COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Bauman, 2026 ONCA 173
DATE: 20260309
DOCKET: C68336
Trotter, Zarnett and Rahman JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Glenn Bauman
Appellant
Richard Litkowski and Geoff Haskell, for the appellant
Elise Nakelsky and Samuel Greene, for the respondent
Heard: April 22-23, 2025
On appeal from the convictions entered by Justice Robert J. Nightingale of the Superior Court of Justice on July 12, 2019, sitting with a jury.
TABLE OF CONTENTS
A. INTRODUCTION. 3
B. FACTUAL OVERVIEW.. 4
(1) July 16, 2011. 5
(2) The Aftermath. 5
(3) The Police Investigation. 7
(a) The Search of the House. 7
(i) The Bone and Tooth Fragments. 7
(ii) The Blood-Stained Carpet 8
(b) The Undercover Investigation. 9
(4) Statements to Lolene Condon. 11
(5) The Crown’s Theory that Linda and Cheyenne Were Dead. 12
C. ISSUES ON APPEAL. 12
D. ANALYSIS. 13
(1) Undercover Operation Evidence. 13
(a) The Probative Value of the Evidence. 17
(b) Balancing Probative Value and Prejudicial Effect 25
(2) Person in Authority. 27
(3) Statements of Linda and Cheyenne. 33
(a) Linda. 34
(b) Cheyenne. 36
(c) Discussion. 36
(4) Destruction of Evidence. 39
(5) Litigation Privilege. 42
(6) Directed Verdict on First Degree Murder 48
(7) Jury Charge on After-the-fact Conduct 56
(8) Reasonable Apprehension of Bias. 64
E. DISPOSITION. 67
A. Introduction
1The appellant was convicted of two counts of first degree murder in the deaths of his common law partner, Linda Daniel, and her young daughter, Cheyenne. Linda and Cheyenne went missing around July 16, 2011. The appellant was arrested five years later, following an undercover police investigation.
2The appellant worked as a trucker. The Crown alleged that, after he came home from a trip to the United States, he killed both victims and then burned their bodies in steel barrels in the backyard of the house where they lived. The bodies of Linda and Cheyenne have never been found.
3The appellant did not testify at his trial. His position was that the Crown failed to prove that Linda and Cheyenne were dead. He argued that Linda left him, and Cheyenne went with her – they simply disappeared.
4In the course of a four-month trial, the trial judge made a number of rulings which are challenged on appeal. The appellant further submits that the trial judge’s final instructions to the jury were deficient.
5The following reasons explain why the appeal is dismissed.
B. Factual Overview
6This overview provides a general account of the evidence at trial. Further details are provided in the analysis of the various grounds of appeal.
7The appellant met Linda and they started dating. Linda had a son, Andrew, and a daughter, Cheyenne, both from a previous marriage. Linda and Cheyenne moved with the appellant to the Township of Wellesley, Ontario. On July 16, 2011, Linda was 47 years old and Cheyenne was 13.
8The appellant was the sole provider in the family. Linda suffered from chronic pain and did not work a consistent job. The Crown alleged that their relationship deteriorated due to financial strain. The appellant expressed his dissatisfaction to others. He wanted to start a new life. He even went to the police to ask how he could end his common law relationship. He was told to seek legal advice. However, according to her brother, Andrew, Cheyenne and the appellant had a good relationship; he treated her as if she were his own daughter.
9Before the victims vanished, the appellant began an online romantic relationship with a “woman” overseas. On July 16, 2011, or shortly afterwards, the appellant sent significant sums of money to this person, hoping she would visit him in Canada. It turned out to be a fraudulent scheme.
(1) July 16, 2011
10The day before Linda and Cheyenne were last seen, the appellant picked up a trailer in the United States. The load was destined for Fergus, Ontario. The appellant crossed the Canada/US border at 11:01 p.m. on July 15, 2011. The appellant provided the only account of what happened afterwards. In a phone call with Andrew on July 16, 2011, he said that he had returned home at 3:00 a.m. and slept on the couch. When he got up, Linda and Cheyenne were gone. Linda had emptied his bank account and “maxed” his credit cards. Banking records proved this to be false.
(2) The Aftermath
11The appellant told various people different things about the absence of Linda and Cheyenne. He told some people that they had left in the middle of the night before he arrived. He told others they left after he returned home, but while he was asleep. He told some people that Linda left behind a note. The appellant never reported them missing to the police.
12On July 16, 2011, the appellant told his neighbour, Jonathan Moore, that he had an argument with Linda and that Linda and Cheyenne left before he arrived home. On the same weekend (July 16, 2011 was a Saturday), Mr. Moore saw the appellant burning items in two barrels in his backyard. He described a horrible smell from the burning, unlike anything he had previously smelled. He said the fires continued for 36 to 48 hours; the bad smell lasted for 2 to 3 of those hours.
13Mr. Moore testified that, before that weekend, he had only seen a single barrel on the property. Similarly, Andrew testified that, when he was last at the house in April or May of 2011, he noticed only one barrel out back.
14Later on, the appellant gave Andrew some of Linda’s personal items – a flag and a photo of her father in his military uniform. He said she had left them behind. The significance of these items is discussed in more detail below.
15The appellant made a number of financial transactions after July 16, 2011. On July 17, 2011, he sent money to the person he met online. The same day, there was a transfer of $1,000 from Linda’s line of credit to their joint account. On July 18, 2011, the appellant began the process of withdrawing funds from Cheyenne’s RESP (an education savings account). This required Linda’s signature. A handwriting expert testified that Linda’s signature was likely forged on this document.
16The appellant left the house for good in November of 2011. By early 2012, he had relocated out west, where he found work. He settled in Valleyview, Alberta. He met his new partner, Lolene Condon, sometime in 2015. As discussed below, the Crown relied on statements the appellant made to Ms. Condon concerning the fate of Linda and Cheyenne.
(3) The Police Investigation
17In November of 2015, Andrew reported to the police that his mother Linda and sister Cheyenne were missing. He did not do so earlier because he was in jail and the appellant told him that he had already been in touch with the police.
(a) The Search of the House
18The house was searched on December 11, 2015. The contents of the steel barrels were examined a few weeks later. This and subsequent searches led to the discovery of charred bone and teeth fragments in and around the two barrels in the backyard, as well as flooring stained with Linda’s blood.
(i) The Bone and Tooth Fragments
19The police seized the two barrels from the backyard. They contained hundreds of bone and tooth fragments. Dr. Katherine Gruspier, a Crown expert, testified that several of the bone and tooth fragments were likely human and that two tooth fragments appeared to be from a young person.
20A finger bone was found under some lumber near one of the barrels. After forensic testing, including by the Centre for Forensic Science (“CFS”), which ultimately resulted in the complete destruction of the bone, Dr. Gruspier believed that it likely belonged to Linda and was contaminated with Cheyenne’s DNA while in the burn barrel. Further evidence about the DNA results was given by Melanie Richard, a forensic scientist from CFS, who was also of the view that the phalange bone presented a mixed DNA profile (that is, the DNA came from two people) and that neither source was male.
21The defence contended that the contamination theory was at odds with the Crown’s theory that the bodies were burned in separate barrels.
22Dr. Tracy Rogers, a defence expert, disagreed with Dr. Gruspier’s conclusions. The finger bone did not appear to be burned and may have been an archeological or historical bone. She testified that there was a failure to perform tests that would have answered many questions about the provenance of the bone. This testing was no longer possible because the bone had been destroyed. She disagreed that the bone fragments inside the barrel were human and that the tooth fragments came from a young person.
(ii) The Blood-Stained Carpet
23After the appellant left the house in November of 2011, the mortgagee (a private lender) took possession in January 2012. She saw that a square had been cut out of the carpet on the main bedroom floor. She said that the floor was not painted and that she did not repaint it. She laid new carpet in the bedroom and the property was sold later that year.
24During the search of the house, investigators found stains identified as Linda’s blood on the underside of the main bedroom floor. A section of the carpet covering the bloodstained part of the floor had previously been cut out and the wooden floor underneath painted white. Ms. Richard testified, after analysing the DNA from that blood, that Linda could not be excluded as the source of that blood, and the random match likelihood of someone else being that source was less that one in a million.
25At trial, the defence contended that the appellant did not paint over Linda’s blood. There was no evidence of how her blood was deposited in the bedroom.
26Expert evidence suggested that, for Linda to have died from blood loss, she would have needed to be exsanguinated of one to two litres of blood. A forensic engineer testified that the amount of blood discovered on the floorboards could be accounted for with as little as 250 to 500 millilitres of blood. There was no evidence of any further blood staining in the house.
(b) The Undercover Investigation
27In the summer of 2016, the police commenced an undercover investigation in Alberta. This involved two officers, “UC1” and “UC2”.
28In June of 2016, UC1, posing as a trucking transportation manager, befriended the appellant and offered him potential employment in setting up his (i.e., UC1’s) business in Alberta. As they became more friendly, the appellant told UC1 that Linda left him and stole $300,000 from him. The appellant said that he had a plan as to what he would like to do if he ever found Linda. He intimated that this would involve killing her and covering his tracks.
29On August 15, 2016, UC2 entered the picture. He posed as a private investigator hired by people in Ontario to locate Linda and Cheyenne. His story was that Linda was entitled to an inheritance (which was true) and he was trying to find her. UC2 first approached the appellant as he was going into a restaurant with UC1. The appellant denied knowing anything about their whereabouts, claiming that they left him on July 16, 2011.
