Court of Appeal for Ontario

Date: February 26, 2018

Docket: C56854

Judges: Feldman, Tulloch and Benotto JJ.A.

Between

Her Majesty the Queen Respondent

and

Jeremy Hall Appellant

Counsel

Dirk Derstine and Stephanie Digiuseppe, for the appellant

Rosella Cornaviera and Peter Fraser, for the respondent

Heard

November 20 & 21, 2017

On Appeal

On appeal from the conviction entered on March 5, 2013 by Justice Thomas Lofchik of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

Benotto J.A.:

Introduction

[1] The appellant was convicted of first degree murder in the death of William Mason. The appellant's co-accused, Jason Lusted, pleaded guilty to accessory after the fact to the murder and became the main Crown witness. Lusted testified that in the winter of 2006, he and the appellant abducted Mason and drove him to a field where the appellant shot and killed him. They later returned to collect Mason's body which they took to the appellant's farm and incinerated in an open-air bonfire. The appellant was charged four years later in 2010. No trace of Mason's body was ever found.

[2] Lusted provided the only direct evidence of the murder. The Crown led circumstantial evidence including phone records purporting to show certain locations of the appellant and Lusted; the testimony of the fire marshal; and the evidence of Edmund Huard. Huard testified that the appellant plotted to murder Lusted because Lusted knew "things" that could put the appellant "away for a long time."

[3] The appellant submits that the trial judge erred with respect to the phone records, the evidence of the fire marshal and the evidence of Huard.

[4] For the reasons that follow, I have concluded that the evidence of Huard was inadmissible. I would allow the appeal and order a new trial.

Facts

[5] The appellant led a life of crime. Lusted was a partner in crime. So too was Huard. They committed home invasions, weapons offences, robberies and drug deals.

[6] According to Lusted, the appellant had "ripped off" someone of drugs and cash not realizing that the person was working with the Hells Angels. Several shots were later fired at the appellant's home in Hamilton when he, his common law wife, and their children were there. The appellant attributed this to retaliation from the Hells Angels. He blamed Mason for giving him bad information leading to the rip-off. According to the Crown, this was the motive for the murder of Mason.

The Abduction, Murder and Cremation of Mason

[7] The only direct evidence of the murder of Mason came from Lusted. Lusted testified that he and the appellant drove together in a stolen truck to where Mason was abducted at gunpoint. Lusted testified that they walked into Mason's apartment and the appellant told him to put his shoes and coat on because they were going to see "a guy down the road." Mason grabbed his phone and the appellant ripped it out of his hand and pulled out a sawed-off shotgun that had been hidden in his coat. Lusted and the appellant left with Mason. They then drove to a secluded location where the appellant shot and killed Mason. Lusted claimed that he panicked, and the appellant responded by firing a shot in the air and asking if he wanted to be next.

[8] After the murder they drove the truck the appellant had stolen to carry out the murder back to Hamilton. Lusted retrieved his car and the two drove to the outskirts of Smithville where the appellant burned the truck while Lusted drove around to make sure no one saw them. Lusted testified that the truck was a red GMC or Chevy. A red GMC truck had been reported stolen on February 3, 2006. At 4:47 pm on February 24 a truck was reported on fire in a driveway just outside of Smithville.

[9] Although Lusted said the murder took place in January 2006, it was proven that Mason was still alive in January. The Crown relied on the report of the fire to support the theory that the murder took place on February 24, 2006.

[10] Lusted testified that days after the murder they went to the appellant's farm in Alma, Ontario where they burned Mason's body into bones and ash. They put the body on a cement pad at the back of the house flanked by barns, placed wood on it and doused it with gasoline. Lusted said he was present while the body was burning for four hours. He said there were bones and ash in the fire when he left. The appellant later told him that he put the remains of the fire in animal feed bags. Two experts testified regarding the location of the appellant and Lusted's phones when they pinged off certain towers. The phone records show that the two men spent several hours in the vicinity of the appellant's farm in Alma on the night of March 1, 2006. The Crown relied on this evidence in support of the theory that the cremation took place in the early hours of March 2, 2006.

The Fire Marshal's Evidence

[11] Fire Marshal Gregory Olson testified that he went to the Alma farm on July 4, 2009 and August 7, 2009 – roughly three years after the alleged cremation. He saw signs of a fire on the concrete pad. He testified that his team removed material from between the cracks in the concrete and screened it for human bone. This yielded only small pieces of charcoal and animal bone. He testified that it would have required a careful cleanup to remove bone fragments to the extent that they would have not been caught by the quarter-inch screen used. He said it would take a fire a lot bigger than a bonfire to burn a body. He also testified that his inability to say with certainty that a fire had occurred was due to the passage of time, the impact of the weather, and cleaning of the site.

