COURT OF APPEAL FOR ONTARIO DATE: 20220401 DOCKET: C63472
Fairburn A.C.J.O., Rouleau and Huscroft JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Mark Staples Appellant
Counsel: Michael Lacy and Carol Cahill, for the appellant Alex Alvaro, for the respondent
Heard: October 27, 2021 by video conference
On appeal from the convictions entered on November 28, 2014 by Justice Harrison S. Arrell of the Superior Court of Justice, sitting with a jury.
Huscroft J.A.:
OVERVIEW
[1] The appellant’s father, Bill Staples, and sister, Rhonda Borelli, went missing from Hamilton in January 1998. Five months later, their badly decomposed bodies were found in the back of Bill’s truck at a Park ‘N Fly at Pearson Airport. Bill had extensive skull fractures and had been beaten to death. The cause of Rhonda’s death was undetermined, but it was theorized that her throat had been cut. The appellant inherited his father’s estate, valued at over $2.1 million.
[2] The appellant was not arrested and charged with the murders until 2010. He was convicted of two counts of first-degree murder following a two-month jury trial in 2014.
[3] The appellant argues that the trial judge erred in numerous ways and that his trial was unfair as a result. The trial judge is said to have erred by:
- failing to caution or correct the jury on demeanour evidence relied on by the Crown;
- leaving post-offence conduct with the jury and failing to properly instruct the jury on the use to be made of such evidence;
- failing to provide a limiting instruction on discreditable conduct;
- failing to caution the jury about too readily inferring guilt from circumstantial evidence;
- failing to prevent the Crown from inviting the jury to speculate and shifting the onus of proof onto the appellant;
- failing to instruct the jury to disregard impermissible opinion evidence; and
- refusing to permit the appellant to lead evidence of another unsolved homicide.
[4] Finally, the appellant argues that the verdict was unreasonable. He seeks an acquittal or, in the alternative, a new trial.
[5] I am not persuaded by any of these arguments, nor has the appellant established that the jury’s verdict was unreasonable. I would dismiss the appeal for the reasons that follow.
BACKGROUND
[6] Bill Staples and his wife adopted the appellant and Rhonda Borelli as children. Bill worked with the appellant in farming and supported him financially throughout his life, including gifting him land on which to build a home.
[7] The appellant opened Mulligan’s, a bar/restaurant and golf business, in 1996. Bill supported him with gifts of money and loans but refused to invest in the business. By 1997, the appellant’s financial difficulties had become evident and Bill’s close relationship with the appellant had deteriorated. The appellant continued to seek support from him, but Bill told many people he was no longer going to give the appellant any money. Shortly before Bill’s death, the appellant stole $20,000 from him by forging a cheque on his account.
[8] The Crown’s theory was that the appellant killed Bill and his sister Rhonda on January 16, 1998 in order to inherit his father’s estate and save his Mulligan’s business. Although he ultimately received approximately $1.4 million from the estate, the appellant did not receive the money for several months following Bill’s death and was not able to save his business in the meantime. Mulligan’s had been operating pursuant to a credit proposal, but the business failed and the proposal amount was never paid off.
[9] In support of its theory, the Crown led a large volume of evidence that I summarize here.
The appellant’s situation
[10] The appellant owned a Camaro and a red pickup truck with a gas tank on the back, in addition to a John Deere tractor he used to plow snow.
[11] The appellant owed over $600,000 dollars to secured and unsecured creditors when Bill and Rhonda disappeared. The money was owed both personally and through the Mulligan’s business. Several witnesses testified that they invested in Mulligan’s and received nothing in return.
[12] Bill’s relationship with the appellant had become strained, and later in 1997 they were not on speaking terms. According to the appellant’s ex-wife, Cheryl Echlin, the appellant and Rhonda did not talk and he avoided contact with her.
[13] Bill told many people that he would no longer give money to the appellant. Nevertheless, there was also evidence that Bill was proud of the appellant’s business venture and that he continued to lend money to him, including a loan of $15,000 in December 1997.
[14] In January 1998, the appellant forged Bill’s name on a cheque for $20,000 made out to Mulligan’s Golf Centre. There is no evidence that Bill knew of the fraud prior to his disappearance. $20,510.58 was seized from the appellant’s account by the sheriff on January 16, 1998, leaving nothing in the account.
Bill and Rhonda’s final movements
[15] David Staples, Bill’s nephew, last saw Bill on January 12, 1998. Bill told him that he did not want the appellant to use his new tractor and had put chains through the front wheels.
[16] Bill made a same-day medical appointment on January 15, 1998 to address what he said was an emergency. Just before the appointment, the doctor’s assistant received a call from a woman stating that Bill would be late. He never attended the appointment.
[17] Cheryl Echlin saw Bill on January 16, 1998 – the last day he was seen alive. Bill told her that he had been in Toronto and was going back the next day.
[18] Rhonda was last seen alive on January 16, 1998 in Binbrook at around 12:00 p.m. by Gerald Patterson. He saw her arguing with a man who was in a red pickup truck that had a gas tank on the back. She eventually got into the truck and drove away. Patterson knew the appellant but was not able to say that the man he saw was the appellant.
[19] Lorie Bunker attended the Staples farm on January 16, 1998 at approximately 2:30 p.m. to deliver Avon products to Rhonda. No one answered the door. She returned two days later, on Sunday at 4:00 p.m., and again got no answer at the door.
The appellant’s movements on January 16, 1998
[20] Ron Bender saw the appellant in Hamilton in a red pickup truck at about 12:00 p.m. on January 16.
[21] Carl Jennings, whose band played at Mulligan’s on January 16, testified that he did not see the appellant at Mulligan’s that night.
