COURT OF APPEAL FOR ONTARIO DATE: 20220128 DOCKET: C64231
Fairburn A.C.J.O., Doherty and Watt JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Shane Alan Wood Appellant
Counsel: Lance Beechener and Alexander Ostroff, for the appellant Christopher Webb, for the respondent
Heard: October 5, 2021 by video conference
On appeal from the conviction entered by Justice Peter B. Hockin of the Superior Court of Justice, sitting with a jury, on November 2, 2015.
Watt J.A.:
[1] Some good times and some bad times. An uncle and his nephew. Paul Curry and Shane Wood. They worked together for a time, then went their separate ways.
[2] They argued. Then they reconciled. Except for their last argument when no reconciliation was possible.
[3] Shane Wood killed his uncle Paul Curry. He set fire to his uncle and his uncle’s house.
[4] Shane Wood was charged with first degree murder, arson and offering an indignity to his uncle’s body. A jury found him guilty on all three counts.
[5] Shane Wood appeals his conviction of first degree murder. These reasons explain why I have concluded that his appeal fails and should be dismissed.
The Background Facts
[6] The appellant testified at trial. He admitted that he killed the deceased after they had argued but claimed he had done so in self-defence. He denied having set any fires in the deceased’s home, maintaining that the deceased had done so himself.
[7] A brief summary of the evidence adduced at trial provides an adequate background for an evaluation of the grounds of appeal the appellant advances.
The Principals and Their Relationship
[8] The appellant and deceased worked together in a landscaping business the deceased set up in 2012 after another business venture had failed. Later that same year, the appellant resumed working alone because of a disagreement with the deceased about the appellant’s share of the profits from a lucrative landscaping contract.
[9] Over the years, the relationship between the appellant and the deceased had been volatile. They would argue and reconcile. Again and again.
[10] When their business relationship in the deceased’s landscaping company disintegrated, each complained about the other. The deceased characterized the appellant as tardy and lazy. The appellant claimed that the deceased did not pay him adequately for the work he (the appellant) had done. Each denigrated the other. In text messages between them. And in communications to others.
[11] The appellant testified that the deceased spent most of the winter in 2012‑2013 in either Costa Rica or in Russia. The men resumed working together in the summer of 2013, but the deceased soon departed to return to Russia, leaving the appellant to manage their landscaping projects including problems with malfunctioning equipment. Although they completed the outstanding project shortly after the deceased’s return, the men argued.
The Business Relationship Ends
[12] In early August, 2013 the appellant left the deceased’s company to work at his own landscaping business. He offered to help the deceased if the deceased required any assistance. The appellant sent several texts about his relationship with the deceased to Gary Lazurek, a man who worked for both the appellant and the deceased. The appellant offered to pay Lazurek $40 if Lazurek would not report for work with the deceased the following day. The appellant testified that his purpose in making this offer was to keep Gary Lazurek as an employee with his (the appellant’s) own business.
The Wood Chipper Discussion
[13] Gary Lazurek and the appellant testified about discussions they had about getting a wood chipper, a machine used in the landscaping business.
[14] Gary Lazurek testified that the appellant called him on September 13, 2013, two days before the deceased was killed, and asked him to be ready to go out of town at 3:30 the following morning. The appellant arrived at Lazurek’s home at 1:30 a.m., two hours earlier than he had asked Mr. Lazurek to be ready. Kim Rolph-Smith let the appellant into the house. The appellant was intoxicated. He explained that he had made a good deal on a wood chipper. The machine was in Tillsonburg.
[15] After Gary Lazurek got dressed, he and the appellant got into Lazurek’s truck to drive to Tillsonburg to pick up the wood chipper. Instead, the appellant directed Mr. Lazurek to the deceased’s street. The appellant noticed that the deceased’s door was open. He described the deceased as a “fool”, an “idiot”, a person who “never learns”. He then directed Lazurek to continue driving around and past the deceased’s residence. They did this several times. On their final pass by the deceased’s home, the appellant asked Gary Lazurek to stop. The appellant then asked “You going to back my play, right?”. Gary Lazurek asked whether that meant that the appellant and deceased were going to have a fight. The appellant said that the deceased was “not drunk enough yet anyway”. He told Lazurek to get laid, get his affairs in order, and that he, the appellant, would get in touch with him later. Mr. Lazurek drove the appellant home.
[16] The appellant gave a different version of the early morning trip to the deceased’s house. He recalled that a few days prior to September 14, 2013, Gary Lazurek told him that the deceased had asked Lazurek to take his (the deceased’s) wood chipper so that the deceased could make a fraudulent claim to his insurer that the machine had been stolen. The deceased did not want the appellant involved. Mr. Lazurek was to take the wood chipper to a friend of his, a man named Lloyd or Floyd, who lived near Woodstock.
[17] The appellant walked over to Gary Lazurek’s house early one morning. Kim Rolph-Smith let the appellant in. As Gary Lazurek got dressed, Ms. Rolph‑Smith asked what they were doing. The appellant was not sure who said what, but the plan to pick up the deceased’s wood chipper and take it out of town was discussed while Ms. Rolph-Smith was present.
[18] The appellant testified that he and Gary Lazurek drove over to the deceased’s house in Mr. Lazurek’s truck. The lights in the deceased’s home were on. The deceased was awake, sitting on the couch. Gary Lazurek wanted to steal the chipper. The appellant refused to help him. The appellant never said “are you going to back my play?”. Gary Lazurek then drove the appellant home.
Lazurek and the Appellant: Duelling Texts
[19] Throughout the rest of the day on September 14, the appellant and Gary Lazurek began an exchange of acrimonious texts. The appellant told Lazurek that he (Lazurek) could no longer work for him and that he would pay Lazurek a final $160 for the week. Lazurek replied that the appellant owed him an additional $160. He called the appellant rude. The appellant told Lazurek to “deal with it”. He then said that he would feed Lazurek’s throat his teeth and tell Lazurek’s brother his address. The men traded insults about their drinking and drug habits.
Lazurek and the Deceased: The Heads-Up
[20] Later that same day, Gary Lazurek and Kim Rolph-Smith drove over to the deceased’s home to tell him about what had occurred earlier, when the appellant had directed Lazurek to drive to the deceased’s home instead of Tillsonburg to pick up the wood chipper. Gary Lazurek expressed his concern that the appellant would harm the deceased. After Gary Lazurek and Ms. Rolph-Smith had left, the deceased called a friend to whom he related what Gary Lazurek had told him about the appellant. The friend suggested the deceased should call the police. The deceased rejected the suggestion. He said he was not afraid of the appellant.
The Facebook Postings
[21] Shortly before midnight on September 15, 2013, the appellant made two Facebook posts. By then, he had drunk eight or nine beers. He posted:
RED river RED rover who wants to be OVER
He testified that the post made no sense. His phone screen was smashed. He may have tried to write “red rover, red rover, who wants to come over” as an invitation to his friends. He denied that it reflected his intention to kill the deceased, or that red river reflected a river of blood he was going to spill.
