Court of Appeal for Ontario

Date: 2019-12-04

Docket: C52600

Judges: Simmons, Huscroft and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Jason Maestrello Appellant

Counsel:

• James Lockyer and Lance Beechener, for the appellant
• Craig Harper and Andrew Hotke, for the respondent

Heard: November 18-19, 2019

On appeal from the convictions entered by Justice Hugh R. McLean of the Superior Court of Justice, sitting with a jury, on July 8, 2010.

Nordheimer J.A.:

[1] Introduction

[1] Jason Maestrello appeals his convictions on two counts of first degree murder and one count of attempted murder while using a firearm. For the reasons that follow, I would allow the appeal. In my view, the cumulative effect of various errors made by the trial judge in the course of his final instructions to the jury require their verdicts to be set aside and a new trial ordered.

A. Background

[2] The charges arise out of a planned "drug rip-off". The deceased were two large-scale marijuana dealers. They were lured to an isolated location for the supposed purpose of completing a major drug transaction in which the deceased were going to purchase a large amount of marijuana for a significant sum of money. At this location, on July 16, 2005, the deceased were each shot multiple times.

[3] Four individuals were involved in the drug transaction from the sellers' side – the appellant, Michael Boyle, Roger Belair, and Andrew Paul. As things developed, the appellant and Boyle on the one hand, and Belair and Paul on the other, had diametrically different positions as to who orchestrated the rip-off and who shot the deceased.

[4] In reciting the following facts, I should note that of these four individuals, only Belair and Paul gave evidence at the trial. The appellant did not give evidence, nor did Boyle. Boyle had been a co-accused with the appellant but, for reasons that are not important for the purposes of this appeal (save for the fresh evidence application that I will address later), the charges against him had been severed such that the trial proceeded against the appellant alone.

[5] The appellant lived in Sudbury. Belair lived in Cornwall. He and Belair met in 2000 or 2001. They became friends. Both the appellant and Belair were involved in drug dealing. The appellant was principally a cocaine dealer and Belair was principally a marijuana dealer. Belair was, as described by the Crown, a "career criminal involved in several criminal enterprises in Cornwall, including trafficking drugs."

[6] The appellant and Boyle travelled to Cornwall in June 2005. They stayed at Belair's apartment. The appellant had also visited Belair in May 2005. Belair said that the appellant and Boyle were present with him for some drug deals during the time that they stayed with Belair, including drug deals involving the deceased. Paul was involved in some of these drug deals.

[7] Belair knew the deceased. He had done three or four marijuana transactions with them in the year prior to the shooting. In these transactions, Belair and Paul acted as middlemen between a drug supplier and the deceased. However, there had been problems with a couple of these transactions, including one where the deceased did not have enough money to purchase all the marijuana that they had agreed to buy.

[8] According to Belair, in early July 2005 the deceased approached him about a large-scale marijuana deal. However, when he told them he was no longer working with his supplier, the appellant intervened and said he and Boyle could supply the marijuana. The appellant, Boyle, Belair and Paul subsequently became involved in making arrangements for the transaction. Although he could not remember the name of the person with whom he was dealing, Paul claimed he separately agreed to sell a large quantity of marijuana to a "secondary purchaser" on the understanding the appellant's and Boyle's supplier had access to two tons of marijuana.

[9] On the evening of July 14, 2005, the deceased met with Belair, Paul and the appellant. Belair was shown a bag of money by one of the deceased. It was explained to Belair that the deceased did not yet have all of the money necessary for the drug deal but they would have it in time. Indeed, one of the deceased called the next day to say that he had all of the money needed for the deal.

[10] Belair had selected an automotive repair shop as a possible location for the drug deal. On July 15, the day prior to the shootings, Belair said that he, the appellant and Boyle went to the repair shop. Belair spoke with the owner about the possibility of renting one of the bays in the garage. The appellant and Boyle remained in the vehicle. It appears that this was a pretext in order to scout out the location.

[11] About 10:00 p.m. on that same day, Belair once again drove the appellant and Boyle in his truck to the repair shop. The purpose of the visit was to ensure that the repair shop was unattended and to cut off the lock on the gate leading to the repair shop. Belair had brought bolt cutters with him for this purpose, which he had borrowed from a friend. An employee of the repair shop was present but after the employee left, the lock was cut. According to Belair, the lock was cut by the appellant and Boyle. At this time, Paul was out with a friend drinking and ingesting cocaine.

[12] Around midnight, Paul called Belair. He then left his friend and drove to Belair's apartment, carrying with him a money counter. When he arrived, he found that the deceased, Belair, Boyle and the appellant were already there. A short time later, Paul left. Paul gave evidence that he left to meet the secondary purchaser, who also intended to purchase a large quantity of marijuana.

