Court of Appeal for Ontario

Date: 2018-01-02 Docket: C57652

Panel: Hoy A.C.J.O., Doherty and Feldman JJ.A.

Between

Her Majesty the Queen Respondent

and

Roger Craig Short Appellant

Counsel

Michael Dineen, Jennifer Micallef and Kristen Allen, for the appellant

Roger A. Pinnock, for the respondent

Heard

December 4, 2017

On Appeal

On appeal from the conviction entered by Justice Joseph M.W. Donohue of the Superior Court of Justice on February 27, 2013, sitting with a jury.

Issues

First degree Murder – removal of trial counsel from the record – third party suspects – demeanour evidence – police officer opinion evidence – hearsay.

Doherty J.A.

I. Overview

[1] The appellant was charged with the first degree murder of his wife, Barbara Short ("Mrs. Short"). His first trial ended in a hung jury. The jury convicted the appellant of first degree murder at his second trial.

[2] The appellant raises several grounds of appeal based on the trial record. He also asks this court to admit "fresh" evidence in support of the ground of appeal relating to the admissibility of evidence pointing to Geoff Harper as the potential perpetrator of the murder.

[3] I would allow the appeal. About six weeks before the trial, defence counsel brought an application to be removed from the record. As I will explain, the trial judge was obliged in the circumstances to remove trial counsel from the record. Instead, he required counsel to continue to act for the appellant at the trial.

[4] The trial judge erred in law in his ruling. His ruling created the appearance of unfairness regardless of whether it actually negatively impacted the conduct of the defence. The error requires that the conviction be quashed and a new trial be ordered.

[5] As there must be a new trial, I need not address the other grounds of appeal in detail. I will, however, briefly refer to some of the issues raised in the hope that my comments may assist on the retrial.

II. The Trial

[6] A brief overview of the evidence adduced at trial will suffice for the purpose of these reasons.

[7] Mrs. Short was killed some time during the evening of October 18 or early morning of October 19, 2008. The appellant testified that he found his wife's body in their backyard at about 1:30 a.m., when he returned home after attending a local hockey game and visiting various bars. According to the appellant, he had left the house just after 7:00 p.m. on the evening of October 18. He testified that his wife was alive when he left.

[8] The autopsy revealed that Mrs. Short had died from blows to the head. A 4" x 4" board with Mrs. Short's blood on it was found near her body. The authorities did not establish a time of death. Mrs. Short had last been seen by her neighbours at about 6:00 p.m.

[9] The appellant testified that when he came upon his wife's body in the backyard, he smelled a strong odour of gas. Her body was near the family gas tank at the back of the property. The first responders also smelled gas and noticed that the gas cap was beside the tank.

[10] The police came to suspect the appellant for various reasons. He was arrested on October 24, 2008.

[11] The appellant and Mrs. Short had been married for 28 years. There was a lot of evidence that the marriage was not a happy one. The appellant habitually verbally and emotionally abused and belittled Mrs. Short. He was controlling, arrogant, and volatile. There was no evidence of physical abuse.

[12] It was the Crown's position that by the spring of 2008, Mrs. Short had finally decided that she had had enough of the appellant. She began to take steps to gain her independence from the appellant. These steps included obtaining her driver's license, looking for a job outside of the home, and seeking the advice of a divorce lawyer.

[13] The Crown maintained that during the summer of 2008, the appellant became aware that Mrs. Short was no longer prepared to tolerate his abuse and submit to his control. He knew that she was taking steps to leave him. Specifically, he knew that Mrs. Short had hired a lawyer and that she was having an affair with another man. On the Crown's theory, the appellant became very angry at the thought of having to provide financial compensation to Mrs. Short as part of any divorce. He decided to murder her rather than pay her.

[14] In support of its position, the Crown led evidence of:

• the nature of the relationship between the appellant and Mrs. Short, especially from the summer of 2008 to her death in October;
• statements the appellant made to Mrs. Short and her nephew to the effect that he would rather kill or hurt Mrs. Short than give her "half of his stuff" as part of a divorce settlement;
• Mrs. Short's state of mind, particularly her determination to stand up to the appellant, leave him and have a life of her own;
• the appellant's efforts to divert suspicion from himself, beginning with his conduct on the evening of October 18 after he left his home just after 7:00 p.m., and extending over several days;
• the appellant's attempts to conceal his ongoing marital difficulties from the police;
• very shortly after the murder, the appellant asked a friend to destroy the demand letter from Mrs. Short's lawyer sent to the appellant on July 31, 2008; and
• the appellant's destruction of poems written by Mrs. Short describing her marriage and emotional state, and his lies to the police about what he had done with those poems.

