COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Moffit, 2015 ONCA 412

DATE: 20150609

DOCKET: C51929

Doherty, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Moffit

Appellant

Ian R. Smith, for the appellant

Christine Tier, for the respondent

Heard: September 25, 2014

On appeal from the conviction entered by Justice Joseph M. W. Donohue of the Superior Court of Justice, sitting with a jury, on June 18, 2009.

Tulloch J.A.:

A. Overview

[1] Following a trial by judge and jury, the appellant, Thomas Moffit was convicted of second degree murder for the death of his domestic partner, Shelley Marie Mathieu-Read, and was sentenced to life imprisonment without eligibility for parole for at least 17 years. Ms. Mathieu-Read had not been seen or heard from since May 20, 2007. Her body was never found.

[2] The Crown’s case at trial relied heavily on the testimony of the appellant’s sister, Kathy Long, to whom the appellant had apparently confessed his role in Ms. Mathieu-Read’s disappearance. The appellant argued the Crown had failed to prove both that Ms. Mathieu-Read was dead and that he was involved in her death. In the alternative, he submitted that if the jury was satisfied that Ms. Mathieu-Read was dead, and that he caused her death, the jury should find him guilty of manslaughter and not murder.

[3] The appellant raised six grounds of appeal in his factum, but only argued four in oral argument. As he did not explicitly abandon any of his arguments, I have addressed all of them below. The arguments advanced by the appellant are the following:

1. The verdict was unreasonable;

2. The trial judge erred in his instructions to the jury on several points, namely:

(a) The appellant’s conduct before and after the killing;

(b) The appellant’s statement to Kathy Long;

(c) The caution on Kathy Long’s evidence; and

(d) The charge on manslaughter; and

3. The trial judge should have ordered a mistrial after the jury heard irrelevant and prejudicial evidence.

[4] For the reasons that follow, I would not give effect to any of these grounds of appeal.

B. Factual Background

[5] Shelley Marie Mathieu-Read disappeared in May 2007. She has been presumed dead for several years now. The location of her body remains unknown. In the months prior to her disappearance, Ms. Mathieu-Read was living in an apartment with her then-domestic partner, Thomas Moffit, the appellant.

[6] In June 2007, the appellant’s sister, Kathy Long, told a former friend, Erin Fox, that the appellant had killed Ms. Mathieu-Read. Ms. Fox believed the story was fabricated, but in August 2007, after reading of Ms. Mathieu-Read’s disappearance, Ms. Fox contacted the police. Ms. Long initially told the police she had lied to Ms. Fox, but she later recanted and implicated her brother in Ms. Mathieu-Read’s death.

[7] Ms. Long told police – and testified at the appellant’s trial – that one Friday night in May 2007, the appellant called her and asked to meet at a bar called the Puck Around. She agreed. While the appellant had sounded sober and happy on the phone, when Ms. Long arrived at the bar, the appellant was drunk. The appellant told her that Ms. Mathieu-Read was never coming back. He then went on to relay to her the circumstances of Ms. Mathieu-Read’s death.

[8] According to Ms. Long, the appellant told her that Ms. Mathieu-Read was running down the hall in their apartment building to call the police on him. He followed her. He grabbed her by her hair at the back of her head, turned her head around and broke her neck.

[9] The appellant told Ms. Long that “[s]he looked up at [him] with big dead eyes” and he could not believe “it was that easy to break somebody’s neck.” In Ms. Long’s opinion, the appellant seemed surprised that Ms. Mathieu-Read had died.

[10] Ms. Long testified the appellant told her he then dragged Ms. Mathieu-Read’s body back to their apartment. He placed her on a chair and left her there.

[11] During the conversation between the appellant and Ms. Long, he asked to borrow her truck. He wanted to use it to transport Ms. Mathieu-Read’s body to bury her. Ms. Long refused as she was unsure whether to believe the appellant. She suggested that if he had killed Ms. Mathieu-Read as he described, it was an accident, and he should contact the police. The appellant then became angry. At one point, he told Ms. Long that Ms. Mathieu-Read was, “nothing but a drug addict and a whore and nobody’ll miss her anyway.”

[12] The appellant called Ms. Long the next day and again asked to borrow her truck. Again, she refused. The appellant called the following day and told Ms. Long he needed the truck because Ms. Mathieu-Read’s body, which he had put in a box, was “starting to leak”. He said that he put Ms. Mathieu-Read in a box but he could not get her foot in and he “wasn’t that sick to cut it off”. Ms. Long refused his request for the truck, but told the appellant she would lend him the truck if he called her while sober.

[13] The next morning, the appellant called Ms. Long. This time he was sober, and Ms. Long agreed to lend him her truck. He told her he intended to dig a hole during the day, and then bury Ms. Mathieu-Read in it after dark. That day, Ms. Long lent the appellant her truck. She also lent him a wheelbarrow and a shovel. He returned the truck at around 10:30 in the evening. Ms. Long then drove him home. While on their way, Ms. Long and the appellant stopped twice: first, to leave his pants and boots in a ditch, and second, to dispose of a blanket in a creek. Ms. Long later led the police to the pants, boots and blanket.

The Appellant’s Trial

[14] As a result of Ms. Long’s statements to police, the appellant was charged with second degree murder. Ms. Long was charged as an accessory after the fact to Ms. Mathieu-Read’s murder, and her testimony was central to the Crown’s case against the appellant.