30UC2 approached the appellant again as he came out of the restaurant with UC1. This time, UC2 was confrontational – he accused the appellant of killing Linda and Cheyenne. UC2 told the appellant that the company he worked for found no evidence that they were alive and that they were not in the witness protection program. Despite the appellant’s denials, UC2 said he would pursue the matter and any information he received would be reported to the police. UC2 also gave the appellant his business card and offered to help him clear his name, if he had evidence that he did not kill Linda and Charlene.
31The appellant spoke with UC2 by phone later that day. UC2 told the appellant again that he would leave the appellant alone if the appellant could show him that he was innocent.
32On August 17, 2016, UC2 told the appellant that the police had searched his previous home and found evidence that he killed Linda and Cheyenne. In response, the appellant denied the allegations and provided UC2 with misinformation, including that he had already reported Linda and Cheyenne missing to the police.
33On the same day, the appellant began plotting with UC1 to hurt UC2 by rendering him paraplegic. This quickly turned into a plan to kill UC2 by the next day. The appellant said they could feed his body to the wolves or get him “cooked”. He described to UC1 in some detail how they could burn UC2’s body in a barrel. He said that the only thing that would not burn would be his teeth, which would need to be scraped from the barrel after the fact and disposed of in an out-of-town dumpster.
34The appellant was arrested the following day. He had a 45-gallon steel barrel in the back of his truck.
(4) Statements to Lolene Condon
35The Crown adduced statements the appellant made to Ms. Condon. He told her that the “private investigator” accused him of killing Linda and Cheyenne. She asked the appellant if Linda and Cheyenne were still alive. He shook his head “no” and cried. When Ms. Condon asked him about his previous claims that Linda had left him, the appellant said, “I lied.”
(5) The Crown’s Theory that Linda and Cheyenne Were Dead
36The Crown adduced the following evidence to prove that Linda and Cheyenne had vanished altogether and asked the jury to conclude that they were dead: (a) family and friends had not heard from them since July 16, 2011; (b) there was no record of Linda or Cheyenne traveling to the United States between June 1, 2011 and April 10, 2019 (the time of jury selection); (c) neither Linda nor Cheyenne had passports; (d) neither made any health insurance claims or visited any hospitals; (e) neither returned to a pharmacy for refills of their prescriptions; (f) Cheyenne did not return to school; (g) neither Linda nor Cheyenne filed income tax returns, nor did they receive government benefits; and (h) Cheyenne last used her Facebook account on July 15, 2011, despite having been a regular user of social media.
C. Issues on Appeal
37The appellant raises the following issues on appeal: (1) the trial judge erred in admitting the evidence from the undercover investigation because it was prejudicial evidence of bad character; (2) the trial judge erred in admitting some of the appellant’s statements to UC2 because he was a person in authority and the statements were not proved to be voluntary; (3) the trial judge erred in admitting statements attributable to Linda and Cheyenne; (4) the trial judge erred in failing to direct a stay of proceedings as a result of the destruction of the finger bone evidence during forensic testing; (5) the trial judge erred in his application of litigation privilege; (6) the trial judge erred in failing to direct a verdict of acquittal on the charges of first degree murder; (7) the trial judge’s instructions to the jury on after-the-fact conduct were inadequate; and (8) the trial judge erred in failing to recuse himself as a result of a conflict of interest.
38A theme running through the appellant’s submissions, both in writing and orally, was that the trial judge abdicated his gate-keeper role in a number of the admissibility rulings he made throughout the course of the trial.
D. Analysis
(1) Undercover Operation Evidence
39The appellant submits that the trial judge erred in admitting evidence from the undercover investigation.
40The Crown brought a pre-trial application to tender evidence from the undercover operation, specifically the appellant’s plot to murder UC2 (the “murder plot”). The Crown argued that the murder plot evidence was relevant to the issue of identity because UC2 was investigating the appellant and believed he was responsible for the deaths of Linda and Cheyenne. It was also relevant to the appellant’s knowledge that Linda and Cheyenne were dead rather than just missing. Relatedly, the evidence served to discredit the appellant’s claim that he made efforts to locate Linda and Cheyenne. The evidence was presumptively inadmissible because it constituted discreditable conduct and required an admissibility ruling in advance of the trial.
41In oral submissions on the admissibility hearing, the Crown outlined the bases for the admission of the evidence as follows:
After-the-fact conduct1: the appellant plotted to kill UC2 because of his investigation into Linda and Cheyenne’s disappearance.
“Admission against interest”:2 the appellant’s statements to UC1 in the murder plot demonstrated knowledge that connected the appellant to the alleged disposal of Linda and Cheyenne’s bodies and connected him in a way that revealed his identity as their killer.
Similar fact evidence: the high degree of similarity between the manner in which the appellant planned to dispose of UC2’s body in the murder plot and the alleged manner of disposal of Linda and Cheyenne’s bodies. The Crown advanced this as an alternative argument to the after-the-fact conduct basis of admissibility.
42The trial judge granted the Crown’s application and admitted the murder plot evidence as after-the-fact conduct.3 The trial judge concluded that the evidence was probative of identity because the appellant “believed UC2 was collecting, had collected and was going to continue collecting information” about the appellant having killed Linda and Cheyenne. The trial judge also found that the murder plot was probative of the issue of identity because the method the appellant proposed to dispose of UC2’s body was quite similar to the manner that Linda and Cheyenne’s bodies were allegedly disposed of. The trial judge found that the appellant’s particular knowledge about how bodies burned in a steel barrel and the steps involved could be circumstantial evidence that the appellant had obtained that particular knowledge as the killer of Linda and Cheyenne. The trial judge also ruled that the evidence was admissible regarding the appellant’s credibility and his claimed efforts to locate Linda and Cheyenne. The trial judge concluded that, having admitted the evidence as after-the-fact conduct, it was unnecessary for him to consider the Crown’s alternative argument that the evidence was admissible as similar fact evidence.
43Having admitted the evidence, the trial judge later narrowed the inferences the jury could draw from the murder plot evidence in his charge to the jury. The jury was only permitted to consider the evidence on the issue of identity. The jury was not allowed to use the murder plot evidence to prove intent or planning and was not instructed to consider the evidence as relevant to the appellant’s credibility. The jury was permitted to infer that the appellant had killed Linda and Cheyenne because he tried to interfere with UC2’s investigation into their disappearance. The jury was also permitted to infer that the appellant had significant knowledge about burning human bodies in a steel barrel because he had acquired this knowledge from burning Linda and Cheyenne’s bodies this way five years earlier.
44The appellant argues that the admission of the murder plot evidence is an example of the trial judge not properly performing his gate-keeping role. He alleges that the probative value of the murder plot evidence was low and that its prejudicial effect was very high. He further alleges that the trial judge did not engage in a proper balancing of the evidence’s probative value and prejudicial effect.
45We do not accept the appellant’s submission that the trial judge erred in finding that the murder plot was probative of the live issues in this case. The trial judge correctly identified the issues on which the evidence was admissible and applied the appropriate legal principles in his admissibility analysis. The evidence had significant probative value both because the appellant wanted to kill the person whom he believed was going to prove he was guilty of murder and because he displayed knowledge of how one would dispose of bodies by burning them in a steel barrel.
46Nor do we accept the appellant’s submissions that the trial judge failed to properly assess the prejudicial effect of the evidence against its probative value. To the extent that the trial judge’s reasons fall short of assessing the murder plot’s potential prejudicial effect, this shortcoming would not impact the result. We agree with the trial judge’s conclusion that the significant probative value of the evidence outweighed any prejudicial effect.
(a) The Probative Value of the Evidence
47The appellant submits that the trial judge erred in finding that the murder plot evidence was probative of the live issues in the case by failing to conduct his admissibility analysis consistently with the striking similarity requirement set out by the Supreme Court in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 and the principles outlined in R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544.
(i) Striking Similarity Requirement and the Hart principles
48The appellant relies on this court’s decision in R. v. Amin, 2024 ONCA 237, 171 O.R. (3d) 588 for the proposition that the murder plot evidence had to be strikingly similar to be admissible on the issue of identity, as set out in Handy. The appellant says that because the Crown was tendering this evidence to prove identity, the trial judge erred in failing to consider whether the appellant’s statements to UC1 about how to burn UC2’s body was strikingly similar to the way Linda and Cheyenne’s bodies were allegedly disposed of. Second, and raised for the first time on appeal, the appellant submits that Amin supports his argument that the murder plot evidence was obtained by police using an undercover operation akin to a Mr. Big operation. Consequently, he contends that there were reliability concerns with the evidence because of the nature of the appellant’s relationship with UC1 and both undercover officers’ relentlessly telling the appellant that UC2 would not leave him alone. Consequently, the admissibility of this evidence needed to be considered according to the principles outlined by the Supreme Court in Hart.
49In Amin, the Crown had tendered evidence from an undercover operation in which the accused had given an undercover officer advice about how to murder his girlfriend and evade detection. The trial judge admitted the evidence on the basis that this murder advice was both “unique” and “conspicuously similar” to how the victim had been killed. This court allowed the accused’s appeal because the trial judge had improperly admitted discreditable conduct evidence and did not provide the jury with any limiting instruction about the evidence. As in this case, the trial judge had not specifically adverted to the requirement set out in Handy that discreditable conduct evidence has to have such similarity to the crime charged that it precluded coincidence in order to be admitted to prove identity. The appellant submits that the circumstances in his case are similar to those in Amin.
