Court of Appeal for Ontario

Date: August 28, 2017 Docket: C57433

Justices: Weiler, Feldman and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

Terry Tremble Appellant

Counsel:

• Richard Posner and Lance Beechener, for the appellant
• Milan Rupic, for the respondent

Heard: April 24, 2017

On appeal from the conviction entered by Justice John R. Belleghem of the Superior Court of Justice, sitting with a jury, on February 21, 2013.

Weiler J.A.:

A. Overview

[1] Adrienne Roberts was murdered in the basement of her home. The appellant, Terry Tremble, her husband, was found guilty of first degree murder following a trial before a judge and jury. He appeals his conviction on three grounds. The first two grounds concern his O'Connor application and his attempt to raise an unknown third party suspect defence at trial. He submits that the application judge erred in dismissing his O'Connor application for production of criminal investigation files relating to another murder and a vicious assault, crimes that he alleged were strikingly similar to the Roberts murder. He also argues that the trial judge erred by dismissing his alternate suspect defence application. It is his position that he should have been able to put publicly available information about the other murder and assault before the jury so as to point out the alleged similarities between those two crimes and the Roberts murder.

[2] The appellant's third ground of appeal is that the first degree murder verdict was unreasonable and that the proper result is to substitute the verdict of second degree murder.

[3] For the reasons that follow, I would hold that neither the application judge nor the trial judge erred in their rulings. I would also hold that the jury's verdict of first degree murder was not unreasonable. Accordingly, I would dismiss the appeal.

B. Facts

[4] In order to appreciate the positions of the parties respecting the issues raised it is necessary to review the evidence in detail. In order to do so, I have drawn on the trial record, the facta of the parties, and the trial judge's charge to the jury.

(1) Evidence of Motive

[5] At the time of her death on October 6, 2010, Roberts, who was 33 years old, had been married to the appellant, then 50, for more than a year. They had an infant son, Caleb, who was approximately eight months old. Shortly after Caleb was born, Roberts moved down to the basement of their home, which was located at 116 Schmidt Drive in Arthur (the "Arthur home"). The appellant's father, Alvin Tremble, who was in his 80s, was living on the main floor of the home. He had a caregiver, Betsie Follings, who came in to look after him while Roberts was at work. The appellant lived on the main floor of the home and also spent time on his father's farm near Hanover. He looked after that farm as well as his own and was also employed at Schaus Land and Cattle.

[6] Roberts told the appellant she wanted a divorce on September 21, 2010. She later told friends and family as well as the police that, when she did so, he became upset, screamed at her, and assaulted Caleb. Roberts met with her divorce lawyer on September 30, 2010 and told him that she was staying with her father and wanted the appellant out of her house. After the alleged assault, Roberts kept Caleb away from the appellant. The appellant tried to reconcile with her but was rebuffed.

[7] On October 4, 2010, Roberts, who was a paramedic, worked the night shift at Guelph General Hospital and then went to the Ontario Provincial Police (the "OPP") station in Fergus, where she gave a videotaped statement to Constable Grasman in which she discussed her worsening relationship with the appellant, her wish to get a divorce and the appellant's assault on Caleb. She also said that the appellant subsequently accused her of infidelity. When Constable Grasman asked her whether she feared the appellant might seriously injure or kill her or Caleb, she responded, "Most definitely." After leaving the police station, Roberts called the babysitter to confirm that the sitter could look after Caleb until 8 a.m. the next day. At 5 p.m. she went to her father's house and told him the appellant was going to be arrested for assaulting Caleb. Her father had never seen her so frightened.

[8] On the morning of October 5, the appellant spoke to his friend William Bucholtz. The appellant indicated he was upset by the state of his marriage. Bucholtz had never seen the appellant so upset, and he was concerned about his emotional state. Bucholtz told the appellant, "Don't do anything stupid."

[9] At 12:20 p.m. that same day, Constable Grasman contacted the appellant and asked him to attend the Fergus police station. When the appellant arrived at 4:52 p.m., he was arrested for the assault on Caleb. He was then released on a promise to appear with conditions prohibiting him from communicating with Roberts and Caleb and from attending the Arthur home except to attend on one occasion with a police officer to get his possessions. Constable Grasman then informed Roberts of this. She appeared shocked and upset to her paramedic partner, Amy Wagner, and expressed concern that she had gone too far. When Roberts went to work on the night of October 5, she called the appellant's brother, Wayne Tremble, at 7:54 p.m. and told him the appellant had been charged with assault and the marriage was over. She also said that Alvin needed to be relocated. Wayne told her he and his family would give it their immediate attention. He arranged for his sister, Marjorie Porter, to come and get their father the next day.

[10] Shortly before 9 p.m., the appellant called his friend Ralph Schmidt who had a farm next to the appellant's farm. The appellant then came over to speak to Schmidt from approximately 11 p.m. until about 1 a.m. on the morning of October 6. Schmidt testified that the appellant planned to find a lawyer the next morning and was worried about not being able to see his son again. The appellant explained that he could not return to the Arthur home and had to move to his farm. Schmidt said that the appellant was emotional when they spoke but seemed normal when he left. The appellant said he was going to his father's farm.

[11] At trial, the position of the Crown was that the appellant killed Roberts because he was angry about: (1) the breakup of his marriage; (2) Roberts' refusal to let him see Caleb; and (3) being charged with assault. The position of the defence was that the appellant had no motive to kill Roberts. He was sad and hurt, but not angry with Roberts. He never spoke ill of Roberts; he respected her. He loved his son.

(2) Evidence of Opportunity/Identity

[12] At 2:12 a.m. on October 6, surveillance cameras recorded a red pick-up truck entering the parking lot of the Musashi Auto Parts plant. The surveillance cameras were plainly visible as were the signs indicating their presence. At 2:17 a.m. the appellant exited the truck and walked towards the nearest street. He did not appear to be carrying anything. Detective Ballantyne testified that the appellant had the opportunity to kill Roberts, noting that the distance from the parking lot to the Arthur home was about a twenty minute walk.

