce.
C. Factual Overview: The Impugned Evidence
43The appellant challenges the admission of three pieces of evidence on appeal: Items 21 and 29 from his List of Lies and a bookmarked webpage.
(1) The List
44It is necessary to provide more detail about the List.
45The List is a four-page, single-spaced, typed document. It contains 31 items. The appellant testified that it was meant for only his eyes to see, although a number of sentences purport to speak to Ms. Aldred in the second person. Typed at the end of 13 of the 31 items is “DONE”. The appellant testified he would insert this word after he had disclosed the lie in question to Ms. Aldred.
46A number of the items on the List relate to the appellant’s attempts to hide his marital status and living arrangements from Ms. Aldred. Some items are about the false excuses he gave to Ms. Aldred for not being available to see her from time to time. There are also lies that relate to the appellant’s misrepresentation about his financial situation in terms of mortgage debt and a car loan. Some of the items contain multiple lies.
47Several of the remaining items are not lies at all. A recurrent theme in these items is the appellant’s unhappiness in being in a loveless marriage that he wanted to end. Item 24 ends with “TIME TO END THIS MARRIAGE.” Item 28 ends, “So much for the marriage partnership eh ? I’m tired of being on the losing end. With you I’m a winner.”
48In Item 30, the appellant laments his financial situation with Wendy, how she spends too much money on “shit that isn’t really necessary”. At the end, he writes: “So what the fuck do you want. ? Your life is a meager existence and you’re pulling me down with it ! ! ! I can’t let that happen any more.”
49In Item 31, the appellant writes: “I can’t take this shit any more…I know it’s not really fair my dearest lady Sonja, but I need you to wait for me until I get all my ducks in a row. Then we can be together forever, the way it was meant to be…So to hell with Wendy, long live Iain Taylor !!!!! And here’s to being happy for the rest of my life.”
(a) Item 21
50Similar to some of the items identified above, Item 21 does not document a specific lie to Ms. Aldred, although the appellant does reveal dishonesty in how he cheated on his first wife with Wendy, and then cheated on Wendy with another woman, and again with Ms. Aldred. He goes on to describe his sexual frustrations with his first wife, his sexual conquests, and his sexual preferences, all expressed in the most disrespectful and vulgar terms. It is not necessary to reproduce these aspects of the appellant’s prose to make the point that Item 21 was evidence of bad character.
51At the end of the item, the appellant writes: “SEX was the main reason Wendy & I got married. That was obviously a huge mistake that will end up seriously costing me in the end. The cost will be immeasurable in terms of just money. This one’s really gonna hurt big time.”
(b) Item 29
52The other impugned item from the list is Item 29, which reads in its entirety as follows:
I am not the real mccoy at all. I am a self centred son of a bitch who really only wants to do what I want to do. I will do what others ask, but very reluctantly at times. I am a $20.00 christian. I put $20.00 bucks in the plate every week and sing at church when I feel like it, not always when asked. I am always polite to my fellow church members, but that is usually more out of respect for their age than anything else. Our church is nothing more than a social club. Not really a whole lot of Christian anything going on there. Funerals, the odd baptism, and easter and Christmas are about the only things worth attending. I used to every Sunday. Wendy put the kybosh on that, although she’ll say she never stopped me from going. Maybe not, but sure made me feel guilty about leaving her behind. My question was always – Why aren’t you coming too ? Her loss. Our loss.
(2) The Bookmarked Webpage
53In addition to the appellant’s “how to” and related internet searches, the Crown introduced evidence that the appellant accessed and bookmarked an article entitled “Compulsive Liar Treatment.” A screen shot of the article was included on a PowerPoint slide introduced through the evidence of the officer who examined the appellant’s computers. The PowerPoint presentation was made a numbered exhibit. The trial Crown referred to it in her closing address.
(3) The Presentation of the Evidence
54A number of items of evidence derived from the search of the appellant’s computers were introduced through the officer who performed the search – Det.-Sgt. James Falconer. He presented the evidence of the appellant’s online searches and the compulsive liar bookmark. He was also asked to read some items from the List.
