COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McMorris, 2020 ONCA 844

DATE: 20201229

DOCKET: C63072

Lauwers, Huscroft and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dellan McMorris

Appellant

James Lockyer and Lance Beechener, for the appellant

Karen Papadopoulos, for the respondent

Heard: September 23, 2020 by video conference, and by supplementary submissions on October 19, 2020, in writing

On appeal from the conviction entered on June 24, 2016 by Justice Brian W. Trafford of the Superior Court of Justice, sitting with a jury.

Lauwers J.A.:

A. Overview

[1] A jury convicted the appellant, Dellan McMorris, of first-degree murder for the killing of Delano Coombs. Jerome Bent pleaded guilty to first-degree murder for the same killing.

[2] The jury was faced with two starkly different versions of events. On the evidence led by the Crown, Coombs was driving through a laneway in order to exit from the Cooper Mills housing complex in the west end of Toronto. Three assailants were waiting for him and emerged from a stairwell with guns drawn. They fired shots at the windshield; Coombs stepped out of his car but fell to the ground. One shooter, who was wearing a black hoodie, fired the final volley of shots. Coombs was shot at least eight times. Witnesses heard the sound of a gun misfiring.

[3] The assailants fled in different directions. Eyewitnesses described the shooter wearing the black hoodie running west and then north, crossing a set of train tracks. He dropped the hoodie near the tracks, where the police would later find it. The only identifiable DNA on the hoodie belonged to the appellant.

[4] One of the assailants was Jerome Bent. Phone records indicated that Bent and the appellant exchanged numerous calls in the days and hours leading up to the shooting. Bent’s girlfriend, Amanda Rumbolt, testified that after receiving a cellphone call, Bent instructed her to drive to a location near the housing complex where they met the appellant. Bent got out of Rumbolt’s car, telling her to wait for his return. He got into another car with the appellant and left. About an hour later Bent returned alone and told Rumbolt to drive home. Sirens were wailing.

[5] The appellant testified that he was not one of the assailants. He admitted he was in the complex at the time of the murder but said that he went there to retrieve some cocaine from his girlfriend’s apartment in order to complete a drug transaction with Bent. He said that the numerous cellphone contacts between him and Bent before the murder were about the drug deal, not about the murder. When he heard the gunshots, he fled on foot.

[6] The jury had before it, on the one hand, the Crown’s theory that the appellant and Bent were two of the three assailants, and that the appellant was either the principal shooter or he was a participant party also guilty of first-degree murder. On the other hand, the jury heard the appellant’s testimony that he was not at the murder scene but was elsewhere in the complex.

[7] As the verdict shows, the jury did not accept the appellant’s testimony.

[8] The appellant argues that the trial judge made errors on the admissibility of evidence that rendered the trial unjust and require the verdict to be set aside.

[9] For the reasons set out below, I would dismiss the appeal.

B. The Issues

[10] The appellant submits that the trial judge made three errors:

1. He rejected the defence application to admit into evidence before the jury Bent’s out-of-court statements to his friend, Jermaine Graham, that implicated Bent as the principal shooter wearing the hoodie;

2. He admitted into evidence before the jury Bent’s guilty plea, together with the transcript of his plea and the agreed statement of facts accompanying his plea, both edited by the trial judge;

3. He instructed the jury that they could consider the appellant’s post-offence conduct as evidence of planning and deliberation related to the first-degree murder charge.

[11] The first two issues arise from pre-trial rulings by the trial judge. This was a fast-moving trial requiring quick responses by the trial judge in difficult circumstances. The motion on the admissibility of Bent’s declarations to Graham was argued on May 16 and 17, 2016, and the reasons were released on May 25, and reported at 2016 ONSC 3400. The motion on the admissibility of Bent’s guilty plea was filed on May 27, argued on May 31, and the reasons were released on June 1, and reported at 2016 ONSC 3604. The trial started with witnesses on June 1, 2016.

[12] The trial judge knew when he heard the arguments on the admissibility of Bent’s declarations to Graham that he would later be making the plea ruling. As the rulings anticipated, Bent was summoned to testify but he refused to be sworn.

A. Issue one: Did the Trial Judge err in dismissing the defence application to admit into evidence before the jury Bent’s out-of-court statement to Jermaine Graham that implicated Bent?

[13] Bent made three sets of statements to Graham, who was a close friend of about 15 years. Bent first spoke to Graham in July 2012, about two months after the murder, and then again later in the same month. Graham described his conversations with Bent to police officers in a series of interviews beginning in November 2012. Then, on April 3, 2013 Graham was put into a cell with Bent and their conversation was audio and videotaped with Graham’s consent. One week later, Graham debriefed police on his intercepted conversation with Bent in the cell. Graham testified at the appellant’s preliminary inquiry.

[14] The trial judge had before him Bent’s declarations to Graham from July 2012 as disclosed to police in November 2012, the intercepted jail cell conversation of April 3, 2013, Graham’s police debriefing, and Graham’s testimony at the appellant’s preliminary inquiry.

[15] The defence applied to have Bent’s July statements admitted into evidence. The defence wanted to have these admitted for the truth of their contents because they were evidence that Bent was the principal shooter, that he was the one wearing the hoodie who fled the scene and dropped the hoodie bearing the appellant’s DNA near the railway tracks, and that the appellant was present at the murder scene but only watched.

[16] The Crown applied to have the intercepted conversation admitted. In that conversation Bent said that the appellant was the primary shooter, contrary to what he had said in his July statements. The Crown wanted the intercepted statements to be admitted on the issues of identity and the appellant’s role in the murder.

[17] Each party opposed the other’s application. The trial judge dismissed both applications.

[18] The appellant argues that the trial judge should have granted the defence application but that he correctly dismissed the Crown application.

(1) The Governing Principles

[19] Bent’s statements to Graham were plainly hearsay statements and were therefore presumptively inadmissible: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 3. Fish J. explained the dangers that render hearsay presumptively inadmissible in R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 32:

First, the declarant may have misperceived the facts to which the hearsay statement relates; second, even if correctly perceived, the relevant facts may have been wrongly remembered; third, the declarant may have narrated the relevant facts in an unintentionally misleading manner; and finally, the declarant may have knowingly made a false assertion. The opportunity to fully probe these potential sources of error arises only if the declarant is present in court and subject to cross-examination. [Emphasis in original.]

[20] Trial judges may nevertheless admit hearsay evidence under one of the traditional exceptions to the hearsay rule or under the principled exception developed by the Supreme Court in R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, and Khelawon. Karakatsanis J. traced the evolution of the principled exception in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at paras. 19-24.

[21] The principled exception is intended to enhance the truth-seeking function of a trial and accurate fact-finding. Hearsay evidence is admissible under the principled exception if it “meets the twin threshold requirements of necessity and reliability”: R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 21. By the nature of these requirements, this must be “a flexible case-by-case examination”: Youvarajah, at para. 21.

(a) Necessity

[22] Necessity can be established when a witness dies, recants, or, as here, refuses to testify: Bradshaw, at para. 25; R. v. K.G.B., 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, at pp. 796-99. It is common ground that Bent’s refusal to testify satisfied the necessity requirement in this case. The issue was whether Bent’s statements met the threshold reliability test.

(b) Threshold Reliability

[23] The trial judge’s task is to determine threshold reliability on a balance of probabilities. Ultimate reliability is a matter for the trier of fact, in this case the jury.

[24] Although it has been said that some form of cross-examination of the hearsay declarant is usually required, such as preliminary inquiry testimony or cross-examination of a recanting witness at trial, the whole point of the principled exception to the hearsay rule is that exceptions are acceptable in certain circumstances.

[25] The methodology for trial judges to follow in determining threshold reliability, was prescribed in Bradshaw, at paras. 26-28, and 30-32. I re-state the methodology in brief.

[26] Threshold reliability is established by showing that cross-examination of the declarant is unnecessary because there are: (1) adequate substitutes for testing truth and accuracy (procedural reliability); or (2) sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability); or (3) a combination of elements of both procedural and substantive reliability (which plays no role in this case).

[27] The trial judge must specify the statement’s particular hearsay dangers regarding the declarant’s perception, memory, narration, or sincerity, and must evaluate whether and how the dangers specific to the case can be overcome because the truth of the statement cannot be tested by the declarant’s cross-examination.

(i) Procedural Reliability

[28] Procedural reliability is established by showing that there are adequate substitutes for testing the hearsay evidence to permit the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement. Substitutes might be a video or audio recording of the declarant’s statement, the presence of an oath, or a warning to the declarant about the consequences of lying.

(ii) Substantive Reliability

[29] Substantive reliability is established by showing that the hearsay statement is inherently trustworthy because of the circumstances in which the declarant made it and evidence, if any, that corroborates it.

[30] The standard for substantive reliability is high, but what is commonly referred to as the “circumstantial guarantee of trustworthiness” does not require absolute certainty. The trial judge must be satisfied that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process,” for example, when the statement “is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken,” so that the statement is so reliable that it is “unlikely to change under cross-examination,” or when the only likely explanation is that the statement is true: Bradshaw, at para. 31.

(iii) The Role of Corroborative Evidence

[31] A trial judge may rely on corroborative evidence to find that a hearsay statement shows sufficient substantive reliability to justify a finding of threshold reliability: Bradshaw, at para. 4. Karakatsanis J. set out the methodology and the principles for the use of corroborative evidence in the substantive reliability analysis in Bradshaw, at para. 57:

1. identify the material aspects of the hearsay statement that are tendered for their truth;

2. identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;

3. based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and

4. determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.

