Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210607 DOCKET: C64789

Strathy C.J.O., Rouleau and Coroza JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Todd Howley Appellant

Counsel: Delmar Doucette, Angela Ruffo and Zahra Shariff, for the appellant Gregory Tweney and Rebecca Schwartz, for the respondent

Heard: November 25, 2020 by video conference

On appeal from the conviction entered on April 9, 2016 by Justice R. Cary Boswell of the Superior Court of Justice, sitting with a jury.

By the Court:

Overview

[1] The appellant appeals his conviction for first-degree murder. He challenges the trial judge’s admission of certain internet searches carried out on the appellant’s computer, as well as the appropriateness of the Crown’s closing submissions before the jury. He seeks to have the conviction for first-degree murder quashed or stayed and a conviction for second-degree murder substituted. In the alternative, he asks that a new trial be ordered. For the reasons that follow, we dismiss the appeal.

Facts

[2] The appellant and Paul Maasland were business partners. By mid-June 2010, Mr. Maasland had advanced the appellant over $100,000 in business loans relating to a commercial process for using algae to convert carbon dioxide to clean energy. The appellant, however, had spent much of these funds on his own personal expenses.

[3] Two tests of the technology being developed by the appellant had produced inconclusive results and it was agreed that a third and final test was needed. The appellant and Mr. Maasland arranged to conduct the test at the appellant’s Oakville warehouse on Sunday, August 29, 2010.

[4] According to video evidence, Mr. Maasland left his Toronto apartment for the scheduled meeting at the appellant’s warehouse just after 9:00 a.m. on August 29. He was expected back by 12:30 p.m. for a prearranged lunch date with his mother, but he never returned.

[5] Early the next morning, Mr. Maasland’s body was found at the end of a boat launch in Bracebridge. He was wearing the same clothes he had been wearing when he left for his meeting with the appellant. His head and feet were covered in garbage bags and a white nylon rope was tied around his chest. He had obviously been badly beaten. The post-mortem examination revealed extensive lacerations, fractures and bruising all over his body. The pathologist concluded his death was caused by blunt force injuries.

[6] Just a week after the murder, police in Bracebridge received an anonymous letter from someone claiming to have knowledge of the circumstances leading to Mr. Maasland’s death. The letter claimed that Mr. Maasland was murdered in Bracebridge by two unidentified women who knew Mr. Maasland and his spouse through their interest in Boxer dogs. The letter contained details that only the killer could know. A subsequent forensic examination of the appellant’s computer revealed that this letter had been drafted on September 1, 2010, just two days after the murder.

[7] At trial, the Crown tendered considerable circumstantial evidence pointing to the appellant as the murderer. This evidence included an extensive compilation of surveillance video showing the movement of people and vehicles around the appellant’s warehouse on the day of the murder, forensic evidence including DNA analysis connecting the appellant to the crime scene and details concerning the appellant’s internet activity suggesting that the murder had been planned.

[8] The trial lasted six weeks. The Crown called nearly 40 witnesses, including numerous experts, and filed 158 exhibits. The appellant called no evidence. After a day of deliberations, the jury found the appellant guilty of first-degree murder.

Issues

[9] On appeal, the appellant concedes that the Crown led a compelling case identifying him as the killer. He maintains, however, that the evidence of planning and deliberation was weak. He advances two grounds of appeal as follows:

1. The trial judge erred in admitting the evidence about the appellant’s internet searches regarding “nail guns” made several weeks before the murder; and
2. The trial judge erred in failing to declare a mistrial after the Crown’s closing address, in which she referred to certain after-the-fact conduct evidence the trial judge had ruled was irrelevant to the issue of planning and deliberation. Alternatively, the Crown’s submissions constituted an abuse of process requiring a stay of proceedings.

(1) The admissibility of the “nail gun” internet searches

[10] An expert on computer forensics and data recovery examined two computers seized from the appellant’s warehouse and residence. He discovered that the following internet browsing activity had been conducted in the month before the murder:

• Internet searches conducted on August 2, 2010 relating to “nail guns”;
• Internet searches conducted on August 8 and 19, 2010 relating to Mr. Maasland, his spouse, London and Boxer dogs;
• Internet searches conducted on August 26, 2010 using Google maps to access locations in Barrie, Norland and Bracebridge;
• Internet searches conducted on August 28, 2020 relating to transportation in and around Bracebridge.