[12] Olson's cross-examination would later become an issue at trial. A textbook was put to him. He was asked about the proposition in the book that it would take more than six to seven hours and require 700-900 kilograms of wood to cremate a human body in an open-air fire. Olson said that he "better not" contradict the proposition as one of the editors of the text was his former professor. He also said that there were too many variables involved and he had not taken part in similar studies, so he could not refute the book.

[13] Defence counsel referred to this testimony in his closing submissions to the jury. He said:

The fire marshal … seemed to put great trust in … the textbook that the teacher wrote … there had been multiple experiments … and on the leading authority … they said that it would take approximately six to seven hours to burn a body. That to burn a body in that amount of time you would have to have 7 to 900 kilograms of wood.

[14] Defence counsel then went on to discuss the impossibility of this timing in light of other evidence that the appellant was at the farm for four hours or less. Counsel put various calculations to the jury to demonstrate the point.

[15] After the defence closing, the Crown objected. He asked the trial judge to correct what defence counsel had said because he had just discovered that the passage read to Olson was not authored by the editors of the textbook, but rather by an osteoarchaeologist with whom Olson was not familiar.

[16] After argument by counsel the trial judge added the following to his charge:

There is no scientific evidence before you by way of expert opinion to consider in determining the length of time required, or the amount of wood required to burn a body.

Evidence of Edmund Huard

[17] Huard was an unsavoury witness with a lengthy criminal record. He met the appellant and Lusted in federal prison. For a time, he lived in a trailer on the Alma farm. Together he and the appellant committed multiple crimes including weapons offences, home invasions, a marijuana grow-op and auto thefts. Huard was also schizophrenic.

[18] Huard testified that the appellant "often told me that [Lusted] had to go. He knew too much. He knew something that could put him away for a long time." Huard explained how, in 2008, the appellant thought up the mechanisms of a plot to kill Lusted. The appellant would drive to a spot to meet Lusted. Huard would hide in the trunk holding a sawed off shot gun. When the cue was given, Huard would be let out and he would shoot Lusted.

[19] Huard and Lusted set out to go through with the plan. Huard was in the trunk with the gun. The appellant was outside talking to Lusted. He could hear Lusted's voice. He did not get the cue to jump out. He said that the appellant called off the plan because there were too many people around. All of this took place soon after Lusted was released from prison.

[20] The trial judge instructed the jury that they could use Huard's testimony as evidence corroborating Lusted if they found that the appellant and Huard conspired to kill Lusted and that they conspired to kill him because he was a witness to Mason's murder.

Issues

[21] The appellant raises three primary grounds of appeal. He submits that the trial judge erred by: (i) instructing the jury that the phone records corroborated the testimony of Lusted; (ii) withdrawing Olson's evidence from the jury; and (iii) admitting the evidence of Huard.

[22] He also seeks to admit fresh evidence about Huard and his testimony.

Analysis

The Phone Records

[23] The appellant submits that the trial judge erred in instructing the jury that the phone records corroborated the testimony of Lusted. The phone records are not corroborative because:

• The phone records do not corroborate the date that Lusted said the murder occurred.

• Lusted testified that he and the appellant burned a truck in Smithville following the murder. At the time the evidence suggests a truck was burned in Smithville, the appellant's phone was pinging off a tower in Hamilton and Burlington. The trial judge instructed the jury that at this time the phone activity was in Smithville.

[24] The appellant submits that the phone records also do not corroborate Lusted's story regarding the burning of Mason's body. Lusted indicated that he was at the farm for '4-5 hours' or 'a long time'. The phone records suggest that he was likely at the farm for 2 hours and 40 minutes. The trial judge did not refer to this or to the frailties in the evidence of the cell phone experts in his charge to the jury.

[25] In my view, the trial judge correctly instructed the jury that the phone records were capable of being confirmatory. It was for the jury to assess the evidence and determine whether it could show that Lusted was telling the truth. The issues raised by the appellant were highlighted for the jury either in the charge or the judge's recitation of the summary of the defence position, or by counsel in the closing remarks. The jury would have appreciated the defence position.