[13] After finishing her overnight shift at 6 a.m. on October 6, Roberts told Wagner, she planned to pick up Caleb and meet with the appellant's family to discuss his care. Roberts picked up Caleb and told the babysitter she was going home to get some things before returning to her father's house.

[14] A neighbour, Carrie Lawlor saw Roberts' jeep stop at the mailbox, at about 9 a.m., and then continue to the Arthur home. Follings had arrived at the Arthur home around 8 a.m. to look after Alvin. This was to be Follings' last day on the job and she testified that, after Roberts changed Caleb, she and Roberts talked for a bit before she left shortly after 9 a.m. Roberts' jeep was in the driveway when she left the house.

[15] In the meantime, at about 8:45 a.m. Richard Ahrens, the appellant's manager at work, called him on his cell phone; there was no answer.

[16] There was computer activity on Roberts' computer downstairs in the room where she stayed with Caleb between 10:03 a.m. and 10:37 a.m. and no activity after that. At 10:23 a.m., there was a call from her cell phone to her lawyer which lasted five seconds. At 10:27 a.m., she logged in to her personal email and opened an email from her lawyer. At 10:37 a.m., she was logged out. At 10:38 a.m., there is a two-second call from Roberts' cell phone to her lawyer and that is the last of the activity on the phone.

[17] Eighteen minutes later, at 10:56 a.m. the appellant drove Roberts' jeep into the same parking lot in which he had left his truck and parked it beside his truck. He got out of the jeep and got into his truck, driving away at 10:58 a.m.

[18] At 1:38 p.m. the appellant called Ahrens, to ask about working the following day. There was nothing unusual about his tone or demeanor.

[19] At around 2:30 p.m. the appellant drove to his father's farm and met with his brother Wayne. They discussed picking up their father Alvin from the Arthur home. When Wayne asked about directions to the home, the appellant told him to call Alvin. The appellant seemed distracted. The appellant left about fifteen minutes later and went to Schmidt's farm where he worked until around 7 p.m. Schmidt testified that the appellant told him he had lined up a lawyer to deal with the assault charge and seemed normal.

[20] At about 4:30 p.m. Marjorie told Wayne she would pick up their father that afternoon. She called Roberts' cell phone and, when the call went unanswered, left a message. She then called the landline for the house. Her father answered and said he was alone.

[21] At 6:10 p.m. Marjorie arrived at the Arthur home. The front door was unlocked. She entered and called out for Alvin. He came out of the kitchen using his walker and seemed anxious to get his belongings. Marjorie asked Alvin whether Roberts was there and he said that he heard the baby downstairs. She went to the basement and heard Caleb crying. In the bedroom she saw Roberts lying face down on the floor with a brown comforter over her head. Roberts had no pulse. Marjorie picked up Caleb who was lying unharmed by the foot of the bed with no blood on him. Upstairs, she told Alvin what she had found and called 911 at 6:14 p.m. She testified Caleb's diaper was wet, but not saturated. It was consistent with two wettings. She changed and fed the baby and he settled down.

[22] A paramedic, who attended at 6:34 p.m., noticed early signs of rigor mortis in the right arm and jaw. Roberts was barefoot, wore a black shirt and pajama pants, which were pulled down to her hips, exposing her buttocks. Her shirt was wet and smelled like urine. Her hair was matted with blood and there was blood spatter around the body.

[23] At 8 p.m., the appellant went to Marjorie's house and asked his brother-in-law Barry where his sister was. Barry lied and said that Marjorie was either at work or at a friend's house. The appellant left after a few minutes. According to Barry, he looked like he had been crying because he was rubbing his eyes and they were red.

[24] At 10:14 p.m., Detective Ballantyne called the appellant and asked him to attend the Mount Forest OPP station. The appellant arrived, at 10:37 p.m., and, at 11:30 p.m., was advised his wife was dead. The next morning, at 2:55 a.m., the appellant was arrested for her murder. There were minor cuts and abrasions and light bruises on his wrists and hands.

[25] The cause of death was blunt force impact to the head. Her body sustained injuries associated with fractures of the back, sides and base of the skull as well as bruising of the brain. There was blood spatter in the room but not elsewhere in the house. The doctor testified the time of death could have occurred any time between 9 a.m., when Roberts was last seen alive, and at around 6:10 p.m., when her body was found. There was no sign of a forced entry or struggle.

[26] A gouge in the ceiling bulkhead, described as a "tool mark", was discovered above Roberts' body. Flecks of drywall from the bulkhead on the floor around the body suggested it had been made at the time of the murder. The instrument used to inflict the injuries was likely long, thin, and had a geometric profile with flat edges and corners. The weapon was never found.

[27] Amylase, a compound of saliva, with the appellant's DNA was found on Roberts' T-shirt and pyjama pants. In particular, the appellant's DNA was found on the back of the left sleeve of the t-shirt where both blood and saliva were present. The DNA could have been deposited at any time after her shirt was washed and the two DNA profiles may not have been deposited at the same time. A mixture of DNA profiles, including the appellant's, was found in a large saliva stain on the front left leg of Roberts' pants.

[28] The appellant's DNA was not found under Roberts' fingernails. A two-centimetre long hair from a male's scalp was found on the inside front area of Roberts' pajama pants. The hair was in the active growing stage and some force would have been required to pluck it. The DNA profile did not match that of the appellant or anyone else involved in the investigation.

[29] None of the appellant's blood was found in the bedroom, but his blood was found in two small dry transfer stains on the front door of the house. It could not be determined how long his blood had been there. No blood or weapons were found in the appellant's truck or Roberts' jeep. There was no evidence of a cleanup in the house or in the appellant's or Roberts' vehicle. No blood was found on the clothing worn by the appellant upon his arrest, although his own blood was on his wallet and truck key.

[30] With this background evidence in mind, I will now deal with the first issue.

C. Did the Trial Judge Err in Dismissing the O'Connor Application?

[31] The appellant brought an application to obtain OPP records related to two other brutal attacks on two female victims, alleging that these attacks were strikingly similar to the Roberts murder and would assist the appellant in putting forward an alternative suspect defence. The application was brought in accordance with R. v. O'Connor, [1995] 4 S.C.R. 411, which sets out a two-part test for disclosure. At the first stage of O'Connor, the application judge determines whether the records sought are likely to be relevant. At the second stage of O'Connor, the application judge decides whether to order production: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 7.