[11] The August 2 internet activity relating to nail guns consisted of the following:

• Google query for “Nail Gun Massacre” at 12:04:19 p.m.
• Wikipedia article titled “Nail Gun Massacre” accessed at 12:04:45 p.m.;
• Google query for “nail gun safety” at 12:06:34 p.m.;
• Wikipedia article for “nail gun” accessed at 12:06:45 p.m.;
• Google query for “nail gun operation” at 12:22:48 p.m.;
• Google query for “nail gun modified” at 12:23:11 p.m.;
• Second page of search results for “nail gun modified” at 12:24:11 p.m.

[12] In a pretrial motion, the appellant challenged the admissibility of the nail gun search evidence on the basis that its probative value was outweighed by its prejudicial effect. He argued that the searches had no probative value absent improper speculation because Mr. Maasland was not killed with a nail gun. In particular, the appellant submitted that the “Nail Gun Massacre” query and article carried a high potential for moral prejudice. The Crown took the position that the searches provided early evidence that the appellant was conducting research on how to kill Mr. Maasland. The trial judge rejected the appellant’s arguments and admitted the evidence.

[13] On appeal, the appellant renews his complaint about the nail gun searches but does so on a somewhat different basis. He argues that the evidence amounted to needless cumulative evidence and that the trial judge erred in failing to take into account the fact that its probative value was diminished by the existence of other extensive evidence of planning and deliberation. In the appellant’s submission, the prejudice remained substantial.

[14] In balancing the probative value of evidence against its prejudicial effect, courts have come to recognize two well established sources of prejudice: moral prejudice and reasoning prejudice. As the Supreme Court explained in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, moral prejudice refers to the risk associated with evidence that could paint the accused with the stigma of “bad personhood” and cause the jury to assess the accused’s guilt or innocence on the basis of general propensity or disposition: at paras. 42, 100, and 139. By contrast, reasoning prejudice refers to the risk that evidence will distract the jury from its proper focus on the facts as charged: Handy, at paras. 100, 144 and 146. See also R. v. Lo, 2020 ONCA 622, 393 C.C.C. (3d) 543, at paras. 111-116.

[15] Needless cumulative evidence carries a risk of both moral prejudice and reasoning prejudice. As this court explained in R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 60, leave to appeal refused [2012] S.C.C.A No. 8:

Th[e] forensic piling on of evidence by the acre unnecessarily lengthens trials, diffuses their focus and diverts the attention of the trier of fact. Cumulative evidence, whether testimony, exhibits or both, often occupies a borderland around the periphery of the case, adding nothing to the contested issues, preferring instead to suffocate the trier of fact with the uncontroversial or marginal.

[16] Beyond the concerns for trial efficiency raised in Candir, a trial judge’s discretion to exclude cumulative evidence may also serve to prevent the prejudicial effect “which the sheer volume and repetition of [certain] evidence would have on the jury”: R. v. Parsons (1996), 146 Nfld. & P.E.I.R 210 (Nfld C.A.), at para. 42. Thus, for example, once a fact has been admitted, a trial judge has discretion to exclude further evidence that proves the same fact by more prejudicial means: R. v. Foreman (2002), 169 C.C.C. (3d) 489 (Ont. C.A.), at para. 29, leave to appeal refused [2003] S.C.C.A. No. 199.

[17] However, evidence is not prejudicial merely because it increases the chances of conviction: R. v. McMorris, 2020 ONCA 844, at para. 124. The Crown will not necessarily be “piling on” by building a strong case. In deciding whether or not to exclude cumulative evidence, the question is not whether the accused could be convicted with less, but rather whether the prejudicial effect of additional evidence outweighs its probative value, keeping in mind that probative value may diminish with repetition. As with any such balancing of probative value and prejudicial effect, the trial judge’s determination is entitled to a high degree of deference on appeal: R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581.

[18] In this case, the appellant argues that the moral prejudice associated with the internet searches flows from the fact that a search for “Nail Gun Massacre” was highly inflammatory, evoking images of mass killing and extraordinary violence. This would suggest that the person carrying out the search had a propensity for violence. It would follow that the appellant was a bad person with a violent disposition, independent of any evidence in relation to the murder. The jury might use that evidence in improper propensity reasoning.