[13] Belair gave evidence that shortly after Paul left, he drove the appellant and Boyle to the repair shop, arriving there around 12:45 a.m. This was confirmed by security cameras located at other businesses along the route that Belair took to get to the repair shop. Belair says that he left the appellant and Boyle at the deserted repair shop where he understood they were to meet with the supplier of the marijuana. Belair returned to his apartment where the deceased had remained.

[14] Cell phone records were adduced at the trial. Those records showed that the appellant did not stay at the repair shop but, rather, moved to different locations north and east of the repair shop. Curiously, the evidence was that the appellant did not have any vehicle available to him when he and Boyle were left at the repair shop. Nevertheless, over the next couple of hours, the cell phone records clearly show the appellant moving around between the cell area that encompassed the repair shop and an adjoining cell area.

[15] Meanwhile, Paul said that he met up with this secondary purchaser and they waited for news that the marijuana deal was ready to proceed. They waited at a Tim Horton's on the east side of Cornwall that was close to the repair shop.

[16] Belair said that he and the deceased waited at his apartment until about 2:30 a.m. or almost two hours after Belair had dropped the appellant and Boyle at the repair shop. During this time, Belair had a number of telephone calls with both the appellant and with Paul.

[17] Around 2:30 a.m., Belair said that the appellant called and told him that the marijuana deal was ready to proceed. Belair and the deceased left the apartment and headed to the repair shop. Security cameras showed Belair's car and the deceased's truck approaching the repair shop at 2:36 a.m. When they arrived, Belair said that neither Boyle nor the appellant was there. Belair and the deceased waited. The appellant called Belair three times: 2:39 a.m.; 2:58 a.m. and 3:04 a.m. According to Belair, the appellant told him that he and Boyle had become separated – he with the marijuana supplier and Boyle with the driver who actually had the marijuana. They were trying to reconnect. With respect to the 3:04 call, the appellant's phone "pinged" off the Cornwall downtown cell area, not the cell area where the repair shop was located.

[18] During this time, Paul was still waiting with his secondary purchaser. Paul says that at 3:00 a.m., the secondary purchaser got tired of waiting and left.

[19] Belair said that, while he was waiting with the deceased, he heard gravel moving. Then a masked man with a gun appeared and ordered Belair to the ground. Belair then heard a couple of gunshots and dove under his car after which he heard one of the deceased say "just take it, just take it". Then there were more gunshots. Boyle then appeared and told Belair that it was alright and to come out. Belair says that Boyle was holding a gun and had a masked pulled up above his face. Boyle and Belair walked over to the deceased who were injured but still alive. Belair then saw the appellant who also had a mask pulled up above his face. The appellant had a shotgun and a handgun.

[20] Belair said that Boyle gave him the gun he was holding and told him to finish off the deceased or else he would join them. Belair said that he put the gun against one of the deceased's neck and pulled the trigger. The gun did not go off. While this was going on, the appellant was using the butt end of a shotgun to break the glass of a window on the deceased's truck. Belair said that the appellant and Boyle entered the truck and retrieved a bag – presumably the bag of money for the drug deal. Belair was told to get in his car. The appellant then walked over to the two deceased and separately shot each of them at point blank range with the shotgun. The appellant and Boyle got into Belair's car and left the scene. Video surveillance showed Belair's car travelling away from the repair shop at 3:17 a.m. [1]

[21] The appellant told Belair to drive to the home of Belair's estranged wife, Clarissa Thompson. Along the way, the appellant told Belair to call Paul. Belair called Paul's cell phone at 3:15 a.m. and 3:18 a.m. On arrival at Thompson's, Belair said that the appellant and Boyle carried the bag of money that also included the guns and some other items into the home.

[22] Belair says that the appellant again told him to call Paul for the purpose of arranging a meeting. A series of calls took place between Belair and Paul. Paul's evidence was that he wanted to know how the deal with the deceased had gone and to get his "cut" from that deal. Belair and Paul agreed to meet. Belair said that he and Boyle then left Thompson's home, leaving the appellant at Thompson's. During the drive, Boyle produced one of the handguns. Boyle told Belair that he would have to kill Paul or his family would be shot.

[23] Belair and Boyle picked up Paul in Belair's car. They drove off, ostensibly to go and collect the marijuana for the deal with Paul's secondary purchaser. Nothing was said about what had happened earlier with the deceased. The three drove to an abandoned farm house. Once there, Belair said that he walked up behind Paul and shot him in the back of his head. Belair and Boyle then left the farmhouse with Paul apparently dead on the ground. In fact, Paul was still alive.

[24] Belair and Boyle returned to the Thompson home. When they arrived, the appellant had already showered and put his clothes in a bag. They reported on the shooting of Paul. Belair was told to shower and put his clothes in the same bag. Boyle did the same. At some point, they left the Thompson home and went to Belair's apartment, taking with them the bag of clothes and the bag with the money and the guns.

