CITATION: R. v. Martineau, 2015 ONSC 2551
NEWMARKET COURT FILE NO.: 12-00002982
DATE: 20150421
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen Applicant
– and –
James Martineau Respondent
Peter Westgate and Gemma Sang, for the Crown
Corbin Cawkell and Aliki Yorgiadis, for the Defence
HEARD: April 2, 2015
RULING ON APPLICATION TO EDIT LETTERS WRITTEN BY JAMES MARTINEAU
RESTRICTION ON PUBLICATION: Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
gILMORE J.:
Introduction
[1] This is the Crown’s application to edit certain letters written by Mr. Martineau while in custody. Most of the letters were written to his girlfriend at the time, Chanel Wasson. Authorship of the letters is not in dispute. They were written by Mr. Martineau while at Central East Detention Centre.
[2] The Crown submits that the letters are relevant to the issues of identity, motive, and whether Mr. Martineau planned and deliberately murdered the victim in this case, Mr. Ivan Davison. The Crown also submits that the letters are relevant to the anticipated defences of provocation, intoxication, self-defence and the third party suspect defence.
[3] The defence position is that without significant editing the letters only show bad character and will invite prohibited propensity reasoning. As well, with the required editing, the letters will no longer make sense and invite speculation by the jury as to why such large portions of the letters were excised.
[4] The background to this matter has been previously set out in my Ruling related to Mr. Martineau’s audio and videotaped statements.
The Letters
[5] There are 13 letters in total that are the subject of this application. Other letters were written but counsel have either agreed on the edits to those letters or the letters will not be shown to the jury. Of the letters that are the subject of this application, six are written to Mr. Martineau’s girlfriend at the time, Chanel Wasson, one to his father, one to “Jenn”, one to “Jessica”, one to “Missy, Rich”, one to “Tawnya” and two to “Nadia.”
[6] Significant edits of irrelevant and prejudicial information have already been agreed to by the Crown and defence. This application deals only with the disputed edits.
The Law on Editing
[7] The court has a general discretion to edit statements in order to avoid prejudice and irrelevancies so long as the editing can be done without distorting the nature of the evidence.[^1] As with the admissibility of all potentially prejudicial evidence, the court must balance its prejudicial effect against its probative value. Prejudice may include evidence that evokes an emotional response by the jury, thereby imperilling their ability to reach an objective verdict. Proper editing is also meant to avoid the danger that the jury could use the evidence to infer guilt through propensity reasoning.[^2]
[8] As well, the editing must not result in a statement which loses its original intention. That is, the edits cannot be so significant as to mislead the trier of fact even with the proper warning instruction. In R. v. Otis[^3], the edits turned the accused’s conversation with a third party about feeling afraid into a threat to kill someone. A new trial was ordered as a result.
[9] It is also important there be some nexus between the statement and the actual circumstances. As per R. v. Liard[^4] “The more similar the writings are to the alleged events, the stronger the inference that the author was interested in the very activity that happened. The more generalized the writings, the more they may only exhibit a “dark or disturbed thought pattern,” and the less probative they are to the issues of motive, planning and state of mind.” In the Liard case a death metal poster which said “I’ll stop stabbing …when you stop screaming” was excluded on the ground that it was generalized evidence and taken from the lyrics of a death metal song. It was not written by the accused (as was a short story that was not excluded), but the court considered that the poster could result in substantial moral reasoning prejudice and could lead the trial down avenues that were “time-consuming and distracting.”[^5]
[10] Where there is a concern about a link between the statement and the known events, a careful instruction can be given to the jury about the proper use of such statements. In R. v. Terry[^6], the court held that an undated and unsigned poem in the accused’s handwriting and found in his bedroom was admissible. The poem referred to the taking of a life and the court held that despite its tenuous connection to the alleged murder and its lack of detail, that the probative value of the poem outweighed its prejudicial effect so long as a careful jury instruction was given.[^7]
[11] In R. v. Eng[^8], a poem in the possession of an accused charged with arson and entitled “The Arsonist” was admitted into evidence. The court held that if the accused had written it, it amounted to a confession and was highly probative. The jury was properly instructed that the accused may not have written it, but kept it in his possession because he thought it was humorous. The court held that the prejudicial effect of admitting the poem into evidence did not outweigh its probative value.[^9]
The Letters
A. The Letters to Chanel Wasson
Letter #2
[12] This letter was dated January 12, 2012. The Crown seeks to retain a portion of the letter which is a poem written by Mr. Martineau entitled “No Future for a Killer”. The poem reads as follows:
Second Degree Murder, about ten years til I’m out
A punishment I deserve, of that there’s no doubt
But still I sit wondering, day in and day out
What can life offer, when I’m finally let out?
