COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hurd, 2014 ONCA 554

DATE: 20140721

DOCKET: C54593

Gillese, Rouleau and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Peter Hurd

Appellant

Paul Calarco, for the appellant

David Lepofsky, for the respondent

Heard: May 21, 2014

On appeal from the conviction entered by Justice John R. Sproat of the Superior Court of Justice, sitting with a jury, on April 19, 2011.

Pepall J.A.:

INTRODUCTION

[1] The appellant, Christopher Peter Hurd, was convicted of the first degree murder of Loretta Lavalley in a trial before a judge and jury. In an agreed statement of facts, the appellant admitted to sexually assaulting, forcibly confining, and causing the death of Ms. Lavalley.

[2] According to the appellant, the Crown had “an almost unanswerable case”. The only defence presented at trial was that the appellant lacked the mens rea for murder because he was intoxicated due to consumption of drugs and alcohol. This defence would reduce a conviction for murder to one of manslaughter.

[3] On appeal, the appellant submits that the trial was unfair because Crown counsel, Stephen Sherriff, engaged in an unfair, sarcastic, and demeaning cross-examination of the appellant and the suggestions made were reinforced in the Crown’s jury address. Furthermore, the trial judge failed to correct the resulting prejudice. The appellant seeks a new trial.

[4] The appellant also seeks leave to admit fresh evidence of alleged juror misconduct discovered after the trial. The appellant submits that, at a minimum, this evidence deprived the appellant of the appearance of a fair trial.

BACKGROUND FACTS

[5] On November 29, 2008, the appellant was drinking alcohol and smoking marijuana with three friends. Two of the friends described the appellant as being heavily intoxicated that night[^1]. The appellant claims to have consumed magic mushrooms that evening, though this evidence was contested. Around 11:00 p.m., the appellant decided to drive a car stolen two days earlier. He started it with a screwdriver. He rear-ended a friend’s car, drove the stolen car into a cemetery, and walked back to the scene of the car accident. A witness, Vanessa Boisse, lived across the street from the car accident. She observed the appellant and testified that he seemed calm and she did not notice anything unusual about his movements or demeanour.

[6] The police arrived and Officer Peter Danos interviewed the appellant, who claimed to be a bystander who was uninvolved in the accident. Officer Danos described the appellant as calm and articulate without any signs of impairment. The appellant answered questions; Officer Danos believed him and let him go.

[7] Officer Danos found the car in the cemetery. He opined that it would be difficult to park the car where he found it and would require a significant amount of maneuvering.

[8] The victim, Loretta Lavalley, was 36 years of age. She lived alone in a ground-floor apartment near the scene of the car accident. The appellant trekked through a fish pond to the rear of Ms. Lavalley’s apartment building. He then entered Ms. Lavalley’s apartment through a sliding patio door that did not lock properly.

[9] Over at least the next 18 minutes, he beat her, tied her hands behind her back, and sexually assaulted her.

[10] At some point during the attack, Ms. Lavalley dialed 911 on her cellphone. She did not speak to the operator, but the recording, which lasted for 18 minutes, captured the sounds of the attack and voices. This included Ms. Lavalley pleading with the appellant to stop hurting her, as well as the appellant ordering Ms. Lavalley to perform sexual acts. The 911 operator called Ms. Lavalley’s landline, but the call went unanswered. The police traced the call, pounded on the front door of the apartment, and forced themselves in. The appellant, whom they encountered nude, tried to fight them. He was Tasered approximately four times before he was finally subdued and arrested. Three officers testified that he maintained his coordination and balance. The police officers who arrested the appellant did not believe him to be intoxicated due to his conduct during the physical fight but admitted that they could not tell if he was under the influence of alcohol or drugs. One, Officer Petroff, smelled alcohol on his breath. At the time of his arrest, his blood alcohol concentration was projected to have been between 156 and 199 milligrams per 100 millilitres. (The legal limit over which it is an offence to operate a car is 80 milligrams in 100 millilitres.)

[11] In the next room, officers found Ms. Lavalley lying naked from the waist down with her hands tied behind her back and exhibiting no vital signs. She was taken to the hospital where she was later pronounced dead.