[32] Commentators have expressed concern that a degree of uncertainty might have been injected into the test by Karakatsanis J.’s use of the words “alternative, even speculative, explanations for the statement,” at paras. 48 and 57 of Bradshaw: See Hamish Stewart, “The Future of the Principled Approach to Hearsay” (2018) 23 Can. Crim. L. Rev. 183; Chris D.L. Hunt and Micah Rankin, “R. v. Bradshaw: The Principled Approach to Hearsay Revisited” (2018) 22 Int’l J. Evidence & Proof 68.

[33] I do not share this concern. In my view Karakatsanis J. was describing the trial judge’s anticipated reasoning process, not its culmination. The trial judge is required to consider “alternative, even speculative, explanations for the statement” while thinking through the reliability analysis. But speculative explanations must survive scrutiny under the lens of para. 49 in order to warrant a role in the determination of threshold reliability:

While the declarant’s truthfulness or accuracy must be more likely than any of the alternative explanations, this is not sufficient. Rather, the fact that the threshold reliability analysis takes place on a balance of probabilities means that, based on the circumstances and any evidence led on voir dire, the trial judge must be able to rule out any plausible alternative explanations on a balance of probabilities. [Emphasis added.]

[34] Any speculative explanation, in short, must be plausible on a balance of probabilities and any speculative explanation that does not survive such scrutiny is to be rejected. Any explanation left over becomes the plausible candidate for assessment at step four; “the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.” In other words, not just any speculative explanation or fanciful idea suffices to abort the threshold reliability analysis – only those that are, on reflection, reasonably plausible. I take this to have been the intention of Karakatsanis J. in Bradshaw. This court’s decision in R. v. Nurse, 2019 ONCA 260, takes that approach at paras. 105 ff, and so demonstrates that the test can be met, despite Professor Stewart’s concern that the Bradshawtest sets “a standard that is almost impossible to meet”: Stewart, at p. 193. See also the comment by Lisa Dufraimont on Nurse to the same effect: 54 C.R. (7th). And see R. v. Tsega, 2019 ONCA 111, leave to appeal refused, [2019] S.C.C.A. No. 106, at para. 26, per Hourigan J.A.

(iv) When the Narrator is not the Declarant

[35] When the narrator is not the declarant, how is threshold reliability to be assessed? This case presents such a situation. There is both a narrator – Jermaine Graham – and a declarant – Jerome Bent.

[36] As this court observed in R. v. Humaid (2006), 2006 CanLII 12287 (ON CA), 208 C.C.C. (3d) 43 (Ont. C.A.), leave to appeal refused, [2006] S.C.C.A. No. 232, at para. 51, and more recently in R. v. Vickers, 2020 ONCA 275, at para. 58, threshold reliability is a substitute for the cross-examination of the declarant, not the narrator. Charron J. endorsed the Humaid approach in R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at paras. 48-50.

[37] In Blackman, Charron J. noted, at para. 48, that because the narrator would have testified at trial, “her credibility and reliability as they related to the [deceased wife’s] out-of-court statements could be fully tested on cross-examination at trial.” She added, at para. 50, that the cross-examination of the narrator would put the triers of fact in a position to “fully assess the truthfulness and accuracy” of the narrator’s testimony. If the narrator is available for cross-examination at trial, then the narrator’s credibility can “safely be left to the trier of fact to consider”:Vickers, at para. 58, citing R. v. Berry, 2017 ONCA 17, 345 C.C.C. (3d) 32, leave to appeal refused, [2017] S.C.C.A. No. 171, at para. 50. And see R. v. Charlton, 2019 ONCA 400, 146 O.R. (3d) 353, at paras. 33-34; R. v. Cote, 2018 ONCA 870, 143 O.R. (3d) 333, at para. 30.

[38] However, there is not a categorical prohibition on the trial judge making preliminary evaluations of the narrator’s credibility and reliability at the threshold reliability stage. Charron J. specifically noted, at para. 51 of Blackman that, “in cases where the recipient of the out-of-court statement is not available for cross-examination, his or her credibility and truthfulness may play an important role in assessing the question of threshold admissibility” (emphasis in original). She presented the apt example of a jailhouse informant, at para. 51:

Consider, for example, if the Crown sought to adduce the out-of-court statement of a jailhouse informant containing an alleged statement from the accused and the informant was not available to be cross-examined. Difficulties with the recipient’s evidence would be relevant to the question of threshold reliability because the form in which the hearsay statement is ‘packaged’ necessarily impacts on the jury’s ability to test the truth and accuracy of the declarant’s statements.

[39] Crucially, Charron J. also endorsed Doherty J.A.’s caveat at para. 57 of Humaid:

There may be cases where the credibility or reliability of the narrator of the out-of-court statement is so deficient that it robs the out-of-court statement of any potential probative value. In such cases, and I think they would be relatively rare, a trial judge could conclude that the narrator’s evidence was so incredible or unreliable as to necessitate the exclusion of the evidence based on the exercise of his or her residual discretion.

[40] To summarize the law on the application of the Humaid caveat to the assessment of threshold reliability when the narrator is not the declarant: first, the caveat is an exception to the general rule that excluding evidence about a declarant’s statement based on the reliability of the narrator would be an error if the narrator is available to testify; second, the circumstances giving rise to the caveat will be relatively rare; and, third, the decision to rely on the caveat falls under the trial judge’s residual discretion: Berry,at paras. 50-53.

(c) Balancing Probative Value and Prejudicial Effect

[41] A trial judge has discretion to exclude evidence that otherwise qualifies for admission under the principled exception to the hearsay rule if its prejudicial effect exceeds its probative value, in the case of Crown evidence, or, in the case of defence evidence, the potential prejudice substantially outweighs the potential probative value to the defence of the out-of-court statement: Humaid, at para. 57, citing R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129 and R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577.

[42] This court owes deference to a trial judge’s discretionary decision to exclude evidence: R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 80, per Watt J.A.

(d) The Trial Judge’s Residual Discretion

[43] A trial judge has discretion to relax the rules of evidence as they apply to the defence where doing so is necessary to prevent a miscarriage of justice: Bradshaw, at para. 187; R. v. Tash, 2013 ONCA 380, 306 O.A.C. 173, at para. 89; R. v. Kimberley (2001), 2001 CanLII 24120 (ON CA), 56 O.R. (3d) 18 (C.A.), leave to appeal refused [2002] S.C.C.A. No. 29. Again, this court owes deference to the trial judge’s exercise of such discretion.

(2) The Trial Judge’s Approach

[44] The trial judge’s focus was on trial fairness, “including the legitimate interest of the public in the truth-seeking capacity of the trial and the right of the defendant to make full answer and defence by effectively challenging the reliability of the evidence tendered by the Crown.” The trial judge recognized “the importance of contemporaneous cross-examination, or its substitutes, to the fairness of the trial, especially from the perspective of the defence.”

[45] The trial judge’s reasons addressed each set of statements separately. He set his task as gatekeeper this way:

It is not up to me to determine what the Bent declarations were, but it is my responsibility, as the gatekeeper, to determine whether the jury has sufficient tools to determine what the declarations were and, further, the ultimate reliability of any such declarations, absent a contemporaneous cross-examination of Bent. The examination and cross-examination of Graham at trial is one such tool, but its sufficiency, in the context of the evidence as a whole, is to be determined in these applications.

[46] In that spirit, the trial judge made a fair observation during argument about the contending applications to admit Bent’s conflicting declarations through the same narrator. He said: “[i]t looks like everybody’s cherry-picking what they want here” and “[t]aking what they can get from this tree,” adding:

But my point is that although you’ve marshalled the declarations you’re relying upon there are other declarations, arguably, that are inconsistent with these declarations and it seems, if we’re just using the notion of fairness, as most of us would use it. If the jury’s got some of this, they may as well have the whole package.

[47] The trial judge then assessed Graham’s retelling of Bent’s statements, including: Bent’s July statements to Graham, which Graham disclosed to the police in November 2012, the April 3, 2013 intercepted conversation, the debriefing of that conversation by the police a week later, and Graham’s preliminary inquiry testimony in May 2015. This review took many pages, after which the trial judge observed:

Bent is not available for any cross-examination, about the alleged murder in May 2012 or, as prior inconsistent statements, the conversations with Graham in July 2012 and during the intercepted conversation on April 3, 2013. Graham is available for cross-examination but how that may reliably sort out declarations from gossip, rumor, guesses, assumptions and other sources of information, whatever they may have been, in May 2015 for events in July 2012 through November 2012 and April 2013 is not clear to me.

[48] The trial judge did not have the benefit of the Supreme Court’s decision in Bradshaw although he did cite Blackman. In his application of the law to the July declarations, the trial judge noted:

There is no record of the declarations, whatever they may have been, by audio-recording, video-recording or contemporaneous notes by Graham. Graham’s evidence of the declarations includes the attribution of some words to Bent, but that attribution changed significantly from November 2012 to May 2015. The changes included guesses, assumptions, opinions and speculation by Graham, as well as gossip and rumor in the community, a community that appears to be part of a criminal subculture in Toronto that may include the dynamics of the urban street gangs in the area.

