COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Boucher, 2022 ONCA 40

DATE: 20220120

DOCKET: C65137

Watt, Benotto and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Boucher

Appellant

Richard Posner and Alexander Ostroff, for the appellant

Jennifer Trehearne, for the respondent

Heard: May 20, 2021 by video conference

On appeal from the conviction entered by Justice Ian A. MacDonnell of the Superior Court of Justice, sitting with a jury, on June 14, 2017.

Watt J.A.:

[1] Scott Savoy had a business. He operated his business from his home, a basement apartment. His customers came to his place of business. At all hours of the day and night. They bought what he had for sale. Crack cocaine.

[2] Scott Savoy was careful in his business dealings. About whom he admitted to his apartment. And to whom he sold crack cocaine.

[3] Jason Boucher was a customer of Scott Savoy. He bought crack cocaine from Mr. Savoy. On occasion, they partied together in the basement apartment. Smoking and drinking.

[4] Early one February morning several years ago, Scott Savoy died in his apartment. He died because someone had beaten and strangled him. Jason Boucher was the last person seen with Scott Savoy when Mr. Savoy was last seen alive.

[5] A jury found Jason Boucher guilty of second degree murder arising out of the death of Scott Savoy.

[6] Jason Boucher appeals his conviction. These reasons explain why I have concluded that his appeal should be dismissed and his conviction affirmed.

The Background Facts

[7] The central issue at the appellant’s trial was the identity of the deceased’s killer. It was common ground at trial that the deceased was killed early in the morning of February 1, 2015. No one gave direct evidence about the circumstances in which the deceased was killed. The case for the Crown consisted of evidence of:

i. opportunity;

ii. statements made by the appellant during recorded interviews with investigators;

iii. after-the-fact conduct; and

iv. a bloodstain containing the deceased’s blood on the appellant’s coat sleeve.

[8] The position of the defence at trial was that some unknown person had been admitted to the deceased’s apartment and killed the deceased while the appellant was passed out from the effects of alcohol and drug consumption.

[9] The appellant did not testify at trial, nor call any witnesses in his defence.

[10] An overview of the evidence adduced at trial will furnish the background necessary to understand the grounds of appeal advanced and how I propose that they be resolved.

The Principals and Their Relationship

[11] The deceased lived in the basement apartment of a house owned by a married couple who occupied the other floors of the residence with their two adult sons. The deceased’s mobility was restricted. Sometimes, he used crutches or a cane to move around. He had an electric scooter he used outside to travel longer distances. Friends often took him shopping and to various appointments. He was awaiting a hip transplant when he was killed.

[12] In addition to his trafficking business, the deceased abused alcohol and drugs, including crack cocaine and fentanyl. Often, he drank, got high, and socialized with his friends in his apartment.

[13] The appellant was also addicted to alcohol and drugs. He bought drugs from the deceased, who, on occasion, would front the appellant the drugs and collect payment later. Despite his addictions, the appellant worked at a body shop, often under the influence of drugs. He and the deceased were friends.

The Drug Business

[14] The deceased’s place of business, his basement apartment, was accessible from the exterior of the house through a set of double doors on the side of the house. These doors gave access to a foyer where the deceased kept his electric scooter. A set of stairs led from the foyer to the main floor in the house. And a second set of stairs led to the basement.

[15] The deceased’s apartment was generally organized with everything in its place. He kept his drugs and money in different hiding places throughout the apartment. He often misplaced his drugs and his cash. This annoyed the deceased who would frequently accuse his guests of theft, only to find what he was looking for later where he had left it earlier.

[16] The deceased kept the door to his apartment and the exterior double doors locked. He always verified the identity of anyone who came to the exterior doors of the house. Either he or a friend would go upstairs to determine who was outside. The deceased’s business had no fixed hours of operation. Purchasers could bang on the doors at any time of the day or night. On weekdays and on weekends. Residents upstairs would often hear loud voices, of people, including the deceased, yelling in his apartment. And of some visitors being thrown out of the apartment.

The Furnace Repair

[17] During the morning of January 31, 2015, the adult sons of the homeowners entered the deceased’s apartment to fix the furnace. Other men were in or arrived at the apartment while the furnace repairs progressed. When someone came to the outside door, the deceased walked upstairs and admitted the visitors to his apartment.

More Visitors

[18] Around 6 p.m., Kerry Burnett, a friend of the deceased, came to the apartment. She cooked dinner for the deceased and socialized with him. Another woman, who was already in the apartment, admitted Ms. Burnett. At twenty-minute intervals, more drug purchasers would arrive. Each would stay a few minutes, smoke a “puff”, then leave the apartment.

[19] Around 11:30 p.m. or midnight, the appellant and two others arrived at the deceased’s apartment. They brought some beer with them. The appellant repaid the deceased money that he owed him and bought more drugs from him. The men smoked, drank beer, and socialized with the deceased. The appellant’s companions left about 30 minutes or an hour after they had arrived. Nobody else came into the apartment.

The Last Visitor

[20] Around 1:30 or 1:45 a.m., Kerry Burnett called a taxi to take her home. The appellant escorted her upstairs and locked the door as she left. The only persons left in the apartment when Ms. Burnett departed were the appellant and the deceased.

[21] No one saw, spoke to, or heard from the deceased again.

The Rent Collectors

[22] At different times over the next two days, the adult sons of the owners of the house where the deceased lived tried to collect the monthly rent from the deceased. No one answered the door. On February 1, 2015, when they were outside shovelling snow, the brothers noticed that the double doors had blown open. They locked them from the inside.

The Friends’ Inquiries

[23] Later the same day, a friend of the deceased knocked on the door at the side of the house. He had brought a sandwich for the deceased. No one answered the door. He left the sandwich inside a barbeque that was outdoors. He called the deceased’s cellphone, but his call was directed to voicemail. The same friend returned the following day with another friend. Again, no answer at the door. The sandwich remained in the barbeque.

Finding the Body

[24] The deceased was scheduled to have hip surgery on February 4, 2015. Two of his friends went over to his apartment that day. Unable to get any response to their knocks, they persuaded the owners’ sons to break open the outside and inside doors. The deceased was on the kitchen floor, a bit of blood under his head. Footprints were visible on the floor. The apartment was uncharacteristically messy. Part of the couch had been ripped open.

[25] One of the landlords’ sons called 911 and began CPR. The deceased’s shirt was already moved upward on his chest.

The Scene

[26] First responders found the deceased lying faceup on the kitchen floor. Red marks were apparent on his neck as was blood in his left ear. Two crackpipes sat on a table, beer cans and Gatorade containers were strewn on the floor. Police found no money, except for a few coins. No drugs. And no keys. The apartment was in disarray. Furniture had been knocked over and couch cushions pulled up. A photograph had been crumpled and torn.

The Footwear Impressions

[27] The lead forensic investigator, Det. Cst. Greavette, found several footwear impressions on the kitchen floor. Some could be seen with the naked eye, others required the application of powder or a reagent to make them visible. Two of the eight footwear impressions had been made when wet blood on the bottom of a pair of shoes had come into contact with the floor. One of these impressions was close to the body of the deceased, the other further away. No evidence was given about the state of the blood on the floor when the body was discovered. On previous days, it had snowed.

[28] Several people were in the deceased’s apartment after the 911 call. Paramedics. Police officers. The deceased’s friends and the landlords’ sons who discovered the body. And later, the coroner, pathologist, and body removal personnel. Police obtained impressions of the footwear worn by some but not all of those who attended. By comparison to the impressions on the floor, police eliminated first responders and investigators as the source of the impressions.

[29] Forensic analysis could not determine the size of the shoe that left the impression, nor whether it was a complete or only partial image. The appellant provided police with the shoes he said he had been wearing at the deceased’s apartment. Those shoes did not create the bloody impressions on the kitchen floor.