50The appellant’s reliance on Amin is misplaced since Amin differs from this case in important ways. First, the probative value of the evidence in Amin depended solely on the similarity of the advice to the details of the murder that the accused was charged with. Since the probative value of the evidence rested on the unlikelihood of coincidence that the accused would offer advice so similar to how the victim had been killed, it required a high degree of similarity to be admitted to prove the accused’s identity as the perpetrator. On appeal, this court found that, to the extent that there was a similarity between the evidence, that similarity did not outweigh the evidence’s prejudicial effect. Moreover, this court observed that despite the potential prejudicial effect of the evidence, it was not the subject of any limiting instruction by the trial judge.
51In this case, however, the trial judge did not admit the murder plot evidence as similar fact evidence4 – i.e. evidence that was probative of identity because of its striking similarity.
52It is true that the Crown argued at trial that the evidence could be admitted as similar fact evidence because of the similarity between the details of the appellant’s plot to burn UC2’s body in a steel barrel and the alleged disposal of Linda and Cheyenne’s bodies. But that is not the basis on which the trial judge ultimately ruled the evidence was admissible, and the trial judge explicitly said that he was not considering the Crown’s alternative similar fact argument. Nor was the jury told that they could use the evidence in this manner. The trial judge admitted the murder plot evidence to show that the appellant possessed detailed knowledge of how to dispose of a body through burning it in a steel barrel because he had done so before. Unlike Amin, the probative value of the evidence did not depend on the unlikelihood of coincidence to prove identity.
53Second, the risks about unreliable confessions that the Supreme Court identified in Hart applied in Amin. They do not apply in this case. In Amin, the accused gave murder advice to the undercover officer, whom he believed was a criminal. The officers involved were attempting to obtain a confession from the accused by holding out an inducement. In contrast to Amin, UC1 presented himself as a potential employer of a legitimate business. It was the appellant who first raised the idea of committing any kind of crime. Moreover, the appellant overstates the “pressure” that was being applied by the undercover officers. There is nothing that would suggest that the job the appellant was being offered by UC1 was in jeopardy because of UC2’s presence or that the appellant needed to keep UC1 in his good graces by reflecting UC1’s apparent dislike of UC2.
54Although UC1 expressed his distaste for UC2 specifically, and private investigators in general, everything UC1 said showed that he was on the appellant’s “side”. More than once, UC1 complimented the appellant’s handling of his interactions with UC2. The appellant was the one to raise the prospect of harming UC2. UC1 was supportive. UC1 also sought reassurance from the appellant, when he asked the appellant, “[S]o buddy I just gotta know you got my back man right[?]”
55As for UC2’s confrontational approach, including his promise to keep coming after the appellant, this is hardly the same kind of pressure exerted in a typical Mr. Big scenario. UC2 did not threaten the appellant with violence, nor did he suggest that he was interested in anything but proving that the appellant was responsible for Linda and Cheyenne’s disappearance. The appellant was not, as he suggested in argument, between a rock and a hard place. Murder was not the only option he was faced with. To the extent that the appellant had an alternative explanation for the murder plot, that was a question for the jury.
56Third, as discussed below, the trial judge gave the jury a limiting instruction concerning the use of the evidence.
(ii) Overstating the Probative Value of the Evidence
57The appellant further submits that the trial judge overstated the probative value of the murder plot evidence. He says that the evidence was not probative of the issue of identity for the following reasons: (1) the appellant did not say that he wanted UC2 dead in order to end the investigation; (2) the fact that UC2 was working for a larger organization in Ontario meant that killing him would not necessarily end such an investigation; (3) the appellant discussed more than one way to dispose of bodies with UC1 and there is nothing particularly unique about burning a body as a means of disposal; and (4) the evidence about proposing the disposal of UC2’s body by burning it in a steel barrel could not be probative unless the jury first found that Linda and Cheyenne had been murdered, a live issue at the trial.
58We disagree with each of these four reasons.
59The mere fact that the appellant did not expressly say why he wanted UC2 dead does not mean the evidence lacked probative value. There was a very powerful inference available on the evidence as to why the appellant wanted UC2 out of the way. As the trial judge observed in his ruling, the appellant “perceived UC2 as a person who, because of his threatened, continued investigation and harassment, could eventually obtain evidence to connect [the appellant] to the original alleged crime of murdering Linda and Cheyenne”.
60The fact that UC2 led the appellant to believe he was working for someone else in Ontario also did not rob the evidence of its probative value. UC2 was the person who vowed to prove the appellant was guilty. Even if there was reason to believe killing UC2 would not end the investigation, there was an available inference that it would at least hinder the investigation. As the trial judge noted in his ruling, the appellant’s plot to kill UC2 to prevent the investigation into him “may not have been thoroughly and reasonably thought out, but it is nonetheless cogent and relevant to the identity of the [appellant] as [Linda and Cheyenne’s] killer.”
61The fact that the appellant discussed other means of disposing UC2’s body also did not diminish the probative value of his suggestion to burn UC2’s body. The probative value of this evidence results from the very specific details the appellant knew about burning a body in a steel barrel. Many of these details aligned with the evidence supporting the Crown’s theory about how Linda and Cheyenne’s bodies had been disposed of. The appellant suggested using a 45-gallon steel barrel to burn UC2’s body and demonstrated knowledge about how long it would take to burn the body; the odour that would accompany the burning and how it could be managed; and the fact that the teeth would need to later be scraped out of the barrel because they would not burn. The trial judge found that this detailed suggestion was “quite similar to the method allegedly used by the killer of Linda and Cheyenne”. The trial judge concluded that the murder plot evidence was probative of the appellant’s identity because the appellant’s “particular knowledge of how to [dispose of the body in] the plot to kill UC2 could potentially be considered by the jury as circumstantial evidence that he had earlier obtained that knowledge as the killer of Linda and Cheyenne”.
62Lastly, we do not accept the appellant’s submission that the evidence was only probative if the jury first accepted that Linda and Cheyenne had been murdered. It is incorrect to say that the evidence was only useful after a homicide was proven. Although the Crown and the trial judge described the evidence as being probative to the issue of identity, the evidence was also probative to the live issue that there had been two homicides. Indeed, given the nature of this evidence, the same reasoning process made it simultaneously probative of both issues — that Linda and Cheyenne had been murdered and that it was the appellant who killed them. Simply put, had there been no foul play, there would be nothing for the appellant to try to cover up with the murder plot. UC2 told the appellant he was investigating Linda and Cheyenne’s disappearance and that he had concluded that they had been murdered. He told the appellant he believed the appellant was responsible. It was open to the jury to infer that the appellant knew that Linda and Cheyenne had not left him but were dead and he knew they were dead because he killed them. While the trial judge did not refer to the probative value of the evidence respecting the appellant’s knowledge that Linda and Cheyenne had been murdered, the Crown did refer to this inference as one of the bases for admission of the evidence. Realistically, the inference of identity that the trial judge relied on in admitting the evidence was intertwined with the inference that the appellant knew that Linda and Cheyenne were dead.
(b) Balancing Probative Value and Prejudicial Effect
63The appellant alleges that the trial judge erred by not properly weighing what he characterizes as the significant prejudicial effect of the evidence against its minimal probative value. He again relies on this court’s decision in Amin in support of his submission that the prejudicial effect of the murder plot exceeded its probative value.
64We do not accept this submission. Further, to the extent that the trial judge’s reasons fall short of assessing the murder plot’s potential prejudicial effect, that shortcoming does not impact the result. We agree with the trial judge’s ultimate conclusion that the significant probative value of the evidence outweighed any prejudicial effect.
65There is no question that the murder plot evidence carried with it the potential for both moral and reasoning prejudice and that the trial judge was required to consider whether the probative value of the evidence outweighed any potential prejudice. The trial judge’s reasons weighing the evidence’s prejudicial effect are admittedly brief. But it is apparent that he considered the need to balance the prejudicial effect with the evidence’s probative value. The trial judge recognized that the evidence carried the possibility of both moral and reasoning prejudice. He concluded that there was a minimal risk respecting either form of prejudice and that appropriate limiting instructions could address any concerns with the jury’s possible confusion of the issues and misuse of the evidence. The trial judge further noted that the “mere possibility that a jury might misuse the evidence is insufficient to preclude the admission of the evidence.”
66Moreover, we do not agree with the appellant that the trial judge’s failure to specifically use the analysis set out in Handy in weighing the probative value and prejudicial effect was in error. As discussed above, the appellant’s reliance on Handy and Amin for the proposition that the murder plot evidence had to be strikingly similar to be probative of the issue of identity is misplaced.
67Finally, even if there was any deficiency in the trial judge’s consideration of the prejudicial effect of the murder plot evidence, we agree with his ultimate conclusion that the probative value of the evidence was very high and outweighed its prejudicial effect. This was not a case where the appellant was simply committing another crime unconnected to the one for which he was on trial. As explained above, the evidence was highly probative of the appellant’s knowledge of Linda and Cheyenne’s deaths and identity as their killer. Any potential prejudicial effect was outweighed by the substantial probative value of the evidence and was adequately addressed through the limiting instructions that the trial judge ultimately provided.
68This ground of appeal is dismissed.