[49] He added: “All of these factors may have had a lingering and cumulative effect on Graham’s recollection of his July 2012 conversations with Bent, through May 2015.”

[50] The trial judge dismissed the defence application. He noted the absence of any clear statement by Bent expressed in Graham’s evidence and pointed to the many ways in which Graham’s evidence could have been tainted by outside influences. The Crown provided a fair summary of the problems identified by the trial judge:

a. there was no recording, or any contemporaneous notes made by Graham about what Bent said to him on either occasion in July 2012;

b. Graham did not relay his recollection of the two conversations with Bent to the police until four months after the fact;

c. the declarations by Bent were part of a casual conversation, not under oath or caution and not to a person of authority;

d. Graham was materially inconsistent about Bent’s various declarations to him over the course of his many interviews and at the preliminary inquiry, with the attribution of words to Bent changing “significantly from November 2012 to May 2015”;

e. Graham’s various recollections about what Bent told him about the Coombs murder were blended with community rumour, gossip, speculation, and personal opinions, making it impossible to determine the source of the information;

f. Graham’s motivation “was to help himself by giving this information to the [Toronto Police Service]”;

g. some of the “purported declarations were in response to leading questions by the TPS”; and

h. the source of the information known to Graham could have been his agent handlers or one of Bent’s many known contacts in the community privy to information via one of the other perpetrators.

[51] The trial judge noted his worry:

[H]ow the jury would sort out the reliability of Graham’s evidence is not clear to me, given the absence of contemporaneous notes by Graham or an audio-recording of the conversations. All of this goes to the critical importance of the absence of a cross-examination of Bent at trial -- to the extent the record of the declaration is weak the substitutes for such a cross-examination must compensate for them.

(3) The Principles Applied

[52] I first consider the trial judge’s assessment of the April intercepted jail cell conversation between Bent and Graham and then his assessment of the July statements. Although the intercepted statements are not in issue in this appeal, they do set the context for the trial judge’s disquiet about the introduction of any of Bent’s statements to Graham into evidence before the jury.

(a) The Admissibility of the April 2013 Intercepted Statements

[53] As noted, in the jail cell intercept Bent said that the appellant was the principal shooter, contrary to his statement in July that he, Bent, was the principal shooter. The Crown wanted the intercepted statements to be admitted on the issues of identity and the appellant’s role in the murder. The defence resisted.

[54] The trial judge set out the April intercepted statements over several pages and summarized their effect:

So, in this intercepted conversation, as transcribed, Graham lied to Bent to stimulate a conversation about the Coombs murder. Bent adopted as true the information that McMorris was the shooter, but added some information about his own motive to kill Coombs and described the third perpetrator as the one who shot at Edwards. The identity of that perpetrator, Killa, and the calibre of the handguns used in the murder were suggested by Graham and adopted by Bent. Bent’s declarations on April 3, 2011 are inconsistent with the declarations of July 2012 attributed to him by Graham in the earlier interviews. [Emphasis in original.]

[55] The trial judge also noted:

Bent did have a motive to fabricate, to minimize his own involvement in the murder, especially in the presence of another inmate and the undercover officer. A party to a murder who is not a principal offender but rather an aider or abettor of a principal offender may be less responsible in his own mind, although not legally. A person who is merely present may also regard himself as innocent; such a person is not culpable at law. Bent’s motivation at all material times, at the time of the shooting and during the conversations with Graham, is a live issue in this trial. This shows the need for a cross-examination of Bent at trial.

[56] The trial judge assessed the intercepted statements in light of the legal principles, and concluded:

Thus, in the circumstances of this case, including the absence of an oath or affirmation, the poor quality of the audio-recording and video-recording of the conversation, the absence of important details about the roles of the perpetrators in the murder, the lack of spontaneity by Bent in making the declaration, the motivation of Bent to minimize his own role in the murder and the absence of independent, material evidence that implicates the defendant in the murder, I am not satisfied on a balance of probabilities that there are adequate substitutes for the absence of a contemporaneous cross-examination of Bent.

[57] I see no basis for questioning the trial judge’s conclusion that the reliability of Bent’s intercepted statements could not be tested adequately unless Bent was cross-examined. Although the intercepted statements have the benefit of greater procedural reliability because there were video and audio recordings and an undisputed transcript of what was said, there were also serious circumstantial threats to substantive reliability, which the trial judge set out. The intercepted statements also cast doubt on the reliability of Bent’s statements to Graham in July, to which I now turn.

(b) The Admissibility of Bent’s July Statements

[58] As noted, the defence wanted Bent’s statements made to Graham in July admitted into evidence before the jury because they were evidence that Bent was the principal shooter, that he was the one wearing the hoodie who fled the scene and dropped the hoodie bearing the appellant’s DNA near the railway tracks, and that the appellant was present at the murder but only watched. The statement that the appellant only watched was repeated three times by Graham and repeated twice in the April police debrief of Graham on the content of the intercepted conversation.

[59] Substantive reliability is in issue respecting the July declarations, not procedural reliability. Bent made the July declarations during a casual, unrecorded conversation between friends. There can be no procedural reliability in those circumstances.

[60] The appellant argues that the trial judge erred in excluding Bent’s July declarations in four respects: first, there were circumstantial guarantees of reliability; second, there was corroborative evidence; third, the trial judge should have relaxed the evidentiary rules in favour of the defence and admitted the July statements; fourth, the trial judge made the Humaid error and applied the reliability test to the narrator Graham and not to the declarant, Bent. I deal with each in turn.

(i) The Circumstantial Guarantees

[61] The appellant argues that Bent’s admission to Graham was inherently trustworthy:

The only likely explanation for it was that it was true. It was a spontaneous admission by Bent against his interest, with no motive to fabricate, during a conversation between two long-term friends. The information about the discovery of the hoodie on the tracks was not public, and when Bent said it, neither he nor Graham had reason to believe that Bent was suspected in the homicide.

[62] These factors do lean in favour of admission and must be factored in the mix.

(ii) The Corroborative Evidence

[63] The appellant asserts that there was “a formidable array of corroborative evidence sufficient to meet the test of threshold reliability.” He points to: “the evidence of the eyewitnesses whose descriptions of the shooter corresponded with that of Bent, Bent’s association with S.T.G. [the black hoodie bore this logo], the presence of gunshot residue and DNA belonging to three individuals on the hoodie, and Bent’s guilty plea.” The most significant item was that: “Graham provided information that he got from Bent to the investigators that could only have been known by the gunman who shot Coombs and was seen to flee by several onlookers.”

[64] The trial judge disagreed, finding that the evidence confirmed a version of events that, “innocently or otherwise,” may not have originated with Bent. The basis for his concern, based on his review of the statements, was that: “The evidence may be confirmatory not of Bent’s words but of rumor, gossip, speculation, guesses, assumptions or the substance of the leading questions by the [police].” The trial judge was also troubled by Graham’s inability to recall accurately his police-intercepted conversation with Bent a mere eight days later when he was debriefed by police officers. This led him to conclude that: “the confirmatory evidence in this case is not an adequate substitute for a cross-examination of Bent at trial, by itself and in the context of a cross-examination of Graham at trial by a counsel opposed in interest.”

[65] The appellant argues that the trial judge’s focus on the frailties of Graham’s evidence was speculative and that if Bradshaw had been available to him, the trial judge would have relied on the “formidable” corroborative evidence to admit Bent’s statements.

[66] The Bradshaw methodology for the use of corroborative evidence in the substantive reliability analysis has four steps, as noted above.

[67] At the first step, the question is to determine the material aspects of the declarations attributed to Bent. The trial judge expressed uncertainty about what statements could be clearly attributed to Bent and the Crown pressed the point on appeal. I do not read the Crown or the trial judge to be asserting that Bent’s statements are not “statements” simply because Graham was unable to recite the statements verbatim or consistently. That would set too high a standard. As Fish J. wrote in Baldree, a hearsay statement can be express or implied. In Nurse the statement was not verbal because the victim’s vocal cords had been cut; it was an accusatory gesture at the accused as the victim lay dying. See also R. v. Perciballi, (2001), 2001 CanLII 13394 (ON CA), 154 C.C.C. (3d) 481 (Ont. C.A.) aff’d 2002 SCC 51, [2002] 2 S.C.R. 761.

[68] In my view the evidence of the July statements, as the trial judge acknowledged, is that Graham clearly attributed to Bent several “material aspects”: Bent told Graham he shot Coombs; he ran across the railway tracks; he dropped a jacket or hoodie near the tracks; and he was “paranoid” that discarding the hoodie would get him caught. The trial judge laid out the police interviews about the July declarations in considerable detail. At the time neither the appellant nor Bent were suspects. Bent and Graham were long-time friends. The first conversation took place about two months after the murder. The trial judge quoted Graham’s investigative transcript:

Graham: We first talked about the murder. He was really paranoid about getting caught. [Emphasis added.]

[69] He added another quotation from the first conversation:

Graham: I didn’t ask him about anything. I don’t try to inquire about it. He just pulled me off to the side and started talking to me about it, saying basically, ‘...fuck him, he deserved it... I’m happy I did what I did...’. There's a lot of controversy in regards to the murder. Some people say he was killed because he was talking about another killer, Menace, Shaquille Bell. [Emphasis added.]

[70] Later, the trial judge quoted a passage of transcript in which Graham answered an officer’s question:

Dhillon: What were his exact words, if you can remember them?