[30] The forensic pathologist who conducted the post-mortem on the deceased noticed some parallel lines on the deceased’s neck. The pattern was similar to the tread pattern on the footwear impression in blood on the floor. But any pattern with the same number of parallel lines could be similar.

The Cause of Death

[31] The deceased died from blunt force injury and manual strangulation. During the attack leading to his death, blood from the deceased would be transferred to his assailant. A drop of the deceased’s blood was found on the appellant’s coat sleeve. Blood can be transferred during CPR.

The Appellant Calls the Police

[32] On February 9, 2015, eight days after the deceased was killed, the appellant called the police. He left a voicemail message for one of the investigating officers. The appellant identified himself and the deceased and left a phone number at which the officer could reach him. The appellant said he wanted to meet the officer. He explained that he had “a lot of pertinent information” about the death of the deceased because he had been there, although he was not sure that he was involved.

[33] About a half hour later, the appellant called again. He spoke to another officer. He told her that he woke up at the deceased’s place. He had been the last to leave. He presumed the deceased was dead and that he (the appellant) was involved. The appellant explained that he was going to his father’s place to say goodbye. He wanted to meet the police at a McDonald’s restaurant at 2:30 p.m. that afternoon.

The Meeting at McDonald’s

[34] Two police officers met the appellant at McDonald’s. They bought him some food and spoke with him. The officers then drove the appellant back to 41 Division where he participated in a videotaped interview with one of the investigating officers.

[35] On the way from McDonald’s to 41 Division, the appellant told the officers that he had been “there that night” and was “pretty sure” that he was involved, even though he couldn’t remember “a lot”. He explained that when he gets drunk, he does “stupid shit”. He said that he was prepared to make “a full and honest confession” about what he’d done in his life and what he’d done “regarding the events” that he was being questioned about.

[36] The escorting officers cautioned the appellant that he could be charged with murder. He responded “I am a hundred percent certain, regardless of any memory or anything else, I’m pretty sure I’m guilty of the charges that are presented in front of me and the charges that I’m facing, whether my recollection is great or not”. He claimed not to remember what had occurred and provided no details of any events that resulted in the death of the deceased.

The Appellant’s Version of Events

[37] About an hour after he had met police at McDonald’s, the appellant was interviewed at 41 Division by D/S Ryan, the officer for whom he had left his original message. The appellant confirmed that he had been on a bender since he had finished work on the preceding Friday. He had consumed large quantities of alcohol and drugs, including that morning prior to meeting police at McDonald’s. He repeated what he told officers earlier about suffering from a serious ear infection that required treatment.

[38] The appellant provided a lengthy, rambling and, at times, disjointed account to D/S Ryan. He repeatedly talked over the officer despite the officer’s persistent attempts to ask questions. In essence, the appellant’s account was that he had passed out after drinking and taking drugs with the deceased. When he woke up the following morning, the deceased was dead. The appellant realized that he was “involved”, but did not know what, if anything, he had done. The appellant referred to his narrative at different times as “recollections”, “dreams”, and “images”, but declined to disclose their content.

[39] The appellant told D/S Ryan that, when he woke up, he saw the deceased lying dead on the kitchen floor. He thought the deceased might have died from a drug overdose. He claimed to have checked the deceased’s neck and wrist for vital signs and attempted CPR without success.

[40] At the end of the interview with D/S Ryan, the appellant was arrested on a charge of second degree murder. Shortly thereafter, officers took the appellant to a local hospital. There, a doctor removed a piece of black rubber from an earbud that had been embedded in the appellant’s ear. The appellant also received Valium to manage his high and to alleviate the effects of drug withdrawal.

[41] Police escorted the appellant from the hospital back to 41 Division after the removal of the earbud component from his ear and the dosage of Valium. A second police officer from the Homicide Squad interviewed the appellant. The interview, like that with D/S Ryan, was video recorded.

[42] The appellant told Det. Singh that he and his stepbrother, Paul Duck, went to the deceased’s apartment a couple of times on January 31, 2015. They had been on a drug and alcohol bender from the previous day. During one of their visits, the deceased’s landlord was repairing the furnace. The appellant owed the deceased $80 for drugs the deceased had sold him earlier. The appellant wanted to buy more crack cocaine. He, Duck and a friend of Duck’s returned to the deceased’s apartment later. They brought a case of beer. The appellant paid the deceased the money he owed him, together with $20 in interest, and bought more crack cocaine. He smoked crack cocaine and drank some vodka and tall boy cans of beer. The appellant remained after Duck and his friend left so that he (the appellant) could “hook up” with Ms. Burnett who was also there.

[43] The appellant told the police that the deceased’s drug dealer showed up to collect payment. At first, the deceased could not find his money or drugs. When he found them, the deceased paid what he owed and the dealer left. The appellant, the deceased and Ms. Burnett then smoked more crack cocaine in the stairwell. The appellant wanted to leave when Ms. Burnett left, but the deceased persuaded him to stay in case the dealer returned. Later, according to the appellant, the deceased had another tantrum when he couldn’t find his drugs. He accused the appellant and Ms. Burnett of stealing them. They “tore his place apart” before the deceased found the drugs in the room where he kept his scooter. The deceased cut a chunk from his supply for the appellant, another for someone who “was on her way over”.

[44] After he consumed some more alcohol and drugs, the appellant told police that he passed out on the deceased’s sofa. When he awakened at 6 a.m., the appellant drank some vodka and “smoked a blast” of crack cocaine. He headed towards the kitchen where he saw the deceased lying on his back wearing only his shirt and underwear. The deceased’s head and face were purple, his tongue was sticking out, and he was not breathing. The appellant thought the deceased had overdosed. He drank some more beer and vodka, did a few “blasts” of crack cocaine and left. He locked the apartment door, left the key on the stairs next to the scooter, and left.

The Forensic Evidence

[45] Forensic investigators did not find the appellant’s DNA under the deceased’s fingernails, nor the deceased’s DNA on the appellant or his clothing except for a drop a blood from the deceased on the sleeve of the appellant’s jacket. The appellant told police that he had only three sets of Lululemon clothing and two pairs of shoes. He wore one set of clothing when he met the police and brought the other two sets with him to their meeting eight days after the deceased was killed. Apart from the shoes that he was wearing, which did not match the footwear impressions on the floor in the deceased’s kitchen, the appellant said his only other footwear was his work boots.

The After-the-Fact Conduct

[46] The appellant explained to investigators that, after he found the deceased dead on the floor in his kitchen, he drank some of the deceased’s alcohol and smoked some of his crack cocaine. The appellant did not call 911. Instead, he left the apartment, locked the door behind him, and disposed of the key. He called the police eight days later.

Grounds of Appeal

[47] The appellant advances five grounds of appeal that he submits warrant a new trial. He says that:

i. the trial judge erred in failing to give the jury a modified W.(D.) instruction about the exculpatory effect of evidence of the footwear impression and the neck injury;

ii. the trial judge erred in failing to correct improprieties in the trial Crown’s closing address which invited the jury to speculate in concluding guilt had been established;

iii. the trial judge erred in admitting the appellant’s references to dreams, flashbacks, recollections, and images in his police interviews;

iv. the trial judge erred in his instructions to the jury on the evidentiary value of the appellant’s dreams; and

v. the jury’s verdict is unreasonable.

Ground #1: The W.(D.) Instruction

[48] The first ground of appeal alleges non-direction about footwear impression evidence received at trial. A brief summary about some features of that evidence, coupled with a reference to the positions of the parties at trial, will provide the background necessary to evaluate the merits of the claim.