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

The Fire Marshal's Evidence

[27] The appellant submits that the trial judge erred by withdrawing from the jury's consideration Olson's evidence regarding the time and conditions required to incinerate a human body. This evidence was central to his defence and formed a fundamental feature of the defence's closing address. The withdrawal during the final instructions was highly prejudicial to the appellant's fair trial rights. The Crown did not object when the evidence was being called. It was too late to object after the close of the evidence. Further, the appellant submits that the trial judge eviscerated the exculpatory evidence when he instructed the jury that there was "no scientific evidence" to consider in determining the length of time or amount of wood required to burn a body.

[28] To some extent, I agree with the appellant. The judge's charge to the jury went too far in declaring that there was no scientific evidence. Olson did testify about matters other than the impugned textbook reference. In particular, Olson was equivocal in his evidence as to the time and amount of wood. He said there were too many variables and would not venture an opinion. This was evidence that assisted the defence.

[29] Although I agree that the trial judge went too far when he said there was no scientific evidence, the error was of no moment. First, he referred to the equivocal nature of Olson's evidence and the fact that there were several variables in play. Second, the reference to no scientific evidence was responsive only to defence counsel's submission to the jury that the timing and the amount of wood had been scientifically proven. The trial judge's charge on this issue, read as a whole, is fair to the defence. Third, Olson did not adopt the contents of the article on cremation. The text does not, in any event, demonstrate what the appellant says it does. There were – as Olson said – too many variables to make this determination.

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

Evidence of Huard

[31] The appellant submits that the trial judge erred in admitting the evidence of Huard because it required circular reasoning to be admissible and because the prejudicial effect outweighed its probative value. The Crown argues that evidence of the appellant's plot to kill the only eye-witness to the murder was probative and properly admitted, as was evidence of plots to kill witnesses in several other cases: R. v. McCullough (2000), 142 C.C.C. (3d) 149; R. v. Lawrence (1989), 36 O.A.C. 198 (C.A.); R. v. Ganton (1992), 105 Sask. R. 126 (C.A.); R. v. Panzevecchia (1997), 99 O.A.C. 214 (Ont. C.A.); and R. v. Tran, 2001 NSCA 2, 150 C.C.C. (3d) 481.

The Trial Judge's Admissibility Ruling

[32] There were two reasons advanced for the admissibility of the evidence of Huard: (i) to corroborate the evidence of Lusted; and (ii) to demonstrate consciousness of guilt arising from after the fact conduct. The trial judge heard lengthy submissions as to the admissibility of Huard's testimony.

[33] The trial judge's reasons for admitting the evidence are contained in a so called "omnibus" ruling with respect to discreditable conduct. As pointed out by the Crown, the trial judge correctly articulates the test from R. v. B. (C.R.), [1990] 1 S.C.R. 717, at pp. 731-732 and R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 41 with respect to discreditable conduct of an accused. The specific reasons for admitting the evidence of Huard consists of these three paragraphs:

Defence counsel argues that the evidence of Edmond Huard about the plot to kill Lusted is extremely prejudicial. However, it is also powerful probative evidence of [the appellant's] consciousness of guilt. If the jury accepts the evidence that [the appellant] plotted to do away with the only witness to Billy Mason's murder giving the reason for such action as being that Lusted had information that would put [the appellant] away for a long time, it is open to the jury to draw the inference that [the appellant] is the killer of Mason.

This evidence of the plot to do away with Lusted is not similar fact evidence or propensity evidence unrelated to the murder charge before the court but rather part of the continuing narrative of the events surrounding the murder of Billy Mason and directly related to the involvement of [the appellant]. The fact that this evidence maybe powerful evidence for the prosecution does not lead to a conclusion of prejudice. The evidence may be unfortunate for the accused but not prejudicial in the legal sense.

Doing my best to balance the probative value of the evidence in question against the prejudicial effect, having regard to the importance of the issues for which the evidence is legitimately offered against the risk that jury will use it for other improper purposes, and taking into the account the effectiveness of any limiting instructions I can conclude that the probative value of the evidence proffered by the Crown outweighs the prejudicial effect and that the evidence proffered is admissible.

[34] In short, the trial judge determined that the evidence of Huard: provides "powerful probative evidence of [the appellant's] consciousness of guilt" as the jury could draw the inference that the appellant is the killer of Mason; is not similar fact or propensity but part of a continuing narrative; and is more probative than prejudicial.

[35] I do not agree with these conclusions. The evidence was only marginally relevant and was not probative. Further, the effect was highly prejudicial.