[15] The case against the appellant was entirely circumstantial. There was no forensic evidence connecting him to the murder.

[16] The appellant testified and denied that he had killed his wife. It was the position of the defence that:

• the marriage was not nearly as bad as the Crown depicted it. The appellant and Mrs. Short were making efforts to improve their marriage in the months before her death;
• the appellant did nothing unusual or untoward either on the night of Mrs. Short's death or in the days following;
• the police developed "tunnel vision" very early in the investigation. They focused exclusively on the appellant. Their many efforts to generate incriminating evidence against the appellant failed. Meanwhile, routine investigative steps went undone and important leads and suspects were left uninvestigated; and
• there was a real possibility on the evidence that Mrs. Short was killed by an unknown person who she caught in the act of stealing gas from the Shorts' gas tank at the back of the property. The defence argued that the crime scene supported the conclusion that Mrs. Short had interrupted a gas theft. The thief attacked and killed her.

[17] At trial, the defence also tried to lead evidence pointing to Ken Robertson and Geoff Harper as possible perpetrators of the murder. Mr. Robertson, who was married, was having an affair with Mrs. Short at the time of her death. They communicated on a frequent basis. There was evidence that Mrs. Short sometimes invited Mr. Robertson to her home when she knew the appellant was going to be out. The day before her murder, Mrs. Short had proposed that she and Mr. Robertson meet up on the night of her death.

[18] There was also evidence that Mrs. Short and Mr. Robertson had discussed having anal intercourse. Forensic evidence offered some support for the defence position that Mr. Robertson and Mrs. Short may have had anal sex shortly before her death.

[19] Mr. Harper, a repeat offender with a history of violence, lived a relatively short distance from the Shorts' home. His prior convictions included a conviction for gas theft. The defence also relied on an anonymous Crime Stoppers tip from June 30, 2009, identifying Harper as the perpetrator of the murder.

[20] The "third party suspect" evidence involving Mr. Robertson and Mr. Harper had been elicited at the first trial without objection from the Crown. The Crown objected to the admissibility of the evidence on the second trial. The trial judge excluded the evidence.

III. The Grounds of Appeal

A: Counsel's Application to be Removed from the Record

[21] Trial counsel had represented the appellant at his first trial. He continued to represent the appellant in the pretrial motions leading up to the second trial. According to trial counsel, despite assurances from the appellant, he was not paid for the first trial or for the proceedings leading up to the second trial. About six weeks before the second trial was to commence, trial counsel brought an application to be removed from the record.

[22] Trial counsel's assistant, a licensed paralegal, filed a brief affidavit on the application. In the affidavit, she indicated that trial counsel had not been paid and that it may be necessary for him to sue the appellant for payment. She also indicated:

The relationship between the client and counsel has broken down. [Trial counsel] cannot ethically represent Mr. Short.

Counsel took immediate steps following such a loss of confidence in the relationship to prepare and file the Notice of Application.

[23] The appellant was served with trial counsel's notice of application. He was present on the application, but the trial judge declined to make any inquiry of the appellant as to his position, fearing that the appellant might inadvertently disclose privileged conversations he had had with his lawyer.

[24] Trial counsel made representations to the trial judge in which he briefly outlined the history of his relationship with the appellant. Counsel indicated he had not been paid and referred to the possibility of a lawsuit for payment of the funds owed to him. Counsel also advised the trial judge that because of the non-payment, he had been unable to do things that should have been done in preparation for the second trial.

[25] Trial counsel went on to indicate:

There are communications between Mr. Short and I that have led to loss of confidence issues that I cannot disclose to you, but I can tell you as an officer of the court ethically that my position is I cannot go forward ethically as a result of some of those communications. [Emphasis added.]

[26] After the trial judge questioned the content of the affidavit from the legal assistant as it related to the reasons for the breakdown of the relationship, trial counsel said:

…I am telling Your Honour that there are issues that have arisen that result in a loss of confidence between Mr. Short and I…

…[ A ] nd I can tell you as an officer of the court, this is not me putting on top of a non-payment of fees, a paragraph that says there's a loss of confidence just to get an easy way out. This is probably the most difficult decision I have done. In this particular case I have, without disclosing anything, done everything I can to move this case forward. After the second trial I wiped much of my calendar clean to get this second trial as quick as possible. Obviously, there were communications between my client and I that allowed me to make the decision to go forward, financially and for another, another, another, abound of reasons. But I am telling the [sic] today, is that having no funds, and not being able to disclose to you the communications between the client and I, that I cannot represent Mr. Short going forward. [Emphasis added.]