My children will be grown, and I will be old
My soul’ll be rotten, from years in the hold
Finding a job impossible, people are cold
Who’d give a killer a job, at forty years old?
Though my debt will be paid, my storie’s (sp.) been told
I’ll be just an old man, left out in the cold.
[13] The Crown submits that the poem is self-explanatory and contains admissions. While it may refer to punishment, the public is aware that people convicted of murder go to jail. In any event, the jury will receive an instruction that their considerations are not to include punishment in the event of a conviction.
[14] Further, paragraph two of the letter contains a reference to Mr. Martineau not looking forward to hearing Ms. Wasson testify as she will be on the “wrong team”. The Crown submits this is relevant to other references made by Mr. Martineau in subsequent letters where he is planting a seed of intimidation with respect to Ms. Wasson’s testimony.
[15] The defence submits that the poem should be edited out completely. The jury should not be given any statement by Mr. Martineau which suggests he is deserving of punishment. That is not for the jury to decide or speculate upon. The poem is simply an expression of Mr. Martineau planning for the worst, and coming to terms with it, but would be confusing to the jury and highly prejudicial if left in.
Letter #3
[16] This letter was dated January 13, 2012. The disputed edits in this letter are as follows:
Yeah, I really messed up, in Allah’s eyes. It’s an eye for an eye. I took a life, a life be took…I might give that life back, by counselling some kid from a ghetto with anger in his heart and the devil in his head and a gun in his pocket, who knows what I’ll do, I’m not Allah, I cannot speak of what I don’t know, my future, my near future is bleak,…
I can replace the life I took from Ivan by helping the life of someone else, I think. It may not be how it works, but it’s something I’m willing to try, and as long as I believe I can do it, then with Allah’s blessing, and his guidance, I will get it done. Keep him in my heart, and in my mind.
…I’d like to be at my son Riley’s grad from college with his l’il brother Chayce (punctuation added).
In the phrase “maybe what I’m in jail for woulda never happened…” the parties agree that the portion “what I’m in jail for” should be edited out but the Crown seeks to keep in the words “maybe” and “woulda.”
[17] The Crown views these passages as relevant because the “eye for an eye” portion is a form of confession and that even with the agreed upon edits the letter flows logically. Mr. Martineau specifically refers to Ivan’s life being the one he took. This is relevant to identity and the third party suspect defence.
[18] The portions of the statement that reference Mr. Martineau’s inability to forgive his childhood abuser, “David”, are relevant to animus and motive because of his indication that if he had been able to forgive David none of this would have happened.
[19] The defence position is that the first edit raises a legal issue with respect to Mr. Martineau’s culpability and may distort the jury’s view. The reference to Mr. Martineau wanting to be at his son’s graduation refers to his possible punishment and the seriousness of the offence and should be removed.
Letter #9
[20] This letter was dated January 22, 2012. The disputed edits are as follows:
I cannot return the life I’ve taken, yet I must give one back.
…and I will wash my hands of the blood I made spill.
[21] The Crown argues that this part of the statement is a form of confession and, therefore, relevant to identity and the rebuttal of defences raised by Mr. Martineau.
[22] The defence does not agree. The defence views these lines in the letter as indicative that Mr. Martineau is in custody and they relate to the seriousness of the offence.
Letter #10
[23] This letter was undated. The disputed edit is on page three as follows:
I’m a bit anti social, looking at rapists only makes me wanna snap their necks, or kick em down the stairs, stab them with a pencil in the neck… I know they’re unhealthy thoughts, shit, the sickos ought to be put to death, you can’t fix a rapist all avenues have been tried, castration, chemical-castration, electric shock therapy, hypnosis, medication, I’ll fix one, then another, cut off his hands, and his dick!! Brand him with a big R for rapist, or S.O. for sex offender, then the public’ll learn to deviate, people start to get maimed for touching kids, or grabbing people draggin’ em to a bush and raping them, nothing helps the victims of rape. They have to live with that forever, they may ajust (sp.) to it but they’ll never forget it, or forgive it, not fully. I say the victim can prove it, get the conviction they should decide the penalty, death, torture, sodomy, all of the above, you get found guilty for rape, the victim should decide your fate, however gruesome or cruel, cus that sick fuck decided to fuck his/her victim’s head up, forever. Let the victim pick his/her fate.
