COURT OF APPEAL FOR ONTARIO
Fairburn A.C.J.O., Simmons and Trotter JJ.A.
BETWEEN
His Majesty the King
Respondent
and
David Knight
Appellant
Michael Lacy and Carol Cahill, for the appellant
Elise Nakelsky and Raoof Zamanifar, for the respondent
Heard: November 24-25, 2025
On appeal from the convictions entered by Justice Alexander Sosna of the Superior Court of Justice, sitting with a jury, on February 16, 2019.
A. introduction
1Carmela Knight was murdered in her home on September 15, 2014. Her body was dragged into the garage, which was then set on fire. The scene was staged to look like a suicide or cocaine overdose.
2At the time she was killed, Carmela was involved in acrimonious divorce proceedings with her husband, the appellant. Her lawyer had recently filed an emergency family court motion for support and exclusive possession of the matrimonial home. It was to be heard three days after Carmela was murdered.
3At the time Carmela was killed, the appellant was elsewhere. He was on the ice at a hockey practice with their two boys. Still, the appellant was an obvious suspect in Carmela’s murder; he was the only person known to have a motive to kill her. Acting on a tip, the police learned that the appellant’s friend, Graham MacDonald, had apparently done some work at the family home. The police believed that Mr. MacDonald was involved in Carmela’s death. The police targeted Mr. MacDonald in a “Mr. Big” operation. He confessed to killing Carmela and claimed that the appellant hired him to do so, with the promise of $100,000 and a job in Florida.
4The appellant and Mr. MacDonald were initially co-accused, both charged with first degree murder, conspiracy to commit murder, and arson. However, the appellant’s original trial counsel was appointed to the bench on the eve of trial. To avoid any further delay in the proceedings against Mr. MacDonald, the trials of the two men were severed. In the meantime, the Crown brought a pre-trial motion to admit Mr. MacDonald’s utterances from the Mr. Big operation at the joint trial of the two men. The motion was ultimately successful and his utterances were ruled admissible against Mr. MacDonald: R. v. MacDonald, 2018 ONSC 1846. Mr. MacDonald was subsequently found guilty of all offences after a judge alone trial: see R. v. MacDonald, 2018 ONSC 952.2 His appeal was heard at the same time as Mr. Knight’s appeal (C68800), and the reasons in that appeal are released concurrently with these reasons: R. v. MacDonald, 2026 ONCA 457.
5The appellant’s trial proceeded before a judge and jury over the course of four months. The jury heard the evidence of dozens of witnesses. The Crown called Mr. MacDonald as a witness but he refused to be sworn or affirmed, and he refused to testify. The Crown applied to admit Mr. MacDonald’s utterances obtained during the Mr. Big operation pursuant to the principled exception to the hearsay rule. The trial judge admitted the evidence: R. v. Knight, 2018 ONSC 2869. The appellant testified and denied any involvement in Carmela’s death. He was convicted of first degree murder, conspiracy to commit murder, and arson.
6The appellant appeals his convictions on numerous grounds. He challenges the trial judge’s hearsay ruling and the manner in which he instructed the jury about how to approach Mr. MacDonald’s utterances from the Mr. Big operation. The appellant also challenges other aspects of the trial judge’s instructions to the jury.
7The following reasons explain why I would dismiss the appeal.
B. factual overview
8As noted in the reasons in Mr. MacDonald’s appeal, his trial was “streamlined”. While Mr. MacDonald entered a plea of not guilty to the charges, his trial largely proceeded on an uncontested basis to preserve his appeal rights in relation to the Mr. Big ruling, in accordance with the approach in R. v. R.P., 2013 ONCA 53, 295 C.C.C. (3d) 28, leave to appeal refused, [2013] S.C.C.A. No. 133. The appellant’s trial could not have been more different. It was hard fought, and the evidence was extensive. The following provides a general account of the evidence. Necessary details are provided during the discussion of the grounds of appeal.
1. The Principal Players
9The appellant was involved in the construction industry. At the time of these events, he was attempting to buy his own construction company in Florida. The appellant’s brother, Matthew Knight, also worked in construction, sometimes with the appellant. He had a serious criminal record.
10The appellant met Mr. MacDonald through Matthew Knight. Mr. MacDonald had an extensive criminal record. The appellant testified that he hired Mr. MacDonald to do work at his house. However, it is unclear that he ever did any work. The Crown suggested that this was a fiction designed to portray a legitimate association between the two men and explain the possible presence of Mr. MacDonald’s DNA or fingerprints at the appellant’s home.
11Before the appellant’s trial, Matthew Knight pled guilty to being an accessory after-the-fact to Carmela’s murder. At his guilty plea, he agreed that the appellant told him he intended to kill Carmela, and that he knew about the plot between the appellant and Mr. MacDonald to kill her, but did nothing to prevent it. He backed away from this position at the appellant’s trial. Trial counsel for the appellant suggested to the jury that the appellant was not involved in Carmela’s murder and that Mr. MacDonald acted alone or potentially with the assistance of Matthew Knight. What is clear, however, is that Matthew Knight acted as a go-between immediately after the murder, delivering money from the appellant to Mr. MacDonald, and then driving Mr. MacDonald out of town a few days later.
12Following the murder, the conversations of all three men were intercepted and became an important part of the formidable case against the appellant.
2. The Murder of Carmela Knight
13Carmela Knight was murdered in the matrimonial home that she was seeking sole possession of in family court. A pathologist determined that she had sustained a number of blunt force injuries to her face, and that she died as a result of neck compression. Her lifeless body was dragged into the garage, soaked with gasoline, and then set on fire. Expert evidence proved that the fire had been set intentionally, by applying an open flame to combustible materials. A tourniquet was wrapped around her arm. A syringe was found nearby. Someone attempted to inject cocaine into Carmela’s arm after she was already dead. There were two plastic gas cans close to where her body was found.
3. The Marriage Breakdown
14At the time she was murdered, Carmela and the appellant had been married for about 15 years. They had two boys, aged 9 and 12. In the months leading up to the murder, the marriage was coming apart. In early 2013, Carmela discovered that the appellant was having an affair with a woman in Florida. In the summer of 2014, Carmela told her mother and friends about her marital problems and that she wanted a divorce. The appellant did not want a divorce, but he wanted sole custody of both boys. He was making plans to relocate with the boys to Florida, where he was exploring business interests.
15At least from Carmela’s perspective, the couple was also in financial trouble, with little money coming in as their debts mounted. Carmela’s plan was to sell the house and take the boys to live with her mother. It was around the same time that she told the appellant she wanted a divorce. The appellant reacted in anger and damaged a kitchen/dining room table. Around this time, he said many disparaging things about Carmela, including that she was a drug user and a bad mother who abused their boys. None of this was true. At trial he admitted telling Matthew Knight words to the effect that “[i]t would be easier if [Carmela] was dead.” He said this out of frustration.
16In May of 2012, the appellant convinced Carmela and her mother to purchase a house in Florida. Carmela’s mother advanced $120,000. The appellant arranged the purchase but only included himself on title. He refused to add Carmela and her mother on title.
17At the time of the murder, the appellant was attempting to purchase a construction business in Florida. The deal was supposed to close on September 25, 2014 and the appellant was in need of money. In a financial statement, the appellant represented that he had assets, including $850,000 in cash. This was untrue. However, the appellant and Carmela had life insurance policies on each other’s lives, initially in the amount of $350,000. Sometime after the Florida house purchase, the coverage on both parties’ lives was increased to $850,000. Also, the appellant transferred title in the Florida house to Matthew Knight.
18As noted above, an emergency family court motion was returnable on September 18, 2014, three days after Carmela was murdered. The appellant testified that he did not find out about the motion until about 90 minutes before Carmela was murdered.
19The Crown led evidence that Carmela was fearful of the appellant. She told a friend that she was afraid the appellant might kill her. She expressed her fear to a counsellor she was seeing. She told her mother and sister that she had stopped drinking smoothies because she was afraid the appellant would slip something in them. Carmela’s fears were well-founded. At one point in time, the appellant and Mr. MacDonald planned to spike Carmela’s smoothies with GHB, thinking it would cause her to fall asleep while driving to work.
20On the day of Carmela’s murder, the appellant was seen on video surveillance at a Husky gas station filling two plastic gas cans, similar in appearance to the charred remains of the two gas cans found at the scene. The appellant testified that the gas was purchased for use in his lawnmower, weed whacker, blower, chainsaw, and the boys’ dirt bikes. The appellant had recently moved some valuable items from the garage to a storage unit registered to his father. He testified that he was merely attempting to declutter the house in anticipation of selling it.
4. The Aftermath
21As noted above, following the murder, there were numerous intercepted conversations between the appellant, Matthew Knight, and Mr. MacDonald. There was also evidence the appellant made or facilitated payments to Mr. MacDonald.
22On September 17, 2014, two days after Carmela was murdered, the appellant and his mother went to a bank and withdrew $2,000. The appellant then went to Matthew Knight’s home. Matthew Knight went to the hotel where Mr. MacDonald was staying. In his Mr. Big utterances, Mr. MacDonald said Matthew Knight gave him $2,000 as partial payment for the murder. At the appellant’s trial, Matthew Knight testified that he gave the money to Mr. MacDonald, but denied knowing it was for Carmela’s murder. That same day Matthew Knight drove Mr. MacDonald to Port Hope, Ontario.
23In many of their intercepted conversations, Matthew Knight was clearly very angry with the appellant, alleging that he left him “high and dry” in Florida. During a November 6, 2014 call, he told the appellant that he had him “over a fuckin’ hay bale” and “I know everything”. At the appellant’s trial, Matthew Knight testified that he was referring to the murder when he made these threats. During a December 29, 2014 call, he threatened to call “Durham’s finest” (referring to the Durham Regional Police). He also threatened to have the appellant’s children taken away.
24In the months following Carmela’s murder, the appellant had passport issues while making plans to relocate to Florida with his sons. The police seized his passport when they searched the home of Matthew Knight’s wife (a place where the appellant stayed just before the murder). In October of 2014, the appellant applied for a new passport, claiming that his old passport had been “lost”. He was issued a new passport.
25On December 8, 2014, the appellant received a letter from the Passport Program Integrity Branch of Citizenship and Immigration Canada, directing him to surrender his passport by December 18, 2014, based on the false information in his application (i.e., claiming that his passport had been lost when it had actually been seized by the police). When this happened, the appellant had already booked commercial flights to Florida for the boys and his parents for December 14, 2014.
26The appellant then made inquiries about booking a private flight and whether passport requirements were less strict in these circumstances. He booked a private flight for himself and the family dog, set to depart on December 13, 2014. The appellant testified that he wanted to get to Florida with the dog prior to the arrival of the boys. He claimed that commercial flights would not accommodate dogs during the Christmas season. As the appellant was preparing to board this private flight, the police attended and seized his passport as the plane waited on the tarmac. He did not fly that night.