[12] A cellular phone was found tucked inside the fold of a green blanket in the middle of a pile of clothing and blankets on top of a chest beside the bed in Ms. Lavalley’s room. This was the cellphone used to call the 911 dispatcher which recorded the attack on Ms. Lavalley.

[13] The appellant’s jeans were found on the floor in the bedroom closet which was open. The legs of the jeans were wet and muddy.

[14] Paramedics attended at the crime scene. The paramedics who treated the appellant initially assessed him as fully conscious, though lethargic and slow to respond to questions. His pupils were observed as being unusually small in size. At one point, his level of consciousness decreased substantially. The paramedics did not recall smelling alcohol on his breath.

[15] He was taken to the hospital, where his blood and urine were tested for the presence of drugs and alcohol. He told the paramedics that he had consumed ecstasy and Oxycontin but neither was detected in his blood. He did not mention magic mushrooms. His bodily fluids revealed the presence of marijuana, alcohol and psilocin, the metabolite of psilocybin, which is the psychoactive drug in magic mushrooms. It was not possible to determine the timing of consumption, but the level of psilocin was consistent with consumption within 48 hours of the killing. At the hospital, before being admitted into care, he became aggressive and was sedated.

[16] Hours later, he was transported by police cruiser to the police station.

[17] When arrested and in hospital, he wore a ring on his finger that was not his own but which bore the DNA of Ms. Lavalley. A friend of the victim identified the ring as possibly belonging to Ms. Lavalley. The appellant did not know why he took the ring and could not recall taking it off of Ms. Lavalley’s hand. He admitted that it was not worth stealing. When he arrived at the police station, the appellant was no longer wearing the ring. The police found the ring under the back seat of the police cruiser that had transported the appellant to the police station.

[18] At the police station, the appellant gave a video statement. He told the police that he knew and had interacted with Ms. Lavalley and that she had invited him into her apartment. The police could not find any evidence that the appellant and Ms. Lavalley knew each other.

[19] Dr. Michael Pollanen, the Chief Forensic Pathologist for the Province of Ontario, testified for the Crown. In his opinion, the cause of death was deprivation of oxygen to the brain due to strangulation. However, he could not rule out death from blood in Ms. Lavalley’s air passage as a contributing cause.

[20] Dr. Joel Mayer, an expert in pharmacology and toxicology was called by the defence. He testified that someone with the appellant’s blood alcohol content would be significantly or seriously intoxicated but he could not say whether the appellant’s projected blood alcohol level would have eliminated murder mens rea. The appellant was a long-time alcohol and drug abuser and frequent users build up tolerance thereby reducing the effects of intoxicants. He also testified that marijuana slows thinking and impairs thought, and psilocybin could produce hallucinations, but the combined effect of psilocybin, alcohol and marijuana is unknown. He testified that a person may not show outward signs of impairment but still have cognitive impairment. The expert agreed that it was not possible to say what level of intoxication would deprive a person of the knowledge that they were killing another person.

[21] At trial, the Crown took the position that this was a clear and overwhelming case of first degree murder; the appellant had the intent for murder and this was not a case of manslaughter. The Crown prosecutor argued that the appellant strangled Ms. Lavalley because he did not want the police to discover that he had brutally sexually assaulted her. In support of this theory, the Crown noted:

• The tape revealed that he was deliberately hurting Ms. Lavalley for 15 minutes until the strangulation began.
• Ms. Lavalley’s cellphone was found inside a blanket in the middle of a pile of bedding and it was likely that she was hiding the phone from the appellant, making it more likely that his conduct was intentional.
• The appellant accelerated the murder in response to the presence of police. Ms. Lavalley stopped screaming before the third of nine knocks on her apartment door by the police.
• The reason the appellant put up a struggle with police was because he knew Ms. Lavalley was dead. For this reason, he never asked about the victim’s condition while being interrogated at the police station.
• The appellant’s actions were strategic and calculated:
  • After the car accident, the appellant and his friend planned to drive the cars in opposite directions to avoid police;
  • The appellant tricked Officer Danos into believing that he was merely an innocent bystander;
  • In the video statement the appellant gave to police after the crime, he maintained that he knew Ms. Lavalley and that she had invited him into her apartment. In cross-examination, he said he had never met Ms. Lavalley before. He agreed that it was a lie that he had been invited into her premises.
• At the time of his arrest, he was wearing a silver ring on his pinkie finger. The Crown argued that the appellant took the ring as a trophy and tried to hide it in the cruiser.
• While the appellant was probably too intoxicated to drive, he was not too intoxicated to form the intent for murder. The officers who arrested the appellant testified as to his balance, co-ordination, and tenaciousness in the fight. Officer Danos found the appellant’s car parked in a location in the cemetery that, in his view, required difficult manoeuvering in very poor lighting. The appellant had parked the car in the cemetery about 20 minutes before the 911 call from Ms. Lavalley commenced.