[22] Steven van Zeben said the appellant was not at Mulligan’s on January 16 when he arrived at 10:00 p.m., but that the appellant arrived 15 or 20 minutes later. van Zeben left Mulligan’s after 30 to 45 minutes. He saw the appellant leave the Mulligan’s parking lot in his truck and the appellant passed him, travelling toward Bill’s farm.
[23] Angela Jessop saw the appellant at approximately 5:45 p.m. at Mulligan’s and said that he left by 7:00 p.m. She did not see the appellant again until about 11:00 p.m. He had changed his clothing. The appellant bought her a drink after midnight and she left Mulligan’s at about 2:00 a.m.
[24] Steve Martin, who lived across the street from the Staples farm, saw a vehicle drive up the driveway of the farm at 11:30 p.m. or later on January 16. Approximately 20 minutes later, he saw two vehicles leave the farm but could not identify them.
[25] van Zeben and John Potter returned to Mulligan’s at about 1:30 a.m. and saw the appellant there. They stayed until the appellant locked up at 3:30 a.m.
Post-January 16, 1998 events
[26] David Bunker drove his ATV on the Staples farm on January 17, 1998. He observed that snowplowing had been done and saw the appellant’s John Deere tractor with a snowplow. He did not see Bill’s white pickup truck but later that day saw the appellant’s Camaro in the driveway. In his 1998 statements to police, the appellant said he had plowed only the driveway, but in 2010 he acknowledged plowing extensively between the buildings at the farm.
[27] On January 19, the appellant’s uncles Don and Murray Staples stopped at Mulligan’s on their way to visit Bill’s farm. The appellant told them that Bill and Rhonda had said they were going away for a few days, or that they had gone on a little holiday. The appellant told them there was no use in going to the farm because he had already been there and was returning that afternoon to check.
[28] Sandra McLean saw thick black smoke coming from the burner behind the shop on Bill’s farm on January 19 and saw the appellant’s red pickup at the farm. The police found buckles, zippers, round disks that could have been buttons, and several pieces of torn cloth, along with eight coins in the ashes beneath the incinerator.
[29] Earl Barlow went to the farm on January 19 and found that the television was on. A protein drink was on the table. A wet pair of jeans was in the washing machine. Earl called the appellant, who said that the jeans were his and that he had left the light and television on.
[30] Earl Barlow returned to the farm on January 20 with others. He saw that Bill’s pickup truck was gone. It had been removed from a concrete pad in the drive shed by driving over a 10 to 12-inch curb, because it was blocked by a tractor that had a dead battery.
[31] That same day, Murray Staples saw the appellant crying, but the appellant did not respond to questions asking him what was wrong.
[32] David Staples visited the farm on January 20 and saw the appellant in drive shed #1 cleaning up, sweeping, and scattering straw. A large bloodstain that had penetrated the concrete was later found there. Subsequent DNA testing established that the blood was Rhonda’s. David also visited the farm with Murray Staples on January 21. On one of his visits, David saw the appellant sobbing. He said that the locks on Bill’s tool chest had been cut along with the locks on the tractor. Officers Shulist and Allison did not notice locks having been cut when they visited the farm.
[33] On January 23, the appellant expressed the concern that too many people were going through Bill’s house and that things were being done without his involvement.
[34] The appellant did not testify, but two videotaped statements and one written statement he made to the police were entered into evidence.
DISCUSSION
[35] Although the appellant raised numerous alleged errors in his factum, his oral submissions focused primarily on the admission and use of post-offence conduct demeanour evidence and the trial judge’s alleged failure to give limiting instructions in key areas giving rise to moral and reasoning prejudice.
The trial judge did not err in leaving post-offence demeanour evidence with the jury
1. Evidence that the appellant was crying
[36] The appellant argues that evidence that he was seen crying had no probative value and significant prejudicial effect and should not have been admitted. Several witnesses testified they saw the appellant crying on January 20, 1998, when Bill and Rhonda had been missing for only a few days. The appellant’s ex-wife testified that he was crying and sweating and that he smelled quite badly of perspiration, something that she said never occurred. The appellant submits that the trial judge erred in relying on R. v. Sodhi (2003), 66 O.R. (3d) 641 (C.A.), because the post-offence conduct in that case – the accused’s suicide attempt – was more extreme than the conduct in this case.
[37] The respondent submits that evidence of the appellant crying had probative value as it was unique and unusual. The appellant, who was on all accounts not an emotional person, was crying even though his father and sister had not been missing long enough to raise the spectre of their deaths. I agree.
[38] The starting point is that although its admission may be somewhat rare, there is no bar to the admission of demeanour evidence. It may be admitted where a witness has a basis for believing that an accused’s demeanour was unusual: R. v. Trotta (2004), 190 C.C.C. (3d) 199 (Ont. C.A.), rev’d on other grounds, 2007 SCC 49, [2007] 3 S.C.R. 453; R. v. Short, 2018 ONCA 1, 358 C.C.C. (3d) 337, at para. 54.
[39] In this case, the key witness concerning the appellant’s crying was the appellant’s ex-wife, who was intimately familiar with him and had a strong basis for believing that his demeanour was unusual. It had probative value in light of the evidence that the appellant had told his uncles Murray and Don Staples on Monday – the day before his crying was observed – that he did not know where Bill and Rhonda were, but they had said they were going away for a few days. After all, if his father and sister had taken a short trip, why would their absence provoke such a reaction in the appellant?
[40] The evidence of the appellant’s highly unusual sweating and smell also gained probative value when considered against his statement to his uncles. Again, if his father and sister had simply gone away for a few days, why did his ex-wife observe him to be in physical distress?