[36] Deference is owed to a trial judge's balancing of probative versus prejudicial effect. As stated in R. v. Higginbottom (2001), 156 C.C.C. (3d) 178, at para. 9:

A trial judge's decision on the admissibility of evidence of prior discreditable conduct involves a delicate balancing of the probative value of the evidence against its prejudicial effect and is entitled to a high degree of deference upon appellate review…. In my view, the trial judge's assessment of the evidence and his conclusion that its probative value exceeded its potential prejudicial effect were reasonable.

[37] The usual deference afforded to a trial judge's balancing of the probative versus prejudicial effect is diminished here because the conclusory nature of his reasons does not allow for appellate review: see R. v. Czibulka, 2011 ONCA 82, 267 C.C.C. (3d) 276, at para. 23. It is not clear from his reasons, or his later jury charge, that he was alive to the factors that impacted the probative value and enhanced the prejudicial effect.

Probative Value

[38] For the evidence of the plot between Huard and the appellant to kill Lusted to have relevance, two assumptions would have to be made:

1. That Mason had been murdered; and

2. That the appellant did it.

[39] This required the jury to engage in a form of circular reasoning and assume facts not in evidence. There was no nexus between the plot to murder Lusted and the murder of Mason. In addition, the frailties of Huard's evidence in general, combined with the timing of the plot further diminished any potential probative value.

No Nexus to the Murder of Mason

[40] The plot was developed two years after the disappearance of Mason. Huard testified to nothing that would connect the plot to the Mason murder. There was no mention in Huard's testimony of Mason's murder or of Lusted's involvement. There was no triggering event to the plan to kill Lusted. Lusted had not just gone to the police or threatened to disclose what he knew. The Crown submits that he had just been released from prison, but Lusted had not been in jail the entire time after Mason's disappearance.

[41] Huard said that the appellant told him that Lusted knew "things". Although Huard said that he was like family to the appellant and was ready to kill for him, he did not say what those things were.

[42] The Crown submits that the plot to kill Lusted had to be a result of the murder because the other criminal activities that Lusted knew the appellant had done were not as serious as murder. It is logical, according to the Crown, that the phrase "put away for a long time" would relate to the penalty for first degree murder not the lesser offences. I do not agree. Lusted and the appellant had committed many serious crimes together. Plus, there was evidence that implied the appellant had other reasons to eliminate Lusted. Huard said that he understood that Lusted was a "threat to [the appellant] and his family… [and] can pose a danger on his kids". He said that, while the appellant was in custody, Lusted came out to his farm and scared the appellant's wife and kids and attempted to take "stuff". She yelled at Lusted and told him she would call the police.

[43] The Crown submits that a plot to kill a witness is after the fact conduct from which a consciousness of guilt can be inferred. In my view, this misstates the nature of the evidence. Unlike other cases, here there is no evidence linking the plot to the crime charged. For example: in Lawrence the plot to shoot the Crown witness was discussed by the accused with a fellow inmate and in a letter to his spouse; in Panzevecchia, the threat to kill the witness was made during the assault; in Tran, the accused told a cell-mate about the plot to kill the witness. Here, there is no evidence linking the plot to kill Lusted to the murder of Mason.

[44] The Crown submits that it is up to the jury to determine the reason for the conduct. In R. v. White, [1998] 2 S.C.R. 72, at p. 89 Major J. said:

As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post‑offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury's exclusive fact‑finding role.

[45] Again, I disagree. In my view, White does not apply. Even if the statements attributed to the appellant were true, there were reasons – apart from culpable acts - as to why he would want Lusted dead. For example, there was the fear that Lusted would harm the appellant's family. These facts bring this situation outside the reasoning in White.

[46] More importantly, to accept the Crown's submission would be to force the jury to engage in circular reasoning.

Circular Reasoning

[47] I recognize that the argument that circular reasoning is improper in connection with after the fact conduct has been rejected by the Supreme Court: see White, at p. 100. However, the circumstances here are different. This is not a case where the appellant is asking for a separate reasonable doubt analysis on circumstantial evidence.

[48] The issue here is the assumptions the jury would have to make in order to draw inferences from the evidence. First, the jury would have to accept that Mason had been murdered; second, that the appellant did it; and third, that the appellant was referring to the murder when he said that Lusted knew "things". It is this last assumption that is the most problematic since there was no evidence from which that inference could be drawn. Huard did not testify about the murder of Mason or about the appellant's involvement in it.