(a) The Alleged Similar Attacks

[32] Prior to Roberts' murder, 42-year-old Sonia Varaschin was murdered in her townhouse in Orangeville, Ontario, sometime between August 30 and September 7, 2010. Her killer was never caught. Subsequently, on December 7, 2010, while the appellant was still in custody, 44-year-old Shelley Loder was brutally assaulted in her photography studio next to her home in Mono, a village northeast of Orangeville. She suffered serious head injuries. Police never apprehended the culprit. The OPP, who were investigating these attacks, refused to disclose the investigative files requested on the basis that disclosure to the appellant could compromise the integrity of the investigations.

[33] In his ruling with respect to the first stage of the O'Connor application, the application judge referred to the list of alleged similarities between the three cases, at para. 23 of his reasons:

a. All three victims resided geographically close to one another being, at most, within a 30-minute driving radius;

b. All three communities lie on Dufferin County Road 109/Wellington Road 109;

c. All three crimes can be characterized as home invasions, with all three victims being attacked either in or near their residences;

d. All three crimes occurred in quiet, suburban areas;

e. It is likely that all three attacks occurred during waking hours of the day;

f. The attacker in each of the three cases likely knew the victims' habits and routines;

g. At least two of the crime scenes (those of Varaschin and Roberts) were covered with blood (it was unknown to the applicant whether the crime scene from the attack of Loder was also covered in blood);

h. It is likely that a similar type of weapon was used in each of the three cases;

i. All three victims were female and were subjected to severe acts of brutality, involving personal and brutal violence;

j. All three victims were in the age range of mid-30s to mid-40s;

k. The Varaschin murder occurred in August 2010, the Roberts murder occurred in October 2010 and the Loder attack occurred in December 2010; all within a three month time radius;

l. All three victims had a close connection to the medical field; and

m. A link between the Varaschin murder and the Loder attack had already been considered by investigators.

[34] In response to the appellant's application, Detective Ballantyne swore an affidavit contending that several of the purported similarities were non-existent or overblown. In particular, he raised the following differences:

• There was no evidence to support the suggestion that all three cases could be characterized as home invasion crimes;

• Loder's residence was in a rural location (not a suburban area);

• The Varaschin murder occurred at night (not "during waking hours");

• Not all three victims had a close connection to the medical field. Loder had no involvement with the medical field. Varaschin was a nurse working for a pharmaceutical company;

• After various consultations in accordance with an established protocol, the investigators had already concluded that there were no links or connections between the cases.

[35] Defence counsel did not cross-examine Detective Ballantyne on his affidavit.

(b) O'Connor Ruling Stage One

[36] The original O'Connor application, dated August 28, 2012, was very broad. The Supplementary Notice dated September 21, 2012 was much more focused. At the hearing of the application, defence counsel further narrowed the request and advised the application judge that he was seeking specific material in the Varaschin and Loder cases related to the means used to carry out both attacks.

[37] In the course of submissions, defence counsel said that the third party files in the Varaschin and Loder cases would be "likely relevant" if they showed "similarities" to the Roberts murder. He stated:

Your Honour I think I can focus pretty specifically in the circumstances of this case, what I am interested in is whether the circumstances attendant to the Roberts homicide are replicated in either Varaschin or Loder, and that is whether it is a blunt force trauma event with the use of an instrument.

[38] Later in his submissions, defence counsel reiterated that the objective of the application was to determine whether "there are similarities between the methods employed in the Roberts homicide and the methods employed by the killer in Varaschin or the attacker in Loder."

[39] In reply submissions he further stated:

I am seeking another similarity and that is the method employed in the infliction of harm in Varaschin and Loder. If it comes out that a long or a thin blunt edged instrument is used in blunt force trauma in Varaschin or Loder, I have another piece of my circumstantial case to bolster my third party application.

[40] For clarity, the application judge recited back to defence counsel the specific materials being sought:

The Court: Varaschin crime scene photos, including of murder weapon if recovered, CFS reports, and pathologist's report, right?

Defence counsel: Yes, your honour.

The Court: Loder, crime scene photos, including [of weapon] if recovered, CFS reports and that's it.

Defence counsel: Yes.

[41] The application judge ruled, at para. 31, that the appellant met the first stage of the O'Connor test because the records being sought were likely relevant to "a significant trial issue, the identity of the perpetrator". He then stated, at para. 32, that this left "the question of balancing society's interest in protecting the fruits of the investigation with the accused's interest in making full answer and defence". After noting that the disclosure request was not for confidential, personal or potentially embarrassing information, he observed, at para. 36:

We are being asked to permit a judge hearing an application to receive certain information which would be specified to enable her or him to decide if it could or would be probative with respect to the question of the weapon used or not used in the other two crimes.

[42] After concluding that the records sought were likely relevant and that the appellant's right to make full answer and defence outweighed society's interest in refusing disclosure, the application judge allowed the application and ordered limited production:

(1) The lead investigator in the Varaschin homicide investigation shall assemble and provide to me:

(a) any crime scene photographs which include a weapon or possible weapon;

(b) a description, and if they exist, photographs of any weapon recovered believed to have been used;

(c) any Centre of Forensic Science reports which might identify the type of weapon or weapons, if any used;

(d) the relevant portion of any pathologist's report which might opine with respect to the nature of the injuries received and the weapon or weapons which might have been employed to cause them.

(2) The lead investigator in the Loder investigation shall assemble and provide to me the documents referred to in subparagraphs (a) (b) and (c) above.[^1]

(c) O'Connor Ruling Stage Two

[43] On November 28, 2012, after reviewing the material provided by the OPP, the application judge dismissed the O'Connor application. The reasons for his decision were sealed, along with the materials produced for inspection, but he made a brief statement:

There is absolutely nothing in the material that I received…to connect the murder weapon in the Roberts homicide with either of the other two investigations. Whatever evidence there may or may not be with respect to a murder weapon or weapons, if any, in the other two investigations, does not suggest to me at all that a long, thin, blunt object was involved in them, and indeed for reasons I have already included in the sealed envelope that I will shortly seal, suggests quite the contrary. Accordingly, there is nothing to disclose to either the Crown or the defence.