The Evidence in Issue

[49] The deceased’s body was lying on the kitchen floor of his apartment. On the same floor, two impressions created by wet blood transferred from the soles of shoes were detected and examined. One impression was adjacent to the deceased’s body, the other, further away. The impressions had been left at or around the time the deceased was killed. Several persons were in and out of the apartment when and after the body was found. No one gave evidence about the state of the blood (wet, dry, or drying) at the time. Although police examined and eliminated the footwear worn by many who were present, all of the footwear was not examined. The shoes the appellant told police that he was wearing the night the deceased was killed were eliminated as the source of the footwear impressions. The size of the shoe that made the two impressions could not be determined.

[50] A pattern of parallel lines also appeared on the deceased’s neck. The pattern was similar to that in the footwear impression on the kitchen floor. But there was nothing unique about either pattern. The forensic pathologist, who conducted the post-mortem examination of the deceased and had visited the deceased’s apartment, considered that any parallel impression could be similar to the pattern he saw on the deceased’s neck.

The Positions of the Parties at Trial

[51] The trial judge distributed drafts of his proposed charge to counsel. He sought their input about its contents. Neither Crown nor defence counsel made any complaint about the proposed instructions on the evidence of footwear impressions.

[52] The trial judge’s final instructions extended over parts of two days. As the judge was about to begin on the second day, defence counsel (not counsel on appeal) asked the trial judge to include “a W.(D.) instruction on the footwear impressions”. Counsel asked that the trial judge direct the jury that if they found that the footwear impressions had been made by the deceased’s killer, or had a reasonable doubt on that issue, the appellant should be found not guilty.

[53] The trial judge discussed the request with counsel. He declined to give the instruction. The trial judge pointed out that the W.(D.) instruction referred to the evidence as a whole, not to individual items of evidence. In addition, he was satisfied that the balance of the charge was sufficient to ensure the jury’s appreciation of the consequences of a reasonable doubt about the appellant as the source of the footwear impressions.

The Arguments on Appeal

[54] The appellant begins by pointing out that the trial judge gave a W.(D.) instruction concerning the exculpatory parts of the appellant’s police interviews. He told the jury that if they had a reasonable doubt about the truth of the appellant’s disclaimers of responsibility, they should find the appellant not guilty. The trial judge should have given the same instruction when asked to do so in connection with the equally exculpatory footwear impression evidence.

[55] The authorities establish that the principles in W.(D.) extend to exculpatory or potentially exculpatory evidence from sources other than an accused where credibility findings are required. It follows, according to the appellant, that a modified W.(D.) instruction becomes essential where, on a vital issue, the jury is required to make findings of credibility or reliability on conflicting evidence.

[56] In this case, the appellant continues, the footwear impression evidence was relevant to the central issue at trial, the identity of the killer. And the evidence was exculpatory. The impressions were left at the time of the killing. No evidence was given that the blood remained wet when the body was found. The similarities between the impressions on the floor and those on the deceased’s neck were a “robust indicator” that the same person – the killer – left both. And this was not the appellant. Even if he had discarded his shoes, the size differential between his shoe size and the dimensions of the impressions made it clear that he was not their author.

[57] The appellant contends that the omission of the direction requested created a substantial risk that the jury would approach its task in an all or nothing manner. Even if the jury did not believe this evidence, it could have raised a reasonable doubt about the appellant’s guilt. Yet, without a direction pointing this out, this is not the kind of reasoning jurors would apply. The failure to provide the instruction was a serious legal error requiring direction of a new trial.

[58] The respondent supports the trial judge’s conclusion that the requested instruction, raised for the first-time mid-charge, was not required. A W.(D.) instruction ensures that the jury understands the relationship between credibility and proof beyond a reasonable doubt. As trial counsel conceded, no issue of credibility arose in connection with the footwear impression evidence. The only issue of credibility was whether the jury believed the appellant’s claim that he turned over the shoes he was actually wearing when the deceased died. And the trial judge gave a W.(D.) instruction on the appellant’s credibility.

[59] The issue on which trial counsel sought a modified W.(D.) instruction was not a vital issue. A finding in the appellant’s favour did not require an acquittal. Even if the jury found or had a reasonable doubt whether the footwear impressions were made by the perpetrator, there remained a body of evidence that casts substantial doubt on the appellant’s claim that he turned over the relevant footwear to police.

[60] In addition, the respondent says the argument advanced here was not what was urged at trial, which fastened exclusively on the footwear impressions on the kitchen floor. The issue raised here is equally not one involving credibility, thus implicating the need for a W.(D.) instruction. Further, such an instruction would have the effect of isolating this item of evidence and subjecting it, rather than the evidence as a whole, to the legal standard of proof.

[61] The respondent argues that the charge, taken as a whole, made clear to the jury the burden and standard of proof and the relationship between credibility and proof beyond a reasonable doubt. The charge explained that the standard of proof beyond a reasonable doubt applied to the evidence as a whole, not to individual items of evidence. What had to be established beyond a reasonable doubt before a finding of guilt could be made was the essential elements of the offence charged, second degree murder. The trial judge repeated the W.(D.) formula twice in connection with the appellant’s exculpatory statements during his police interviews. Further, the trial judge pointed out the circumstantial nature of the case for the Crown and the requirement that the appellant’s guilt must be the only reasonable inference available from that evidence before a finding of guilt could be made. The jury was properly instructed.

The Governing Principles

[62] Several principles inform my decision on this ground of appeal. None excite controversy.

[63] To establish the guilt of an accused of an offence, the Crown must prove the accused committed the essential elements of that offence beyond a reasonable doubt: R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at pp. 361-362; R. v. D.(B.), 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 96. Nothing more is required. But nothing less will do.

[64] To determine whether the Crown has proven the essential elements of an offence beyond a reasonable doubt, the trier of fact considers the whole of the evidence. It is the whole of the evidence that must meet the standard of proof settled upon the Crown. Not individual items of evidence. The jury is not to examine the individual items of evidence piecemeal by reference to the criminal standard of proof. Nor is the jury to apply the criminal standard of proof to each individual item of evidence. And it is legally wrong for a judge to instruct them to do either: Morin, at p. 354; R. v. Stewart, 1976 CanLII 202 (SCC), [1977] 2 S.C.R. 748, at pp. 759-761; R. v. Ménard, 1998 CanLII 790 (SCC), [1998] 2 S.C.R. 109, at para. 23; R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at paras. 56-57; Thomas v. The Queen, [1972] NZLR 34 (C.A.), at pp. 36, 37.

[65] Sometimes, issues of credibility arise between evidence tendered by the Crown and that tendered or relied upon by the defence. Where credibility is an essential issue in a jury trial, the judge must explain the relationship between the assessment of credibility and the ultimate burden of the Crown to prove the guilt of the accused to the criminal standard of proof. It is uncontroversial that a general instruction on reasonable doubt that pays no heed to its relationship to credibility, or the lack of credibility of the witnesses, leaves open too great a possibility of confusion or misunderstanding: R. v. S.(J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 8.

[66] The well-known formula in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at pp. 757-758, unpacks for the benefit of a jury what reasonable doubt means in the context of evaluating conflicting testimonial accounts. This alerts the jury to the “credibility contest” error. The teaching of W.(D.) for trial judges is that they are required to impress on the jury that the burden never shifts from the Crown to prove every element of the offence, but no more, beyond a reasonable doubt: S.(J.H.), at para. 9.

[67] The message from W.(D.) is straightforward. A trial judge must make it crystal clear to the jury that the burden of proof never shifts from the Crown to prove every essential element of the offence beyond a reasonable doubt: S.(J.H.), at para. 13. In any case where credibility is important, the trial judge must ensure not to leave the jury with the impression that, to make its decision, it had (simply) to choose between competing versions of events. Nothing said or left unsaid should leave the impression with the jury that an accused’s lack of credibility is the equivalent of proof of guilt beyond a reasonable doubt: S.(J.H.), at para. 13, citing R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, at para. 19.

