Court File and Parties

COURT FILE NO.: 28/18 DATE: 2019-03-19 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – ROGER CRAIG SHORT Defendant/Applicant

Counsel: Nicole Stoner, for the Respondent David G. Bayliss, for the Defendant/Applicant

HEARD: February 11, 13 and 15, 2019.

THOMAS, RSJ.:

REASONS ON PRETRIAL APPLICATIONS

Background

[1] In the early morning hours of October 19, 2008, Craig Short called 9-1-1 from his home in Corunna. He reported that he had just returned from socializing with friends after a hockey game in Sarnia. He told police that he found his wife, Barbara Short, face down on a woodpile next to a gas tank at the rear of their property. She was dead upon his arrival.

[2] Craig Short was charged with first degree murder on October 24, 2008 and was granted bail on December 19, 2008. His first trial before Justice John Desotti resulted in a hung jury on May 26, 2012. On February 27, 2013, after a 19 day trial before Justice Joseph Donohue with a jury, he was convicted of the first degree murder of his wife.

[3] On January 2, 2018, the Ontario Court of Appeal granted his appeal and ordered a new trial. Craig Short was granted bail pending appeal on February 23, 2018, having spent five years in custody.

[4] Justice Doherty, writing for the Court of Appeal, set aside the conviction and granted a new trial having found a miscarriage of justice when the trial court refused to allow Phillip Millar, counsel for Craig Short, to withdraw from the case.

[5] I have already heard and rendered my decisions on three defence applications:

(a) To stay the proceedings; (b) To admit evidence of alternate suspects; and (c) To recuse myself for a reasonable apprehension of bias.

The Applications

[6] The next set of applications include the following:

Crown Applications

1. For leave to call more than five expert witnesses;
2. Admitting statements by Craig Short to persons in authority;
3. Admitting evidence of prior discreditable conduct;
4. Admitting evidence of post-offence conduct of Craig Short.

Defence Application

5. Precluding reliance by the Crown on the testimony of Craig Short in the second trial

1. More Than Five Experts

[7] The Crown intends, with leave, to call seven expert witnesses. The identity of those witnesses and a brief statement of the area of their evidence in set out below:

1. Joel McGrory, forensic biologist at the Centre of Forensic Sciences: on the issue of body fluid identification and DNA analysis;
2. Monica Sloan, forensic biologist at the Centre of Forensic Sciences: on the issue of body fluid identification and DNA analysis;
3. Dr. Dirk Putter, coroner: on the issue of cause of death;
4. Dr. Michael Shkrum, forensic pathologist: on the issue of cause of death;
5. Dr. David Ramsay, neuropathologist: on the issue of cause of death, with a specialized focus on the nervous system (including the brain);
6. Sgt. Vern Crowley, OPP e-crimes: on the issue of forensic digital analysis of computer and USB drive of deceased, in particular, the recovery of files from those devices; and
7. Cst. Craig Stewart, forensic identification officer: on the issue of blood spatter analysis.

[8] In addition, the Crown suggests they may seek to call two further experts, presumably depending on how the trial progresses:

1. Alex Lau, forensic accountant: regarding the financial circumstances of the Short family prior to the murder; and
2. Expert witness from the RCMP regarding forensic digital analysis of audio recordings created by D/Cst. D.L.

[9] The Defence is prepared to consent to leave being granted. Despite that it is necessary for me to consider the circumstances and whether to grant leave.

Analysis

[10] Section 7 of the Canada Evidence Act states the following:

Expert witnesses

7 Where, in any trial or other proceeding, criminal or civil, it is intended by the prosecution or the defence, or by any party, to examine as witnesses professional or other experts entitled according to the law or practice to give opinion evidence, not more than five of such witnesses may be called on either side without the leave of the court or judge or person presiding.