[22] In a longer, second post the appellant wrote about his decision to block out those who brought him down. The appellant testified that arguments with Gary Lazurek and his own father prompted this post.
[23] After making the Facebook posts, the appellant said he fell asleep.
The Early Morning Visit
[24] The appellant testified that he woke up at about 1:45 a.m. on September 16, 2013. He decided he would walk over to the deceased’s place. The deceased was often up at this time, drinking, as he was when the appellant arrived. The two men sat down in the kitchen, drank beer and talked. A few minutes later, the appellant said “we gotta talk about Gary”. He told the deceased about the late-night drive and the texts. The deceased became agitated. He told the appellant that Gary Lazurek had come by and had told the deceased that “you guys” (Lazurek and the appellant) were driving around and the appellant said, or that Lazurek believed, that he (the appellant) wanted to fight with the deceased. The deceased said “Shane, the guy’s fucked”.
[25] Tensions between the men began to escalate. The appellant felt that the deceased was minimizing his concerns about Gary Lazurek. The appellant accused the deceased of having lied about his July trip to Russia. The deceased replied “go fuck yourself, Shane, you don’t know what you are talking about”. The appellant got up and went to the washroom.
The Fire Starts
[26] When the appellant returned from the washroom, the deceased was feeding paper into a small fire on the floor.
The Fight
[27] The appellant testified that as he tried to leave the house, the deceased pushed him from behind, then swung a weapon at him, injuring the appellant’s right hand. The appellant ran downstairs as the deceased chased him. The appellant then grabbed a beer bottle from the steps and hit the deceased over the head with it. The appellant was afraid that the deceased would kill him with the weapon he had in his hand. The appellant then ran back up the stairs.
[28] The appellant tried to get out the front door. The deceased tackled him. The men returned to the stairwell. Each was armed. The deceased had a knife or a barbeque fork, the appellant, a beer bottle or a pair of scissors. The fight carried on into the kitchen. There, the appellant saw small fires on the bedroom floor and bed. He told the deceased to call the fire department. Instead, the deceased swung a bucket saw at him. The appellant avoided the blow and kicked the deceased who fell on the bed. When the deceased got up, the appellant kneed him. Flames flashed, perhaps from the fuel in the saw. When the deceased continued his attack, the appellant kicked him in the head, then fled through an open window, got in his truck and drove away.
[29] The appellant denied immediately attacking the deceased, killing him in the stairwell, moving his body into the bedroom, and setting the fire to conceal the nature of the deceased’s injuries.
The After-the-Fact Conduct
[30] When the appellant got back home, he showered, cleaned up his injured hand, and washed his clothes. He texted Gary Lazurek at 3:26 a.m. He told Lazurek that he had gone to sleep at 11:00 p.m. and had just awakened. In cross‑examination at trial, the appellant denied having sent the text to conceal his involvement in the deceased’s death.
[31] The appellant lied to his other uncle Ray about how his right hand had been injured. He claimed that it had been caused by a broken mirror. He lied to the police maintaining he had not seen the deceased for a month or a month and a half. He also hid a sock with the deceased’s blood on it in an outdoor speaker in his backyard.
The Forensic Evidence
[32] First responders arrived at the deceased’s home about three hours after the appellant had sent his texts shortly before midnight. They found the deceased’s body on his bed, burned beyond visual recognition.
[33] A fire investigator concluded that the fire in the deceased’s home had been deliberately set. It had originated on a corner of the deceased’s bed. Another fire had started in a garbage pail in the bathroom, but it did not spread beyond the container.
[34] Blood from the appellant and deceased was found on various surfaces throughout the deceased’s home. The deceased’s blood was found on the porch, inside the front door, and on the wall close to the kitchen floor. His blood and a piece of his scalp were found on the stairs and a landing near the side door. The appellant’s blood was detected on a stool in the living room, as well as on a computer in the bedroom, in the living room, and on the kitchen floor. The blood of both men was found on the kitchen table and in the dining room.
The Cause of Death
[35] The deceased died of blood loss caused by several head and neck injuries. The blood loss would have been significant but not rapid because the wounds the deceased suffered did not penetrate any vital structures. Nor would the deceased have been immediately immobilized by his injuries or blood loss. He would have been able to continue involvement in a physical altercation. The pathologist found no soot in the deceased’s airways and no carbon monoxide in his blood. This meant that the deceased was not breathing once the fire got beyond its infancy.
[36] The deceased suffered 11 sharp force injuries to: the back of his head and neck (7); his upper back (1); and his lower left abdomen (3). Multiple blunt force injuries to the deceased’s head and neck included fractures on the left side of his face. Significant force was required to cause these fractures.
The Grounds of Appeal
[37] The appellant advances three grounds of appeal. He says that the trial judge erred in failing:
i. to admit the statements of Kim Rolph-Smith tendered by the defence; ii. to properly instruct the jury on the use it could make of evidence of the appellant’s after-the-fact conduct; and iii. to properly deal with evidence of improper conduct by one of the jurors.
Ground #1: The Statement of Kim Rolph-Smith
[38] This ground of appeal challenges a ruling made by the trial judge excluding evidence tendered as part of the defence case. The evidence was part of a police interview conducted of Kim Rolph-Smith on September 16, 2013, the day the deceased was killed. The specific passage proposed for admission consisted of Ms. Rolph-Smith’s recollection of a conversation about a wood chipper between Gary Lazurek and the appellant. The discussion occurred early in the morning about two days before the deceased’s death.
[39] Some additional background is essential to an understanding of the error alleged and my proposed disposition of it.
The Essential Background
[40] Defence counsel called Kim Rolph-Smith as a witness. After some preliminary questions, it became abundantly clear that the witness had no memory of meeting either the appellant or the deceased. In the absence of the witness and jury, defence counsel indicated that he wanted to bring an application under s. 9(2) of the Canada Evidence Act (CEA), R.S.C., 1985, c. C-5, or seek to have at least a portion of the witness’ police interview admitted as past recollection recorded.
[41] Counsel called Ms. Rolph-Smith as his only witness on the voir dire. The focal point of the inquiry was a part of the witness’ first police interview in which she described an early morning discussion between Gary Lazurek and the appellant about a wood chipper:
DC: Okay. Uh, have you ever met or spoken to Shane? KS: A couple of times, yeah. DC: Okay. Can you tell me more about that? KS: Uh, he came over three o’clock in the – or, two – 1:30 in the morning and, um, wanted Gary to drive him around. DC: Okay, so when was that? KS: Within this past week. DC: Okay. Do you know what day? KS: No, I can’t tell you what day – I don’t know day, ‘cause it was… DC: Okay, so he came over at 1:30 in the morning and wanted… KS: … ‘cause it – ‘cause it was – it wa-, it was t-, a total surprise, like, you know, he – he said he wanted him to – to – for him to – to do some, um, what do you call it – a chipper machine for the – for the – for the business. DC: Okay. KS: So, I took it they were trying to go and get one or he was in the idea of thought possibly steal one from his uncle’s place. DC: Okay. KS: So, that’s the – that’s the impression I got.