[68] Of importance in assessing the applicability of W.(D.) are the opening words of one of its critical passages:

In a case where credibility is important…

Sometimes, credibility is not important, as where no one questions the sincerity of the relevant defence evidence. Thus the need for a W.(D.) instruction is questionable: R. v. McClenaghan, 2010 ABCA 222, 258 C.C.C. (3d) 178, at paras. 26, 29, 31, leave to appeal refused, [2010] S.C.C.A. No. 353.

[69] A trial judge is not required to relate their instructions on reasonable doubt to specific pieces of evidence. It is of no moment whether the evidence is consistent with the defence or Crown’s theory of the case. A thorough instruction on reasonable doubt and a direction on the approach to circumstantial evidence may meet what is required: R. v. R.(M.) (2005), 2005 CanLII 5845 (ON CA), 195 C.C.C. (3d) 26 (Ont. C.A.), at para. 46.

[70] In D.(B.) the appellant challenged her conviction of incest on the ground that the trial judge had erred in failing to give a modified W.(D.) instruction where there was conflicting testimony between Crown and defence witnesses. The specific error alleged was a failure to relate the burden of proof to exculpatory evidence adduced on behalf of the appellant. The exculpatory evidence was the testimony of the appellant’s son who testified that the appellant’s co-accused was his stepfather, not his brother (thus not the appellant’s son) as alleged by the Crown. In other words, the evidence on both sides was testimonial. Credibility determinations were in play.

[71] The D.(B.) court reiterated the basic principle that the standard of proof beyond a reasonable doubt is not to be applied piecemeal to individual or categories of evidence, rather to the evidence as a whole: D.(B.), at para. 96. The Crown is not required to prove or disprove beyond a reasonable doubt any single fact, or any item of evidence, unless that fact or item of evidence is an essential element of the offence or of a defence. Different considerations emerge when conflicting evidence is adduced on an essential element and the jury must make credibility findings about that conflicting evidence: D.(B.), at para. 96.

[72] The circumstances in D.(B.) involves sworn testimony by a defence witness who contradicted the testimony of witnesses called for the Crown. The court extended the principles of W.(D.) beyond the paradigmatic he/she said cases, to cases in which the accused does not testify but other defence evidence is adduced contradicting the case for the Crown and/or conflicting evidence favourable to the defence emerges in the Crown’s case and the jury must make credibility findings as a result: D.(B.), at para. 105. The court concluded that where, on a vital issue, credibility findings are required between conflicting evidence called by the defence, or arising out of evidence favourable to the defence in the case for the Crown, the trial judge must relate the concept of reasonable of doubt to those credibility findings. The instructions must make it clear that the jury does not have to believe the defence evidence on the vital issue. If the conflicting evidence leaves the jury with a reasonable doubt about the accused’s guilt, the jury must return a verdict of not guilty: D.(B.), at para. 114.

The Principles Applied

[73] As I will explain, I would not give effect to this ground of appeal.

[74] The principal issue for the jury to determine at the appellant’s trial was whether the Crown had proven beyond a reasonable doubt that it was the appellant who killed the deceased. The case for the Crown consisted of several strands of circumstantial evidence. Among those strands was evidence that, by his own admission, the appellant was the last person seen with the deceased when the deceased was last seen alive, in the place where the deceased was killed, and was also there alone when the deceased was found dead. On its own, this can be powerful evidence pointing to the appellant as the deceased’s killer. In addition, expert evidence identified a drop of the deceased’s blood on the sleeve of the appellant’s clothing. Evidence of after-the-fact conduct disclosed that the appellant did not call 911, locked the deceased’s apartment from the outside with a key, and, it could be inferred, got rid of the key.

[75] The defence position at trial was a denial of any involvement in the killing. The appellant relied upon some portions of his police interviews conducted on and after his arrest. He also invoked evidence about a footwear impression found in blood on the floor in the kitchen where the body of the deceased was also found. This impression did not match the tread pattern on the shoes the appellant told police eight days later that he was wearing the night the deceased was killed. That there was not a match was not contested at trial although the evidence did not indicate whether the impression observed was a full or only a partial impression.

[76] The appellant’s position at trial, repeated here in terms not advanced at trial, was that this footwear impression evidence was exculpatory, relevant to the vital issue of identity, and should have attracted a W.(D.) instruction on its own.

[77] The criminal standard of proof applies to the evidence taken as a whole, not to individual items of evidence taken in isolation from the balance of the evidence. It follows from this foundational principle that it is wrong for a trial judge to instruct a jury, in express terms or by necessary implication, that they are to scrutinize individual items of evidence individually and apart from the rest and are to apply the criminal standard of proof to each item and acquit if the evidence falls short of that standard. Instructions along these lines are wrong for two reasons. The standard of proof applies to the evidence taken as a whole, which is often greater than the sum of its individual parts, not to individual items of evidence few if any of which could meet such a standard. Second, while a jury should be instructed to consider each piece of evidence carefully, a case is not decided by a series of separate and exclusive judgments on each item of evidence. Nor is it decided by asking what does that item of evidence prove, or does it prove guilt. It is the cumulative effect of the evidence that requires evaluation and assessment in light of the criminal standard of proof.

[78] As a matter of general principle, it is wrong for a trial judge to invite a jury to apply the criminal standard of proof to an individual item of evidence and to acquit if that evidence fails to prove guilt beyond a reasonable doubt where that item of evidence is not dispositive of guilt or proof of an essential element of the offence charged.

[79] In this case, the first issue the trial judge framed for the jury to decide was whether the appellant caused the death of the deceased. After defining the issue and explaining what the Crown had to establish beyond a reasonable doubt to prove it, the trial judge reviewed the essential features of the evidence that were relevant to the jury’s decision on that issue. The evidentiary catalogue included the appellant’s denials in the recorded police interviews and the forensic evidence eliminating the appellant’s shoes as the source of the bloodied footwear impressions. The trial judge left this issue of participation or authorship to the jury, explaining the consequences of the findings available to them, including that which followed a reasonable doubt on the issue – a finding of not guilty.

[80] From these instructions, the jury would understand their obligation to consider the evidence as a whole in deciding whether the Crown had proven beyond a reasonable doubt that the appellant killed the deceased. In addition, the jury would understand that among the items of evidence that were relevant to their decision, thus to whether the Crown had proven this essential element of the offence beyond a reasonable doubt, was the evidence that excluded the appellant’s footwear as the source of the bloodied footwear impression. And they would also understand that a reasonable doubt arising from this evidence as a whole required them to find the appellant not guilty.

[81] In this case, I am satisfied that the trial judge’s instructions to the jury were sufficient as they were given to apprise the jury about the impact of the footwear impression evidence on their decision on the threshold issue of whether the Crown had proven beyond a reasonable doubt that the appellant killed the deceased.

[82] The authorities the appellant invokes in support of his submission that a discrete W.(D.) instruction was required for the footwear impression evidence are readily distinguishable and of no assistance in these circumstances.

[83] The authorities the appellant summons require a W.(D.) instruction where, on a vital issue, credibility findings are required between conflicting evidence called by the defence or arising out of the case for the Crown favourable to the defence. It is in these circumstances that the trial judge must relate the concept of reasonable doubt to these credibility findings to ensure that the jury understands that they need not believe the defence evidence on that vital issue. Rather it is sufficient if the conflicting evidence leaves them in a reasonable doubt on the vital issue in the context of the evidence taken as a whole.

[84] In this case, the footwear impression evidence was uncontroversial: the impressions were not created by the shoes the appellant produced for the police eight days after the deceased was killed. No credibility findings were required, except in connection with the appellant’s assertion that those were the shoes he was in fact wearing when the deceased was killed. The trial judge on at least two occasions included a W.(D.) instruction in connection with the appellant’s denial of involvement. By their verdict, the jury did not believe or have a reasonable doubt about the appellant’s denial. A further instruction related specifically to the footwear impression evidence was not required, but, even if required, would have made no difference in the result.

