COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Dion, 2025 ONCA 7
DATE: 20250109
DOCKET: C70548
Paciocco, Favreau and Wilson JJ. A.
BETWEEN
His Majesty the King
Respondent
and
Ross Dion
Appellant
Mark Halfyard and Chloe Boubalos, for the appellant
Roger A. Pinnock, for the respondent
Heard: November 12, 2024
On appeal from the convictions entered by Justice Clyde Smith of the Superior Court of Justice, sitting with a jury, on August 25, 2021.
Paciocco J.A.:
OVERVIEW
[1] On August 25, 2021, Ross Dion was convicted of first-degree murder and arson in the brutal May 2018 murder of his intimate partner, Heeley Balanga. It was not contested at his trial that Heeley[^1] was intentionally killed or that her home, where her body was later discovered, was intentionally set on fire. Mr. Dion is now appealing those convictions.
[2] The Crown had a strong case against Mr. Dion on the only two contested issues at the trial – the identity of the perpetrator, and whether the killing was planned and deliberate. In addition to the circumstantial evidence that made the Crown case strong, the Crown was permitted to present extensive evidence about statements attributed to Heeley for the purpose of showing her state of mind. The Crown relied on those statements as circumstantial evidence of tensions within the relationship that gave Mr. Dion motivation to kill her.
[3] In oral argument before us, Mr. Dion maintained that the trial judge erred in admitting the more remote statements, that his evaluation of the threshold reliability of the hearsay statements that were admitted was insufficient, and that the trial judge erred in assessing the prejudice their admission would cause.
[4] If true, many of the statements that the trial judge admitted reflected badly on Mr. Dion’s character. Mr. Dion also submitted before us that the trial judge erred in failing to give an adequate jury direction about the prohibited use of this “character evidence”.
[5] Finally, Mr. Dion argued that the trial judge erred by permitting jurors to consider statements of opinion that firefighters made about his demeanour after he arrived at the scene of the fire and after the body had been discovered. The trial judge had undertaken to instruct jurors that these opinions, or at least some of them, had no probative value but failed to do so.
[6] There can be no question that Mr. Dion’s trial was imperfect. But a perfect trial is seldom attained and is not required for justice to be achieved. For the following reasons, I am not persuaded that the trial judge made any reversible errors, and I would dismiss Mr. Dion’s appeal.
MATERIAL FACTS
[7] Heeley and Mr. Dion met in early 2015. Months later they began to cohabitate, ultimately moving into a home that Heely purchased, the home where she died.
[8] Their relationship was far from perfect. Evidence was presented about the financial pressure that Heeley and Mr. Dion were experiencing. In addition, Heeley’s mother, Sunny Balanga; her brother, Adam Balanga; and Heeley’s ex-husband, Ram Schapira testified that, although Heeley was often defensive about her relationship with Mr. Dion, she expressed concerns about his lifestyle, including his recreational drug use and gambling, his idleness, and his failure to maintain a stable income. These witnesses also described unflattering events Heeley relayed involving Mr. Dion, including telecommunication costs he likely incurred accessing pornography. Sunny testified about comments Mr. Dion’s daughter made at a family dinner praising Hitler that had upset Heeley.
[9] Mr. Dion lost his job approximately a month before Heeley died. Mr. Schapira testified that Heeley spoke disapprovingly about Mr. Dion failing to return a company vehicle promptly after leaving the job, and of his subsequent plan to return to his former place of employment to steal items, which angered her.
[10] Heeley’s mother, Sunny Balanga, made it plain in her testimony that she strongly disapproved of Mr. Dion from the outset, believing that he was not a suitable or worthy partner for Heeley. She said she felt “dread” when she met Mr. Dion. She described him as a “drug user, a compulsive gambler, a porn addict, someone who continually got fired from work, who flew into rages, and went back to steal from … his employers … in retaliation.” During her testimony she called him a murderer. Sunny testified that she confronted Heeley with her concerns, but Heeley was defensive, expressing an interest in maintaining her relationship with Mr. Dion.
[11] Evidence showed that Heeley died either in the late evening hours of Monday, May 28, 2018, or in the early morning hours of Tuesday, May 29, 2018. The downstairs tenant in Heeley’s home, Jamie Rhoit, testified that between six and eight a.m. on what would have been May 28, 2018, he heard a loud, angry argument coming from the residence upstairs, but he could not make out what was being said.
[12] Heeley, who suffered from a long-term opioid addiction linked to a debilitating back condition, was scheduled to begin a drug rehabilitation program later that day at the Centre for Addiction and Mental Health (“CAMH”). Mr. Schapira spoke to Heeley before she left for her CAMH appointment, and she told him that she was going to go alone. She was angry at Mr. Dion following their argument and refused to wake him to drive her, as was originally planned.
[13] Sunny testified that later that day she asked Heeley whether her rehabilitation efforts would change her relationship with Mr. Dion, and she encouraged Heeley to imagine her life without him. Sunny testified that Heeley responded, “I hear you”, which Sunny interpreted as an expression of her intention to end the relationship.
[14] At approximately 4:30 a.m. on May 29, 2018, firefighters responded to the report of a fire at Heeley’s home. When firefighters arrived, the home was not entirely engulfed. The fire proved to be incendiary in origin. An empty gas can was found inside, near the area where the fire started. Its spout was found on a bed. Gasoline had been poured inside the home. Expert evidence was presented that the fire was likely started near the door of the residence and that it may have smoldered for some time before the front window fractured, giving the fire the oxygen that it required to burn freely.
[15] Inside the home, firefighters discovered Heeley’s body, wrapped in sheets and a comforter that had been doused in gasoline. They brought the body outside where it laid, covered, in front of the house.
[16] A pathologist testified that it was not the fire that caused Heeley’s death. Her body showed, in addition to other less significant injuries, external signs of ligature neck compression and signs of blunt force trauma to her head and face, including extensive fractures of her skull. In the pathologist’s uncontested opinion, death was attributed to “[b]lunt impact head trauma in a woman with ligature neck compression.”
[17] Proximate to the location where the attack appeared to have occurred, a severed lamp cord was discovered, which had been fashioned into a garrotte using electrical tape and a metal cylinder, identified as a “breaker bar”. The condition and location of this makeshift garrotte and the injuries to Heeley’s neck suggested that it was used in the attack, but broke. A bat was also discovered. The bat appeared to have been prepared for the attack. It was wrapped in plastic held with black electrical tape and could be linked forensically and circumstantially to Heeley’s blunt force injuries. The Crown theory was that the bat was used to complete the killing after the garrotte failed.
[18] The murder scene showed signs of an attempted clean-up. Clothing and running shoes that forensic evidence suggested may have been worn during the attack were found inside. Heeley’s car, which was ordinarily parked at her home, was subsequently discovered parked within walking distance of her home, with its side window smashed.
[19] There was no-one in Mr. Rhoit’s apartment at the time of the fire. At some point after hearing the argument, he had left the home to stay overnight with his partner at a trailer he owned. Evidence at trial showed that the ceiling mounted smoke alarms in his apartment, which Mr. Rhoit testified were intact when he left, had been removed. He also testified about a recently purchased pair of shoes that had been taken.
[20] Security camera evidence was obtained showing Mr. Dion in the early morning hours of May 29, 2018, stopping at a gas station. He did not buy gasoline or make any purchases, although he entered the gas station convenience store where there was a security camera. He was also captured by security camera video walking through the Blue Heron Casino wearing what proved to be Mr. Rhoit’s missing shoes, which were two sizes too big for him. He did not stop to engage in gambling activity. The Crown theory was that Mr. Dion staged these visits in the hope that security video would assist him in claiming a false alibi.