[27] Crown counsel at trial opposed trial counsel's application to be removed from the record. He submitted that it was the appellant's failure to pay trial counsel, and not ethical concerns, that was "the prime motivation for why this application is being brought". Counsel referred to R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, the leading authority, and acknowledged that if counsel put forward ethical reasons as the basis for his request to be removed from the record, the trial judge should allow counsel to withdraw. The Crown argued, however:

And here, Your Honour, my respectful submission, we've heard nothing from the affidavit nor in my friend's comments that would take it beyond non-payment of fees.

[28] Crown counsel's submissions can only be read as suggesting that trial counsel's references to ethical concerns and loss of confidence were camouflage for the real reason counsel wanted off the record – he had not been paid. The Crown argued, that in the circumstances, non-payment could not justify removal from the record.

[29] In refusing counsel's application to be removed from the record, the trial judge was critical of the affidavit filed by the legal assistant. He observed that it dealt mostly with non-payment of fees, and contained virtually no details of the ethical concerns or the reasons for "loss of confidence."

[30] The trial judge concluded:

Given the weight and tenor of the balance of the affidavit dwelling on financial issues, I am forced to conclude that the reference to ethics in the adverb "ethically" has no basis in evidence. I am persuaded that [trial counsel's] difficulties relate to payment of his accounts and not to an ethical dilemma. [Emphasis added.]

[31] The trial judge essentially agreed with Crown counsel's submissions. He too refused to accept trial counsel's representation that his request for removal from the record related to ethical problems and a breakdown in the client-solicitor relationship.

[32] The trial judge went on to consider whether, in the circumstances, non-payment of fees justified removal of trial counsel from the record. Stressing the proximity of the trial date, the seriousness of the charge, and the potential negative impact on the accused were counsel to be removed from the record, the trial judge declined to allow counsel to be removed.

[33] There is no controversy as to the applicable legal principles. If trial counsel seeks to be removed from the record because he has not been paid, the trial judge has a discretion to allow counsel to get off the record. If the trial judge declines to allow counsel to get off the record, counsel must continue to act for the accused, subject of course to being fired by the patient. If, however, "ethical" concerns motivate counsel's application to be removed from the record, the trial judge is obliged to order counsel removed without any inquiry into the particulars underlying the request: Cunningham, at paras. 48-49, 58; R. v. C. (D.D.), 1996 ABCA 303, 110 C.C.C. (3d) 323, at para. 19, leave to appeal refused: [1996] S.C.C.A. No. 453.

[34] In this context, ethical reasons could refer to a client's request that a lawyer act illegally or contrary to the Law Society of Upper Canada's Rules of Professional Conduct. Ethical reasons also extend to circumstances that may not involve any illegality, but which have resulted in a breakdown of the client-solicitor relationship to the point that counsel cannot effectively give legal advice or receive instructions from the client. The phrase "loss of confidence" is often used to describe this latter situation: C. (D.D.), at para. 26; David Layton & Hon. Michel Proulx, Ethics and Criminal Law, 2d ed. (Toronto: Irwin Law Inc., 2015) at pp. 561-62; Law Society of Upper Canada Rules of Professional Conduct: Rule 3.7.2 and commentary.

[35] The requirement that the court accept, without inquiry, trial counsel's assertion that ethical reasons or, to put it more broadly, a breakdown in the client-solicitor relationship, require that counsel no longer act for the client, does not rest on some exaggerated notion of the integrity of all counsel. The prohibition is predicated on the very real risk that any inquiry would reveal communications that are subject to client-solicitor privilege and would put trial counsel in a position where he or she had to compromise the duty of loyalty owed to the client to fully explain the breakdown of the relationship. It is hard to think of circumstances in which any meaningful inquiry into the reason for the breakdown in the client-solicitor relationship would not potentially compromise the accused's position and his future defence by other counsel.

[36] In considering and rejecting the application, the trial judge wrongly focused on the content of the legal assistant's affidavit. He found the affidavit lacking in details and any explanation of the legal assistant's expertise in matters of legal ethics. The trial judge should have instead focused on counsel's representations. Bearing in mind the reason counsel wanted off the record, the legal assistant's affidavit could not add much of substance to the inquiry.