27The police also intercepted a conversation between the appellant and his parents in which he talked about the possibility of obtaining a British passport. He hired an agency to assist him with this process, but it never came to fruition.
5. The Mr. Big Operation and Mr. MacDonald’s Utterances
28Mr. MacDonald was befriended by an undercover officer (“UCO”) known as “Rob”. Over the course of three months, Mr. MacDonald assisted Rob in fictitious sales of stolen property and the two became good friends. Rob then introduced Mr. MacDonald to another UCO called “Uncle Dan”, whom Rob described as a mentor figure, and a third UCO called “James”, whom Rob fictitiously advised was terminally ill. Rob told Mr. MacDonald that Uncle Dan had previously gotten him out of trouble with the law.
29At this point, Mr. MacDonald knew he was a suspect in Carmela’s murder. He sought Uncle Dan’s help in extricating himself from police suspicion. The plan was that James (purportedly dying of cancer) would swear a posthumous statutory declaration that he had killed Carmela, in exchange for money that would go to James’ family. But for the statutory declaration to be convincing, Uncle Dan told Mr. MacDonald that he needed to provide a detailed account of the murder and arson. In this context, Mr. MacDonald confessed to Rob and Uncle Dan that he murdered Carmela, and that he planned the murder with the appellant in exchange for $100,000 and a job in Florida. Mr. MacDonald told the UCOs that he had only been paid a little over $2,000 and that the appellant had disappeared after the murder. Uncle Dan offered to help locate the appellant and coordinate meetings between the two men to facilitate his outstanding payment.
30In the concurrently-released reasons in Mr. MacDonald’s appeal, I set out in great detail the utterances he made during the Mr. Big operation. Mr. MacDonald said that the appellant let him into the house on the day of the murder. He waited until Carmela came home from work. He attacked her from behind, kicking her and eventually choking her to death with a ratchet strap. He dragged her to the garage and attempted to inject cocaine into her arm. He then set the garage on fire. He told the UCOs that he and the appellant had discussed killing Carmela for a couple of months.
6. Post-Murder Discussions between the Appellant and Mr. MacDonald
31As part of the Mr. Big operation, several meetings were set up between the appellant and Mr. MacDonald, each occurring under police surveillance.
32On February 16, 2015, Mr. MacDonald met the appellant and his father at The Frog and Firkin pub. They spoke privately outside the bar and Mr. MacDonald asked the appellant for money. The appellant asked Mr. MacDonald if he was wearing a wire. The appellant told him to keep his mouth shut.
33The appellant and Mr. MacDonald met at the same pub on February 19, 2015. Earlier that day, the appellant had withdrawn over $6,350 from the bank. When Mr. MacDonald left the meeting, he showed the UCOs an envelope containing $5,000. Mr. MacDonald told the UCOs that the appellant told him to take the envelope from the appellant’s jacket pocket. He claimed that, at this same meeting, they planned to meet again so that the appellant could give Mr. MacDonald Carmela’s rosary. The rosary was to be given to James to bolster the story that he killed Carmela and took it from her at the time.
34In an intercepted telephone call on February 20, 2015, the appellant told Mr. MacDonald he “found that tool” that Mr. MacDonald was looking for. Later that day, the appellant and Mr. MacDonald met at St. Louis Bar & Grill. Mr. MacDonald claimed that the appellant gave him Carmela’s rosary, which he then handed over to the UCOs. This was important evidence relied on by the Crown to implicate the appellant in Carmela’s murder.
35Lastly, during an intercepted telephone call on February 24, 2015, the appellant asked Mr. MacDonald how the “tools” worked out for him. The Crown relied on this and the appellant’s February 20, 2015 statement as coded references to Carmela’s rosary.
36At trial, the appellant testified to a different version of the events of February 19 and 20, 2015. He said he had his own rosary in his jacket pocket along with the envelope containing $5,000 when he met Mr. MacDonald on February 19, 2015. The $5,000 was for his lawyer’s retainer. Mr. MacDonald must have taken both when the appellant went to the washroom. The appellant later confronted Mr. MacDonald about doing so.
7. Other Circumstantial Evidence
37Extensive evidence was called to prove the association between the appellant and Mr. MacDonald leading up to the murder.
38On September 11, 2014, the appellant was seen in his car at a drive-thru ATM. He withdrew $300 and passed it to his passenger. The identity of the passenger was not readily apparent from the video. The Crown contended that it was Mr. MacDonald. The appellant testified that it was Matthew Knight. However, this could not be true because his brother had tattoos on his arm which the passenger captured in the video did not. Ultimately, the appellant testified that he did not know the identity of the passenger to whom he gave $300 that day.
39There was extensive evidence concerning cellphone contact between the appellant and Mr. MacDonald, from July 18 to September 15, 2014, the day Carmela was murdered.
40In the lead-up to the murder, on September 5, 2014, the appellant transferred $300 to Mr. MacDonald. That day, Mr. MacDonald paid $282 for two burner (or pay-as-you-go) phones. He listed the address for one of the phones as “123 Fake St”. Mr. MacDonald used one of these phones to connect with the appellant on his known phones, starting on September 7, 2014, when the appellant was in Florida. Mr. MacDonald also used his burner phone to communicate with the appellant’s known number in Florida on 19 occasions during this period.
41The appellant and Matthew Knight returned from Florida on September 10, 2014, a few days before the murder. They met up with Mr. MacDonald that night. Video surveillance captured Mr. MacDonald passing an object to the appellant, which he put in his pocket. The trial judge found it was one of the burner phones. The appellant testified that he loaned Mr. MacDonald $300 so that he could buy a new phone. He did not know that Mr. MacDonald bought two phones. He came into possession of the burner phone when he hired Mr. MacDonald to do landscaping work at the house, which was apparently never done. He said that he accepted the phone because it allowed him to communicate with Mr. MacDonald on his burner phone for free.
42From September 11 to 15, 2014, the two burner phones were in communication 36 times. On the day of the murder, the two phones were in contact 16 times, both before and after the murder.
43Earlier in the day that Carmela was murdered, the appellant and Mr. MacDonald were caught on video at a Petro-Canada gas station, at 2:17 p.m. This was a different gas station than the appellant used to fill his gas cans.
44In his utterances during the Mr. Big operation, Mr. MacDonald said that the two men went to the appellant’s house that afternoon. The two burner phones struck a cell tower near the house at 3:17 p.m. Mr. MacDonald said that he hid in the basement when the appellant’s boys came home. The appellant drove his sons to a McDonald’s restaurant shortly after 3:30 p.m. and then to an arena in North York, where they had hockey practice, starting at 6:30 p.m.
45In the meantime, the home security system detected movement in the house between 4:03 and 4:34 p.m. when no family member was home. During this time, there were three calls between the burner phones, with Mr. MacDonald’s phone striking the cell tower near the appellant’s house. Carmela arrived home from work shortly after 5:00 p.m. At 6:23 p.m., the appellant’s burner phone contacted Mr. MacDonald’s and they spoke for over four and a half minutes. Again, Mr. MacDonald’s phone struck the cell tower near the house. There was another call between the phones at 7:40 p.m. for three and a half minutes. Video evidence from the hockey arena showed the appellant on the ice and talking on the phone. The appellant said they were talking about work to be done at the house.
46The home security system revealed that someone left the house through the side door at 7:49 p.m., two minutes before a neighbour called 911. This was consistent with Mr. MacDonald’s evidence that he narrowly escaped from the fire he set by going through the side door. At 7:54 p.m., the appellant’s burner phone contacted Mr. MacDonald’s phone and they spoke for 21 seconds. The appellant was still on the ice, and Mr. MacDonald’s phone was still close to the house. At 7:59 p.m., the appellant’s burner phone contacted Mr. MacDonald’s phone for the last time. The call lasted 16 seconds. Mr. MacDonald told the UCOs that he destroyed his burner phone right afterwards.
C. issues on appeal
1. Mr. MacDonald’s Utterances were Admissible
a. Introduction
47Mr. MacDonald’s Mr. Big statements were at the heart of the Crown’s case. When he was brought to court to testify at the appellant’s trial, in the most profane language, directed at many people in the courtroom, including the trial judge, Mr. MacDonald refused to be sworn or affirmed, and he refused to provide evidence. This played out dramatically in front of the jury.
48As a result of Mr. MacDonald’s refusal to testify, the Crown applied to admit his utterances made to the UCOs based on the principled exception to the hearsay rule: see R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, and R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865. The trial judge admitted the utterances on this basis.
49The appellant submits that the trial judge erred in admitting these utterances. While conceding that Mr. MacDonald’s refusal to testify satisfied the necessity requirement of the principled approach to hearsay, the appellant submits that the trial judge’s assessment of threshold reliability was flawed. First, the trial judge failed to consider alternative explanations for why Mr. MacDonald would implicate the appellant, other than truthfulness. Second, the trial judge failed to look for evidence that corroborated the material aspects of Mr. MacDonald’s utterances (i.e., the appellant’s involvement in the offences). Instead, the trial judge relied on evidence that supported the general truthfulness of Mr. MacDonald’s utterances or generally corroborated his credibility, which was insufficient in the circumstances because it only corroborated Mr. MacDonald’s involvement in killing Carmela.
50As I will explain, the trial judge did not err in his threshold reliability analysis.
b. The Trial Judge’s Hearsay Ruling
51The appellant does not submit that the trial judge erred in his articulation of the principles applicable to assessing threshold reliability. At the outset of his decision, the trial judge referred to the foundational principles established in Khelawon and Bradshaw.
52The trial judge noted the two principal objections to admissibility advanced at the hearsay application: (a) there was an absence of evidence that corroborated the material aspects of Mr. MacDonald’s utterances that related to the appellant’s participation; and (b) because of inconsistencies and falsehoods in Mr. MacDonald’s statements, the absence of the ability to cross-examine Mr. MacDonald undermined trial fairness and the integrity of its truth-seeking function.
53Turning to the issue of procedural reliability, the leading cases recognize that lack of contemporaneous cross-examination may be mitigated if the statements are video-recorded, accompanied by an oath or affirmation, and/or a warning to the witness about the consequences of lying: Khelawon, at para. 63; Bradshaw, at para. 28. The trial judge recognized that, in this case, the only potential substitutes for cross-examination were the audio recordings of Mr. MacDonald’s statements during the Mr. Big operation.
54Turning to substantive reliability, the trial judge said: “In determining whether the statement is inherently trustworthy, the trial judge is to consider the circumstances in which the statement was made and evidence, if any, that corroborates or conflicts with the statement.” The trial judge engaged in a detailed evaluation of the circumstances in which the statements were made.