[22] At trial, the appellant took the position that he was intoxicated and therefore lacked the necessary mens rea for murder. He relied on the evidence of the pharmacology and toxicology expert, the evidence of his two friends and his own testimony. Additionally, he relied on a reference to drug consumption in the 911 recording and the evidence of Laura Grava, the appellant’s sometime spouse and mother of his child, who testified that he had a history of drug and alcohol abuse and that she had observed him in the week preceding the crime with a white powder, mushrooms and alcohol. She described him as paranoid and incoherent when under the influence of drugs and alcohol. She testified that on the day of the killing, there were two 60 ounce bottles, one of rum and one of vodka, that were being consumed by the appellant and two others, one of whom testified that the appellant engaged in three hours of non-stop drinking. Another witness, Esha Rani, testified that she saw the appellant use marijuana that night. No one saw him take magic mushrooms that night or heard him saying he was doing so.

FRESH EVIDENCE

[23] The fresh evidence includes a Globe and Mail newspaper website report on the case. In the comments section, a person self-identifying as “Shadsfan” stated:

I was a juror on this trial and was pleased that we were all able to deliver the justice required within the frame of the law and get Loretta’s family some decent closure on their sad loss. At the trial’s end, one of her family called a quiet “thank you” to me as I left the jury box. It was heart wrenching for me and although I could not respond, I would like her and her friends [and] family to know that Loretta was always in our thoughts as we deliberated on the proceedings and agreed on a first degree charge. May Loretta rest in peace and may her family find solace in her memory. I only wish their [sic] was a law that would have allowed us to go even further in this terrible case. If we can’t bring back the death penalty, we should at least increase the sentences. RIP Loretta.

[24] The Globe and Mail website provided for responses to comments. Someone self-identifying as Kate and as a relative of Ms. Lavalley thanked the juror for the verdict.

[25] Shadsfan replied, stating that “[t]he Crown prosecutor Mr. Sherriff did a good job and made some interesting comments to the press which I must agree with.”

[26] The appellant also seeks to introduce news articles in which, after the verdict, Mr. Sherriff is reported as stating that the appellant was capable of killing again and the verdict had the potential to or did prevent more murders.

[27] The appellant submits that this evidence, which was discovered after the verdict, reveals that a juror acted improperly. The appellant argues that the juror failed to abide by his oath to try the case upon the merits and without favour by identifying with the deceased and her family; wishing the appellant could be executed; offering to meet with a relative of the deceased; and agreeing with inflammatory post-verdict comments made by the Crown that the convictions in the case had prevented further murders. The appellant argues that this misconduct, at minimum, deprived the appellant of the appearance of a fair trial and demands the intervention of this court.

GROUND OF APPEAL

[28] The appellant argues that the accused was deprived of a fair trial due to the inflammatory statements made by Crown counsel, Mr. Sherriff, in his opening address, cross-examination and closing address. He asserts that Crown counsel’s conduct failed to meet the standards demanded of his office. The appellant submits that although the prosecution’s case appeared very strong, no conviction should rest upon a trial conducted in this manner. Moreover, he submits that the juror’s statements described in the fresh evidence also demonstrate the depth of improper conduct by the Crown. He argues that the fresh evidence demonstrates an appearance of bias. In these circumstances, he states that the verdict cannot stand and a new trial should be ordered.

DISCUSSION

[29] I would dismiss the appeal. In my view, while some of Mr. Sherriff’s comments were ill-advised and somewhat provocative, the appellant was not deprived of a fair trial.