(2) Person in Authority
69The appellant also challenges the admissibility of some of the statements he made to UC2. He acknowledges that the utterances that he made upon first meeting UC2 as he went into the restaurant with UC1 were voluntary. However, he contends that once UC2 became confrontational with him as he left the restaurant, all subsequent utterances were involuntary. He does not claim that any of his utterances to UC1 were involuntary.
70The appellant submits that, after his lunch meeting with UC1, and as they left the restaurant, UC2 presented as a person in authority. UC2 said things that suggested to the appellant that he had connections to, and may have been working with, law enforcement to locate Linda and Cheyenne. This theme continued over the next couple of days, until the appellant was arrested.
71We agree with the trial judge that UC2 was not a person in authority. Even assuming UC2 was a person in authority, there was no indication that the appellant’s statements to UC2 were involuntary.
72As a preliminary observation, in contrast to the appellant’s utterances to UC1, the appellant’s statements to UC2 were not particularly important to the overall case against him. The appellant said nothing incriminatory to UC2. Instead, he offered a series of denials, coupled with a few misleading statements. We acknowledge that the appellant’s misleading statements to UC2 formed part of a larger package of lies and deception. However, the real significance of UC2’s role in the investigation was that it inspired the appellant to hatch a plan to kill UC2 and to suggest to UC1 that they burn his body to cover their tracks. Although this latter body of evidence is challenged on a different basis (discussed above), it has no legal bearing on the voluntariness of the appellant’s statements to UC2.
73Statements or utterances made by an accused person to a person in authority are presumptively inadmissible. They are admissible only if they are made voluntarily: R. v. Hodgson, [1998] 2 S.C.R. 449, at para. 12. Absent a formal admission by the defence that the utterances are voluntary, the Crown must prove the statements or utterances were made voluntarily, on a standard of proof beyond a reasonable doubt: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 30 and 68; R. v. Tessier, 2022 SCC 35, [2022] 2 S.C.R. 660, at para. 68. In terms of what it means for a statement or utterance to be voluntary, see Sidney N. Lederman, Michelle K. Fuerst and Hamish C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, Sixth Edition (Toronto: LexisNexis, 2022), at p. 531, who write: “Reduced to its essentials, the voluntariness inquiry focuses predominantly, though not exclusively, on the ability of the accused to make a meaningful choice whether or not to confess” (emphasis in original).
74A person in authority is someone whom the accused believes is formally involved in their arrest, detention, examination, or prosecution: Hodgson, at para. 32. Undercover officers do not generally fit into this category because the accused person will be unaware of their true role: see R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at para. 40. In these circumstances, the accused person is not subject to the coercive power of the state. Any utterances or statements made in these circumstances are treated in the same manner as an accused person’s statements or utterances to any other person. The voluntariness rule is not operative.
75However, there is some elasticity in the “person in authority” concept that may extend its ambit beyond the customary state investigatory or prosecutorial actors. As Cory J. held in Hodgson, at para. 16, the definition “may be enlarged to encompass persons who are deemed to be persons in authority as a result of the circumstances surrounding the making of the statement.” He went on to say, at para. 34:
In other words, the evidence must disclose not only that the accused subjectively believed the receiver of the statement to be in a position to control the proceedings against the accused, but must also establish an objectively reasonable basis for that belief. For example, if the evidence discloses a relationship of agency or close collaboration between the receiver of the statement and the police or prosecution, and that relationship was known to the accused, the receiver of the statement may be considered a person in authority. In those circumstances the Crown must prove beyond a reasonable doubt that the statement was made voluntarily. [Emphasis added.]
76In Grandinetti, Abella J. stated the test as follows, at paras. 38-39:
The test of who is a “person in authority” is largely subjective, focusing on the accused’s perception of the person to whom he or she is making the statement. The operative question is whether the accused, based on his or her perception of the recipient’s ability to influence the prosecution, believed either that refusing to make a statement to the person would result in prejudice, or that making one would result in favourable treatment.
There is also an objective element, namely, the reasonableness of the accused’s belief that he or she is speaking to a person in authority. [Emphasis added.]
77An accused person only carries an evidentiary burden at this stage, not a persuasive burden. The accused need only adduce or point to evidence on the record to meet this threshold; if this is met, the burden shifts to the state to prove that the receiver of the statement was not a person in authority: Hodgson, at para. 37; The Law of Evidence in Canada, at p. 509.
78In this case, the appellant did not testify on the voir dire into the admissibility of his statements to UC2. This is not necessarily fatal to a challenge. As noted, in discharging their evidential burden, an accused person need only point to evidence in the record to meet this threshold.
79However, the record in this case points in a direction that is unfavourable to the appellant. As the trial judge found in his ruling, there was no evidence that the appellant believed that UC2 was an undercover officer. He told UC1 that he believed that UC2 was acting alone. After his interview with the police following his arrest, the appellant told the police that UC2 made him feel “judged” and “annoyed.” It was at that point that the police told him that UC2 was an undercover officer.
80In his ruling, the trial judge focused largely on the objective reasonableness of any belief that the appellant may have held. Applying the cases referred to above, he concluded that the evidence merely showed that UC2’s private investigator persona may have had access to information from law enforcement authorities (e.g., that Linda and Cheyenne were not part of the witness protection program) and that he would pass on any information that he discovered onto the police.
81Based on this evidence, the trial judge found that the appellant could not have reasonably believed that UC2 had any special authority beyond mere access to information.
82The trial judge’s ultimate conclusion, in which he combined his findings on the subjective and objective nature of the test, was as follows:
Accordingly, the mere fact that UC2 acting clearly as a private investigator told Mr. Bauman that information and evidence he obtained would be passed on to his Ontario investigating company which could then be passed on to the police does not suggest Mr. Bauman could subjectively and reasonably believe that UC2 was acting on behalf of the police or prosecuting authorities and being in a position to influence or control the proceedings against him. The respondent only told the police in November 2016 that he was annoyed by the private investigator and felt judged. [Emphasis added.]
83In our view, this was the only reasonable conclusion the trial judge could reach on the evidence, and it was based upon a correct application of the governing authorities.
84Moreover, picking up on the last sentence from the passage quoted above, the appellant’s own statements show that he did not subjectively believe that UC2 was a person in authority. Because the appellant did not subjectively believe that he was dealing with a person in authority, it would have made no difference even if such a belief would have otherwise been objectively reasonable. Without subjective belief, the person in authority test is not met.
85The trial judge correctly found that the appellant failed to meet his evidentiary burden on both the objective and subjective prongs of the person in authority test. Failure on either prong is fatal to the appellant’s voluntariness challenge.
86Finally, even if the trial judge had found that UC2 was a person in authority, the evidence overwhelmingly established that the statements and utterances made to UC2 were voluntary – i.e., of his own free will: R. v. Ordonio, 2025 ONCA 135, 176 O.R. (3d) 1, at paras. 25-34. This is another reason why this ground of appeal must fail.
87This ground of appeal is dismissed.
(3) Statements of Linda and Cheyenne
88The appellant further submits that the trial judge erred in admitting statements attributed to Linda and Cheyenne pursuant to the state of mind exception to the hearsay rule without properly weighing probative value against prejudicial effect. As discussed below, the trial judge did not err in admitting this evidence.
(a) Linda
89The statements attributed to Linda concerned her possession of items related to her father’s military service. Linda’s father died in 2004. She was very close to him and proud of his military service. She kept a flag and a photo of him in his military uniform. On September 19, 2011, months after the disappearance of Linda and Cheyenne, the appellant took these items to the home of Linda’s son, Andrew. He told Andrew that Linda had abandoned him and taken various things with her, but left these items behind. He asked Andrew if he wanted them.
90The Crown adduced evidence from Andrew, as well as Linda’s former husband Chris Cherewka and her niece Sarah. According to these witnesses, these items were among Linda’s prized possessions. No specific statements were attributed to Linda in this regard; instead, the evidence conveyed in a more general sense how Linda regarded these items by what she said about them over the years.
91It was the defence position at trial that Linda and Cheyenne packed up their belongings and moved out of the residence they shared with the appellant. The Crown led this evidence about the items to rebut the suggestion that they simply left. If that had been the case, Linda would not have left these treasured belongings behind.
92The trial judge admitted the evidence of these three witnesses pursuant to the state of mind exception to the hearsay rule, citing R. v. P.(R.), (1990), 58 C.C.C. (3d) 334 (Ont. H.C.), R. v. Smith, [1992] 2 S.C.R. 915, and R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42.
93The trial judge also found that the probative value of the evidence outweighed its prejudicial effect. In performing this balancing, the trial judge said, “The test for probative value is low. It is sufficient that the desired inference is more probable with the evidence than it would be without the evidence.” On the other hand, the trial judge found that admitting the evidence would have no prejudicial effect. He observed that the appellant himself acknowledged how much Linda valued these possessions – that is why he delivered them to her family. On November 1, 2016, following his arrest, the appellant told the police that Linda worshipped these items and he did not know why she left without them.
94In his ruling, the trial judge limited the extent of Linda’s former husband Mr. Cherewka’s evidence on this issue. On the voir dire, Mr. Cherewka offered the opinion that Linda would not have left the house without taking these items. The trial judge ruled that Mr. Cherewka could not offer this opinion in his testimony; this was an issue for the jury to determine.
(b) Cheyenne
95The Crown also adduced evidence from Cheyenne’s friend, Kristen, who said that Cheyenne told her that she intended to return to their school in the Fall of 2011 to complete Grade 8 and to graduate with her friends. Cheyenne was excited because she recently bought a dress for graduation. The Crown contended that the evidence was probative of the theory that Cheyenne would not have moved away without telling her friends.