Graham: I cannot remember the exact words, but he was saying... basically just trying to describe his feelings towards what he did, and why he did it... he wasn’t very happy... he was very upset and paranoid about it, and being caught... trying to explain to me why he did it... at the same time he was happy about it, him finally dying. [Emphasis added.]

[71] And elsewhere:

Dhillon: What else did he say?

Graham: That's pretty much it. At the time, I just wanted to get out of there.

Dhillon: You mentioned that he was angry but happy at the same time. How do you know this?

Graham: His face expressions... the way he was stalking... just the gestures... saying, over and over, ‘...fuck that nigger... fuck that nigger... he deserved it...’.

[72] Bent and Graham had a second conversation, a few days after the first, about which Graham said:

Graham: We had another conversation. I asked him why he was so paranoid about it. He told me he dropped the jacket when he was hopping a fence near the railroad tracks. [Emphasis added.]

[73] Graham added:

The second time he spoke to me... we met on one of the side streets... shared a joint and talked about it... I asked him “Why are you so paranoid about it?” That’s when he brought up the jacket. And, he was not sure if he (was) on camera or not. [Emphasis added.]

[74] In short, although they may not have emerged clearly or consistently in Graham’s telling, it is possible to identify the material aspects of Bent’s statements that the defence sought to tender for their truth.

[75] At the second step of the Bradshaw analysis, the court is required to identify the specific hearsay dangers noted in Baldree that are triggered by the statement in the particular circumstances. In terms of the typical hearsay dangers, neither Bent’s possible misperception nor his possible misremembering are live. What is left for assessment is whether Bent knowingly made a false statement. This step was not considered by the trial judge.

[76] At the third Bradshaw step, based on the circumstances and this specific danger, the court must consider alternative, even speculative, explanations for why the declarant made the statement, as explained earlier. The two possibilities are that Bent was not the shooter but was taking responsibility for the acts of someone else, or that he was taking the credit for the shooting.

[77] In my view, the circumstances in which Bent’s statements were made undermine the plausibility of both speculative alternatives. There was no reason for Bent to be thinking about taking the fall for the appellant when neither was under police suspicion. The possibility that Bent was taking credit for Coombs’s killing is more plausible, but Bent’s statements and his evident worry about getting caught undermines this alternative.

[78] At the fourth Bradshaw step, given the circumstances in which Bent made the statements to Graham, the trial judge was required to consider whether the corroborative evidence led at the voir dire and the preliminary inquiry ruled out the plausibility of alternative explanations, leaving Bent’s truthfulness as the only remaining likely explanation for the statement.

[79] The trial judge noted the need to identify with specificity the issue to which the declaration is relevant when taking into account any confirmatory evidence. He stated: “confirmatory evidence is independent evidence that implicates the defendant” and added that “[e]vidence that only confirms other ancillary parts of the declaration is not sufficient.” He then laid out the package of confirmatory evidence and noted: “On its face it is formidable and probative of the reliability of what is attributed to Bent.”

[80] Although the parties have not produced the entire application record on appeal, there was clearly corroborative evidence confirming elements of Bent’s account, including the fact that one of the shooters dropped a hoodie by the tracks. But, on closer inspection, it is equally clear that the corroborative evidence did not actually mitigate the danger that Bent was lying or misrepresenting the facts to Graham when he said that he was the one who dropped the hoodie.

[81] The fact that someone dropped the hoodie was corroborated by the hoodie itself, and by the testimony of Robert Cull and Karoly Pozsgai, who both saw an individual drop a hoodie. However, the evidence corroborating Bent’s identity as the person who dropped the hoodie was less definite. On the one hand, both Pozsgai and his wife, Gyongyi Sulyok, said that the man in the black hoodie wore his hair in braided corn rows, like the appellant. And the appellant’s DNA was on the hoodie. On the other hand, only Cull described the person with the hoodie as having short hair like Bent. The “corroborative” evidence on the issue of the identity of the person who dropped the hoodie was equivocal and conflicted with Bent’s account in certain ways. Put simply, the Bradshawapproach yields the same conclusion as the trial judge’s approach: the corroborative evidence confirms only the ancillary elements of Bent’s statements, not the central element of identity.

(iii) Refusing to Relax the Rules of Evidence

[82] The appellant argues that the trial judge erred in refusing to relax the evidentiary rules for the defence. This led to “serious prejudice” and the prospect of a “miscarriage of justice” because: “The admission by Bent that he was the man in the hoodie, if believed by the jury, nullified a key feature of the Crown’s case, that the hoodie which bore the Appellant’s DNA had been worn by [the appellant] during the shooting.” The appellant does not identify the prejudice, but I infer that it rests on the premise that the Crown believed Bent’s July statements that he was the primary shooter but chose to cross-examine the appellant on the basis that he, not Bent, was the primary shooter. The appellant asserts that the prejudice was aggravated by this Crown cross-examination of the appellant:

Q. But that hoodie that you gave away to [Jatherson] -

A. Yeah.

Q .... ends up on the train tracks immediately after this murder.

A. Are you implying that I, I - are you trying to imply right now that I killed Delano Coombs and jumped the fence and put the hoodie there? Is that what you’re implying right now?

Q. I think that’s fairly obvious, isn’t it?

A. You and I both know I wasn’t wearing the hoodie. You know that.

Q. I don’t know that.

A. You know Jerome was wearing the hoodie.

Q. All the evidence suggests that you were wearing it, Sir.

A. No, you know Jerome was wearing the hoodie. You know that for a fact. We know this.

Q. I don’t know that.

A. Come on.

Q. All the evidence points to you wearing that hoodie, Sir.

A. Is that what you believe?

Q. I do.

A. Well if that’s – you’re wrong, you’re completely wrong. That’s not true. Completely wrong. [Emphasis added by the appellant.]

[83] Against this cross-examination, the appellant argues that: “The Crown, knowing what Graham would have said if the defence had been allowed to call his evidence about the hoodie, should never have asserted that ‘all the evidence points to you wearing that hoodie.’ ” The appellant asserts that: “The Crown knew this was untrue.”

[84] In my view, the evidence did not unequivocally point to either Bent or the appellant as the primary shooter. The Crown’s suggestion that “all” the evidence pointed to the appellant wearing the hoodie was imprecise, but it was not improper. Two witnesses described the person wearing the hoodie as having the appellant’s hairstyle. The hoodie bore his DNA. It was open to the Crown to put this evidence to the appellant for a rebuttal, and he rebutted it in strong terms. Whether the jury believed him on this specific point is unknowable and ultimately not dispositive. The jury could have found liability either on the basis that the appellant was the primary shooter wearing the hoodie or that he was a party to the murder.

[85] In any event, appellate deference is owed to the trial judge’s discretionary decision not to relax the rules of evidence in favour of the defence. The appellant did not renew his application to admit Bent’s statements after the cross-examination reproduced above. I see no error in law or principle and no reason to disturb the trial judge’s ruling on appeal.

(iv) Did the Trial Judge Make the Humaid Error?

[86] The appellant argued for the first time in oral submissions that the trial judge had committed the error in Humaid and Blackman by excluding Bent’s statements on the basis of the narrator Graham’s credibility and reliability rather than the declarant Bent’s. The defence did not raise this issue at trial or in its written submissions on appeal. The Crown requested and received an opportunity to make further submissions on the Humaid issue.

[87] The Crown argues that the burden is on the appellant to obtain leave to raise the Humaid issue and cites the statement by Watt J.A.: “As a general rule, appellate courts will not entertain grounds that were not raised at trial”: R. v. Reid, 2016 ONCA 524, leave to appeal refused [2016] S.C.C.A. No. 432, at para. 28. The appellant responds that it is the role of this court to correct errors of law regardless of who bore the responsibility for raising the issue in first instance. In this case the appellant is correct. The Humaid error, if it is present here, is an error of law that can be identified in the trial judge’s reasons without concern for the adequacy of the factual record before the appellate court. As a novel issue, it does not engage the concerns in Reid.

[88] The Crown acknowledges that the trial judge considered factors relevant to Graham’s credibility and reliability, contrary to the general prohibition in Humaid and Blackman. However, the Crown points to the caveat in Humaid and invokes the trial judge’s residual discretion to exclude evidence when the narrator’s credibility and reliability is “so deficient that it robs the out-of-court statement of any potential probative value”: Humaid, at para. 57. The Crown argues that the trial judge’s reasons strongly suggest that he would have used his residual discretion to exclude Bent’s statements if he had been provided with the relevant jurisprudence at the time.

[89] Next, the Crown argues that the rule in Humaid is premised on the notion that the narrator’s credibility will be challenged at trial. However, neither the Crown nor the defence would have had an incentive to properly attack Graham’s credibility or reliability because both sides needed something from him.

[90] Finally, if the trial judge did commit a Humaid error, the Crown asks this court to apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code and find that the trial judge’s decision did not occasion a miscarriage of justice.

[91] In reply, the appellant points to a number of passages in the trial judge’s reasons indicative of a Humaid error. The appellant also notes that Doherty J.A. limited the application of the Humaid caveat to “relatively rare” cases. In this case, the appellant argues that Graham’s evidence as to Bent leaving the hoodie on the train tracks was clear and precise each time he told the police about it. Any concerns about Graham’s credibility and reliability could have been fully tested by cross-examination before the jury. The appellant argues that the exclusion of the evidence occasioned a miscarriage of justice because it virtually ensured that the jury would find, based on the DNA evidence, that the appellant was the principal shooter who dropped the black hoodie near the tracks.