[19] The appellant also submits that there was reasoning prejudice not known to the trial judge at the point when he made his ruling. The ruling had been made before all of the evidence had been heard. In cross-examination at trial, the expert conceded that he could not tell whether the queries had been typed by the user or had been auto-populated when the user began to type a different query. This meant that the jury would be required to speculate whether the user intended to type in “Nail Gun Massacre” or whether, after typing in “nail gun” the search engine auto-populated “nail gun massacre” as an option to be searched, which the user clicked on out of curiosity, leading him to the Wikipedia article about the movie “Nail Gun Massacre”.

[20] In the appellant’s submission, the trial judge failed to measure the probative value of the evidence, as attenuated by the already substantial evidence of planning and deliberation adduced at trial, against the substantial moral and reasoning prejudice, including the need to speculate as to how the search was carried out. Had he done so, the probative versus prejudicial value of the evidence considered in light of the other evidence led at trial shifted in favour of its exclusion.

[21] We disagree. The trial judge properly admitted the evidence and gave thorough reasons for his decision to do so. The trial judge rejected the defence submission that there was significant prejudice associated with the use of the word “massacre”. The evidence was not offered to show that the appellant had a propensity for violence, and any concerns in this regard could be addressed by a jury instruction. The trial judge concluded that, based on the number and content of the searches it would be open to the jury to find that the appellant was not interested in movies but rather was interested in how a nail gun operates and whether it could be modified for use as a weapon. The evidence therefore had relevance to planning and deliberation.

[22] The internet searches were relevant because, four weeks before the killing, the appellant was investigating nail guns and their use, not because the word “massacre” was either part of his search or was auto-populated by the search engine as the defence suggested. Even if the jury were to conclude that the appellant himself typed “Nail Gun Massacre”, we see little likelihood of either moral prejudice or reasoning prejudice given the purpose for which the evidence was tendered.

[23] The suggestion that the evidence of planning was so strong that the admission of the internet search evidence amounted to unfair “piling on” was not a submission made by experienced defence counsel at trial. In our view there is little merit in the submission.

[24] When the trial judge made his ruling, he had before him a detailed synopsis outlining the anticipated evidence in this case, including the other evidence relevant to planning and deliberation. It is apparent from his ruling that he considered the probative value of the “nail gun” searches in the context of the anticipated evidence as a whole. He correctly observed that planning and deliberation was “a very significant issue in this case.”

[25] The appellant argues that there is no temporal nexus linking the internet search on “nail guns” to the murder because the search was carried out some 27 days before the murder. Again, this was for the trial judge to weigh in reaching his decision. It is equally plausible to read the internet search evidence as extending the temporal nexus to a point earlier in the genesis of the murder. Significantly, the search was carried out some four minutes after the appellant had agreed to conduct a third test on the project being funded in part by Mr. Maasland. This third test was the reason for Mr. Maasland’s attendance at the appellant’s premises on the day he was killed. In addition, it was the first in a series of four internet searches led by the Crown that were relevant to different aspects of the planned killing of Mr. Maasland. The nail gun searches therefore had significant probative value as they expanded the length of the planning and deliberation alleged by the Crown and showed a constant period of internet activity in the period commencing with the arranged visit and ending with the murder. The mere fact that there were additional incriminating internet searches does not constitute a needless “piling on” of the evidence.

[26] In any event, the fact that the same purpose may be achieved by the introduction of fewer pieces of evidence does not mean that a judge should exercise the discretion to exclude relevant evidence. As explained in Candir, at paras. 81-85: “The line between enough and too much is not always easy to fathom even with hindsight.” In this case, while the Crown’s case for planning and deliberation was strong, it was not so strong that the evidence of the nail gun searches created redundancy or repetition. Indeed, the appellant argues elsewhere in his factum that while the Crown had a strong case on identity, it “did not have such a strong case that he had committed a planned murder.”

[27] As a result, we agree with the Crown’s submission that the line in this case has not been crossed.