96In a separate ruling, the trial judge admitted Cheyenne’s statements under the state of mind exception to the hearsay rule. He engaged in the same weighing of the probative value of the evidence against its prejudicial effect. He made the exact same comment about the test for probative value, noted above.
(c) Discussion
97The appellant’s main attack on the admissibility of both sets of statements is focused on the trial judge’s definition of probative value as it related to the balancing of probative value against prejudicial effect. He submits that the trial judge stated the test for mere relevance, a standard lower than the probative value that evidence must possess to overcome its prejudicial effect.
98The trial judge admitted this evidence under the state of mind exception to the hearsay rule. The appellant does not contend that the trial judge erred in his application of this exception on appeal.
99The state of mind exception to the hearsay rule is discussed in R. v. Dion, 2025 ONCA 7, 174 O.R. (3d) 721. In that case, the trial judge applied this exception to admit statements of the murder victim describing the acrimony in her relationship with the accused, which the Crown said motivated him to kill her. This court found no error in the admission of this evidence. Writing for the court, Paciocco J.A. described this exception to the hearsay rule in the following way, at para. 29:
Pursuant to this exception, a statement made by a person may be admitted if it discloses their relevant, present existing state of mind and the statement was made in a natural manner and not under circumstances of suspicion: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 168; R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 59. Evidence satisfying this exception will be prima facie admissible, but only “in order to demonstrate the intentions or state of mind of the declarant at the time the statement was made”: Starr, at para. 168, quoting R. v. Smith, [1992] 2 S.C.R. 915, at p. 925.
100Admissibility on this basis is determined by whether the preconditions for the exception are met; there is no requirement to engage in a further balancing of probative value and prejudicial effect: Dion, at paras. 30, 31 and 50. This is already accounted for within the construction of the exception.
101Nevertheless, the trial judge’s residual discretion to exclude prejudicial evidence remains, even after finding an exception to hearsay: Dion, at para. 32. Because this is a discretionary decision of the trial judge, it is entitled to a high degree of deference on appeal: R. v. Schneider, 2022 SCC 34, [2022] 2 S.C.R. 619, at para. 62.
102As described above, the trial judge found that the evidence carried some degree of probative value and zero prejudicial effect. The trial judge’s comment that the test for probative value is “low” was not an error here, because even minimal probative value will outweigh prejudice where there is no prejudice to be found.
103We see no reason to disturb the trial judge’s decision not to exercise his discretion to exclude this evidence.
104The appellant also submits that there were frailties associated with both sets of statements, particularly with respect to the evidence of Kristen. Kristen did not mention the statements attributed to Cheyenne when she spoke to the police in 2016. She first mentioned them in 2019, shortly before trial. But as the trial judge noted in his ruling, Kristen explained that she was very nervous when she first spoke to the police; it was only when she reviewed her statement prior to the trial that she remembered what Cheyenne told her. The appellant submits that the trial judge should have cautioned the jury about these shortcomings in her account.
105There was no error in the failure to caution the jury about any perceived shortcomings in the evidence of the witnesses who testified to these previous statements of Linda and Cheyenne. No such instruction was requested, nor was any objection registered after the trial judge completed his final instructions.
106At the end of the day, this evidence played a very limited role at trial. Mr. Litkowski fairly acknowledged that any error with respect to the admission of these statements would not, standing alone, warrant a new trial. He relies on this ground in aid of his broader submission that the trial judge did not properly discharge his gate-keeping function during the course of the trial.
107This ground of appeal is dismissed.
(4) Destruction of Evidence
108The appellant further submits that the trial judge erred in his ruling on the destruction of the bone found at the scene.
109The appellant argued at trial that the evidence of the human phalange bone, the analysis of it by Dr. Gruspier, and the DNA analysis of it by CFS representatives, should be ruled inadmissible, and the charges against him stayed. This argument had its basis in the fact that after Dr. Gruspier had examined the bone, she forwarded it to CFS for DNA analysis, and in the course of that analysis the bone was pulverized into powder. According to the appellant, there were tests that could have been done on the bone before it was pulverized during the DNA analysis, which might have yielded information of assistance to the appellant’s defence about the age and gender of the donor of the bone. The appellant argued that the failure to conduct those tests resulted in the loss of potential evidence, and that loss was the result of unacceptable negligence, prejudicing the fair trial rights of the appellant.
110The trial judge rejected the appellant’s position. He noted the defence concession that there was no obligation on the Crown or Dr. Gruspier to notify the defence of the intention to send the bone to CFS for DNA analysis. He found that even if the physical bone was destroyed all material information concerning it was not, as Dr. Gruspier had kept proper records, including photographs and measurements, respecting her examination which could be reviewed by a defence expert, and the extract retained by CFS was available for independent DNA testing by the defence which was, in fact, being undertaken.
111Moreover, the trial judge found no unacceptable negligence on the part of the Crown, Dr. Gruspier or CFS. First, the Crown had not been involved in Dr. Gruspier’s decision to send the bone to CFS, or in the procedures that CFS followed. Second, Dr. Gruspier had testified that she followed all appropriate forensic anthropological protocols in examining the bone and explained why none of the additional tests suggested by the defence expert, Dr. Rogers, were useful or necessary – explanations the trial judge found were “not unreasonable”. He also noted that Dr. Rogers did not testify that any of the additional tests he suggested would have generated results helpful to the defence – they could as easily have yielded information that was harmful to the defence. Third, the trial judge found that the CFS followed “[a]ll the required and standard scientific protocols” in doing their work.
112On appeal, the appellant repeats his contentions that evidence was lost due to the unacceptable negligence of state agents, the content of the lost evidence was highly relevant to the defences he raised and, as a result, he suffered irreparable prejudice to his fair trial rights. He submits that the prejudice should have been remedied by a stay or by the exclusion of evidence of the bone and the analysis of it.
113We disagree.
114The Crown’s duty of disclosure carries with it an obligation to preserve relevant evidence. Where the original form of the evidence is no longer available, the Crown must provide an explanation. “If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached”: R. v. Bero (2000), 151 C.C.C. (3d) 545 (Ont. C.A.), at para. 30.
115The trial judge’s finding that the Crown had provided a satisfactory explanation for the non-availability of the bone itself, and that its destruction was not due to unacceptable negligence, are entitled to deference on appeal: R. v. Murray, 2025 ONCA 222, 176 O.R. (3d) 502, at para. 78. The appellant has not established a palpable and overriding error tainting any of the findings that support the trial judge’s conclusions.
116The trial judge found that all material information about the bone had not been destroyed because (i) Dr. Gruspier had maintained observations of the bone (including photographs and measurements) that could be analyzed by a defence expert, and (ii) CFS had maintained an extract sufficient for independent DNA testing. He found that it had not been shown that the additional testing Dr. Rogers suggested could have been performed would have yielded any evidence that might have been helpful to the defence. He found Dr. Gruspier’s explanations as to why she had not performed that additional testing were not unreasonable, and that CFS had followed all proper procedures in performing the DNA analysis that included pulverising the bone.
117Those findings are fatal to the argument that evidence was lost due to unacceptable negligence and that a remedy of a stay of proceeding or the exclusion of Crown evidence was warranted.
118We therefore reject this ground of appeal.
(5) Litigation Privilege
119The appellant next submits that the trial judge erred in his rulings concerning the proposed evidence of Valerie Blackmore, an expert retained by the defence. The underlying theme of this submission is that the trial judge failed to appreciate the scope and operation of the doctrine of litigation privilege.
120The rulings were made after Ms. Blackmore, a forensic biologist and DNA expert, testified on a voir dire. The defence had provided the Crown with a written report that summarized her proposed evidence at trial. The Crown requested production of Ms. Blackmore’s notes of the exhibits that had been provided to her and her entire case file – which the defence resisted – and the defence asked for limitations on the scope of the Crown’s cross-examination of Ms. Blackmore were she to be called in the trial proper – which the Crown resisted. After the trial judge addressed these requests including, in part, deferring making a ruling, the defence chose not to call Ms. Blackmore as a witness.
121With respect to the request for documents from Ms. Blackmore’s file, the trial Crown made it clear the request did not extend to draft reports or notes of any communications between defence counsel and Ms. Blackmore. Defence counsel at trial expressed the concern that any notes that related to matters outside the scope of her report should not be produced, as cross-examination on such matters was not permissible. The trial judge invited defence counsel, if he had such concerns, to provide the notes to the trial judge for his review, so he could consider “whether they were properly producible to the Crown before deciding the issue of the permitted extent of cross-examination”.
122Defence counsel did not take up this invitation. No notes were provided to the trial judge for review. Accordingly, the trial judge deferred making a ruling, stating that “any issue regarding production of the notes to the Crown will have to wait for consideration until completion of Ms. Blackmore’s evidence at trial in examination-in-chief”. As Ms. Blackmore was not called as a witness, the issue was never ruled upon.
123In our view, there was no error in the trial judge’s approach to the request for production of notes. A trial judge has broad case management powers which are engaged by motions for directions of the sort made here, including the power to defer making a ruling: R. v. Haevischer, 2023 SCC 11, 480 D.L.R. (4th) 577, at para. 102.