55The Crown had Ms. Aldred read to the jury her extensive correspondence with the appellant, starting when they met on eHarmony. The Crown also asked Ms. Aldred to read from the List. In particular, she was made to read Item 21. Ms. Aldred had never seen this document before testifying. Before reading Item 21 aloud, Ms. Aldred said, “I don’t know that I can read this”. After reading a portion of the item, she asked the Crown if she really had to read it. The Crown told her that she did. Once she finished reading the item, Ms. Aldred said, “That was never, ever spoken to me.”
56During a break after Ms. Aldred’s testimony, defence counsel objected to the manner in which the evidence was presented. He submitted that the evidence was admissible, but that it was improper to introduce it through Ms. Aldred because she had not seen the document before. The Crown submitted that this method was appropriate because the document contained the appellant’s “admissions against interest”. The trial judge dismissed the objection, although he did acknowledge the impact of reading Item 21 “on the witness and perhaps some adverse impact it may have made on the jury.” He said, “If that is an issue the defence wishes to promote, I will incorporate it in my charge.”
57The issue arose again during the cross-examination of the appellant, when the Crown directed him to Item 21. On his own initiative, the trial judge excused the jury and said the following:
I am loathe to interrupt cross-examination, but I think I have to at this point because I’ve been concerned with paragraph 21 for some time since it’s been introduced… very concerned about it because this jury has to be instructed, despite the loathsome, degrading, vulgar comments made and statements made in paragraph 21, despite the fact that they describe sexual conduct, true, imagined or otherwise, which is by some standards highly immoral, despicable, the issue in this case is not whether this man is a philanderer or whether he has any moral compass or not. The issue in this case is has the Crown proven its case beyond a reasonable doubt that he committed first degree murder. [Emphasis added.]
During this colloquy, the trial judge noted that he had not been asked to edit any of Item 21. He further said, “I’m very concerned about this trial not being taken off the rails. I’m not here to protect the accused, but I am not going to have a party convicted because of immoral activity…That’s not going to happen in this court.”
58The Crown said that “we plan on asking Your Honour to give a very strong limiting instruction on that.” The trial judge responded that he had already written one and “it will be strong and forceful.” The Crown made no further reference to Item 21 for the duration of the trial. However, the list was not redacted. It was entered as an exhibit. A poster board of the List was created and made an exhibit. This poster board followed the jury to the deliberation room.
59Throughout the trial, no concern was expressed about other items on the List, nor was any objection made to the compulsive liar bookmark.
(4) The Trial Judge’s Instructions
60The trial judge conducted a thorough pre-charge conference during which all counsel were very actively engaged. During these discussions, the trial judge expressed some concern with the trial Crown having referred to the appellant as a liar, both in her opening and closing statements to the jury. Defence counsel raised an objection to this aspect of the Crown’s closing address. Just before providing his general instructions on the assessment of witnesses, the trial judge told the jury:
Ms. Broderick characterized Mr. Taylor as a liar. Now please understand this. This does not mean that he is more likely to have committed first degree murder or any included offence.
61The trial judge delivered on his promise to provide a cautionary instruction related to the List, and Item 21 in particular. After reviewing the evidence of Ms. Aldred, the trial judge instructed the jury as follows:
Now, please listen to these instructions. With respect to the lies and deceit to Aldred, I instruct you as follows: That evidence is not admissible to support any inference or an inference of any kind that Taylor is likely to have committed the offence of first degree murder or any other included offense. Other than using that evidence to assess Taylor's credibility as a witness generally, it must not be used in determining whether Crown counsel has proven the guilt of Taylor of first degree murder or any included offence beyond a reasonable doubt.
Please listen also to this very carefully: Further, with respect to paragraph 21, Exhibit 10, in which Taylor provides details of his sexual history, his sexual practices and preferences, his purported sexual conquests, I instruct you to completely disregard that evidence and not use that evidence for any purpose whatsoever, including the assessment of Taylor's credibility as a witness. As disturbing and/or degrading some of you may find that evidence to be, that evidence has no bearing on Taylor's credibility, nor is it to be used by you in determining whether Crown Counsel has proven Taylor guilty of first degree murder or any included offence beyond a reasonable doubt. [Emphasis added.]
62Defence counsel did not suggest that this caution was inadequate. In his evidence on the IAC claim, summarized below, defence counsel said he was satisfied with the caution provided.