[21] Mr. Dion returned to the home approximately 15 minutes after the firefighters had arrived. Evidence was admitted that he approached them as they were fighting the fire and made unsolicited comments, including volunteering that he had been out playing poker with his friends, a claim belied by the Blue Heron security video. Evidence was also provided that prior to Heeley’s body being discovered, he told firefighters that Heeley was not home at the time of the fire because she had gone to her mother’s around 9:30 p.m. for an overnight visit. Sunny testified there was no plan for any such visit. Mr. Dion also pointed out to firefighters that Heeley’s car was not at the scene.
[22] Firefighters testified that they repeatedly asked Mr. Dion to move because he was in the way and at risk of being knocked down by the fire hoses. Several firefighters testified that after the body was removed from the house shortly after 5:00 a.m., Mr. Dion approached them again seeking information about the identity and gender of the victim.
[23] In their testimony, several of the firefighters commented on Mr. Dion’s demeanour. I provide the material details of their comments below when analysing a related ground of appeal.
[24] It was on this evidentiary record that a jury convicted Mr. Dion.
ISSUES
[25] Mr. Dion pursued three issues during his appeal:
A. Did the trial judge err in admitting statements attributed to Heeley?
B. Did the trial judge err by giving an inadequate bad character evidence direction?
C. Did the trial judge err by permitting jurors to consider opinion evidence that firefighters offered about Mr. Dion’s demeanour?
[26] As indicated, I would not allow any of these grounds of appeal.
ANALYSIS
A. did the trial judge err in admitting statements attributed to heeley?
[27] In my view, the trial judge did not commit reversible errors in admitting statements attributed to Heeley as proof of her state of mind. It is helpful to begin by outlining the applicable law.
(1) The Applicable Law
[28] There are two hearsay exceptions that can permit the admission of out-of-court statements made by a person as evidence of their state of mind.
[29] First, there is the traditional, fixed, “state of mind exception” to the hearsay rule.[^2] Pursuant to this exception, a statement made by a person may be admitted if it discloses their relevant, present existing state of mind and the statement was made in a natural manner and not under circumstances of suspicion: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 168; R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 59. Evidence satisfying this exception will be prima facie admissible, but only “in order to demonstrate the intentions or state of mind of the declarant at the time the statement was made”: Starr, at para. 168, quoting R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at p. 925. Statements admitted pursuant to this exception cannot be used to establish the past acts or events that the statements describe: Smith, at p. 927.
[30] Second, hearsay evidence may be presented to establish a person’s state of mind pursuant to the principled hearsay exception: R. v. Skeete, 2017 ONCA 926, 357 C.C.C. (3d) 159, at paras. 73, 92, leave to appeal refused, [2018] S.C.C.A. No. 508; R. v. Moo, 2009 ONCA 645, 247 C.C.C. (3d) 34, at para. 102, leave to appeal refused, [2010] S.C.C.A. No. 152. Whereas admissibility under a “traditional” exception is determined by examining whether set legal admissibility preconditions are present, admissibility under the principled exception is determined by a contextual case-by-case assessment of whether it is “necessary” to admit the hearsay evidence, and whether the hearsay assertion is supported by indicia of reliability that meet a threshold warranting its admission, called “threshold reliability”: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 49; Starr, at paras. 208–9; R. v. Carroll, 2014 ONCA 2, 304 C.C.C. (3d) 252, at paras. 100, 112, leave to appeal refused, [2014] S.C.C.A. No. 193.
[31] Unlike statements admitted pursuant to the traditional state of mind exception, statements admitted pursuant to the principled exception are not limited to establishing the state of mind of the speaker at the time the statement is made. They can also be used to prove the past acts or events that the speaker has described, provided the circumstances surrounding the making of the hearsay statement establishes those acts or events to the requisite standard of threshold reliability: Smith, at pp. 935–6. Alternatively, hearsay statements can be offered pursuant to the principled exception solely to prove the speaker’s state of mind, as occurred in this case.[^3]
[32] Trial judges have a residual discretion to exclude any technically admissible hearsay evidence, including evidence admissible under the principled exception, on the basis that the prejudicial effect of the evidence outweighs its probative value: Smith, at p. 937; R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 59, leave to appeal refused [2012] S.C.C.A. No. 8. This residual exclusionary discretion is not likely to result in the exclusion of technically admissible hearsay evidence based on concerns about the reliability of the hearsay statement. This is because the admissibility preconditions built into the hearsay exception are intended to ensure that the hearsay is reliable enough to admit. By finding that the hearsay statement satisfies those preconditions, the trial judge will have already determined that it has sufficient threshold reliability to warrant admission. I note that when Charron J. spoke about the analysis required under the residual exclusionary discretion in Khelawon, at para. 49, she contemplated consideration of factors that go “beyond the strict inquiry into necessity and reliability”.
[33] Relatedly, in R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, the Supreme Court of Canada had occasion to consider the possible exclusion of technically admissible hearsay evidence based on reliability concerns. McLachlin C.J., for the majority, spoke of two available paths. First, the hearsay exception itself can be challenged by showing that its admissibility preconditions do not adequately assure necessity and threshold reliability. If successful, this sort of challenge leads to the modification of the hearsay exception: Mapara, at para. 15 (b). Alternatively, the party seeking to have technically admissible hearsay evidence excluded because of lingering concerns about its unreliability may argue that even though the hearsay exception is not deficient, in the factual circumstances of the case the evidence lacks sufficient threshold reliability to warrant admission: Mapara, at para. 15 (c). She observed that if a challenge to the design of the hearsay exception itself has not been successfully initiated, a case-based reliability challenge of this kind will rarely succeed. She explained that this is because “[i]n all but the most exceptional cases” if the exception requires threshold reliability, the reliability argument is “spent” by a finding that those preconditions have been met: Mapara, at para. 34; R. v. Kler, 2017 ONCA 64, 345 C.C.C. (3d) 467, at paras. 75–79. It follows that it will only be in rare cases that concerns about the reliability of technically admissible hearsay evidence will support the application of the residual exclusionary discretion.
(2) The Trial Judge’s Ruling
[34] The trial judge conducted a two-day pretrial admissibility voir dire relating to the hearsay evidence the Crown sought to present to prove Heeley’s state of mind. The Crown helpfully organized those statements into four categories, described by the trial judge in his written ruling as:
• (1) “statements made … throughout the course of her relationship with Mr Dion which the Crown argues are required in order to show the evolution and progression of the relationship.”
• (2) “statements made … during the month before her death which show a growing tension in the relationship and include reference to Mr Dion having been accused by his former employer of stealing a truck.”
• (3) “statements made … in the course of the weekend immediately preceding her death which also include reference to comments made by Mr Dion about his involvement in a break-in and theft at his former employer’s place of business.”
• (4) “statements made … on the day of her death about her activities and plans which the Crown argues are required to show her state of mind as she drove home that day to meet Mr Dion.”
[35] The trial judge chose to admit all the statements. In doing so, he considered three different rules of evidence: (1) the traditional state of mind exception; (2) the principled exception; and (3) the residual exclusionary discretion. He explained that he was admitting the category (1) statements, the most remote of the statements attributed to Heeley, under both the traditional state of mind exception and the principled exception. He did not say explicitly that he was applying the traditional state of mind exception when admitting the balance of the statements, and his analysis appears to focus on the principled exception. However, the conclusions he reached relating to each category of statement would enable admission under the traditional state of mind exception. In my view, reading the decision as a whole, the trial judge can fairly be taken as having admitted all of the statements under both exceptions. The trial judge also decided explicitly against applying the residual exclusionary discretion after concluding that the probative value of the proposed evidence outweighs the risk of prejudice it presents.