124A ruling on whether litigation privilege protected any notes from production to the Crown was naturally dependent on what exactly the notes were about. A court has the power to review a document to determine a disputed claim for privilege: Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574, at para. 22. It was accordingly appropriate to defer a ruling until the trial judge could review the notes if in fact defence counsel was concerned that they were protected by litigation privilege.
125As well, litigation privilege, even where it attaches, may be waived. Waiver may occur through counsel eliciting certain testimony from their expert in examination-in-chief: R. v. Stone, [1999] 2 S.C.R. 290, at paras. 96-99. It was therefore appropriate to defer a ruling on the production of notes alleged to be protected by litigation privilege until after examination-in-chief of Ms. Blackmore.
126With respect to the request for limitations on the scope of the Crown’s cross-examination of Ms. Blackmore, this issue revolved around the scope of Ms. Blackmore’s written report. It summarized Ms. Blackmore’s proposed evidence on the impact on DNA survival of the bone’s prolonged exposure to burning in a barrel, weather conditions, and the cleaning procedures CFS had used. It also referred to the ability to swab the bone for DNA before and after it was cut by CFS, whether the bone’s DNA profile must come from only two persons, the qualifiers appropriately placed on the likelihood ratios CFS had obtained, and potential sources of contamination. But it did not, at least directly, offer an opinion either confirming or disputing the opinion of the Crown’s DNA expert, Melanie Richard, on the DNA content of the bone, nor offer any comment at all on the opinion Ms. Richard had expressed regarding the DNA content of the blood found inside the bedroom.
127The trial judge disagreed with the defence position that any area that was outside the four corners of Ms. Blackmore’s report should be ruled out of bounds for cross-examination. He gave several reasons for this conclusion. First, he considered it to be “well-established that an expert witness on cross-examination by opposing counsel can be asked to comment on the opinion of the other party’s experts”, whether or not the expert being cross-examined had raised the issue in their own report. Second, he considered that the scope of cross-examination of any witness is not restricted to what they refer to in chief. Third, he held that litigation privilege would not extend to Ms. Blackmore’s views about the opinions of Ms. Richard, as based on her testimony at the voir dire she had not communicated any views on those topics to defence counsel, and litigation privilege protects “information and documents obtained by counsel from third parties for the dominant purpose of preparation for litigation”. Fourth, any potential litigation privilege over these topics would be waived if Ms. Blackmore testified in the trial.
128The appellant argues that the trial judge erred in this ruling because, “as a matter of law, calling Ms. Blackmore as a witness [would only waive] litigation privilege in respect of the contents of her report, and not in respect of other opinions she may have of the DNA analysis of the phalange and/or analysis of the blood found in the upper bedroom of the home.”
129We disagree.
130The purpose of litigation privilege is to allow “parties to litigation, represented or not … to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure”; it is designed to create a “‘zone of privacy’ in relation to pending or apprehended litigation”: Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319, at paras. 27, 34. Thus it extends to protect from disclosure certain communications between, on the one hand, a lawyer (or a self-represented litigant) and on the other, a third party (such as an expert): Blank, at para. 27. It further extends to “draft reports, notes and records of any consultations between experts and counsel, even where the party intends to call the expert as a witness” as doing so allows “counsel to work with third parties such as experts while they make notes, test hypotheses and write and edit draft reports”: Moore v. Getahun, 2015 ONCA 55, 124 O.R. (3d) 321, at para. 69-70.
131The cross-examination the defence sought to proscribe would not have entered the “zone of privacy” that litigation privilege exists to protect. As the trial judge noted, there were simply no views communicated between Ms. Blackmore and defence counsel on the topics the defence sought to place off limits. Nor could the cross-examination the defence wished to prevent have involved “an open-ended inquiry into the differences between a final report and an earlier draft [that] would unduly interfere with the orderly preparation of a party’s case and … run the risk of needlessly prolonging proceedings”: Moore, at para. 71.
132Because we see no basis for the argument that litigation privilege ever extended to the areas that the defence sought to place off limits, it is unnecessary to consider whether litigation privilege would have been waived or otherwise displaced by one of the qualifications to its application: see Moore, at paras. 73-78; Blank, at paras. 37, 44.
133The final aspect of the trial judge’s ruling was to defer deciding, until after Ms. Blackmore’s examination-in-chief was completed, whether Ms. Blackmore could also be asked in cross-examination about the existence of an independent DNA examination the defence had conducted. The trial judge was of the view that the propriety of questioning in this area might be affected by what Ms. Blackmore’s evidence at trial turned out to be. He noted that, even if questioning in this area were permitted, it would be restricted to the existence of the independent test – questions about why that test was not being introduced in evidence would not be permitted.
134We see no reversible error in the trial judge’s decision to defer ruling on this issue pursuant to his case management powers:Haevischer, at para. 102.
135We therefore reject this ground of appeal.
(6) Directed Verdict on First Degree Murder
136The appellant also submits that the trial judge erred in failing to direct a verdict of acquittal on the charges of first degree murder.
137The appellant faced an indictment alleging that he committed the crime of first degree murder against both Linda and Cheyenne. This was based on the allegation that both murders were “planned and deliberate” within the meaning of s. 231(2) of the Criminal Code, R.S.C. 1985, c. C-46.5
138At the conclusion of the Crown’s case, the appellant applied for a directed verdict of acquittal on both first degree murder charges. Defence counsel acknowledged that there was sufficient evidence to go to the jury on two counts of second degree murder.
139The issue at hand is whether there was some evidence that the killings were “planned and deliberate”. This expression is not defined in the Criminal Code. It has been left to judges to give it meaning. As the Supreme Court of Canada held in R. v. Nygaard, [1989] 2 S.C.R. 1074, at p. 1084: “It has been held that ‘planned’ means that the scheme was conceived and carefully thought out before it was carried out and ‘deliberate’ means considered, not impulsive.” See also R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 26.
140The jurisprudence on the test for a directed verdict is also a matter of judge-made law. In R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, the Court said, at para. 48: “A directed verdict is not available if there is any admissible evidence, whether direct or circumstantial which, if believed by a properly charged jury acting reasonably, would justify a conviction: R. v. Charemski, [1998] 1 S.C.R. 679, at paras. 1-4; R. v. Bigras, at paras. 10-17” (emphasis added).
141In R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545, leave to appeal refused, [2015] S.C.C.A. No. 478, the court elaborated on this test, at paras. 158-159:
The issue to be determined is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilt: United States of America v. Shephard, [1977] 2 S.C.R. 1067, at p. 1080; R. v. Monteleone, [1987] 2 S.C.R. 154, at p. 160; and R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21.
The standard on a directed verdict application does not differ according to whether the Crown’s case consists of direct or circumstantial evidence. But the nature of the judge’s task varies according to the nature of the evidence adduced. Where the evidence of any essential element is entirely circumstantial, the judge engages in limited weighing of the evidence to determine whether the evidence, considered as a whole, is reasonably capable of supporting the inference the Crown seeks to have the trier of fact draw about that essential element: Arcuri, at para. 23.
The limited weighing of circumstantial evidence on an application for a directed verdict does not entitle the judge to draw factual inferences, assess credibility or ask whether he or she would find guilt established if assigned the role of trier of fact: Arcuri, at para. 23. Provided the judge concludes that the evidence as a whole, if believed, could reasonably support an inference of guilt, a directed verdict motion will fail: Arcuri, at paras. 23, 30, 33.
See also R. v. Osman, 2025 ONCA 516, at para. 34.
142In making this determination, a trial judge must take the Crown’s case at its highest: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18; R. v. Jackson, 2016 ONCA 736, 33 C.R. (7th) 130, at paras. 7-8; R. v. Shaw, 2024 ONCA 119, 170 O.R. (3d) 161, at para. 277.6 Moreover, as this court said in R. v. Patterson, 2018 ONCA 774, at para. 11: “The Crown was not required to demonstrate that the inference sought was a likely or probable inference arising from the evidence, let alone that it was the only available inference. To leave the count with the jury, it was enough that it was a reasonable inference consistent with guilt” (emphasis in the original).
143In his ruling, the trial judge cited the relevant jurisprudence relating to what constitutes a planned and deliberate murder, and the test for a directed verdict. In our view, the trial judge did not err.
144The trial judge identified several categories of evidence which could support an inference of planning and deliberation, including: the appellant’s deteriorating relationship with Linda at the time of her and Cheyenne’s disappearance; the neighbour’s testimony suggesting that the appellant acquired a second steel barrel prior to their disappearance; and the appellant’s after-the-fact conduct, including his statements to the undercover officers.
145The trial judge rightly observed that these inferences need not be compelling or easily drawn; the question is only whether they could be reasonably and logically drawn from the evidence considered as a whole. As he correctly stated: “The question of whether or not it should ultimately be drawn must be left for the jury to decide.”
146Evidence of the appellant’s deteriorating relationship with Linda provided powerful evidence of motive. The appellant’s unusual step of going to the police to ask how he could free himself from this relationship typified this animus. Close in time to the disappearance of Linda and Cheyenne, and likely before, the appellant was in communication with another “woman” online. Almost immediately after July 16, 2011, he sent large sums of money to this person, drew money on Linda’s line of credit, and set about collapsing Cheyenne’s RESP. This supports the inference that the appellant had a motive to conceive and execute a plan to kill Linda and Cheyenne.