(d) Discussion

[44] At the outset, I note that the six principles for evaluating this ground of appeal were set out by Watt J.A. in R. v. Bradey, 2015 ONCA 738, 127 O.R. (3d) 721, at paras. 75-87. First, the O'Connor procedure governs production of any records beyond the possession and control of the Crown, whether or not a reasonable expectation of privacy attaches. Second, the applicant must establish the existence of further logically probative material that may be useful to the applicant in making full answer and defence. Third, the applicant must demonstrate the likely relevance of the records sought to an issue in the proceedings. Fourth, while this burden is significant, it is not onerous; the applicant is not required to demonstrate the precise manner in which the documents will be used at trial. Fifth, relevance to an issue in the proceedings includes substantive issues, the credibility of the witness and the reliability of the other evidence in the case. Relevance also includes an issue related to the competence of a witness to testify. Where the record sought is confidential and contains statements made on issues relevant to credibility, the applicant must show the statements have some potential to provide additional information that either has some impeachment value or is not already available. Sixth, if the records are found to be likely relevant, the question then becomes whether production should be ordered. Production should be ordered only if the records sought have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice or the harm to the privacy rights of any witness or to any claim to privilege. Furthermore, the opposing party's characterization of the records sought or their contents is not dispositive of the application.

[45] The second stage of the analysis is more suited to determining questions of confidentiality and privacy, not the first or "likely relevance" threshold.

(e) Did the Application Judge Err at the First Stage of the O'Connor Process?

[46] Turning to the merits of this ground of appeal, the appellant submits that the application judge erred by considering and balancing the public interest against the appellant's right to make full answer and defence at the first stage of the O'Connor process. He submits that this incorrect approach caused the application judge to apply a more stringent onus on the appellant and order unduly limited production of records for the court's review. He further submits that the application judge incorrectly relied on jurisprudence pertaining to a known third party suspect, as opposed to jurisprudence on an unknown third party suspect, with the result that the application judge focused on the similarity of the weapons used and discounted the similarity of the injuries sustained in the Roberts murder and the other two crimes. The application judge further erred by requiring the records to show the use of a similar weapon in all three crimes, when the existence of such a "signature" is not required for admitting defence-led similar act evidence. The use of different weapons ought not to have ruled out a nexus between, what the appellant says, were similar attacks. The application judge ought to have ordered all materials from the other investigations relating to the nature of the injuries, such as Loder's medical records, so as to assess whether the cumulative effect of the similarities established a sufficient nexus between the attacks to warrant disclosure.

[47] The short answer to these submissions is that, at the hearing of the application, defence counsel sought specific files that narrowed the information he was seeking and the application judge essentially ordered what was sought. Thus, any alleged errors on the part of the application judge have no bearing on the outcome of this appeal.

[48] I agree with the appellant that the only question at the first stage of O'Connor is likely relevance. The public interest in refusing disclosure is not to be weighed against the appellant's right to make full answer and defence until the second stage of the analysis.

[49] However, the approach adopted by the application judge did not cause him to order unduly limited production of records for the court's review or to consider the evidence piecemeal. Although the defence initially sought crime scene photos in general, its focus was to know: (1) whether the two attacks were "a blunt force trauma event with the use of an instrument"; and (2) whether the method employed in the infliction of harm in the Varaschin murder and the Loder attack bore similarity to the Roberts murder. Defence counsel did not pursue the likely relevance of the entire investigative file for the Varaschin and Loder cases. Defence counsel also made a tactical decision not to pursue obtaining Loder's medical record. The application judge's order was designed to obtain the information requested by the defence at the application hearing.

[50] The likely relevance of the entire medical files has not been shown on this appeal.

[51] In the circumstances, the application judge did not err in the order he made.

(f) Did the Application Judge Err at the Second Stage of the O'Connor Process?

[52] After reviewing the material that OPP provided, the application judge dismissed the O'Connor application. His reasons for dismissal are sealed. This court has a discretion to review these materials and the application judge's reasons in camera without the participation of the parties. It did so. After examining the materials, this court concluded that the application judge did not err in refusing to order production at stage two of the analysis.

D. Did the Trial Judge Err in Holding There Was No Air of Reality to the Alternate Suspect Defence?

[53] At trial, the appellant applied for an order to advance an alternate suspect defence before the jury consisting of publicly accessible information about the Varaschin murder and the Loder attack through an agreed statement of facts. The agreed statement of facts essentially reiterated the similarities between the Roberts murder and the other two crimes that had been outlined in the O'Connor application.

[54] The Crown concedes that, despite the O'Connor ruling, the appellant was entitled to make the application he did.

[55] The trial judge dismissed the application. In his ruling, the trial judge first commented that evidence of a third party suspect may be admissible whether the suspect is known or unknown and that it is not necessary to specify who the alternate suspect is. He then assessed the evidence in context as follows, at paras. 14-16 of his decision:

Defence argues, first of all, that the location of all three crime scenes is significant. [^2] I respectfully disagree. To suggest the perpetrator in the Roberts case is the same person as the perpetrator in either Loder or Varaschin simply based on the fact that all three cases occurred in the locations indicated is simply too tenuous to amount to a "connection" between the cases.

Defence counsel then argues that the fact that the victims are all women is relevant. Again, this is far too tenuous even when considered in concert with the geographic argument upon which to argue that there is some "connection". Half the population is female.

There is nothing in the ages of the victims, or in their backgrounds, that suggest[s] any similarity or connection either alone or in conjunction with their sex or the locations of the crimes. Finally, the fact that three apparently isolated incidents occurred within a thirty mile radius, in a three month period, adds nothing to the suggestion that there is any air of reality that the crimes are sufficiently connected to argue that a properly instructed jury acting reasonably could find that the perpetrator in the Roberts case might have been the same as in either of the other two cases.