55The trial judge summarized the evidence of the Mr. Big operation. In particular, he referred to Mr. MacDonald’s utterances to Rob and then Uncle Dan in the fishing hut when Mr. MacDonald told them that he killed Carmela, how he did it, and that he set her on fire in an attempt to cover it up. He said the appellant hired him to commit the murder with the promise of $100,000 and a job in Florida. However, the appellant vanished without paying him. Mr. MacDonald said that he and the appellant had been talking about killing Carmela for a couple of months before he did it. The trial judge also described the subsequent meetings between the appellant and Mr. MacDonald, as well as the information shared during the murder scene visit when Mr. MacDonald explained in more detail what happened that night.
56The trial judge compared the circumstances in which Mr. MacDonald made his utterances to the scenario in Bradshaw, a case involving the murder of two individuals. There was also a Mr. Big operation in that case. Like this case, the target of the investigation in Bradshaw was not the accused on trial at the time. The target was another person of interest, Mr. Thielen.
57During that Mr. Big operation, Mr. Thielen initially told the police that he had shot both victims. This story later changed when he said that he killed one victim and Mr. Bradshaw killed the other. After he was arrested, Mr. Thielen told the police that he and Mr. Bradshaw were involved in both murders. Mr. Thielen participated in a re-enactment with the police that was video-recorded over the course of six hours. Mr. Thielen then refused to testify at Mr. Bradshaw’s trial. The trial judge admitted the re-enactment video (i.e., the hearsay statement) and Mr. Bradshaw was found guilty of both murders. The British Columbia Court of Appeal held that the trial judge erred in admitting the evidence, allowed the appeal, and ordered a new trial: 2015 BCCA 195, 323 C.C.C. (3d) 475.
58The Supreme Court of Canada dismissed the appeal. The Court held that, because Mr. Thielen gave inconsistent accounts of his participation in the murders and the trier of fact could not adequately test the trustworthiness of his statement, the re-enactment video implicating Mr. Bradshaw was inadmissible. This was because, after his arrest, he had a motive to lie – deflecting responsibility away from himself and onto Mr. Bradshaw. Drawing a distinction in this case, the trial judge said the following in his hearsay ruling:
While Thielen’s hearsay re-enactment was made post-arrest to individuals Thielen knew were police officers, MacDonald’s statements were provided to individuals who MacDonald believed to be his “friends”. The present Mr. Big operation was structured to have MacDonald believe his “friends” could help him be exculpated from Carmela’s murder. To get the help sought, MacDonald was encouraged to tell the truth. In doing so, he also implicated Knight in Carmela’s murder. Unlike Thielen, there was no incentive for MacDonald to shift blame and falsely implicate Knight in the murder and arson in order to exculpate himself. [Emphasis added.]
The trial judge found the circumstances surrounding Mr. MacDonald’s statements to be “compelling”. He said, “I find these circumstances, subject to review of the corroborative evidence to follow, render MacDonald’s hearsay statements inherently reliable.”
59Turning to corroboration, the trial judge accurately summarized the four-part framework set out by Karakatsanis J. in Bradshaw, at para. 57:
In sum, to determine whether corroborative evidence is of assistance in the substantive reliability inquiry, a trial judge should
identify the material aspects of the hearsay statement that are tendered for their truth;
identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;
based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and
determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.
60Applying Step 1, the trial judge identified the material aspects of Mr. MacDonald’s hearsay statements as: (a) the appellant hired Mr. MacDonald and conspired with him to murder Carmela; and (b) the murder was planned and deliberate, specifically a contract killing.
61With respect to Step 2, the trial judge found that the potential hearsay dangers presented by Mr. MacDonald’s utterances fell into four categories: accuracy, perception, memory, and sincerity. The trial judge was not concerned with the accuracy of the statements because they were audio-recorded and the accuracy of the recordings was not at issue. The trial judge was also aware of Mr. MacDonald’s drug use and considered whether it impacted his memory and perception of the events described in his utterances. At times during the Mr. Big operation, Mr. MacDonald mentioned his drug use. UCO Rob and Mr. MacDonald would consume beers at local bars. But the trial judge found there was “no evidence that MacDonald’s use of drugs and/or alcohol affected his perception or memory of events as reported by him.” He noted that Mr. MacDonald’s version of killing Carmela was confirmed by the pathologist and the fire investigator.
62Dealing with sincerity, the trial judge said: “the hearsay danger is that MacDonald lied during the undercover operation when he implicated Knight in Carmela’s murder.” The trial judge characterized Mr. MacDonald as a Vetrovec witness because of his “lengthy criminal record and criminal lifestyle involving violence and drugs”: see Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811. He acknowledged Karakatsanis J.’s statement in Bradshaw that establishing the trustworthiness of such a witness will be “extremely challenging” because the hallmark of a Vetrovec witness is that they “cannot be trusted to tell the truth, even under oath”: at para. 69.
63Step 3 required the trial judge to focus on alternative explanations for Mr. MacDonald’s statements. While he observed that Karakatsanis J. did not define the term “alternative, even speculative, explanations”, he found the Supreme Court in Bradshaw “to mean that the explanations, although speculative, cannot be boundless, but grounded in the circumstances of the offence and based on reason and common sense.” The trial judge considered the two alternative explanations offered by defence counsel: (a) Mr. MacDonald had animus towards the appellant and wished to falsely implicate him in Carmela’s murder and related arson; and (b) Mr. MacDonald lied to impress the UCOs.
64The trial judge found no evidence of animus. He detailed the evidence demonstrating that, prior to the murder, the appellant and Mr. MacDonald were on friendly terms, socialized with each other, and were in frequent contact, including when the appellant was in Florida.
65Similarly, the trial judge found no evidence that Mr. MacDonald was lying to try to impress the UCOs. The trial judge found that Mr. MacDonald falsely believed he was good friends with Rob and that there was no need to confess anything to Rob “to validate and continue his friendship” with him. He found that Mr. MacDonald’s motivation to confess was self-serving: he confessed to extricate himself from being held responsible for Carmela’s murder. The trial judge noted that there was no evidence of an offer or a quid pro quo for Mr. MacDonald to admit to a crime in order to gain membership in a criminal organization, or to advance his interests with anyone.
66Lastly, Step 4 considers whether corroborative evidence eliminates alternative explanations for the statements. The trial judge identified numerous items of evidence that he found corroborated those aspects of Mr. MacDonald’s account that implicated the appellant in Carmela’s murder:
Family court documents: Family court documents confirm Carmela’s emergency motion for support and exclusive possession of the matrimonial home was to be heard three days after her murder. This corroborated Mr. MacDonald’s statements that the appellant was having financial problems related to his divorce and he wanted Carmela murdered soon.
Home security: Rogers home security records confirm that there was movement inside the home on the day of the murder, even though no family members were home, corroborating Mr. MacDonald’s statements that he waited alone in the house for Carmela.
The appellant dropped Mr. MacDonald off: On the afternoon of the murder, the appellant was captured on surveillance video at a gas station with Mr. MacDonald in the front seat of the appellant’s car. A witness saw the car in the driveway of the appellant’s residence later that afternoon, corroborating Mr. MacDonald’s statement that the appellant drove him to the family home that day.
Mr. MacDonald hired to do interior work, but no work was done: Various witnesses testified that the appellant told them he had hired Mr. MacDonald to do some interior work on the family home, but video evidence showed no such work was done that summer. This corroborated Mr. MacDonald’s statement that, as part of their plan, the appellant would tell people that Mr. MacDonald was doing work on the family home in order to explain any DNA or fingerprint evidence that might be discovered by the police.
Carmela’s milkshakes/smoothies: There was independent evidence that Carmela stopped drinking her morning milkshakes/smoothies because she was afraid the appellant was spiking them. This corroborated Mr. MacDonald’s statements that he and the appellant initially planned to do just that, but they abandoned the plan when she stopped drinking the shakes.
The appellant’s payments to Mr. MacDonald: The appellant’s bank records show e-transfers to Mr. MacDonald, and surveillance video shows him physically handing cash to Mr. MacDonald, both in the days leading up to the murder. This corroborated Mr. MacDonald’s evidence that the appellant provided him with the funds to carry out the murder.
Burner phones: The burner phone evidence, described above, supported Mr. MacDonald’s narrative of events.
Telephone records on the day of the murder: The call detail records between the two phones show that there were 10 calls that day.3 The appellant was observed at his son’s hockey practice talking on a cellphone while on the ice, but his personal cellphone was not in use. Further, one of the burner phones was hitting off a tower near the hockey practice at this time, while the other was hitting off a tower near the family home. This corroborated Mr. MacDonald’s statements that he and the appellant communicated using the burner phones on the day of the murder. Telephone records also confirm no further contact between the burner phones after the garage was set on fire. This corroborated Mr. MacDonald’s statements that he destroyed his burner phone after he escaped from the burning garage.
Matthew Knight paid Mr. MacDonald $2,000: Matthew Knight testified that he paid Mr. MacDonald $2,000 days after the murder, and that the only person he knew with that amount of cash was the appellant. This corroborated Mr. MacDonald’s evidence that the appellant paid him $2,000.
Post-murder meetings: During the undercover operation, the appellant and Mr. MacDonald met at a restaurant. Mr. MacDonald was seeking payment for the outstanding $98,000. A conversation was recorded in which the appellant asked Mr. MacDonald if he was wearing a wire, and told him to keep his mouth shut. At another meeting a few days later, Mr. MacDonald returned to an undercover police vehicle and advised that the appellant had just paid him $6,000 in cash. Mr. MacDonald produced an envelope containing $5,000. Bank records showed that the appellant had withdrawn approximately $6,000 in cash earlier that day. An audio recording of a meeting between the two the following day confirmed Mr. MacDonald’s statement to police that the appellant gave him Carmela’s rosary for the purpose of bolstering James’ false confession to the murder.
Use of certain code words: After this meeting, the appellant asked Mr. MacDonald in an intercepted wiretap call how the “tools” had worked out for him. This corroborated Mr. MacDonald’s statement to police that he and the appellant used code words like “tools” when referring to items relating to the murder.
The appellant filled up gas cans: Video surveillance shows the appellant filling up two gas cans with approximately 50 litres of gasoline on the day of the murder. This corroborated Mr. MacDonald’s statements to Uncle Dan that when he arrived at the family home two gas cans filled with gasoline were in the garage.
67The trial judge also considered Mr. MacDonald’s conflicting statements. When he was interviewed by the police prior to the Mr. Big operation, Mr. MacDonald claimed to know nothing about the murder or the fire. At the inception of the Mr. Big operation, he made similar denials. However, as the trial judge observed, thereafter Mr. MacDonald was generally consistent in his story to the UCOs that the appellant hired him to kill Carmela. The trial judge found that, early on in the Mr. Big operation, Mr. MacDonald had a motive to lie to Rob – he was talking to someone he did not know, let alone trust, at the time. However, that motive seemingly dissolved once he came to trust Rob and Uncle Dan.