147The presence of two barrels in the appellant’s backyard after July 16, 2011 figured prominently in the trial judge’s analysis as evidence of the appellant’s plan to kill. As the trial judge found at para. 47 of his ruling:
In this case, the jury could conclude based on the evidence of Jonathan Moore and Andrew Cherewka that there was only one steel drum on his property before July 16, 2011 and there were now two drums on it on that date when Glenn Bauman was burning fires in both barrels. The jury could infer that a second barrel was obtained by Glenn Bauman as part of his prior plan to murder Linda Daniel and Cheyenne Daniel and burn their bodies in two barrels that were needed to do so.
The barrel obtained by the appellant in advance of the killing provides an inference that the killing was planned.
148The trial judge recognized that he was required to address each count of first degree murder separately. It is true that the bulk of the evidence, especially the evidence of animus, was focused on Linda, and not Cheyenne. The appellant apparently had a good relationship with Cheyenne, or at least not a bad one. Nevertheless, in considering the application as it related to Cheyenne, the trial judge returned to the barrels in the backyard. He said, at para. 64:
In considering that evidence in the most favorable light to the [C]rown, the evidence by inference can reasonably suggest beyond mere speculation or conjecture that Glenn Bauman only had one barrel initially and acquired another one sometime before he arrived home in early morning of July 16, 2011. He then used both barrels as part of his prior plan to murder and cremate the bodies of both Linda and Cheyenne Daniel to get rid of the evidence of how they were killed and which could identify him as their killer.
The second barrel allows the inference that the appellant’s plan had a second victim: Cheyenne.
149Turning to the after-the-fact conduct evidence, it was open to the trial judge to conclude that the jury might reasonably infer that what the appellant said and did after July 16, 2011 (his lies, deceptions, and statements to UC1, UC2 and Lolene) was evidence of the plan that the appellant had already in fact executed: see R. v. MacKinnon (1993), 43 O.R. (3d) 378 (C.A.), at para. 15.
150The appellant’s story to UC1 about what he would do if he ever found Linda was open to the interpretation that he was describing what he had already done – deliberately killed Linda and disposed of her remains so that he could start a new life. Combined with his detailed description to UC1 about killing UC2 and disposing of his body, this too was powerful evidence, if accepted, of someone who had already carried out a plan to kill.
151Altogether, the trial judge pointed to several categories of evidence which could allow for an inference of planning and deliberation. This included evidence that the appellant had motive to kill, had acquired a second steel barrel as part of his plan to kill, and then worked to cover his tracks after the killing so that he could move on from his plan. The appellant’s statements to UC1 further support an inference that the appellant was someone who had carried out a plan to kill. There was sufficient evidence for a reasonable jury to infer that these murders were planned and deliberate.
152A final observation about this ground of appeal. Although the appellant sought directed verdicts of acquittal at trial, he does not contend on appeal that the jury’s verdicts are unreasonable or unsupported by the evidence: Criminal Code, s. 686(1)(a)(i). The latter is a more probing inquiry. Contrasting s. 686(1)(a)(i) with a directed verdict application, the court in R. v. Phillips, 2018 ONCA 651, 364 C.C.C. (3d) 220, at para. 67, said: “This determination necessarily involves assessing the evidence, not merely identifying its existence.”
153It is more often the case on appeal that an unreasonable verdict submission is made in the absence of a prior directed verdict application. A directed verdict application is not a formal pre-condition to advancing on appeal that the verdict was unreasonable: see R. v. Ali, 2023 ONCA 411, 89 C.R. (7th) 384, at para. 18. However, it would be a curious result if a conviction were set aside on appeal based on directed verdict principles concerning inferences that could be drawn when the inferences that a jury evidently did draw are not under attack as unreasonable.
154This ground of appeal is dismissed.
(7) Jury Charge on After-the-fact Conduct
155The appellant raises further errors in the trial judge’s instructions to the jury on after-the-fact conduct.
156The appellant submits that the trial judge’s charge to the jury respecting after-the-fact conduct evidence was “replete with errors and reveals a significant misunderstanding of this difficult area of law”. In particular, the appellant focusses on the trial judge’s instructions about the after-the-fact conduct evidence that the appellant cleaned up Linda’s blood by cutting out the bedroom carpet and painting the floor underneath it, and that he disposed of Linda and Cheyenne’s bodies by burning them in a steel barrel. The appellant submits that the after-the-fact conduct instructions were confusing and did not properly delineate how the after-the-fact conduct was to be considered at each stage of the jury’s deliberative process. The appellant contends that the jury could not properly have considered this evidence on the issue of the appellant’s level of culpability—at most, the after-the-fact conduct evidence was probative of manslaughter (i.e. unlawfully causing the victims’ deaths). He submits that the jury should have been told that the after-the-fact conduct had no probative value on the issues of the appellant’s intent for murder or on planning and deliberation.
157We do not accept the appellant’s claim that the trial judge’s instructions regarding after-the-fact conduct were incorrect or deficient. On the contrary, the instructions adequately explained to the jury how to use the after-the-fact conduct evidence at each stage of the deliberative process where the evidence was relevant. The after-the-fact conduct evidence, combined with other evidence, was probative on the issue of intent and on the issue of whether the murders were planned and deliberate.
158After-the-fact conduct is a type of circumstantial evidence. As with other types of circumstantial evidence, it may give rise to many inferences. The mere fact that “there may be a range of potential inferences does not render the after-the-fact conduct null”: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 112. There is no categorical rule that after-the-fact conduct evidence is irrelevant to an accused’s state of mind: Calnen, at para. 119. Rather, the potential relevance of after-the-fact conduct evidence depends on the nature of the after-the-fact conduct, the other evidence in the case, and the issues raised at trial: R. v. White, [1998] 2 S.C.R. 72, at para. 32; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 42; R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 20. As with any type of circumstantial evidence, the probative value of the after-the-fact conduct evidence is not assessed in a vacuum but alongside other evidence in the case.
159After-the-fact conduct evidence may, however, pose unique reasoning risks because it is removed in time from the events giving rise to the charges for which an accused is being tried. This evidence may lead to “imprecise reasoning and may encourage decision makers to jump to questionable conclusions.”: Calnen, at para. 116. To address the concern about the potential misuse of after-the-fact conduct evidence, jurors must be told to take alternative explanations for the evidence into account “to avoid a mistaken leap from such evidence to a conclusion of guilt”: Calnen, at para. 117. Additional limiting instructions or cautions may be necessary for after-the-fact conduct evidence that carries with it other reasoning risks such as reliance on the accused’s demeanour, lies, or, as in the appellant’s case, bad character evidence: Calnen, at para. 118.
160The trial judge gave the jury an initial general instruction about the after-the-fact conduct evidence when reviewing general principles and specific instructions relating to four issues.
161The appellant does not take issue with the trial judge’s general instruction, but it is worth noting that this initial instruction set out important limitations on how the jury could use the after-the-fact conduct evidence, including the cleanup and disposal of the bodies evidence. The jury was told: 1) it was up to them what inference(s) should be drawn from the after-the-fact conduct evidence; 2) they should be careful about inferring guilt from the after-the-fact conduct evidence because there might be other explanations for the evidence; and 3) they could use the after-the-fact conduct evidence, along with other evidence, only if they had rejected other explanations for the after-the-fact conduct. The trial judge also specifically instructed the jury that they could not consider any of the after-the-fact conduct evidence to engage in improper propensity reasoning—that is, that the appellant was the type of person who would commit the offences with which he was charged. These instructions were repeated each time the trial judge mentioned the after-the-fact conduct evidence. The trial judge did not instruct the jury that the cleanup and disposal evidence alone could give rise to an inference that the appellant unlawfully caused the deaths of Linda and Cheyenne, that he had the intent to commit the murders, and that the murders were planned and deliberate. The trial judge’s instructions, on each occasion where the after-the-fact conduct evidence was relevant, very clearly conveyed to the jury the possibility of other explanations for the after-the-fact conduct evidence and they were to consider this evidence along with all of the other evidence only if they rejected these other explanations for the after-the-fact conduct.
162The trial judge’s specific instructions on the after-the-fact conduct evidence related to the following four issues that they had to decide:
whether the appellant caused the deaths of Linda and Cheyenne;
whether the appellant caused the deaths unlawfully;
whether the appellant had the requisite intent for the murders of Linda and Cheyenne; and
whether the murders were planned and deliberate.
163While the appellant’s submissions focussed specifically on the last two issues, it is helpful to set out how the jury was instructed on each issue to appreciate the contrast in the trial judge’s instructions on how the jury should consider the after-the-fact conduct evidence on the latter two issues.
164First, on the issue of identity, the trial judge instructed the jury that they could “consider that as a matter of common sense and human experience the person who causes the death of someone is more likely to clean up the scene of the death and dispose of the body than the person who has not caused [someone’s] death”. The trial judge instructed the jury that, in deciding if the appellant was the person who caused the deaths of Linda and Cheyenne, they could use the clean up and disposal evidence, the murder plot evidence, evidence that the appellant had continued to receive child tax credit payments for 13 months after Linda’s disappearance, and evidence that he withdrew money from Cheyenne’s RESP. All of the foregoing evidence was probative on the identity issue. There was nothing incorrect about this instruction on the after-the-fact conduct evidence and the appellant does not take issue with it.
165Second, in deciding the issue of whether the appellant had unlawfully caused Linda and Cheyenne’s deaths, the trial judge instructed the jury that they could consider the cleanup and disposal evidence because “a person who causes the death of someone unlawfully is more likely to clean up the scene of the death and remove carpet and paint over that section of the floor…and then dispose of the victim’s body by burning it in a barrel than is the person who causes the death of someone that was not unlawful.” This instruction was consistent with the law and does not disclose any error: see Rodgerson, at para. 20. The evidence was probative on the issue of whether the appellant had caused the deaths of Linda and Cheyenne unlawfully.