[15] Evidence was adduced at trial regarding the nature of the relationship between the appellant and Ms. Mathieu-Read. In the months leading up to Ms. Mathieu-Read’s disappearance, the police had been called multiple times to deal with disputes between the couple. On March 1, 2007, Ms. Mathieu-Read provided a written statement to police alleging the appellant assaulted her and threatened to kill her.

[16] Robin Hardman, Ms. Mathieu-Read’s daughter, testified at the appellant’s trial. At one point, Crown counsel asked her a question about the state of the relationship between Ms. Mathieu-Read and the appellant, apparently attempting to determine whether the relationship was “on” or “off” at a particular time. Ms. Hardman misunderstood the question, and responded that the relationship was “abusive”. She later stated she knew the appellant had “hurt” Ms. Mathieu-Read in the past.

[17] Evidence was also adduced, at times unintentionally, about the appellant’s character and criminal record. During her testimony, Ms. Long mentioned twice that the appellant had been in jail before. She nearly referred to an allegation that the appellant had killed someone while in jail, but was stopped by counsel before doing so. When counsel asked Ms. Long how she felt about the appellant, Ms. Long alleged the appellant had attempted to sexually assault her daughter.

[18] A video of the appellant’s booking at the police station was also introduced into evidence. In the video, the appellant stated he was “banned from firearms” and he had a “terrible” record.

[19] The trial judge gave cautionary instructions on all of this evidence which the appellant submits were inadequate. I will discuss this issue in greater detail subsequently in these reasons.

C. Grounds of Appeal

[20] As stated above, the appellant raises six grounds of appeal. Below, I address the appellant’s submission that the verdict was unreasonable. I then consider each of the appellant’s grounds of appeal relating to the trial judge’s instructions to the jury. Finally, I review the appellant’s argument that the trial judge should have granted a mistrial after the jury heard certain prejudicial evidence, because no instruction could have remedied the prejudice.

(1) Unreasonable Verdict

[21] The appellant submits that no jury, properly instructed and acting judicially, could reasonably have rendered a verdict of guilty of second degree murder, as there was no evidence that he had the mens rea required for murder. The appellant notes that the Crown was required to establish either that the appellant intended to cause Ms. Mathieu-Read’s death – under s. 229(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46 – or that he intended to cause bodily harm that he knew was likely to cause death and was reckless as to whether death ensued or not – under s. 229(a)(ii).

[22] The appellant argues that Ms. Long’s evidence of his confession was not capable of giving rise to a reasonable inference of intention or recklessness because this evidence indicated the appellant was surprised that his actions caused Ms. Mathieu-Read’s death. The appellant points to his comment to Ms. Long that he “couldn’t believe it was that easy to break somebody’s neck” and to Ms. Long’s evidence that the appellant appeared surprised that Ms. Mathieu-Read had died. He further argues that none of the evidence of his conduct before or after the killing could support an inference of intention or recklessness.

[23] I would reject this argument. It was open to the jury to infer the appellant either intended to cause death or intended to cause bodily harm likely to cause death and was reckless as to whether death ensued. Ms. Long’s evidence was capable of supporting more than one reasonable inference. The verdict was not unreasonable.

Analysis

[24] The general test for the reasonableness of a jury’s verdict is well-established and undisputed. A verdict will be unreasonable or unsupported on the evidence “if it is one that a properly instructed jury acting judicially could not reasonably have rendered”: R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 26.

[25] An appellate court is not a “13th juror”. A verdict will not be unreasonable simply because an appellate court may have a reasonable doubt about an appellant’s guilt based on its review of the record: W.H., at para. 27. However, the task of the appellate court is greater than identifying some evidence which, if believed, would support the conviction. Appellate courts must consider “not only whether there is evidence in the record to support the verdict, but also whether the jury's conclusion conflicts with the bulk of judicial experience”: W.H., at para. 28.

[26] In my view, not only was there evidence to support the jury’s verdict, but the verdict does not conflict with the bulk of judicial experience.

[27] As acknowledged by both parties, the jury was entitled to accept all, some, or none of the appellant’s statement to Ms. Long, “I couldn’t believe it was that easy to break somebody’s neck”.

[28] If the jury accepted the appellant’s statement as true, the jury could have inferred the appellant was surprised that Ms. Mathieu-Read had died, but it would have been equally reasonable for the jury to infer that the appellant intended to cause death or bodily harm and did not realize that it would be so easy to accomplish. If the jury accepted the second interpretation, it could have used this statement in conjunction with the other circumstantial evidence to find that the appellant had the requisite mens rea for second degree murder.

[29] Even if the jury did not accept that the appellant’s statement to Ms. Long was made or considered it to be untruthful, the jury could have reasonably found the appellant had the mens rea for second degree murder based on the nature of the act itself and the circumstantial evidence. For example, the jury could have reasonably concluded that the force required to break Ms. Mathieu-Read’s neck was consistent only with an intention to cause death or bodily harm likely to cause death. There was also evidence that the appellant had a motive or animus to kill Ms. Mathieu-Read – to stop her from calling the police – which could support an inference of intention: see R. v. Moo, 2009 ONCA 645, 247 C.C.C. (3d) 34, at para. 98, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 152.

[30] Although Ms. Long testified that she thought the appellant appeared surprised that Ms. Mathieu-Read had died, the jury was not bound to accept that Ms. Long’s impression was accurate. The appellant’s state of mind at the time of Ms. Mathieu-Read’s death was for the jury to decide based on all the evidence.