[49] One would have to assume that the reason the plot to kill Lusted was hatched was because the appellant had killed Mason. There is no link between the plot to kill Lusted and the killing of Mason unless the jury makes the unsupported assumption that the appellant wanted Lusted dead because he was a witness to the murder of Mason. With no evidentiary link between the plot to kill Lusted and the murder of Mason – the inference is only available if the jury first accepts Lusted's evidence and finds that the appellant killed Mason. One would have to draw the inference that the appellant hatched the plot because he killed Mason and then use that same plot to conclude that he did kill Mason. Hence the circular reasoning.

[50] The probative analysis here is similar to that in R. v. Portillo (2003), 176 C.C.C. (3d) 467. That case involved circumstantial evidence presented by the Crown to prove that Portillo had participated in a murder. An expert compared impressions taken of the treads of running shoes found near Portillo's home with impressions of the footprints found at the scene. The Crown argued that it was open to the jury to find that the partial footprint at the scene of the murder was Portillo's, and that inference provided cogent evidence of Portillo's involvement in the killing.

[51] In rejecting the probative value of the footwear, Doherty J.A. said at paras. 29-32:

The Crown's argument both at trial and on appeal as to the probative value of the "footwear" evidence is seductive. I agree, however, with [defence counsel's] contention that the Crown's argument as to the relevance of the evidence is ultimately based on circular reasoning.

The "footwear" evidence consisted of two primary facts:

• two partial shoe prints found at the scene were similar to impressions from two shoes found by the police in the course of their investigation; and

• the shoes were found in the vicinity of [Portillo's] apartment.

The "footwear" evidence was relevant if it could reasonably be inferred from those primary facts, considered in the context of the rest of the evidence, that [Portillo] was at the scene of the homicide in close proximity to the body. That conclusion could be drawn only if these two inferences were reasonably available from the "footwear" evidence:

• the shoes found by the police made the prints at the scene; and

• the shoes belonged to [Portillo]

The "footwear" evidence had relevance only if both of the above inferences could be drawn.

[52] This court concluded that the evidence was not relevant because it relied on the assumption of facts not proved.

[53] Here, the primary fact is the plot to kill Lusted. This fact would only have relevance if it could be reasonably inferred from this fact that Mason was murdered by the appellant. Put another way, the plot to kill Lusted could only assist in proving that the appellant had killed Mason if the appellant wanted to kill Lusted because Lusted knew he had killed Mason. There were no facts to show that the plot was because of Mason's murder absent an assumption of facts not proven. Thus, the plot - like the footwear in Portillo – was not relevant and had no probative value.

[54] The trial judge's ruling demonstrates that he fell into the same error as the trial court in Portillo. He assumed that the jury could find – absent evidence connecting the murder of Lusted to the murder of Mason - that the appellant wanted to kill Lusted because he witnessed the murder. This is clear from this excerpt from para. 27 of his ruling:

If the jury accepts the evidence that [the appellant] plotted to do away with the only witness to Billy Mason's murder giving the reason for such action as being that Lusted had information that would put [the appellant] away for a long time, it is open to the jury to draw the inference that [the appellant] is the killer of Mason.

[55] There was no evidence upon which the jury could accept that the reason for the murder plot was because the appellant had killed Mason. The probative value of the plot depends upon the assumption that it relates to the murder of Mason.

Frailties of Huard's Evidence

[56] Huard was a Vetrovec witness, had a long criminal record, and suffered from schizophrenia and paranoia. He also heard "voices". Then there is the timing of the plot.

[57] Mason disappeared in 2006. The Crown's position was that the murder occurred on February 24, 2006. Mason's body was never found. Huard testified that the plot to kill Lusted was hatched and aborted in the summer of 2008. The Crown submits that Lusted's release from prison in June 2008 was the reason for the plot. However, Lusted had only been in jail for 18 months out of the 28 months between Mason's disappearance and the plot to kill Lusted. Lusted did not discuss the matter with the police until 2009. The appellant was arrested in 2010. Huard spoke about the 2008 plot to the police in 2010 after being promised immunity. These facts are difficult to reconcile with the trial judge's conclusion that the plot is part of the continuing narrative.

[58] Since I have concluded that Huard's evidence was not probative, it is not necessary to consider the prejudicial effect. Nonetheless I do so to demonstrate the seriousness of the admission of the evidence.