166Third, the trial judge instructed the jury that they were permitted to consider the after-the-fact conduct evidence, along with the other pertinent evidence, to determine whether the appellant intended to kill Linda and Cheyenne. However, the trial judge further instructed the jury that they had to consider the after-the-fact conduct evidence “in a different way” than he instructed them on the previous issues. The trial judge told the jury that they could conclude that the appellant cleaned up the scene and destroyed evidence “in order to conceal the nature and extent of [Linda and Cheyenne’s] injuries and the degree of force required to inflict them.” We do not agree with the appellant’s submission that this evidence was not probative of intent. As Moldaver J. observed in Rodgerson, at para. 20, “the more severe the injuries [a victim suffers], and the more force required to inflict them, the stronger the inference that [the accused] intended to kill [the victim] or cause [them grievous bodily harm].” Justice Moldaver further noted that “[t]his is not the only inference that could be drawn from the concealment and cleanup [evidence], but it is one the jury was entitled to draw.”
167The appellant contends that concealment or destruction of a victim’s body is not probative of intent unless there is some evidence of a victim’s injuries before concealment or destruction. The law does not support this submission. As Martin J. explained in Calnen, at para. 132, other physical or forensic evidence demonstrating the nature and extent of a victim’s injuries may strengthen an inference of intent, but such evidence is not a precondition to the use of concealment or destruction evidence on the question of an accused’s intent.
168We therefore do not accept the appellant’s submission that the jury should not have been instructed to use the after-the-fact conduct evidence on the issue of intent.
169Fourth, the trial judge referred the jury to the clean up and disposal evidence on the issue of planning and deliberation and instructed them that they could consider that a person who commits a planned and deliberate murder “is more likely to clean up the scene of the death…and then dispose of the victim’s body by burning it in a barrel than is the person who murders someone or unlawfully causes their death.” The trial judge went on to tell the jury that they “will need to consider this evidence in a different way than [he] instructed [them] previously.” He told the jury that they may, but did not have to, conclude that the appellant “sought to conceal and destroy [Linda and Cheyenne’s] body by burning [them] in a barrel and cleanup the scene of their death…as part of his plan to murder them that was both planned and deliberate.” The trial judge then specifically tied the cleanup and disposal evidence to other evidence that supported an inference of planning and deliberation, which included: evidence that the appellant obtained barrels and brought them to his property before the murders; evidence about what the appellant said to UC1 about what he would do if he ever found Linda; and evidence that the appellant had been in communication with another “woman” online to whom he sent large sums of money.
170It is well established that after-the-fact conduct evidence may be relevant to planning and deliberation: R. v. McCollough, 2021 ONCA 71, 154 O.R. (3d) 171, at para. 43, leave to appeal refused, [2023] S.C.C.A. No. 195; R. v. Morin, 2021 ONCA 307, at para. 49. In this case, the after-the-fact conduct evidence, combined with the other evidence referenced by the trial judge, was probative of whether the murder of Linda and Cheyenne was planned and deliberate. We therefore do not accept the appellant’s submission that the jury should not have been instructed that they could use the after-the-fact conduct evidence alongside other evidence on the issue of planning and deliberation.
171Taken together, the trial judge’s initial general instruction on the after-the-fact conduct evidence, combined with the specific instructions on how to use the after-the-fact conduct evidence in connection with the four issues where the evidence was probative, were adequate and disclose no error.
172We therefore do not give effect to this ground of appeal.
(8) Reasonable Apprehension of Bias
173Finally, we address the appellant’s submission that the trial judge erred in refusing to recuse himself.
174Prior to the commencement of the evidentiary phase of the trial, but after the trial judge had made certain rulings, the appellant moved for a mistrial, alleging that the trial judge should recuse himself as there was a reasonable apprehension that he was biased. The premise of the motion was that the trial judge had interactions, before he was appointed to the bench, with three persons who would be witnesses at trial, Bonnie Adams, Christopher Cherewka, and Andrew Cherewka.
175As originally advanced, the motion for a mistrial asserted that: (1) the trial judge had represented the ex-spouse of Bonnie Adams and had also had a “disagreement” with her; (2) Christopher Cherewka was believed to do work for the trial judge’s brother and nephew; and (3) the trial judge was believed to have represented the complainant in a lawsuit following an accident in which Andrew Cherewka was involved.
176By the time the matter came on for argument, the appellant had withdrawn the suggestion that there was any alleged connection between the trial judge and Andrew Cherewka that warranted recusal and that Christopher Cherewka worked for family members of the trial judge. The motion proceeded on the basis that recusal was warranted because of an alleged interaction involving the trial judge and Ms. Adams and, derivative of that, because Christopher Cherewka was Ms. Adams’ current spouse.
177The interaction between the trial judge and Ms. Adams was said to have occurred in 1993, when the trial judge acted for Ms. Adams’ ex-spouse in a divorce proceeding. The trial judge is alleged to have spoken to Ms. Adams at a service club event “regarding her winning a prize in a blunt and bold manner”.
178The trial judge rejected the idea that he should recuse himself. He stated that although he had acted for Ms. Adams’ former spouse, he had no recollection of the issues between them, no access to his former client’s file, and no recollection of the incident at the service club that Ms. Adams referred to. He noted that Ms. Adams agreed that she and the trial judge had had no interaction since the 1993 incident, there was no animosity between them, and she had no concerns about the trial judge presiding over the case. The trial judge also noted that Christopher Cherewka had stated that even if Ms. Adams had been upset about the 1993 incident when it occurred, more than 25 years had passed and the trial judge was bound by an oath to do what was proper. The trial judge concluded that a “reasonable person considering the alleged bias would not conclude that I as the trial judge, whether [consciously] or unconsciously, would not decide the case fairly or on some basis other than the evidence and the law”.
179On appeal, the appellant contends that the trial judge erred in dismissing the request that he recuse himself. The appellant submits that the trial judge focussed “too much on whether, in fact, he was biased or impartial as a result of his previous dealings with these Crown witnesses, as opposed to the correct test, which views the matter from the perspective of the reasonable person, observing the events as they unfolded.”
180We do not accept the appellant’s submission.
181The trial judge identified the correct test. He cited the leading Supreme Court of Canada authorities: Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369 and R. v. S (R.D.), [1997] 3 S.C.R. 484. He accurately stated his obligation to “be and … appear to be impartial….” He correctly described apprehended bias as “anything that may [lead] the informed reasonable observer to form a reasonable apprehension that the trial judge might decide the case on some basis other than the evidence”. He appropriately noted that an “apprehension of bias must be a reasonable one held by reasonable and right minded persons … viewing the matter realistically and practically and having thought the matter through”.
182Moreover, the trial judge applied the correct test. He referred to objective factors – the lengthy period (25 years) since he had had any interaction with Ms. Adams, the capacity in which he had interacted with her (as a lawyer, long before he was appointed to the bench), her own view that there was no lingering animosity arising out of the historical interactions, the lack of concern by Ms. Adams and her current spouse, Christopher Cherewka, about the trial judge presiding in a case in which they would be witnesses, and his own oath of office. He expressed his ultimate finding that there was no reasonable apprehension of bias in terms of what a reasonable person would conclude.
183The appellant has not identified a reversible error in the trial judge’s analysis or conclusion.
184We therefore reject this ground of appeal.
E. Disposition
185The appeal is dismissed.
Released: March 9, 2026 “G.T.T.”
“Gary Trotter J.A.”
“B. Zarnett J.A.”
“M. Rahman J.A.”
Footnotes
- The Crown used the alternative term “post-offence conduct”, as did the trial judge in his ruling on the application. However, the trial judge used “after-the-fact” conduct in his final jury instructions. We have used the latter term throughout these reasons.
- Though described by the trial Crown as an admission against interest, it appears that the Crown was referring to a party admission. The appellant’s statements disclosing his knowledge of how to burn bodies was not, strictly speaking, conduct. However, these statements were so intertwined with the murder plot that it would be artificial to separate them into an independent basis of admissibility. Indeed, the trial judge treated them as part of the post-offence conduct.
- The principles regarding the use of after-the-fact conduct are dealt with in detail under the heading “Jury Charge on After-the-Fact Conduct.”
- A note on terminology is important here. The term “similar fact evidence” has been used historically to refer to any kind of bad character evidence tendered by the Crown that carried the risk of moral or reasoning prejudice. The term was used even when the probative value of the evidence did not depend on its similarity to the charged conduct. The term “other discreditable conduct” (or simply “discreditable conduct”) more accurately describes this category of evidence and has become the more common descriptor. The term “similar fact evidence” is now often confined to a subset of discreditable conduct evidence, which, when tendered to prove identity, will be probative only if it bears a striking similarity to conduct connected with the offences for which an accused is on trial. The trial Crown and the trial judge used the term similar fact evidence for this more restrictive meaning.
- The indictment references s. 235 of the Criminal Code, which is a sentencing provision, not a section that defines liability for first degree murder.
- Sazant and Jackson were concerned with committal for trial at a preliminary inquiry, pursuant to s. 548(1) of the Criminal Code. However, the same standard applies to directed verdict applications: Bains, at para. 158.