[24] Mr. Martineau’s videotaped statement contains references to Ivan Davison having touched Mr. Martineau in a sexual manner and thus infers Mr. Davison is deserving of his fate. Mr. Martineau’s views in this paragraph about what should happen to sexual offenders is therefore relevant to animus, identity, motive and rebuts the defences of provocation and third party suspect.
[25] The defence submits that page three of the letter should be deleted in its entirety. It is non-specific and unrelated to the case. Its violent tone is more prejudicial than probative and invites prohibited propensity reasoning.
Letter #15
[26] This letter is dated January 31, 2012. The disputed edits are located on pages three and four of the letter as follows:
I think they’ll try to make my mom and spooks sing on me. I’m positive of it actually. My mom’ll be fine, I’m stressed about the other…he’s put shit on me in the past to save his own hide, he might see it as a way out. Throw rocks into my bucket, but he’d sink us both by accident, he’s not too inteligent (sp.), but he’s my boy…I still got love for him. Sink or swim…Fuck, they’ll make you come to the prelim, ask you to go over your statement then speak against me in court, it’s gonna hurt to hear you tell them what I told you, you can’t refuse either, it’s law. They can jail you for contempt.
…He’s [my lawyer’s] just doing his job, and his job is to make you look like a lying sack of shit with a mental problem, who can’t possibly be taken seriously, that the police put pressure on you…somehow and you made it all up to get them to let you go, that’s his job.
[27] The Crown submits that these portions once again refer to the implications of Chanel giving evidence against Mr. Martineau. He is subtly coaching her to say that she made things up as a result of police pressure. Further, Mr. Martineau speculates about Rian McLean’s involvement and knowledge. All of this is relevant to the third party suspect defence, identity, intent and motive.
[28] The defence argues that these portions of the letter should be edited out because they imply experience with the justice system in matters such as witness statements and preliminary enquiries. Discussions about strategy related to upcoming court proceedings invites possible inappropriate speculation by the jury.
Letter # 16
[29] This letter is dated February 5, 2012. The disputed edits are on page two as follows:
…if I have to tell it in front of 12 peers, I might not like the dramatic conclusion, but who knows. Maybe 3 of the 12 have been sexually assaulted that can hang my jury, re-trial, hope again that I get a few victims of rape in my jury, or parents…
[30] According to the Crown, this portion of the statement is relevant to identity and motive because it fits with the animus related to Mr. Martineau killing Mr. Davison because he sexually assaulted him.
[31] The defence is concerned that this extract deals with the legal process. With all of the other agreed upon edits in this letter, there will be very little content left. Thus, it will not flow and will invite speculation by the jury as why so much content was deleted.
Ruling on Edits – Letters to Chanel
[32] There is no doubt that the letters to Chanel have some general themes throughout. These can be summarized as:
a. Coming to terms with his possible punishment and how that will affect his children and all other aspects of his life;
b. His upcoming legal proceedings;
c. A “just desserts” type speculation on what should happen to people who commit serious crimes and especially crimes that are sexual in nature; and
d. Reflections on the moral and religious implications of killing someone.
[33] Some of Mr. Martineau’s speculation on the above themes is rambling and I agree with the defence relates to punishment and criminal culpability issues which are not appropriate for the jury. In that vein, I find that the disputed references in Letter #16 should be edited out. The prejudicial effect of a jury hearing that Mr. Martineau understands what might be involved in a re-trial because of a hung jury or speculating on the make-up of the jury may lead to propensity thinking. The prejudice cannot, in my view, be overcome by a limiting instruction.