[41] Perhaps the best indication of the probative value of this evidence lay in the silence of defence counsel at trial. No objection was taken to the admission of the evidence that appeal counsel now says was prejudicial. The silence of defence counsel – present at trial and able to measure its probative value – speaks volumes.
[42] I am satisfied that the evidence was properly admitted. It was open to the trial judge to find that this post-offence demeanour evidence had probative value in the context of the broader evidentiary picture and, in particular, the appellant’s statement to his uncles that Bill and Rhonda had gone away.
[43] The second aspect of this ground of appeal concerns the Crown’s closing. The appellant argues that Crown counsel improperly invited the jury to infer guilt from the appellant’s demeanour in the days after Bill and Rhonda went missing and from his videotaped statement to the police.
[44] Concerning the appellant’s crying, the Crown stated as follows:
On Tuesday, January 20th, 1998, the police are contacted and attend at Staples Farms for the first time. Mark Staples is noted by both officers to be crying and also by his family members. Most significantly, his wife Cheryl Echlin notes that he is crying, sweating and producing body odour that she has never smelled from him before. This is the woman he married and lived with for 12 years. She had only seen him cry that way twice before; when his mother died and when his dog died. He was under stress and strain from his crime, and this crying is not the crying associated with the worry about his father and sister’s whereabouts. He told many people, including Don Staples and Murray Staples when he saw them on January 19th at Mulligan’s, that his father and sister may have gone away for a few days. He also told Special Constable Linda Walsh, when he called the police at 11:30 p.m. that night, that they may have gone away for a few days, which is why she didn’t file a missing persons report. If you believe that your father and sister may have gone away for a few days, why are you crying, sweating and producing unusually heavy body odour? I suggest to you that he was crying too early in the process for it to be tears of worry. No need to cry if they’re gone for a few days. They had been missing three and-a-half days at that point. I suggest these are tears of guilt, not tears of worry.
[45] The trial judge instructed the jury as follows:
When considering what inference, if any, to draw from evidence of after-the-fact conduct, keep in mind that people sometimes cry, burn items, do a wash etc. for entirely innocent reasons. Even if Mark Staples was motivated by a feeling of guilt, that feeling might be attributable to something other than in the offence with which he is now charged.
[46] The trial judge’s instruction specifically referenced the appellant’s crying and instructed caution in drawing inferences of guilt from post-offence conduct. Significantly, the instruction made clear that even assuming feelings of guilt existed in the appellant, they may have been motivated by something other than guilt over having committed the offence with which he was charged. In my view, this instruction was adequate to address any concerns about the evidence of appellant’s crying and sweating.
2. The videotaped statement
[47] There are two objections concerning the appellant’s videotaped statement to the police. First, the appellant argues that Crown counsel improperly suggested to the jury that the appellant would have “vigorously den[ied] responsibility” if he were in fact innocent. The impugned passage from the Crown closing follows:
Much of the statement to Detective Rick Arnold is the detective presenting the evidence collected during the course of the police investigation and asking Mark Staples to comment. Sometimes he does, sometimes he doesn’t. I suggest there are many moments when you would expect him to vigorously deny responsibility and instead he says, mm-hmm, or yeah.
[48] Although this statement looks problematic when read in isolation, it must be considered in light of its context: a 140-page statement in which the appellant repeatedly answered “yeah” and “mm-hmm” both to highly innocuous and less innocuous matters. It was open to the jury to consider the whole statement, and in that context that Crown counsel’s lead-in to the impugned statement makes good sense:
The last statement he gives to the police is after he is arrested in 2010. He speaks with Detective Rick Arnold on video at the police station. The defence will say he denied committing the murders under close questioning, just like he had denied responsibility in his earlier statements to the police. They will say he has consistently denied responsibility. I suggest the lies he has told in his statements should lead you to disbelieve him and lead you to disbelieve him when he denies responsibility for the murders. [Emphasis added.]
[49] Crown counsel then went on to review numerous lies and inconsistencies in the appellant’s statement.
[50] This is not a case in which Crown counsel asked the jury to infer guilt from silence. Nor is it a case in which Crown counsel asked the jury to make assumptions based upon a stereotype or speculation. The jury had a lengthy videotaped interview to consider, in which the appellant’s words and conduct were captured. Numerous “yeah” and “mm-hmm” responses by the appellant during the course of that interview informed the jury’s overall view of how seriously he was taking the situation and provided a context against which his denials were to be assessed – denials that, as the Crown warned the jury, the appellant would be relying on in his closing address.
[51] I see nothing problematic about Crown counsel’s statement. The problematic part of the Crown’s closing came later, near the end of his remarks.
[52] The appellant argues that Crown counsel crossed the line when he told the jury that they could draw an inference of guilt from the appellant’s demeanour when confronted with photographs of his dead father and sister. Crown counsel stated:
You all paid attention to that statement and followed along in the transcripts you were provided to assist you. However, when Detective Arnold showed Mark Staples the photographs of his father and sister’s decomposing bodies in the back of the pickup truck and later in a bag at autopsy, you all looked up from your transcripts to see Mark Staples’ reactions. I suggest you could not believe his reaction to the photographs. He did not look away. He did not say take them away. He made no comment about Detective Arnold showing him those photographs. Instead, he was cold and clinical, looking coolly at the disturbing remains of his adoptive father and sister. I suggest this was not the reaction of a man who had nothing to do with this crime, but rather the reaction of a cold, calculating killer. [Emphasis added.]
[53] The appellant argues Crown counsel’s suggestion that not looking away was “the reaction of a cold, calculating killer” was improper and should not have been made. The appellant’s reaction or non-reaction to the photographs was post-offence demeanour evidence that had no probative value and was inflammatory, and it was prejudicial for the Crown to urge the jury to draw an inference of guilt from the evidence.