Ground #2: The Closing Address of the Crown

[85] This ground of appeal focuses on a single passage in the closing address of the trial Crown (not counsel on appeal). The appellant says that the trial Crown invited the jury to engage in speculative and prejudicial reasoning in reaching their verdict.

[86] A brief reference to the relevant portion of the closing address and the position of counsel at trial will provide the framework necessary to ground the discussion that follows.

The Closing Address

[87] In her closing address, the trial Crown made this submission:

Remember that Mr. Boucher had already taken steps to avoid any connection with what happened to Scott Savoy. Specifically, he did not call 9-1-1, he did not report Scott Savoy’s death at a later time, he locked the door to Scott’s apartment and then removed the keys… It’s a reasonable inference that Mr. Boucher took another step to avoid being linked to Scott’s death by getting rid of the shoes he was wearing when he killed Scott.

[88] The trial Crown relied on four instances of after-the-fact conduct as relevant evidence for the jury to consider in determining whether the Crown had established that the appellant killed the deceased:

i. the failure to call 911;

ii. the minimal, if any, effort to perform CPR;

iii. locking the apartment door and disposing of the key on leaving the apartment; and

iv. taking the deceased’s drugs and money from his apartment.

This conduct all took place on February 1, 2015, the day the deceased was killed.

The Defence Position

[89] Defence counsel urged the jury to accept the appellant’s explanation for this conduct. He did not object to or suggest any ameliorative response to the closing address of the Crown.

The Arguments on Appeal

[90] The appellant contends that the trial Crown invited the jury to speculate and engage in prejudicial reasoning. It was improper, the appellant says, for Crown counsel to invite the jury to infer the appellant destroyed evidence by getting rid of the shoes he wore at the time of the killing before arranging his meeting with the police eight days later.

[91] The submission made by the trial Crown was improper, the appellant urges, for three reasons. It was unsupported by the evidence, the product of pure speculation to fill in an evidentiary gap. It was dangerous because it had been included in the closing address. This tempted the jury to view this evidence as an additional item of after-the-fact conduct evidence relevant on the critical issue of the appellant’s responsibility for the killing. And it was unfair because the footwear evidence which counsel attacked was “powerful” exculpatory evidence due to the disparity between the size of the impression and of the appellant’s shoes. As a consequence, a miscarriage of justice occurred and can only be remedied by an order for a new trial.

[92] The respondent points out that the case for the Crown was entirely circumstantial. It included four items of evidence of after-the-fact conduct all of which took place on the day on which the deceased was killed. Defence counsel focused on the same four items and urged the jury to accept the appellant’s explanation for them as disclosed in his police interviews: the appellant was a drug addict with a criminal record and was the last person seen with the deceased when the deceased was last seen alive. Neither lawyer made a submission that the footwear evidence should be considered as evidence of after-the-fact conduct.

[93] In another part of her closing address, the respondent contends, the trial Crown argued that there were reasons to disbelieve the appellant’s claim that the shoes he turned over to police were those that he wore when the deceased was killed. The trial Crown submitted that the appellant had done or failed to do several other things to distance himself from the killing. Thus, the trial Crown submitted, it was a reasonable inference that the appellant would get rid of the shoes he wore on the date of the killing, rather than wear them to an arranged meeting with the police. All the more so, the trial Crown said, when the appellant admitted getting rid of his socks.

[94] The respondent invites our consideration of two other aspects of the trial proceedings as indicative of the absence of any actual or apparent unfairness arising from the trial Crown’s closing, thus no miscarriage of justice having occurred. Defence counsel did not object to the trial Crown’s closing address. And in the instructions to the jury on evidence of after-the-fact conduct and its relevance to the jury’s decision on the appellant’s participation in the killing of the deceased, the trial judge made no reference to disposal of the shoes. Thus, the jury would understand that the Crown was not relying on it as evidence of after-the-fact conduct on the issue of the identity of the appellant as the deceased’s killer.

The Governing Principles

[95] An improper closing address by Crown counsel is among the many trial irregularities that can affect the actual or apparent fairness of a criminal jury trial, thus cause or contribute to a miscarriage of justice. The gravity of these irregularities, among them improper closings, is a variable, not a constant. Each requires an individual evaluation according to its unique circumstances: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 74.

[96] If a trial judge concludes that an irregularity has occurred in the closing address of Crown counsel, and that irregularity has jeopardized the actual or apparent fairness of the trial, the trial judge must consider all the circumstances. This requires a balancing of the interests of the accused against several other considerations, among them, the public interest: R. v. Al-Enzi, 2014 ONCA 569, 121 O.R. (3d) 583, at para. 63.

[97] The remedies available to a trial judge when an irregularity such as an improper closing by Crown counsel occurs at a jury trial vary according to the nature and quality of the error or combination of errors. The trial judge is in a privileged position in choosing the appropriate remedy. In most situations, an irregularity in a closing address may be remedied by a limiting instruction: R. v. Rose, 1998 CanLII 768 (SCC), [1998] 3 S.C.R. 262, at para. 125. Although the discretion about remedial choice is not absolute, the decision is owed significant deference and is not to be routinely second-guessed on appeal: Al-Enzi, at para. 64.

[98] An important factor in our ex post facto evaluation of what is now said to have been a fatal wounding of the fairness of the trial proceedings is the position of defence counsel when the source of the alleged unfairness arose: Khan, at para. 85. The failure of experienced defence counsel to object to a trial event now said to have compromised the actual and apparent fairness of the trial may toll heavily against the claim of unfairness viewed through the lens of an adverse verdict.

[99] The subject-matter of the trial Crown’s submission – the destruction or disposal of evidence linking the appellant to the killing – is evidence of after-the-fact conduct. Circumstantial evidence of after-the-fact conduct may assist in proof of an accused’s participation in a prior offence. It is also relevant to impugn the credibility of the accused: R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 39, citing White, at para. 26; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 154.

The Principles Applied

[100] In combination, several reasons persuade me that this ground of appeal cannot be sustained.

[101] To begin, I am not satisfied that the submission about which the appellant complains invokes speculative reasoning and, as a result, was improper.

[102] The line between inference and speculation is often not readily identifiable. What one would characterize as speculation, another would assess as inference. In this case, the appellant was the last person with the deceased when the deceased was last seen alive. The deceased was killed at that place when the appellant was present. No sign of forced entry was apparent until those who came to check on him broke in. Footwear impressions in blood were visible on the floor near the deceased’s lifeless body.

[103] The appellant took several steps to distance himself from any involvement in the deceased’s death. He did not call 911. He made only minimal attempts at CPR. He locked the apartment and disposed of the key. He bought new socks. He did not contact police until eight days after the death of the deceased. All of these steps occurred after the deceased was killed. In combination, this evidence was relevant to the credibility of the appellant’s account to police which included his statement about then wearing the same shoes that he had worn the night the deceased was killed. It could also furnish a foundation for an inference of disposal of the footwear actually worn at that time.

[104] Second, neither Crown counsel nor the trial judge suggested that disposal of the footwear actually worn at the time the deceased was killed was an item of evidence of after-the-fact conduct that the jury could consider in deciding whether the Crown had proven beyond a reasonable doubt that it was the appellant who killed the deceased. Nor was it left as relevant to the credibility of the appellant’s disclaimer of responsibility for the deceased’s death.

[105] Third, and relatedly, the trial Crown and the trial judge limited the evidence of after-the-fact conduct to evidence that the appellant did not call 911, made a minimal if any effort at CPR, and locked the door and disposed of the key to impede efforts to contact the deceased. And each restricted evidentiary use to the issue of whether the appellant caused the deceased’s death. This limitation ensured that the scope of the after-the-fact evidence did not extend to disposal of the footwear and that its evidentiary use did not reach the appellant’s credibility. Thus, Crown counsel’s submission was removed from consideration on the issue of identity and the relevance of the evidence of after-the-fact conduct was limited in a matter that enured to the appellant’s benefit.