[56] The trial judge then reviewed the case law. He referred to R. v. McMillan (1975), 7 O.R. (2d) 750 (C.A.), aff'd, [1977] 2 S.C.R. 824, for the proposition that evidence directed to proving that the crime was committed by a third person rather than the accused must meet the test of relevancy and have sufficient probative value to justify its reception. He considered R. v. Grandinetti, 2005 SCC 5 [2005] 1 S.C.R. 27, for the requirement that there must be a sufficient connection between the third party and the crime itself. Next, he adopted and applied the jurisprudence set out by McKinnon J. in R. v. Tehrankari, [2008] O.J. No. 5651, aff'd 2012 ONCA 718, 298 O.A.C. 252, leave to appeal refused, [2012] S.C.C.A. No. 547.

[57] The trial judge ruled that there was no "air of reality" to the alternate suspect defence.

[58] On appeal, the appellant submits that the trial judge dismissed the application because he erroneously applied the requirements for a known third party suspect defence set out in Grandinetti, instead of the requirements for an unknown third party suspect defence set out in R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, which was released after his ruling. He relies in particular on the following passage from paragraph 26 of Grant:

There is no principled reason to require that the connection be established by evidence relating directly to the third party where that individual is unknown. Such an articulation of the test – designed for example, to capture the motive, propensity or opportunity of a known third party to commit the crime – would place an unrealistic burden on the accused.

[59] He submits that there are the following links between the Roberts murders and the other two crimes: (1) the victims had similar backgrounds in terms of gender and age; (2) the crimes were similar in nature, took place in similar locations with similar communities, involved similar violence, and had geographic proximity; and (3) the investigations were linked by the fact that the police had previously considered the connections between the cases. He further points out that the attacks have temporal proximity in that they were only three months apart.

Discussion

[60] Grant was a murder case in which the deceased, a 13-year-old school girl, was found "hogtied" with twine in an industrial yard. The bindings on the deceased's wrists were tied by means of a "Granny Knot" and a Wrigley's blue gum wrapper was found in the immediate vicinity. The cause of death was hypothermia. At trial, the accused sought to adduce evidence of an unknown third party suspect. The evidence in the other crime was summarized by the Manitoba Court of Appeal's decision in Grant, 2013 MBCA 95, 302 C.C.C. (3d) 491, at para. 47, as follows:

The judge was provided with evidence that suggested that…at a time when the accused was in custody, an adolescent by the name of P.W. had been abducted from a Winnipeg street and then found with her hands and feet tied in an empty railway boxcar situated in an area 2.6 kilometers from where [the deceased] had been located[.] A Wrigley's blue gum wrapper was found at [the scene]. The bindings on [the deceased's] wrists were tied with a "Granny Knot" and the bindings on P.W.'s wrists were described as a "Granny Knot".

[61] The Court of Appeal concluded that this evidence, which it considered to be defence led similar-fact evidence, was admissible so long as its probative value outweighed its prejudicial effect. The evidence was also relevant in assessing the defence DNA expert evidence that excluded Grant as a suspect.

[62] On appeal to the Supreme Court of Canada, Karakatsanis J. set out the criteria for admitting defence evidence led for the purposes of establishing an unknown third party suspect defence. First, the applicability of the presumption of innocence means that defence-led evidence can only be excluded if the prejudice occasioned by its admission substantially outweighs its probative value. Second, in order for the trial judge to put the defence to the jury, the accused must point to evidence on the record that gives the defence an air of reality. Third, these principles are distinct but interrelated. Karakatsanis J. stated, at para. 21:

For example, while the degree of similarity may be logically relevant to whether the same person committed the offence, it will not relate to a fact in issue at trial unless the defence has an air of reality. In this case, the unknown third party suspect defence will not have an air of reality unless there is evidence that the accused could not have committed the other offence.

[63] Fourth, an accused must prove that there is a connection between the unknown third party suspect and the crime for which the accused is charged. Unlike in the test for admitting evidence of a known third party suspect, an accused can establish this connection without adducing evidence that the alleged unknown third person suspect had the motive, the means, or the propensity to commit the crime charged. Fifth, the sufficient connection generally arises from similarities between the crime charged and another crime that the accused could not possibly have committed. The focus on similarities is to ensure that the evidence tendered is logically relevant. Sixth, once the relevancy threshold is met, in the sense that a sufficient connection between the crimes exists, the trial judge must still be satisfied that the probative value of the evidence adduced outweighs its prejudicial effect. Karakatsanis J. stated, at paras. 42, 48:

The value of the evidence must be balanced against the risks posed to the integrity of the trial when a party seeks to expand the ambit of the trial to individuals or events not directly related to the crime indicted.

The same is true of the "some evidence" threshold in the air of reality test… when used in conjunction with the requirement for a sufficient connection between the crimes, respects the requirements of [the jurisprudence] and properly balances the integrity of the trial process with the accused's right to make full answer and defence.

[64] Karakatsanis J. then summarized, at para. 54, the points above as follows:

Thus, defence evidence is admissible where (1) the evidence is relevant to a fact in issue; and (2) the probative value of the evidence is not substantially outweighed by its prejudicial effects. Where the connection between the evidence and a fact in issue at trial is not obvious, the air of reality test may help a trial judge in determining if the evidence tends to prove a defence that may become available. Relevant evidence concerning an unknown third party suspect will only be excluded where its prejudicial effects substantially outweigh its probative value.

[65] Applying the criteria set out in Grant to this case, I would hold that the trial judge did not err in dismissing the alternate suspect application. The Varaschin murder was committed sometime between August 30 and September 7, 2010. At that time, the appellant was not yet in custody as the Roberts murder occurred later on October 6, 2010. The appellant was in custody when the Loder attack took place, which was on December 7, 2010 so he could not have committed that crime. It is mere speculation on the part of the defence that the same individual could have committed the Varaschin and Loder crimes. Furthermore, no nexus between these crimes and the Roberts murder has been shown. Unlike in Grant, where the investigators concluded that the crimes at issue were likely committed by the same individual, the OPP in this case concluded that there was no connection between the Roberts murder and the other two crimes. That conclusion is also supported by the O'Connor ruling, which this court upheld.