The Arguments at Trial
[42] Defence counsel did not pursue the application under s. 9(2) of the CEA. He contended that the relevant passage was admissible as evidence for the truth of its contents as past recollection recorded. The trial judge was not satisfied that the passage met the requirements for admission as evidence on this basis and dismissed the application.
[43] Defence counsel then sought to have the trial judge admit the same portion of the first interview, or in the alternative, both police interviews of Ms. Rolph-Smith as evidence of the truth of their contents under the principled exception to the hearsay rule.
[44] On the admissibility inquiry, Ms. Rolph-Smith was again the only witness. The parties agreed that the evidence elicited on the first voir dire applied to the second, on which much of the questioning was directed to the second police interview of October 15, 2013. Ms. Rolph-Smith testified that she had no recollection of being interviewed by the police or of the events discussed on the recording.
[45] Each police interview was audio recorded, but not video recorded. Ms. Rolph-Smith was not under oath and had not been warned about the consequences of lying.
The Ruling of the Trial Judge
[46] The trial judge was satisfied, as the trial Crown conceded, that the necessity requirement had been established. However, reliability had not been demonstrated. No evidence was adduced about the circumstances in which either interview occurred. The reliability of the passage could not be assessed. In addition, the trial judge said, the evidence had little or no probative value as evidence of an “impression”.
[47] The trial judge rejected the alternative submission that both interviews should be admitted in their entirety. He rejected this alternative on the basis that, taken as a whole, the statements were of little probative value and substantial prejudice to all aspects of the appellant’s defence.
The Arguments on Appeal
[48] The appellant begins with the submission that Ms. Rolph-Smith’s report of her contemporaneous impression of the wood chipper discussion was circumstantial evidence that a plan to take the deceased’s wood chipper was discussed in her presence. Irrespective of the capacity of the evidence to prove what was said or the actual purpose of the trip, the statements undermined Gary Lazurek’s evidence that no such discussion took place and he was inexplicably directed by the appellant to drive to the deceased’s house. The evidence should have been admitted on this basis.
[49] The appellant says that the trial judge made a further error in his assessment of the prejudicial effect of the proposed evidence in his role as gatekeeper. Four discrete errors contributed to this flawed conclusion. The trial judge violated the appellant’s right to control his own defence; failed to properly apply the relaxed approach to the admissibility of exculpatory evidence tendered by the defence; misapprehended the substance of the evidence; and failed to properly take into account the impact of evidence already admitted at trial in his assessment of prejudicial effect.
[50] In addition, the appellant continues, the trial judge was mistaken in his evaluation of the probative value of the proposed evidence. Two separate errors contributed to this faulty conclusion. The judge misapprehended the appellant’s evidence about what was discussed in Ms. Rolph-Smith’s presence. And in assessing the probative value of the proposed evidence, the trial judge failed to consider the probative value of the evidence not arising from the truth of the statement.
[51] The respondent rejects any suggestion of error in the trial judge’s analysis or in the conclusion he reached. Offered to prove the truth of their contents, the statements of Ms. Rolph-Smith did not satisfy the reliability requirement to be admissible under the principled exception to the hearsay rule. Their probative value was low or non-existent and their prejudicial effect, as the trial judge concluded, was substantial. This warranted exclusion under the governing principles. Nor was admission warranted under a relaxed approach to the hearsay rule.
[52] The proposed testimony of Ms. Rolph-Smith was relevant to the evidence given by the appellant and by Gary Lazurek. The testimony of Gary Lazurek was relevant to the appellant’s motive to kill the deceased – money owed and animosity – and to planning and deliberation – the late-night drive to the deceased’s house two days before the murder. That the proposed evidence was relevant on the issues of motive and planning and deliberation was not sufficient to render it admissible as evidence of the truth of its contents. The hearsay rule intervened and required an exception, the principled exception.
[53] The trial judge’s ruling, the respondent submits, reflects a proper application of the principled exception to the hearsay rule. No issue arose about necessity. But the appellant failed to establish reliability. Ms. Rolph-Smith could not remember the police interview nor the contents of what was said. As a result, she could not be effectively cross-examined about them including about what was said or led her to her impression about what was happening. Further, the circumstances in which the interviews were conducted provided no suitable substitutes to justify a finding of reliability. No oath. No warning about the consequences of lying. No videotaping to permit an assessment of the declarant’s demeanour. No evidence about the circumstances in which the interviews occurred. Contradiction by both Lazurek and the appellant.
[54] The submission that the trial judge erred in invoking his discretion to exclude the evidence, the respondent urges, is also unavailing. The right of an accused to control the conduct of their defence entitles them to seek the admission of defence evidence. But it does not include an unfettered right to have that evidence admitted. Rules of admissibility may foreclose its reception. Relaxation of those rules does not authorize their abandonment, as for example, of the reliability requirement here.
[55] The respondent takes issue with the appellant’s claim that the trial judge applied the wrong standard in excluding the evidence in the exercise of his gatekeeper function. The reasons betray any reliance on the standard applicable when the proponent of the evidence is the Crown. The language used, particularly the descriptive “substantial” in relation to the prejudicial effect of the proposed evidence, coincides with the proper standard for excluding defence evidence. As a result, the balancing should be accorded deference by this court and the conclusion left undisturbed.
The Governing Principles
[56] Before turning to the principles that govern my assessment of this ground of appeal, it is helpful to clarify the extent of the controversy we are required to resolve.
[57] When Kim Rolph-Smith was called as the final defence witness at trial, it became quickly apparent that she denied ever having met either the deceased or the appellant and did not recall being interviewed by the police or the contents of what she apparently said there. As a result, defence counsel sought to cross‑examine her under s. 9(2) of the CEA and to have a specific portion of her first police interview received as past recollection recorded. A voir dire was held. Ms. Rolph-Smith testified as the only witness. Defence counsel did not pursue the s. 9(2) application. The trial judge dismissed the application to have the evidence received as past recollection recorded. No appeal is taken from that decision.
[58] Defence counsel then sought admission of the same evidence, in the alternative both records of interview in their entirety, under the principled exception to the hearsay rule. In other words, he sought their admission as proof of the truth of their contents. The trial judge found the reliability requirement lacking in respect of the specific portion of the first interview and excluded the evidence of both interviews on the basis that their minimal probative value was exceeded by their substantial prejudicial effect.
[59] It is fundamental that to be receivable in a criminal trial, an item of evidence must be relevant, material, compliant with any applicable admissibility rule, and be more probative than prejudicial according to the applicable standard: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 107, per Martin J. (dissenting, but not on this point).
[60] As is well known, relevance is not an inherent characteristic of any item of evidence. Rather, it exists as a relation between an item of evidence and a proposition of fact that its proponent seeks to establish by its introduction. Relevance is a matter of everyday experience and common sense. The threshold for relevance is not high. Evidence is relevant if it renders the fact it seeks to establish slightly more or less probable than that fact would be without the evidence. We assess relevance in the context of the entire case and the positions of counsel: Calnen, at para. 108, per Martin J. (dissenting, but not on this point); R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at paras. 204-206.