[106] A final point concerns the position of defence counsel at trial. As an ear and eye witness to the proceedings and vigilant in his protection of the appellant’s interests, trial counsel did not object to Crown counsel’s closing address. Failure of objection is not dispositive of the claim of impropriety now advanced, but it delivers a telling blow to the claim now made of actual and apparent unfairness caused by the closing submission.

Grounds #3 and #4: Dreams, Flashbacks, Recollections and Images

[107] The appellant advances two grounds of appeal in connection with his references to dreams, flashbacks, recollections and images in his police interviews on and after arrest. The first has to do with the admissibility of those references, more specifically, with the failure of the trial judge to edit those references from the recordings the jury heard. The second concerns the correctness of the trial judge’s instructions about how the jury could use those references in their deliberations.

[108] For discussion purposes, I will deal with these related issues as a single ground of appeal beginning with a brief background about how they emerged and were determined at trial.

The Procedural Background

[109] Prior to jury selection, Crown counsel sought a ruling permitting her to introduce evidence of a total of six statements made by the appellant before and after his arrest on February 9, 2015. The statements began with a voicemail the appellant left for D/S Ryan asking to meet with the police about his involvement in the deceased’s death and concluded with statements made shortly after his videotaped interview with Det. Singh.

[110] The trial judge found each of the statements was voluntary, a ruling not challenged on appeal, thus admissible subject to editing. An issue then arose about editing in the videotaped interview with Det. Singh at 41 Division. Counsel were unable to resolve the issue themselves, thus turned to the trial judge for assistance.

The Application at Trial

[111] The issue that divided counsel was whether what the appellant characterized variously as memories, recollections, flashbacks, vivid images and dreams about what happened to the deceased should be excised from the interview as it would be played and admitted as an exhibit for the jury.

[112] Defence counsel sought editing on the ground of lack of relevance. His argument was twofold. The appellant told the police that he was unsure whether the images he had of relevant events were actual recollections of what occurred or simply dreams. The jury would be in no better position to decide about their authenticity. It followed, counsel said, that the references to dreams were irrelevant. And since the appellant never said what the images were, even if the jury were to find that what the appellant said were recollections and not dreams, the jury could not draw any inferences of culpable conduct because of the lack of detail. This left only speculation, which also warranted exclusion for want of relevance.

The Ruling of the Trial Judge

[113] At the conclusion of argument, the trial judge held that the references were admissible.

[114] The trial judge reasoned that in assessing the meaning to be assigned to this evidence, it was appropriate to consider the entirety of the appellant’s statements to the police on February 9, 2015. The issue to be resolved was what inferences the jury could draw from the appellant’s remarks. An available inference, the trial judge considered, was what the appellant described as images were, in fact, recollections. The jury could also conclude that what was said was an implicit acknowledgment by the appellant of involvement of the death of the deceased. This was a piece of evidence the jury could consider, together with the balance of the evidence, in determining whether the appellant killed the deceased.

[115] In written reasons released later, the trial judge acknowledged that the evidence supported two inferences:

i. that the images were not recollections, only dreams; and

ii. that the images were actual recollections or memories of what had happened to the deceased.

He added that despite the lack of specifics, the evidence could ground an inference of culpable involvement in the death of the deceased.

The Jury Instructions

[116] The trial judge provided drafts of his proposed instructions for counsel to review and discuss at pre-charge conferences. He described the positions of the parties in these terms:

The parties take different positions in relation to what Mr. Boucher said about the images. The defence says that on a reading of everything that Mr. Boucher said in this respect it is clear that what he was talking about were merely dreams; the Crown says, again on a reading of everything that Mr. Boucher said, that they were more than dreams, that Mr. Boucher was having recollections.

[117] After this introduction, the trial judge continued:

Throughout Mr. Boucher’s statements there were many, many exchanges in relation to what he recalled or what he may have merely dreamed. I don’t propose to pick and choose among those exchanges. You have listened to the recordings of the statements. You will have those recordings and the transcripts of them with you in your jury room. It is for you to assess what Mr. Boucher said, to decide what he meant, and to determine what the significance of it all is. I would caution you, of course, to be careful not to, as it were, cherry-pick his statements. Rather, you must carefully consider the entirety of what he said in this regard.

Unless you decide that the images that Mr. Boucher was talking about were more than dreams, that they were actual recollections, you cannot take what he said about them into account in deciding this case. To put it another way, if they were merely dreams, then even if they made him feel guilty they are irrelevant in relation to whether he is the person who caused Scott Savoy’s death and you must set them aside.

One thing I want to be clear about. As I have said, Mr. Boucher repeatedly declined to reveal the contents of these images. He had a constitutional right to decline to answer Singh’s questions in that respect. Every one of us has the right to decline to answer questions put to us by a police officer, whether or not we are charged with an offence. That is, each of us has the right to silence. The exercise of that right cannot give rise to an adverse inference against a person who exercises it. To draw some sort of adverse inference against a person who is exercising a constitutional right would turn that right into a trap. It would make the right something that you exercise at your peril. So, the fact that Mr. Boucher declined to tell Detective Singh what the images were is of no significance.

What Mr. Boucher did say about the images, however, is something you can take into account in relation to whether the image were dreams or recollections, and in relation to whether they were about doing something in relation to what happened to Scott Savoy. As I have said, you have the parties’ positions in that regard. It is for you to say, based on your careful assessment of the entirety of Mr. Boucher’s statements.

The Arguments on Appeal

[118] The appellant sought excision at trial on three grounds. He contended that there was no basis upon which the images were recollections, as opposed to dreams, thus they were irrelevant. He argued that even if the images were recollections, they remained irrelevant because they lacked any reference to harming the deceased. And, the appellant urged, use of the appellant’s refusal to disclose the content of his images violated his right to silence.

[119] The appellant says that the references to the various terms were prejudicial. This is particularly so in connection with the term “dreams”. While a reference to dreams may be admitted as part of the narrative, it cannot be received as an admission of guilt in the absence of evidence of adoption of which there was none.

[120] In his instructions to the jury, the appellant submits, the trial judge was wrong to provide the jury with a binary choice – dreams or recollections. The effect of this direction was that if the jury found that the appellant’s remarks were recollections, this was tantamount to a finding of guilt. The instruction should have included a reference to reasonable doubt, even if the jury was satisfied that what was said was a recollection and not a dream.

[121] The respondent says that where an issue arises about the reliability or truth of a statement made by an accused to a person in authority, it is for the jury to determine the issue. A statement should only be excluded where it appears that the statement, as a whole, is so plainly the product of fantasy or delusion that it bears no relation to the evidence. To determine whether the appellant was actually recounting memories as opposed to dreams could only be decided in conjunction with all the other evidence adduced at trial. And that was a question to be decided by the jury.

[122] In addition, the respondent urges, the appellant has not articulated any prejudice caused by the reception of this evidence. Modern jurors would know well that dreams were not real, not reflective of reality. And the trial judge cautioned the jury that the appellant’s refusal to disclose any details could not be used against him.

[123] In his instructions to the jury, the respondent says, the trial judge did not direct the jury that they had to choose whether the images the appellant spoke about were dreams or recollections. The instruction was that unless the jury made a specific finding that the images were recollections, they were to discard the evidence, assigning it no role in their decision. As a result, a finding that the images were dreams, or uncertainty about whether they were recollections, would mean to the jury that this evidence could inability be used in deciding whether the appellant killed the deceased.

The Governing Principles

[124] Several basic principles guide our evaluation and determination of this ground of appeal.