[34] Similarly, references to Mr. Martineau’s knowledge of trial procedure and the court system in Letter #15 should be edited out as having a prejudicial effect that outweighs any probative value. That is not to say, however, that all of the disputed edits in Letter #15 should be deleted. With some carefully selected deletions, as I will reference below, the content related to telling Chanel what to expect from Mr. Martineau’s lawyer and his ruminations about Mr. McLean must be left in as they relate to intent and the third party suspect defence. As such, on page three of Letter #15 after the sentence “Sink or swim,” the next sentence will read “They’ll ask you to speak against me in court, it’s gonna hurt to hear you tell them what I told you, you can’t refuse either, it’s law.” The sentence “They can jail you for contempt” shall be deleted. The balance of the disputed edits in Letter #15 shall remain in the letter.
[35] The disputed edits in Letters #2, #3 and #9 are confession related statements. The court must consider whether there is a sufficient nexus to the alleged events. The poem in Letter #2 is not general commentary written by someone else (as in Laird) or writings whose only connection to the accused were that they were found in his room (as in Terry). I find that the poem in Letter #2 is very clearly about the alleged events and obviously written by Mr. Martineau.
[36] While there is no doubt that the poem discusses punishment, I agree with the Crown that it is unlikely that any member of the public is unaware that some length of prison term is associated with a murder conviction. An instruction to the jury with respect to avoiding any consideration of punishment in their deliberations is sufficient to cure any prejudice in that regard. Further, the admissions in the poem are of probative value with respect to identity to such an extent that they outweigh any prejudicial effect.
[37] With respect to Letter #3, I agree that the edits on page one are forms of confession and relate to identity and the potential third party suspect defence. Mr. Martineau specifically refers to “the life I took from Ivan”. This is not confusing, nor does it support an inference of guilt based solely on bad character. It is the moral/religious type rumination that is a theme in many of Mr. Martineau’s letters.
[38] I agree with the defence that the edit on page two related to Mr. Martineau’s wish to be present at his son’s graduation from college relates to punishment. The entire line starting with “In 25 years” and ending with “...going into high school” shall be deleted. By contrast, the reference to punishment in the poem in Letter #2 is contextual and relevant. The reference to punishment in Letter #3 is not in a poem and may encourage prohibited speculation on the part of the jury about the length of a possible sentence.
[39] The words on page two, “maybe” and “woulda”, shall remain and not be edited out. Without them the sentence lacks sense and proper flow.
[40] With respect to Letter #9, the subject lines are clearly a confession. I do not agree with the defence that these lines relate to Mr. Martineau being in custody. I find these to be similar to the confessions in Letters #2 and #3. There is a clear nexus to the circumstances of the case, and the probative value is significant with respect to identity and the rebuttal of the potential third party defence as Mr. Martineau refers to himself taking another person’s life.
[41] The disputed portion of Letter #10 relates to Mr. Martineau’s views on how punishment should be meted out to sexual offenders. While this passage is somewhat graphic, it is highly relevant to Mr. Martineau’s confession to Chanel and his sister Nicole with respect to the killing being done in response to Mr. Davison touching Mr. Martineau while in bed. This passage is directly related to motive, animus and the potential third party defence and shall not be the subject of editing.
B. Letters to Persons Other than Chanel Wasson
Letter #21 to “Dad”
[42] This letter is dated January 27, 2012. The parts sought to be edited out by the defence are as follows:
Well it’s been almost 30 days since I was arrested for second degree murder, wow huh. You ever think you were gonna raise a killer?
I’m not saying I had to kill the guy, but shit went south fast, and he’s dead. I can live with the punishment, for with God I am safe. I was righteous and punishing my flesh won’t destroy my soul.
I’m sorry I didn’t become a cop or a banker or a florist, but it’s no one’s fault…
[43] The defence argues that these passages reference the seriousness of the offence show, a propensity for violence on the part of Mr. Martineau and, in particular, the reference to “Dad” having raised a killer is very prejudicial.
[44] The Crown’s position is that these are clear confessions which relate to identity, animus, motive and intent and rebut the defence of provocation and third party suspect.
Ruling on Letter #21 Edits
[45] I find these references to be highly probative as confessions and in relation to the issue of intent and identity. The reference to “David” in the letter and Mr. Martineau having to “kill the guy” are relevant to Mr. Martineau’s statement and confessions that the killing was in response to the sexual touching by Mr. Davison and, therefore, directly related to animus and the third party suspect defence.
[46] I respectfully reject the defence argument that the reference in paragraph two shows a propensity for violence. No details about the referenced killing are given. It is a form of confession which is of sufficient probative value to outweigh its prejudicial effect.