[11] The purpose of the limit on expert witnesses is to prevent abuse, expense and unnecessary delay and so that the judge does not become overwhelmed by the opinions of an endless battery of experts. The Court then needs to concern itself with the probative value of the evidence and the potential of unnecessary duplication. Canada (Commissioner of Competition) v. Chatr Wireless Inc., 2013 ONSC 5385, paras. 9 and 10; Altana Pharma Inc. v. Novopharm Ltd., 2007 FC 1095, paras. 46-47, 55.

[12] I am content that as to this prosecution, each expert witness offers a distinct perspective of the issue about which they may testify. I am also convinced that counsel will focus their questions on specific concerns and not unduly prolong the examination or cross-examination.

[13] As a result, the additional expert witnesses will not amount to an abuse, cause delay or unnecessary expense and with proper direction will not overwhelm the fact-finding function of the jury.

Conclusion

[14] Leave is granted for the calling of the expert witnesses identified by the Crown in its application.

2. Statements to Persons in Authority

[15] Craig Short’s contact with persons in authority commenced with his 911 call at 1:33 a.m. on October 19, 2008. This call lead to a number of consecutive statements to EMS personnel, the coroner, first responding officers and then lengthy contact and interviews with O.P.P. officers T.A., D.L. and M.. His final statement was the post-arrest audio/video recorded interview with M. on October 24, 2008.

[16] As part of the abuse of process application, the Defence argued that the interview with M. of October 21, 2019 should be inadmissible due to the tactics of D.L. immediately prior to the statement and the manner in which M. conducted the statement. I found at para. 194 of that decision that D.L. was legally entitled to set up the interview as he did, and I went on to find in the context of that application that there was no reason in law to exclude the statement. The Defence has declined to argue for the exclusion in the context of this application.

[17] The Defence concedes the voluntariness and admission of Craig Short’s statements to persons in authority. The issue of the content of judicial direction on what use the jury is able to put to the statements will be addressed as the trial progresses.

[18] In its Responding Factum, the Defence identified areas of the audio/video statements of M. which it proposed needed editing. In its reply material, the Crown has appropriately reacted, conceding the vast majority of the editing sought to eliminate the opinions of Officer M. and at times his long soliloquies regarding his view of the case and the investigation.

[19] The edits in the statement of October 21, 2008 have been agreed upon by the parties and I need not mention them further. The material filed on this application adequately details the edits.

[20] The post-arrest interview by M. of October 24, 2008 has no probative value. The Defence however will be able to refer to pages 86-90 where Craig Short explains his mental state, his attendance with his doctor, and the medication prescribed.

[21] Beyond the statements to persons in authority, Short provided comments to Tara Hagan, a reporter employed by the Sarnia Observer. On October 24, 2008 Hagan made a “cold call” to the Short residence and spoke to Craig Short for six minutes and 21 seconds. She audio recorded the call without the knowledge of Short.

[22] In the call, Hagan enquired about Short’s knowledge of the divorce proceeding commenced by Barbara Short, her allegations of cruelty and her knowledge of the “Eleni” tattoo being indicative of his love for Helen Tsaprailis.

[23] The Crown concedes some editing of the cruelty comments is necessary. I agree with the Defence position on the editing of this statement. The discussion on page five of the written transcript of the statement where the allegations of cruelty are discussed is inflammatory and unnecessarily prejudicial (R. v. Jacobsen; R. v. Grewall, 2000 BCSC 1669, para. 36; R. v. Calnen, 2015 NSSC 318, para. 10).

[24] The portion of questions and answers commencing with:

Hagan: Um, well on this document there are about um 6 claims of cruelty…

down to and including,

Short: I never… I never seen any of that… I said to her just flabbergasted by all these allegations… see my daughter’s right here if you wanna talk to her.

will be edited out of the recording and any transcript forming part of the evidence.

[25] There are questions and answers at the top of page six of the transcript that are confusing, and as a result, have no probative value. There will be an edit commencing at the top of page six and ending with: Hagan: mm hm.

[26] I am content that the balance of the Hagan recording still holds together and is admissible.

[27] In the abuse of process application, significant evidence was called regarding the investigative practices of D.L., which included recording all his interactions with Craig Short.