68The other item of conflicting evidence relied on by the appellant was a letter that Mr. MacDonald wrote to the Crown on May 14, 2015 (the so-called “White Shirt Letter”)4, in which he minimized his own involvement and attempted to exculpate the appellant. Essentially, Mr. MacDonald wrote that Carmela died during a botched robbery in her home when she fell over and hit her head. The trial judge found that this account was contradicted by the evidence of the pathologist, who testified that Carmela died from neck compression and sustained multiple blunt force impact facial injuries caused by blows to the face. Mr. MacDonald also said the fire was accidentally set when he knocked over a gas can while smoking a joint after Carmela was dead. This too, as well as other aspects of the May 14, 2015 letter, were contradicted by reliable evidence. The trial judge further observed that, when Mr. MacDonald wrote his letter, he had already been charged with first degree murder, conspiracy to commit murder, and arson. Thus, the letter was self-serving because it described an “accidental death”.
69After weighing the evidence summarized above, the trial judge made the following finding on Step 4 and expressed his ultimate conclusion on the hearsay application:
In conclusion, the presence of trustworthy independent evidence corroborates MacDonald’s hearsay statements implicating Knight in Carmela’s murder and related arson. When the corroborative evidence is considered as a whole and in the circumstances of the case, I find that the only likely explanation for the hearsay statements is MacDonald’s truthfulness about their material aspects. In these circumstances, contemporaneous cross-examination of MacDonald, as argued by Knight, would add little to the truth-finding process at trial.
As the foregoing reasons indicate, Bradshaw is distinguishable from the case at bar. Thielen provided the impugned statements after his arrest. The majority found that Thielen had a motive to lie to the police in order to shift blame to Bradshaw. In contrast, MacDonald’s statements were provided in the course of a Mr. Big operation in circumstances in which he had no discernible motive to falsely implicate Knight and himself in the murder and arson.
Given the circumstances in which MacDonald’s hearsay statements were provided, the significant corroborative evidence, and the implausibility of other possible explanations for the hearsay statements implicating Knight in Carmela’s murder, the Crown has established threshold reliability rendering the statements admissible at trial.
c. Discussion
70Although the admissibility of hearsay evidence is a question of law, a trial judge’s factual findings underlying that determination are entitled to deference on appeal. Trial judges are also “well placed to assess the hearsay dangers in a particular case and the effectiveness of any safeguards to assist in overcoming them”: R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 31. See also R. v. Charles, 2024 SCC 29, 496 D.L.R. (4th) 581, at para. 41. Thus, absent an error in principle, a trial judge’s determination of threshold reliability is entitled to deference: R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 81; Youvarajah, at para. 31.
71The appellant identifies no legal error in the trial judge’s reasons for admitting the evidence. Indeed, the trial judge’s reasons demonstrate careful adherence to the principles in Bradshaw.
72The appellant alleges various errors with the trial judge’s analysis on both procedural reliability and substantive reliability. I begin with his arguments on procedural reliability. The appellant’s challenge to the trial judge’s analysis of procedural reliability falls short for two reasons. First, while the appellant’s oral submissions largely focused on substantive reliability, the appellant contends in written submissions that the circumstances of Mr. MacDonald’s statements did not meet the threshold requirement for procedural reliability because: he had a motive to fabricate and falsely implicate the appellant in the murder; he demonstrated a pattern of falsehoods and inconsistent statements; and there was no incentive for him to be truthful about the purported involvement of others in the murder. But these are not issues of procedural reliability. The trial judge correctly addressed these concerns in his substantive reliability analysis.
73Procedural reliability asks whether there are “adequate substitutes for testing the evidence” which provide a satisfactory basis for the trier of fact to rationally evaluate the accuracy and truth of the hearsay statement: Bradshaw, at para. 28. The trial judge found that accuracy was not at issue because the statements were recorded. With respect to truth, he recognized that, beyond the audio recordings, there were “no other procedural safeguards to render the statements admissible. There was no oath or affirmation administered to MacDonald, no explanation given to him for the consequences of providing a false statement, and there was no opportunity for contemporaneous cross-examination.”
74The remainder of the trial judge’s reasons focus on whether there were sufficient circumstantial or evidentiary guarantees that the statements were inherently trustworthy. This is the domain of substantive reliability: Bradshaw, at para. 27.
75Second, in challenging the judge’s procedural reliability analysis, the appellant submits that the circumstances under which the statements were made could not, “as a matter of law”, meet the threshold reliability requirement. But this submission is grounded in complaints about the trial judge’s factual findings.
76When discussing Mr. MacDonald’s “inherent untrustworthiness”, the appellant submits that Mr. MacDonald was a “drug addict and alcoholic”. As outlined above, however, the trial judge already considered Mr. MacDonald’s substance abuse in his identification of relevant hearsay dangers. He concluded that, despite Mr. MacDonald’s use of drugs and alcohol, his memory and perception of events was neither compromised nor affected. This was a factual finding.
77The appellant submits that, given that Mr. MacDonald was a “prototypical Vetrovec witness”, the trial judge failed to explain why he could be trusted to be honest about the appellant’s involvement in the murder. He points to the comments of Karakatsanis J. in Bradshaw, in which she writes that “establishing that hearsay evidence from a Vetrovec witness is inherently trustworthy will be extremely difficult”: at para. 69. However, the trial judge quoted this same passage and acknowledged this difficulty by expressly noting that sincerity was the main hearsay danger at issue. He then explained, in great detail, why the circumstances of this case – the factual context – led him to conclude that the statements were inherently trustworthy.
78The appellant further submits that the trial judge erred in not finding that Mr. MacDonald had a motive to falsely implicate the appellant in Carmela’s murder. Again, this is a factual finding. The trial judge explained why he was not prepared to impute this motive to Mr. MacDonald. At the time, when he was speaking to people he thought were friends, there would be no point in implicating the appellant in the murders. The trial judge convincingly distinguished Bradshaw on this basis, in which the hearsay declarant implicated Mr. Bradshaw after he had been arrested and charged. This same distinction was relied upon in R. v. Larue, 2018 YKCA 9, 434 D.L.R. (4th) 155, at para. 104, aff’d 2019 SCC 25, [2019] 2 S.C.R. 398, a case that also shares many factual similarities with this case.
79The appellant also argues that the trial judge erred in his analysis on substantive reliability. He submits that the trial judge erred in not considering other speculative motivations that Mr. MacDonald may have acted upon, beyond attempting to impress the UCOs by portraying himself as a more serious criminal than he actually was, or trying to cover up an embarrassing botched robbery gone awry. During oral argument, Mr. Lacy for the appellant suggested other reasons why Mr. MacDonald may have been motivated to lie, such as portraying himself as someone who helped a friend solve a problem, thereby claiming some moral justification for his acts.
80It is important to take into consideration that these examples were not urged upon the trial judge at the hearsay application. Moreover, the contents of Mr. MacDonald’s statements undermine the submission that he may have been attempting to impress Rob and Uncle Dan by exaggerating his deftness as a criminal. Mr. MacDonald seemed to acknowledge that the murder and attempted cover-up was “sloppy”. He admitted to the UCOs that his work was not “scott clean”. He said, “I thought I did an okay job”. This is hardly the language of someone trying to impress.
81When considering the submissions of trial counsel concerning speculative theories, the trial judge referred to Bradshaw and said: “I find the court to mean that the explanations, although speculative, cannot be boundless, but grounded in the circumstances of the offence and based on reason and common sense.” The wisdom of this approach is reflected in this court’s subsequent decision in R. v. McMorris, 2020 ONCA 844, 398 C.C.C. (3d) 179, leave to appeal refused, [2022] S.C.C.A. No. 435, in which Lauwers J.A. said, at para. 34:
Any speculative explanation, in short, must be plausible on a balance of probabilities and any speculative explanation that does not survive such scrutiny is to be rejected.… In other words, not just any speculative explanation or fanciful idea suffices to abort the threshold reliability analysis – only those that are, on reflection, reasonably plausible.
82I also note, as an aside, that the alternative explanations advanced in this case are stock examples often seen in more classic Mr. Big scenarios, which involve a criminal organization portrayed as being involved in serious crime. But, as the trial judge mentioned in his Mr. Big ruling, this was a “significantly modified version” of a Mr. Big operation. It was a highly watered-down example. Mr. MacDonald was not exposed to any violence. There was only vague discussion about Uncle Dan having helped Rob in relation to a fictitious body found in the Niagara River. The manner in which Uncle Dan assisted James, and for what, was left unclear. There was no defined criminal organization as such, although Rob, Uncle Dan, and James were portrayed as people involved in the criminal lifestyle. Looked at realistically, Mr. MacDonald did not want to “join” anything; he just wanted help.
83I find no error in the trial judge’s failure to accept the appellant’s alternate explanations for the statements that Mr. MacDonald made.
84The appellant’s principal submission on substantive reliability is that the trial judge wrongly relied on some of the items or areas of evidence listed in para. 66, above, as being corroborative of the appellant’s involvement in Carmela’s murder.
85I accept that some of the items the trial judge relied upon, while corroborative of Mr. MacDonald’s involvement in Carmela’s murder, did not confirm Mr. MacDonald’s statements implicating the appellant. For example, the Rogers security evidence, standing alone, demonstrated that Mr. MacDonald was in the home when no other family members were there, but it does not alone speak to the appellant’s culpability. However, when the Rogers evidence is combined with other evidence, including the sighting of the appellant and Mr. MacDonald together earlier in the day, and the cellphone records, it confirmed Mr. MacDonald’s evidence that it was the appellant who let him into the house and left him there alone to execute their plan to kill Carmela.
86The vast majority of the corroborative evidence relied upon by the trial judge confirmed Mr. MacDonald’s account of the murder and the appellant’s involvement, including: the appellant paying Mr. MacDonald after the murder; the history and pattern of calls on the burner phones; video evidence of the appellant at his sons’ hockey practice, in combination with the burner phone evidence; and surveillance evidence showing the appellant and Mr. MacDonald together in the appellant’s car on the day Carmela was killed. Even taking out the few items of evidence that were not valuable for the specific corroborative purpose required in the circumstances, together, the remaining items of evidence that are connected to the material aspects of the hearsay statements convincingly confirm the appellant’s involvement, and rule out any alternative explanations other than that Mr. MacDonald was telling the truth when he said he killed Carmela for money at the appellant’s behest. This powerful corroboration, combined with the circumstances in which Mr. MacDonald’s hearsay statements were made – in particular, the absence of any real motive to lie with respect to the appellant’s involvement – establish substantive reliability and render the hearsay statements admissible.