Letter #22 to “Jenn”
[47] This letter is dated January 26, 2012. The challenged edits are as follows:
Let me ask you, do you think it’s fucked up that your writtin (sp.) a killer? How’s your habit? You ought to lay off that shit, it’s not good for you! Who am I to talk! Lol. I know, as if killing people is better, right!
Do I regret it, not really…I regret being so stupid. If I came upon the same shit would I do it again, yes. Would I change anything, yes. Hindsight is 20/20.
So the news dubbed me “the Hatchet Man.” Lol. Fucking tattoo, shoulda never got it, now I like it. I’m so happy I didn’t get Criss to put blood on the blade and foot prints (sp.) on my neck.
[48] The defence submits that these passages suggest Mr. Martineau is dangerous and therefore they are overall more prejudicial than probative. The paragraph referencing the “Hatchet Man” is irrelevant and inflammatory and therefore prejudicial.
[49] The Crown argues that the passages on the first page are highly probative as confessions and are therefore related to intent and to rebut the defences of provocation and third party suspect. The “Hatchet Man” paragraph is consistent with the meat cleaver found in Wendy Martineau’s room which had blood on it. The blood DNA testing revealed it was Mr. Davison’s blood. Dr. Pollanen’s evidence will be that Mr. Davison had a crushed larynx from a wide flat object, which the Crown will submit could have been a shoe. The Crown seeks to draw the inference that “blood on the blade” refers to the meat cleaver and that the “footprints on the neck” refer to Mr. Martineau stomping on Mr. Davison’s neck.
Ruling on Letter #22 Edits
[50] I agree with the defence concerning the “Hatchet Man” paragraph on page two. I am concerned that the jury may be confused by these references as they are inflammatory and obtuse in nature. The Crown can rely on the forensic evidence without these references. They shall be edited out.
[51] The remaining passages shall not be edited out as they are relevant confessions and possible indications of animus.
Letter #23 to “Jessica”
[52] This letter is undated, but Letter #22 indicates that Mr. Martineau is including a letter to Jessica with Letter #22. One may infer, therefore, that Letter #23 was also written on January 26, 2012. The disputed passages are as follows:
Don’t get it twisted, his life was ended at my hands, but there’s reasons I did it. And the rumors people are saying were all started by me. I can’t say what happened.
I’m not sorry I did it.
…being accused of murder isn’t fittin too well in my head.
[53] The Crown submits that these passages are confessions related to animus, motive, intent and to rebut defences.
[54] The defence submits that the lines must be edited out as they imply that Mr. Martineau is dangerous. They are therefore more prejudicial than probative.
Ruling on Letter #23 Edit
[55] Similar to the ruling related to Letter #22, these passages are forms of highly probative confessions. I agree with the Crown that they may be related to motive, intent, and animus, and may be used to rebut defences.
Letter #25 to “Missy, Rich”
[56] The Crown and defence disagree on two lines in this letter. The rest of the letter is to be edited out by agreement. Those lines are as follows:
The cop said he knows 100% it was me. He just doesn’t know why. No Motive?!? I got one for you…he’s a pervert. A dirty old pervert who…I can’t say it can be used. I got enuff (sp.) against me on my plate, no need for me to add more.
[57] The defence seeks to exclude this reference on the basis that it relates to the seriousness of the offence and is highly prejudicial to Mr. Martineau. Further, people want to believe what police officers say so the reference to what the police believe is highly prejudicial to Mr. Martineau as well.
Ruling on Letter #25
[58] This passage shall be left in as it relates directly to Mr. Martineau’s videotaped statement in which he said he was touched by Mr. Davison when he was sleeping and Mr. Davison therefore “deserves what he gets.” This is highly probative and also relates to the third party suspect defence.
Letter #27 to “Tawnya”
[59] This letter is dated January 19, 2012. The disputed passages are as follows:
Dear Tawyna,
Sorry if I spelt that wrong love. I’m not sure if it’s Tanya or Tawnya. So I take it you’ve spoken to Rian, God love him. How is he holding up? I’ve no clue what’s going on with him. I’m a little busy dealin with my case…
My Mom and Rian are soft…
He didn’t “create” the body. His part was soft. I have to live with it on my mind, feel it on my soul.