[28] The Crown lead all of those recordings in the first two trials. While the Defence concedes the admissibility of the audio/video interviews of T.A. on October 19, 2008 and M. on October 21, 2008, it maintains that the Crown should lead as well the D.L. audio recordings of:

(a) October 19, 2008 at 7:09 a.m. where the accused consents to the seizure of his clothing and his other offence related discussions; (b) October 19, 2008 at 8:11 a.m. where D.L. and Short do a walkthrough of the Short residence and Short surrenders his clothing; (c) October 21, 2008 at 3:12 p.m., 7:01 p.m. and 7:20 p.m. where D.L. telephones Craig Short to set up the interview later that evening; (d) October 21, 2008 at 10:25 p.m. and 10:36 p.m. where there are continuing conversations at the Petrolia Detachment post-M. interview.

[29] The law which drives the analysis here is expertly captured by the summary of MacDonnell J. in paras. 9-13 of R. v. Kazenelson, 2015 ONSC 477:

C. The Applicable Principles

[9] Generally speaking, it is for the Crown to determine whether the pre-trial statements of an accused person should be adduced in evidence. In R. v. Simpson, [1988] 1 S.C.R. 3, Justice McIntyre explained, at paragraph 24, that this rule “is based on the sound proposition that an accused person should not be free to make an unsworn statement and compel its admission into evidence through other witnesses and thus put his defence before the jury without being put on oath and being subjected, as well, to cross-examination.” It is also based in part on the view that prior consistent statements lack probative value and are, in most cases, self-serving: R. v. Stirling, 2008 SCC 10, at paragraph 5; R. v. Evans, [1993] 2 S.C.R. 629, at page 643.

[10] It is well established, however, that where the Crown elects to adduce a pre-trial statement of an accused, it must introduce the entire statement. In R. v. Jackson, [1980] O.J. No. 1468 (C.A.), Justice Martin explained that “where a statement is partly inculpatory and partly exculpatory, and the Crown wishes to use the inculpatory part of the statement, the whole of the statement must be put in, and the statement then becomes evidence for the accused as well as against him”. See also R. v. Mallory, 2007 ONCA 46 at paragraph 203.

[11] The ‘entire statement rule’ is grounded in considerations of fairness and common sense. It would be quite misleading to permit the Crown to select for admission those parts of an accused’s statement that support the Crown’s case and to ignore the parts that may favor the defence. The Crown must take the good with the bad, and “must put in as much of the statement as is necessary to permit a fair understanding of the individual utterances”: Mallory, supra, at paragraph 203.

[12] Where an accused has made several pre-trial statements, the entire statement rule does not ordinarily require the Crown to introduce all of them. The Crown will only be required to do so if the individual utterances are so closely related that they are, in effect, part of one statement. That may be the case, for example, if they can be characterized “as being ‘part of the same narrative’… or ‘part of a continuum’… or are ‘so bound up together as to form in substance one statement…’”: R. v. Jacobson, [2004] O.J. No. 1956 (Sup. Ct.) [citations omitted]

[13] The determination of whether a series of utterances should be considered to be one statement will necessarily be a case-specific exercise: R. v. Cybulski, [1974] M.J. No. 43 (C.A.), at paragraph 4. In Mallory, the Court of Appeal referred to Cybulski and stated, at paragraph 206, that “in determining whether statements qualify for separate treatment, factors to consider include the time gap between the utterances, the nature and form of the respective utterances, and the circumstances under which they were made.”

Positions of the Parties

[30] The Defence maintains that the recordings are necessary to comply with the “whole statement” rule (R. v. Mallory, 2007 ONCA 46, paras. 207, 208). It argues that the recordings of October 19, 2008 are a continuation of the T.A. interview of the same date and that the October 21, 2008 recordings both before and after the M. interview are all properly part of that statement.