[30] The appellant relies on numerous examples of statements made by the Crown in support of his position. Most of the alleged improprieties are thoroughly canvassed and answered in the Crown’s factum. Many are unfounded, overstated or immaterial. I have considered the instances both individually and cumulatively and have determined that it is unnecessary to address each example. My approach here mirrors that adopted by Moldaver J.A., as he then was, in R. v. Clark (2004), 2004 12038 (ON CA), 69 O.R. (3d) 321 (C.A.), at para. 122. That said, I will expressly address the most critical allegations.

[31] Moreover, I note that no fault may be found with the trial judge’s control and conduct of the trial or with his charge. Indeed, the appellant was satisfied with the charge.

A. Legal Principles

[32] Crown prosecutors are advocates who are expected to act rigorously but fairly, persuasively but responsibly. A criminal prosecution takes place within the parameters of an adversarial system. As Moldaver J.A. emphasized in Clark, at para. 126, a murder prosecution is not a tea party: “both sides [are] entitled to press their case and put their best foot forward.”

[33] On the other hand, as noted by this court in R. v. Henderson (1999), 1999 2358 (ON CA), 44 O.R. (3d) 628 (C.A.), at p. 638, Crown counsels’ role is unique given their role as “ministers of justice”. Rand J. described the role, as far back as 1954, in R. v. Boucher, 1954 3 (SCC), [1955] S.C.R. 16, at pp. 23-24:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

[34] While these principles are easy to state, Crown counsel’s dual role presents a certain tension and the application of the principles sometimes proves challenging. Nonetheless, Crown counsel must never part company with fairness and integrity. The fundamental question to be answered in each case is: has the accused been deprived of a fair trial?

B. Allegations of impropriety

(1) The Ring

[35] In his opening address, Crown counsel took the position that the appellant took the victim’s ring as a trophy and that he later tried to hide it in the police cruiser. Under cross-examination, the appellant testified that the ring was not his and he did not know why he took it. He agreed that it did not look like it was worth stealing. Crown counsel said that he was going to make an ugly suggestion to the appellant namely, that the ring was a trophy, and he questioned whether the appellant had “any nicer version of this” to offer up.

[36] The defence objected on the grounds that the question could not be answered since the appellant had no recollection and that the question invited speculation and argument. Defence counsel suggested that the Crown simply make the argument in his closing address to the jury: “…if Mr. Sherriff wants to make that argument he’s more than welcome to make that argument. Let him make that argument to the jury in his closing address.” Mr. Sherriff responded that he was giving the appellant a fair chance to explain something before putting an ugly theory to the jury.

[37] The trial judge ruled that the Crown was entitled to ask whether the appellant could think of any reason why he would have taken the ring. However, questions suggesting that there was an onus on the appellant to come up with an explanation were to be avoided. The Crown then asked the appellant if he could think of any reason why he would have taken the ring and the appellant replied that he could not.

[38] In his closing address, the defence expressly raised the trophy argument, and stated that if the appellant had taken the ring as a trophy, he would have removed it when the police arrived. Defence counsel offered that it was most likely that the appellant simply lost the ring in the police cruiser without realizing it. In his closing address, Crown counsel submitted that the ring was a thoughtful trophy which showed that the appellant was thinking and therefore had the state of mind necessary for murder.

[39] In his charge to the jury, the trial judge stated that the fact that the appellant left the ring in the police vehicle was not in itself relevant to ascertain whether he had murder mens rea. This was because, as a matter of common sense, this conduct was equally consistent with his having committed manslaughter. In addition, the fact that the appellant might have stolen the victim’s ring could not be considered to the extent that it indicated bad character. He then referred to the ring again when summarizing the appellant’s testimony. The trial judge did not refer to the Crown’s trophy argument.

[40] The defence did not object to the Crown’s closing argument, nor did he seek any instruction from the trial judge.

[41] The appellant argues that the Crown’s line of questioning portrayed the appellant as a twisted psychotic. This attacked the appellant’s disposition and prejudiced the defence. Moreover, there was no correction by the trial judge. Additionally, the appellant submits that by his questioning, the Crown also suggested that the appellant bore the onus to refute this theory.