(3) The Arguments on Appeal
[36] In his appeal factum, Mr. Dion challenged the admissibility of all of the proposed statements. However, in his oral argument he took a narrower view, conceding that the statements attributed to Heeley about the theft of items from Mr. Dion’s former place of employment, the category (3) statements described above, were admissible. He did not specifically address the category (2) and category (4) statements in oral argument, focusing his submissions on the more remote category (1) statements. Since Mr. Dion did not explicitly abandon his appeal of the category (2) and category (4) statements I will include them in my analysis.
[37] Mr. Dion did not specify in his written or oral submissions what errors he claims the trial judge made in each of the three admissibility rulings. Instead, in his factum he argued generally, without tying the errors to particular rulings, that the trial judge erred by failing “to meaningfully consider bias, remoteness and prejudice in his gatekeeping role”, and by not conducting an adequate inquiry into threshold reliability. He took much the same approach during oral submissions, although he did not pursue the bias concern.
[38] The decision not to pursue the bias concern in oral submissions was well-taken. The bias arguments that Mr. Dion made in his factum related to the risk that the witnesses who testified about Heeley’s statements – most particularly Sunny and Mr. Schapira – were biased against Mr. Dion and therefore not credible. In fact, these bias concerns have nothing to do with whether either of the two hearsay exceptions apply. None of the admissibility preconditions to the state of mind exception require inquiry into the reliability of the reporting witness. And even where the principled hearsay exception is being relied upon as the avenue of admission, the threshold reliability inquiry is concerned with the reliability of the hearsay assertion itself, not the reliability of the testifying witnesses who are recounting the hearsay assertion: R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298 at para. 50. This is because the reliability of a testifying witness can be fully and directly assessed by the trier of fact. At most, the bias of a testifying witness is a factor that can influence the exercise of the residual exclusionary discretion: see R. v. Humaid, 2006 CanLII 12287 (ON CA), 81 O.R. (3d) 456 (C.A.), at para. 57, leave to appeal refused, [2006] S.C.C.A. No. 232, quoted with approval in Blackman, at para. 51. I will therefore address the bias issue in the following analysis only as it relates to the exercise of the residual exclusionary discretion.
(4) Analysis
[39] As indicated, the trial judge gave alternate rulings for finding the hearsay statements to be technically admissible, finding them to be admissible under either the traditional state of mind exception or the principled exception. To succeed in showing that the trial judge erred in finding the hearsay statements to be technically admissible, Mr. Dion must therefore show that the trial judge erred in applying both hearsay exceptions. Alternatively, he must show that the trial judge erred in failing to apply the residual exclusionary discretion to exclude the technically admissible hearsay, a notoriously difficult challenge.
[40] For the following reasons, I am not persuaded that the trial judge erred in finding the statements to be admissible under the traditional state of mind exception. There is, therefore, no need for me to address the alternative path to admission under the principled exception, and I will refrain from doing so. I also see no error in his decision not to exercise his residual exclusionary discretion.
(a) The Ruling on the State of Mind Exception
[41] As I have explained, when a trial judge decides whether evidence is technically admissible under a traditional hearsay exception, their task is to determine whether the fixed preconditions to admission provided for in the exception are satisfied. To resolve whether the traditional state of mind exception was met, the trial judge’s task was to determine whether the hearsay evidence being offered consisted of statements made by a person that disclose their relevant, present existing state of mind, and whether those statements were made in a natural manner and not under circumstances of suspicion: Starr, at para. 168; Griffin, at para. 59. In deciding whether the statements were technically admissible under this hearsay exception, he was not required to consider whether the admission of the evidence would cause prejudice. On this basis alone, Mr. Dion’s submissions that the trial judge erred by failing “to meaningfully consider … prejudice in his gatekeeping role” cannot provide a basis for finding that the trial judge erred in applying the state of mind exception. Similarly, in deciding whether the state of mind exception was met, the trial judge was not required to engage in the kind of general reliability inquiry that the principled exception would have required. Mr. Dion’s submission that the reliability inquiry the trial judge undertook was inadequate is therefore equally immaterial to this ground of appeal.
[42] The sole argument pursued by Mr. Dion that warrants consideration in determining whether the trial judge erred in applying the state of mind exception relates to the remoteness of some of the statements the trial judge admitted. During oral argument, Mr. Dion submitted that remote statements are not admissible under the “state of mind” exception because that exception is confined to evidence of “present” states of mind and therefore cannot be relied upon to prove states of mind a person held in the past. With respect, this submission misapprehends the “present” state of mind requirement. It is not concerned with how long ago the speaker held the state of mind. It requires instead that the state of mind must be “present” at the point in time that the statement evidencing that state of mind is made. Justice lacobucci made this clear in Starrwhen he explained that the “exception to the hearsay rule arises when the declarant’s statement is adduced in order to demonstrate the intentions, or state of mind, of the declarant at the time when the statement was made”: at para. 168, quoting Smith, at p. 925 (emphasis added). The reason that the exception requires the statement to be contemporaneous with the state of mind it is said to show is that this coincidence in time permits the context in which the statement was made to be considered in deciding whether the speaker was actually experiencing that state of mind: See the discussion of McLachlin C.J., dissenting in the result but not on this ground, in Starr, at paras. 6–7.
[43] This is not to say that the remoteness in time between the experience of a state of mind and the criminal act at issue will play no role in determining whether the state of mind exception is met. A state of mind cannot be proved pursuant to this exception unless it is relevant to an issue in the case: Griffin, at para. 59. And there can be no question that the passage of time can render a state of mind irrelevant. In R. v. Wills, 2007 CanLII 6898 (Ont. S.C.), aff’d 2011 ONCA 468, for example, a statement by the victim that she wanted to end her relationship with the accused made two years before she died was found to be too remote in time to be logically connected to the event.
[44] Here, the trial judge found the more remote statements to be relevant to the event, and I can find no basis for setting aside his determination.
[45] First, no issue can be taken with the underlying theory of relevance he employed in admitting evidence about Heeley’s state of mind. He reasoned that these statements “are demonstrative of the fact that there was a considerable amount of acrimony between the deceased and Mr. Dion at the [time of her death]” which acrimony may have motivated Mr. Dion to kill her. This is a permissible and well-accepted line of reasoning: see Griffin, at paras. 59–63; Candir, at paras. 51–52. Even though the state of mind exception does not permit the admission of statements made by one person about the state of mind of another, there is no bar on drawing circumstantial inferences about the likely state of mind of a person in a relationship with the speaker relating to that relationship, based on proof of the state of mind of the speaker about their relationship. The logic is unassailable. If the speaker is troubled by their relationship, there is an increased likelihood of acrimony within the relationship that both would feel.
[46] In applying this theory, the trial judge found that even the statements that are more remote in time from Heeley’s death contribute to this permissible line of reasoning. He accepted the Crown’s submission that these more remote statements provide important context and narrative to the Crown theory that Heeley had developed a “continuing, evolving concern ... about her relationship with Mr. Dion and about her drug problem.” He found, as he was entitled to do, that “the evolution of that problem, and the nature and extent of its impact on her relationship with Mr. Dion, plays a large part in any consideration of the deceased’s state of mind at the time of her death.” I can find no error in that decision.
[47] In my view, no error has been established in the trial judge’s conclusion that all the statements being offered satisfied the state of mind exception.