[25] At 8:20 a.m., Belair called his cleaning lady and arranged for her to come and clean his apartment. The appellant gave Belair US$20,000. He also told him that he should get his car cleaned. Belair took his car to a carwash and left it for cleaning. Belair said that the appellant then told him to dispose of the bag that now contained the guns, the money counter and some other items. Belair and the appellant took Belair's boat out onto the St. Lawrence River and dropped the bag overboard.

[26] Belair said that the appellant wanted to burn the bag of clothes. Belair suggested they could do that at his sister's farm. Belair, Boyle and the appellant drove to the farm, arriving in the afternoon. Belair told his nephew, who was at the farm, that he had to use their fire pit. Belair says that he stayed in the house while Boyle and the appellant went and burned the clothes. However, there was other evidence that suggested that Belair had gone to the pit when the clothes were burned. Belair's sister did not arrive at the farm until after the clothes were burning.

[27] On July 21, five days after the murders, the police arrested Belair for the attempted murder of Paul. By this time, the appellant and Boyle had returned to Sudbury. Belair told the police that the appellant had shot Paul, even though he knew that Paul was alive and thus able to tell the police that the appellant had not been there when he was shot.

[28] On August 17, Belair led the police to the location on the St. Lawrence River where they had disposed of the bag with the guns. The police were able to locate and retrieve the bag. It contained two handguns, a shot gun, ammunition, a pair of bolt cutters, a pry bar, a latex glove, two balaclavas, plastic ties, homemade handcuffs, bear spray, a towel, a can of paint, a flashlight and a money counter. Belair testified that the guns were the ones that had been used in the murders and the shooting of Paul. The evidence was that Belair had owned each of these guns. Belair claimed that the balaclavas were not the ones used by the appellant and Boyle during the murders. Belair also acknowledged the bolt cutters, which he had obtained from a friend of his. A hair was found on the towel that had a mitochondrial DNA profile from which the appellant could not be excluded. The day after the police recovered the bag with the guns, the appellant and Boyle were arrested in Sudbury.

[29] In late December 2006, Belair reached an agreement with the Crown by which he agreed to plead guilty to a charge of aggravated assault with respect to the shooting of Paul. The Crown agreed to seek a sentence of no more than 2 ½ years in addition to pre-trial custody consequent on this plea. Belair would, in turn, co-operate with the police in the prosecution of the appellant and Boyle for the murders, including giving evidence in that prosecution.

[30] The trial against the appellant and Boyle proceeded. It began on October 5, 2009 but the trial was cut short by "a late breaking development" that led the trial judge to dismiss the jury shortly after they were empanelled. As a consequence of those issues, the Crown decided to sever the charges against the appellant and Boyle. The trial for the appellant proceeded on May 10, 2010. The appellant was convicted on July 8, 2010.

[31] Before dealing with each of the grounds of appeal, I should mention a few additional facts. This was a complicated case. The Crown called over one hundred witnesses. The trial took two months to complete. That said, the trial largely rested on the evidence of Belair and, to a lesser extent, Paul, who had been directly involved in the events.

[32] Belair had a significant criminal record, including a prior conviction for aggravated assault. He was a known drug dealer. Paul had an extensive criminal record, including prior convictions for assault. Paul also had issues with alcohol and drugs.

[33] Finally, as the trial judge told the jury, the only issue that was left with the jury to decide was whether the appellant had committed the murders. Trial counsel had agreed that all of the other elements of the offence of first degree murder had been made out, except who had committed the murders.

B. Analysis

[34] The appellant raises a number of grounds of appeal, which I would collect into three. They are:

1. The verdicts were unreasonable such that acquittals ought to be entered;

2. There were several errors in the trial judge's final instructions that require a new trial; and

3. There is fresh evidence that, if admitted, would warrant a new trial being ordered.

[35] I would allow the appeal on the second ground of appeal. The jury's verdict can be supported by a reasonable view of the evidence put before them at trial. However, errors made by the trial judge in instructing the jury, particularly on the issue of post-offence conduct, are sufficiently serious that these verdicts cannot stand. That conclusion makes it unnecessary to deal with the fresh evidence application.

(1) Unreasonable Verdicts

[36] The appellant says that the verdicts were unreasonable ones that no jury, properly instructed, could have reached on the evidence that was placed before them. The appellant says that the evidence adduced by the Crown so lacked credibility that convictions simply could not be properly reached on it. The appellant points to the bad character of Belair, his history of committing crimes, especially drug-related crimes, his motive to implicate the appellant, and the various inconsistencies and/or improbabilities in his evidence. In particular, the appellant says that Belair's contention that he was simply following the directions of the appellant throughout these events is not a credible one.

[37] I do not intend to deal with this ground of appeal at length. I accept that the appellant makes a number of valid points in his criticism of the Crown's case, many of which I will address when I deal with the second ground of appeal. I do not need to deal with the ground at length because, in my view, even accepting much of what the appellant advances, the appellant has failed to establish that the jury's verdicts are unreasonable.