[42] In my view, on the basis of the record, it was open to the Crown to invite an inference that the appellant took the ring as a trophy to assist in showing that he had murder mens rea. Although not determinative, neither of the two defence lawyers at trial ever argued that this was an impermissible Crown argument or inference. Nor did they argue that a mistrial was required in response to this issue. Indeed, the Crown was invited to address this argument in its closing submissions.

[43] The defence was able to answer the theory and in fact did address the trophy argument in its own address to the jury. The trial judge did not make any reference to the Crown’s trophy argument and correctly instructed the jury on the burden of proof. In any event, the questioning did not impermissibly shift the burden of proof. Lastly, the judge’s instructions made it clear that lawyers’ comments, including questions asked of witnesses, do not constitute evidence unless agreed to by a witness.

(2) Causing Pain to Ms. Lavalley

[44] Under cross-examination, the appellant admitted to hitting the victim and hearing sounds of pain, yet claimed that he did not know she was hurt and did not hear her repeatedly asking him to stop or telling him that she was hurt. Crown counsel suggested to the appellant that he must have enjoyed hurting Ms. Lavalley. The appellant responded that he did not and that he did not know what he was doing.

[45] In his closing address, Crown counsel argued that the appellant deliberately inflicted pain on the victim in spite of her protests and that this constituted proof that he knew what he was doing. She suffered a beating that far exceeded what was needed to compel her to submit to the sexual assault. He stated:

This crime is foreign to you and it appears senseless to you for good reason, but don’t conclude that it was senseless for him. He inflicted so much pain and suffering for so long he must have been getting something out of it in a twisted way or he would have left. You will not be able to understand that. It doesn’t mean that he didn’t want what he was doing. You can’t hope to understand what satisfaction he wanted. Did he want control, power, dominance? Did he get pleasure out of her pain? Who knows? And it doesn’t matter. It does not matter. All that matters is, did he intend to kill her not why did he intend to kill her.

[46] The trial judge provided the standard instruction that what lawyers say is not evidence and that the jury should not engage in bad character or propensity reasoning. In addition, the trial judge summarized the Crown’s position which included the allegation that he was intentionally hurting the victim which, in that sense, revealed intentional conduct.

[47] The appellant submits that the cross-examination questions and closing address suggested that the appellant enjoyed hurting the deceased, portrayed him as a sadist, was not based on evidence and was designed to prejudice the appellant.

[48] Again, in my view, it was open to the Crown to suggest that the appellant enjoyed hurting Ms. Lavalley. There was an evidentiary basis for the question. The beating suffered by Ms. Lavalley far exceeded the force necessary to submit to a sexual assault. The attack lasted at least 18 minutes. As so clearly evidenced by the 911 recording, Ms. Lavalley experienced extreme pain and made repeated pleas that the appellant stop. The appellant admitted that he heard her sounds of pain. Since the jury heard the 911 recording, it was an inference the jury could have drawn even if the Crown had said nothing.

[49] While Crown counsel’s wording might not have been ideal, this was a fair line of questioning. The line of questions was relevant to the appellant’s intention and the Crown gave the appellant an opportunity to respond to the allegation.

[50] The Crown’s statement that the jury could not hope to understand the appellant’s satisfaction was not designed to portray the appellant as a sadist. Rather, it was designed to refute a possible inference that due to the aberrant and alien nature of the crime, the appellant must not have intended his actions. It was open to the Crown to deflect this possible inference by cautioning the jury that an inability to relate to the appellant’s actions did not mean that there was no murder mens rea.

(3) The Appellant’s Struggle with the Police

[51] In his examination-in-chief, the appellant admitted that he fought with the police as they tried to get into the apartment. The Crown in cross-examination asked whether the appellant knew he was delaying the police from rescuing the victim by struggling with them. The Crown then proceeded to suggest an alternative, namely that the appellant already knew the victim was dead when struggling with the police and the reason he struggled was to avoid being captured. The precise exchange was as follows:

Q. Now, I am not going to suggest to you that you are struggling with the police so that [the victim]’s going to die. I’m not going to suggest that. That would be very cruel. I’m not going to suggest that.

A. Then why would you say it?

Q. Well, no – because – I’m going to suggest to you another alternative. You know she’s dead. You already know she’s dead and therefore it’s all about you. It’s all about you getting out of there. You don’t say to the police, Help her. Go there. There’s a lady in the room. You have left her for dead. That’s my suggestion.