[31] It was open to the jury to draw the above inferences and conclude on the totality of the evidence that the appellant had the mens rea for murder. It therefore cannot be said that the verdict “is one that a properly instructed jury acting judicially could not reasonably have rendered.” I would reject this ground of appeal.

(2) The Charge to the Jury

[32] The appellant submits that the instructions to the jury were inadequate for several reasons. First, I will deal with his main argument, that the charge on the post-offence conduct evidence was inadequate and that a “no probative value” instruction was required with respect to the evidence of his conduct before the killing. I will then address his arguments regarding the charge on his statement to Ms. Long, the caution on Ms. Long’s evidence and the charge on manslaughter.

(a) Evidence of Post-Offence Conduct and Conduct before the Killing

[33] The appellant argues that while the evidence of his post-offence conduct was relevant to whether he caused Ms. Mathieu-Read’s death, it is equally consistent with manslaughter and murder and that the jury should have been instructed that this evidence had no probative value to the determination of his level of culpability. He submits the trial judge’s statement that it was his “view” that the post-offence conduct had no probative value was insufficient, considering the trial judge summarized the Crown’s position that the post-offence conduct was relevant to the appellant’s state of mind.

[34] Second, the appellant argues that the instruction contained the error identified in R. v. Hall, 2010 ONCA 724, 263 C.C.C. (3d) 5, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 499.

[35] Third, the appellant makes a parallel argument with respect to the evidence of his conduct prior to the killing. He argues that, with the possible exception of the death threat, none of this evidence is probative of his mens rea. With respect to the death threat, the appellant relies on R. v. Bucik, 2011 ONCA 546, 274 C.C.C. (3d) 421, at paras. 17-23, to argue that the jury should have been instructed that it must be satisfied that the appellant literally meant that he had intended to kill Ms. Mathieu-Read before it could use the death threat as evidence of mens rea.

[36] I would reject each of these arguments. In my view, the trial judge’s instructions were adequate in the circumstances.

(i) The charge on post-offence conduct

[37] There was substantial evidence of post-offence conduct in this case. In my view, this evidence, taken cumulatively, was capable of supporting the inference urged by the Crown, that when the appellant killed Ms. Mathieu-Read he intended to kill her or intended to cause her serious bodily harm knowing it was likely to cause her death. I take the appellant’s point that some of the evidence, if considered in isolation, might not be capable of supporting this inference. However, in my view, the charge the trial judge gave adequately equipped the jury for the task at hand.

[38] The trial judge listed the following evidence of post-offence conduct relied on by the Crown on the issue of the appellant’s state of mind:

• He did not call out for help.
• He did not try to revive her.
• He did not call 911 for medical or other assistance.
• He dragged her into the apartment and sat her in a chair and looked at her.
• The only call made in evidence, eventually, to his sister to arrange a meeting where he asked to borrow her truck to bury Shelly Marie Mathieu-Read’s body.
• He commented to the sister, “I couldn’t believe it was that easy to break somebody’s neck.”
• Kathy Long said it was her impression he was surprised.
• There is no evidence that he said he was surprised.
• There is no evidence the [appellant] said he did not mean to break her neck, he did not mean to kill her.
• When Kathy Long raised the issue of possible accident the [appellant] never agreed with that possibility or used that word.
• When Kathy Long offered to take him to the police station that night the [appellant’s] response according to her was that he got upset, mad and said, No.
• After the Puck Around meeting with his sister, at some point he moved her from a chair to a box.
• He continued to ask for the truck.
• He repeated his need to get rid of her now because she was leaking and starting to smell.
• She was in the box with her foot sticking out.
• He told the sister of his plan to dig a hole, return when it was dark and put the box with Ms. Mathieu-Read in it.
• He borrowed the truck, wheelbarrow and shovel.
• On the way home he disposed of the blanket/comforter, his pants and boots.
• He would not tell his sister where Shelley’s body was.
• He made sure by this method that she was never found and he made sure no one would ever be able to ascertain what really happened.

In addition to this evidence, there was also evidence that the appellant sounded “sober and happy” when he called his sister to arrange a meeting after killing Ms. Read, he was smiling when he told his sister that he had killed Ms. Read, and he told his sister that Ms. Read was “nothing but a drug addict and a whore and nobody’ll miss her anyway”.

[39] The trial judge instructed the jury that it could use the post-offence conduct in determining whether the appellant caused Ms. Mathieu-Read’s death. This much is uncontroversial. Then, the trial judge went on to say:

As I will shortly explain, culpable or blameworthy homicide is either murder or manslaughter. If you are satisfied beyond a reasonable doubt that he unlawfully caused her death it is my view that the after the fact conduct does not help you decide the level of culpability, whether murder or manslaughter, because it is consistent with each level.

[40] The trial judge told the jury that when considering the appellant’s state of mind at the time of the killing, it should consider all the evidence, including “his words and conduct before, at the time and after the unlawful act that caused her death.” Then, in the part of the charge dealing with the position of the Crown, the trial judge told the jury that the Crown’s position was that the appellant’s state of mind at the time of the killing could be determined in part by what the appellant did or did not do at the time. The trial judge referred to the appellant’s failure to call for help, the evidence that he dragged the body into his apartment and the evidence that the first call he made was to Ms. Long to ask to borrow her truck.