[37] Trial counsel was candid in indicating that non-payment of his fees had created considerable strain in the relationship and made it impossible for him to properly prepare for the second trial. At the same time, however, trial counsel repeatedly told the court that the problems between he and the appellant had gone beyond those related to the non-payment of his fees and had reached the point where the client-solicitor relationship had broken down. As I understand Cunningham, the trial judge was obligated to accept trial counsel's representation.

[38] I do not agree with the Crown's submission in this court that trial counsel's reference to "ethical reasons" related exclusively to his concern that he may be in a conflict of interest with his client if he was required to sue his client for non-payment of fees. No doubt, the legal assistant's affidavit and trial counsel's submissions connect the non-payment of fees to the eventual loss of confidence and the breakdown of the relationship. This is hardly a surprising connection. Counsel's representations that ethical reasons prevented him from continuing to act cannot be read as limited to his concerns about possibly suing his client for his fees. Trial counsel expressly indicated that the concerns went well beyond that.

[39] On my review of the transcript, trial counsel made it abundantly clear that there had been a complete breakdown in the client-solicitor relationship and that for that reason he could not continue to act for the appellant. The trial judge was required to accept that representation and remove trial counsel from the record. By requiring counsel to remain on the record, the appellant was left to be defended on a first degree murder charge, not by counsel fully and unequivocally committed to his defence, but by counsel who had announced to the court that he could not, in good conscience, continue to act for the appellant. The trial judge's ruling rendered the appearance of the trial unfair and resulted in a miscarriage of justice, requiring a new trial: R. v. Rushlow, 2009 ONCA 461, 245 C.C.C. (3d) 505, at paras. 35-37.

[40] Before leaving this issue, I will comment on the trial judge's decision to not hear from the appellant personally in the course of trial counsel's application to be removed from the record. I understand the trial judge's concern that the appellant not be put in a position where he might inadvertently say something compromising client-solicitor privilege. However, on an application by trial counsel to be removed from the record, it is imperative that the client's position be known to the judge hearing the application. Some inquiry, albeit one carefully circumscribed to avoid entrenching on client-solicitor privilege, is necessary.

[41] A client is entitled to discharge counsel at any time for any reason. If a client does not want to be represented by a particular counsel, the court cannot force that representation on the client: David Layton & Hon. Michel Proulx, at p. 543; R. v. Chemama, 2016 ONCA 579, 351 O.A.C. 381, at para. 58.

[42] In deciding trial counsel's application, the trial judge had to know whether the appellant wanted trial counsel to continue to act for him in light of trial counsel's application and representations made in that application. Without making that inquiry, the trial judge was in no position to force counsel to continue to act for the appellant. The trial judge seems to have assumed that the appellant wanted trial counsel to continue to act. The assumption may or may not have been accurate. A proper inquiry would have removed any uncertainty.

[43] Trial counsel's application to be removed from the record put the appellant in a difficult position, although he may well have been responsible for his own predicament. If possible, I think it would have been helpful had the appellant received some legal advice from duty counsel, or perhaps some senior member of the bar, before the application proceeded. Counsel could have ensured that the appellant understood the nature of the application, his options in respect of representation and participation in the application, his right to maintain the confidentiality of his communications with his trial lawyer, and the potential impact of the outcome of the application on the timing of, and the appellant's representation at, his upcoming trial.

B: The Other Grounds of Appeal

(i) The Admissibility of "Third Party Suspect" Evidence Referable to Geoff Harper

[44] The trial judge excluded evidence offered to support the inference that Geoff Harper had attempted to steal gas from the Shorts' gas tank on the night of Mrs. Short's murder. The defence argued that the evidence supported the inference that Mrs. Short had interrupted the gas theft, and that Geoff Harper had killed her.

[45] On appeal, counsel argued that the trial judge was wrong in his ruling. Counsel also sought to introduce "fresh evidence" said to provide further evidence linking Geoff Harper to the gas theft and the murder. Some of the "fresh evidence" consisted of material that could have been brought forward at the first trial. However, the most significant part of the "fresh evidence" involved statements attributed to Mr. Harper's former wife by various people, including an investigator hired by the appellant post-conviction. At least one of those statements strongly implicates Geoff Harper in Mrs. Short's death.