D. Factual Overview: Ineffective Assistance of Counsel
63The appellant has applied to admit fresh evidence in support of an IAC claim. He advances the claim to explain why no objection was taken to the admissibility of the impugned evidence described above. Although the Crown contests the IAC claim, it does not oppose the admission of the fresh evidence. I would admit the fresh evidence: see R. v. Jaser, 2024 ONCA 448, 172 O.R. (3d) 1, at paras. 302-305; R. v. Zock, 2025 ONCA 483, 450 C.C.C. (3d) 459, at para. 10. It is convenient to summarize this evidence at this juncture.
64After being charged, the appellant was represented by two experienced criminal lawyers: Sandip Khehra and Thomas Balka. On appeal, they provided affidavits and were cross-examined about their representation of the appellant. This happened almost eight years after the trial.
(1) Mr. Khehra’s Evidence
65In his affidavit, Mr. Khehra swore that, while preparing for trial, “I anticipated that Mr. Taylor was likely to testify.” He later testified in cross-examination that “in terms of damaging evidence…the list of lies, at least in my personal mind, were pretty low compared to some of the other very incriminating and damning evidence.” He considered the List as relevant to the narrative of events, and to how Ms. Aldred “fit into this equation”. It was also relevant to motive.
66Mr. Khehra acknowledged that, had he considered the List further, he would have probably objected to the evidence in advance of trial. He conceded that there was no tactical advantage to not raising such an objection.
67Even so, Mr. Khehra was of the view that the introduction of Item 21, especially through Ms. Aldred, reflected poorly on the Crown. In his affidavit, he said: “I did not object because I thought the Crown’s very detailed examination of Ms. Aldred was tedious and alienating the jury.” During cross-examination, he said: “I have a vivid memory sitting in that courtroom, just with my head down going, oh, this is not bad, this isn’t bad for us.” He did not object at that point for tactical reasons, as it was his practice to be careful about objecting in front a jury.
68As for Item 29, Mr. Khehra said that he should have objected to its admission. However, he did not view this oversight as so prejudicial that it would have influenced the jury. He had no recollection of the link between this evidence and the appellant’s provocation defence.
69Mr. Khehra could not recall any tactical reason for not objecting to the admission of the compulsive liar bookmarked article. To the degree he could remember, it would appear to have been an oversight.
(2) Mr. Balka’s Evidence
70In his affidavit, Mr. Balka said that he planned to use the List to demonstrate to the jury that the appellant had moved on from his earlier thoughts of killing his wife and had switched his focus to simply leaving the marriage. Mr. Balka was satisfied with the trial judge’s limiting instruction related to the appellant’s lies. Indeed, this instruction was at least partly inspired by his objection to the Crown’s closing address in which she twice called the appellant a “liar”.
71Mr. Balka was not in the courtroom when Item 21 was introduced. However, he was satisfied with the trial judge’s no probative value instruction in relation to Item 21. He explained that he did not ask for the document to be redacted after it was introduced because the jury had already heard the evidence.
72Mr. Balka believed that Item 29 was admissible and relevant to provocation. Evidence of the appellant’s feelings about the church could assist the jury in assessing the defence’s theory that the appellant lost control in reaction to Wendy saying she would ruin his reputation at church.
73Mr. Balka did not provide evidence on the bookmarked article.
E. Analysis of the Issues on Appeal
(1) Introduction
74With the exception of the trial judge’s instructions on first degree murder, the other issues raised by the appellant bring into question the decisions made by trial counsel. Accordingly, I consider the other grounds of appeal and the IAC claim together.
75To succeed on an IAC claim, the appellant must establish: (1) the facts material to the claim of ineffective assistance, proven on a balance of probabilities (the factual component); (2) the representation provided by counsel fell below the standard of reasonable professional assistance in the circumstances (the performance component); and (3) the ineffective representation resulted in a miscarriage of justice (the prejudice component): R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont. C.A.), at pp. 56-64, leave to appeal refused, [1996] S.C.C.A. No. 347; R. v. Archer (2005), 202 C.C.C. (3d) 60 (Ont. C.A.), at paras. 119-120; and R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at paras. 47-54.