Analysis

[41] Post-offence conduct evidence is circumstantial evidence which may be probative of guilt, just like other circumstantial evidence. There is no special rule governing when evidence of post-offence conduct will be probative of guilt: R. v. White, 2011 SCC 13, [2011] S.C.R. 433, per Rothstein J. at paras. 22, 36; R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at para. 21. Rather, the general rule of relevance applies. As summarized by Laskin J.A. in R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 55:

Post-offence conduct … is not subject to blanket rules. It is circumstantial evidence whose probative value depends on the nature of the evidence, the issues at trial and the positions of the parties. Thus, we do not automatically label certain kinds of post-offence conduct as always or never relevant to a particular issue. Rather, we must consider all the circumstances of a case to determine whether the post-offence conduct is probative and, if so, what use the jury may properly make of it. In the words of Rothstein J., at para. 36 of R. v. White [2011], the overriding question is this: what do "logic and human experience" suggest that a jury can legitimately or rationally infer from the accused's post-offence conduct?

[42] When post-offence conduct has no probative value with respect to a particular issue, the jury should be so instructed. The issue of a “no probative value” instruction frequently arises when the post-offence conduct evidence is probative of whether an accused person committed the actus reus of an offence, but is equally consistent with culpability for two or more offences, such as manslaughter and murder. A jury can consider the evidence in relation to the actus reus, but to the extent a piece of evidence is equally consistent with two or more offences, the jury must not consider that evidence in determining which of the offences was committed: White (2011), per Rothstein J., at paras. 37, 39.

[43] There is a risk that evidence of post-offence conduct will be misused by juries, especially when it is not probative of an accused’s level of culpability. Trial judges must take care to ensure that this evidence is not misused to avoid the danger “that a jury may erroneously leap from such evidence to a conclusion of guilt if not properly instructed”: R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, at p. 143. Care must be taken with this evidence because, as stated by Laskin J.A. in Angelis, at para. 52, “That people will generally behave one way after they kill someone purposefully and another way after they kill someone accidentally is often a dubious assumption.”

[44] The question on this appeal is whether the post-offence conduct evidence had “some tendency as a matter of logic and human experience to make the proposition for which it is advanced” – that the appellant intended to kill or intended to cause serious bodily harm likely to cause death – “more likely than that proposition would be in the absence of that evidence”: White (2011), at para. 36. And if the evidence of post-offence conduct was not relevant to the appellant’s level of culpability, did the trial judge adequately instruct the jury to that effect?

[45] In my view, the evidence of post-offence conduct, taken as a whole, was probative of whether the appellant had the required mens rea for murder. To the extent that certain pieces of this evidence, viewed in isolation, could not support the Crown’s inference, the jury was adequately instructed.

[46] For example, the evidence of the appellant’s behaviour immediately following Ms. Mathieu-Read’s death, considered in combination with the evidence that the appellant sounded happy on the telephone with Ms. Long and the evidence that he was smiling when he told Ms. Long about Ms. Mathieu-Read’s death was capable of supporting the inference that he had accomplished what he intended to do. The evidence that the appellant did not agree with Ms. Long’s suggestion that the killing was accidental could support an inference that the appellant believed the killing was intentional.

[47] On the other hand, the evidence relating to the appellant’s disposal of Ms. Mathieu-Read’s body, viewed in isolation, could not reasonably support an inference of intention to kill. This evidence is capable of supporting the inference that the appellant did not want the body to be discovered, but does not on its own support an inference that he had the mens rea required for murder.

[48] Destruction of a body can be probative of intent if, on the evidence in a particular case, it is reasonable to infer the accused destroyed the body after causing that person’s death did so “because he knows that the victim suffered injuries that are inconsistent with a non-intentional cause of death”: R. v. Teske (2005), 2005 CanLII 31847 (ON CA), 32 C.R. (6th) 103(C.A.),at para. 86. The inference arises because presumably an individual would not take the greater risk involved in destroying a body without some reward: concealing the exact cause of death and nature of the injuries.

[49] On the facts of the present case, an inference that the appellant buried Ms. Mathieu-Read’s body in order to conceal more than the fact that he caused her death would be speculative. Unlike in Teske, the appellant did not take extreme steps, such as cremating the body. There was also no suggestion in the evidence that the body, if discovered, would reveal injuries consistent only with an intentional killing. The evidence as a whole does not support an inference that the appellant buried Ms. Mathieu-Read’s body in order to cover up injuries consistent only with an intentional killing.

[50] The trial judge could have told the jury that some of the post-offence conduct evidence, looked at in isolation, could not reasonably support an inference of intention, but had he done so, he would have had to explain in more detail how the evidence supported the Crown’s inference. Instead, he provided a general instruction and made it clear to the jury that his view was that this evidence would not help it to decide whether the appellant had the requisite mens rea for murder. The approach he took, in my view, was favourable to the appellant.

[51] Jury instructions are not held to a standard of perfection: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 2. The adequacy of jury instructions is tested “in a functional way, holding them up against the purpose they are required to fulfill”: R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, at para. 44, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 459.

[52] The instruction provided was more than adequate in the circumstances. It equipped the jury to weigh the evidence and give weight only to evidence with some probative value. The charge as a whole downplayed the potential value of the appellant’s post offence conduct on the issue of his mens rea and was sufficient to alert the jury to the “danger” of making an “erroneous leap” from evidence of post-offence conduct to guilt: Arcangioli, at p. 143.

(ii) The “Hallerror”

[53] The appellant alleges that the trial judge invited the jury to engage in the tautological reasoning criticized in R. v. Hall by “requiring them to determine whether the appellant was conscious that he committed the offence before they could use the post-offence conduct evidence to decide if he committed the offence” (at para. 142). I would reject this argument.