A. I don’t believe that. I was not aware of any of that.

[52] The appellant submits that despite the Crown’s “flimsy cover”, the Crown was in fact improperly suggesting that the appellant, whom he portrayed as a psychotic, sadistic killer, was doing everything he could to ensure the victim expired by preventing any attempt to rescue her.

[53] The statements made by the Crown by way of preamble to his questions ought not to have been made. While the cross-examination removed the inference that the appellant was struggling with the police so that Ms. Lavalley would die, the statements were largely unnecessary. That said, from the context of the trial as a whole, it is clear that the Crown’s position throughout was not that the appellant was trying to ensure that the victim died, but rather that the appellant knew the victim was dead before fighting police. This position was consistent with both the Crown’s closing address and the trial judge’s summary of the theory of the Crown case. The cross-examination did not seek to advance the inference that the appellant was struggling with the police so that Ms. Lavalley would die. The statements made by the Crown by way of preamble to his question ought not to have been made but in context it did not prejudice the appellant.

[54] Moreover, in the part of the jury charge that instructed the jury on the state of mind required for a finding of murder, the trial judge noted that the jury may consider “the motive suggested by the Crown, namely to commit sexual assault and then to kill to avoid detection.” The trial judge also noted the defence’s argument that the appellant lacked any motive to kill, and that he was heavily under the influence of drugs and alcohol. Again, while not determinative, it is notable that the defence did not object.

(4) Ms. Lavalley’s Photograph

[55] The parties agreed to admit a photo of Ms. Lavalley into evidence. In examination-in-chief, the appellant testified that although he initially told the police that he knew the victim, after seeing pictures of her, he discovered he did not know her.

[56] During the appellant’s cross-examination, the Crown placed a picture of Ms. Lavalley on the screen. It was in view for a period of about eight minutes during the Crown’s questioning on the appellant’s knowledge of Ms. Lavalley prior to the offence. The defence objected to the Crown’s line of questioning and asked that the photograph be taken down. The trial judge stated that he did not think that the victim’s photograph should be left on display any longer.

[57] There was no basis for appellate attack on the Crown’s conduct in these circumstances. The photograph was clearly relevant to the questions going to the appellant’s prior knowledge of the victim given the appellant’s own evidence in chief and was taken down after approximately eight minutes.

(5) Knowledge of Ms. Lavalley

[58] In a statement given to the police on the night of the killing, the appellant told the police that he knew the victim and had hung out with her in the past. As mentioned earlier, at trial he testified in-chief that he did not know her. In cross-examination, the Crown said: “So you kept on telling them until this trial, until this trial, you keep on telling the police that you knew this lady.” The defence objected on the basis that Mr. Sherriff was alleging that the appellant was tailoring his evidence to fit the disclosure, and that this allegation was impermissible.

[59] The trial judge agreed. The Crown was permitted to continue with the cross-examination on the prior inconsistent statement without suggesting in any way that if the appellant’s testimony was true, he should have come forward earlier.

[60] The appellant now submits that the Crown’s comments were misleading because they suggested that there were multiple false statements by the accused that he knew the deceased whereas in fact, there was simply one statement to the police.

[61] I reject this submission. Although the original question may have suggested multiple false statements, after the objection the Crown only referred to one police statement and in any event, there was no objection on this basis by defence counsel. Moreover, the trial judge gave both a mid-trial instruction and a further instruction in his final charge on the actual basis for the objection. There was no prejudice caused to the appellant.

(6) Hiding of the cellphone in the blanket

[62] At some point during the attack, Ms. Lavalley dialed 911 on her cellphone. One of the investigating officers testified that the cellphone was found in the fold of a green blanket on top of a chest in the apartment.

[63] The appellant argues that Crown counsel misstated the evidence when he suggested, in cross-examination, that Ms. Lavalley had the presence of mind to hide the cellphone under a blanket when there was no such evidence. The appellant submits that there was no evidence that Ms. Lavalley “hid” the phone at all, and that this misstatement left the jury with the impression that the appellant’s actions were calculated and that the deceased had to take steps to hide the phone or the appellant would have terminated the call to prevent interference with his murderous plan. If the phone had not been noticed by the appellant, this would be consistent with unplanned or spontaneous conduct which would suggest the absence of a plan to kill.