(b) The Ruling on the Residual Exclusionary Discretion
[48] The balancing of probative value and prejudicial effect that is engaged where the residual exclusionary discretion is being considered is a “fact-sensitive and case-specific exercise”: Candir, at para. 80. Therefore, a “trial judge’s conclusions informed by correct legal principles, are entitled to deference” on appeal: Candir, at para. 80; R. v. Schneider, 2022 SCC 34, 474 D.L.R. (4th) 1 at para. 62. I see no basis for interfering with the trial judge’s decision not to exercise the exclusionary discretion.
[49] First, I can find no problems with the probative value inquiry the trial judge engaged in. I reject Mr. Dion’s submissions that the trial judge did not adequately consider the bias of the reporting witness or the remoteness of the evidence. He explicitly addressed each of these concerns in his decision, and he engaged in a close evaluation of the probative value of the statements he admitted.
[50] For the reasons I have described in paragraphs 32–33 above, the trial judge was not required to consider the reliability of the hearsay evidence itself in his probative value assessment. It is nonetheless clear that the trial judge found the hearsay statements to be reliable enough to admit, giving cogent reasons for rejecting Mr. Dion’s arguments that Heeley had a motive to make misleading statements about her relationship with him, and that she was not a reliable reporter.
[51] I can therefore see no reason to interfere with the trial judge’s assessment that the hearsay evidence the Crown offered was “highly probative”.
[52] In contrast, there is some merit in Mr. Dion’s submission that the trial judge’s prejudice analysis was flawed, but it was not flawed in a way that benefits Mr. Dion’s appeal. I will explain after reproducing the impugned passage in its entirety:
[The evidence] is also prejudicial to Mr. Dion, potentially in 2 ways: to paraphrase Professor Delisle the evidence may be prejudicial because it operates unfortunately for Mr. Dion, or it may be prejudicial because it operates unfairly. The first cannot be helped. The second can be satisfactorily attenuated by appropriate mid-trial and final instructions.
[53] Mr. Dion argues that the trial judge was incorrect in concluding that the first kind of prejudice “cannot be helped” and that he erred in finding that the second kind of prejudice can be attenuated by appropriate mid-trial and final instructions, only to then fail to give either a mid-trial instruction or an adequate final instruction.
[54] In my view, the flaw in the trial judge’s reasoning was in taking a wider view of “prejudice” than he should have done. The concept of “prejudice” is used in exclusionary rules of evidence to permit consideration of the negative effects of admitting probative evidence. Typically, evidence operates prejudicially in the relevant sense where there is risk it will operate unfairly by interfering with proper reasoning, either by creating “moral prejudice” (“the stigma of ‘bad personhood’”), or “reasoning prejudice” (“including potential confusion and distraction of the jury from the actual crime charged”): Moo, at para. 99. Evidence is also “prejudicial” in the relevant sense if its admission causes other adverse effects, including the undue consumption of time, or harm to privacy interests of the victim. In contrast, evidence is not “prejudicial” simply because it operates unfortunately for one of the parties by assisting the case for the opposing party: R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at p. 924; R. v. Jesse, 2012 SCC 21, [2012] 1 S.C.R. 716, at paras. 52–53. The capacity for evidence to assist one of the parties is a reason for its admission, not its exclusion. The trial judge should not have used the term prejudice in the first “way” he did.
[55] However, the fact that the trial judge took a wider view of the concept of prejudice then he should have does not advance Mr. Dion’s appeal. Ultimately, the trial judge was not wrong in observing that the fact that the evidence would operate unfortunately for Mr. Dion “cannot be helped.” That outcome cannot be helped because it is not something that should be prevented.
[56] I would also reject the submission that the trial judge committed errors relating to the second type of prejudice he identified, the unfair operation of the evidence. The material concern raised about the “unfair” operation of the evidence in this case was the risk of prejudice arising out of statements attributed to Heeley that reflected poorly on Mr. Dion’s character. The trial judge considered and addressed this risk, concluding that he could adequately address it by charging the jury. Mr. Dion does not suggest that the trial judge was somehow wrong in concluding that he could ameliorate this risk in this way. His complaint is that, in his view, the trial judge ultimately failed to give a charge that would satisfactorily do so. This complaint has nothing to do with whether the trial judge was correct in exercising discretion to admit the evidence. It has to do with the sufficiency of the charge. I will therefore consider it below when that issue is being addressed.
[57] Finally, this is not a case where the trial judge’s decision to admit the evidence, given the balance between probative value and prejudice, warrants appellate intervention. Another judge may well have taken a different view by deciding to exclude the more remote statements. Had the trial judge made this choice, the trial may well have been more efficient and manageable, and the testimony that Sunny provided could have been more easily controlled. However, the choice the trial judge made to admit all this evidence is not manifestly wrong or unreasonable. This is particularly so given the concession that Mr. Dion’s trial lawyer made during voir dire submissions that some of the statements the Crown was seeking to admit “probably further our arguments”. Indeed, a number of those statements showed Heeley to be extremely loyal to Mr. Dion, and to have had long range plans for their relationship. In these circumstances, it is difficult to fault the trial judge for taking a broad reach in admitting evidence that would enable jurors to fully understand the nature and evolution of that relationship. This was a matter for the trial judge’s discretion, and I would not interfere.
(c) Conclusion on the Hearsay Evidence
[58] The hearsay evidence was properly admitted. I would deny this ground of appeal.
B. Did the trial judge err by giving an inadequate bad character evidence direction?
[59] The law is designed to prevent the general bad character of an accused person from being relied upon to assist in their conviction, because individuals are to be convicted of crimes based solely on case specific evidence that proves their guilt of the specifically alleged offence beyond a reasonable doubt, not because of the kind of person that they are. “[T]he Crown is not entitled to ease its burden by stigmatizing the accused as a bad person”: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 72. Triers of fact are therefore positively prohibited from reasoning “that the accused has the propensity or disposition to do the type of acts charged and is therefore guilty of the offence”: Handy, at para. 31; R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 80. This is a strictly “prohibited inference”.
[60] If, in a jury trial, otherwise admissible Crown evidence shows the bad general disposition or bad character of the accused, the trial judge is required to direct the jury in a way that will prevent the “moral prejudice” that may be caused by this impermissible reasoning. Such a direction will ordinarily include both an affirmative direction on the appropriate, permissible use for which the evidence was admitted (R. v. Rulli, 1999 CanLII 3712 (ON CA), 120 O.A.C. 357 (C.A.), at para. 15, leave to appeal refused, [1999] S.C.C.A. No. 284), and a negative direction or “limiting instruction” directing jurors to avoid relying on the prohibited inference: R. v. B.(F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697 at p. 734.
[61] There is no question that the statements attributed to Heeley contained allegations that reflect poorly on Mr. Dion’s general character. Those statements include information that, if true, would at the very least show Mr. Dion to be a lazy, drug-abusing gambler who accessed pornography, who acted dishonestly in not returning his employer’s vehicle after he lost his job, and who was the type of person who would break into his employer’s premises to steal from them. Mr. Dion was particularly concerned about the risk of prejudice to him arising from the evidence that his daughter praised Hitler at a family dinner in the presence of members of the Balanga family, which has Jewish ancestry.
[62] The trial judge directed the jury on the permissible use to which the hearsay evidence containing this discreditable information could be put. In a midtrial instruction he told jurors:
An utterance from Heeley Balanga indicating that she had a certain intention may also be admitted for the purpose of demonstrating that she acted in accordance with that stated intention. You are not being asked to determine whether the events described by Heeley Balanga in her conversations with some of the witnesses in this case actually occurred, nor are you being asked to determine the state of mind of any person other than Heeley Balanga, and specifically not of Mr. Dion.