[31] In argument, Crown conceded that it would lead the post-interview Detachment recordings of October 21, 2008 upon the request of the Defence, while not conceding any real probative value. Beyond that, it is the Crown’s position that there is a break in time between the interviews and the recordings, that the recordings are made by a different officer at a different location, and that there is nothing in those recordings that is not already found in the longer recorded interviews. As such, the Crown maintains they cannot be regarded as part of the respective statements.

Analysis

[32] On October 19, 2008 T.A. concluded his interview at 6:41 a.m. Short was then recorded by D.L. consenting to a seizure of his clothes at 7:09 a.m. and then surrendering his clothes to D.L. after a walkthrough of the residence at 8:11 a.m.

[33] The latter recording at the residence, I find to be an amplification of the earlier T.A. interview. Short points out the features of the home and the items present there consistent with his earlier interview explaining the events of the day. He discusses and points out to D.L. where each of his neighbours live and provides an opinion on how the Shorts interacted with them. This was part of the earlier T.A. discussion.

[34] The earlier recording of 7:19 a.m. is brief and necessarily provides context to the return to the home and surrender of the clothing.

[35] I find that the Crown should lead both these brief recordings to allow the jury to fairly reach their own conclusions on the importance of the T.A. interview of Short. The recordings are beneficial in that they provide a precise record of the conversations.

[36] The telephone calls between D.L. and Short prior to the M. interview of October 21, 2008 were the subject of argument in the abuse of process application. I found at para. 193 of my Reasons, that although D.L. told Short he wanted to acquire from Short a list of other potential witnesses, his need to have the accused return to the Detachment had little to do with that stated intention. It was D.L.’s intention to get Short into an interview room with M. who had travelled from Orillia to apply his interviewing skills to the now identified suspect.

[37] As previously mentioned, I found nothing legally wrong with this investigative tactic, but in fairness, the jury should have the benefit of watching the M. interview with the appropriate context. The Crown will need to lead the recorded telephone calls detailed above.

[38] There is little self-serving evidence in any of the recordings I have just considered. The Crown is not prejudiced by my direction. The concerns of Justice McIntyre, as expressed in Simpson above regarding an accused forcing his defence upon a jury while insulating himself from cross-examination have no application here. The jury will benefit from these recordings in deciding what to take from the police interviews.

3. Prior Discreditable Conduct

[39] The prosecution case against Craig Short is entirely circumstantial. Identity and state of mind are live issues.

[40] In this application the Crown sought to adduce evidence of prior discreditable conduct regarding his relationship to his deceased wife Barbara Short.

[41] The Crown categorized the evidence as:

1. Evidence of threats to kill or harm Barbara Short;
2. Evidence of the “Eleni” tattoo;
3. Evidence of verbal abuse and controlling behaviour directed at Barbara Short.

[42] By the time the matter was reached for argument, counsel was able to resolve this application. As to the first category, the evidence of Norman Lepine where he alleges he heard Craig Short make a threat directed at his wife in the context of a discussion about the division of assets on divorce is conceded by the defence to be admissible. That threat is alleged to have been made in the summer of 2008.

[43] The Crown abandoned similar evidence from Sean O’Brien from 2001-2002.

[44] Consideration of the evidence of Barbara Short’s family law lawyer, George McFadyen and her friend Carrie Gauthier-Laakes both related to similar threats recounted to them by Barbara Short will be deferred to the later application which considers the admission of hearsay evidence.

[45] The category 2, “Eleni” tattoo evidence, considers the fact that Craig Short acquired a tattoo on his arm in the summer of 2008. The tattoo contained the name “Eleni” which is the Greek translation for “Helen” and was meant to recognize his connection to Helen Tsaprailis who owned a restaurant/bar which Craig Short frequented.

[46] The Defence is prepared to admit the admissibility of the evidence of Tsaprailis and Bridgett Short where they discuss the tattoo with the accused. The Crown will abandon the evidence of the tattoo artist Jeremy Rayson.

[47] The category 3 evidence consists of the evidence of Joy Vander Meer, Gary Crawford and Laura Lee Bowling, all of whom were the Shorts’ neighbours. Their evidence alleges abusive language directed by the accused toward his wife and the controlling nature of his relationship with her.