76As discussed more fully below, the appellant has not demonstrated that the decisions made by trial counsel fell below the standard expected of counsel in the circumstances. Counsel made tactical choices about how to navigate the mountain of incriminatory evidence that was adduced over the course of this seven-week trial. As this court said in R. v. Hudson, 2020 ONCA 557, at para. 19:
Much of what the appellant complains about regarding the actions of his trial counsel relate to matters of trial tactics. Judgment calls relating to trial tactics do not generally constitute incompetence even if, with the benefit of hindsight, a different call might have been better: Joanisse, at paras. 73-74. The appellant has not demonstrated that anything that trial counsel did, or did not do, compromised the fairness of the verdict or resulted in a miscarriage of justice.
77It is true that different counsel may have made different decisions in the circumstances. But this reality, standing alone, does not equate to incompetence.
78Even if it could be said that counsel should have taken a different approach to the impugned evidence, the appellant has failed to satisfy the prejudice component of the test for IAC. The interventions and instructions given by the trial judge prevented a miscarriage of justice from occurring. This is fatal to the appellant’s grounds concerning the impugned evidence and the IAC claim.
(2) The Impugned Evidence
(a) Item 21
79As the Crown concedes, Item 21 should never have been before the jury. It was not relevant to any material issue at trial. While other items in the list may have been relevant to the narrative of events, especially as it related to the appellant’s relationship with Ms. Aldred, Item 21 was not. Whether the claims made in Item 21 were true, exaggerated, fabricated, or a combination of all three, it was evidence of discreditable conduct and should not have formed part of the evidence.
80I agree with the appellant that the Crown having Ms. Aldred read items from the List into the record was curious at best. The List was not sent to her by the appellant. She had never seen the List before she testified. While the Crown had Det.-Sgt. Falconer read other items from the List, the Crown chose to have Ms. Aldred read Item 21. I can only infer that this was done to achieve dramatic effect. From the transcript, Ms. Aldred was clearly uncomfortable reading this material. It would have been humiliating.
81Nevertheless, in the end, I am satisfied that the trial judge’s intervention during the appellant’s cross-examination and his strong caution in his final instructions were sufficient to address any prejudice that arose from this Item.
82Item 21 must be viewed in context. The List contained 31 items, a number of which were not lies, but rather the appellant’s reflections about his marriage to Wendy. The power of the document was in its demonstration of the appellant’s hatred for his wife and his desperation to remove himself from his marriage so that he could be with Ms. Aldred. The List said that Wendy “sickened” the appellant and that he “genuinely despised and hated her.” He called their marriage “loveless”. Apart from Item 21, most of the other items were relevant to the narrative of events and the appellant’s animus.
83Moreover, this was not extrinsic evidence unrelated to Wendy’s murder. Rather, the List was created by the appellant as part of his evolving plan to kill Wendy. Indeed, the appellant created the List on the same day that he accidentally revealed his marriage to Ms. Aldred. In Item 21 itself, the appellant wrote that marrying Wendy was “obviously a huge mistake that will end up seriously costing me in the end”. Four days later, he searched “how to kill your wife” on the Internet. Six weeks later, the appellant killed Wendy. The fact that the List, including Item 21, “arose from the same time period and context as the offences charged” lessened its prejudicial impact: R. v. B.B., 2024 ONCA 766, 442 C.C.C. (3d) 402, at para. 30.
84I do not endorse the decision to lead this evidence through Ms. Aldred. But in my view, and in terms of the prejudice analysis, this approach would have reflected more poorly on the trial Crown. This was the view of trial counsel, Mr. Khehra.
85Regarding trial counsel’s failure to object to this evidence, I accept the evidence that trial counsel were more concerned about the impact of other damning inculpatory evidence than the items on the List. In particular, trial counsel had reason to be very concerned about the appellant’s internet searches.
86In hindsight, it would have been preferable had trial counsel objected to the admission of Item 21 ahead of time and asked the trial judge to redact the List accordingly. But it must be remembered that this was a seven-week jury trial. As noted above, counsel had many decisions to make through the course of this trial. They considered other evidence, including the internet searches, to be much more damning.
87In any event, I am not convinced that the admission of this evidence resulted in a miscarriage of justice. The trial judge’s emphatic cautionary instructions to the jury were sufficient to address any prejudice associated with Item 21. Trial counsel were satisfied with the instruction that was given.
88I do have concerns that the poster board version of the List followed the jury into their deliberations, without having first been redacted. Trial counsel did not ask for redactions because the jury had already seen and heard this evidence. While this may not have been the best approach, I am nevertheless satisfied that the trial judge’s caution would have prevented the jury from considering Item 21 in their deliberations: R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 177.