[92] In my view, far from making the Humaid error, the trial judge properly applied the Humaid caveat. He stated: “This is not a case where the evidence of the declarations is strong and the sufficiency of the substitutes for the absence of contemporaneous cross-examination is weak.” To the contrary, in his view the apt observation was that of Doherty J.A. in Kimberley, at para. 82: “The admission of evidence of such inherently unreliable statements would hardly prevent a miscarriage of justice. Indeed, it could occasion a miscarriage of justice.”

[93] The trial judge explained that: “What Graham said about the declarations at any point in time is open to serious questions about its reliability, and the reliability of what he said earlier or later about the same declarations.” As I see it, the trial judge’s statement echoes the caveat Doherty J.A. made in Humaid, at para. 57, which I repeat here for convenience:

There may be cases where the credibility or reliability of the narrator of the out-of-court statement is so deficient that it robs the out-of-court statement of any potential probative value. In such cases, and I think they would be relatively rare, a trial judge could conclude that the narrator’s evidence was so incredible or unreliable as to necessitate the exclusion of the evidence based on the exercise of his or her residual discretion.

As noted, this caveat was approved by Charron J. in Blackman, at para. 51.

[94] Finally, the appellant asserts that the trial judge was obliged to revisit his ruling on this evidence after the plea ruling. I do not agree. As I explain below, the trial judge’s decision to admit the guilty plea essentially accomplished what both parties sought to do in these applications, but in a way that preserved trial fairness and did not require “cherry-picking” from the “same tree.” In any event, the defence did not request it at trial.

[95] I would reject this ground of appeal. The trial judge did not err in rejecting the defence application to admit into evidence before the jury Bent’s out-of-court statements in July to Graham, which implicated Bent as the principal shooter wearing the hoodie.

B. Issue Two: Did the trIAl judge err in admitting Bent’s guilty plea, together with the transcript of his plea, and the agreed statement of facts accompanying his plea as edited by him?

[96] Bent’s plea bargain forms the context for this issue. Bent pleaded guilty to the first-degree murder of Coombs. He also faced a first-degree murder charge for the killing of Daniel Davis and charges of attempted murder and conspiracy to commit murder relating to Tyrone Matthews. After Bent’s plea to the first-degree murder of Coombs, the Crown accepted his plea to the lesser offence of second-degree murder of Davis and withdrew the Matthews charges. The Crown’s resolution position was that Bent’s periods of parole ineligibility would run concurrently.

[97] The trial judge granted the Crown’s application to put before the jury Bent’s plea of guilty to the charge of first-degree murder for Coombs’s killing. He also permitted the Crown to tender the transcript of Bent’s guilty plea before McMahon J., edited by the trial judge. The trial judge added the requirement that the jury be provided with an excerpt from the agreed statement of facts supporting the plea that he also edited, which established that Bent did not act alone.

[98] The appellant makes four arguments about the plea ruling: first, the cases require circumstantial guarantees of reliability but these were not present in this case because of the perverse incentive the plea bargain gave to Bent; second, the prejudicial effect of Bent’s guilty plea and the agreed statement of facts exceeded their probative value; third, the trial judge’s edits to the plea transcript and the agreed statement of facts made matters worse and left the appellant too exposed to a finding that he was the primary assailant in the Coombs murder; and fourth, the jury instruction “aggravated the prejudice” to the appellant.

(1) The Governing Principles

[99] The Crown acknowledges that it is rare for a guilty plea to be admitted in evidence at the trial of a co-accused. Although it is true that the Crown is generally not entitled to lead an accomplice’s guilty plea, it does not follow that the Crown may never be entitled to do so: R. v. Caesar, 2016 ONCA 599, 333 C.C.C. (3d) 354, per Blair J.A., at para. 54.

[100] The basis for the general exclusion is that the guilty plea of another person is irrelevant in the trial of the accused and that it is hearsay and presumptively inadmissible. The same logic applies to an agreed statement of facts supporting a guilty plea. I will not repeat the governing principles concerning the principled exception to the hearsay rule, which apply equally to the guilty plea, the plea transcript and to the agreed statement of facts.

[101] The Crown relies on Youvarajah, in which the Supreme Court found admissible an agreed statement of facts against a co-accused. This court has generally adopted “a flexible case-by-case examination,” as prescribed in Youvarajahat para. 21, and has approved the admission of guilty pleas or agreed statements of facts or both in trials in several cases: R. v. Duong (1998), 1998 CanLII 7124 (ON CA), 124 C.C.C. (3d) 392, [1989] O.J. No. 1681, at para. 46 (a guilty plea); R. v. Tran, 2010 ONCA 471 (a guilty plea), R. v. Kanagalingam, 2014 ONCA 727 (three guilty pleas and agreed statements of fact), R. v. P.C., 2015 ONCA 30 (two guilty pleas despite errors in their use), Berry (a guilty plea), and R. v. Tsekouras, 2017 ONCA 290 (a guilty plea and agreed statement of facts for the purposes of a voir dire). The court has declined to do so in several other cases: R. v. Alexander, 2015 ONCA 167 (a guilty plea and agreed statement of facts), Caesar (a transcript of the guilty plea proceedings), and Vickers (a draft affidavit containing an admission). There is no hard and fast rule. The analysis is case-specific.

(2) The Trial Judge’s Approach

[102] As noted, Bent’s plea bargain forms the context for this issue. The appellant submits that Bent’s plea to the first-degree murder of Coombs potentially saved him an additional 25 years of parole ineligibility for the first (or second) degree murder of Davis. I return to this submission below.

[103] The trial judge admitted Bent’s guilty plea to the Coombs murder into evidence before the jury, along with an edited audio-recording or transcript of his plea proceedings, and an edited excerpt from the agreed statement of facts that accompanied Bent’s plea.

[104] The trial judge edited the audio-recording and the transcript of Bent’s guilty plea to the Coombs murder by removing the elements of the plea bargain related to the killings of Davis and Matthews. The trial judge also required the Crown to put forward an excerpt from the agreed statement of facts that he edited in order to complete the factual context. The excerpt read as follows:

On May 10th, 2012 at approximately 3:00 p.m., Delano Coombs was driving a grey Toyota Camry in a housing complex located at 4020 Dundas Street West in Toronto. He was accompanied by Joel Edwards. Jerome Bent was armed with a firearm, a Glock 17 handgun. He waited near a stairwell. Bent along with at least one other male, began to shoot at the windshield of the car. Mr. Coombs abandoned the car and attempted to escape, but one of the suspects walked around the car, stood over Mr. Coombs and shot at him several more times at close range. Mr. Edwards managed to escape from the vehicle unharmed.

A firearms expert determined that nine out of ten shell casings recovered from the scene were fired from the same nine-millimetre Glock pistol.

(3) The Principles Applied to the Plea Ruling

[105] The trial judge’s reasons were thorough. He accepted that the guilty plea, the plea transcript, and the agreed statement of facts were hearsay statements and therefore were presumptively inadmissible. He considered the principled exception to the exclusion of hearsay evidence and applied the pre-Bradshaw approach. The trial judge noted that the principled exception applies where necessity and threshold reliability, which are the conditions precedent to admissibility, are proven on a balance of probabilities. He stated that this “can be done by showing there is no real concern about the truth of the statement because there are adequate substitutes for the absence of contemporaneous cross-examination.”

[106] The trial judge listed what he considered to be the relevant factors, which the appellant has fairly summarized in his factum:

The threshold reliability flowed from two factors: (1) “the immediate circumstances of the plea” - citing Youvarajah, the trial judge concluded that since Bent only implicated himself in the homicide and did not shift responsibility to another person, the “solemnity of the proceedings” was sufficient to ensure threshold reliability. This “solemnity” included that the agreed statement had been drafted by counsel, a plea inquiry was conducted, and there was no suggestion that Bent’s counsel, “a well-regarded lawyer”, had been ineffective; and (2) the trial judge found that there were adequate substitutes for cross-examination of Bent. These substitutes were the supportive testimony of eyewitnesses and the forensic evidence.

[107] The appellant argues, first, that Bent’s plea of guilty to the first-degree murder of Coombs was not a “true plea” because the plea bargain rendered the plea untrustworthy; second, the trial judge ought to have admitted all of the evidence regarding the plea bargain to equip the jury to assess its trustworthiness, and third, the prejudicial value of the guilty plea exceeded its probative value. If this last argument were accepted, then the evidence about Bent’s guilty plea would not have been admissible because he refused to testify.

[108] I address the appellant’s three arguments about the plea ruling.

(a) Did Bent’s plea bargain render his guilty plea untrustworthy?

[109] The appellant argues that it was a mistake and “contrary to common sense,” for the trial judge to consider Bent’s first-degree murder plea to be a “true plea” despite circumstantial guarantees of reliability because of three obvious inducements to a false plea: “concurrent rather than consecutive periods of parole ineligibility for two separate homicides,” and “a plea to the lesser offence of second degree murder on the alleged first-degree murder of Davis,” and the “withdrawal of the Matthews charges.” These inducements undermined the trustworthiness of the plea because they “would undoubtedly impact on how many years after the 25-year minimum [Bent] would have to serve before obtaining parole.” Consequently, nothing less than full cross-examination of Bent on his guilty plea would suffice, asserts the appellant, because “avoidance of a second consecutive 25 years of parole ineligibility, making for a total of 50 years of parole ineligibility, was as strong an incentive as can be imagined.”