[63] In his final instruction he repeated, “[y]ou are not being asked to determine whether the events described by Heeley Balanga in her conversations with some of the witnesses in this case actually occurred”.
[64] The trial judge did not provide jurors with a “negative direction” instructing them not to engage the prohibited inference.
[65] During oral argument, Mr. Dion conceded that there was no issue to be taken with the positive direction the trial judge gave on the proper use of the hearsay evidence, but he argued that the jury direction was inadequate because the trial judge did not provide jurors with the requisite “negative” or “limiting direction” relating to the bad character information that hearsay contained. I would not give effect to this ground of appeal. A limiting direction “is not necessary in every case” where evidence has been led that reflects poorly on the character of the accused: R. v. C.B., 2008 ONCA 486, 237 O.A.C. 287, at para. 35. In my view, this is one of those cases where a limiting direction was not needed.
[66] First, in the typical case where a limiting direction is required, the Crown will have incidentally established the bad character of the accused through the admissible evidence it has called. Where this occurs, it is incumbent on a trial judge to ensure that jurors do not draw the prohibited inference from that evidence. In this case, the Crown did not incidentally establish Mr. Dion’s bad character through admissible evidence because the trial judge explicitly directed the jury regarding the limited use they could make of the hearsay evidence the Crown had called. Specifically, he instructed them that they were not being asked to determine whether the events Heeley described occurred. If the jurors followed that direction, they could not make a finding that the events that reflect poorly on Mr. Dion’s character occurred. They would therefore lack any factual foundation for concluding that Mr. Dion was of bad character and for drawing a prohibited inference: see Candir, at paras. 78, 88.
[67] Second, and relatedly, given the direction the trial judge gave, a limiting direction would have been redundant. Once the trial judge told jurors they were not being asked to determine whether the events Heeley described had occurred, it would have been superfluous and in some measure contradictory for him to then direct jurors on how they could and could not reason from the conclusions they were told they were not being asked to make.
[68] Third, even where there is bad character evidence before a jury, if it describes a completely different and materially less offensive kind of wrongdoing, the failure to give a limiting direction may not be fatal: R. v. R.M., 1998 CanLII 7184 (ON CA), 113 O.A.C. 40, at para. 9; R. v. Beausoleil, 2011 ONCA 471, 283 O.A.C. 44, at para. 26; R. v. C.(N.P.), 2007 ONCA 457, 86 O.R. (3d) 571 (C.A.), at para. 23, leave to appeal refused, [2008] S.C.C.A. No. 144. Here, the misconduct the witnesses referred to was much less offensive and entirely different than the charges that Mr. Dion faced. Even if the jurors were to ignore the trial judge’s directions and conclude that Mr. Dion was, in fact, a lazy gambler who accessed pornography, it is highly improbable that they would use these character findings to infer that he is capable of the brutal murder charge he was facing. It is also most unlikely that any juror would rely on Mr. Dion’s recreational drug use to assist in his conviction, particularly given the evidence that Heeley herself had a history of recreational drug use and an addiction to prescription pills. Even with respect to the criminal misconduct described in the statements – the “theft of the vehicle” and the break-in at the employer’s – Mr. Dion’s trial lawyer effectively conceded that it raised no realistic risk of improper reasoning. He said, “I don’t think, you know, the theft of a couple of power tools is the type of thing that a jury would use as evidence of such significant moral turpitude that it lends itself to his identifier as complicit in probably one of the most violent murders anyone’s likely to see.” As for the evidence of the offensive comments made by Mr. Dion’s daughter at a family dinner, in my view, there is no realistic risk that this evidence could have contributed to Mr. Dion’s conviction. The evidence before the jury showed that, after these comments were made, Mr. Dion left with Heeley. Perhaps this episode does reflect poorly on Mr. Dion given that he did not express disagreement or admonish his daughter when the comments were made, but I am far from persuaded that this event required a limiting direction.
[69] A negative or limiting instruction was not required in this case. I would deny this ground of appeal.
C. DID the trial judge err by permitting jurors to consider opinion evidence that firefighters offered about Mr. Dion’s demeanour?
[70] Mr. Dion argued that the trial judge erred by failing to direct the jury that they should not rely on “opinion” evidence from firefighters about his demeanour at the scene, and by giving an unbalanced charge respecting the demeanour evidence. I would not give effect to these grounds of appeal.
[71] The controversial evidence was provided by several of the firefighters who encountered Mr. Dion at the scene of the fire, both before and after Heeley’s body was discovered. As described above, those firefighters recounted unsolicited and arguably false statements that Mr. Dion had made to them about his whereabouts, and about his “belief” as to where Heeley was, that the Crown relied upon as evidence of his guilt. Several of those firefighters expressed opinions about Mr. Dion’s demeanour during these encounters.
[72] When describing him before the body was discovered, Firefighter Stephen Patton said Mr. Dion was “very calm”. Firefighter Shawn Farr said that Mr. Dion “appeared normal” and that he “didn’t look distraught”. Firefighter Wade Wakeford described Mr. Dion after the body was discovered as “agitated, tired”. Firefighter Ryan Fox described Mr. Dion as “excited”, and he agreed when Mr. Dion’s trial counsel suggested in cross-examination that Mr. Dion was “very excited”. Firefighter Thomas Benson testified that after the body was discovered, Mr. Dion was “yelling” ‘[w]ho is that’”.
[73] Mr. Dion’s next-door neighbour, George Mercieca, testified that he was awakened by Mr. Dion knocking on his door after the body had been discovered. He described Mr. Dion as “confused” and “disoriented”. He agreed with Mr. Dion’s suggestion made in cross-examination that Mr. Dion was “visibly shook up”.
[74] Firefighter Doug Brear, who held the rank of Captain, testified that he observed Mr. Dion as he was leaving the scene in his car, yelling out the window asking whether anyone had found $40. Captain Brear was asked to describe Mr. Dion’s demeanour during their encounters, and he said, “I thought he might have been impaired”, explaining that he found this comment to be strange. He added, “[h]e just, he’s just acting a little strange, that’s all.” When challenged during cross-examination as to how Mr. Dion should be acting Captain Brear said, “I’m not sure how he should have been acting.”
[75] Firefighter Ryan Fox also testified about Mr. Dion asking if anyone had found $40, saying that he considered the question to be “odd” because “it seemed out of place for a question at that time.” When defence counsel suggested to Mr. Fox in cross-examination that it was “weird to [him] as the firefighter on the scene,” he agreed.
[76] Police Constable Daniel MacInnis relayed in his testimony that after he arrived at the scene, he was approached by an unidentified firefighter who advised him that they had recovered a body and that this person had not died by way of the fire and that there was a male in the area who was “acting strange”. Police Officer Grayson Cappus gave similar evidence.
[77] During the pre-charge conference, defence counsel expressed concern about the jury relying on comments made by the firefighters about Mr. Dion acting strange. The trial Crown acknowledged that such opinions should not be relied upon by the jury and advised the trial judge that he “should charge [jurors] in that respect.” After a further exchange, the trial judge made clear that he was going to leave the evidence of the post-offence interactions between Mr. Dion and the firefighters with the jury for their evaluation, but that he would tell jurors that “the opinions of the firefighters and the characterization they offered are of no value to us.”