[38] The test for an unreasonable verdict is the one to which I just alluded. It is whether the verdict is one "that a properly instructed jury acting judicially, could reasonably have rendered": R. v. Yebes, [1987] 2 S.C.R. 168, at p. 185.

[39] The application of this test was described in R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, where Arbour J. said, at para. 36:

That formulation of the test imports both an objective assessment and, to some extent, a subjective one. It requires the appeal court to determine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyse and, within the limits of appellate disadvantage, weigh the evidence.

[40] The application of the test was noted in Biniaris to be a more difficult one where the verdicts are rendered by a jury. A finding that a verdict is unreasonable is not met where, as Arbour J. noted, an appellate court only has "a vague unease, or a lingering or lurking doubt": at para. 38. In order to find a jury's verdicts unreasonable, especially when they will have to have been based in whole or in part on their assessment of the credibility of witnesses, an appellate court must find that those credibility assessments "cannot be supported on any reasonable view of the evidence": R. v. Burke, [1996] 1 S.C.R. 474, at para. 7.

[41] I do not quarrel with many of the points that the appellant makes respecting the problems with the evidence of Belair. However, those problems do not rise to the level where a jury simply could not believe him and that is the level to which they would have to rise for this court to properly find the verdicts to be unreasonable.

[42] The Crown's initial response to this ground of appeal is to assert that this was a strong Crown case. I disagree. This was the antithesis of a strong case. It depended largely on the evidence of two criminals, one of whose blood was found at the murder scene and the other of whom acknowledged being at the scene and had a motive to exact revenge on the deceased. That said, though, this does not mean that there was no evidence implicating the appellant in the murders. In addition to the direct evidence of Belair, there was cell phone evidence that placed the appellant in the vicinity of the murders at the relevant time. I appreciate that the cell phone evidence cuts both ways. In particular, the 3:04 call places the appellant some distance from the repair shop. His window of opportunity to get back to the repair shop, sneak in along with Boyle and commit the murders is a tight one. However, it is not an impossible one. Further, other witnesses established that the appellant was involved in the burning of the clothes at the farm. In addition, there was the appellant's history of being a drug dealer and of his involvement in other drug transactions involving Belair and the deceased.

[43] Had the jury been properly instructed and had they reached the same verdicts, I cannot say that the experience of judicial fact-finding would preclude such a result. Properly instructed, the jury would have been entitled to sift through all the problems in the Crown's case, and in Belair's evidence, and still conclude that the appellant had committed the murders. Although that result might have been unlikely, I cannot conclude that it would have been precluded.

(2) Errors in the Final Instructions

[44] The appellant advances a number of errors that he says were made in the trial judge's final instructions to the jury. They are:

(i) The trial judge failed to give a Vetrovec warning with respect to Thompson;

(ii) The Vetrovec warnings that the trial judge gave with respect to Belair and Paul were inadequate;

(iii) The trial judge erred in his instruction on post offence conduct;

(iv) The trial judge erred in his answer to the first question from the jury.

(a) Vetrovec Warning for Thompson

[45] The appellant asked the trial judge to give a Vetrovec warning for Thompson essentially because of her very close connection to Belair. She was the estranged spouse of Belair; she had stated that she continued to be infatuated with him; she had changed her story from what she initially told the police to what she said at trial in a manner that directly assisted Belair; and she had many contacts with Belair after the murders during which she had ample opportunity to tailor her evidence to fit his. In particular, on this point, Thompson gave evidence at trial that Belair had come to her house along with the appellant and Boyle in the early hours of July 16. Thompson had earlier told the police in a statement that she had not seen Belair, the appellant or Boyle that day.

[46] The trial judge declined to give a Vetrovec warning for Thompson because he found that her evidence was not important and did not have the "centralness" required for such a warning. The trial judge erred in his analysis of the importance of Thompson's evidence. Thompson said at trial that she saw the appellant with Belair and Boyle immediately following the murders. She had earlier told the police that she had not seen any of them in the morning after the murders. Of course, her trial evidence tended to support the evidence of Belair, who was the primary witness against the appellant.

[47] Thompson's evidence was not unimportant nor was it peripheral. It provided some confirmation for Belair's evidence. Its importance was not lost on trial counsel. Defence counsel told the trial judge, "if the jury concludes that Clarissa Thompson is telling the truth about the garage on July the 16th, then there will be a conviction. It's as simple as that." Crown counsel also thought that Thompson's evidence was important. They told the trial judge that they would make "a big deal" out of her evidence. Indeed, in his closing, Crown counsel told the jury "[i]f you believe [Thompson's] evidence then, really, there's no escape for Jason Maestrello."