[48] Counsel has appropriately reduced this evidence to an Agreed Statement of Facts which, while capturing the conduct, sanitizes it of the inflammatory language.

[49] Bridgett Short’s evidence regarding her perception of her father’s controlling attitude will be admissible by agreement.

[50] It may be that the witnesses discussed above will be asked to provide other evidence which is not the subject of pre-trial applications.

4. Post-Offence Conduct

[51] The Crown seeks to lead evidence of the activities and comments of Craig Short after 7:00 p.m. on the evening of October 18, 2008. It is the Crown’s theory that Short killed his wife Barbara between 6:00 p.m. and 7:00 p.m. on that date and then attended the Sarnia Sting hockey game at the Sarnia Sports and Entertainment Centre.

[52] The Crown breaks down its application into three categories which capture specific bites of time and events. It is important to note that the statements themselves are not in dispute.

Category 1

[53] This is the evidence of persons who came into contact with Craig Short after 7:00 p.m. but before his 911 call reporting his wife’s death. These witnesses include Stacey Worsley and Melissa White, women who sell 50/50 draw tickets at the hockey game and who come into contact with the Shorts from time to time at the games they attend. They would describe their conversation with Craig Short and his review of the day’s events and why Barbara Short was not with him on this occasion.

[54] After the game at approximately 10:00 p.m. to 10:30 p.m., Craig Short attended a local restaurant and bar called Cravin’s. He spoke to Colleen and Peter Buckley and the owner of the bar, Helen Tsaprailis. The evidence discloses that Craig Short frequented this establishment regularly, sometimes with his wife. It is the Crown theory that Short was infatuated with Tsaprailis and it is not contested that in the summer of 2008 Craig Short had “Eleni” tattooed on his arm, being the Greek word for Helen.

[55] Again the conversation was about the events of the day which included what his wife Barbara had been doing, her attendance at a cancer walk and why she had not attended the hockey game with him.

Category 2

[56] These actions and comments span a broader time period. They commence with the 911 call at 1:33 a.m. on October 19, 2008 wherein Craig Short described when he got home, where he had been, and how he had found his wife.

[57] He had a similar conversation with the attending EMS paramedic Tony Camara. At that time he described the physical condition of his wife when he found her and that he was certain she was dead.

[58] At 2:30 a.m. Short spoke to Sgt. Sheldon Poole of the O.P.P. in the dining room of his home. In that conversation he recounted when he had left home for the game, his post-game stops and the condition of his wife upon finding her near the rear of their home.

[59] At 5:00 a.m. Short was interviewed by Detective T.A.. There was a discussion again about his timeline and activities and the potential of a gas theft, a topic that is raised by Craig Short. There was a brief discussion about problems in his marital relationship which Short described as historical.

[60] Laura Lee Bowling was a next door neighbour to the Shorts. On the evening of October 19, 2008 she had a telephone conversation with Craig Short. He wanted to know if she had heard anything the night before. Short went on to describe in detail the events of the past evening, where he had gone and how he had found Barbara when he returned home. He also told her the condition of the gas tank at the rear of the home and how he had been concerned for some time that someone was stealing his gas.

[61] At about 11:00 a.m. on October 19, 2008 Craig Short returned to Cravin’s and spoke to the bartender, Jaylene Poirier and an acquaintance William Newton. He told them that his wife was dead and he described where and how he had found her. He again recounted the smell of gas and the potential of a gasoline theft.

[62] Helen Tsaprailis apparently heard that Short was in the bar on Sunday morning and she telephoned him and then they spoke at the bar after 1:30 p.m. He described to her what he did after he had left Cravin’s the night before and where and how he had found Barbara on his return home. He spoke about the condition of the home on his return and the smell of gas in the area where Barbara was found.

[63] In the afternoon of October 19, 2008 Craig Short spoke to Rhonda Srokosz by telephone. Srokosz was Short’s niece and she had called to see how the family was doing. Their conversation was consistent with those reviewed above.