[125] As a matter of general principle, a statement or record of interview of an accused tendered in evidence by the Crown and found to be voluntary may be edited to excise parts that are irrelevant to the issues in play at trial or unfairly prejudicial to the accused: R. v. Beatty, 1944 CanLII 22 (SCC), [1944] S.C.R. 73, at p. 76; R. v. Holcomb (1973), 1973 CanLII 1428 (NB CA), 12 C.C.C. (2d) 417 (N.B.S.C., A.D.), at pp. 420-421, aff’d [1973] S.C.R. vi.

[126] A trial judge who admits a statement or record of interview that requires editing must ensure not only that irrelevant or unnecessarily prejudicial contents are excised, but also make certain that what remains retains its proper meaning when considered in relation to the whole of the statement: R. v. Kanester, 1966 CanLII 544 (BC CA), [1966] 4 C.C.C. 231 (B.C.C.A.), at pp. 244-245, rev’d on other grounds, [1966] S.C.R. v.

[127] When evidence of a statement or police interview of an accused is received at trial, it is for the jury, as the exclusive trier of fact, to determine the weight to be assigned to it. This includes whether some, none, or all of its contents are true or reliable: R. v. Hodgson, 1998 CanLII 798 (SCC), [1998] 2 S.C.R. 449, at para. 21; R. v. McAloon (1959), 1959 CanLII 156 (ON CA), 124 C.C.C. 182 (Ont. C.A.), at pp. 185-187.

[128] The final point concerns the admissibility of forms of expression other than traditional speech. Various forms of artistic expression, such as poems and songs, are not necessarily probative of the truth of what is expressed. The motives underlying the expression may be many. Sometimes, reciting what the author actually did is one of them. But not always. Yet these forms of expression may be capable of significant prejudice, as for example where their contents reveal a factual congruity or resemblance to what their author is alleged to have done: R. v. Terry, 1996 CanLII 199 (SCC), [1996] 2 S.C.R. 207, at para. 29.

[129] Evidence of some forms of artistic expression may be received as part of the narrative, a link in the chain of inferences tending to establish guilt. The strength of the link is for the jury to decide based on the cogency of the available inferences. These forms of artistic expression should not be considered in isolation as direct proof of any conduct to which they may refer and require careful jury instructions to ensure no improper use: Terry, at para. 30.

[130] Where the subject matter narrated is a dream, it too may give rise to different inferences if its contents are revealed in evidence. The limited value of a dream narrated in evidence would be apparent to a 21st century lay trier of fact. Nothing said or left unsaid in jury instructions about dreams should leave the impression with the jury that they could be treated as an admission of guilt: Terry, at para. 31.

The Principles Applied

[131] I would not accede to either aspect of this ground of appeal. I am satisfied that the trial judge did not err in failing to edit the references to dreams, flashbacks, recollections, and images in the police interviews of the appellant. Nor am I persuaded that the jury instructions about the use of this evidence reflect an error.

[132] Prior to jury selection, the Crown asked the trial judge to determine the admissibility of what the appellant said to various police officers on six different occasions on the day of his arrest. The trial judge conducted a voir dire. At its conclusion, the judge was satisfied that anything said by the appellant on any of those six separate occasions was voluntary, thus admissible in evidence as part of the Crown’s case-in-chief and available for impeachment purposes should the appellant testify and say something different than what he had told police. So far as I can determine, defence counsel did not seek exclusion of this otherwise admissible evidence on the basis that its prejudicial effect exceeded its probative value.

[133] Defence counsel then sought excision of references to the images the appellant claimed to have experienced. The argument advanced was grounded on lack of relevance:

i. the lack of any basis upon which the jury could conclude that the images were recollections or memories of events rather than dreams; and

ii. even if the images were recollections or memories, the absence of any detail about harming the deceased deprived them of any probative value.

The appellant also contended that to use the appellant’s failure to provide details of the contents of the images violated his right to silence.

[134] Editing otherwise admissible evidence involves the exercise of discretion. As an exercise of discretion, it falls to be decided in the unique circumstances of the case in which it arises. Absent an error of law or principle, a material misapprehension of the evidence, or a decision that is plainly unreasonable, the trial judge’s conclusion is entitled to significant deference in this court. No error has been demonstrated.

[135] In this case, the appellant used various terms to describe what he told police about the circumstances surrounding his involvement with the deceased contemporaneous with his death. As the trier of fact, the jury was not bound by how the appellant chose to characterize the events he described. The jury was entitled to draw their own inferences from the various statements taken as a whole in the context of the other evidence adduced at trial. The appellant’s descriptors did not pre-empt the jury’s authority.

[136] Recasting the argument as an error in settling the balance between probative value and prejudicial effect does not assist the appellant. This too involves an exercise of case-specific judicial discretion which is subject to deference in this court. The language of images, dreams, flashbacks, and recollections is not itself inherently prejudicial or apt to mislead a 21st century Canadian jury who can be presumed to know the difference among the terms and between fantasy and reality. This is not the same as the prejudice apt to arise when a symmetry exists between the words used in some forms of artistic expression, such as a poem or a song, and the circumstances of the offence with which an appellant is charged.

[137] Nor do the jury instructions reflect error.

[138] The trial judge made it clear to the jury that unless they found what the appellant said about the circumstances surrounding the death of the deceased were his actual recollections, they could not use what the appellant said as evidence in deciding whether the Crown had proven beyond a reasonable doubt that he killed the deceased. If the jury concluded that what the appellant said were merely dreams, they were irrelevant and had to be put aside in deciding whether the appellant killed the deceased.

[139] To ensure that the jury attached no significance to the failure to provide any specifics of events surrounding the death of the deceased, the trial judge explained to the jury that:

i. the appellant had a constitutional right to decline to answer questions seeking details and not to provide details;

ii. the exercise of that right cannot support an adverse inference against the appellant; and

iii. the failure of the appellant to provide details was of no significance to the jury’s decision.

[140] These grounds of appeal fail.

Ground #5: Unreasonable Verdict

[141] The final ground of appeal alleges that the jury’s verdict was unreasonable and not supported by the evidence adduced at trial. No further reference to the evidence is necessary in order to evaluate the merits of this claim. A brief summary of the positions of counsel will provide an adequate framework for the discussion that follows.

The Arguments on Appeal

[142] The appellant characterizes the case for the Crown at trial as composed entirely of circumstantial evidence. This is so because the appellant’s statements about dreams and flashbacks during the police interviews were not admissible as admissions of guilt. They constituted part of the narrative of relevant events, but evidence admitted as narrative does not establish the truth of what is said. It follows that, in assessing whether the verdict rendered at trial was unreasonable or unsupported by the evidence, the issue to be resolved here is whether the evidence, as a whole, was such that the jury, acting judicially, could reasonably be satisfied that the appellant’s guilt was the only reasonable inference arising from the whole of the evidence.

[143] The appellant contends that the evidence adduced at trial cannot meet the standard required of it to resist an allegation of unreasonableness. The Crown relied on evidence of opportunity, motive, and after-the-fact conduct to prove the appellant’s guilt. The appellant was the last person seen with the deceased when the deceased was last seen alive. On its own, this does not establish that the appellant killed the deceased. The motive alleged was the possibility of animus arising out of the deceased’s allegations about his drugs being stolen. But this was a constant refrain from the deceased when he couldn’t immediately find where he had hidden his drugs in his apartment. Nor was it unique to the appellant. And the evidence of the appellant’s after-the-fact conduct – taking steps to distance himself from the unlawful killing of the deceased – was consistent with what would be expected of a drug addict with a previous criminal record.