[54] The relevant portion of the jury instruction in this case tracks almost word-for-word the instruction disapproved of in Hall, with one important difference. The trial judge in Hall told the jury to consider whether Hall acted as he did because he was conscious of having done what was alleged against him. The trial judge here asked the jury to consider whether he acted as he did because he was conscious of having caused Ms. Mathieu-Read’s death. In other words, this part of the charge related to the use the jury could make of the post-offence conduct in deciding whether the appellant caused death.

[55] As in R. v. Kostyk, 2014 ONCA 447, 312 C.C.C. (3d) 101, causation “was only one of several steps the jury had to take before determining the ultimate question of whether the appellant was guilty of murder or manslaughter” (at para. 99). The jury was not invited to jump directly to the issue of guilt, as was the case in Hall.

(iii) Evidence of the appellant’s conduct before the killing

[56] The appellant argues that this evidence, like evidence of post-offence conduct, requires a “no probative value” instruction where the evidence is equally consistent with murder and manslaughter. Even assuming such an instruction could be required, it would not have been appropriate here as the evidence of the appellant’s conduct prior to the killing was probative of his mens rea.

[57] The evidence of the appellant’s “tumultuous relationship” with Ms. Mathieu-Read and the evidence that he uttered a death threat to her on March 1, 2007, was relevant to animus and motive. Animus and motive are probative of identity and mens rea. As stated by Watt J.A. in Moo, at para. 98:

In prosecutions for domestic homicide, evidence is frequently admitted to elucidate the nature of the relationship between the accused and the deceased. This evidence, which often discloses misconduct other than that charged, not only demonstrates the nature of the relationship between the parties, but also may afford evidence of motive and animus relevant to establish the identity of the deceased's killer and the state of mind with which the killing was done. [Emphasis added.]

As this evidence was relevant both to whether the appellant caused death and if so, his mens rea, a “no probative value” instruction was not required.

[58] The appellant acknowledges that the death threat may be probative of mens rea, but argues based on this court’s decision in Bucik that the jury should have been instructed that it could only use the death threat as evidence of mens rea if the jury was satisfied that the appellant literally meant that he intended to kill Ms. Mathieu-Read.

[59] I do not agree. Bucik is not applicable to the present case.

[60] In Bucik, the trial judge erroneously described a statement made by Bucik’s co-accused that he was going to kill the deceased as a statement that “they” – the co-accused and Bucik – were going to kill the deceased. The trial judge’s misapprehension of the evidence in this regard was significant because the mistake enabled the jury to use the statement as evidence of Bucik’s intention to jointly pursue and kill the deceased. On the evidence as it actually was, the statement could only be probative of Bucik’s intention if Bucik knew his co-accused intended to kill, which would require Bucik to have understood his co-accused to mean the comment literally (at para. 19).

[61] This court in Bucik did not state as a general principle that a trial judge must instruct the jury that a death threat is only probative of intent if the jury is satisfied that the accused meant it.

[62] For these reasons, it is my view that trial judge charged the jury adequately on the evidence of the appellant’s conduct before and after the death of Ms. Mathieu-Read. Accordingly, I would not give effect to this ground of appeal.

(b) The Appellant’s Statement to Ms. Long

[63] The appellant argues the trial judge erred in his charge to the jury on the use the jury could make of the appellant’s statement to Ms. Long. He submits the trial judge was required to instruct the jury that the jury should acquit the appellant of murder if it believed the exculpatory aspects of the appellant’s alleged confession or on the basis of the exculpatory aspects even if it did not believe those aspects, as long as the jury did not reject them as untrue. The appellant relies on Bucik, at para. 29-34, to support this argument, and on the parts of his confession that he says demonstrated surprise.

[64] In my view, the instruction to the jury on Ms. Long’s statement was appropriate. Unlike in Bucik, the aspects of the confession the appellant points to were not clearly exculpatory. Any exculpatory value depended on the jury accepting the interpretation advanced by the appellant.

[65] In Bucik, a police officer testified that the accused Harrington had made a statement to him that while he (Harrington) was at the scene of the incident he was not the one who used the weapon. The trial judge had instructed the jury:

If you decide that one or both of Ian Harrington and Mirko Bucik made a remark that may help him in his defence, or if you cannot decide whether he made such a remark, you will consider that portion of the statement along with the rest of the evidence in deciding whether you have a reasonable doubt about Ian Harrington's or Mirko Bucik's guilt.

You may give anything you find Ian Harrington or Mirko Bucik said as much or as little importance as you think it deserves in deciding this case. It is for you to say. Anything you find said by Ian Harrington or Mirko Bucik, however, is only part of the evidence in this case. You should consider it along with and in the same way as all the other evidence. [Bucik, at para. 29.]

[66] On appeal, this court held that this instruction was insufficient. The court held that the jury should have been instructed that “exculpatory evidence can be the source of a reasonable doubt even if not affirmatively believed” because “it is arguably not the kind of common sense reasoning that jurors would apply in making credibility assessments in their day-to-day lives” (at para. 33).