[48] It is useful at this stage to return to the decision in R. v. Vetrovec, [1982] 1 S.C.R. 811, to see what the Supreme Court of Canada said about the need for such a warning. In particular, Dickson J. decried the law's then requirement to identify accomplices as requiring a special warning regarding their credibility or believability. Rather, he thought that all witnesses should be treated equally. If a particular witness, for a particular reason, required a special warning, then a trial judge should give it. Otherwise, all witnesses should be treated in the same fashion, none of them being required to be singled out for special treatment. In the end result, that proper approach was, according to Dickson J., at p. 823:

Rather than attempting to pigeon-hole a witness into a category and then recite a ritualistic incantation, the trial judge might better direct his mind to the facts of the case, and thoroughly examine all the factors which might impair the worth of a particular witness. If, in his judgment, the credit of the witness is such that the jury should be cautioned, then he may instruct accordingly. If, on the other hand, he believes the witness to be trustworthy, then, regardless of whether the witness is technically an 'accomplice' no warning is necessary.

[49] If a witness fell into the category requiring a special caution, Dickson J. said, at p. 831, that the trial judge should give "a clear and sharp warning to attract the attention of the juror to the risks of adopting, without more, the evidence of the witness."

[50] In my view, the trial judge was correct in concluding that Thompson was not the type of witness that required a formal Vetrovec caution, although I disagree with the reasons that the trial judge gave for reaching that conclusion. That said, however, Thompson was an important witness who, given her changing story and her personal connection to Belair, required some attention by the trial judge in his review of the evidence. The trial judge ought to have specifically mentioned her evidence and pointed out some of the factors that the jury would want to take into account in assessing her evidence, including the ones that I have just mentioned. This did not occur. Indeed, there was precious little review of the evidence at the trial undertaken by the trial judge generally. Further, when the trial judge did mention Thompson's evidence he misstated or underplayed it – telling the jury incorrectly that in her first police statement she failed to mention the men coming to her house when, in fact, she had said that she had not seen them. The failure of the trial judge to more fully review her evidence and identify the frailties in it was an error, but it is not one that, by itself, would warrant intervention by this court.

(b) Vetrovec Warnings for Belair and Paul

[51] The trial judge gave Vetrovec warnings for Belair and Paul, largely in the same terms. The appellant advances two complaints. One is that with respect to Paul, the trial judge did not identify all of the reasons why Paul's evidence should be approached cautiously. In particular, the trial judge mentioned only Paul's criminal record but did not point out the possibility that Paul was, in fact, present for the murders and may have participated in them. In that regard, it is important to note that, among other evidence, Paul's blood was found inside the deceased's vehicle, which could have been deposited when the window was broken to obtain the bag of cash. Paul rejected that suggestion at trial and explained that his blood could have been deposited at an earlier time, when he had also been in the deceased's vehicle, although he could not explain what would have caused his blood to be left then.

[52] When dealing with a witness that requires a Vetrovec warning, it is important that the trial judge identify the reasons why the jury should approach the witness' evidence with caution. As Fish J. said in R. v. Smith, 2009 SCC 5, [2009] 1 S.C.R. 146, at para. 14:

In order to assess the risk of accepting testimony from an unsavoury witness, a jury must understand the reasons for special scrutiny (R. v. Sauvé (2004), 182 C.C.C. (3d) 321 (Ont. C.A.), at para. 85). This requires identifying for the jury the characteristics of the witness that bring his or her credibility into serious question. [Citation in original.]

[53] The trial judge erred in not better explaining to the jury the reasons why they should approach Paul's evidence with caution.

[54] The second complaint is that the trial judge did not properly explain what confirmatory evidence there might have been for either Belair or Paul. With respect to Belair, the trial judge referred to the cell phone evidence, the trip to burn the clothes, and the evidence of Paul. With respect to Paul, the trial judge also referred to the cell phone evidence, the evidence of another witness who was with Paul for a portion of the evening of July 15, and the evidence of Belair.

[55] The problem with the trial judge's references to evidence that might be confirmatory is that the trial judge failed to explain why any of these pieces of evidence could be confirmatory. For example, the trial judge mentions the cell phone records but fails to explain how those cell phone records might confirm the evidence of Belair or Paul. As the appellant points out, some of the cell phone evidence could actually be seen as contradicting both Belair and Paul. Similarly, as I will elaborate, the trip to burn the clothes implicated Belair as much as it did the appellant.

[56] The difficulty with the issue of confirmatory evidence is that it tends to be a two-edged sword for an accused person. If the trial judge goes into great detail with respect to confirmatory evidence, it may only serve to buttress the evidence of the witness that the accused person is trying to discredit. It is a reason why some defence counsel would prefer that Vetrovec warnings not be given at all. As Dickson J. explained in Vetrovec, at p. 818:

The accused is in the unhappy position of hearing the judge draw particular attention to the evidence which tends to confirm the testimony the accomplice has given. Cogent prejudicial testimony is thus repeated and high-lighted.