87A similar situation is demonstrated in Larue. A majority of the Yukon Court of Appeal held that the trial judge was correct to admit hearsay evidence arising from a Mr. Big operation offered at the trial of another individual. The majority found that some of the purported corroborative evidence relied upon by the trial judge in his threshold admissibility analysis missed the mark, in the same way that the appellant advances on this appeal. Nonetheless, in her majority reasons, Dickson J.A. held that, despite the trial judge’s mischaracterization of this evidence, there was “trustworthy extrinsic evidence that, considered as a whole and in the circumstances, amounted to powerful corroboration of material aspects of the disputed hearsay” evidence offered by the declarant, who was also a Vetrovec witness: at para. 118. Dickson J.A. wrote that it was not “necessary for a particular item of corroborative evidence to be considered in isolation”: at para. 119. Bennett J.A., dissenting, held that the hearsay statements should not have been admitted. She would have allowed the appeal. On appeal to the Supreme Court of Canada, the majority of the panel dismissed the appeal “largely for the reasons of Dickson J.A.”: 2019 SCC 25, [2019] 2 S.C.R. 398, at para. 1.
88I would not give effect to this ground of appeal. Mr. MacDonald’s hearsay utterances were admissible.
2. No Error in the Trial Judge’s Instructions to the Jury on Mr. MacDonald’s Utterances
a. Introduction
89The appellant submits that, even if the hearsay evidence of Mr. MacDonald was properly admitted, the trial judge’s instructions to the jury were insufficient to guard against the dangers of his statements. First, his statements were obtained through a Mr. Big operation. Second, Mr. MacDonald was an unsavoury witness, whose evidence had to be approached with caution. Third, Mr. MacDonald’s evidence was before the jury in hearsay form, insulated from cross-examination. In these circumstances, the appellant submits that the jury should have been given an “enhanced Vetrovec caution”, warning the jury to look for corroboration of those parts of Mr. MacDonald’s evidence that implicated the appellant.
90The respondent submits that the trial judge’s instructions were adequate and sufficiently equipped the jury with the tools to assess Mr. MacDonald’s evidence. There was no need for an “enhanced Vetrovec caution”.
91As I will explain, the trial judge’s instructions were sufficient. The jury was repeatedly warned about the dangers of relying on Mr. MacDonald’s evidence to convict the appellant. He was not asked to deliver the instruction now requested on appeal.
92Although the appellant styles his request as an “enhanced Vetrovec caution”, it is essentially a request for the jury to be given a threshold reliability instruction, along the lines of Bradshaw. There is no existing legal foundation for this approach; it would distort the fundamental differences between threshold and ultimate reliability, the former of which is a more focused inquiry being solely the province of the trial judge. Ultimate reliability, a matter for the trier of fact, entails a broader inquiry, drawing on the evidence at trial in its entirety.
b. Discussion of the Relevant Principles
93Hearsay evidence and Mr. Big confessions are presumptively inadmissible: Bradshaw, at para. 1; Khelawon, at para. 48; R. v. Saddleback, 2026 SCC 18, at para. 20; R. v. Lako, 2025 ONCA 284, 176 O.R. (3d) 321, at para. 43; and R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at paras. 10, 85. In both cases, the trial judge must determine whether the pre-conditions for admissibility have been established on a voir dire.
94The evidence of an unsavoury witness stands on a different footing. The evidence of an unsavoury witness, if relevant, is presumptively admissible. There is no inquiry conducted on a voir dire into the existence of confirmatory evidence. Indeed, while it will often be known ahead of time, sometimes it may not become apparent that a person is an unsavoury witness until they testify. Thus, there is no mandatory pre-screening process for Vetrovec witnesses, although there may be the need for cautionary instructions to a jury (or cautionary self-instructions in judge alone trials).
95It is accepted that trial judges enjoy considerable discretion in charging juries on unsavoury witnesses. This was recognized in Vetrovec, and in subsequent decisions: R. v. Bevan, 1993 CanLII 101 (SCC), [1993] 2 S.C.R. 599, at pp. 611-14; R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, at paras. 1-4. As such, trial judges’ decisions on this issue are afforded deference on appeal: R. v. Rafferty, 2016 ONCA 816, 33 C.R. (7th) 39, at paras. 30-31. This discretion includes the decision whether to give a Vetrovec warning at all, although the cases recognize that sometimes, depending on the circumstances, such an instruction must be given: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 5; R. v. Ranglin, 2018 ONCA 1050, 370 C.C.C. (3d) 477, at para. 35.
96Given the ascendency of discretion in this context, there is no rigid formula for delivering a Vetrovec caution. The trial judge should identify the evidence in question and explain why the evidence is subject to special scrutiny. The trial judge should warn the jury that it would be dangerous to convict on the basis of such evidence if it is unconfirmed, although a jury is entitled to do so if it is satisfied that the evidence is true. The jury should be told to look for confirmatory evidence tending to show that the unsavoury witness is telling the truth. See Khela, at para. 37.
97But there is an important limitation for confirmatory evidence at this stage. As the Supreme Court said in R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at para. 15:
And while confirmatory evidence should be capable of restoring the trier’s faith in relevant aspects of the witness’s account, it hardly follows that the confirmatory evidence must, as a matter of law, implicate the accused where the only disputed issue at trial is whether the accused was a participant in the crimes alleged.
98In Khela, at para. 40, Fish J. said: “In Kehler, the Court confirmed that evidence, to be considered confirmatory, does not have to implicate the accused. We maintain that position here” (emphasis added). See also R. v. Riley, 2017 ONCA 650, 137 O.R. (3d) 1, at para. 241, leave to appeal refused, [2018] S.C.C.A. No. 216 (Atkins), and [2019] S.C.C.A. No. 412 (Riley); R. v. Wheatle, 2022 ONCA 591, 417 C.C.C. (3d) 352, at para. 43.
99Returning to hearsay evidence, as discussed above, Bradshaw mandates a sharp focus in terms of the type of confirmatory evidence considered at the threshold reliability stage. But this does not flow through to the ultimate reliability stage. There, the aperture is more panoramic, where the jury may consider the hearsay statements against the backdrop of all evidence adduced at trial. See also Khelawon, at para. 50; Hamish Stewart, “Khelawon: The Principled Approach to Hearsay Revisited” (2007) 12 Can. Crim. L. Rev. 95, at pp. 104-6.
100The Supreme Court in Bradshaw did not provide guidance on precisely how a jury should be instructed on hearsay evidence admitted under the principled exception to the hearsay rule. However, this court has held that, while each case is different, an appropriate jury caution on admissible hearsay evidence should address three concerns: (1) the reliability of the witness relaying the hearsay declaration; (2) the absence of traditional means for testing the reliability of the statement (i.e., cross-examination); and (3) the features found in the rest of the evidence that may have a bearing on the reliability of the statement: see R. v. Chretien, 2014 ONCA 403, 309 C.C.C. (3d) 418, at paras. 69-70. Model jury instructions follow this approach. For example, s. 11.28 of the Model Jury Instructions (online) prepared by the National Committee on Jury Instructions of the Canadian Judicial Council includes the following instruction for statements of hearsay declarants not called as witnesses:
Do not consider this evidence by itself. It is only part of the evidence in this case. Take it into account, along with other evidence that may make it more or less reliable. It is up to you to decide how much or little of it you will believe or rely on to decide this case.5
101In the Mr. Big context, at the admissibility stage, the Supreme Court in Hart built on the framework established in the hearsay context. Moldaver J. drew a parallel between the assessment of threshold reliability under the principled approach to hearsay and the relevant factors in assessing the reliability of a Mr. Big confession: Hart, at para. 100. However, regarding the use of confirmatory evidence, he wrote at para. 105: “Confirmatory evidence is not a hard and fast requirement, but where it exists, it can provide a powerful guarantee of reliability.” Again, this was at the admissibility stage of a Mr. Big confession.
102The Supreme Court has also provided guidance on the issue of what is required for jury charges in cases involving evidence derived from a Mr. Big operation. In R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, an appeal that was argued at the same time as Hart, Moldaver J. provided the following guidance, at paras. 52-54:
With respect to the reliability concerns raised by a Mr. Big confession, the trial judge should tell the jury that the reliability of the accused’s confession is a question for them. The trial judge should then review with the jury the factors relevant to the confessions and the evidence surrounding it. As explained in Hart, the reliability of a Mr. Big confession is affected by the circumstances in which the confession was made and by the details contained in the confession itself. Thus, the trial judge should alert the jury to “the length of the operation, the number of interactions between the police and the accused, the nature of the relationship between the undercover officers and the accused, the nature and extent of the inducements offered, the presence of any threats, the conduct of the interrogation itself, and the personality of the accused” — all of which play a role in assessing the confession’s reliability (see Hart, at para. 102).
Moreover, the trial judge should discuss the fact that the confession itself may contain markers of reliability (or unreliability). Jurors should be told to consider the level of detail in the confession, whether it led to the discovery of additional evidence, whether it identified any elements of the crime that had not been made public, or whether it accurately described mundane details of the crime the accused would not likely have known had he not committed it (see Hart, at para. 105).
This is not to suggest that trial judges are required to provide a detailed catalogue of every piece of evidence that might bear on the reliability of the confession. The task is simply to alert the jury to the concern about the reliability of the confession, and to highlight the factors relevant to assessing it.
103Conspicuously absent from this framework is a requirement that a jury be instructed to search for independent confirmatory evidence in assessing a Mr. Big confession.
104In summary, none of the areas of law engaged by Mr. MacDonald’s evidence call for the type of instruction that the appellant suggests was required in this case. The appellant’s submission is essentially a request that the jury be instructed on hearsay threshold reliability. But, as set out above, threshold reliability differs fundamentally from ultimate reliability. In Bradshaw, Karakatsanis J. stressed that the distinction between threshold and ultimate reliability must be maintained “to prevent the voir dire from overtaking the trial” and explained, at para. 42:
The limited inquiry into corroborative evidence flows from the fact that, at the threshold reliability stage, corroborative evidence is used in a manner that is qualitatively distinct from the manner in which the trier of fact uses it to assess the statement’s ultimate reliability. As Lederman, Bryant and Fuerst explain, at the threshold reliability stage,
[t]he use of corroborative evidence should be directed to the reliability of the hearsay. Certain items of evidence can take on a corroborative character and be supportive of the Crown’s theory when considered in the context of the evidence as a whole. Such evidence relates to the merits of the case rather than to the limited focus of the voir dire in assessing the trustworthiness of the statement and is properly left to the ultimate trier of fact.
(S. N. Lederman, A. W. Bryant and M.K. Fuerst, The Law of Evidence in Canada (4th ed. 2014), at §6.140).
105The appellant’s request for an “enhanced Vetrovec warning” erodes this distinction and would have the opposite effect of constraining the fact-finding function of the trial.