[66] For these reasons, there was no air of reality to the appellant's alternate suspect defence. Accordingly, I would hold that the trial judge did not err in refusing to allow the alternate suspect defence to be put to the jury.

E. Was the Jury's Verdict of First Degree Murder Unreasonable?

[67] The appellant argues that the verdict of first degree murder was unreasonable. It is his position that there was insufficient evidence to support a finding that the murder of Roberts was planned and deliberate. He submits that the Crown relied on the lack of forensic evidence to establish planning and deliberation. In this respect, his complaint primarily concerns the Crown's closing submissions at trial, which he argues unfairly invited the jury to speculate on the reasons why evidence of blood outside the crime scene was absent. He further argues that the trial judge should have corrected this overreach by the Crown.

[68] The appellant concedes that it was open to the jury to draw the inference that he went to 116 Schmidt Drive after leaving the Musahi lot, concealed himself and, during the ensuing eight-hour period until Roberts last phone call, he would have had time to deliberate. He argues, however, that a more likely reason for him to conceal his presence at the Arthur home would have been the fact that his bail conditions prohibited him from being there.

[69] He submits that as the Crown's case was circumstantial, and a planned and deliberate murder was not the only reasonable inference to be drawn from the evidence of concealment or the opportunity to deliberate, the first degree murder verdict was unreasonable. He requests that this court substitute the verdict of second degree murder.

[70] The Crown responds that the verdict of first degree murder was reasonable, based on the history of the relationship between the appellant and the deceased and the totality of the circumstantial evidence, including the state of the scene after the murder which, the Crown argued, is consistent with an inference that the murder was planned and deliberate.

(a) Standard of Review

[71] I begin with the standard of review. In R. v. Yebes, [1987] 2 S.C.R. 168 at p. 185, the Supreme Court of Canada noted:

[T]he test is "whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered"

[72] The test requires an appellate court to consider the whole of the evidence and determine, through the lens of judicial experience, whether the verdict was reasonable: Yebes, at p. 186. In R v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 39, the Supreme Court of Canada provided the following guidance to appellate courts reviewing the reasonableness of a verdict:

The totality of the evidence and the peculiar factual circumstances of a given case will lead an experienced jurist to conclude that the fact-finding exercise applied at trial was flawed in light of the unreasonable result that it produced.

[73] More recently, the Supreme Court of Canada addressed the test to determine whether a jury verdict is unreasonable in R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180. After reiterating the test for an unreasonable verdict in Yebes and Biniaris, Cromwell J. stated, at paras. 27-28:

Appellate review of a jury's verdict of guilt must be conducted within two well-established boundaries. On one hand, the reviewing court must give due weight to the advantages of the jury as the trier of fact who was present throughout the trial and saw and heard the evidence as it unfolded. The reviewing court must not act as a "13th juror" or simply give effect to vague unease or lurking doubt based on its own review of the written record or find that a verdict is unreasonable simply because the reviewing court has a reasonable doubt based on its review of the record.

On the other hand, however, the review cannot be limited to assessing the sufficiency of the evidence. A positive answer to the question of whether there is some evidence which, if believed, supports the conviction does not exhaust the role of the reviewing court. Rather, the court is required "to review, analyse and, within the limits of appellate disadvantage, weigh the evidence" and consider through the lens of judicial experience, whether "judicial fact-finding precludes the conclusion reached by the jury". Thus, in deciding whether the verdict is one which a properly instructed jury acting judicially could reasonably have rendered, the reviewing court must ask 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. [Citations omitted].

[74] In R. v. Wills, 2014 ONCA 178, 318 O.A.C. 99, aff'd 2014 SCC 73, [2014] 3 S.C.R. 612, Doherty J.A. stated, at paras. 30-31:

The "lens of judicial experience" refers to the appellate court's examination of the cogency of the evidence as informed by the court's awareness of the risk of wrongful convictions associated with certain kinds of cases and certain kinds of evidence. The court, as an institutional participant in the criminal justice system, has an appreciation of those risks that a jury in a specific case cannot have.

Section 686(1)(a)(i) requires the appellate court to independently weigh the totality of the evidence. The court weighs the evidence, however, not with a view to making its own assessment as to the appropriate verdict, but for the more limited purpose of determining whether the verdict is beyond the reasonableness limit. In making that assessment, the court must give due weight to the advantage a jury gains from actually seeing the witnesses and hearing the narrative unfold. [Citations omitted].

(b) Proof of Planning and Deliberation

[75] In this case, the trial judge properly instructed the jury that it had to first be satisfied that the appellant was guilty of murder beyond a reasonable doubt, that is, of his identity as the perpetrator of the murder and his intention to kill Roberts. Only then could the jury go on to consider whether the murder was planned and deliberate.

[76] To establish planning and deliberation based on circumstantial evidence, the jury must be directed to consider all the circumstances that inform the question of the accused's mental state. Such circumstances will seldom, if ever, be wholly consistent with only one conclusion as to an accused's mental state. As Spence J. stated in R. v. Mitchell, [1964] S.C.R. 471, at pp. 478-479:

What [the jury] is now called upon to decide is not whether the accused committed the act, but whether the murder, of which he is guilty, was planned and deliberate on his part. The pattern of evidence which it must now consider is not a series of facts, which, in order to establish guilt, must lead to a single conclusion. The jury is now concerned with the mental processes of a person who has committed a crime. In relation to that crime it has to consider his actions, his conduct, his statements, and his capacity and ability to plan and deliberate. It must consider the whole of the evidence in relation to the issue of planning and deliberation. In nearly every case some of this evidence may indicate planning and deliberation and some may indicate the contrary. The jury must weigh all of this evidence and arrive at a conclusion.

[77] Similarly, in R. v. MacKay (1992), 16 C.R. (4th) 351 (B.C.C.A.), leave to appeal to refused, [1992] S.C.C.A. No. 522, the British Columbia Court of Appeal stated, at para. 91, that:

[A]lternatives other than that the appellant's murder of the deceased was planned and deliberate will not lead automatically to a verdict of second degree murder. A verdict of first degree murder could still be supported if the jury could reasonably infer first degree murder, i.e., a planned and deliberate killing, from proven facts which support such a conclusion.