[57] Once again, the trial judge erred in his approach to this issue. He ought to have much better explained how the evidence, that he was reciting as confirmatory, was, in fact, confirmatory.

[58] However, I am not satisfied that either of the trial judge's errors with respect to the Vetrovec warnings is sufficient to warrant appellate intervention. The fact remains that the evidence of both Belair and Paul were made the subject of a special caution. The jury was made aware that they should approach their evidence with caution and, while they could accept their evidence, it would be dangerous to do so. They were also told to look for confirmatory evidence before accepting their evidence. In the end result, the central objective of a Vetrovec warning was achieved. I would also note, on this point, that trial counsel did not make any objection to the trial judge's instructions in this regard, which suggests that trial counsel did not view it as a serious problem.

(c) Post-Offence Conduct

[59] The trial judge gave the jury a standard instruction regarding the post-offence conduct. In this case, this particular evidence related to the disposal of the bag with the guns and other items in the river, and the burning of the clothes at the farm of Belair's sister. In his instruction, the trial judge said, in part:

On the other hand, if you find that [what] Mr. Maestrello did or said afterwards was because he was conscious of having done what is alleged against him, you may consider this evidence together with all the other evidence in deciding to – in reaching your verdicts. [Emphasis added.]

[60] There are two problems with the trial judge's post-offence conduct instructions. The above portion of the instructions repeats the error identified in R. v. Hall, 2010 ONCA 724, 263 C.C.C. (3d) 5, leave to appeal refused, [2010] S.C.C.A. No. 499, and in R. v. Taylor, 2015 ONCA 448, 325 C.C.C. (3d) 413, "because it invites the jury to jump directly to the issue of guilt as a pre-condition to the use of the evidence of post-offence conduct in determining whether guilt has been established": Taylor, at para. 141. In fairness to the trial judge, his instructions to the jury predated the decisions in Hall and Taylor.

[61] As this court held in Hall, in Taylor and in R. v. Nur, 2018 ONCA 8, this error is not necessarily fatal. In Taylor, for example, the court identified the fact that the defence position had been "thoroughly canvassed" by the trial judge, that there had been no objection at trial, and that the post-offence conduct evidence did not occupy "a prominent place in proving guilt" as reasons why the erroneous instruction in that case was not fatal: at paras. 143-46.

[62] In this case, not all of those countervailing factors are present. Admittedly, there was no objection by trial counsel. However, one cannot say that the defence position was thoroughly canvassed with the jury. The trial judge did summarize the defence position from the closing but did nothing more. Also, in this case, the post-offence conduct did occupy a prominent place in proving guilt.

[63] That latter observation leads to the second problem with the trial judge's instructions on post-offence conduct. The fact is that the post-offence conduct pointed as much to Belair being the murderer as it did to the appellant. Of significance on this point is the fact that the guns belonged to Belair. There was also no explanation offered in the evidence as to how those guns got to the repair shop to be used to commit the murders. Further, if Belair did not actually dispose of the bag with the guns in the river, he was certainly present for that event. Indeed, it was his boat that was used to make the trip out on the river to drop the bag overboard. Finally, Belair was also present for the burning of the clothes that was undertaken, notably, at the farm of his sister – a location that he had suggested.

[64] Despite these facts, the trial judge did not instruct the jury on this salient point, that is, the equivalent impact of this evidence as between the appellant and Belair, when he dealt with the post-offence conduct. In particular, he never told the jury about the alternative implications of the evidence along the lines a trial judge might do if dealing with a third party suspect instruction. By saying that, I am not necessarily saying that a formal third party instruction was required. No request was made for such an instruction and, in any event, it would have been obvious to the jury that Belair was implicated in these events including being present at the time of the murders and also for the attempted murder. Nevertheless, the trial judge had a duty to ensure that the jury clearly understood the conflicting positions of the parties, the evidence that supported those positions and the necessity of assessing the evidence on a reasonable doubt standard. At the very least, the trial judge ought to have cautioned the jury that, in considering the evidence of post-offence conduct, they had to consider that it pointed equally to Belair being the perpetrator of the murders. The trial judge did not do this, despite the fact that, in an exchange he had with counsel about answering the jury's question (the issue I come to next) he said:

And why I was trying to be careful with it is they can use that evidence against Mr. Belair if they want to, because they can say the he dealt with the tires, he burnt the clothes and, therefore, he is guilty of the offence, not your client.

[65] Much like the situation in Hall, while the first error might not be fatal, this second error is of greater consequence. Indeed, this case mirrors what occurred in Hall, where this court said, at para. 150:

Although the trial judge warned the jury that it was particularly important to consider evidence of any other explanations for the appellant's conduct, she did not suggest to them what other possible explanations there were.