[110] The trial judge was alive to these arguments. He stated:

Bent was motivated to plead guilty to second degree murder in connection with the shooting of Davis, and to obtain the joint submission of counsel that the two periods of parole ineligibility, for first-degree murder and second degree murder, be concurrent. However, in my view, that motivation would not lead him to falsely admit to the first-degree murder of Coombs. Obtaining the concession by the Crown on the Davis murder and the withdrawal of the charge of attempted murder would not be at the price of a wrongful conviction for first-degree murder on the Coombs murder. It is the threshold reliability of the plea to the charge of first-degree murder that is the core of this application. The motivation of Bent, as summarized, does not require a cross-examination of Bent at trial…on the issue of the ultimate reliability of the plea to first-degree murder. There are adequate substitutes for it, as summarized earlier. [Emphasis added.]

[111] As can be seen, the trial judge specifically rejected the appellant’s argument that the avoidance of two consecutive terms of parole ineligibility for two separate murders was a sufficient motive for Bent to falsely plead guilty to the first-degree murder of Coombs. During argument the following colloquy occurred:

THE COURT: In the abstract, it matters as you indicate, but he’s there for 25 years. He’s got a second conviction for murder; whether it’s second degree murder; whether it’s only second degree murder or something else isn’t going to matter much. If the Parole Board knows this man’s [Bent’s] makeup, unless he makes a huge change between now and 25 years from now, he’s going nowhere.

MR. ROSS: I’m not suggesting otherwise.

THE COURT: So, he didn’t get much of a deal here.

MR. ROSS: Well, that -- that might be the – in reality that's very unlikely that in 25 years he’s going to get parole...

THE COURT: Yes.

[112] The trial judge’s conclusion that Bent’s first-degree guilty plea in the Coombs murder was a true plea for the purpose of threshold reliability is not unreasonable. But finding the plea not to have been a true plea would not have been of assistance to the appellant, because there is no escape from the fact that Bent participated in the murder, either as the primary shooter or as a party to the shooting by another, the appellant or the third unidentified assailant.

(b) Did the trial judge’s refusal to admit the full plea bargain fail to equip the jury with all the tools they needed to assess the trustworthiness of the guilty plea?

[113] In Bradshaw, Karakatsanis J. noted that the trial judge’s concern is to ensure that the trier of fact has the “tools for testing hearsay” in order to be “sufficiently equipped to evaluate the ultimate reliability of the statement: at paras. 101 and 110. The trial judge is “uniquely positioned to make this determination”: at para. 101.

[114] The appellant argues that by limiting the evidence about the plea bargain the trial judge deprived the jury of the necessary tools to test the truth of the plea. Because Bent could not be cross-examined, “the jury had no realistic basis on which to question Bent’s plea, the accompanying proceedings, and the agreed statement.” In the absence of any mention of the Davis or Matthews charges and dispositions, the jury was deprived of the opportunity “to assess their impact on Bent's reasons for pleading guilty to Coombs’s first-degree murder.” Accordingly, “the jury was virtually bound to accept that the plea and the agreed statement were ‘true.’

[115] Trial defence counsel raised these concerns in argument before the trial judge, stressing the importance of either cross-examining Bent or speaking with Bent’s defence counsel in order to obtain more information about Bent’s plea bargain. Defence counsel suspected that Bent might have been forced to admit to certain facts in order to get the deal, and expressed concern that he would be unable to properly challenge the guilty plea without additional context. Unfortunately, trial was set to begin the next day, leading to the following exchange:

THE COURT: All right. So you say I should rule on what the Crown’s done and get rid of the Agreed Statement of Fact completely? Otherwise…

MR. ROSS: Yes, otherwise I want an opportunity to interview [Bent and his counsel].

THE COURT: Well, we can’t keep repairing this case forever, this is our time slot for trial I think.

[116] The parties briefly considered the logistical challenges involved in summoning Bent, Bent’s counsel, or the Crown attorney assigned to Bent’s case until, finally, the trial judge put this question to the defence:

THE COURT: Well, let me ask you this, if the Crown’s legal analysis is preferred, contrary to what you and Ms. Carrington are advocating, is there any part of the Agreed Statement of Fact that you would want to help in the conduct of the defence?

[117] Defence counsel chose the passage from the agreed statement of facts, reproduced above, that the trial judge ultimately admitted in his ruling. The trial judge then gave the defence a short opportunity to find and speak with Bent or his counsel, indicating that if Bent provided any information of significance, it could be taken into account. Unfortunately, it appears that Bent could not be found.

[118] The next day, the trial judge issued his ruling admitting the guilty plea, but he did not foreclose on the possibility of hearing from Bent on the details of his plea bargain. The trial judge even suggested that he would be willing to revisit the ruling if additional information came to light. None did.

[119] This process was hurried but it did not arrive at the wrong result. The trial judge was clearly concerned with properly presenting the guilty plea to the jury. He included the excerpt from the agreed statement of facts in order to stop the jury from drawing impermissible inferences that might flow from the guilty plea without additional context, noting: “The inclusion of some parts of the ASF, and the editing of some other parts of the ASF, is necessary to ensure the fairness of the trial, including the legitimate interest of the public in the truth-seeking capacity of the trial and the right of the defendant to make full answer and defence by effectively challenging the reliability of the evidence tendered by the Crown” (emphasis added).

[120] Even if the omission of Bent’s plea bargain limited the information available to the jury as a means by which it could assess the truth of the guilty plea, it is not obvious that the jury would have come to a different conclusion. There is no indication that the strategic options available to Bent at the time of his plea could have had any impact on his guilty plea. He pleaded guilty to first degree murder as arraigned. He did not inculpate the appellant in return for a reduced sentence. He might have had an incentive to plead guilty, but he did not have an incentive to plead guilty falsely. Barring an attempt on Bent’s part to take the fall for the appellant, there is no reason to believe that Bent pleaded guilty to inaccurate facts when there were plenty of accurate facts to which he could plead guilty. The trial judge did not believe that this missing context would interfere with the jury’s evaluation of Bent’s guilty plea. I agree.

(c) Did the prejudicial effect of Bent’s guilty plea and the agreed statement of facts exceed their probative value?

[121] The appellant’s third argument is that the prejudicial effect of Bent’s guilty plea and the agreed statement of facts exceeded their probative value so that they ought to have been excluded from the appellant’s trial.

[122] A trial judge’s power to exclude evidence because of its prejudicial effect is fact-specific and discretionary.

[123] The appellant argues that the trial judge should have excluded the guilty plea due to its “minimal probative value as contrasted with the severe prejudice caused to the defence by its admission.” In my view, it is wrong to say that the guilty plea has “minimal probative value.” It provided concrete evidence on a live issue at trial and was clearly probative: R. v. Hart, 2014 SCC 52, [2014] S.C.R. 544, at para. 109. The real question is whether it was “severely prejudicial,” as the appellant suggests it was. In my view, it was not.

[124] Evidence is not prejudicial simply because it bolsters the Crown’s case and increases the risk of conviction. Evidence is prejudicial only if its reception would threaten the fairness of the trial, for example, where it cannot be adequately tested and challenged through the adversarial process, or where there is a real risk that the jury will misuse the evidence or be unable to properly assess the evidence regardless of the trial judge’s instructions: R. v. Frimpong, 2013 ONCA 243, 305 O.A.C. 243, at para. 18.

[125] Many of the appellant’s arguments boil down to laments about the strength of the Crown’s case. However, the appellant does identify two potential sources of prejudice. First, the appellant argues that by editing the agreed statement of facts to exclude information about Bent’s plea deal, the judge deprived the jury of an important means to assess its reliability and significance. For the reasons set out above, I do not accept this submission. The jury had sufficient information to assess the plea.

[126] Second, the appellant submits that the admission of Bent’s guilty plea to first degree murder would have led the jury to conclude that the appellant’s guilt was the same as Bent’s. The appellant’s complaint is that, on its own, the guilty plea could have led the jury to engage in impermissible reasoning about the appellant’s involvement in planning and deliberation.

[127] In my view, any such risk was mitigated by the trial judge’s clear jury instruction. He reminded the jury more than once that Bent’s guilty plea was proof only of Bent’s involvement and had no bearing on the appellant’s guilt. If the jury came to believe that the appellant’s liability was the same as Bent’s – which it plainly did, given the verdict – it was possible to reach that conclusion on the basis of the evidence of planning and deliberation between Bent and the appellant, including their phone records, their in-person meeting some 30 minutes before the shooting, and the fact that the assailants were lying in wait for the victim.

(d) Did the edited plea transcript and the edited agreed statement of facts prejudice the appellant?

[128] I turn to the appellant’s fourth argument: the trial judge erred in the plea ruling because his edits of the plea transcript and the agreed statement of facts made matters worse for the appellant.

[129] The trial judge was concerned about trial fairness for the appellant in the face of Bent’s guilty plea. During the argument he laid out his concern for trial fairness:

Bent was involved in this case. The jury has to know that somehow in a way that’s consistent with the fair trial interests of everybody. We can’t put blinders on the administration of criminal justice in this courtroom. Somehow we’ve got to – they should know, consistent with your client’s fair trial interest, that Bent was involved in this case and he was one of the shooters. There’s virtually no doubt about that, at all, on the entire history of this.