[67] Harrington’s statement in Bucik was purely exculpatory and was not open to interpretation. The trial judge’s error arose because the instruction focussed on whether the statement was made – which was not in issue – and failed to set out that Harrington’s exculpatory statement could be the source of reasonable doubt even if not affirmatively believed. By contrast, the appellant’s statement that he “couldn’t believe it was that easy to break somebody’s neck” is open to competing exculpatory and inculpatory interpretations. It was open to the jury to believe both that the appellant made the statement and that it was true, and nevertheless convict the appellant of second degree murder.

[68] Bearing in mind the functional approach to the review of jury instructions set out above, I am satisfied that the trial judge made no error in this portion of the instruction. The trial judge appropriately instructed the jury that they were to consider any remarks attributed to the appellant that could help the appellant in his defence even if it could not decide whether he made them.

[69] I would not give effect to this ground of appeal.

(c) The Caution on Ms. Long’s Evidence

[70] The appellant’s fourth argument is that the trial judge was required to give a full Vetrovec[^1] warning with respect to the testimony of Ms. Long. The appellant acknowledges that defence counsel at trial conceded that a Vetrovec warning was not required, but submits that because Ms. Long was charged as an accessory after the fact, her testimony changed over time, and her evidence was central to the Crown’s case, the jury should have been fully warned about the danger of relying on her evidence.

[71] The respondent submits that the instruction given by the trial judge was sufficient in the circumstances. Again, I agree with the respondent.

[72] In the pre-charge conference, Crown counsel suggested that the jury be given what is sometimes referred to as a Titus[^2] instruction, an instruction to be cautious about relying on Ms. Long’s evidence because Ms. Long was a Crown witness facing outstanding charges and might have an interest in testifying favourably for the Crown. The trial judge agreed to give the Titus instruction, and then asked counsel, “There is no suggestion that a Vetrovec is required?” Both counsel indicated that it was not required.

[73] The trial judge provided the following caution in his instructions to the jury on the evidence of Ms. Long:

Regarding the outstanding charge against Kathy Long, Kathy Long is charged with being an accessory after the fact to murder. The trial has not yet been held on that charge. A Crown witness who is awaiting trial herself on a charge may have an interest in testifying favourably for the Crown in this trial. Favourable testimony here may help the witness with her own case later, or the witness may believe that it will do so.

You should approach the evidence of Kathy Long with care and caution. When you consider how much or little you will believe of and rely upon this evidence to decide this case take into account the fact that she is herself awaiting trial on another charge. It is a factor for you to consider. How much or little it influences you is up to you.

Considering her situation, her perception, expectation or hope of benefit may be of greater importance as a determinant of credibility and reliability than the reality as explained in other evidence. If you are concerned about the reliability of Kathy Long’s testimony you may want to ask yourselves what evidence of other witnesses or concrete exhibits confirms her account.

[74] Where a trial judge is of the opinion that a witness is untrustworthy, the trial judge has the discretion to give a “clear and sharp warning to attract the attention of the juror to the risks of adopting, without more, the evidence of the witness”: Vetrovec, at p. 831. The fact that a witness is an “accomplice” is not necessarily determinative of whether a Vetrovec warning should be given: Vetrovec, at pp. 830-832.

[75] Although generally a trial judge’s decision whether to give a Vetrovec caution is discretionary and owed significant deference by appellate courts, in some circumstances, a Vetrovec caution will be mandatory: R. v. Bevan, 1993 CanLII 101 (SCC), [1993] 2 S.C.R. 599, at para. 34; R. v. Sauvé (2004), 2004 CanLII 9054 (ON CA), 182 C.C.C. (3d) 321 (C.A.), at para. 70, leave to appeal to S.C.C. refused, [2005] 1 S.C.R. xv. Whether a Vetrovec warning is mandatory depends on two factors: “the witness's credibility, and the importance of the witness's testimony to the Crown's case”: R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, at paras. 4 and 80. If the witness’s evidence “is absolutely essential to the Crown's case, more moderate credibility problems will warrant a warning. Where the witness has overwhelming credibility problems, a warning may be necessary even if the Crown's case is a strong one without the witness's evidence”:Brooks, at para. 80.

[76] In my view, a full Vetrovec warning was not mandatory in this case. While Ms. Long’s evidence was central to the Crown’s case, Ms. Long’s credibility problems were arguably more minor. It was open to the trial judge to decide, based on the factors in Brooks, that a full Vetrovec warning was not required. The trial judge’s discretionary decision is entitled to deference from this court.

[77] The trial judge’s instruction was adequate, and though a Vetrovec warning was not mandatory, it contained several of the elements of a standard Vetrovec warning: see R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 37; Sauvé, at para. 82. The trial judge explained to the jury why Ms. Long’s evidence should be approached with care, and suggested to the jury that it consider whether other evidence confirmed her account. The jury would have been fully aware of the issues with Ms. Long’s evidence.

[78] Finally, I would note that defence counsel conceded a Vetrovec warning was not required. As Bastarache J. commented in Brooks, at para. 17, counsel’s decision not to request a Vetrovec warning may be a tactical one, in order to avoid a summary of the evidence capable of confirming an unsavory witness’s testimony. Such evidence was extensive and included the police’s recovery of the discarded boots, pants and comforter in the locations described by Ms. Long.

[79] Accordingly, I would not give effect to this ground of appeal.

(d) The Charge on Manslaughter

[80] The final argument raised by the appellant in relation to the jury charge is that the trial judge failed to properly instruct the jury on the mens rea required for manslaughter. He argues the trial judge focussed exclusively on the mens rea for murder and failed to instruct the jury on the objective foreseeability element of manslaughter.