[78] In its closing submissions, the only after-the-fact conduct the trial Crown featured was evidence of the attempted clean up; evidence showing that Mr. Dion took Mr. Rhoit’s shoes; and the circumstantial evidence suggesting that Mr. Dion had attempted to create a false alibi, including through the unsolicited comments he made to firefighters. The trial Crown made extremely limited mention of evidence about Mr. Dion’s demeanour, saying only that “upon the discovery of Heeley Balanga’s body in the residence, [he] became rattled”. When recounting the evidence, the trial Crown described how, “[l]eaving the scene, [Mr. Dion] goes by the firefighters and asked if anyone found 40 dollars,” but he never referred to the opinions expressed by Captain Brear and Mr. Fox that this was “strange” or “weird” conduct on Mr. Dion’s part.
[79] In contrast, in his closing submissions Mr. Dion’s trial counsel directly addressed the characterization of Mr. Dion’s conduct as “strange”, commenting that, “[p]eople [were] lining up saying he acted strangely”. He submitted to jurors that Mr. Dion’s conduct in approaching the firefighters and the comments he made about his whereabouts, as well as his questions about the identity of the body, make “perfect sense” and were not strange things to say. He continued, “[t]he only thing I suggest to you that you should take away from Mr. Dion’s attendance at the scene and his engagement with the first responders is that there is no formula anywhere in the universe to describe how one should act in those circumstances, and there is no evidence whatsoever in anything that Mr. Dion said that could assist you in coming to the conclusion that he was responsible for this.” He concluded this theme by submitting that what was “strange” and “weird” was how the firefighters treated Mr. Dion, including after the body was found.
[80] When he charged the jury orally, the trial judge did not tell jurors, as he had undertaken to do, that the “opinions of the firefighters and the characterization they offered are of no value”.[^4] He mentioned only in general terms the suggestion that Mr. Dion’s conduct was “strange”. First, when he instructed jurors on the use of non-expert opinion evidence, he used the example of “the firefighters [that] characterized Mr. Dion’s behaviour at the scene as strange.” He also directed jurors to “regard [the after-the-fact conduct] evidence with caution”, explaining that the firefighters had no benchmark to judge Mr. Dion’s behaviour and to bear in mind the stressfulness of the situation Mr. Dion was in. “There is no norm.” He then instructed jurors to “disregard” Sunny’s opinion when she referred to Mr. Dion as a murderer.
[81] Subsequently, when he was summarizing the “after the fact conduct of Mr. Dion” he described the evidence provided by firefighters as follows:
You have heard evidence that, after the offences charged were committed, Mr. Dion attended at the scene of the fire and is alleged to have made certain comments to a number of firefighters, and was seen by some of those firefighters to be engaged in what they thought was strange behaviour.
[82] He then described specific observations made about Mr. Dion’s demeanour given by Mr. Patton, Mr. Wakeford, Captain Farr, Mr. Hannah, Captain Brear, and Mr. Fox. He made no specific reference to the opinion’s expressed by Captain Brear and Mr. Fox about Mr. Dion’s question about whether anyone found $40.00.
[83] The trial judge subsequently directed jurors on the approach they should take to the after-the-fact conduct evidence:
The first step requires you to decide whether Mr. Dion actually did or said what he is alleged to have said or done after the offences were committed.
If you find that Mr. Dion did not do or say what he is alleged to have done or said after the offences were committed, you must not consider this evidence in reaching or helping you reach your verdict.
[84] Mr. Dion did not take issue with the fact that the trial judge permitted the foregoing evidence to be presented. The focus in his submissions before us was on the failure by the trial judge to direct jurors that opinion evidence that the firefighters offered about Mr. Dion’s demeanour was of no value, and on the “unbalanced” nature of the charge he gave.
[85] In my view, two distinct issues arise relating to the failure by the trial judge to direct jurors that opinion evidence provided by firefighter’s was of no use: (1) Did the trial judge commit a reversible error in failing to carry out his undertaking to deliver such a charge? and (2) Did the failure to give the agreed upon charge result in an insufficient jury charge?
(1) Did the trial judge commit a reversible error in failing to carry out his undertaking?
[86] In my view, if a jury charge that is delivered is legally adequate, no legal error will have occurred simply because that charge deviates from the charge that a trial judge has undertaken to give. The law assures individuals of legally adequate charges, not charges that have been agreed to. Mr. Dion could point to no authority suggesting otherwise.
[87] Mr. Dion submitted that authority imposing limits on the entitlement of trial judges to disregard joint sentencing submissions should be applied by analogy: see R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204. I do not find this analogy to be helpful. Joint sentencing submissions are given special protection both because they contribute to the efficient disposition of criminal cases, and accused persons who plead guilty based on resolution agreements will have acted to their detriment in the reasonable expectation that the agreed upon sentence will be imposed: Anthony-Cook, at paras. 39–41. These factors do not apply here.
[88] I do accept that there may be circumstances where the failure by a trial judge to give a jury charge they have undertaken or agreed to provide could cause a miscarriage of justice that would provide a successful ground of appeal pursuant to s. 686(1)(a)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. But Mr. Dion has not established that a miscarriage of justice occurred in this case. Had he shown that his trial counsel limited his closing submissions or otherwise compromised his case in the reasonable expectation that the anticipated charge would be provided, things may have been different. But as described in para. 79 above, trial counsel made detailed submissions in anticipation that the jury would consider this evidence. In my view, the failure by the trial judge to give the charge he had agreed to give caused no injustice.
(2) Did the failure to give the agreed upon charge result in an insufficient jury charge?
[89] Mr. Dion argues that the charge itself was insufficient because the trial judge failed to direct jurors that the opinion evidence that was provided was of “no value” and instead, invited jurors to decide what inferences to draw. I note that at trial the request for a “no value” charge was confined to opinions expressed by firefighters that characterized Mr. Dion’s behaviour as “strange”. Similarly, Mr. Dion focused his appeal submissions on the testimony that his behaviour was strange. However, some of the submissions made before us are broad enough to capture all characterizations that firefighters offered about Mr. Dion’s demeanour, including that he was “very calm”, “didn’t look distraught”, or was “agitated”, “tired”, “excited” or “very excited”. I will therefore address all conclusory characterizations offered by firefighters about Mr. Dion’s demeanour. For convenience, I will refer to characterizations of his conduct as “strange” or “weird” as the “strange behaviour comments”, and the other opinion evidence about demeanour as “opinions about emotional state”. For analytical convenience, I will address these two categories in reverse order, dealing first with “opinions about emotional state.”
(a) The applicable legal principles
[90] There is no general rule requiring the exclusion of all demeanour evidence about the accused: R. v. Short, 2018 ONCA 1, 358 C.C.C. (3d) 337, at para. 52. To the contrary, demeanour evidence can be called to prove an accused person’s relevant state of mind: R. v. Trotta, 2004 CanLII 34722 (ON CA), 191 O.A.C. 322 (C.A.) (“Trotta (ONCA)”), at para. 41, rev’d on other grounds, 2007 SCC 49, [2007] 3 S.C.R. 453.
[91] Indeed, even lay opinion evidence can be called to prove an accused person’s demeanour. In Trotta (ONCA), Doherty J.A. upheld the admission, as after-the-fact conduct evidence, of the opinion of an emergency room physician that Mr. Trotta was acting in an unusually calm and disinterested manner while physicians were attending to his infant son’s fractured skull.
[92] A longstanding traditional exception to the general rule that lay opinion evidence is prima facie inadmissible permits this to be done. This exception allows lay opinion evidence to be called to prove the “emotional state of a person – e.g. whether distressed, angry, aggressive, affectionate, or depressed”: R. v. H.B., 2016 ONCA 953, 345 C.C.C. 3(d) 206, at paras. 74–75; R. v. Graat, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819 at p. 835. This traditional exception exists because it is not possible to communicate observations about another person’s emotional state effectively without resorting to conclusory statements.