[130] The trial judge reflected this concern for trial fairness in his ruling:

[Bent’s guilty] plea itself, that is, without any reference to the ASF [agreed statement of facts], is vague and otherwise imprecise, given the scope of the definition of parties under s. 21 of the Code. As there is no eyewitness testimony identifying the perpetrators of the alleged offence, the plea, by itself and in the context of the evidence as a whole, could be evidence of the commission of first-degree murder by Bent as a principal offender or as an aider or abettor of a principal offender who was not at the scene of the crime. The plea may lead to speculation by the jury. That is the antithesis of the judicial function. It would tend to undermine the public interest in the reliability of the fact-finding processes of the trial and the right of the defence to challenge the Crown’s case.

[131] The trial judge’s worry was that the jury might identify the appellant as the principal offender instead of Bent. This comes out more clearly in the trial judge’s discussion of what parts of the agreed statement of facts he would admit, at para. 23:

[S]ome of the ASF meets the requirement of “threshold reliability” and some of the ASF does not. The former parts add to the reliability of the fact-finding processes of the trial -- Bent was present during the shooting and Bent was a shooter. The latter parts detract from not only that reliability but also the fairness of the defendant’s trial -- three males waited for Coombs at the stairwell and emerged when the car driven by the deceased approached them.

[132] The agreed statement of facts, as edited by the trial judge, provided basic details about the commission of the offence, which I repeat here for convenience:

On May 10th, 2012 at approximately 3:00 p.m., Delano Coombs was driving a grey Toyota Camry in a housing complex located at 4020 Dundas Street West in Toronto. He was accompanied by Joel Edwards. Jerome Bent was armed with a firearm, a Glock 17 handgun. He waited near a stairwell. Bent along with at least one other male, began to shoot at the windshield of the car. Mr. Coombs abandoned the car and attempted to escape, but one of the suspects walked around the car, stood over Mr. Coombs and shot at him several more times at close range. Mr. Edwards managed to escape from the vehicle unharmed.

[133] The trial judge took the position that facts about the Coombs murder should come through witnesses where possible. He edited out of the original agreed statement of facts that three assailants carried out the Coombs murder. He also edited out anything related to the other charges to which Bent had pleaded and any information Bent had provided to the proposed Crown witness, Jermaine Graham. The trial judge tried to pare down the hearsay statements and lessen their influence on the jury as much as he could while maintaining admissibility.

[134] The trial judge concluded his ruling with a statement that expressed his intention: “This package of evidence, the edited audio-recording of the plea of guilty to first-degree murder on July 15, 2015 and the related edited transcript of the ASF, will serve the legitimate interest of the public in the truth-seeking capacity of this trial and the right of the defendant to make full answer and defence.”

[135] In the trial judge’s view, threshold reliability was established through the immediate circumstances of the plea and the adequate substitutes for cross-examination. The eyewitness evidence was a substitute for cross-examination on the details of the shooting. Moreover, Bent’s plea did not implicate the defendant or anyone else. The statement was prepared by counsel and reviewed by Bent who agreed to it in open court. Both defence counsel and McMahon J. conducted plea inquiries before it was agreed to. On this basis, the trial judge ruled that it met the test for threshold reliability and granted the Crown’s application.

[136] I do not accept the argument that the trial judge’s edits prejudiced the appellant. The trial judge’s edits assisted the appellant by making Bent appear to be the primary assailant. This was, as he put it, in the “fair trial interests of everybody.”

(i) Did the jury instruction aggravate the prejudice?

[137] The appellant argues that the jury instruction “aggravated the prejudice” of admitting the edited versions of the plea transcript and the agreed statement of facts. The appellant takes particular issue with this part of the jury instruction:

Thus, through such an analysis of the other evidence at trial, you may be satisfied that all of the facts admitted by Bent during the plea have been proven reliable by independent evidence, tending to prove those facts to be correct. You may conclude that, to the extent that Bent is likely reliable on those facts, he is likely reliable in admitting his planned, deliberate and intentional shooting of Coombs on May 10, 2012, especially in the context of the testimony of Amanda Rumbolt. She drove Bent to Old Dundas Street at his request to meet some friends. She parked her car. Another car came. The defendant [the appellant McMorris] and another man got out of the passenger side doors of the other car, and spoke with Bent. The three of them got into the other car. It was driven east on old Dundas Street towards Dundas Street West, which it intersects near the complex, the scene of the crime.

[138] This instruction left to the jury the decision as to the ultimate reliability of Bent’s plea. The appellant’s argument is that this was insufficient. Because Bent could not be cross-examined, “the jury had no realistic basis on which to question Bent’s plea, the accompanying proceedings, and the agreed statement.” In the absence of any mention of the Davis or Matthews charges and dispositions, the jury was deprived of the opportunity “to assess their impact on Bent’s reasons for pleading guilty to Coombs’s first-degree murder.” Accordingly, “the jury was virtually bound to accept that the plea and the agreed statement were ‘true.’ The appellant also argues that the judge’s detailed review of the evidence at trial, especially the reference to Amanda Rumbolt’s evidence, “bound [the jury] to accept that Bent’s plea was ‘true.’” In his legal argument the appellant picks out the Youvarajah and Caesar decisions as being especially pertinent.

[139] I would reject these arguments for three reasons.

[140] First, I do not accept the appellant’s assertion that the jury instruction “aggravated the prejudice” of admitting Bent’s plea. The trial judge’s instruction was well balanced. He instructed the jury on the permissible and impermissible uses of Bent’s plea and the admitted facts. He told the jury more than once that Bent’s admission that he planned and deliberated the murder was evidence only of Bent’s conduct, not evidence of the appellant’s conduct and state of mind. The trial judge instructed:

That admission of planning and deliberation on Bent’s part is not evidence that the defendant or any other perpetrator planned and deliberated about the killing. The state of mind of any other perpetrator is to be determined by you in accordance with this charge, keeping in mind the burden on the Crown to prove the elements of an offence allegedly committed by the defendant beyond a reasonable doubt.

What was alleged by the Crown during the plea by Bent dealt exclusively with Bent’s involvement in the first-degree murder of Coombs.

If you are satisfied that Bent’s plea and admission is reliable and truthful, you may use the plea and the admissions as proof of their substance – Bent planned and deliberated about killing Coombs and intentionally shot him, in the circumstances he admitted. There was no admission of when the planning and deliberation occurred in relation to the arrival at the complex, or the identity of any other person involved in such planning, deliberation and intentional killing. On the other hand, if you are not satisfied of such reliability and such truth, disregard the plea and the admissions in the rest of your deliberations.

The trial judge repeated this point in his summary of the defence position.

[141] Second, the trial judge instructed the jury on how to assess the reliability of Bent’s guilty plea and agreed statement of facts. He noted that Bent did not testify at trial about his plea, that his plea was not made under oath or affirmation, that the plea was not video recorded, and that Bent was not cross-examined on its reliability. The trial judge also instructed the jury to take into account the immediate circumstances surrounding the plea and all of the evidence at trial in the reliability assessment. The trial judge’s instruction ended with another caution about accepting Bent’s hearsay evidence via the plea, noting that they were to scrutinize his evidence more carefully than that of witnesses who testified at trial.

[142] Finally, the trial judge told the jury they must pay attention to the limits he had set out for them in their permissible use of the evidence:

It is of fundamental importance to the fairness of the trial of the defendant that you not use any such evidence for an improper purpose. Appreciate the distinctions I have drawn and make sure you do not use evidence for a prohibited purpose in your deliberations. Use evidence only in accordance with its limited admissibility as I have described it to you in this or other segments of the charge.

[143] In summary, the trial judge correctly instructed the jury on the permissible and impermissible uses of Bent’s guilty plea. He alerted them to its risks and properly framed their task of determining its ultimate reliability. To the extent that the guilty plea and the agreed statement of facts prejudiced the appellant – which, as I have described, was minimal – the trial judge’s jury charge mitigated that prejudice.

[144] To conclude, the trial judge did not err in admitting into evidence before the jury Bent’s guilty plea, together with the transcript of his plea and the agreed statement of facts accompanying his plea, as edited by the trial judge.

C. Issue three: Did the trial judge wrongly instruct the jury that they could consider the appellant’s post-offence conduct as evidence of planning and deliberation?

[145] There are two pieces of evidence of post-offence conduct in issue. The first is that the appellant and Bent were in frequent contact by cellphone just before the Coombs murder but only once after it. The second was that the appellant fled the complex just after the murder was committed.

[146] The appellant argues that: “The evidence of the cessation in telecommunications between the Appellant and Bent after the homicide should not have been left with the jury as an item of post-offence conduct from which they could infer the Appellant was a party to the murder.” In the alternative, the appellant argues that: “the trial judge erred by instructing the jury that the post-offence conduct was probative of planning and deliberation.”

[147] I will address these arguments after setting out the governing principles.