[54] I agree that this comment should not have been made. It was improper to say that the appellant’s reaction to the photographs – looking “coolly at the disturbing remains” of the deceased rather than looking away – was the reaction of a “cold, calculating killer.” Implicitly, it suggested that there is a “normal” way to look at the remains of your deceased family members, and this is clearly not so.
[55] This sort of suggestion is potentially dangerous because perceptions of guilt based on demeanour depend on what Rosenberg J.A. described as “highly subjective impressions”: R. v. Levert (2001), 159 C.C.C. (3d) 71 (Ont. C.A.), at para. 27. As Doherty J.A. explained in Trotta, at para. 41, the evidence must be “sufficiently unambiguous and demonstrative of a relevant state of mind so as to overcome concerns that a trier of fact may too easily equate what is perceived to be an ‘unusual’ reaction with a guilty mind.”
[56] The evidence here is not unambiguous. Does a guilty person look away from the photographs or stare at them? No inference could be drawn from the appellant’s reaction to the photographs.
[57] Despite the impropriety of Crown counsel’s remarks, I am not satisfied that they had the effect of rendering the trial unfair.
[58] I begin by noting that the appellant’s reaction or non-reaction to the photographs was apparent when viewing the videotaped statement that was properly admitted in evidence. This is not a case in which evidence was placed before the jury that should not have been. On the contrary, the appellant wanted the videotaped statement admitted at trial. He chose not to testify, as was his right, so the statement acted as his voice at trial – his denial of the crimes.
[59] The impropriety arose from the suggestion that the jury could infer guilt from viewing the appellant’s failure to react as an innocent person would. To assess whether the appellant was prejudiced by this suggestion, the circumstances of the trial as a whole must be considered: R. v. McGregor, 2019 ONCA 307, 145 O.R. (3d) 641, at para. 184.
[60] The appellant did not object to the now-impugned passage following the Crown’s closing. Instead, defence counsel proceeded to close to the jury. His closing included repeated references to the appellant’s demeanour following the disappearance of his father and sister, which he sought to characterize favourably – as consistent with the demeanour of an innocent person.
[61] For example, defence counsel relied on the witnesses who had described the appellant’s normal demeanour at Mulligan’s on the night of January 16 and the next morning during a photoshoot, the timeframe in which the Crown theorized the appellant had murdered his father and sister. He asked: “does it make any sense that he would be crying on the Tuesday when it is clear that there was something wrong, and yet be in a good mood and so absolutely normal on Friday, shortly after having killed his father and sister just hours earlier?” Defence counsel also pointed out what he described as the contradictory nature of the Crown’s demeanour submissions: on one hand, the Crown argued that the appellant was sobbing out of guilt; on the other hand, the Crown described the appellant as having the reactions of a cold, calculating killer.
[62] Defence counsel addressed the photographs issue directly, pointing out the problematic nature of drawing inferences from the appellant’s reaction or non-reaction:
[T]his is clearly one of those situations where you’re damned if you do, and you’re damned if you don’t. I can guarantee you that if Mark Staples turned away or refused to look at those pictures, Crown counsel would stand right here, stare you right in the eye, and tell you that his refusal was clearly the sign of a guilty man.
[63] This submission demonstrates why the trial Crown’s suggestion was improper. This was a situation in which there was no one right way to react, and this defence closing went some distance to educating the jury on the nature of this problem.
[64] Only after the defence closed to the jury - having answered the Crown’s impugned suggestion and relied on all kinds of demeanour evidence to argue for innocence - did defence counsel raise a concern about the Crown’s closing. Even still, that concern was put softly: rather than ask for an instruction that the jury disregard what the Crown had said, defence counsel requested that the trial judge “consider [giving] an instruction to the jury that they should be cautious about demeanour evidence.”
[65] In response to the trial judge’s question about “what evidence” the defence was referring to, defence counsel replied: “particularly [the Crown] going to the jury in his closing right at the end with look at the way Mark Staples looked at those photographs without turning away. That’s what a guilty man would do, right?” Defence counsel went on to clarify that this was “another example of post-offence-conduct.”
[66] The trial judge noted that defence counsel had also addressed demeanour in his closing, and specifically addressed the appellant’s reaction to being shown the photographs. He considered that the usual caution to the jury on demeanour evidence would be adequate, and those instructions were given.
[67] Although the defence was concerned with what Crown counsel had said, it cannot be said that this concern was as grave as is now suggested on appeal. Defence counsel was in the best position to determine, in the context of the trial as a whole – including both closing addresses – the extent to which prejudice arose from Crown counsel’s comment. The fact that defence counsel did not consider it necessary to have the trial judge instruct the jury to disregard that comment is important in this context.
[68] In addition to the caution on demeanour evidence, the trial judge instructed the jury that the things said by lawyers were not evidence. With respect to drawing inferences from post-offence conduct, the trial judge cautioned the jury that things might be done for entirely innocent reasons.
[69] In all of these circumstances, I am satisfied that Crown counsel’s comment did not render the trial unfair.
The trial judge did not err in leaving post-offence conduct with the jury
[70] The appellant submits that the trial judge erred in admitting several pieces of post-offence conduct evidence in addition to the demeanour evidence addressed above. He focused on the admission of the following evidence:
- The appellant’s statement to Mulligan’s employee Michael Keating that he should not talk to the police and should get a lawyer;
- The appellant’s statement to his uncles on January 19, dissuading them from going to the farm;
- The appellant’s wet jeans in the washing machine when Earl Barlow went to the farm on Monday evening, January 19; and
- The transport of the bodies in Bill’s truck to the Park ‘N Fly.