[61] Trial judges retain the general discretion to exclude evidence that is relevant, material, and compliant with any applicable admissibility rule where an imbalance exists between the probative value of that evidence and its prejudicial effect: Calnen, at para. 110, per Martin J. (dissenting, but not on this point); R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 31. Where the balance settles as between probative value and prejudicial effect depends upon who is the proponent of the evidence.
[62] Where the proponent of the evidence is the Crown, the exclusionary discretion is engaged where the prejudicial effect of the evidence exceeds its probative value: Calnen, at para. 107, per Martin J. (dissenting, but not on this point); White, at para. 31. See also, R. v. Mohan, [1994] 2 S.C.R. 9, at pp. 20-21; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 3.
[63] Where the proponent of the evidence is the defence, evidence that is relevant, material, and compliant with any applicable admissibility rules may only be excluded where the prejudicial effect of that evidence substantially exceeds its probative value: R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 611; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 107.
[64] In the absence of legal error, a misapprehension of material evidence or a conclusion that is plainly unreasonable, a trial judge’s evaluation of where the balance between probative value and prejudicial effect settles attracts substantial deference on appeal: Shearing, at para. 73; Luciano, at para. 234.
[65] The admissibility rule applicable here is the hearsay rule, more specifically, the principled exception to that rule, by which evidence subject to the exclusionary effect of the rule may be received. The applicable principles are uncontroversial.
[66] First, the nature of hearsay evidence. No evidence is hearsay on its face. Said in another way, hearsay is not an inherent characteristic of any item of evidence. What warrants characterization of an item of evidence as hearsay is the purpose for which that evidence is introduced. The purpose for which the evidence is adduced labels the evidence as hearsay and engages the hearsay rule: R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 36; Khelawon, at para. 57; R. v. Tsekouras, 2017 ONCA 290, 353 C.C.C. (3d) 349, at para. 181, leave to appeal refused, [2017] S.C.C.A. No. 225. The purpose which engages the hearsay rule is when the evidence is adduced to prove the truth of the facts stated: Baldree, at para. 36.
[67] Second and relatedly, it follows where the purpose for which the item of evidence is tendered is not to prove the truth of a statement’s contents, the hearsay rule is not implicated, thus does not constitute a bar to the admission of the evidence. However, removal of the hearsay rule as a bar to reception of the evidence does not mean that the evidence will be received. Another rule may intrude, or the evidence may be excluded in the exercise of judicial discretion.
[68] Where evidence is not tendered or is admitted for a non-hearsay purpose it is not reached by the exclusionary aspect of the hearsay rule, thus does not require an exception to justify its admission. Evidence not tendered to prove the truth of its contents may have probative value as non-hearsay, as for example, to establish that a party had notice of certain information, was the speaker, or received threats supportive of the excuse of duress: Tsekouras, at para. 182; R. v. Evans, [1993] 3 S.C.R. 653, at pp. 662-663.
[69] Third, the essential defining features of hearsay. The defining features of hearsay are the fact that the purpose for which the statement is adduced is to prove the truth of its contents and the absence of a contemporaneous opportunity to cross-examine the hearsay declarant: Baldree, at para. 30, citing Khelawon, at para. 56. Hearsay evidence is presumptively inadmissible because of the difficulties inherent in testing the reliability of the declarant’s assertion: Baldree, at para. 31; Tsekouras, at para. 147.
[70] Fourth, the exceptions to the exclusionary rule. Hearsay may be admitted under a listed exception or, more recently, under the principled exception which requires its proponent to establish not only that its admission is necessary, but also that the hearsay tendered for admission is reliable: Khelawon, at paras. 2, 47; R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 23.
[71] Fifth, the reliability requirement. A proponent may establish the threshold reliability of hearsay evidence by showing that:
i. there are adequate substitutes for testing the truth and accuracy of the proposed evidence (procedural reliability); or ii. there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability).
See, Khelawon, at paras. 61-63; Bradshaw, at para. 27; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 30.
[72] To establish procedural reliability, the proponent must adduce evidence that adequate substitutes exist for testing the hearsay evidence since the declarant has not testified in court, under oath or its equivalent, and under the scrutiny of contemporaneous cross-examination. These surrogates must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement. Typical substitutes for the usual safeguards include a video recording of the statement, the presence of an oath or its equivalent, and a warning about the consequences of lying. But some form of cross-examination is ordinarily required: Bradshaw, at para. 28.
[73] Substantive reliability, the functional equivalent of Dean Wigmore’s “circumstantial guarantee of trustworthiness”, sets a higher standard for the hearsay proponent to meet. The judge or court must be satisfied that the statement is so reliable that contemporaneous cross-examination of the declarant would add little, if anything, to the process. To determine whether the statement is inherently trustworthy, the trial judge or court can consider the circumstances in which the statement was made, as well as any evidence that corroborates or conflicts with it: Bradshaw, at paras. 30-31. Substantive reliability is established where the statement is so reliable that it is unlikely to change under cross-examination: Bradshaw, at para. 31, citing Khelawon, at para. 107. See also, R. v. Smith, [1992] 2 S.C.R. 915, at p. 937.
[74] The procedural and substantive approaches to establishing threshold reliability under the principled exception to the hearsay rule are not mutually exclusive. They may work in tandem. Factors relevant to one can complement the other. But at bottom, the threshold reliability standard remains high. The statement must be reliable enough to overcome the specific hearsay dangers it presents, whether perception, memory, communication, sincerity or some combination of them: Bradshaw, at para. 32.
[75] Sometimes, embedded within a hearsay statement tendered for admission is an additional hearsay statement. To permit reception in these circumstances, each level of hearsay must be admissible under a listed or the principled exception: see R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 172.
[76] The final point concerns circumstantial evidence. Like any item of evidence, circumstantial evidence must be relevant, material, compliant with any applicable admissibility rule and more probative than prejudicial. Circumstantial evidence is all about inferences. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. Inferences arise from objective facts that give rise to those inferences. Absent such facts from which the inferences may be drawn, no inference arises, only impermissible speculation and conjecture.
The Principles Applied
[77] In my respectful view, this ground of appeal cannot prevail.
[78] At trial the principal evidence defence counsel sought to introduce was a portion of Kim Rolph-Smith’s police interview in which she described her impression of an early morning conversation between the appellant and Gary Lazurek about a wood chipper. The conversation took place about two days before the appellant killed the deceased. The purpose for which defence counsel sought to introduce this evidence and later both police interviews of Kim Rolph-Smith in their entirety was to prove the truth of what she said.
[79] In light of the purpose for which defence counsel sought to introduce the evidence and the lack of any contemporaneous opportunity to cross-examine the declarant because of her memory deficit, it was incumbent on defence counsel to establish that the proposed excerpt and interviews met the necessity and reliability requirements for the principled exception to the hearsay rule.
[80] The trial Crown conceded necessity because the declarant claimed no live memory of the interviews or their contents. That left reliability to be established on either or on some combination of procedural and substantive reliability. On the evidence adduced at trial, neither procedural nor substantive reliability, nor any combination of them was established.