[144] However, the appellant continues, the balance of the evidence must also be included in the analysis. The deceased was a drug trafficker whose trade was conducted in his apartment. Customers attended at all hours of the day and night. The deceased indicated that he was expecting someone, a female, to arrive later. And he wanted the appellant to remain in case his own supplier returned. The bloodied footwear impression was small, inconsistent with the appellant’s shoe size, and not made by the shoes the appellant voluntarily surrendered to police on arrest. The appellant’s DNA was not found under the nails of the deceased, despite evidence that a violent struggle preceded the deceased’s death. And the single bloodstain on the appellant’s sleeve was consistent with his failed attempt at CPR. The totality of the evidence gave rise to inferences other than guilt. The verdict was unreasonable.

[145] The respondent resists the claim of unreasonableness in the jury’s verdict. The totality of the evidence met the standard required of it to establish guilt. The assertion of unreasonableness should fail.

[146] Evidence that an accused was the last person seen with the deceased when the deceased was last seen alive varies in its cogency. Admittedly, on its own, evidence that an accused was the last person seen with the deceased when the deceased was last seen alive would fall short of proving that the accused caused the deceased’s death. But that is not this case. Here, there is much more. The deceased was killed in the very place where they were seen together. A significant struggle preceded the deceased’s death, something that the appellant was unlikely to sleep through. The deceased, a cautious man in his drug dealings, was unlikely to have admitted anyone he didn’t know or trust. No signs of forced entry were visible apart from those taken when the deceased’s body was discovered.

[147] In addition to the evidence of near exclusive opportunity, the appellant’s after-the-fact conduct enhanced the probative value of the evidence of the circumstances in which the appellant and deceased were last seen together. The appellant did not call 911. He made, at best, a minimal effort at CPR. He locked the door to delay discovery of the body and disposed of the key. And it was open to the jury to conclude that he either consumed or stole the deceased’s drug cache and took his money. The finding of guilt was reasonable and supported by the evidence.

The Governing Principles

[148] No serious dispute arises about the principles we are to apply in our assessment and determination of this ground of appeal. Needless to say, the controversy between the parties has to do with the result the application of those principles compels.

[149] Section 686(1)(a)(i) of the Criminal Code, R.S.C., 1985, c. C-46, permits a court of appeal to allow an appeal from conviction if the court is satisfied that the verdict is unreasonable or cannot be supported by the evidence received at trial. The question, as framed by the enabling provision, is whether the verdict is unreasonable on the evidence admitted at trial, not whether it is unjustified on that same evidence: R. v. Corbett, 1973 CanLII 199 (SCC), [1975] 2 S.C.R. 275, at p. 282. See also, R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at pp. 185-186.

[150] The test an appellate court applies in its response to a claim that a trial verdict is unreasonable or unsupported by the evidence is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. The inquiry requires the reviewing court to determine what verdicts a reasonable jury, properly instructed, could judicially have rendered by reviewing, analyzing, and, within the limits of appellate disadvantage, weighing the evidence. This involves not only objective, but also subjective assessments: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36.

[151] A verdict is unreasonable or unsupportable on the evidence if the verdict is one that a properly instructed jury, acting judicially, could not reasonably have rendered: R. v. H.(W.), 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 26, citing Yebes, at p. 185 and Biniaris, at para. 36.

[152] In a case like this where the evidence received at trial is wholly or substantially circumstantial, the question to be answered when the verdict is challenged as unreasonable is whether the trier of fact, acting judicially, could reasonably be satisfied that the appellant’s guilt was the only reasonable inference available on the totality of the evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55, citing Yebes, at p. 186. The circumstantial evidence does not have to totally exclude other “conceivable inferences”. Likewise, a verdict is not unreasonable simply because the alternatives did not cause the jury to have a reasonable doubt about the appellant’s guilt. For it is 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 about the accused’s guilt: Villaroman, at para. 56.

[153] To succeed on a claim of unreasonable verdict under s. 686(1)(a)(i) of the Criminal Code, an appellant must persuade the appellate court that no properly instructed jury, acting judicially, could reasonably have found the appellant’s guilt established: R. v. Arias-Jackson, 2007 SCC 52, [2007] 3 S.C.R. 514, at para. 2.

[154] Two further points require brief mention before turning to the application of the controlling principles to the evidence adduced at trial.

[155] The first has to do with the value of evidence that an accused was the last person seen with the deceased when the deceased was last seen alive in proving the accused’s guilt for killing the deceased.

[156] Without more, evidence that an accused was the last person seen with the deceased when the deceased was last seen alive, is not sufficient to establish the accused’s guilt on a charge of murdering the deceased: R. v. Stevens (1984), 1984 CanLII 3481 (ON CA), 11 C.C.C. (3d) 518 (Ont. C.A.), at p. 534, leave to appeal refused, 15 W.C.B. 157. However, the probative value of this evidence varies with the circumstances in which the accused and deceased were last seen together. As for example, in a case of child murder where the accused and deceased child were last seen together in a motor vehicle of the deceased, who was a stranger to the child, a short distance from where the body of the child was found: Stevens, at p. 535. Evidence of the accused after-the-fact conduct may also be important in enhancing the cogency of the last living sighting evidence: Stevens, at p. 533.

[157] The second has to do with a factor we may consider in assessing the merits of the appellant’s allegations of unreasonableness in the verdict rendered. We are entitled to consider the appellant’s failure to testify in the face of the circumstantial case arrayed against him, thus his failure to provide the basis for an alternative inference inconsistent with guilt: R. v. George-Nurse, 2018 ONCA 515, 362 C.C.C. (3d) 76, at para. 33, aff’d 2019 SCC 12.

The Principles Applied

[158] This ground of appeal lacks persuasive force.

[159] In my assessment of this ground of appeal, I acknowledge that the case for the Crown at trial was entirely circumstantial. As a result, the evidence, considered as a whole, was required to satisfy the jury that the appellant’s guilt was the only reasonable inference available on that evidence. The evidence did not have to exclude all inferences, as for example, all conceivable inferences, only reasonable inferences based on the evidence or lack of evidence inconsistent with guilt. And, it was fundamentally for the trier of fact to decide whether any alternative inference was reasonable enough to raise a reasonable doubt about the appellant’s guilt.

[160] In this case, the evidence adduced permitted the jury to make several findings of fact.

[161] The appellant was the last person seen with the deceased when the deceased was last seen alive at about 2:00 a.m. on February 1, 2015. At that time, the appellant and deceased were alone in the deceased’s apartment. The deceased was killed in that same apartment, apparently the result of a concerted and violent attack. The appellant was there at the time. The deceased was a drug dealer. His place of business was his apartment. He kept the door locked. He admitted only those he knew and trusted. The appellant was the only person in the apartment with the deceased’s body. There were no signs of forced entry. The appellant had the deceased’s blood on the sleeve of his jacket. For all practical purposes, the appellant’s opportunity to kill the deceased was exclusive.

[162] In addition, evidence of the appellant’s after-the-fact conduct enhanced the probative value of the evidence of near exclusive opportunity. The appellant did not call 911. His attempts at CPR were minimal. He locked the door to the apartment and disposed of the key, delaying discovery of the body of the deceased and putting some distance between his presence and the discovery of the deceased’s death. He gave inconsistent accounts about whether the apartment door was locked or unlocked when he left. And he had been involved in a dispute with the deceased about missing drugs earlier that same evening or morning. Some aspects of his police interviews could be considered inculpatory admissions.

[163] The evidence I have just marshalled, as a whole, afforded a basis on which the jury, acting judicially, could reasonably be satisfied that the appellant’s guilt was the only reasonable inference available on that evidence. The evidence about the footwear impression does not mandate a contrary conclusion. After all, the evidence did not reveal whether the print was partial or complete and the similarity between the footwear and neck impression was, at best, tenuous. And whether the appellant was truthful about the shoes he surrendered depended on his credibility in a case in which he did not testify.

Disposition

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

Released: January 20, 2022 “D.W.”

“David Watt J.A.”

“I agree. M.L. Benotto J.A.”

“I agree. Harvison Young J.A.”