[66] The end result was that the jury was left without an adequate instruction as to how to properly use the evidence of post-offence conduct. This is important in this case because the post-offence conduct evidence carries with it the significant risk that it may have been the evidence that led the jury to reason backward to a finding of guilt. The reality of that possibility becomes even more apparent when one considers the final error identified by the appellant.

(d) The Answer to the Jury's First Question [2]

[67] The jury commenced their deliberations around 1:00 p.m. Around 8:00 p.m. they sent a question to the trial judge. The question was as follows:

The jury would like more clarification on "aiding and abetting" as it applies to the 3 charges on the indictment.

Example:

A) Would aiding in the planning and destruction of evidence be sufficient for a guilty verdict on the 1st and 2nd charges?

B) Would aiding in the planning and destruction of evidence be sufficient for a guilty verdict on the 3rd charge?

[68] After discussing the question with counsel, briefly at the time and then more fully the next morning, the trial judge responded to the question. He first pointed out that the instruction on party liability through aiding and abetting related only to the third charge, that is, the attempted murder charge relating to Paul. He then repeated his charge on aiding and abetting.

[69] The trial judge followed that with a repetition of his charge on post-offence conduct. This included repeating the problematic language to which I have referred above, language that might cause a jury to engage in backwards reasoning. The trial judge did so at the urging of Crown counsel, who contended that the reference to the destruction of evidence obviously engaged the issue of the post-offence conduct. Although that may be so, there is nothing in the jury's question that suggests that they had a problem relating to the post-offence conduct instruction. Rather, they clearly had a problem with how to consider party liability through aiding and abetting. This is evident from the fact that they link aiding and abetting to the first two counts, even though they had been told that that route for liability was only open to them with respect to the third count. I note that defence counsel disagreed with the trial judge re-instructing the jury on post-offence conduct.

[70] Given that the trial judge had made it clear that he was going to repeat his charge on post-offence conduct, the defence suggested that the question raised a different possibility. The defence suggested that the jury might be considering whether the post-offence conduct demonstrated that the appellant was engaged in some criminal conduct other than involvement in the murders. The offence of accessory after the fact was brought up, by way of example.

[71] The trial judge's reaction to the defence suggestion is troubling. First, he said that he could not draw that concern from the question. I note that this did not seem to be an impediment to his view on the need to recharge on post-offence conduct, which was also not readily apparent from the question. Second, he seemed to be of the view that he was obliged, in answering the jury's question, to repeat word for word what he had said in his original instructions. For example, at one point in his exchange with counsel, the trial judge said:

I'm not going to get into that. I'm going to recharge them as I did yesterday. Because, if [there] was a problem with that, that should have been dealt with before my start of the jury's deliberation. … I'm going to read the charge as I gave them yesterday, unless there's some debate or consent amongst counsel that I change it in some way. Otherwise, it's going to be the same.

[72] The importance of questions from a jury, and of answering them fully and properly, cannot be gainsaid. As Cory J. observed in R. v. S. (W.D.), [1994] 3 S.C.R. 521, at p. 528:

It is true that directions to a jury must always be read as a whole; however, it cannot ever be forgotten that questions from the jury require careful consideration and must be clearly, correctly and comprehensively answered. This is true for any number of reasons which have been expressed by this Court on other occasions. A question presented by a jury gives the clearest possible indication of the particular problem that the jury is confronting and upon which it seeks further instructions. Even if the question relates to a matter that has been carefully reviewed in the main charge, it still must be answered in a complete and careful manner. It may be that after a period of deliberation, the original instructions, no matter how exemplary they were, have been forgotten or some confusion has arisen in the minds of the jurors. The jury must be given a full and proper response to their question. The jury is entitled to no less. It is the obligation of the trial judge assisted by counsel to make certain that the question is fully and properly answered.

[73] This was not a case where the jury had been given the trial judge's final instructions in writing, so the observation by Cory J. that the jury may have forgotten, or become confused about, the instructions is an apt one.

[74] There is no rule that precludes a trial judge from altering his earlier instructions, or elaborating on them, or otherwise changing them, if that is what is required to answer the question posed. If the trial judge proposes to do so, he should, of course, canvass the issue with counsel. But a trial judge is not in any form of straightjacket resulting from the original instructions. If those instructions need to be changed in order to provide a correct and comprehensive answer to the jury's question, then that is what should be done. Indeed, the fact that the jury has a question relating to a portion of the original instructions is likely a good indicator that there may be a problem with the way those original instructions were worded, or how they should apply them to the evidence that they have heard.

[75] In my view, the first question reveals a jury that is very confused about what they are to consider and decide upon. The fact that the jury somehow related the aiding and abetting instruction to the first two counts is proof of that confusion. It should have been alarming to both counsel and the trial judge that this confusion existed especially because, I reiterate, the only issue before the jury was identity. It reinforced the need both to determine what was confusing the jury and for a comprehensive response to be given.