(2) The Crown’s closing address to the jury

[28] The second ground of appeal relates to the Crown’s jury address. In the final hours of its three-day closing jury address, the Crown referred to certain elements of the appellant’s after-the-fact conduct as being relevant to the question of whether the murder was planned and deliberate. Defence counsel sought a mistrial on the basis that the Crown’s submission violated the trial judge’s ruling that only a limited portion of the appellant’s after-the-fact conduct could be used as evidence of planning and deliberation. In the alternative, defence counsel urged that the judge find that the Crown’s disobedience of the court ruling on this issue amounted to an abuse of process and that dismissal of the jury was the appropriate remedy.

[29] The trial judge rejected both requests, finding that a curative instruction was sufficient to address concerns arising from the Crown’s remarks. The appellant submits that the trial judge erred in dismissing the application for a mistrial and rejecting the abuse of process claim.

[30] To properly address this issue, some background is required. After the evidentiary portion of the trial had concluded, the trial judge provided the parties with a draft of his charge. It contained a section summarizing the appellant’s after-the-fact conduct and its relevance to the issue of identity. It also provided that there was another use that some of the after-the-fact evidence could be put to. He explained that sometimes evidence as to what a person does after a crime has been committed can constitute circumstantial evidence of a pre-existing plan. He gave as examples the fact that the body being dumped in Bracebridge could be seen as having a connection with the internet searches of locations in Bracebridge and Gravenhurst, and taxicabs servicing Bracebridge and Gravenhurst.

[31] The draft charge did not contain a limiting instruction prohibiting the jury from considering other aspects of the appellant’s after-the-fact conduct on the issue of whether the murder was planned and deliberate.

[32] At a pre-charge conference on March 29, 2016 the Crown expressed concern that the charge should not foreclose the jury’s consideration of additional examples of after-the-fact conduct potentially relevant to the issue of whether the murder was planned. The Crown invited the judge to include more examples of after-the-fact conduct for the jury to consider as evidence that the murder was planned and deliberate. Specifically, the Crown gave six examples as follows:

a. The suggestion that the appellant drove to Bracebridge shortly after the murder and while there used the victim’s phone to place a call to the appellant; b. The sand from Muskoka Falls beach deposited inside the victim’s car; c. The staging of the scene where the body was dumped; d. The quick return to Oakville after dumping the body; e. The content of the anonymous letter blaming the murder on two unidentified women connected to Mr. Maasland through Boxer dogs, and which said his death occurred at Muskoka Falls beach; and f. The complete and thorough clean up of the appellant’s warehouse.

[33] Two days later on March 31, 2016 the trial judge sent counsel a revised charge. In a covering email, he indicated as follows: “I believe that my decisions in terms of the issues raised during the pre-charge conference will be manifest in the revised document.” He also said he intended to provide brief written reasons for his decision with respect to three areas, one of which was a decision he made with respect to post-offence conduct.

[34] The revised charge provided by the trial judge contained one additional example of after-the-fact conduct relevant to whether the murder was planned and deliberate. He cited the anonymous letter prepared after the murder and its connection to the appellant’s pre-offence internet searches of Paul Maasland, his spouse, London and Boxer dogs. The revised charge was not revised to contain a limiting instruction prohibiting the jury from considering any other after-the-fact conduct when deciding whether the murder was planned and deliberate.

[35] The Crown’s closing address commenced the following Monday, April 4, 2016. At the end of the first day of the Crown closing, the judge advised counsel that his written reasons on the issues raised at the pre-charge conference were finished. He said he did not hand them out at the start of the day because he did not want to distract anyone. He went on to say “I don’t think anything in them would be an advantage to one person or another … It just explains why I did what I did.” The judge indicated he was prepared to release the reasons at any time but was also willing to hold on to them until after the closings were complete. Both sides were content to leave the timing of the distribution of the reasons up to the judge.

[36] The reasons were in fact distributed the next morning prior to the commencement of the Crown’s second day of her closing address to the jury. In his reasons, the trial judge referred to the six additional items of after-the-fact conduct that the Crown argued were relevant to the issue of planning and deliberation. The judge explained that it was a close call but, in the end, he concluded that the majority of these items of after-the-fact conduct were equally consistent with a plan conceived before or after the killing. He would not, as a result, instruct the jury that these additional items of post-offence conduct were capable of supporting the assertion that the murder was planned and deliberate.