[81] Procedural reliability requires adequate substitutes for testing sources of potential error so that the trier of fact can rationally evaluate the truth and accuracy of the hearsay statement proposed for admission. No such satisfactory substitutes appear here. No video to evaluate the declarant’s demeanour. No oath or its equivalent. No warning about the need to speak truthfully and the consequences of lying. Cross-examination of the declarant is not realistically available because of the declarant’s lack of memory of relevant events and of the interviews themselves. It may not also be without significance that there appears to be some issue about the competency of the declarant as a witness.
[82] The standard for substantive reliability is high. The only witness who testified on the admissibility inquiry was the declarant herself. She disclosed that the police came to her home to talk to her. Beyond that, the record is bankrupt of any evidence about the circumstances in which the interview was conducted. No evidence was adduced upon which the trial judge could be satisfied that any of the statements were so reliable that contemporaneous cross-examination of the declarant would add little, if anything, to the process. Nor could it be said that any or all of the statements were so reliable that it was unlikely to change under cross‑examination.
[83] It follows from what I have said that the application of the principles of necessity and reliability would not permit the introduction of the proposed evidence for the purpose of establishing the truth of their respective contents.
[84] The appellant’s submissions that excluding the evidence violated his right to control his own defence and failed to give effect to the relaxed approach to the admissibility of exculpatory defence evidence are equally unpersuasive.
[85] The appellant’s right to control his own defence is not unlimited. It does not entitle an accused to introduce evidence that lacks relevance or materiality or is not compliant with the applicable rules of admissibility. In much the same way, it does not permit an accused to advance a defence, justification, or excuse for which there is no evidence adduced at trial to provide it with an air of reality.
[86] Relatedly, relaxation of admissibility requirements when defence counsel tenders exculpatory evidence for reception does not assist the appellant’s quest for a ruling favouring admissibility. The principle first bruited in R. v. Williams (Ont. C.A.), 50 O.R. (2d) 321 (C.A.), at p. 372, leave to appeal refused, [1985] S.C.C.A. No. 168, and cited with approval by Cory J. in R. v. Finta, [1994] 1 S.C.R. 701, at p. 854, does not invite an abandonment of the threshold reliability inquiry when hearsay evidence is tendered by the defence: R. v. Kimberley (Ont. C.A.), 56 O.R. (3d) 18 (C.A.), at para. 80, leave to appeal refused, [2002] S.C.C.A. No. 29; R. v. Post, 2007 BCCA 123, 217 C.C.C. (3d) 225, at para. 87, leave to appeal refused, [2007] S.C.C.A. No. 207.
[87] In addition, both the specific portion of the first interview tendered for admission and the interviews themselves have embedded within them the declarant’s report of words spoken by others. To the extent that what others said to the declarant is tendered to prove the truth of what the others said, it too is hearsay and requires its own exception to justify admission. None do so.
[88] The appellant also faults the trial judge for applying the wrong standard in exercising his discretion to exclude the excerpt and interviews on the basis that the prejudicial effect of the evidence exceeded its probative value. The essence of the submission is that the trial judge applied the standard applicable when the proponent of the evidence is the Crown, rather than the more stringent standard applicable when the evidence is adduced by the defence.
[89] This submission fails for two principal reasons. The first is that the exclusionary discretion is engaged only in respect of evidence that is otherwise admissible. In this case, the appellant has failed to establish that the evidence was admissible under the principled exception to the hearsay rule or otherwise. It follows that the exclusionary discretion was not engaged. Any error in its exercise did not occasion the appellant any prejudice.
[90] Second, I am not persuaded that the trial judge applied the wrong standard as alleged. The trial judge referred to the evidence as evidence of little probative value, but substantial prejudicial effect. This is consonant with the standard applied to defence evidence, not that applicable where the proponent of the evidence is the Crown.
[91] The appellant’s submission that the trial judge erred in failing to consider the admissibility of the evidence for a non-hearsay purpose also fails.
[92] This argument is inconsistent with the position the appellant advanced at trial. There, admission was sought on the basis of the principled exception to the hearsay rule after the claim of past recollection recorded failed. The hearsay rule is engaged and an exception required to permit reception of the evidence only where the purpose of introducing the evidence is to prove the truth of what the declarant said. Where the purpose of introducing the evidence is otherwise, as is now suggested, the hearsay rule is not engaged and no exception is required.
[93] Characterizing the evidence as original evidence, thus disentangling its reception from the exclusionary grip of the hearsay rule, does not assist the appellant in his quest to demonstrate error. Every item of evidence must be relevant. At bottom, what was tendered here was a witness’ “impression” of a conversation between two others. Witnesses give evidence of what they perceive with their senses. Of sight. Of hearing. Of smell. While some exceptions exist permitting non-experts to express opinions, this evidence cannot shelter under that principle.
[94] This ground of appeal fails.
Ground #2: The Instructions on After-the-Fact Conduct
[95] This ground of appeal alleges error in the trial judge’s instructions to the jury on their use of evidence of after-the-fact conduct in reaching their verdict. The appellant does not challenge the admissibility of the evidence, or its characterization as evidence of after-the-fact conduct, only the adequacy of the instructions about its use.
[96] To better appreciate the argument advanced, it is helpful to begin with a brief description of the relevant evidence and a reference to the impugned portions of the trial judge’s instructions on its use.
The Evidence
[97] The evidence of after-the-fact conduct included both things done and lies told by the appellant in the immediate aftermath of the deceased’s death. The appellant:
i. set fire to the deceased’s bed on which his charred body was found; ii. hid a sock stained with the deceased’s blood in an old burned speaker in his backyard; iii. texted Gary Lazurek claiming that he had gone to bed at 11:00 p.m. and awakened at 3:26 a.m. the following morning; iv. lied to his uncle Ray about how he had injured his right hand, claiming that he had cut it on a broken mirror on which he placed a bloodied towel; and v. lied to the police about not having seen the deceased for about one or one and one half months before his death.
The Defence Advanced at Trial
[98] The appellant admitted that he killed the deceased, but claimed he did so in lawful self-defence repelling an attack initiated by the deceased. He did not intend to kill the deceased, nor had he planned to do so. The appellant denied having set any fire in the deceased’s home. He claimed that the deceased had done so himself.
The Charge to the Jury
[99] The trial judge and counsel discussed the contents of the charge in advance of its delivery. On several occasions, they debated what should be said about jury use of evidence of after-the-fact conduct. R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, was a focal point in their discussion about the use of the evidence that the appellant set fire to the deceased’s bed.
[100] The trial judge instructed the jury that they could consider all the evidence of after-the-fact conduct, along with the rest of the evidence, in deciding whether the appellant unlawfully killed the deceased. The judge explained that before the jury could use this evidence in determining whether the appellant unlawfully killed the deceased, they had to be satisfied first that the appellant said or did the things alleged to constitute the evidence of after-the-fact conduct.