[64] On October 20, 2008 Craig Short spoke to two other Cravin’s acquaintances, Dave Pellegrine and David Rowe. Pellegrine had telephoned Craig Short and then Short attended at Pellegrine’s shop. He told Pellegrine an extremely detailed account of October 18, 2008 including all the days’ events, the details of the hockey game and where he went after the game including many of the relevant times.

[65] Short spoke to David Rowe at Cravin’s and again recounted where and how he had found Barbara as well as his suspicions that his wife had startled someone stealing gas.

[66] Kristine Butte was Barbara Short’s niece and she spoke to Craig Short on the telephone on October 23, 2008. She noted that Craig had never called her before. Short told her he had been held by police for 2 ½ hours. He recounted the events of the day of the murder and how he had found his wife. He said it looked like a gas theft and that the lid was off the gas tank and a wrench or some tool was beside the tank. He was crying on the telephone.

Category 3

[67] These are the actions and comments of Craig Short of October 19-21, 2008 which the Crown has categorized as concealment, lies and attempted destruction of evidence.

[68] On October 19, 2008 Craig Short spoke to Helen Tsaprailis in her office at Cravin’s. He told Tsaprailis that his wife had found out about the tattoo of her name on his arm. He produced a letter from George McFadyen, the family law lawyer Barbara had retained. The letter spoke of her need to separate and the potential of dividing their matrimonial assets. Short asked Tsaprailis to shred the letter but she declined.

[69] On October 20, 2008 Constable Nicholas MacDonell was keeping Craig Short under surveillance. He followed Short to a parking lot near the Bluewater Bridge. He watched Short deposit a white plastic bag in a garbage bin just before it was picked up by the garbage truck. MacDonell retrieved the bag from the truck. It contained Barbara Short’s poem book torn into pieces. Some of the poems were negative about her marriage but positive about her relationship with Ken Robertson.

[70] The October 21, 2008 interview by Detective M. has been fully discussed elsewhere. In the interview Short was questioned about the poetry book and the attempted destruction.

Defence Position

[71] The Defence is prepared to concede the admissibility of the evidence of the 911 call, the niece Kristine Butte and all the Category 3 evidence of the alleged attempted destruction of evidence. This concession does not extend to any observations they allege about Craig Short’s demeanour and is subject to Defence submissions as to the Court’s final instructions to the jury.

[72] The Defendant concedes that the Butte evidence is admissible as she alleges inconsistencies in Short’s description of the circumstances and manner of finding Barbara Short’s body.

[73] The Defence maintains the balance of the evidence in Category 1 and 2 is not admissible as relevant post-offence conduct. Counsel states that the evidence is so equivocal as to give it no probative value and if found to be minimally probative that probity is outweighed by the prejudicial effect of a multi-witness barrage of evidence about the accused’s comments post-event. It is suggested this amounts to working backwards from an assumption of guilt in that it is only if you assume guilt that these ambiguous actions and statements have probity.

[74] The Crown factum argues that throughout the days immediately after the murder, Craig Short was intent on creating his own alibi and spreading it throughout his friends and acquaintances. The Defence suggests it cannot be an alibi in its true sense as it is the Crown’s theory that Short killed his wife before attending the hockey game and the post-game events.

Crown Position

[75] The Crown reminds me that identity is in issue. Counsel argues that whether called an alibi or something else, Craig Short was intent on spreading his personal version of events to as many people as possible. The evidence, it is argued, is admissible as part of the narrative but more importantly on the issue of identity, planning and deliberation, and to some extent credibility as Short alleges some inconsistent times for events throughout his conversations.

[76] The Crown is prepared to concede the dangers of demeanour evidence as in what actions of Craig Short were viewed as unusual and what emotions could be seen as unnatural in the circumstances.

Analysis

[77] It is important from the outset to remember that the Crown case against Craig Short is entirely circumstantial. As such, post-offence conduct here demands a level of scrutiny not necessarily required where the prosecution has direct evidence suggesting guilt.