Prejudicial Effect

[59] Evidence that is otherwise admissible may be excluded on the ground that its probative value is overborne by its prejudicial effect. Watt J.A. said:

"Prejudicial effect" does not refer to the probability of conviction in the event the evidence is admitted. What is meant by "prejudice", and what the required balancing seeks to avoid, is improper jury use of the evidence. In other words, it is not so much the result that is likely to follow upon reception of the evidence, rather the manner of achieving it that the exclusionary discretion seeks to avoid: David Watt, Manual of Criminal Evidence (Toronto: Thomson Reuters Canada Ltd., 2013), at pp. 45-46.

[60] Huard imported vast amounts of discreditable conduct by the appellant into the evidence: home invasions, stealing vehicles, chopping them apart and selling them, weapons, drugs and other criminal activity. Significantly, the plot to kill Lusted was criminal conduct which was a similar act to the crime charged.

[61] There is a straight line from this evidence to impermissible propensity reasoning on the part of the jury. When speaking of the exclusion of similar fact evidence, the Supreme Court stated in Handy at para. 37:

The policy basis for the exclusion is that while in some cases propensity inferred from similar facts may be relevant, it may also capture the attention of the trier of fact to an unwarranted degree. Its potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value. It ought, in general, to form no part of the case which the accused is called on to answer. It is excluded notwithstanding the general rule that all relevant evidence is admissible. [Citations omitted.]

[62] Handy also described the prejudice that could result. As to moral prejudice, at para. 139:

It is frequently mentioned that "prejudice" in this context is not the risk of conviction. It is, more properly, the risk of an unfocussed trial and a wrongful conviction. The forbidden chain of reasoning is to infer guilt from general disposition or propensity. The evidence, if believed, shows that an accused has discreditable tendencies. In the end, the verdict may be based on prejudice rather than proof, thereby undermining the presumption of innocence enshrined in ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.

As to reasoning prejudice at paras. 144-145:

The major issue here is the distraction of members of the jury from their proper focus on the charge itself aggravated by the consumption of time in dealing with allegations of multiple incidents involving two victims in divergent circumstances rather than the single offence charged.

Distraction can take different forms. In R. v. D. (L.E.) (1987), 20 B.C.L.R. (2d) 384 (C.A.), McLachlin J.A. (as she then was) observed at p. 399 that the similar facts may induce

in the minds of the jury sentiments of revulsion and condemnation which might well deflect them from the rational, dispassionate analysis upon which the criminal process should rest.

[63] As in Handy, Huard's evidence related to uncharged conduct and imported a separate criminal trial into the murder trial.

[64] The improper use by the jury is yet more likely when the evidence of Huard is looked at in the context of the rest of the Crown's case. Lusted was a classic Vetrovec witness. He met with police several times and told them several different stories regarding Mason's disappearance. He clearly got the dates wrong, so the Crown based its theory of the dates on the phone records and the report of a fire. Lusted indicated that his last statement, which was consistent with his testimony, was the truth. At trial, videos of the earlier statements were played during his cross-examination. The evidence of the fire marshal was equivocal.

[65] In light of these weaknesses in the Crown's case, there is an increased likelihood that the jury would engage in circular and propensity reasoning to jump the gap in the evidence. There was no correcting instruction given to the jury.

[66] The trial judge provided the jury with the standard "White" instructions relating to after the fact conduct. However, there was no instruction to the jury connecting the law to the evidence. In particular:

• The fact that Huard did not connect the plot to the murder of Mason;

• The timing of the plot as opposed to the timing of Mason's disappearance;

• The lack of triggering event to the plot;

• The frailties of Huard's evidence apart from the criminal conduct referred to in the Vetrovec warning;

• The several other reasons the appellant might have for wanting Lusted dead, including their life of crime together and the altercation with his wife.

[67] The trial judge said this to the jury:

To decide the reason for what [the appellant] did or said, you should consider all of the evidence, particularly, of particular importance is evidence that offers other explanations for his conduct or these statements.

Defence counsel argues that Lusted had lots of information about [the appellant's] life of crime that could send [the appellant] away. Consider whether any of that could be as serious as murder and serious enough to cause [the appellant] to do away with Lusted. [Emphasis added.]

[68] By adding the phrase "serious enough to cause" the plot, the trial judge essentially gave the jury the answer to the question about why the appellant wanted to kill Lusted.

Summary

[69] I have concluded that the evidence of Huard was not probative and thus not admissible. In light of this conclusion, it is not necessary to address the fresh evidence.

Disposition

[70] I would allow the appeal and order a new trial.

"M.L. Benotto J.A."

"I agree K. Feldman J.A."

"I agree M. Tulloch J.A."

Released: February 26, 2018