[81] In my view, this ground of appeal must fail as well. The trial judge correctly instructed the jury on the mens rea required for manslaughter, and was not required to give a more detailed charge, given that defence counsel had conceded that if the jury concluded the appellant killed Ms. Mathieu-Read, he was guilty of manslaughter.

[82] The trial judge instructed the jury that if it was satisfied beyond a reasonable doubt that the appellant had caused Ms. Mathieu-Read’s death, it should consider whether he caused her death by an unlawful act. He stated that the unlawful act must be “one that any reasonable person in the circumstances would think likely put another person at risk of some harm or injury that is more than minor or brief in nature”.

[83] The mens rea for unlawful act manslaughter is “objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act”: R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, at pp. 44-45. The trial judge correctly charged the jury on the mens rea for manslaughter when he described the unlawful act as set out above.

[84] The trial judge’s instruction on manslaughter was correct, and given defence counsel’s concession at trial, a more detailed instruction on this point was not required. I would not give effect to this ground of appeal.

(3) The Prejudicial Evidence

[85] Finally, the appellant points to a number of items of prejudicial evidence that were adduced at trial. He submits the trial judge’s attempts to deal with this evidence were insufficient or even exacerbated the prejudicial effect of the evidence. He further argues that some of the evidence was so prejudicial, no instruction could have cured it, and in these circumstances the trial judge should have declared a mistrial. Although defence counsel did not seek a mistrial, the appellant relies on R. v. Huang, 2013 ONCA 240, 115 O.R. (3d) 596, at para. 21, to argue that this does not constitute a waiver of his rights.

[86] The evidence relied on by the appellant in support of this ground of appeal includes: (1) Ms. Long’s two references to the appellant’s having been in jail before; (2) Ms. Long’s near-repetition of an allegation that the appellant had killed someone while in jail; (3) Ms. Long’s allegation that the appellant attempted to sexually assault her daughter; (4) Ms. Hardman’s comments that Ms. Mathieu-Read’s relationship with the appellant was “abusive” and that he had “hurt” her in the past; and (5) the appellant’s statements during his booking video that he was “banned from firearms” and had a “terrible record”.

[87] While I agree with the appellant that this evidence was potentially prejudicial, in my view, the trial judge’s response to the evidence during the trial and in the course of the charge was adequate in the circumstances.

The charge and the mid-trial cautions

[88] In his final instructions to the jury, the trial judge provided the following caution to the jury regarding the prejudicial evidence in the trial:

This is an important caution that I now give you about evidence of lifestyle. You have heard evidence disparaging of Mr. Moffit’s character which has nothing to do with this charge. He is not on trial for his work ethic, drinking or drug using habits, his vulgar mouth, antagonism to police, breaches of bail, periods in jail, periodic homelessness. Those aspects of his personal history have nothing to do with whether the Crown has proven beyond a reasonable doubt the charge against him.

You should particularly ignore his utterance about his record at the booking-in process in London and that comment by Kathy Long of her opinion of what he tried to do to her daughter. Each of these allusions were completely non-specific, or a matter of opinion based on hearsay and of no help whatsoever to you in deciding this case. Set such matters aside entirely. They are not subjects for proof before you and no inferences whatsoever can be drawn from the fact that they were ever mentioned.

[89] The trial judge later elaborated on this instruction and made particular reference to the evidence of the March 1, 2007 incident in which the appellant allegedly assaulted and threatened Ms. Mathieu-Read:

I have already given an instruction regarding the lifestyle of the accused. My instruction to you regarding the March 1st incident repeats first of all the caution that you must not convict on the charge before you simply because you conclude that he is the sort of person generally to do bad acts, such as abusing his partner. You must not convict on the basis of a generally unworthy lifestyle.

You may however treat the evidence of the March 1st incident as indicating a hostile, aggressive attitude by him towards her specifically. In that sense, it is evidence of a motive on his part and may point to him as the person responsible for her death. The evidence of the March 1st episode is circumstantial evidence, tending to show identity of the person who caused her death.

[90] In addition to the above comments, when particular pieces of prejudicial evidence arose during the trial, the trial judge provided mid-trial cautions.

[91] For example, when Ms. Long alleged the appellant had attempted to sexually assault her daughter, the trial judge immediately told the jury to “ignore references to matters that have nothing to do with this case”. After a brief recess, the trial judge instructed the jury that laypersons may sometimes refer to hearsay allegations and do not understand the difference between relevant and irrelevant facts, or hearsay and non-hearsay evidence. The trial judge told the jury that Ms. Long’s feelings were not “evidence of historical facts” and should play no part in the decision-making process. When the trial resumed after a weekend, the trial judge expanded on this instruction, and told the jury:

THE COURT: As I told you on Thursday, laypersons are not legally trained. On occasion they include hearsay and irrelevancies in their answers. These come out unexpectedly and therefore cannot be screened in advance. As the trier of fact you will simply ignore such statements. I am going to state a hypothetical example for you of hearsay and irrelevant statements by a witness, just so that you get the idea of these concepts. In a trial on a charge of murder suppose a witness blurts out: “After I left home he stole a cherry from the neighbours’ tree”. You would set that statement aside if you were the jurors. You would ignore it. First and foremost it is completely irrelevant to the facts the jury have to decide. Second, it is hearsay, not something the witness knows from his own observation. Therefore it is entitled to no consideration in a jury’s deliberations. So I hope that little example helps you with your deliberations.