[71] I see no error. In each case, the post-offence conduct reasonably supported inferences of guilt.
[72] First, the appellant visited the home of Michael Keating, whom he owed several thousand dollars, late on the night of February 28, 1998. Keating testified that the appellant told him: “if the police come to see you again, don’t talk to them and maybe get a lawyer.” This was not particularly strong evidence, but it did permit the inference that the appellant was frustrating or at least choosing not to assist the investigation at a time when Bill and Rhonda were presumed missing. Keating was also a witness who could support the evidence of the appellant’s financial distress, which was relevant to the Crown’s motive theory.
[73] Second, the evidence that the appellant dissuaded his uncles from attending the farm on Monday, January 19 supported the inference that he wanted to keep them away while he conducted a cleanup. This was supported by the evidence of thick black smoke coming from the burner outside the shop that day and the remnants of clothing that were found, along with evidence that the appellant had been sweeping straw in the area where Rhonda’s blood was found.
[74] Third, the presence of the appellant’s wet jeans in the washing machine supported the inference that the appellant had been cleaning up the crime scene on January 19 and had washed clothing connected to the murders or cleanup.
[75] Fourth, the appellant argues that the transport of the bodies in Bill’s truck is not really post-offence evidence. It is, however, circumstantial evidence pointing to the identity of the killer, for it supported the inferences that Bill and Rhonda were killed at the farm and that the killer was not a stranger. As the Crown asked, if a stranger were the killer, why would that person risk moving the bodies elsewhere? The appellant had access to the farm and truck, and the truck had been moved over a curb in a manner that suggested it had not been moved by Bill. Moreover, if he had left on a trip it was far more likely that Bill would have taken his car than his truck.
[76] In summary, the trial judge did not err concerning the admission of the post-offence conduct evidence.
The post-offence conduct instructions and the Crown’s closing
[77] The trial judge cautioned the jury that the appellant’s post-offence conduct evidence had only an indirect bearing on his guilt and made clear there may be other explanations for his post-offence conduct. He properly instructed the jury not to infer guilt from the post-offence conduct evidence unless they were satisfied, in the context of the evidence as a whole, that it was consistent with his guilt and inconsistent with any other reasonable conclusion. The trial judge reiterated this point, stating that the jury could use the post-offence conduct to support an inference of guilt only if they rejected any other explanation for the conduct. Nothing more was required.
[78] During the pre-charge conference, the trial judge ruled that some things could not be regarded as post-offence conduct from which guilt could be inferred, including evidence that the appellant had plowed behind the farm buildings to cover up Bill’s murder, which the Crown theorized happened outdoors. The trial judge ruled that this was too speculative and not probative. He also ruled that garbage bags in the dumpster were not admissible, along with the key to Bill’s safety deposit box, a copy of a loan agreement with Bill, and missing person posters the appellant threw away.
[79] The following exchange took place:
The Court: I don’t know how I can prevent you from commenting on it, either one of you, however, my ruling is you cannot comment on it on, on the basis of it’s after-the-fact conduct.
The Court: And, and you cannot comment on it on the fact that consciousness of guilt through after-the-fact conduct flows from that evidence.
Crown counsel: I think what I will do then, Your Honour, is eliminate my references to the extra inference that should be drawn by the jury from that evidence, but I will canvas it as things they heard about what Mr. Staples did after the murder. I just won’t go the extra step of suggesting that it shows that he was conscious of his guilt.
[Defence counsel]: I think that may be a slippery slope and it still may open up Crown counsel to, to sort of comment in your charge about, about that evidence depending on how he does it, Your Honour.
[The Court]: Well, I believe Crown counsel is careful and there’s no reference that this is an inference of guilt or after-the-fact conduct. It’s permissible. It’s evidence the jury’s heard and he can comment on any evidence the jury’s heard, but he’ll have to be careful on the inference he tells them to draw from it.
[80] The appellant argues that Crown counsel wrongly invited the jury to draw inferences of guilt from this evidence despite the trial judge’s ruling.
[81] The line between using post-offence conduct evidence for proper and improper purposes is a fine one, and read in isolation some of the Crown’s closing remarks came close to that line. However, read as a whole, the Crown’s closing remarks would have been understood as an attack on the credibility of the appellant’s exculpatory statements. The Crown was entitled to note that evidence the appellant had plowed between the buildings contradicted his statements to the police that he had plowed only the driveway, and evidence that the key to Bill’s safety deposit box was found in the garbage was inconsistent with the appellant’s statement that he had not disposed of it. The evidence also demonstrated that the appellant had control of the farm during the relevant time.
[82] The trial judge properly instructed the jury concerning the use of the appellant’s statements in accordance with R. v. W.(D.), [1991] 1 S.C.R. 742. Specifically, he instructed them that if they accepted the appellant’s denials of involvement in the deaths or disappearances, they must find him not guilty. Even if they did not accept his denials, the appellant was entitled to an acquittal if his statements gave rise to a reasonable doubt. Finally, the trial judge instructed the jury that even if they rejected his statements, they had to go on to determine if his guilt had been proven beyond a reasonable doubt on the basis of the evidence they accepted. For good measure, the trial judge repeated these instructions later in his charge.
[83] This ground of appeal must be rejected.
The O’Connor ruling on fabrication
[84] At the end of the trial, the Crown sought a ruling that it be permitted to urge the jury to infer that numerous inconsistencies and lies in the appellant’s statements amounted to fabrication and consciousness of guilt, and requested that the jury be instructed in accordance with R. v. O’Connor (2002), 62 O.R. (3d) 263 (C.A.). The trial judge found that there was no independent evidence establishing fabrication and so denied the Crown permission to make the fabrication argument.