[64] At trial, when defence counsel objected to the Crown’s statement, he conceded that while the Crown could argue in closing that the victim put the cellphone in the blanket, this theory should not be put to the appellant in cross-examination. The trial judge ruled that the Crown could ask how the cellphone got into the blanket but stated that there was no need to open this question by saying that the victim had the “presence of mind” to put it there. After the jury returned, the Crown asked the appellant if he had any memory of seeing the phone or of the victim or himself putting it there or anything about the phone. The appellant responded that he could not remember a phone.

[65] In his opening address to the jury, the Crown did not urge upon the jury that the victim had the presence of mind to put the phone in the blanket. However, the Crown did argue that Ms. Lavalley had tucked the cellphone into a blanket in the bedroom. The defence did not object to this.

[66] The trial judge’s charge to the jury referred to the 911 recording but did not refer to the cellphone’s location or how it arrived there.

[67] In my view, it was open to the Crown to ask the jury to infer that the victim hid the cellphone given that she had used it to call 911 and given that one of the investigating officers testified that the cellphone was found in the fold of a green blanket on top of a chest in the apartment. There was no objection by defence counsel to the Crown’s opening address and it was conceded that the Crown could invite this inference in its closing address.

(7) Travel through water

[68] The agreed statement of facts stated that the appellant’s lower clothing was wet when found. It also indicated that the morning after the killing, a community resident noticed that the ice on the pond in his backyard was broken. In his closing, defence counsel conceded that the appellant likely went through a pond the night of the killing.

[69] In cross-examination, the appellant admitted to being aware that police have tracking dogs. The Crown then suggested that “going cross country, stepping into a pond which has got water in it, icy water, would help throw tracking dogs off their scent.” In his closing address, the Crown argued that the appellant’s conduct in avoiding the police demonstrated that he was making deliberate, thoughtful decisions the night of the killing.

[70] The appellant submits that it was not open to the Crown to suggest that he deliberately travelled through water to impede police dogs from trailing him: there was no evidence of police dogs being used and this suggestion was improper because it portrayed the appellant as conscious and calculating.

[71] I do not accept this submission. The absence of evidence that the police actually used dogs that night is irrelevant. The Crown’s question simply went to whether the appellant’s conduct was purposeful. Furthermore, the defence closing address used the fact that the appellant likely went through the pond as additional evidence of intoxication. It was open to the Crown to advance a different inference.

(8) Ms. Boisse

[72] The appellant complains that in cross-examination the Crown invited the appellant to comment on the credit of Ms. Boisse, a witness who had identified him as being involved in the car accident that occurred prior to the killing. He submits that the appellant’s opinion on the evidence of another witness is irrelevant.

[73] The trial judge instructed the Crown to refrain from asking the appellant to comment on the credibility or correctness of other witnesses’ evidence. In his jury charge, the trial judge instructed the jury that the appellant’s view of other witnesses’ evidence was irrelevant.

[74] This direction corrected any impropriety.

C. Fresh Evidence

[75] The fresh evidence, even if assumed to be accurate, does not prove Crown misconduct nor that the juror gave the defence short shrift as alleged by the appellant. First, it must be recalled that the appellant admitted to sexually assaulting, forcibly confining, and causing the death of Ms. Lavalley. Secondly, there is no direct evidence of Mr. Sherriff’s post-sentence public statement and in any event by that time, the jury had been discharged so it could not have affected its deliberations. Lastly, none of the statements made by the juror vitiated the verdict. There was no compromise of the integrity of the trial.

CONCLUSION

[76] In my view, the conduct of Crown counsel examined in the context of the entire trial cannot be said to have resulted in the deprivation of a fair trial. While the behaviour of the Crown could not be characterized as model in nature, I am not persuaded that the appellant had an unfair trial.

[77] Accordingly, I would dismiss the appeal and the motion to admit fresh evidence.

Released:

“JUL 21 2014” “S.E. Pepall J.A.”

“EEG” “I agree E.E. Gillese J.A.”

“I agree Paul Rouleau J.A.”

[^1]: This trial testimony was somewhat inconsistent with previous statements they had made to the police.