[92] The trial judge similarly provided a mid-trial caution on Ms. Hardman’s characterization of the relationship between the appellant and Ms. Mathieu-Read as abusive, as follows:

At one point this witness went beyond the specific question that was asked by Ms. Foster and she made kind of a global characterization of the relationship between her mother and the accused. She used a popular term. She said it was an abusive relationship. That was a statement of an opinion and really it was not in response to a question about a specific fact. That is for you to decide in this case, so I will just ask you to set that opinion of a lay person aside and base the case on the facts as you find them.

Analysis

[93] A trial judge’s decision on the appropriate remedy when the jury has heard inadmissible and potentially prejudicial evidence is entitled to substantial deference on appeal, as “the trial judge is in the best position to assess the circumstances of each individual case and select the most appropriate remedy”: R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, at para. 75. As summarized by Blair J.A. in R. v. Jeanvenne, 2010 ONCA 706, 261 C.C.C. (3d) 462, at para. 58:

I accept that trial judges are particularly well-placed to assess the impact of inadmissible and potentially prejudicial evidence in the context of the trial dynamic, including the effectiveness of any warning that may be issued. Their discretionary decision whether or not to grant a mistrial is entitled to great deference. Indeed, trial judges themselves are only to order a mistrial "as a last resort, in the clearest of cases and where no remedy short of that relief will adequately redress the actual harm occasioned": R. v. Toutissani, 2007 ONCA 773, at para. 9.

[94] I am satisfied that the trial judge adequately dealt with the potentially prejudicial evidence through his mid-trial instructions and in his charge. The jury was capable of disregarding the prejudicial evidence, and the instructions given were sufficient to remedy any harm caused by the evidence.

[95] The appellant asserts that the evidence in this case raises both moral prejudice (“the potential stigma of ‘bad personhood’”) and reasoning prejudice (“including potential confusion and distraction of the jury from the actual charge”): R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 100. While I agree that evidence of bad character may create both these forms of prejudice, there was no serious issue of reasoning prejudice in this case. For example, while some time at trial was taken up by the impugned evidence to the extent the jury had to be instructed to disregard it, there was no “trial within a trial” in which the appellant attempted to disprove the attempted sexual assault allegation, distracting the jury from the central question of whether he was guilty of the offence charged.

[96] Rather, the evidence in this case raises primarily the issue of moral prejudice. The evidence described above had the potential to cause the jury to make the impermissible inference that because the appellant was capable of doing bad acts he was guilty of the offence charged.

[97] However, the trial judge clearly instructed the jury that it could not use this line of reasoning.

[98] The jury was instructed that the appellant’s “work ethic, drinking or drug using habits, his vulgar mouth, antagonism to police, breaches of bail, periods in jail, periodic homelessness” were all irrelevant to the jury’s deliberations. They were instructed to “particularly ignore his utterance about his record at the booking-in process in London and the comment by Kathy Long of her opinion of what he tried to do to her daughter.” The trial judge carefully avoided referring explicitly to an attempt at sexual assault, presumably in order to avoid unnecessarily repeating this allegation. Furthermore, the trial judge told the jury that they were not to convict on the basis that he was “the sort of person generally to do bad acts, such as abusing his partner.”

[99] In my view, with these instructions, the jury would have understood that the impugned prejudicial evidence could not support a finding of guilt.

[100] While the allegation of attempted sexual assault was dramatic, it does not follow that the members of the jury would be incapable of separating an unfounded allegation from the question of whether the appellant killed Ms. Mathieu-Read and if so, whether he had the state of mind required for murder. It is fundamental to jury trials that juries be trusted to follow the instructions given by trial judges: R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at p. 692; R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 72. The jury was told in very strong language, immediately and repeatedly, that the allegation made by Ms. Long was irrelevant to its task. In my view, this court should trust that the jury followed this instruction.

[101] The evidence of the “abusive” relationship may have been the most difficult for the jury members to put out of their minds, as there may be a tendency to reason that someone who abuses his domestic partner is the kind of person who would kill his domestic partner.

[102] However, as noted by the respondent, the evidence of the nature of the relationship between the appellant and Ms. Mathieu-Read was admissible as evidence of motive and animus on the issues of identity and intent. The introduction of such evidence was unavoidable, and the jury was properly instructed to avoid propensity reasoning based on the abusive nature of the relationship. While Ms. Hardman’s opinion was unnecessary and irrelevant, it could not have created additional prejudice in the minds of the jury, who had already heard admissible evidence on that point. The jury was instructed on the use to which it could put this evidence, and must be trusted to have followed those instructions.

[103] Finally, while the allegation that the appellant had killed someone while in jail was potentially very prejudicial, fortunately, the jury remained in the dark thanks to the timely intervention of defence counsel. Had this allegation come out, the jury might not have been capable of avoiding the impermissible reasoning that if he killed someone before, he likely did so again. However, as Ms. Long was interrupted, no harm was caused. I would reject the appellant’s submission that the jury must have known or guessed the substance of what Ms. Long was about to say. Ms. Long was cut off before any details emerged.

[104] For the above reasons, I would not give effect to this ground of appeal.

D. Conclusion

[105] Accordingly, I would dismiss the appeal.

Released: “DD” June 9, 2015

“M. Tulloch J.A.”

“I agree. Doherty J.A.”

“I agree. S. E. Pepall J.A.”

[^1]: Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811.

[^2]: Titus v. The Queen, 1983 CanLII 49 (SCC), [1983] 1 S.C.R. 259.