[85] The appellant argues that Crown counsel’s closing breached the trial judge’s ruling. This argument was not set out as a ground of appeal in the notice of appeal, nor was it made in the appellant’s factum, but it is similar to the appellant’s argument on the Crown’s use of post-offence conduct so I address it here briefly.
[86] The following exchange took place concerning the use that could be made of the evidence that had already been admitted:
The Court: And by dismissing it [the Crown’s fabrication application], I mean, it certainly doesn’t mean that you’re not at liberty to go to the jury as all the inconsistencies and the obvious lies and all of the …
Crown counsel: I’ll be, I’ll just be careful with my language, Your Honour.
Crown counsel: …I understand I can’t use the word “fabrication” or “concoction”.
The Court: It’ll be…
Crown Counsel: Well, I can use the word “lie”.
The Court: Or “consciousness of guilt” is another one.
[87] Crown counsel was entitled to challenge the credibility of the appellant’s statements by pointing out the numerous inconsistencies or lies in those statements and the conflict with the other evidence, and he did so vigorously. I do not read the Crown’s closing as offending the O’Connor ruling. The Crown did not invite the jury to use disbelief of the appellant’s statement to find deliberate concoction, from which an inference of guilt could be taken: R. v. Iqbal, 2021 ONCA 416, at para. 54. Put another way, the Crown did not suggest to the jury that rejection of the appellant’s statement was capable of supporting an inference of guilt.
[88] The failure of defence counsel to object to the Crown closing supports the conclusion that Crown counsel did not cross the O’Connor line. Instead of objecting, defence counsel addressed the appellant’s statements at length in his submissions. He emphasized that the appellant had willingly assisted the police throughout their investigation and characterized the inconsistencies in his statements as “relatively minor” and of “no real consequence”. The appellant was “admittedly terrible with times and dates”, he said. If he were guilty of the murders, “would he not have worked out a much more consistent timeline regarding his whereabouts at all material times”?
[89] As well, and as noted above, the trial judge properly instructed the jury concerning the use of the appellant’s statements in accordance with W.D. It is not clear any further instruction would have benefited the appellant, given that it would have served to highlight the many inconsistencies the jury would be told they could not use to find guilt. In any event, the trial judge fairly put the defence argument to the jury: inconsistencies in the appellant’s statements came during a time in which the appellant was under great stress, and they were inconsequential in light of the evidence as a whole. Nothing more was required.
A discreditable conduct instruction was not required
[90] The appellant argues that the Crown used the extensive evidence of the appellant’s financial difficulties to characterize him as a person of bad character – “greedy, selfish, irresponsible, and a self-serving, cold and heartless person who thought nothing of taking advantage of people he knew” – rather than to establish motive, and as a result the trial judge should have given a discreditable conduct instruction.
[91] Defence counsel objected to the Crown’s introduction of evidence concerning the many failed efforts of creditors to collect debts owed by the appellant after January 16, 1998, the date on which the Crown theorized Bill and Rhonda were killed. Defence counsel conceded that the evidence up to that date was relevant to establishing the appellant’s financial state and motive but argued that beyond this date it was simply evidence of the appellant’s bad character: he was someone who did not repay debts. The trial judge rejected this argument, describing the appellant’s financial stress as “terribly relevant” at the time of the murders, and stated that the only way to show financial distress was by showing that it was not relieved thereafter. However, he also indicated that it was not necessary to dwell on creditors’ efforts to try to collect on the appellant’s debts.
[92] The appellant does not dispute the admissibility of the financial evidence but argues that Crown counsel went further than the trial judge authorized, and in doing so the evidence was used as bad character evidence. The appellant submits that a discreditable conduct instruction was required.
[93] I do not agree.
[94] Where evidence is admissible to establish motive, a discreditable conduct instruction on that same evidence will sometimes be unnecessary. As Doherty J.A. explained in R. v. Merz (1999), 46 O.R. (3d) 161 (C.A.), at para. 59, leave to appeal refused, [2000] S.C.C.A. No. 240, an inference of motive may be more direct and powerful than the possibility of propensity reasoning, and a discreditable conduct instruction would only confuse the jury. See also R. v. Krugel (2000), 143 C.C.C. (3d) 367 (Ont. C.A.), at para. 90; and R. v. Thomas, 2018 ONCA 694, at para. 35.
[95] The sole issue for the jury in this case was the identity of the killer. Extensive evidence of the appellant’s financial misconduct and financial woes was tendered to establish the appellant’s motive for wanting to kill his father. Although the trial judge could have told the jury that they must not use this evidence to conclude that the appellant was the type of person who would commit murder, and was thus likely to have committed the murders, the fact that he did not do so carries little weight. Indeed, any such instruction might have served to highlight the strength of the evidence of motive, which was already very strong.
[96] In my view, there was no risk that the financial evidence would be misused by the jury. Even if the jury thought that the appellant was greedy, selfish, and so on, they would not have thought that he was a murderer – that he would have brutally murdered his father and sister – simply because he had those character traits. Again, the absence of an objection at trial belies the suggestion of prejudice raised on appeal.
The circumstantial evidence charge was adequate
[97] The appellant argues that the trial judge did not provide the jury with an adequate circumstantial evidence instruction. In effect, the appellant says the trial judge instructed the jury to treat the post-offence conduct differently than the other circumstantial evidence. The jury should have been instructed in accordance with the requirements set out subsequently by the Supreme Court in R. v. Villaroman, [2016] 1 S.C.R. 1000, 2016 SCC 33.