[101] In his instructions to the jury about the state of mind required to prove that an unlawful killing was murder, the trial judge told the jury that they could consider:
i. the common-sense inference that a person intends the natural and probable consequences of their acts; ii. the evidence of the forensic pathologist who conducted the post-mortem on the deceased about the nature and extent of the injuries inflicted and the degree of force required to inflict them; iii. the appellant’s evidence about the blows he inflicted and his emotional state at the time; iv. the physical evidence at the scene as reflected in the photographs and other exhibits filed; and v. the evidence that the appellant set fire to the deceased’s bed to conceal the nature and extent of the deceased’s injuries.
[102] Towards the conclusion of his charge, the trial judge gave this instruction:
I instruct you, however, and I mentioned this a long time ago now, that whatever evidence I have summarized you on one issue may be used by you on any issue that you may think may be helpful to you. You can use the evidence then across the board. Everything you have heard you can use to decide this case in any manner that you wish. Okay? Just because I have been setting some of it on one issue, does not mean you cannot use it somewhere else. You can do whatever you want to, as long as it has some relevance to it, to what you are deciding.
[103] The trial Crown objected to the last instruction. Defence counsel agreed. The trial judge recalled the jury and said:
I indicated that the evidence you have heard may be used as you see fit, that is “across the board” was the phrase I used. I want to qualify that instruction as follows: I spoke to you of the relevance of the use of the conduct or behaviour of the accused after the assault, after the fight, including the fire and his behaviour with his Uncle Ray and the police and so forth.
That evidence may be used in this limited way, to decide whether the actions of the accused were lawful or unlawful. And the evidence with respect to the setting of the fire, to decide whether the act was the state of mind for murder, that is, to conceal the extent of injury.
[104] Apart from his concurrence with the trial Crown’s objection, defence counsel did not object to the instructions on the evidence of after-the-fact conduct. He expressly agreed with the trial judge’s corrective instruction.
The Arguments on Appeal
[105] The appellant contends that the trial judge failed to adequately instruct the jury on its use of evidence of after-the-fact conduct. Admittedly, a trial judge need not follow a set formula in providing proper instructions. But, typically, the instruction should direct the jury about the permitted and prohibited uses of this evidence and that it cannot be used for its permitted purpose unless the jury rejects any other explanation advanced for it.
[106] In this case, the trial judge omitted several essential elements of a proper instruction. He provided no caution against prohibited use and his instruction on the permitted use included no limitative words. The judge failed to tell the jury that this evidence could not be used in determining whether the murder of the deceased was planned and deliberate. The jury was not cautioned that to consider this evidence they must first reject any alternate explanations for the conduct. Nor was the jury instructed, as it should have been, that they could not infer from this evidence that the appellant was not acting in self-defence or that the intent required for murder had been established unless they were satisfied that these were the only reasonable inferences that could be drawn from all the evidence.
[107] The appellant points out that, in one respect, the trial judge misstated the substance of the evidence of after-the-fact conduct. The blood-stained sock the appellant put inside a speaker in his backyard was not that of the deceased as the trial judge described them. No evidence was adduced that this was the deceased’s sock. Although the blood on the sock was that of the deceased, remnants of sports socks were found on the deceased’s body. This misstatement could have borne directly on the jury’s reasoning process since this meant that the appellant had already planned to conceal his involvement before leaving the house and had not acted in self-defence as he claimed in his testimony.
[108] The respondent acknowledges that the trial judge misspoke when he described the origin of the sock the appellant put in his backyard speaker. But apart from this harmless error, the respondent says that the instructions met the standard required of them.
[109] Our review of jury instructions, the respondent reminds us, requires a functional approach. We are to examine the charge as a whole, mindful of the requirement that it need not be perfect, only proper. We are to determine whether the instruction enabled the trier of fact to decide the case in accordance with the governing legal principles on the evidence adduced at trial. The instructions provided here did that. What is more, an important factor in assessing their adequacy is the position of defence counsel at trial. These instructions attracted no objection from defence counsel either before or after they were delivered.
[110] The respondent submits that evidence of after-the-fact conduct is neither more nor less than circumstantial evidence. Its relevance is highly context and fact specific. It is not the subject of any bright line rules, but is commonly used to assist in proof of the unlawful character of an accused’s conduct, to negate a defence rendering conduct lawful, such as self-defence, and to establish an accused’s state of mind.
[111] Here, the respondent continues, the trial judge approached the issues in a series of logical steps reflecting the essential elements of the offence of first degree murder. As part of the evidence relevant to the issue of whether the appellant unlawfully caused death, thus was not acting in lawful self-defence, the trial judge instructed the jury that they could consider the evidence of after-the-fact conduct he described for them. This included the entire catalogue of the evidence of after-the-fact conduct. In connection with the question of whether the Crown had proven beyond a reasonable doubt that the unlawful killing of the deceased was murder, the trial judge instructed the jury that they could consider the evidence that the appellant set fire to the deceased’s bed to conceal the nature and extent of the injuries he had inflicted. This was the only item of evidence of after-the-fact conduct which the trial judge left to the jury on this issue.
[112] The respondent argues that the trial judge’s instructions made it clear that the evidence of after-the-fact conduct was simply part of the evidence available for the jury to consider in reaching their conclusions on the issues of unlawful killing and the state of mind that accompanied it. The inferences were permissive, not mandatory, the decision of the jury. The standard of proof required of each essential element was described both generally and more specifically when the evidence was entirely circumstantial.
[113] According to the respondent, cautions about evidence of after-the-fact conduct, as well as a specific direction about the need to consider and reject evidence of any alternative explanations, are context and fact-specific. In this case, the after-the-fact conduct was closely connected temporally with the offence to which it related. This was not a case where a remote connection made inference drawing more difficult and thus a caution desirable. No alternative explanations were advanced, hence the absence of instruction is of no consequence. Trial counsel did not object to the instructions given.
[114] The respondent accepts that the weight of the evidence adduced at trial supports a finding that the partially burned sock with the deceased’s blood on it found in the appellant’s backyard was his sock, not that of the deceased as the trial judge misdescribed it. But this misdescription was of no moment. The central driver of its probative value was that the appellant attempted to hide evidence that linked him to the scene of the deceased’s death. The misstatement was of no practical moment in light of the evidence that the appellant set the premises on fire incinerating the body of the deceased.
The Governing Principles
[115] Well-established precedent governs our evaluation of the merits of this ground of appeal which alleges non-direction jury instructions about evidence of after-the-fact conduct.
[116] Our approach when asked to review the adequacy of jury instructions is functional. We examine the instructions as a whole to determine whether, in the context of the entire trial, those instructions enabled the jury, as the trier of fact, to decide the case in accordance with the law and the evidence admitted at trial. The jury must be properly, but need not be perfectly instructed. The overriding question is whether the instructions, taken as a whole, properly equipped the jury to decide the case, despite the absence of instructions now said to have been required but omitted in error: Calnen, at paras. 8-9.
[117] Final instructions to the jury need not follow a particular formula. The words used, the sequence followed, and related considerations fall within the discretion of the trial judge. What matters is the general sense which the words used must have conveyed, in all likelihood, to the minds of the jury: R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 30; Calnen, at para. 8.