106There is another reason that makes the appellant’s approach undesirable. This court has cautioned against explaining to a jury the rationale by which evidence becomes admissible in a trial. For instance, a trial judge is not required to explain the requirements of voluntariness each time utterances of an accused person are admitted after a contested voir dire: R. v. Rojas, 2008 SCC 56, [2008] 3 S.C.R. 111, at para. 39. Such an instruction is unnecessary and potentially confusing. It could be construed as an invitation to the jury to revisit the question of admissibility.
107This court has addressed this issue in the hearsay context. In R. v. Foreman (2002), 2002 CanLII 6305 (ON CA), 62 O.R. (3d) 204 (C.A.), at para. 42, leave to appeal refused, [2003] S.C.C.A. No. 199, Doherty J.A. explained:
The admissibility of evidence is a question for the trial judge. There is no need to explain to a jury the criteria governing admissibility or the trial judge’s evaluation of that criteria. The explanation is at best superfluous and at worst may taint the jury’s fact-finding function if there is an overlap between the test for admissibility and the criteria to be considered by the jury in assessing the evidence: [R. v. Gilling (1997), 1997 CanLII 837 (ON CA), 34 O.R. (3d) 392 (C.A.), at pp. 397-98].
See also R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at paras. 328-29, leave to appeal refused, [2017] S.C.C.A. No. 17.
108The appellant’s suggested approach strays into this area. In this trial, on a number of occasions, the trial judge told the jury that Mr. MacDonald’s utterances were admissible. This would appear to have been necessitated by defence counsel’s suggestions in his closing address that Mr. MacDonald’s statements were “coerced”, an implicit attack on their admissibility.
109Finally, I see no principled reason why the particular evidentiary dangers at issue in this case – namely, hearsay from a Vetrovec witness in the context of a Mr. Big operation – require a special, elevated instruction, over and above the standard cautions that the jury received. All hearsay evidence comes with potential evidentiary hazards. It is difficult to see how different kinds of hearsay dangers can be classified in any principled way such that some warrant a special, elevated caution – a caution that effectively collapses the distinction between threshold and ultimate reliability – while others do not.
110What is important is that a jury is given the tools to properly and fairly assess the evidence at trial. In this case, the appellant was entitled to jury instructions that engaged each of the hearsay, Mr. Big, and Vetrovec dangers that accompanied the admission of Mr. MacDonald’s evidence, not something greater than the sum of these parts. Thus, the charge must be examined in its entirety, and in a functional manner, to determine whether it did the job it was required to do: R. v. Abdullahi, 2023 SCC 19, 428 C.C.C. (3d) 1, at para. 4. In my view it did.
c. The Trial Judge’s Instructions
111The trial judge covered all of the bases in instructing the jury about Mr. MacDonald’s evidence. There was no standard Mr. Big instruction available to the trial judge at the time of trial,6 but taken as a whole, the trial judge’s instructions assisted the jury in understanding how to consider the circumstances in which the utterances were obtained. They complied with the Supreme Court’s direction in Mack.
112The trial judge instructed the jury on Crown witnesses of unsavoury character on the first day of his final instructions. This instruction pertained to a number of witnesses, not just Mr. MacDonald. The trial judge told the jury:
You are entitled to rely on their individual evidence even if their evidence is not confirmed by another witness or other evidence, but it is dangerous for you to do so. Accordingly, you should look for some confirmation of their individual evidence from somebody or something other than their testimony, before you rely upon their evidence in deciding whether Crown counsel has proven the case against David Knight beyond a reasonable doubt.
To be confirmatory the evidence must be independent of their individual evidence. To be independent, confirmatory evidence must come from another witness or witnesses. Evidence that is tainted by connection to them individually, cannot be confirmatory of their evidence because it lacks this essential quality of independence.
To be confirmatory of the evidence of Matthew Knight, Graham MacDonald, [and the other unsavoury witnesses], the testimony of another witness or other witnesses or other evidence must also tend to show that their individual evidence is truthful. To be confirmatory the testimony of another witness or other witnesses or other evidence need not implicate David Knight in the commission of the offence(s), but it must give you comfort that Graham MacDonald, Matthew Knight, [or the other unsavoury witnesses] can be trusted when [they] say David Knight committed any one of the offences in the indictment. [Italics in original.]
113Importantly, the trial judge instructed the jury that: “The caution that you must apply relates only to those parts of Graham MacDonald’s evidence in which he implicates David Knight in Carmela Knight’s murder. As a matter of law, Graham MacDonald’s admissions as to his own involvement are not subject to this caution.”
114In addition to outlining the evidence that tended to confirm aspects of Mr. MacDonald’s statements, the trial judge referred to his criminal record, which he said “speaks for itself. Suffice it to say it is a significant criminal record.”
115The charge contained other passages in which the trial judge instructed the jury on both hearsay and Mr. Big considerations.
116Relatively early in his charge, the trial judge explained that while hearsay is presumptively inadmissible, there are exceptions to the rule and certain statements made by Carmela Knight and Graham MacDonald had been admitted into evidence. While the accuracy of Mr. MacDonald’s recorded statements was not in issue, it would be for the jury to determine the accuracy of the reports of Carmela’s statements. Further, it would be for the jury to determine the reliability of Mr. MacDonald’s hearsay statements, in the same way as they would do with Carmela’s statements because “Carmela Knight and Mr. MacDonald did not testify”.
117Later in his charge, the trial judge gave more detailed instructions on admissible hearsay using Carmela’s statements as an example. Among other things, the trial judge said:
You should be cautious when you determine how much or little you will rely on this evidence of what you find Carmela said to each individual witness to decide this case. It may be less reliable than other evidence that has been given. Carmela was not under oath or affirmation. She did not promise to tell the truth. You did not see or hear Carmela testify. She could not be cross-examined here like the other witnesses who testified before you.
Do not consider this evidence, however, by itself. It is only part of the evidence in this case. Take it into account, along with other evidence that may make it more or less reliable. It is up to you to decide how much or little you will believe of and rely upon it to decide this case. [Emphasis in original.]
118Further, in describing the elements of murder, and whether it was proved beyond a reasonable doubt that Mr. MacDonald murdered Carmela, the trial judge said the following:
In addition to his self-serving goal to extricate himself from Carmela Knight’s murder, the reliability of Graham MacDonald’s hearsay confessions may be found in other evidence confirmatory of his confessions. Confirmatory evidence is not strictly required to establish reliability but its presence can provide a guarantee of it.
119The trial judge then reviewed evidence that confirmed the reliability of Mr. MacDonald’s hearsay confessions. The trial judge provided the following caution:
When assessing the reliability of Graham MacDonald’s hearsay confessions, you should be cautious when you determine how much or little you will rely on them to decide this case. Graham MacDonald had earlier during the investigation provided two separate statements in which he denied any involvement in Carmela Knight’s death, those statements were provided well prior to his arrest.… Those statements can only be considered to assess the credibility of Graham MacDonald not of those statements or the reliability of what Graham MacDonald said at that time.
You may find the confessions to “Rob” and “Uncle Dan” less reliable than other evidence that has been given. Graham MacDonald was not under oath or affirmation. He did not promise to tell the truth. You did not see or hear Graham MacDonald testify. He could not be cross-examined here like the other witnesses who testified before you.
120At the conclusion of his instructions, the trial judge considered the objections of counsel. Counsel for the appellant expressed concerns with some aspects of the charge, particularly that the jury was not sufficiently warned to approach the evidence of Mr. MacDonald with caution. He did not seek the same instruction that is requested now on appeal, namely that the jury must look for evidence that specifically confirms the appellant’s involvement. The jury returned and the trial judge corrected a few factual errors in his main charge. He then turned his attention to Mr. MacDonald’s evidence and said:
Lastly, this is not an error, it's simply an observation to make. Graham MacDonald was not here to testify. I've impressed upon you, and I impress upon you again that the reliability of his evidence is important for you to consider. His evidence is admissible. So, Mr. MacDonald was not present in court. He could not be observed by you, testifying. He could not be cross-examined. I told you that the accuracy of the tapes in the ice hut and Uncle [Dan]'s Boardroom are not an issue. I've told you that the tapes themselves, although hearsay evidence, are direct evidence. So it's for you to determine the reliability of Mr. MacDonald's statements. Further, keep in mind, I've reviewed with you that he has an extensive criminal record. But again, a criminal record does not go to reliability, it only goes to credibility. That's a factor you must consider, and I've given you a charge, a definition of the differences. And I've instructed you that Mr. MacDonald, along with other witnesses have a very unsavory background. And I've instructed you how you should approach their evidence, and particularly Mr. MacDonald's evidence. You should approach it with caution, you should look for corroboration to give you comfort that what is stated is accurate. Corroboration isn't necessary. And you can believe that evidence with no corroboration, but corroboration is something that would help. [Emphasis added.]
121In this instruction, the trial judge encapsulated both Vetrovec and Bradshaw considerations. It would have been preferrable had the trial judge not told the jury that corroboration was not necessary. However, this instruction must be considered in light of the charge as a whole, in which the problems with Mr. MacDonald’s evidence were properly addressed. The message to the jury was loud and clear: be careful before accepting Mr. MacDonald’s evidence as it related to Mr. Knight’s role in Carmela’s murder.
122Also, when it came to Mr. MacDonald, it would have been obvious to the jury that they were dealing with someone who was unsavoury. As the trial judge said, his extremely serious criminal record spoke for itself. He admittedly killed someone for money. There was no sign of any remorse in his descriptions to Rob and Uncle Dan about what he did to Carmela. And the jury witnessed, first-hand, Mr. MacDonald’s profane outbursts when he refused to give evidence at trial.
123I would dismiss this ground of appeal.
3. The Trial Judge’s Instructions Were Fair and Balanced
124The appellant submits that the trial judge’s final instructions to the jury were unbalanced and unfair. He contends that the trial judge paid undue attention to Mr. MacDonald’s evidence, which the trial judge endorsed, and failed to adequately review the appellant’s evidence, who testified over the course of four days.
125I do not accept these submissions.
126The parties to a criminal trial are entitled to a jury that is properly instructed, not perfectly instructed: see e.g., Abdullahi, at paras. 35-36. Indeed, it is debatable whether there is such a thing as a “perfect” charge.
127Simply put, a balanced charge is one that is fair to both sides. A helpful approach to evincing whether a charge is balanced and fair is found in R. v. McManus, 2017 ONCA 188, 353 C.C.C. (3d) 493, at para. 103, in which van Rensburg J.A. said:
A determination of whether the charge is balanced and fair requires an examination of the charge as a whole. A charge is unfair where the trial judge “deliberately or inadvertently [places] her thumb on the Crown's side of the scales of justice": R. v. Paredes, 2014 ONCA 910, 317 C.C.C. (3d) 415, at para. 41 or "unduly [promotes] the Crown's case and effectively [ignores] or [underplays] significant elements of the case for the defence”: R. v. B.B., 2009 ONCA 552, 251 O.A.C. 146, at para. 17.