[98] The trial judge instructed the jury on the distinction between direct and circumstantial evidence and the process of drawing inferences from circumstantial evidence. Later, in the context of instructing the jury on post-offence-conduct evidence, the trial judge instructed the jury as follows:
After-the-fact conduct is simply a type of circumstantial evidence. As with all circumstantial evidence, you must consider what inference, if any, is proper to draw from this evidence. You may use this evidence, along with all the other evidence in the case, in deciding whether the Crown has proved Mark Staples’ guilt beyond a reasonable doubt. However, you must not infer Mark Staples’ guilt from this evidence unless, when you consider it along with all the other evidence, you are satisfied that it is consistent with his guilt and is inconsistent with any other reasonable conclusion. [Emphasis added.]
[99] Although this instruction arises in the context of the appellant’s post-offence conduct, it is not rendered inadequate on that account. What matters is whether the jury received the instruction, not the sequence in which the instruction was delivered. The trial judge made clear that the instruction applied to “all circumstantial evidence.” In the key passage, the trial judge told the jury that in relation to all circumstantial evidence, guilt was not to be inferred unless the evidence was consistent with guilt and inconsistent with any other reasonable conclusion. These instructions track the approach set out by the Supreme Court in Villaroman. As Cromwell J. stated at para. 30:
[I]n a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences.
[100] If the appellant were right – if the jury would not have understood how to properly approach circumstantial evidence – one would have expected an objection on a matter so fundamental to this case. Again, the absence of the objection demonstrates defence counsel’s view that the instruction as given, albeit in the context of the post-offence conduct instruction, was sufficient.
The trial judge did not err by failing to prevent the Crown from inviting the jury to speculate and shifting the onus of proof
[101] The appellant argues that deficiencies in the charge concerning circumstantial evidence were compounded by Crown counsel’s invitation to the jury to speculate on several matters. The appellant submits that the Crown invited speculation by suggesting:
- the appellant likely had help in moving the bodies;
- the appellant had gone to the bank on Friday to withdraw funds;
- Bill’s hairpiece would likely have limited the blood splatter;
- Bill was likely killed outside at the farm and evidence had melted away into the gravel and dirt; and
- the degree of force used to kill Bill suggested an attack fueled by anger rather than murder by a stranger.
[102] The appellant argues that by inviting speculation in a circumstantial case, the Crown shifted the burden onto the appellant to prove the opposite of what the Crown suggested the jury should conclude. Crown counsel also shifted the burden by suggesting that there was no evidence of anyone else with a motive to kill Bill and Rhonda; that rarely are people murdered for no reason; and by telling the jury there was no other explanation for Rhonda’s blood being found on the floor in drive shed #1. The trial judge erred, the appellant submits, in not reiterating that the appellant did not have to prove anything.
[103] I would reject this submission.
[104] The appellant’s argument overlooks the distinction between speculation and inferences. Admittedly, the distinction can be difficult to draw, but there is a distinction and it is relevant here.
[105] The Crown was entitled to invite the jury to draw reasonable inferences based on evidence the jury was entitled to accept. For example, Gerald Patterson gave evidence that on January 16, 1998 at around 12:00 p.m., he saw a woman he subsequently identified as Rhonda arguing with a man in a red pickup truck that had a gas tank on the back. The appellant owned a red pickup truck with a gas tank on the back. Patterson saw Rhonda get into the truck with the man and drive off. This was the last time she was seen alive.
[106] Lorie Bunker attended the Staples farm that same day at about 2:30 p.m. to deliver Avon products to Rhonda. No one answered the door. The jury was entitled to accept this evidence and to infer that Rhonda had been killed by this time. The inference that she had been killed was further supported by the large bloodstain found in shed #1 – Rhonda’s blood, albeit that the date of the bloodstain could not be determined.
[107] Acceptance of this evidence and the drawing of the inferences suggested by the Crown supports further inferences concerning the killing of Bill, for it was reasonable to infer that the same person killed both Bill and Rhonda. The appellant’s motive extended to both victims: he stood to inherit Rhonda’s share of Bill’s estate. Although there was evidence from one witness, Angela Jessop, that the appellant was at Mulligan’s on the night of January 16, there was evidence from several other witnesses that the appellant was not there that night and evidence that he was not there until much later in the evening. At the same time, there was evidence that the appellant was at the farm that night, when the Crown theorized that Bill was murdered and the bodies were moved.
[108] It was for the jury to decide which evidence to accept. The jury was entitled to infer that the appellant killed Bill and Rhonda and moved their bodies. This inference was supported by an extensive body of post-offence conduct evidence. The evidentiary foundation for the inference that a second person was involved in moving the bodies was a witness’s observation that he saw two vehicles leaving the farm that night. The movement of the bodies, along with the absence of any evidence of a robbery or break-in at the farm, in turn supported the inference that Bill and Rhonda were not killed by a stranger.
[109] The appellant’s argument focuses on individual pieces of evidence rather than the evidence as a whole. It ignores the larger picture the evidence painted and the inferences the jury was entitled to draw. This was indeed a circumstantial case, but it did not depend on speculation about any important matters. Although the details of the killings cannot be known with certainty, they need not be in order to sustain the convictions. The jury was properly instructed as to the presumption of innocence and the burden of proof and was reminded by the trial judge that it remained on the Crown throughout. Nothing more was required.
The trial judge did not err by failing to instruct the jury to disregard impermissible opinion evidence
[110] The appellant argues that he was prejudiced when the jury heard evidence that the appellant’s family, friends, and the community thought that he was responsible for the disappearance of Bill and Rhonda. This was inadmissible opinion evidence that went to the very issue the jury was to decide, and no instruction was given.
[111] The difficulty with this submission is that although two Crown witnesses testified as to their belief in the appellant’s guilt, their evidence was elicited in cross-examination. Further, the appellant relied on this evidence to support his argument that there was animus against him. The absence of an objection or request for an instruction confirms the conclusion that this evidence occasioned no prejudice.