Anyways, listen, the news’ll over play this story. I know you’ve heard a lot of diffrent (sp.) shit, with respect to my case, it’s mostly rumour. Yes, some of the vic. is missing. But that’s all I can say. I can’t talk. And even then I ought not to, but know this, there is no “innocent” blood shed and that Rian did not tarnish his soul.
Look, I know your Rian’s brejin’, you guys are homies so be his homie, be there for him. Pls! Don’t give up on him. He got dragged into this by accident, I know he is shakin’ it rough, he’s gonna need someone to stand by him, he’s not like me, he’s squishy. But I love him, no not queer, I know him 20 years almost. Never seen him fight, he’ more “lover.” You know? I just know he needs someone, to help him steer clear of the depression.
[60] The Crown submits this is both a confession and an admission in terms of Rian McLean’s lack of direct involvement. It also supports Chanel Wasson’s evidence, which will be that Mr. Martineau told her that Mr. McLean came upon all of this by accident and that the murder had already happened by the time he arrived. This letter is highly relevant to post offence conduct and identity. Further, the Crown points out that if Mr. McLean committed the murder as alleged in the third party defence, why would Mr. Martineau need to write any of these letters?
Ruling on Letter #27
[61] While there is no doubt some prejudicial effect in allowing these passages to remain intact, the probative value in terms of Mr. McLean’s involvement outweighs that prejudice. Mr. Martineau seeks to have a third party defence put to the jury. The third party is Mr. McLean. Therefore, his statements about Mr. McLean’s involvement and his “softness” are highly relevant and probative.
The Two Letters to “Nadia”
[62] Mr. Martineau wrote two letters to Nadia. The first letter is undated and the second letter is dated 15-5-13.
[63] The disputed passages are as follows:
I’m clearly on camera at the bank… how am I the one who is beating the victim at my apartment, how can I be at two places at once. I’m either at the bank or I’m at my house. I can’t do both. If I’m at the bank who’s torturing the victim? If I’m at my house then who’s at the bank? I don’t think they can prove murder.
…he’s lucky as fuck cause honestly he could be charged with what I’m being charged with. The judge even says he thinks he was my partner, and that he’s lucky. All the evidence supports it.
[64] The Crown submits that these passages are in stark contrast to the passages in Letter #27, in which Mr. McLean’s involvement is minimized. The Crown’s position is that after hearing the judge’s comments at the preliminary enquiry about the fact that Mr. McLean could have also been charged with murder, the idea began to form that Mr. Martineau would advance a third party suspect defence. The Crown posits that, therefore, the questions asked by Mr. Martineau in these paragraphs represent a change in thinking on Mr. Martineau’s part from an accused who says that Mr. McLean did not “tarnish his soul” to someone who is lucky he did not get charged with murder.
[65] The defence submits that the “Nadia” letters will be edited beyond recognition, and are therefore of minimal use to the jury or will only invite speculation as to why so much was edited out. As to the Crown’s arguments, there are no dates in the letter to indicate when Mr. Martineau’s views on Mr. McLean’s involvement may have changed.
Ruling on “Nadia” Letters
[66] These letters are highly relevant to the third party suspect defence being advanced by the defence. The clear change in thinking regarding Mr. McLean’s involvement on the part of Mr. Martineau should fairly form part of the Crown’s response to this defence if the defence is allowed to be put to the jury. The timing is also of importance as the preliminary enquiry was completed on April 17, 2013 and the second letter was dated May 15, 2013. This timing fits with the Crown’s submission regarding a change in Mr. Martineau’s thinking after Justice Kenkel’s comments at the preliminary enquiry.
Justice C.A. Gilmore
Released in Open Court: April 21, 2015
NOTE: As noted in court, on the record, this written ruling is to be considered the official version and takes precedent over the oral reasons read into the record. Any discrepancies between the oral and written versions, it is the official written ruling that is to be relied upon.
[^1]: R. v. Toten, 1993 3427 (ON CA), [1993] O.J. No. 1495 at para. 57. [^2]: Ibid at para. 61. [^3]: [1978] O.J. No. 392 at para. 12. [^4]: [2013] O.J. No. 4000 at para. 90. [^5]: Ibid at paras. 100-101. [^6]: 1996 199 (SCC), [1996] 2 S.C.R. 207 [^7]: Ibid at paras. 28-30. [^8]: [1999] B.C.J. No. 1588 (BCCA) [^9]: Ibid at para. 41.