[78] The leading case regarding the admissibility of this type of circumstantial evidence continues to be R. v. White, 2011 SCC 13. At para. 31, Rothstein J. considered the treatment of this form of evidence:

[31] Given that “[e]vidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence”, the admissibility of evidence of post-offence conduct and the formulation of limiting instructions should be governed by the same principles of evidence that govern other circumstantial evidence. In particular, to be admissible, such evidence must be relevant to a live issue and it must not be subject to a specific exclusionary rule (e.g. the hearsay rule); it may also be excluded pursuant to the exercise of a recognized judicial discretion (D. M. Paciocco and L. Stuesser, The Law of Evidence (5th ed. 2008), at p. 26), such as the discretion to exclude evidence whose prejudicial effect outweighs its probative value. These same principles also determine the need for and scope of a limiting instruction.

[79] The initial consideration is whether the evidence is relevant. (R. v. White, 2011 SCC 13, para. 36).

[36] … In order for evidence to satisfy the standard of relevance, it must have “some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence” (Paciocco and Stuesser, at p. 31, approved in R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47, and R. v. B. (L.) (1997), 35 O.R. (3d) 35, at p. 44 (C.A.); see also Morris v. The Queen, [1983] 2 S.C.R. 190, at pp. 199-201, per Lamer J. (as he then was; speaking in dissent on the issue of relevance)).

[80] The Supreme Court of Canada recently revisited its analysis of post-offence conduct in R. v. Calnen, 2019 SCC 6. In Calnen, the accused admitted to burning the victim’s body after her death but maintained his innocence for murder. The defence in Calnen suggested there were multiple alternative explanations for his post-mortem actions and as such the evidence lacked relevance.

[81] Martin J. discussed the admissibility of this evidence and the concerns of alternative and competing inferences at paras. 108-112 of Calnen set out below:

[108] Relevance involves an inquiry into the logical relationship between the proposed evidence and the fact that it is tendered to establish. The threshold is not high and evidence is relevant if it has “some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence”: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 36, quoting D.M. Paciocco and L. Stuesser, The Law of Evidence (5th ed. 2008), at p. 31. In other words, the question is whether a piece of evidence makes a fact more or less likely to be true. Relevance does not require a “minimum probative value”: R. v. Arp, [1998] 3 S.C.R. 339, at para. 38. As the admissibility of after-the-fact conduct evidence is, “[a]t its heart”, one of relevance, determining the relevance of any piece of after-the-fact conduct evidence is necessarily a case-by-case, “fact-driven exercise”: White (2011), at paras. 22 and 42; see also R. v. White, [1998] 2 S.C.R. 72, at para. 26.

[109] To establish materiality, the evidence must be relevant to a live issue; if it is not relevant to a live issue, it must be excluded or the jury should be instructed that the evidence is of no probative value: see White (2011), at para. 36.

[110] Trial judges retain the general discretion to exclude relevant evidence when its potential prejudice exceeds its probative force: see White (2011), at para. 31. Counsel for Mr. Calnen sought the exclusion of the after-the-fact conduct evidence in a voir dire, on the basis that its prejudice outweighed its probity. The trial judge admitted portions of Mr. Calnen’s statement to the police and found that the probative value of the evidence outweighed any prejudicial effect.

[111] After-the-fact conduct is circumstantial evidence. Like other forms of circumstantial evidence, after-the-fact conduct allows a fact finder to draw particular inferences based on a person’s words or actions: see White (1998), at para. 21; White (2011), at para. 22; Peavoy, at para. 24. This process of inductive reasoning is a cornerstone of the law of evidence, and is used frequently to draw inferences from circumstantial evidence, as well as to assess credibility and to determine the relevance and probative value of evidence: see D. M. Tanovich, “Angelis: Inductive Reasoning, Post-Offence Conduct and Intimate Femicide” (2013), 99 C.R. (6th) 338.