[37] In the final hour of the third and final day of the Crown’s closing address, the Crown addressed the jury on the issue of planning and deliberation. The Crown started by noting that the judge would instruct them on the law relating to both planning and deliberation and the use that could be made of the appellant’s after-the-fact conduct as it might bear on that issue. The jury was to take their instructions from the trial judge.

[38] After reviewing the pre-offence conduct relevant to the issue of planning and deliberation as well as the circumstances of the killing itself, the Crown concluded her closing address with a review of the after-the-fact conduct which the Crown argued was relevant to planning and deliberation. Included in this part of the closing was a reference to each of the six items of after-the-fact conduct the Crown had advanced during the pre-charge conference and which the judge had since ruled were not relevant to the issue of planning and deliberation.

[39] As soon as the jury was released for the day, defence counsel objected to the Crown’s reference to the items of after-the-fact conduct the judge had ruled were irrelevant to planning and deliberation. The next morning defence counsel filed a notice of application seeking a mistrial.

[40] Both Crown counsel apologized to the court and to the appellant for running afoul of the court’s ruling on the scope of after-the-fact conduct evidence relevant to the issue of planning and deliberation. The Crown assured the court that its conduct was not intentional but simply the result of not having read the court’s ruling prior to concluding its closing submissions.

[41] After hearing submissions on the application, the trial judge dismissed the appellant’s application and indicated that he would provide an immediate curative instruction to the jury. A draft of it was provided to counsel for their review and input. The curative instruction was delivered that same day before defence commenced its closing. It clearly spelled out the after-the-fact conduct the jury could consider on the issue of planning and deliberation and that which it could not.

[42] In addition, the charge delivered the next day contained the same curative instruction on after-the-fact conduct. A hard copy of the instructions was provided to the jury for their review during deliberations.

[43] With that background we turn to the issue on appeal. The appellant argues that the trial judge erred in denying the mistrial application. He argues that Crown counsel’s closing address showed an egregious disregard for an express ruling. The closing on the issue of planning and deliberation was “passionately and strongly made” on “a central issue in the case”. Although the Crown had a strong case that the appellant had committed the murder, it did not have such a strong case that the murder had been planned.

[44] In the appellant’s submission, when viewed in context, Crown counsel’s egregious and improper use of after-the-fact conduct could not be corrected. Through an impermissible step by step line of argument, the Crown had improperly linked and thus embedded in the jury’s mind a combination of relevant after-the-fact conduct and irrelevant conduct, some of which the Crown counsel said was so powerful it could not be overstated.

[45] The appellant suggests that the jury may well have been convinced by the painstakingly detailed and powerful climactic conclusion of the Crown’s closing address where it focused on the issue of planning and deliberation. Any instruction telling them to disregard parts of the combined evidence that had convinced them was not about to unconvince them. As trial defence counsel stated in her application for a mistrial, it was “impossible to unring the bell”.

[46] We disagree. Counsel acknowledged that the trial judge’s decision to refuse a mistrial and give a corrective instruction is a discretionary one, and that a corrective instruction will usually be sufficient to ensure trial fairness: R. v. Rose, [1998] 3 S.C.R. 262, at para. 126. The declaration of a mistrial is a drastic remedy and only appropriate as a measure of last resort in the clearest of cases where there is a real danger that trial fairness has been compromised: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 79; R. v. Chiasson, 2009 ONCA 789, at para. 14. Even in cases where the Crown’s improper closing is not promptly corrected, this court has held that a mistrial is not necessarily warranted: R. v. Mallory, 2007 ONCA 46, 217 C.C.C. (3d) 266, at paras. 342-343.

[47] It is also well established that the trial judge’s decision not to grant a mistrial is entitled to a high degree of deference having particular regard to his appreciation of the context and the impact of the submissions on the jury and the suitability of a corrective instruction to negate that impact: Khan, at paras. 79-80; R. v. Zvolensky, 2017 ONCA 273, 352 C.C.C. (3d) 217, at paras. 185-186, leave to appeal refused, [2017] S.C.C.A. No. 403. When the alleged unfairness arises in the context of counsel’s closing address to the jury, a timely and focussed curative instruction will be a sufficient remedy in the vast majority of cases. The central question is whether what was said deprived the accused of a fair trial: R. v. Romeo, [1991] 1 S.C.R. 86, at p. 95.