[46] There is no need to consider the correctness of the trial judge's ruling that the defence could not lead evidence pointing to Geoff Harper as a suspect. Presumably, if the defence renews the motion at the new trial, the evidentiary record will include at least some of the material placed before this court. Admissibility will depend upon an application of the well-established legal principles to that record: e.g. R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27; R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475. Depending primarily on what evidence, if any, comes from Mr. Harper's former wife, the defence may have a strong argument for the admissibility of evidence pointing to Mr. Harper as a "third party suspect".

(ii) The Admissibility of Evidence Identifying Ken Robertson as a "Third Party Suspect"

[47] Mr. Robertson and Mrs. Short had been having an affair for several years. That affair was very active at the time of Mrs. Short's death. The defence sought to cross-examine Mr. Robertson and his then-wife in support of a claim that Mr. Robertson may have killed Mrs. Short. The trial judge refused to allow the questioning on the basis that there was not a sufficient connection between Mr. Robertson and the murder. The trial judge did, however, somewhat inconsistently, allow the Crown to lead evidence that Mr. Robertson was at home with his then-wife on the evening that Mrs. Short was murdered.

[48] On appeal, counsel in addition to maintaining the argument that Mr. Robertson was a legitimate "third party suspect", added a wrinkle to the admissibility argument. Counsel submitted that, as it was the Crown's theory that the appellant had murdered Mrs. Short before he left their home just after 7:00 p.m., evidence putting Mr. Robertson at the home visiting Mrs. Short at some time after 7:00 p.m. would effectively destroy the case for the Crown, regardless of whether Mr. Robertson had anything to do with Mrs. Short's death.

[49] I think counsel's submission is correct. Evidence that Mr. Robertson was at the Short household on the evening of the murder was relevant even if he was not the killer. The evidence of the relationship between Mr. Robertson and Mrs. Short at the time of her death, the e-mail messages back and forth in the days preceding her death, the forensic evidence concerning the substance found in Mrs. Short's anal cavity, and Mr. Robertson's behaviour in the days after the murder, taken together, provided a sufficient basis to allow the defence to explore whether Mr. Robertson was at the Shorts' home at some point on the evening of October 18. The evidence that Mr. Robertson was at home with his wife was of course equally admissible to rebut the defence contention that Mr. Robertson was at the Shorts' home.

[50] As I am satisfied that evidence supporting the inference that Mr. Robertson was at the Shorts' home on the evening of October 18 was admissible regardless of whether Mr. Robertson was implicated in the crime, it is unnecessary for me to consider the submission that he was a legitimate "third party suspect".

(iii) The Admissibility of Demeanour Evidence and the Jury Instruction on That Evidence

[51] The jury heard a great deal of evidence about how the appellant acted or reacted on various occasions on the night of the murder and in the days following. That evidence included testimony from various witnesses that the appellant seemed "normal" or, to the contrary, "unusual". The jury also heard evidence that some of the things the appellant did and said seemed to others to be contrived or rehearsed.

[52] Evidence describing the demeanour of an accused when he did or said something can be admissible. The demeanour may be sufficiently unambiguous to give it probative value, or it may be an integral part of the witness's description of the relevant event: R. v. Trotta, 190 C.C.C. (3d) 199 (Ont. C.A.), at para. 41.

[53] Demeanour evidence is, however, often of little or no probative value. There is also a real risk that a jury might give too much weight to demeanour evidence unless clearly cautioned that the evidence can be misleading and often provides little or no real insight into a person's state of mind, or the reasons for that person's actions: R. v. Levert, 159 C.C.C. (3d) 71 (Ont. C.A.), at para. 27; R. v. Wall, 77 O.R. (3d) 784 (C.A.), at paras. 49-50.

[54] At the new trial, the trial judge may conclude that some of the demeanour evidence has virtually no probative value and should not be admitted. For example, if a witness describes the appellant as acting "unusually", but does not know the appellant and cannot articulate any basis upon which the witness formed his or her opinion about the appellant's behaviour, the trial judge may well conclude that the witness's opinion about the appellant's behaviour has no probative value and should not be admitted.

[55] To the extent that demeanour evidence is properly before the jury, the trial judge must be careful to instruct the jury about the risks inherent in drawing inferences from a witness's description of someone else's demeanour: see Wall, at paras. 49-50.

(iv) The Absence of Any Limiting Instruction in Respect of Officer Miller's Testimony

[56] The defence claimed that the police quickly focused on the appellant as the perpetrator of the murder to the exclusion of all other suspects. To support this "tunnel vision" theory, defence counsel cross-examined Detective Miller with a view to demonstrating that he quickly decided, based on his impression of the appellant, that the appellant had murdered his wife.