(1) The Governing Principles on Post-Offence Conduct

[148] The relationship between post-offence conduct and a fact in issue in the trial is generally for the jury to decide, provided that they have been properly instructed in its use. The conceptual framework was explained by Major J. in R. v. White 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at paras. 21-27. Post-offence conduct is circumstantial evidence: “In some cases it may be highly incriminating, while in others it might play only a minor corroborative role.” He noted that: “Like any piece of circumstantial evidence, an act of flight or concealment may be subject to competing interpretations and must be weighed by the jury, in light of all the evidence, to determine whether it is consistent with guilt and inconsistent with any other rational conclusion.” The jury’s task is “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.” The weight of the evidence in the final determination of guilt or innocence is also for the jury.

[149] On this appeal, both parties invoke the reasoning of Martin J. in R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 112. In the process of drawing inferences from the facts, the trier of fact “relies on logic, common sense, and experience,” including evidence of post-offence conduct. The inferences “must be reasonable according to the measuring stick of human experience” and “will depend on the nature of the conduct, what is sought to be inferred from the conduct, the parties’ positions, and the totality of the evidence”: R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at paras. 77 and 78. And see R. v. Allen, 2009 ABCA 341, 324 D.L.R. (4th) 580, aff’d 2010 SCC 42, [2010] 2 S.C.R. 648, at para. 68.

[150] In R. v. Al-Kazragy, 2018 ONCA 40 this court considered evidence of flight after the offence. The court found, at para. 18, that the trial judge did not err in leaving to the jury the inference to draw from the appellant’s flight and approved the trial judge’s invocation of the words of Binnie J. in R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 137, that it was for the jury to decide: “on the basis of the evidence as a whole, whether the post-offence conduct put in evidence against the accused is related to the commission of the crime before them rather than to something else, and if so, how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence.”

[151] Such an evaluation is intensely contextual and depends on the particular fact in issue to which the evidence of post-offence conduct is claimed to relate.

(2) The Principles Applied

[152] As noted, the appellant makes two arguments. First, he submits that the evidence of the halt in cellphone contacts between the appellant and Bent after the murder should not have been left with the jury as an item of post-offence conduct from which they could infer that the appellant was a party to the murder. The inference, the appellant asserts, was “speculative, if not risible.” He adds that the trial judge, “by compartmentalizing the cessation of phone contact with the Appellant’s flight – a common type of post-offence conduct – gave the cessation of phone contact an emphasis in the charge which it did not deserve.”

[153] Second, the appellant argues in the alternative, that: “the trial judge erred by instructing the jury that the post-offence conduct was probative of planning and deliberation.” He submits that the halt in cellphone contacts between the appellant and Bent and their flight after the murder were acts that “were generic in nature and insufficiently cogent to be used to differentiate between the different states of mind required for each of the offences.” The appellant argues that these two elements of post-offence conduct “were only capable of supporting the broad inference that he participated in the shooting.”

[154] On scrutiny, both of these arguments collapse. The first collapses because there is nothing speculative or risible about the inference that the appellant’s post-offence conduct was probative of his participation, which the appellant effectively concedes when he says that the halt in cellphone contacts between the appellant and Bent and their flight right after the murder “were only capable of supporting the broad inference that he participated in the shooting.” The appellant testified and the defence argued to the jury that the calls were related to the appellant’s drug deal with Bent, not the murder. The jury could have drawn that inference but did not.

[155] This post-offence conduct falls well within the principles set out in Calnen, Al-Kazragy,and the cases they cite. It was appropriate to have the jury decide, on the basis of the evidence as a whole, whether the post-offence conduct was related to the commission of the crime charged or to something else, and, if related to the crime, how much weight, if any, should be given to the evidence in the final determination of guilt or innocence.

[156] The second argument collapses because the trial judge did not invite the jury to consider the appellant’s post-offence conduct in assessing the appellant’s mental state for first degree murder or the included offences. Doing so would have been an error in law: R. v. Hill, 2015 ONCA 616, 330 C.C.C. (3d) 1, at para. 61. However, it is clear from the record that the trial judge gave the jury no such invitation.

[157] The trial judge began by instructing the jury that its task was to determine whether the Crown had proved beyond a reasonable doubt the charge of first-degree murder, second-degree murder, or manslaughter. He explained the elements of those offences later in his instructions. The trial judge set out the two principal issues that the jury would be required to decide: the involvement of the appellant, if any, as a shooter or as a person who otherwise assisted Bent in the shooting, and the nature and extent of any such involvement.

[158] The trial judge explained the role of a jury, the burden of proof on the Crown, the nature of the credibility and reliability analysis, and the difference between direct and circumstantial evidence. The trial judge summarized the available evidence of post-offence conduct, including the cessation in phone contact and the appellant’s flight from the housing complex in his review of the circumstantial evidence.

[159] The thrust of the trial judge’s instruction on post-offence conduct dealt with the issue of the appellant’s identity as a participant. He began by saying:

Evidence of what a person did after an offence was committed may help you decide whether that person was one of the people who committed it. It may help. It may not help. [Emphasis added.]

[160] Shortly after this, he added:

What a person did after an offence was committed may indicate that he acted in a way which, according to human experience and logic, is consistent with the conduct of a person who committed the offence and inconsistent with the conduct of someone who did not commit it. [Emphasis added.]

[161] The trial judge then walked through the reasoning process that the jury should apply to the post-offence conduct evidence. It was in this context, according to the appellant, that the trial judge made statements that were wrong and prejudicial, including:

On the other hand, if you are satisfied the defendant made such a change or took such flight because he was conscious of his involvement in the alleged offence, you may consider this evidence, together with all of the other evidence, including the defendant’s testimony, in deciding whether the Crown has proven beyond a reasonable doubt that he was a party to the alleged offence. [Emphasis added by the appellant.]

Evidence that the defendant changed the pattern of his conversations with Bent after the alleged murder may, in the context of the evidence as a whole, including the defendant's testimony, lead you to draw an inference that the defendant was a party to the alleged first degree murder. [Emphasis added by the appellant.]

Evidence that the defendant took flight from the scene of the crime may, in the context of the evidence as a whole, including the defendant’s testimony, lead you to draw an inference that the defendant was a party to the alleged first degree murder. [Emphasis added by the appellant.]

[162] The appellant highlights these passages to suggest that the trial judge told the jury to determine whether the appellant’s post-offence conduct was “because he was conscious of his involvement in the alleged offence, and in particular, because he was conscious of his involvement in a planned and deliberate murder.” I understand the appellant to be advancing this logic: if the trial judge told the jury to consider post-offence conduct in relation to the appellant’s involvement in the “alleged first degree murder” and the term “first degree murder” necessarily implies planning and deliberation, then the judge effectively told the jury to consider post-offence conduct in relation to planning and deliberation.

[163] The appellant is incorrect. It is clear from the context in which he made these statements that the trial judge was discussing the issues of identity and participation, not the mental state of the appellant.

[164] In the following section of the jury charge, the trial judge instructed the jury on the uses and limits of the joint admissions entered by the Crown and the defence, Bent’s guilty plea, the expert evidence, and the eyewitness testimony presented at trial.

[165] In the next section of the jury instructions he explained the elements of first-degree murder and its included offences and explained the law as it related to aiding and abetting. At no point in his discussion of the elements of first-degree murder did the trial judge refer to post-offence conduct.

[166] The trial judge then summarized the positions of the Crown and the defence. Here again, the appellant argues that the trial judge invited the jury to consider post-offence conduct as evidence of planning and deliberation when he said that the “conduct of the defendant after the murder” was an “important part of the Crown’s case” and the “Crown’s case” was first-degree murder. This is too subtle an interpretation, in my view.

[167] Finally, the trial judge addressed the specific issues to be decided and outlined the reasoning process the jury should adopt in order to come to a verdict. After walking through the steps required to determine whether the appellant had participated in the shooting, the trial judge directed the jury to determine whether the appellant had the necessary state of mind for murder and, if so, whether he had planned and deliberated about the killing. He instructed the jury to “look at the defendant’s words and conduct before and at the time of the shooting of Delano Coombs.”

[168] After briefly addressing the Crown’s evidence, he summarized the defence’s evidence:

Pay particular regard to those aspects of the defence that you have not rejected as false, such as some parts of the defendant’s testimony, the weakness of the Crown’s case as it relates to the defendant’s involvement in Bent’s planned and deliberate killing of Coombs … and the speculative nature of the alleged change in the alleged pattern of cell phone conversations with Bent after the murder. All this frailty should be assessed in the context of the evidence of the defendant about the negative environment in the complex, for young people, such as the defendant. [Emphasis added by the appellant.]

[169] The appellant argues that this statement “tied the cessation of telecommunications with Bent to the issue of whether the murder was planned and deliberate.” Although I agree that it would have been better for the trial judge to have avoided any mention of post-offence conduct in the section of his charge dealing with planning and deliberation, this mention did not prejudice the appellant in any way. The trial judge pointed out the “speculative nature” of the “alleged” cessation in phone contact as a “frailty” in the Crown’s case. This favoured the defence.

[170] Overall, the trial judge’s charge to the jury was clear and free from error. Although the appellant has taken issue with a few word choices, the trial judge’s instruction, read fairly and in context, correctly instructed the jury on the use of the post-offence conduct. When the trial judge discussed the elements of first-degree murder and the included offences, he did not refer to post-offence conduct. He specifically encouraged the jury to examine the appellant’s “words and conduct before and at the time of the shooting.”

[171] For these reasons, I would dismiss the appeal.

Released: “P.L.” December 29, 2020

“P. Lauwers J.A.”

“I agree. Grant Huscroft J.A.”

“I agree. Harvison Young J.A.”