[93] In Graat, the Supreme Court of Canada augmented this and other traditional exceptions to the lay opinion rule by developing a supplementary principled exception that can be applied on a case-by-case basis. This principled exception permits lay opinions to be admitted where the observations a lay witness has made are within their competence and are based on a “compendious statement of facts” that “are too subtle and too complicated to be narrated separately and distinctly”: Graat, at p. 841. This principled exception may also be relied upon to support the admission of lay opinion evidence, although it will generally be redundant since relevant demeanour evidence meeting this exception is likely to satisfy the traditional “emotional state of a person” exception as well.
[94] It follows that a direction to jurors of the kind that Mr. Dion seeks, namely, that demeanour evidence has “no value”, is not generally required. I can identify three circumstances where such a direction may be required.
[95] First, if the demeanour evidence is irrelevant, then it has no value because irrelevant evidence should not be admitted in the first place. If it is put before a jury, the jury should be told to disregard irrelevant demeanour evidence. In such circumstances, a “no value” direction is apt to suffice.
[96] In R. v. Chambers, 2021 ONCA 337, for example, the fact that Ms. Chambers was nervous upon arrest was found to lack relevance as after-the-fact conduct evidence because both the innocent and the guilty are apt to be nervous upon arrest. In Trotta (ONCA), Doherty J.A., concluded that evidence of Mr. Trotta’s calm demeanour at his son’s funeral should not have been admitted because there is no baseline for how grieving people may act: at para. 43. The trial judge was found to have erred in both of those cases by leaving that evidence with juries as after-the-fact conduct evidence, when they should have been told to disregard it, or that it was of no value to them.
[97] Second, if the demeanour evidence is otherwise inadmissible it will have no value because it is impermissible for jurors to consider inadmissible evidence. A jury should therefore be told to disregard inadmissible evidence that makes its way before them, or not to draw inadmissible inferences from otherwise admissible evidence. At the very least, jurors should be told that such inadmissible evidence has no value.
[98] In Chambers, at para. 20, for example, a “no value” instruction was required because inadmissible demeanour information had been presented before the jury. There, police officers not only described Ms. Chamber’s demeanour but went on to effectively express the opinion that she was acting guilty. Specifically, she was described as “like a deer caught in headlights” and being very concerned about the pending execution of a search warrant. Witnesses are permitted to offer relevant testimony about the demeanour of an accused, but they are not entitled to express their view that the accused was acting guilty. Guilt is for the trier of fact to decide.
[99] Similarly, it is contrary to the constitutional right to silence to infer that a person is guilty because they remained silent or did not ask questions when confronted by the police: R. v. Guillemette, 2022 ONCA 436, 162 O.R. (3d) 481, at para. 36. In R. v. Baltrusaitis, 2002 CanLII 36440 (ON CA), 58 O.R. (3d) 161 (C.A), the Crown sought to draw inferences of guilt on these bases. Moldaver J.A. held that it was an error for the trial judge to leave these inferences with the jury, although he explained that decision on the basis that these inferences lacked probative value because they were “highly suspect” or “easily misinterpreted”, the third basis for a “no value” instruction that I am about to describe.
[100] Third, as always, trial judges have discretion to exclude relevant and otherwise admissible demeanour evidence if its probative value is outweighed by the risk of prejudice that it presents: R. v. Levert, 2001 CanLII 8606 (ON CA), 150 O.A.C. 208 (C.A.), at para. 28. A judge who has determined that relevant and otherwise admissible evidence that has made its way before a jury will cause more prejudice than contribute probative value may choose to give a “no value” direction. Since the exercise of this discretion involves a judgment call, deference is to be given to the trial judge’s failure to exercise that discretion. There are cases, however, where the imbalance of prejudice over probative value is so prevalent that an appellate court may find that the failure to exclude the evidence, or to give a no value direction, is an error. In my view, the decision in Baltrusaitis to find error in the trial judge’s decision not to prevent the jury from relying on the calm reaction of the appellant upon learning of the death of his brother provides an illustration; in Baltrusaitis, Moldaver J.A. relied on Levert, a case about the exclusionary discretion, in deciding that “the probative value of this type of evidence is highly suspect and easily manipulated” and then finding that this inference should not have been left with the jury.
[101] I would encourage a ready use of the exclusionary discretion where demeanour evidence is offered as proof of guilt because demeanour evidence generally is recognized to carry risks. It may be prone to misuse and there can be controversy about its relevance, creating the risk of appellate intervention. Further, demeanour evidence should not be given too much weight. For these reasons it is common for this court to implore trial judges to receive such evidence with caution: Levert, at para. 27; Trotta (ONCA), at para. 41; Baltrusaitis, at para. 77. The exclusionary discretion is the mechanism available for demonstrating that caution.
(b) The “Opinions about Emotional State”
[102] In my view, the trial judge was not obliged to give a “no value” direction relating to the opinions that firefighters gave about Mr. Dion’s emotional state. I would not find the opinions that firefighters expressed about Mr. Dion’s emotional state to be irrelevant; I am not satisfied that they were inadmissible; and I would not interfere with the trial judge’s failure to exercise his exclusionary discretion.
[103] In terms of relevance, it is important to bear in mind that the firefighters were describing Mr. Dion’s emotional state while he was making unsolicited and allegedly false comments to them relating to his and Heeley’s whereabouts at the time of the fire. In my view, jurors were entitled to consider Mr. Dion’s demeanour at the time he made those statements in deciding whether he was attempting to mislead firefighters when he made those statements.
[104] Moreover, although reasonable people may disagree about whether Mr. Dion’s “calm” demeanour when he first approached the firefighters is consistent with his guilt, I would not find this inference to be an unreasonable one. The firefighters were describing Mr. Dion’s demeanour while the fire was still burning, and within minutes of a body being discovered inside. This was not demeanour during a post-event police interview, or a funeral. Just as Doherty J.A. found relevance in the demeanour of Mr. Trotta at the emergency room while his son was still being treated, it was not unreasonable for the trial judge to find relevance in Mr. Dion’s demeanour while the event was still underway. For example, it would have been open to jurors, as a matter of human experience, to infer from his calm demeanour when he came home to a fire that he did not appear to be surprised that the house was burning. Of note, at no point did Mr. Dion’s trial counsel suggest that his demeanour at the time of the fire was irrelevant. Indeed, Mr. Dion’s trial counsel appears to have appreciated the incriminating potential of his calm demeanor because he sought to show that Mr. Dion was not calm but in fact was “very excited”.
[105] Therefore, I would not find that the demeanour evidence was of no value as irrelevant. Nor do I see any other basis for finding it to have been otherwise inadmissible. The expressions of opinion fell within both exceptions to the lay opinion rule that I have described, and there is no suggestion that this evidence was being offered for an improper purpose.
[106] Finally, although the trial judge could well have chosen to exercise exclusionary discretion to prevent jurors from giving this evidence value, I would give deference to the choice he made.
[107] Therefore, I would not interfere with Mr. Dion’s conviction because the trial judge failed to give a “no value” direction relating to the opinions firefighters expressed about his emotional state.
(c) The “strange behaviour comments”
[108] I agree with Mr. Dion that the “strange behaviour comments” made by firefighters had no logical value in determining his guilt. These comments were not descriptions of his mental state but rather observations about how removed from the norm his behaviour was. The fact that behaviour may be far removed from the norm, even if true, tells us nothing logically about whether that behaviour is consistent with guilt. These comments therefore had no evidentiary value, and a direction to that effect would have been warranted. But in my view, a “no value” charge was not required. In the circumstances of this case, the direction that was given was functionally sufficient to instruct jurors on the proper use of after-the-fact conduct.