See also R. v. Panovski, 2021 ONCA 905, 408 C.C.C. (3d) 205, at para. 103.
128The appellant contends that the trial judge spent an inordinate amount of time reviewing Mr. MacDonald’s evidence. This included reading lengthy passages from the conversations between Mr. MacDonald and the UCOs, which the trial judge repeated as he dealt with the different offences and potential modes of liability. The trial judge also spent a good deal of time reviewing the evidence that confirmed Mr. MacDonald’s account. In contrast, the appellant submits that his own evidence was not reviewed to the same degree.
129Purely quantitative comparisons are generally not helpful in this context: Panovski, at para. 104. It is the substance of what is said that is important. In hard-fought jury trials, both sides vie for more airtime in the trial judge’s instructions. But the allocation of emphasis in this context is a matter squarely in the trial judge’s wheelhouse, based on the nature of the evidence adduced, the issues to be determined, and the overall dynamics of the trial. A balanced charge may end up containing more inculpatory than exculpatory content: R. v. Speers, 2017 ONCA 333, 347 C.C.C. (3d) 401, at para. 26; R. v. Nelson, 2014 ONCA 853, 318 C.C.C. (3d) 476, at para. 47. Because a great degree of discretion is involved in crafting the structure and substance of a jury charge, trial judges are owed “substantial deference” by appellate courts as to “the volume of evidence they choose to review in final instructions”: R. v. P.J.B., 2012 ONCA 730, 97 C.R. (6th) 195, at para. 46; Panovski, at para. 93; R. v. Newton, 2017 ONCA 496, 349 C.C.C. (3d) 508, at paras. 11, 13. Still, appellate review requires a functional assessment of the overall fairness of the charge.
130Mr. MacDonald’s evidence was at the heart of the prosecution’s case. It stood to reason that a review of this evidence would be a central component of the trial judge’s final instructions. Mr. MacDonald’s evidence, as well as the evidence that tended to confirm or contradict his evidence, was addressed at great length in the closing addresses of both the defence and the Crown.
131The appellant further submits that, at certain points in his final instructions, the trial judge unfairly endorsed Mr. MacDonald’s evidence. However, the passages the appellant relies upon concern Mr. MacDonald’s culpability, not the appellant’s. It was necessary for the trial judge to address Mr. MacDonald’s culpability as the person who actually killed Carmela and set the garage on fire because there was no formal admission that he was the murderer. Consequently, the trial judge was required to review Mr. MacDonald’s evidence and culpability at various stages of his lengthy charge, delivered over the course of two days.
132Again, the passages with which the appellant takes issue are focused on Mr. MacDonald’s culpability. By way of example, the appellant relies on the following passage:
Consider the overall reliability of Graham MacDonald’s confessions to undercover officers “Rob” and “Uncle Dan” in which he admitted that he was responsible for Carmela Knight’s death. The accuracy of Graham MacDonald’s hearsay confession…is not an issue because the conversations [were] recorded.
133This passage is unobjectionable. The trial judge was correct to point out that, to the extent the recordings were comprehensible, they were an accurate account of what Mr. MacDonald said. The key question for the jury was whether the statements were true.
134Later in the charge, in reference to finding that Mr. MacDonald committed manslaughter, the trial judge said: “I would suggest, on all the evidence such a finding to be unlikely. However, it is for you to decide.” The trial judge was entitled to express his view on the matter, making it clear that it was ultimately for the jury to decide: R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627, at para. 27. Importantly, he was referring to Mr. MacDonald’s role in the murder. This same focus is borne out in another passage that the appellant relies upon:
As previously reviewed, again Graham MacDonald was looking for help to be extricated from Carmela Knight’s murder. Graham MacDonald did not know Carmela Knight. It is for you to decide, but in seeking help Graham MacDonald had no reason to lie and every reason to tell the truth that the murder, that his murder of Carmela Knight was both planned and deliberate. [Emphasis added.]
135The passages that the appellant relies upon were all in keeping with the appellant’s ultimate position before the jury that Mr. MacDonald killed Carmela, but that he acted alone.
136Turning to the appellant, the trial judge reviewed his evidence in some detail. The essence of his defence was a complete denial. The appellant now submits that the trial judge referred to him as a “liar”. However, the only use of the word “liar” was a quote attributed to Carmela during a counseling session. Other “lies” referenced by the trial judge included those borne out in the appellant’s own testimony (e.g., his admission at trial that the comments he made about Carmela being an “unfit mother” were “all lies”).
137The appellant points to the trial judge’s treatment of other individual pieces of evidence. In my view, they were inconsequential in the context of a four-month trial.
138I reiterate the principle that, in assessing a jury charge for balance, the charge must be considered as a whole. This includes the trial judge’s review of the positions of the parties. The trial judge thoroughly recounted the positions of the parties. No objection was made to this portion of the charge at trial; none is advanced on the appeal.
139I would not give effect to this ground of appeal.
4. No Error in the Trial Judge’s Instructions on Matthew Knight’s Evidence
140Matthew Knight was an important witness at trial, called by the Crown. During his examination-in-chief, he gave evidence that was inconsistent with the Agreed Statement of Facts that he affirmed as true at his guilty plea. The trial judge permitted the Crown to cross-examine him on two inconsistencies under s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5: (1) that in the summer of 2014, the appellant told him that he intended to kill Carmela; and (2) that he was aware of the plot to kill Carmela but he alerted no one and did nothing to prevent it from happening. In cross-examination, he said: “I heard comments it would be easier if she was dead. I…guess that’s how I have to leave it.” He denied knowing about the plot to kill Carmela.
141The appellant does not suggest that the trial judge’s ruling under the Canada Evidence Act was wrong; nor does he suggest that the limited cross-examination was improper. Instead, because of the risk that the jury could conclude that Matthew Knight was lying to protect his brother, the appellant submits that the trial judge should have instructed the jury not to use their disbelief of Matthew Knight’s evidence as evidence of the appellant’s guilt. However, trial defence counsel did not request that such an instruction be given. As Mr. Lacy said during his submissions on this appeal, no one appeared to have turned their mind to this issue.
142The appellant’s submission is grounded in this court’s decisions in R. v. Figliola, 2011 ONCA 457, 105 O.R. (3d) 641 (Figliola (No. 1)), R. v. Figliola, 2018 ONCA 578, 141 O.R. (3d) 662 (Figliola (No. 2)), R. v. Soobrian (1994), 1994 CanLII 8739 (ON CA), 21 O.R. (3d) 603 (C.A.), and R. v. Kiss, 2018 ONCA 184. The appellant submits that the jury should have been given what is sometimes referred to as a “Soobrian limiting instruction”: see R. v. Dayes, 2013 ONCA 614, 117 O.R. (3d) 324, at para. 33; R. v. Charlton, 2019 ONCA 400, 146 O.R. (3d) 353, at para. 53; and R. v. Tenthorey, 2021 ONCA 324, 404 C.C.C. (3d) 457, at para. 4.
143In Soobrian, the Crown called a witness to a sexual assault case knowing that the witness would not advance the Crown’s case, but rather to discredit him and “throw a shadow across the expected defence”: at p. 605. As this court said, at p. 613:
It was incumbent on the trial judge to instruct the jury that, in the absence of any evidence of collusion between [the witness] and the appellants, there was no basis upon which they could draw an inference adverse to the defence from the fact that [the witness] was a liar, if they were to so find.
144The scenario in this case is different. Matthew Knight also testified on the hearsay voir dire. It was apparent at that time that his evidence would be at odds with what he agreed to when he pled guilty. However, Matthew Knight clearly had relevant evidence to give that advanced the Crown’s case: he was enmeshed in the aftermath of Carmela’s murder, both in his dealings with the appellant and with Mr. MacDonald. The Crown would have risked leaving conspicuous gaps in its case had Matthew Knight not been called as a witness. As Doherty J.A. said in Figliola (No. 2), at para. 61:
[I]f the Crown has a good faith basis for believing that a witness has relevant evidence to give, the Crown may call that witness even though the Crown expects that the witness will give evidence inconsistent with the Crown’s position and evidence that contradicts the witness’ prior statements. The Crown may call that witness even though it anticipates applying for leave to cross-examine that witness and challenging the credibility of that witness in certain respects. [Citations omitted.] [Emphasis added.]
145In these circumstances, a limiting instruction may still be required if there is a real risk that the jury would misuse the impugned evidence to discredit the defence: Tenthorey, at para. 108. In my view, it was not required in this case for the following reasons.
146First, given that a significant amount of Matthew Knight’s evidence implicated the appellant in a plan to kill Carmela, it would have confused the jury if they were told not to use their disbelief of Matthew Knight’s evidence as evidence of the appellant’s guilt.
147Second, the scope of the Crown’s cross-examination was limited to the two narrow issues identified above. There was no cross-examination at large. The Crown’s cross-examination did not have the effect of “shredding” Matthew Knight’s credibility: Figliola (No. 1), at para. 61; Figliola (No. 2), at para. 50.
148Third, defence counsel vigorously cross-examined Matthew Knight and urged the jury to disbelieve most of his evidence. During his cross-examination, Matthew Knight was confronted with a statement to a police officer in which he said, “I will be the first one in line, with a pitchfork, to make sure my brother is locked away for the rest of his fucking life…I hate my brother more than anyone else in this world”. In his evidence, he acknowledged that those feelings persisted. Thus, there was no real risk that the jury would conclude that he was lying to protect the appellant. This may well explain why there was no request for such an instruction by trial counsel: Figliola (No. 2), at para. 75.
149Fourth, the Crown did not suggest during his examination of Matthew Knight, nor in his closing address, that Matthew Knight was lying to try to cover for his brother. Instead, in his closing address, the Crown asked the jury to look for the “nuggets of truth” in his evidence, but also to approach his evidence “with some concern” because of his “self-interest”. He asked the jury to accept his evidence that implicated the appellant where there was independent confirmatory evidence. This was reinforced in the trial judge’s Vetrovec instructions.
150I would dismiss this ground of appeal.
5. The Instruction on Reasonable Doubt was Sufficient
151The appellant submits that the trial judge made a fundamental mistake in the course of his reasonable doubt instructions. Near the beginning of his final instructions, the trial judge provided a definition of reasonable doubt that was legally correct. However, at another juncture, when explaining the elements of murder to the jury, the trial judge said:
When I speak of “reasonable doubt” in my charge, I use the words in their ordinary, natural meaning, not as a legal term, having some special connotation. A reasonable doubt is an honest and fair doubt based upon reason and common sense. It is a real doubt, not an imaginary or frivolous doubt which might be conceived by a juror to avoid the juror’s plain duty. [Emphasis added.]
152The underscored portion of this instruction was wrong. The Supreme Court has held that it is an error to describe reasonable doubt as an ordinary expression that does not have a special legal meaning: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 23. The question on appeal is whether, in light of this mistake, there is a reasonable likelihood that the jury misapprehended the correct standard of proof. I am not persuaded that the jury would have been confused as to the proper standard.