(b) Item 29
89The appellant submits that Item 29 was inadmissible on the basis of R. v. Santhosh, 2016 ONCA 731, 342 C.C.C. (3d) 41, in which this court held that reliance on a witness’ religiosity as it relates to credibility is “improper”: at para. 32.
90In that case, the trial judge used the complainant’s spiritual commitment to weigh in favour of her credibility, an approach that was endorsed by the Summary Conviction Appeal Court judge. Although this court agreed that the complainant’s religiosity was a minor consideration in the trial judge’s analysis, the court ruled that it was improper to take it into account at all. Juriansz J.A. held that it offended the rule against oath-helping: at para. 33, citing R. v. B.(F.F.), [1993] 1 S.C.R. 697. He also held, at para. 40:
Oath-helping considerations aside, in my view, reliance on evidence of the complainant’s religiosity for credibility purposes would nevertheless be improper. I conclude that evidence of a witness’s religious beliefs is not admissible for the purposes of enhancing his or her credibility, nor can it be relied upon for those purposes.
91However, Juriansz J.A. ultimately concluded, at para. 56: “reading [the trial judge’s] reasons as a whole…I am not persuaded that the trial judge’s observation of the complainant’s ‘god-fearing’ nature caused any substantial wrong or miscarriage of justice.”
92I agree with the Crown that this case does not involve the same error as Santhosh. The question here was not the appellant’s religious beliefs per se; instead, the focus was on the appellant’s lies to Ms. Aldred about these beliefs. The evidence was put to the appellant during cross-examination for the purpose of showing yet another way in which he had fabricated lies about himself to cement his relationship with Ms. Aldred. This was not an improper use.
93Item 29 was also relevant to the appellant’s position on the partial defence of provocation. He testified that, in response to him telling her about his affair, Wendy threatened to ruin his reputation at church. According to the appellant, this was one of her threats that caused him to “snap” and attack her with a sledgehammer and then knives. In the context of provocation, Item 29 was relevant to the issue of how much he cared about his reputation at the church, not about whether his religious commitment (or lack thereof) made him more or less credible as a witness. This was also not an improper use.
94Moreover, it could be said that Item 29 reveals little about the sincerity of appellant’s faith; it is more an expression of his dissatisfaction with aspects of his church community. It quickly shifts to the appellant’s animus towards Wendy, in that he complained that Wendy seldom accompanied him to church.
95To the extent that Item 29 touched on the appellant’s religiosity at all, it was admissible for the purposes set out above. While an accused’s religious beliefs cannot be used to bolster or undermine credibility, that is not the use to which Item 29 was put. Rather, Item 29 was relevant to establish both the Crown’s theory of how the appellant’s affair with Ms. Aldred developed, and the Crown’s response to the defence theory of provocation.
96Having determined that Item 29 was admissible, there is no reason to conclude that trial counsel’s lack of objection to this evidence reflected ineffective assistance.
(c) The Compulsive Liar Bookmark
97Turning finally to the compulsive liar bookmark, I agree with the appellant that the bookmark evidence was inadmissible. It was irrelevant and evidence of bad character. However, its admission did not render the trial unfair.
98The bookmark evidence was addressed during the trial judge’s general instruction about the appellant’s lies, reproduced at para. 61, above. The trial judge specifically instructed the jury that the appellant’s habit of lying “does not mean that he is more likely to have committed first degree murder or any included offence.”
99Whether or not the appellant was a compulsive liar, the evidence demonstrated that he was prolific in his lies to Ms. Aldred, and to others. The appellant’s curiosity about treatment for lying must be viewed in this context.
100Lastly, the inclusion of the bookmark evidence on a single slide in a 58 slide PowerPoint presentation adds little to the appellant’s submission on this issue.
101While trial counsel were unable to explain why they did not object to this evidence, no prejudice flowed from this lack of objection for the reasons set out above.
(d) Conclusion
102Although Item 21 and the bookmark should not have been admitted, the trial judge ensured that the trial remained fair by intervening appropriately and by providing proper cautionary instructions. In my view, trial counsel acted reasonably in the circumstances, even if they now believe that they could have done better.