[109] First, the risk that jurors would rely on characterizations of Mr. Dion’s behaviour as “strange” or “weird” to infer his guilt was not a pressing one. As I have explained, the fact that conduct is “strange” or “weird” standing alone, even if it is a fact, does not logically suggest guilt. The impugned comments themselves do not provide a logical path to guilt that jurors would be likely to take.
[110] Moreover, the impugned comments were not emphasized in the case. Although Mr. Dion’s trial counsel suggested that “[p]eople [were] lining up saying he acted strangely”, that is not so. Only two firefighters used the word “strange” or “weird” in describing Mr. Dion’s conduct, Captain Brear, and Firefighter Ryan Fox.[^5]
[111] In addition, in my view the comments made by Captain Brear and Mr. Fox characterizing Mr. Dion’s behaviour would likely have had little effect on the jury. When their evidence is read in context, it is evident that what struck these witnesses as “strange” or “weird” was the question Mr. Dion asked as he was driving away. In fairness to Captain Brear and Mr. Fox, it is almost certain that jurors would also have found this conduct to be “strange” or “weird”, even if these officers had not said so, given how far removed asking about a missing $40 is from the conduct one might expect from a spouse who had just discovered that his home was badly damaged by fire, and his partner had perished.
[112] Finally, the trial Crown did not suggest to the jurors that the strangeness or weirdness of Mr. Dion’s behaviour was evidence of his guilt. In fact, the trial Crown never mentioned these characterizations. It was simply not part of the Crown case.
[113] To be sure, the trial judge did remind jurors that some firefighters considered Mr. Dion’s behaviour to be strange – once as an illustration of lay opinion evidence, and once in an umbrella comment before summarizing the material after-the-fact conduct evidence that the firefighters provided. This is unfortunate. But he did not quote what Captain Brear and Firefighter Fox had said, and he did not tell the jury that their opinions about how weird or strange Mr. Dion’s behaviour was would support a finding of guilt.
[114] For these reasons, it is my view that the risk that jurors would rely on the strange behaviour comments to infer guilt remained extremely modest, thereby reducing the need for a judicial direction.
[115] I am also persuaded that two features in the charge the trial judge did provide materially reduced, if not eliminated, the modest risk that jurors would rely on the “strange” or “weird” characterizations, either to draw inappropriate or prejudicial inferences.
[116] The first thing the trial judge did that reduced the risk of improper reasoning was to give a complete and correct direction to jurors about observations made about demeanour, and about limits on the probative value of demeanour evidence. He told them that the witnesses had no benchmark to judge Mr. Dion’s behaviour, and to bear in mind the stressfulness of the situation Mr. Dion was in. “There is no norm.”
[117] The second thing the trial judge did in his direction was to make it clear that what mattered in determining after-the-fact conduct was not how a witness characterized Mr. Dion’s behaviour, but rather the behaviour itself. As indicated in paragraph 83 above, he told jurors that in using the after-the-fact evidence, they were to “first” determine whether Mr. Dion “actually did or said what he was alleged to have said or done”. He then told them that if they were not satisfied that Mr. Dion did or said these things, “they were not to consider this evidence” in reaching their verdicts. I am satisfied that this direction would have focussed jurors on the underlying behaviour itself, and away from how two witnesses may have characterized this behaviour.
[118] I accept that it would have been better had the trial judge provided jurors with the “no use” direction he had promised relating to the “strange behaviour comments”. However, it is firmly established that “would have been better” is not the standard of appeal for jury charges: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at para. 35; R. v. Lozada, 2024 SCC 18, 492 D.L.R. (4th) 75, at para. 14. The charge, although imperfect, was responsive to the modest risks posed by the impugned evidence. The charge performed its required function of steering jurors away from the improper use of the after-the-fact evidence and left them equipped to apply that evidence fairly and properly.
[119] Finally, I do not accept Mr. Dion’s submission that the “no use” direction relating to Sunny’s improper editorializing about Mr. Dion’s guilt would have caused jurors to reason that it was permissible for them to use the characterizations of Mr. Dion’s behaviour as “strange” or “weird” as evidence of guilt. In my view, this is a subtle line of reasoning that is most unlikely to have occurred to jurors, particularly given that inferring guilt from the opinions expressed by others about the strangeness or weirdness of Mr. Dion’s conduct was discouraged, if not prohibited, by other aspects of the jury charge.
(d) Whether the charge was balanced
[120] I also reject Mr. Dion’s argument that the jury charge was unbalanced because the trial judge did not recap the opinions Mr. Mercieca expressed about Mr. Dion’s demeanour. The trial judge did not consider this to be pivotal evidence, and I take no issue with his judgment. During an exchange with Mr. Dion’s trial counsel, the trial judge considered and disagreed with the suggestion that Mr. Mercieca’s opinions about demeanour were worth more because he knew Mr. Dion better than the firefighters did. The evidence showed that the men were not close and their familiarity with one another was insubstantial. As well, the firefighters who testified about Mr. Dion’s emotional state after Heeley’s body was discovered gave much the same demeanour evidence as Mr. Mercieca. Mentioning Mr. Mercieca’s demeanour evidence would have added little if anything.
(e) Conclusions on the third ground of appeal
[121] Mr. Dion has not satisfied me that the trial judge erred by permitting jurors to consider opinion evidence that firefighters offered about Mr. Dion’s demeanour. The trial judge did not commit a reversible error in failing to deliver the charge he undertook to give. The charge he did give was correct relating to the opinion about emotional state evidence and adequate relating to the strange behaviour comments. It was not imbalanced or unfair.
CONCLUSION
[122] I would deny Mr. Dion’s appeal.
Released: January 9, 2025 “D.M.P.”
“David M. Paciocco J.A.”
“I agree. L. Favreau J.A.”
“I agree. D.A. Wilson J.A.”
[^1]: I mean no disrespect in referring to Ms. Balanga as “Heeley”, or to her mother, Sunny Balanga, as “Sunny”. I am doing so to avoid confusion.
[^2]: This is the name attached to the exception in the leading decision of R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at p. 926, where it is alternatively described as the “present intentions” statement.
[^3]: In Carroll, at paras. 88, 108–112, Watt J.A. appears to have upheld the trial judge’s admission of statements to prove the state of mind of the victim because they satisfied the requirements of the principled exception. It stands to reason that where the principled exception is being invoked only to prove the state of mind of the speaker, the threshold reliability inquiry should focus on whether the statements reliably reflect the speaker’s present state of mind, and not on whether the past acts or events referred to in the statement actually happened.
[^4]: The trial judge presented a written draft charge to counsel prior to the pre-charge conference, and he gave jurors a written copy of his prepared charge. With respect, he should have preserved copies of these documents for the court record by marking them as alphabetically enumerated exhibits. Without these documents before us, it is not possible to know with certainty what was in the draft charge, or whether the limiting instruction the trial judge undertook to provide was included in the written charge. Both counsel proceeded before us on the assumption that the limiting instruction was not included in the written charge, so this appeal is being decided on that footing.
[^5]: Two police officers narrated that an unidentified firefighter commented that Mr. Dion was acting strange at the scene of the fire, but this was not their characterization. The jury was instructed not to use hearsay evidence to prove the truth of the statement. Given this, and that the current ground of appeal was confined to opinion evidence provided by firefighters, I will say no more about this.