153As the Supreme Court held in Abdullahi, at para. 41: “A single ambiguous or problematic statement in one part of a charge will not necessarily be an error of law where the charge as a whole equipped the jury with an accurate understanding of the relevant legal issue”.
154Looking at the instructions on reasonable doubt as a whole, the impugned passage did not undermine the trial judge’s overall explanation of the proper standard of proof. The trial judge gave the correct definition of reasonable doubt at the beginning of his final instructions. Although incorrect, this isolated statement did not point the jury toward misapplying the correct standard of proof in any specific way.
155I would dismiss this ground of appeal.
6. The Instruction on Bad Character Evidence was Sufficient
156There was a good deal of evidence called at trial which, while admissible to issues such as the appellant’s animus towards Carmela, was also evidence of the appellant’s bad character. The appellant submits that the trial judge’s instructions on bad character evidence were insufficient.
157The appellant takes no issue with the trial judge’s general instructions on bad character evidence as it related to the appellant’s association with disreputable associates, including Graham MacDonald and Matthew Knight. The trial judge also appropriately warned the jury about the appellant’s disreputable conduct. This ground of appeal relates to two specific items of evidence: (1) that the appellant did not allow his sons to attend their mother’s celebration of life; and (2) that the appellant lied to two hockey coaches by saying his sons could not attend a tournament in the United States because Carmela’s mother had shredded their passports.
158During the pre-charge discussions, the trial judge said he would instruct the jury that they were to place “no reliance” on this evidence. However, while the trial judge summarized this evidence in his final instructions on the permissible and impermissible uses of discreditable conduct evidence, he did not expressly tell the jury to place no reliance on these two pieces of evidence.
159The appellant submits that the trial judge should have re-charged the jury to deliver a no-probative value instruction as it related to these two items of evidence. However, that is not how defence counsel noted his objection to the jury charge at trial. On a reading of the transcript, there appears to have been some confusion as to whether defence counsel’s objection and request for a no-probative value instruction related to post-offence conduct evidence or bad character evidence. Once his objection was clarified, no focused complaint was made about the trial judge’s omission of an instruction regarding the two specific items of evidence impugned now on appeal. In any event, I find that the trial judge’s overall instructions on bad character evidence were satisfactory. I turn to that issue now.
160The trial judge addressed the issue of discreditable conduct or bad character evidence on a number of occasions during the trial. Early on in the trial, after the evidence that the appellant damaged the kitchen/dining room table when Carmela told him she wanted a divorce, the trial judge delivered the following mid-trial instruction:
Now, sometimes certain evidence can only be used for a specific purpose. Evidence of Mr. Knight’s prior discreditable conduct, such as the issue of damaging the household contents, evidence of that type of conduct towards Carmela Knight is relevant to prove motive, animus and the nature of the marital relationship between Carmela and David Knight. But keep in mind, and this is very important, where you have evidence of Mr. Knight’s bad character – this is fundamentally important – that evidence is not admissible in support of an inference that because of bad character Mr. Knight is likely to have committed any of the three offences in the indictment. [Emphasis added.]
161The trial judge gave two further mid-trial instructions to the jury, warning them about the impermissible uses of bad character evidence, including an extensive instruction given during the evidence of Matthew Knight, who had many unfavourable things to say about the appellant.
162The trial judge also addressed bad character evidence in his final instructions. He gave a lengthy caution about the prohibited uses of bad character evidence. The trial judge told the jury that the evidence was relevant to the issue of motive. He related his instructions to the people with whom the appellant associated (including Matthew Knight and Graham MacDonald):
You may not use evidence that David Knight associated with one or more persons of bad or disreputable character to reason, in even the slightest degree, that, because he associates with disreputable persons he is, therefore, a bad person and more likely to have committed the crimes with which he is charged. That would be an improper use of that evidence and most unfair to David Knight.
163The trial judge should have provided the no-probative value instruction that he promised to deliver in relation to the two items of evidence identified above. However, this omission was rendered harmless by the trial judge’s general instructions on bad character evidence, which the jury would have understood applied to this evidence.
164The appellant submits that there was another problem with the trial judge’s instructions on bad character evidence in the following passage:
Some of the evidence may cause you to have a low opinion of the character of David Knight. That said, apart from using the evidence bespeaking bad character for the purposes I have just described, you must not use it for any other purpose.
In particular, you may not use any evidence bespeaking bad character on the part of David Knight to decide, or to help you decide, in even the slightest degree, that, by reason of that bad character standing alone, that David Knight is more likely to have committed any of the three offences alleged in the indictment. [Emphasis added.]
165The appellant submits that the inclusion of the words “standing alone” implicitly instructed the jury that the bad character evidence might, when considered with the other evidence, assist the jury to decide the case. I acknowledge that the inclusion of the words “standing alone” is less than ideal. However, the instructions on bad character evidence need to be considered as a whole. The trial judge went on to stress the impermissible uses of bad character evidence. He reminded the jury that the appellant was on trial for the charges listed in the indictment, and said: “You are not trying him for any other misconduct”. He further stated:
I stress, again, that, if you find that David Knight did one or more disreputable things, has discreditable views or attitudes, or lives a dissolute or immoral life style, you must not use that evidence to conclude, or even to help you conclude, that David Knight is a person of general bad character or disposition and therefore he is more likely to have committed any of the three offences charged merely by virtue of that general bad character standing alone.
In a similar vein, if you were to conclude that David Knight is a person of low moral character, you must not find him guilty of any of the offences charged on this indictment in order to punish him for any misconduct in the past or for his general bad character.
Either line of reasoning would be both an improper use of this evidence and most unfair to David Knight. Accordingly, you are forbidden to engage in any such reasoning. [Emphasis added.]
166Again, “standing alone” makes an appearance in the trial judge’s instructions. Neither this reference, nor the earlier iteration, attracted the attention of counsel. This is likely explained by the fact that, looked at as a whole, the trial judge’s warnings to the jury on the impermissible uses of bad character evidence were loud and clear: it could not be used to the detriment of the appellant in any way. While not entirely free from blemishes, the bad character instructions were otherwise sound.
167I would dismiss this ground of appeal.
7. No Error in the Instruction on the Co-Conspirator’s Exception to the Hearsay Rule
168The appellant submits that the trial judge erred in his instructions on the co-conspirator’s exception to the hearsay rule. This instruction related to an exchange between Mr. MacDonald and Matthew Knight shortly after Carmela was murdered. On that occasion, Mr. MacDonald told Matthew Knight that he killed Carmela and set the fire, for which he was to be paid $100,000.
169The trial judge made no error in his explanation of the legal requirements of this hearsay exception. The application of the exception is governed by the three-step process described in R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938, at p. 947. This process was summarized by Doherty J.A. in R. v. Cargioli, 2023 ONCA 612, 430 C.C.C. (3d) 308, at para. 71:
Step One: The jury must consider all of the evidence and decide whether the alleged agreement has been proven beyond a reasonable doubt.
Step Two: If the alleged agreement is proved, the jury must decide, based on evidence directly admissible against a particular accused, or other alleged conspirator, whether, on the balance of probabilities, that person is probably a party to the agreement.
Step Three: If the jury is satisfied that an accused is probably a party to the agreement, the jury must then decide whether the Crown has proved beyond a reasonable doubt that the accused is a party to the agreement. To do so, the jury must consider the evidence directly admissible against an accused and the acts and declarations done or made in furtherance of the agreement by anyone else who was found at step two to be a probable party to the agreement. [Emphasis in original.]
170With respect to Step One, the trial judge instructed the jury that the sole question was whether there was a common design, not who may have been in it. In the course of reviewing the evidence that might assist the jury in making this determination, the trial judge included the following:
Statement by Graham MacDonald to Matthew Knight an unindicted co-conspirator, on September 15, 2014 that he set the garage on fire, and that David Knight was going to pay him $100,000.00 for murdering Carmela Knight. [Emphasis added.]
171The appellant submits that the trial judge erred in referring to Matthew Knight as an “unindicted co-conspirator” at Step One because this was the very issue the jury was required to determine under Step Two. I agree with the Crown that the reference was innocuous because the trial judge was merely tracking the Crown’s position on the matter; he was not directing the jury to make this finding. This is borne out in the trial judge’s instructions on Step Two, in which he instructed the jury that “[it] is for you to say whether David Knight, Graham MacDonald, and or Matthew Knight … were individually probably participants in the common design murder of Carmela Knight.”
172The appellant submits that the trial judge also erred in his instructions on Step Two by failing to specifically instruct the jury they had to determine whether Matthew Knight was a probable member of the conspiracy to murder Carmela “prior to the victim’s death.” I agree with the Crown that inserting these words, which were not requested by defence counsel, would have added nothing. It would have been obvious to the jury that a conspiracy to commit murder must be extant while the deceased was alive.
173Lastly, the appellant submits that the trial judge did not sufficiently review the evidence relevant to whether Matthew Knight was a probable member of the conspiracy. In particular, in this part of his instructions, the trial judge did not mention Matthew Knight’s testimony in which he denied being involved in a plan to kill Carmela. There was no objection to this by trial counsel.
174Although it may have been preferrable had the trial judge mentioned this item of evidence in this context, Matthew Knight’s denial was mentioned in two other places in his final instructions. It was also addressed in the closing addresses of counsel. And as the Crown submits, a more detailed review of Matthew Knight’s alleged membership in the conspiracy would have further highlighted damning evidence of the appellant’s central role.
175I would not give effect to this ground of appeal.
D. conclusion and disposition
176I would dismiss the appeal.
Released: June 24, 2026 “J.M.F.”
“Gary Trotter J.A.”
“I agree. Fairburn A.C.J.O.”
“I agree. Janet Simmons J.A.”
Footnotes
- Information in this appeal is subject to a publication ban pursuant to s. 486.5 of the Criminal Code, R.S.C. 1985, c. C-46. No information that could identify any undercover police witness shall be published in any document or broadcast or transmitted in any way.
- Mr. MacDonald was tried by a different judge, Justice R. Cary Boswell of the Superior Court of Justice.
- Actually, there were 16 calls between the burner phones that day, but six of them were for five seconds or less.
- This letter was considered on the voir dire, but was not before the jury.
- Instructions to a similar effect can also be found in David Watt and Jill D. Makepeace, Watt’s Manual of Criminal Jury Instructions, 2026 (Toronto: Thomson Reuters Canada Limited, 2026), at pp. 384-85 (Final 35-A).
- However, a standard instruction is currently available in Watt’s Manual of Criminal Jury Instructions, 2026, at pp. 99-101, 303-306 (Mid-Trial 2-C; Final 24-F). The instruction contains all of the elements recommended by the Supreme Court in Mack, discussed earlier.