103Lastly on this point, I do not accept the appellant’s submission that the admission of the impugned evidence essentially forced the appellant into the witness box to respond to it. This was not the view of trial counsel. Given the weight of the Crown’s case on planning and deliberation, realistically, the appellant needed to respond, especially if he had any hope of succeeding with his provocation defence, a defence that is now acknowledged to be tenuous at best.
104I would dismiss this ground of appeal.
(3) The Instruction on First Degree Murder
105The appellant submits that the trial judge failed to instruct the jury adequately on the defence theory on planning and deliberation.
106As noted at the outset, the appellant accepts that the evidence supporting a conviction for second degree murder was overwhelming. However, I respectfully part company with the appellant on his characterization of the case on first degree murder being merely “strong”. It too was overwhelming.
107The Crown relied on the following circumstances in support of a conviction on first degree murder: (1) the appellant’s animus and hostility towards Wendy; (2) the appellant’s motive to clear the way for his new relationship; (3) the appellant’s research on poisons and how to kill his wife; (4) the appellant’s late night return home on the night he killed Wendy; and (5) the appellant’s attempts to conceal his return home by using the toll-free highway as opposed to the toll route and by leaving his cellphone behind.
108The appellant acknowledges that an important piece of evidence probative of first degree murder was his choice of route home from Acton. The appellant submits that the trial judge did not sufficiently review the appellant’s evidence as to why he drove on the toll-free route as opposed to the toll route on the night he killed Wendy.
109Assessing the trial judge’s instructions functionally and contextually, as recently endorsed in R. v. Abdullahi, 2023 SCC 19, 428 C.C.C. (3d) 1, at para. 4, the instructions adequately equipped the jury to assess the competing evidence on the issue of first degree murder.
110It is important to note that the landscape has changed significantly since the trial. At trial, the appellant relied upon the defence of provocation, a position he no longer maintains on appeal. However, the trial judge’s instructions on provocation also had the effect of advancing the appellant’s position that he did not plan to kill his wife. The provocation defence was thoroughly reviewed for the jury.
111The appellant’s position – that he planned to confront his wife about a divorce and did not plan to kill her – was addressed throughout the charge. This theory overlapped with the issues of intent, provocation, and planning and deliberation: see R. v. Vassel, 2024 ONCA 666, at paras. 9-11; R. v. Nnane, 2024 ONCA 841, 174 O.R. (3d) 241, appeal as of right filed, [2024] S.C.C.A. No. 468, at paras. 70-75. On each of these issues, the jury was instructed to consider the appellant’s evidence.
112Moreover, after setting out the evidence relied upon by the Crown to establish planning and deliberation, the trial judge immediately delivered an instruction in accordance with R. v. W.(D.), [1991] 1 S.C.R. 742. This reinforced to the jury that they had to assess the appellant’s evidence, in which he said that he did not plan to kill Wendy.
113The defence theory was further advanced through defence counsel’s opening and closing addresses. As Rowe J. said in Abdullahi, at para. 64: “Appellate courts have viewed counsel's closing arguments as capable of filling gaps in the judge's review of the evidence” (emphasis in original). See also R. v. Shabbir, 2024 ONCA 750, 442 C.C.C. (3d) 545, at para. 24.
114And, while not determinative, there was no objection to this aspect of the charge. This takes on greater weight in light of the fact that trial counsel were active during the pre-charge conference, and the appellant’s complaint on appeal is about how the trial judge recounted and related the evidence: see Nnane, at para. 75.
115I agree with the appellant that it would have been better had counsel been given a hard copy of the complete charge before it was delivered. But here the question is about the facts and the position of the defence at trial. As Doherty J.A. said in R. v. Papasotiriou, 2023 ONCA 358, 166 O.R. (3d) 266, at para. 125, “No one knows better than counsel what is and is not important to the defence position, and whether that position has been properly put to the jury.” In this regard, trial counsel appeared to be satisfied with how the trial judge described the defence position to the jury at the very end of his final instructions. Among his final words, the trial judge reminded the jury that the appellant had “a plan to divorce Wendy Taylor, not to kill her.”
116I would dismiss this ground of appeal.
G. Disposition
117I would dismiss the appeal.
Released: March 9, 2026 “P.R.”
“Gary Trotter J.A.”
“I agree. Paul Rouleau J.A.”
“I agree. Grant Huscroft J.A.”