[76] It might have been better if the trial judge had simply instructed the jury, in response to their question, that aiding and abetting related only to the third count, not the first two counts, and left the matter at that. This is what defence counsel originally asked be done. The trial judge rejected that approach. However, if the trial judge was going to go beyond the apparent confines of the question and get into the post-offence conduct issue, as Crown counsel asked him to do, then he should have been alert to other issues that that approach raised, including the possibility that the jury was considering whether the post-offence conduct suggested guilt of an offence (such as accessory after the fact) separate and apart from guilt on the murder counts. The fact that the trial judge refused to consider those issues is a problem in terms of whether he was providing an adequate response to the jury's question.

[77] Because of the approach that the trial judge adopted, he failed to properly consider, and fully answer, the question that the jury had asked. Further, in taking the approach that he did, the trial judge effectively exacerbated the problem caused by the original instruction on post-offence conduct.

(e) Summary on Issues Relating to the Final Instructions

[78] The issues with respect to the various Vetrovec errors would not warrant intervention in this case. The issue with the instruction on post-offence conduct is much more problematic. It is especially so since none of the ameliorating factors identified in Taylor, for example, are present here, save the failure of defence counsel to object. The lack of objection is not, of course, a prohibition against appellate review: R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58.

[79] I am inclined to hold that the error relating to the post-offence conduct instruction is itself an irremediable error, both because it invited the jury to engage in backward reasoning in the circumstances of this case, and because the trial judge never told the jury that this evidence could be as indicative of guilt on the part of Belair as it might be with respect to the appellant.

[80] However, my concern in this respect is raised to an entirely different and higher level because of the repetition of that instruction in response to the jury's question. Indeed, as defence counsel pointed out, the question itself could be seen as engaging in backwards reasoning because the jury appears to be using the destruction of evidence, through the aiding and abetting party liability, to engage the murder counts. The confusion that the jury had in this regard would not have been allayed by the answer to the question. Indeed, it might only have hastened them along the path of finding the appellant guilty because they were convinced that he engaged in that post-offence conduct. The trial judge had not provided them with any other option arising from the post-offence conduct through his instructions.

[81] Given the seriousness of these errors, and their cumulative effect, along with the very real possibility of backwards reasoning that I have identified, the verdicts cannot stand. The verdicts must be set aside and a new trial ordered.

(3) Fresh Evidence

[82] Given my conclusion with respect to the errors in the trial judge's final instructions to the jury, and the consequent need for a new trial, it is unnecessary to address the fresh evidence application.

[83] I will add one comment with respect to it, however.

[84] The fresh evidence that the appellant seeks to adduce is the evidence of Boyle, who did not testify at trial. On September 15, 2010, Boyle pleaded guilty to two counts of manslaughter and one count of attempted murder. Pursuant to a joint submission, Boyle was sentenced to 17 ½ years. He received a credit of 10 years for his pre-trial custody, leaving a sentence of 7 ½ years to be served.

[85] Shortly after his plea, Boyle told his parole officer what he says happened on the night of the murders. In particular, Boyle told his parole officer that the appellant had not even been present at the time of the murders. Rather, it was Belair and Paul who had committed the murders. Further, Boyle said that it was Belair who had shot Paul in the head in order to silence him.

[86] Boyle subsequently told both the appellant's trial counsel and his appellate counsel what he says happened. He provided an affidavit in October 2012 outlining his version of the events of the murders. His evidence includes assertions that the appellant knew of a planned robbery of the deceased by Belair and Paul and agreed to participate to the extent of driving around and calling Belair.

[87] Even if the fresh evidence was admitted, that evidence is not so persuasive, on its own, that it would compel this court to enter acquittals rather than order a new trial. Nor does the appellant argue that it would. While the Boyle evidence may make the path to conviction for first degree murder and attempted murder an even steeper one for the prosecution to climb, it does not make it an insurmountable one.

C. Conclusion

[88] I would allow the appeal, set aside the convictions, and order a new trial on all three counts on the indictment.

[89] In ordering a new trial, I am mindful of the fact that almost 15 years have passed since the murders were committed and almost 10 years since the trial took place. This lapse of time will undoubtedly make the re-prosecution of the appellant a difficult one for the Crown. It is also unacceptable, the responsibility for which lies with both sides. The passage of an inordinate amount of time harms everyone involved in a criminal prosecution.

[90] If there is a fatal error in the conduct of a criminal prosecution, that error cannot be overcome by concerns over the passage of time. This case does, however, show the important responsibility that all parties bear in all criminal cases to ensure that prosecutions proceed as expeditiously as possible to their proper conclusion.

Released: December 4, 2019

"I.V.B. Nordheimer J.A."

"I agree. Janet Simmons J.A."

"I agree. Grant Huscroft J.A."

Footnotes

[1] This time varies by a few minutes depending on the source.

[2] I refer to the jury's first question because the jury asked a second question seeking the replay of a witness' evidence.