[118] In addition to these general principles, a wealth of precedent describes what is necessary in final instructions about evidence of after-the-fact conduct.
[119] Evidence of after-the-fact conduct is neither more nor less than circumstantial evidence. As circumstantial evidence, it allows the trier of fact to draw inferences. Those inferences are based on logic, common sense and human experience. The inferences must be reasonable according to the measuring stick of human experience and will depend on the nature of the conduct, the inferences the proponent seeks to have drawn from it, the positions of the parties and the totality of the evidence: Calnen, at paras. 111-112 (per Martin J., dissenting, but not on this point); R. v. McGregor, 2019 ONCA 307, 145 O.R. (3d) 641, at paras. 100-101.
[120] As with any item of evidence adduced at trial, evidence of after-the-fact conduct may be relevant to and admissible for a particular purpose or more than one purpose, but not for another or other purposes. In a jury trial, the trial judge should identify for the jury the permitted and prohibited purposes for which the evidence of after-the-fact conduct may be used and that or those for which it cannot be used. The language used to provide this instruction need not follow a particular formula: Calnen, at para. 113, per Martin J. (dissenting, but not on this point); McGregor, at para. 105.
[121] Typically, a jury instruction about the use of evidence of after-the-fact conduct in reaching a verdict has three components:
i. identification of the evidence as after-the-fact conduct; ii. a description of the permitted use of the evidence; and iii. a description of the prohibited use of the evidence.
See, Calnen, at para. 42; McGregor, at para. 106. Failure to provide an express instruction about the permitted and prohibited uses of this evidence is not always fatal: R. v. Adamson, 2018 ONCA 678, 364 C.C.C. (3d) 41, at para. 65; Calnen, at para. 5.
[122] Where it is admitted, evidence of after-the-fact conduct may present some unique reasoning risks. It often consists of things done and said at a time that is temporally remote from the events that form the subject matter of the charge. This may make it more difficult to draw an inference about the prior conduct by invoking retrospective reasoning. The evidence may also appear more probative than it actually is. It may be inaccurate. It may encourage speculation, give rise to imprecise reasoning, and abet decision-makers in reaching immature conclusions. As an antidote, judges instruct jurors to take into account alternative explanations for the conduct before coming to any conclusion about the persuasive force of the evidence: Calnen, at paras. 116-117, per Martin J. (dissenting, but not on this point); McGregor, at paras. 107-108.
[123] Among the issues upon which evidence of after-the-fact conduct may be relevant and admissible is proof of an accused’s mental state or intent when engaging in conduct that forms the subject matter of the charge. This includes distinguishing between different levels of culpability: Calnen, at para. 119, per Martin J. (dissenting, but not on this point). For example, an accused’s efforts at concealment may support inferences that:
i. the accused was acting unlawfully when they engaged in conduct that forms the subject matter of the charge; and ii. the accused was attempting to hide the extent of the crime, for example, in a homicide case, the nature and extent of the deceased’s injuries, thus the force required to inflict them, and further, the state of mind that accompanied their infliction.
See, Rodgerson, at para. 20.
[124] A final point concerns the standard of proof.
[125] As an item or series of items of circumstantial evidence, this evidence is not subject to the criminal standard of proof except where it is the only evidence available to establish an essential element of the offence or the offence as a whole: R. v. White, [1998] 2 S.C.R. 72, at para. 39 (“White 1998”); R. v. Morin, [1998] 2 S.C.R. 345, at p. 354.
The Principles Applied
[126] Several reasons persuade me that this ground of appeal is unavailing.
[127] The essence of the complaint, as I understand it, is that the combined force of several omissions in the charge left the jury unequipped to evaluate the evidence of after-the-fact conduct in reaching their conclusion that the appellant unlawfully killed the deceased and, when doing so, had the state of mind necessary to make the unlawful killing murder. The omissions related to the prohibited use of the evidence, the obligations to consider alternative explanations, and a caution not to reach a premature conclusion based on the evidence.
[128] To assess the merits of this claim of error, I begin with a weather eye on two basic principles.
[129] The first is that my approach must be functional, asking whether the charge on this issue as a whole enabled the trier of fact to make proper use of this evidence in rendering its decision. The overriding question is whether the jury was properly equipped to render its decision in the absence of the instructions of which complaint is now made. The instructions as a whole must be proper but they need not be perfect.
[130] The second principle has to do with the nature of the complaints advanced. These are allegations of non-direction, not misdirection. Of things left out, not things said wrong.
[131] Rarely will final instructions to a jury include everything that could be said about a particular subject like the use the jury can make of various items of evidence admitted at trial. But on review, the issue is not whether something more or something different could have been said, or some direction could have been more felicitously phrased. The issue is whether, in the context of the trial as a whole, what was said was sufficient.
[132] Misdirection does not occur when a judge fails to tell a jury everything that could be said about a particular subject. On its own, non-direction is not misdirection. Non-direction only becomes misdirection when something left unsaid makes wrong something that was said, or where what was left unsaid was essential to an accurate instruction on the subject: Adamson, at para. 71; R. v. Demeter (1975), 25 C.C.C. (2d) 417 (Ont. C.A.), at pp. 436‑437.
[133] In this case, apart from the erroneous “across the board” reference which was later corrected, the trial judge did not say anything wrong to the jury about the use of evidence of after-the-fact conduct on the issues of the unlawfulness of the killing and the appellant’s state of mind at the time. The evidence he recited was relevant to those issues and was left as part of the evidence relevant for consideration in deciding whether the Crown had proven those essential elements of the offence beyond a reasonable doubt, provided the jury made the threshold finding required to permit consideration of the evidence.
[134] Doubtless, the trial judge could have added an instruction that enjoined the use of the evidence on other issues. This could have been done expressly, or simply by adding an exclusive word such as “only” to the permitted use instruction. However, I reject the submission that such an instruction was essential as a prophylactic against improper use. The evidence was not linked directly or inferentially to any other issue. The jurors were told what it could be used for. It beggars belief that they would use it otherwise, especially in light of the corrective instruction on the “across the board” reference which advised the jurors of the use of the evidence “in this limited way”.
[135] The evidence of after-the-fact conduct in this case was not, as in many, temporally remote from the killing of the deceased. Nor were there any alternate explanations advanced worthy of consideration. The lies were admitted. The forensic evidence put paid to the appellant’s claim that the deceased set fire to his own house. And the jury instructions made it clear that the jury had to first find that the appellant set the fire to use that evidence on the issues to which it was relevant.
[136] The respondent acknowledges that the trial judge erred in his description of the blood-stained sock found in a burned speaker in the appellant’s backyard. The sock contained the deceased’s blood, but the preponderance of the evidence adduced at trial favoured the conclusion that the sock belonged to the appellant, not to the deceased as the trial judge advised the jury.
[137] The error here related to the origin of a piece of evidence admitted at trial. The trial judge had previously told the jury that it was the jury’s recollection of the evidence that counted, not the recollections of counsel or the trial judge. Where the recollections differed, the jurors were the final arbiters of the substance of the evidence.