The trial judge did not err in refusing to permit the appellant to lead evidence of another unsolved homicide
[112] At the outset of the trial, the appellant brought an application in accordance with R. v. O’Connor, [1995] 4 S.C.R. 411, seeking disclosure of the file concerning an ongoing murder investigation by the Hamilton Police Services. The investigation concerned the death of an elderly, relatively wealthy man, Clyde Frost, who was killed in his home on Hamilton Mountain, allegedly by blunt force trauma to the head. He was found in his vehicle, which had been parked in Toronto, several days later.
[113] The appellant argued that the murderer in the Frost case could be the murderer in the Staples case, leading to reasonable doubt as to his guilt. The trial judge dismissed the O’Connor application. He also dismissed the appellant’s application to adduce evidence of the Frost homicide as pointing to an unknown third-party suspect.
[114] The appellant argues that the trial judge held the defence to too high a standard. Although he argues that the trial judge erred in dismissing both applications, his argument focuses on the trial judge’s refusal to permit him to adduce evidence of the Frost homicide. The appellant says that there were numerous similarities between the Frost and Staples homicides. The Frost homicide was logically relevant to the identity of the killer(s) in this case, and there was an air of reality to the suggestion that the same person perpetrated both crimes. In light of the Supreme Court’s decision in R. v. Grant, [2015] 1 S.C.R. 475, 2015 SCC 9, the appellant should have been permitted to lead evidence of the Frost homicide.
[115] This submission must be rejected. Although the trial judge’s decision was made prior to Grant, that case does not alter the result in this one. The Supreme Court made clear in Grant that when the third-party suspect is unknown, there must be a sufficient factual foundation for a properly instructed jury to give effect to the defence. The Court stated, at para. 45:
Where the defence’s theory is that an unknown third party committed the indicted crime, this factual foundation will be established by a sufficient connection between the crime for which the accused is charged and the allegedly similar incident(s), coupled with the impossibility that the accused committed the other offence.
[116] If this foundation is established, relevant evidence will be excluded only if its prejudicial effect substantially outweighs its probative value: Grant, at para. 46.
[117] The trial judge found no sufficient connection between the Frost and Staples murders to give the unknown suspect defence an air of reality – no evidence to suggest a random killer in either case. The evidence in the Frost murder suggested that he was targeted by persons he knew.
[118] The appellant cites a list of similarities between the Staples and Frost murders and invites this court to make a different assessment of the evidence. That is not this court’s function on appeal. It was for the trial judge to consider the evidence and make the determination as to the sufficiency of the evidence. His finding is entitled to deference.
[119] Finally, although there was no suggestion by the Crown that the appellant had committed the Frost murder, the trial judge found that he could not be ruled out as a suspect. The appellant argues that Grant cannot be read as establishing a burden on an accused to establish that he did not commit the other murder, but there is no need to address this issue. The bottom line is that the trial judge found no air of reality to the unknown third-party suspect defence. He made no error in doing so and there is no basis to interfere with his finding.
The verdict was not unreasonable
[120] The appellant’s argument in this regard is brief. The appellant submits that there was a paucity of evidence in this case and no forensic evidence linking him to the homicides. The appellant then reiterates a number of arguments addressed above and submits that the verdict was unreasonable.
[121] It is well established that a verdict is unreasonable only if it is one that a properly instructed jury, acting judicially, could not reasonably have rendered: see e.g., R. v. W.H., [2013] 2 S.C.R. 180, 2013 SCC 22. Where a verdict rests wholly or substantially on circumstantial evidence, appellate courts must ask whether the trier of fact, acting judicially, could reasonably be satisfied that the guilt of the accused was the only reasonable conclusion available on the evidence taken as a whole: R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 39. As Watt J.A. said in R. v. Chacon-Perez, 2022 ONCA 3, at para. 80:
The circumstantial evidence does not have to totally exclude other “conceivable inferences”. Nor is a verdict unreasonable simply because the alternatives did not cause a doubt in the jury’s mind. It remains fundamentally for the trier of fact to decide whether any proposed alternative way of looking at the case was reasonable enough to raise a doubt: Villaroman, at para. 56.
[122] The sole issue in this case was the identity of the killer. Although the case against the appellant was circumstantial, the body of circumstantial evidence implicating him in the murders was substantial. I have already discussed this evidence. I summarize it here in broad compass:
- strong motive established by extensive evidence of the appellant’s financial difficulties;
- Bill’s unwillingness to provide further financial assistance to the appellant;
- the appellant was the main heir to Bill’s estate in the event that Rhonda was killed;
- the appellant was the last person seen with Rhonda prior to her death;
- a large bloodstain found in drive shed #1 was Rhonda’s blood;
- the appellant had the opportunity to kill Bill and Rhonda; and
- the appellant was in control of Bill’s farm and there was evidence that he had engaged in a cleanup operation subsequent to the killings.
[123] As in Chacon-Perez, it was for the jury to determine whether the cumulative effect of this evidence – not simply its individual parts considered in isolation – excluded inferences other than guilt. To be sure, there were important conflicts in the evidence the jury had to resolve, but the jury was entitled to accept the evidence that permitted the inferences the Crown invited them to draw.
[124] I conclude that the jury, acting judicially, could have been satisfied that the guilt of the appellant was the only reasonable conclusion available on the evidence considered as a whole.
CONCLUSION
[125] I would dismiss the appeal.
Released: April 1, 2022 “J.M.F.” “Grant Huscroft J.A.” “I agree. Fairburn A.C.J.O.” “I agree. Paul Rouleau J.A.”