[48] In choosing to provide a curative instruction, the trial judge clearly understood and was guided by the relevant principles and his reasons disclosed no error in principle nor can they be said to be clearly wrong.

[49] As the Crown points out, the trial judge’s corrective instruction was timely and complete. It was also repeated as part of his charge. Our faith in the jury system is grounded in the firm belief that juries will follow the instructions they are given by trial judges: R. v. Corbett, [1988] 1 S.C.R. 670, at p. 695. The judge’s instructions here were firm and clear, and the jury could not have misunderstood them. There is no basis on which to conclude they would not follow them.

[50] The appellant further argues that the trial judge erred in failing to find that the Crown conduct in this case constituted an abuse of process. In his submission, what Crown counsel did, whether intentionally or through willful blindness, falls into both categories of abuse of process recognized by the courts, as it was both an attack on the appellant’s right to a fair trial and an attack on the integrity of the justice process. Consequently, the appellant submits that a stay of proceedings is necessary and appropriate in the circumstances. We would not give effect to this submission.

[51] As the Supreme Court stated in R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31, there are generally two categories of abuse of process: cases in which state conduct compromises the fairness of an accused’s trial, and cases in which state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process. In the most drastic cases, an abuse of process may justify a stay of proceedings. In order to apply a stay, the court must be satisfied: 1) that the prejudice to the accused’s fair trial rights will be “manifested, perpetuated, or aggravated through the conduct of the trial, or by its outcome”; 2) that there is no alternative remedy capable of redressing the prejudice; and 3) where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits”: Babos, at para. 32, citing R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297.

[52] Applying this framework, we do not find that the Crown’s error in this case rises to the level of an abuse of process, much less an abuse of process requiring a stay of proceedings.

[53] It is apparent that the Crown made a mistake for which it apologized. The Crown who delivered the closing address accepted responsibility for not reviewing the judge’s written reasons on the charge-related issues before concluding her address. In the way the matter unfolded, it would not have necessarily been apparent to Crown counsel that the judge’s ruling required immediate attention and would impact on what the Crown could say in its closing submissions. In fact, the trial judge even offered to delay its release until after the closing addresses were complete. In addition, and contrary to the appellant’s submission, we do not believe the changes the trial judge made to the draft charge would have clearly alerted the Crown to the importance of reviewing the reasons for his ruling or as signalling the trial judge’s view that five of the six elements of post‑offence conduct discussed at the pre-charge conference could not be put forward as post-offence conduct relevant to the issue of planning and deliberation.

[54] Even if we were to conclude that the trial judge’s email and draft charge should have alerted the Crown to the important changes contained in the trial judge’s ruling, the Crown’s error does not provide a basis to find an abuse of process. In his ruling on the mistrial application, the trial judge made strong findings of fact that this was a “one off" mistake at the tail end of a trial in which, “of the many things that could go wrong … none did”. There is no basis to interfere with that finding.

[55] The fairness of the trial was not irreparably compromised by the impugned portion of the Crown’s closing address. As we have explained, the curative instruction crafted in response to the mistrial application appropriately delineated which elements of the appellant’s after-the-fact conduct could be considered by the jury on the issue of planning and deliberation and which could not. There is no basis to conclude that the jury would not have followed the judge’s instructions. Nor was the integrity of the judicial process undermined. This was simply one misstep in a lengthy and complex murder trial otherwise characterized by exceptional collaboration, professionalism, advocacy and courtesy by counsel on both sides of the case. There is no evidence that the Crown’s submissions were a deliberate attempt to defy the court’s ruling or to mislead the jury. The Crown readily accepted responsibility for its mistake. Finally, the impugned submissions did not denigrate the appellant’s fundamental procedural rights, such as the presumption of innocence, the right to remain silent or the burden of proof.

Conclusion

[56] For these reasons, we dismiss the appeal.

Released: June 7, 2021 “G.R.S.” “George R. Strathy C.J.O.” “Paul Rouleau J.A.” “S. Coroza J.A.”