Court of Appeal for Ontario

CITATION: R. v. Mordue, 2011 ONCA 538

DATE: 20110729

DOCKET: C48727

Feldman, Blair and Watt JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Erland Wallace Mordue

Appellant

Counsel:

Monte MacGregor, for the appellant

Roger A. Pinnock, for the respondent

Heard and released orally: July 25, 2011

On appeal from conviction entered by Justice Thomas Heeney of the Superior Court of Justice, sitting with a jury, dated April 12, 2007.

ENDORSEMENT

[1] The appellant admitted at trial that he murdered the victim but denied that the murder was planned and deliberate.

[2] The appellant raises three grounds of appeal against his conviction for first degree murder. One, the trial judge erred by failing to give a no-probative value instruction regarding the evidence of the attempted suicide by the appellant as after-the-fact conduct relevant to the issue of planning and deliberation. Two, the trial judge erred by making a lengthy review of the evidence where identity was not an issue. Three, the verdict was unreasonable.

[3] We would not give effect to any of these three grounds of appeal. There was a strong case of planning and deliberation based on the appellant’s handwritten notes that refer to the murder and the suicide, and the fact that the appellant went to the victim’s home, cut the phone line, and waited for her while drinking beer and smoking for some period of time. As the appellant did not testify, there is no explanation that the jury could consider to put these circumstances in another light.

[4] Dealing specifically with each ground. With respect to ground one, defence counsel at trial did not ask for a no-probative value instruction, but rather, used the attempted suicide evidence as part of his defence theory. Regarding ground two, the trial judge chose to review the evidence in detail. Arguably, his review could have been shorter but we see no error or any prejudice to the appellant. Regarding ground three, the Crown’s case was a strong one. There is no basis to suggest that the verdict was unreasonable.

[5] The appeal is therefore dismissed.

Signed: “K. Feldman J.A.”

“ R. A. Blair J.A.”

“David Watt J.A.”