[78] As Laskin J.A. stated in R. v. Smith, 2014 ONCA 324, at para. 27, two points guide the analysis of whether a jury's verdict of first degree murder is reasonable:

[…] First, the reasonableness of the verdict has to be assessed on the evidence as a whole. And, second, though the appellant can point to innocent explanations for individual pieces of evidence, he cannot succeed on this ground of appeal if competing explanations are available from which one can reasonably infer planning and deliberation […].

[79] These passages underscore that, on the issue of planning and deliberation, a jury is entitled to reject other possible inferences as not raising a reasonable doubt and a verdict of first degree murder is not unreasonable simply because it does so. What matters is whether planning and deliberation can reasonably be inferred in all the circumstances.

(c) The Crown's Submissions to the Jury on Planning and Deliberation

[80] In his submissions, Crown counsel told the jury that, once it was satisfied that the appellant was the one who had killed Roberts, and that he intended to kill her, it should consider whether it was satisfied beyond a reasonable doubt that the murder was planned and deliberate. In support of that position, Crown counsel pointed to the fact that the appellant arrived at the Musashi lot at 2:12 in the morning. He submitted that it was likely the appellant was in the house shortly thereafter. If the appellant was there to speak to Roberts, Crown counsel asked why the appellant did not make himself known to Follings. Crown counsel also submitted that it did not make sense the appellant went there to speak to Roberts given that he had been charged with assault the day before and that he wasn't supposed to be there. Was it reasonable to think the appellant could have a conversation with Roberts knowing that all she had to do was to pick up the phone and he would be charged with breaching his bail conditions? If he was there to talk to her why wouldn't he just be waiting in the main part of the house when Follings arrived instead of hiding from her? Because the appellant did not resurface at Musashi until 10:56 a.m., the appellant had over eight hours to think about what he was going to do.

[81] The Crown then told the jury:

There has been a lot of discussion about the crime scene itself, the crime scene proper, her bedroom, and then the bigger crime scene, the house, and how there is blood spatter almost in a 360 degree circle around her body. And yet not a single or I should say this, police don't find a trace of her blood outside of that room. Now it is indisputable that somebody killed Adrienne Roberts, so whoever it was, they got out of that room and didn't leave her blood. That fact doesn't help us deciding who it was; it helps us understand how they did it and it was very well executed.

If you find that it was Terry Tremble that killed her, and that he killed her at around 10:38 because of the blood on her phone, think about 10:38 to 10:56, eighteen minutes. How precise, how efficient do you have to be to kill somebody, get out without leaving any of her blood anywhere, get rid of the evidence, get into her vehicle, drive all the way over to Musahi in 18 minutes. There is no margin for error. If this was a spontaneous murder that hadn't been planned, is it possible that you could get into such a rage that you did this and not leave something of her evidence outside [of the room in which she was killed]? It doesn't make sense. This had to be planned.

And just as an aside, you may be wondering well how is it possible for anybody to get out of that room and not leave some of her blood around and when the officers were – identification officers were talking about Locard's Principle of how you leave something behind when you move around in a crime scene area and remember the police officers are just as vulnerable to do that as anybody would. If they move around the house they could be tracking evidence all over the place. What do they do to prevent that? They wear shoes. They cover up, that's how you don't leave trace evidence around. And again, what does that tell us? It's a well-planned murder. He went there prepared and ready to kill her and get out. It was almost the perfectly planned murder, but for Musashi.

[82] The middle paragraph reproduced above is what the appellant submits is an invitation to the jury to speculate. The appellant submits that the Crown's submissions to the jury went too far because the submissions invited the jury to speculate from the absence of evidence outside the room where the murder took place the reasons why evidence was absent.

(d) Did the Crown's Submissions Require the Judge to Give a Special Instruction to the Jury?

[83] The appellant argues that the Crown's overreach in its closing submissions should have been corrected by the trial judge. However, when this paragraph is placed in context, I disagree that the Crown overreached, or that the submissions required correction by the trial judge.

[84] The circumstantial nature of this case required the jury to draw inferences. Inferences must be reasonably and logically drawn from facts established by the evidence. Inferences that do not flow reasonably and logically from established facts are condemned as conjecture and speculation: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.).

[85] The Crown had already made cogent submissions as to why it was unlikely that the appellant went to the house merely to talk to Roberts. The Crown reminded the jury of the amount of blood in the room and the evidence of the identification officers that to prevent tracking evidence outside the room, they cover up.

[86] Given the evidence as to the amount of blood in the room and the evidence as to the necessity to take precautions to prevent evidence from being tracked outside the room, it was reasonable and logical to ask the jury to draw the inference that the appellant had taken precautions to prevent tracking evidence around the Arthur home and that this was an indication he planned the murder.

[87] Once the jury was satisfied beyond a reasonable doubt that the appellant had committed the murder, in deciding whether the appellant planned the murder, the Crown was entitled to ask the jury to take into consideration the evidence referred to above and to draw an inference from it. The Crown's submission was not unfair; it did not ask the jury to engage in speculation on the absence of evidence. It asked them to draw an available inference from the evidence.

[88] Moreover, the error urged now attracted no objection at trial, either before or after the charge was delivered. This is not determinative, of course, but it reinforces my conclusion and is indicative that, at trial, the basis for using the impugned submission as evidence of planning and deliberation was obvious.

[89] The trial judge's reference to this aspect of the Crown's submissions in his charge to the jury was as follows:

No trace evidence linking the defendant to the scene, other than some saliva on her clothing and the blood near the front door. Does this mean that he planned ahead and was therefore able to ensure that no trace was left as the Crown argues, or is this simply how matters unfolded.

[90] Nothing further needed to be said by the trial judge. First, as the passage reflects, the trial judge presented a balanced question for the jury's consideration, highlighting that the evidence as to the state of the scene could be relevant to the issue of planning and deliberation, but it might not be.