[138] The real probative value of this evidence was that the appellant attempted to hide or otherwise dispose of evidence that linked him to the death of the deceased. The misdescription tended to indicate that the deceased was dead at the time his sock was removed, thus that he died before the fire was started, thereby was not its author. However, the forensic evidence had already provided the jury with cogent evidence to infer that the appellant set the fire. As such, the import of the misdescription was to give rise to a more limited inference – that the appellant attempted to conceal evidence. This inference remains the same regardless of who the sock belonged to. The misdescription did not attract any objection from trial counsel and caused no prejudice to the appellant.
Ground #3: The Juror Inquiry
[139] The final ground of appeal arises out of a communication sent by a juror to the trial judge shortly after the judge concluded his charge. The specific complaint is that the trial judge’s response reflects prejudicial error.
The Essential Background
[140] The appellant made two Facebook posts shortly before he killed the deceased. The texts of one of those posts was in these words
RED river RED rover who wants to be OVER
followed by several exclamation marks.
[141] In his evidence at trial, the appellant acknowledged that the post made no sense. He explained that the screen on his cellphone was damaged and that he meant to send a text
Red rover, red rover, who wants to come over
as an invitation to his friends. He denied the trial Crown’s suggestion that the texts reflected his plan to kill the deceased. The trial judge left the evidence to the jury as to whether it reflected a motive to kill the deceased.
The Juror’s Note
[142] Around the time the trial judge concluded his corrective instruction about his earlier erroneous “across the board” reference, he received and disclosed to counsel a question received from a juror:
I am aware of a song (I looked it up) by a well-known punk music duo; a song that contains lyrics that appear to have influenced Shane Wood’s last Facebook post (Red river, red rover, who wants to be over).
Should I share this with other members of the jury?
[143] The trial judge and counsel discussed how the question should be handled. No one suggested that an inquiry should be held to determine the suitability of the juror to continue participation in the jury’s deliberations. Counsel agreed with the trial judge’s proposed response and that he should provide it without repeating the juror’s inquiry. The jury was recalled. The judge instructed them:
I have this instruction for you, members of the jury. This case must be decided on the evidence we have heard and the reasonable rational inferences from the evidence. You must not speculate. You must not look elsewhere, that is beyond the evidence. Thank you very much.
The Arguments on Appeal
[144] The appellant says that the trial judge should have conducted an inquiry to determine the suitability of the individual juror and the jury as a whole to continue their deliberations. The appellant accepts the strong presumption of juror impartiality. However, the presumption is rebuttable and has been rebutted here by the juror’s own admission of improper conduct. This triggered the trial judge’s obligation to conduct an inquiry.
[145] The failure to conduct an inquiry, according to the appellant, deprives us, as the reviewing court, of an appropriate record to evaluate on. This, in turn, leaves us with no basis upon which we can rest assured that the juror did not share his information with his colleagues. The judge’s instruction was inadequate since the juror had already ignored a prior direction when they conducted research in the first place. A new trial should be ordered on the ground that a miscarriage of justice has occurred.
[146] The respondent submits that nothing that occurred here rebutted the well‑established presumption of juror impartiality, let alone the impartiality of the jury as a whole. Nor did the trial judge’s response deprive this court of an adequate record by which to determine whether a miscarriage of justice actually or appears to have occurred.
[147] The nature of the alleged irregularity is an important factor to consider in determining whether an inquiry should have been undertaken. Here, a juror “looked up” extraneous information about the source of the words contained in a text posted by the appellant. Apparently similar language appeared in the lyrics of a song. The inquiry indicated that the information had not been shared with any other jurors. The question asked was whether it could be disclosed to the other jurors.
[148] In his response, the respondent continues, the trial judge did not repeat the juror’s question. This ensured that the information the juror found was not communicated to the other members of the deliberating jury. And the instruction given underscored the jury’s obligation to decide the case on the evidence adduced at trial and on no other basis. No more was required.
The Governing Principles
[149] Two well-established presumptions apply to jurors acting in the discharge of their duties. Each is rebuttable. The first is that jurors will discharge their duties in accordance with their oath or solemn affirmation: R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 61, leave to appeal refused, [2015] S.C.C.A. No. 478. The second is that jurors understand and follow the trial judge’s instructions: Bains, at para. 61, citing R. v. Corbett, [1988] 1 S.C.R. 670, at p. 695. See also, R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 146.
[150] To rebut the presumption of juror impartiality, an appellant must demonstrate a reasonable apprehension of bias or partiality. This is not an easy task: R. v. Dowholis, 2016 ONCA 801, 341 C.C.C. (3d) 443, at paras. 18-19, 80.
[151] The circumstances that may prompt an inquiry into the suitability of a juror to continue are myriad. Section 644(1) of the Criminal Code, R.S.C., 1985, c. C-46, entitles a trial judge to discharge a juror for illness or other reasonable cause. The subsection is unrevealing about the threshold for conducting an inquiry, the factors to be considered in making that determination, or the procedure to be followed on any inquiry that is conducted. It would seem logically to follow that the decision about whether to conduct an inquiry falls within the discretion of the trial judge in much the same way as the discretion to determine the procedure to be followed on any inquiry that is held: Durant, at para. 140. See also, R. v. Giroux (Ont. C.A.), 207 C.C.C. (3d) 512 (Ont. C.A.), at para. 34, leave to appeal refused, [2006] S.C.C.A. No. 211.
[152] Decisions under s. 644(1) of the Criminal Code about the suitability of a juror to continue are afforded substantial deference on appeal. They are set aside only when the decision is tainted by an error of law or of principle, a misapprehension of material evidence, or on the ground that the decision is plainly unreasonable: Durant, at para. 152. There would seem no principled reason to adopt a different standard where the decision under review is whether to embark on an inquiry into juror suitability.
The Principles Applied
[153] I would reject this ground of appeal. In my respectful view, the trial judge was not required to conduct a juror inquiry, an argument advanced for the first time in this court. Nor did he err in the remedy he chose or in the substance of what he said in his instruction.
[154] The information provided to the trial judge by the juror who asked the question revealed that the juror had not followed the trial judge’s announced injunction against seeking outside information. The juror had “looked up” some words used by the appellant in a Facebook post. The words were part of the lyrics of a song. There was no suggestion that they were at all connected to the appellant or any kind of extrinsic misconduct or other mischief. The communication also revealed that the juror had not told any other jurors about his discovery. That the juror asked whether he should do so seems to confirm the truth of that statement.
[155] The trial judge discussed the communications with counsel. No one suggested an inquiry was necessary. All agreed that an instruction, without repeating the inquiry, was the appropriate response.
[156] Nothing that occurred here warranted a juror inquiry. The remedy afforded was a reasonable response in the circumstances. The trial judge’s decision is entitled to deference in this court. It is not cumbered by any error in law or in principle, or any misapprehension of material evidence and is not plainly unreasonable. End of story.
Disposition
[157] It is for these reasons that I would dismiss this appeal.
Released: January 28, 2022 “J.M.F.”
“David Watt J.A.”
“I agree. Fairburn A.C.J.O.”
“I agree. Doherty J.A.”