[57] In cross-examination, Detective Miller testified that, in his opinion, the appellant did not react to being questioned about Mrs. Short's death in the way that someone who was innocent would have reacted. Detective Miller testified:

I believe he was faking. He didn't cry once and he'd, he'd have an outburst and then immediately start talking calm again which is very inconsistent with anything I've seen in my career.

[58] The defence was entitled, if so advised, to bring out the evidence that it did from Detective Miller to support its "tunnel vision" theory. The trial judge, however, had to make it clear to the jury that Detective Miller's opinion about the appellant's veracity was irrelevant to their deliberations. The trial judge also had to make it clear to the jury that Detective Miller's opinions about the appellant's demeanour and the inferences that could be drawn from that demeanour could not be used by the jury as evidence of the appellant's guilt: see R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 73.

[59] I think it was crucial that the limiting instructions described above be given. If the jury thought they could act on Detective Miller's opinions, the case for the defence was in serious peril. Nor do I agree with the respondent that because the evidence was elicited by the defence, a limiting instruction was unnecessary. The risk that the jury would misuse the evidence remained regardless of which party elicited the evidence.

(v) The Admissibility of Out-of-Court Statements

[60] The Crown adduced evidence of many out-of-court statements, primarily oral and written statements allegedly made by Mrs. Short to various people, including to her divorce lawyer. The statements were subject to an admissibility ruling at the first trial: R. v. Short, 2012 ONSC 1514, 100 W.C.B. (2d) 898. The appellant did not seek to revisit that ruling at the second trial: Criminal Code, s. 653.1.

[61] In addition to the out-of-court statements that were the subject of the ruling at the first trial, the Crown at the second trial, over the objection of the defence, was allowed to lead evidence of two statements made by Linda Short, Mrs. Short's sister-in-law, to the police shortly after Mrs. Short's death. Those statements described certain events that occurred on the afternoon of October 18. Linda Short died before the trial.

[62] The appellant argues that the statements of Linda Short should not have been admitted. The appellant also challenges the admissibility of some of the other out-of-court statements.

[63] I do not propose to review the entirety of the evidentiary rulings. I will, however, make two observations. First, to the extent that the statements were tendered as admissible hearsay under the principled exception, for example, the statements of Linda Short, the admissibility of those statements may be affected by the judgment in R. v. Bradshaw, 2017 SCC 35, 349 C.C.C. (3d) 429. That decision, released after the trial, may impact the assessment of the threshold reliability of some of the out-court-statements.

[64] My second observation is a more general one. The various out-of-court statements were offered for different purposes. Some were presented as evidence of the state of the marriage, Mrs. Short's state of mind prior to her death, or her intended course of conduct. Other statements were offered as evidence of what the appellant said to Mrs. Short, and others in support of inferences concerning the appellant's state of mind, his animus towards Mrs. Short, and his motive for killing her.

[65] The admissibility of out-of-court statements depends, in part, on the purpose for which those statements are tendered. Before admissibility can be properly determined, the party tendering the evidence must clearly articulate the precise purpose for which the out-of-court statement is being tendered: R. v. Bridgman, 2017 ONCA 940, at para. 32. Different parts of the same out-of-court statement may be offered for different evidentiary purposes requiring a different analysis and possibly leading to a different admissibility ruling.

[66] I offer one example. The Crown led evidence of a statement Mrs. Short made to her divorce lawyer. In the statement, Mrs. Short said various things that were admissible to show her state of mind and her attitude toward the marriage. She also referred to a threat the appellant made to her. That part of the statement was relevant to Mrs. Short's state of mind. However, it was apparently also admitted as evidence of a threat made by the appellant demonstrating his state of mind.

[67] If at the new trial, the statement is offered again as evidence of Mrs. Short's state of mind and evidence of the appellant's animus and motive, the admissibility of the statement will have to be determined as it relates to each purpose. It does not follow that because the statement is admissible to show Mrs. Short's state of mind, or intended course of conduct, that it is necessarily admissible as a threat made by the appellant showing his state of mind: R. v. Foreman, 62 O.R. (3d) 204 (C.A.), at paras. 31-35.

IV. Conclusion

[68] I would allow the appeal, quash the conviction, and order a new trial on the charge of first degree murder.

Released: January 2, 2018

"Doherty J.A."

"I agree Alexandra Hoy A.C.J.O."

"I agree K. Feldman J.A."