[91] Second, the passage must be read in the context of the charge as a whole, including the trial judge's instruction to the jury that what was said by counsel was not evidence, his instructions on circumstantial evidence and drawing reasonable inferences, and his overall instructions on planning and deliberation.

[92] I see no error in the manner in which the trial judge reviewed the evidence relevant to the question of whether the murder was planned and deliberate.

(e) Does the Evidence Support a Finding of Planning and Deliberation?

[93] The appellant's counsel lists a number of considerations in support of his submission that first degree murder was "a most improbable verdict". That is not the test. Many of the same considerations raised by the appellant were mentioned by the trial judge in his fair and balanced charge to the jury. The trial judge instructed the jury as follows:

To prove first degree murder, the Crown must prove beyond a reasonable doubt, not only that Mr. Tremble had the intent required for murder, but also that the murder was both planned and deliberate. "Planning and deliberation" are not the same as "intention". For example, a murder committed intentionally, but on a sudden impulse or without prior consideration is not planned and deliberate.

It is the murder itself that must be both planned and deliberate, not something else that Mr. Tremble did, for example, the assault.

The words "planned" and "deliberate" do not mean the same thing. "Planned" means a calculated scheme or design that has been carefully thought out, the nature and consequences of which have been considered and weighed.

The plan does not have to be complicated. It may be very simple. Consider the time it took to develop the plan, not how much or little time it took between developing it and carrying it out. One person may prepare a plan and carry it out immediately. Another person may prepare a plan and wait a while, even quite a while, to carry it out.

"Deliberate" means "considered, not impulsive," "slow in deciding".

It is for you to say whether the murder of Ms. Roberts was both planned and deliberate. To decide this issue, you must consider all of the evidence, including anything said or done in the circumstances.

If the defendant is, as it appears to be, the person in the red pick-up truck, who parks it at 2:12 in the morning, and returns to it in Ms. Roberts' Jeep at 10:56, if he had walked to the house then he may have been in the house, possibly the basement, for a long time, to formulate a plan. Alternatively, given their history of discord and reconciliation, his efforts at reconciliation and his apparent condition, according to Mr. Schmidt the night before, could he have simply gone and waited patiently all night in order to talk with her, and things rapidly escalated and he lost it, without taking any time to plan and deliberate.

No weapon was found. Does this suggest that a weapon was taken and perhaps concealed in order to commit the murder and then the weapon was taken away. On the other hand, given that there were tools in the basement, in the home where he was at least ostensibly living most of the time, he could easily have picked up a tool while he was there, rather than bringing one with a set plan in mind, which was then taken away.

Consider the nature of the weapon used, if it was long thin and heavy, may it have been readily concealed or was it too big to be concealed and more likely therefore, to have been something in the vicinity of where an argument broke out when Ms. Roberts would not talk reconciliation, so that the murder was not planned and deliberate, but rather on the sudden.

No trace evidence linking the defendant to the scene, other than some saliva on her clothing and the blood near the front door. Does this mean that he planned ahead and was therefore able to ensure that no trace was left as the Crown argues, or is this simply how matters unfolded.

If he had planned her murder in advance, would one have expected that he would have had a better plan for leaving, knowing that she would be getting home right after her shift, rather than using her vehicle to drive away from her house to leave it parked in the lot where it was ultimately found.

Is the saliva simply evidence of a heated discussion or does it have some other meaning.

There is evidence that he may have had access to long guns and if he had planned the murder would this have been his weapon of choice.

Unless you are satisfied beyond a reasonable doubt that the murder of Ms. Roberts was both planned and deliberate, you must find Mr. Tremble not guilty of first degree murder, but guilty of second degree murder.

If you are satisfied beyond a reasonable doubt that the murder of Ms. Roberts was both planned and deliberate, you must find Mr. Tremble guilty of first degree murder.

[94] It is important to keep in mind that when dealing with circumstantial evidence, the Crown and defence will argue "competing inferences". Resolving them is ultimately for the trier of fact based on all the evidence.

[95] One example is the appellant's decision to park his truck and then Roberts' Jeep in the Musashi lot that openly advertised video surveillance. The appellant says that if the murder was deliberate, that makes no sense. But the reasoning process behind an accused's deliberations need not be objectively sensible. The word 'deliberate' does not import a requirement that the decision be the result of reasonable or rational thinking: R. v. Kirkby, [1985] 21 C.C.C. (3d) 31 (Ont. C.A.), at p. 67.

[96] Moreover, the reasonableness of the inferences must be assessed in the context of the facts of the case and, in particular, the deteriorating relationship and mounting tension between the appellant and Roberts. A few weeks before the murder, Roberts advised the appellant that she wanted a divorce, which upset the appellant. His journal entries and text messages demonstrate that he perceived Roberts to be avoiding him after that, and taking steps to actively keep their son away from him. He writes on an almost daily basis between September 21st and October 5th about Robert's unresponsiveness to his communications and his inability to see their son. By October 5th, Roberts was sufficiently concerned for her safety and the safety of her son that she went to the police. As a result of information she provided at that time, the appellant was arrested for assaulting their son and placed on a restrictive bail that essentially prevented him from seeing his son. This context informs what inferences were reasonably available to the jury as to what the appellant was doing during the hours leading up to the murder.

[97] Considering the whole of the evidence and its context, the jury, acting judicially, could reasonably conclude that the murder was planned and deliberate and reject any other inference as not raising a reasonable doubt.

[98] Finally, I note that, in the face of a formidable circumstantial case for the Crown, the appellant did not testify. It is appropriate for an appellate court to take that into account in assessing whether the verdict is unreasonable: R. v. Noble, [1997] 1 S.C.R. 874, at para. 101.

[99] For the reasons given, I would dismiss the appeal.

"K.M. Weiler J.A."

"I agree K. Feldman J.A."

"I agree Grant Huscroft J.A."

Released: August 28, 2017

[^1]: The application judge did not order a pathologist's report with respect to the Loder attack. Since Loder survived the attack, there was no pathologist's report.

[^2]: In the agreed statement of facts, it was alleged that the fact that all three victims resided geographically close to one another was significant.