[112] In order to draw inferences, the decision maker relies on logic, common sense, and experience. As with all circumstantial evidence, a range of inferences may be drawn from after-the-fact conduct evidence. The inferences that may be drawn “must be reasonable according to the measuring stick of human experience” and will depend on the nature of the conduct, what is sought to be inferred from the conduct, the parties’ positions, and the totality of the evidence: R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at para. 77. That there may be a range of potential inferences does not render the after-the-fact conduct null: see R. v. Allen, 2009 ABCA 341, 324 D.L.R. (4th) 580, at para. 68. In most cases, it will be for the jury or judge to determine which inferences they accept and the weight they ascribe to them. “It is for the trier of fact to choose among reasonable inferences available from the evidence of after-the-fact conduct”: Smith, at para. 78.

[82] In the case before me, Craig Short attended a hockey game and two bars before returning home and making his 911 call to police. During this time period he spoke to numerous friends and acquaintances consistently speaking of his activities that day and those of his wife, Barbara, describing why she chose not to attend the game with him. It is true that there are several explanations available for Short’s conduct. The Crown in its factum, argues Short is creating and spreading his alibi. Perhaps on the Crown theory it is more accurate to describe it as creating an alternative narrative.

[83] Even if it is accepted as being inappropriately described that does not mean that this evidence lacks probative value. Its probity is at least in part achieved by the sheer number of people Craig Short spoke to both before and after the 911 call considered along with the detail and the consistency of the description of the days’ events and the manner of Barbara Short’s death.

[84] In Calnen (para. 113), Martin J. emphasizes the importance of defining the issue, purpose and use for which the evidence is tendered and the need to articulate the reasonable and rational inferences that might be drawn from it.

[85] It is of significance that the accused denies all culpability. Identity then is the primary purpose for receiving this evidence. In R. v. Sodhi, [2003] O.J. No. 3397, the Court of Appeal considered whether the fact of the accused’s suicide attempt should have been left with the jury as after-the-fact conduct capable of supporting an inference of guilt. The defence argument was that it was as consistent with grief as guilt.

[86] At paras. 53 and 54, the Court concludes that the evidence was properly admitted considering no level of culpability was admitted:

[53] With respect, I do not agree. Unlike the situation in R. v. Arcangioli, [1994] 1 S.C.R. 129, 87 C.C.C. (3d) 289, this is not a case in which the appellant admitted to killing Kamlesh but denied a specific level of culpability in doing so. Nor is it a case in which he denied committing some related offence arising from the same operative set of facts. Here the appellant denied any involvement in Kamlesh's death and his identity as the perpetrator was the only live issue for the jury. In that sense, the facts are more closely aligned to those in R. v. White, [1998] 2 S.C.R. 72, 125 C.C.C. (3d) 385, where the two accused denied committing the murder for which they were charged and sought to attribute their flight and attempt to dispose of evidence to the commission of other offences. In those circumstances, the Supreme Court held that the jury was entitled to consider the evidence of flight and the attempt to dispose of evidence as circumstantial evidence capable of linking the accused to the murder.

[54] In my view, the appellant's suicide attempt merits the same treatment. Grief was certainly one possible explanation for it and the trial judge put that explanation to the jury. …

[87] In my view while it may be that Craig Short simply wanted to tell his friends why his wife was not with him, and then later when distraught over her death, explain why he left her at home where she unfortunately met her demise. But the Crown theory is a strong alternative. It is a reasonable and rational inference. In the context of the matters in issue here, it would be wrong to remove this evidence from the jury. They are capable of hearing this evidence and deciding whether, with proper instruction, the Defence or the Crown’s suggestion of inferences, or neither, is of use to them. I find that the Crown has satisfied the threshold of relevance and materiality expressed in Smith and Calnen.

[88] I conclude that the evidence, pre-911 call, from the patrons at Cravin’s lacks any relevance to the issue of planning and deliberation. Those actions of Craig Short cannot reasonably be the kind of prompt, detailed, reasonably effective steps to conceal the crime described by the Court in R. v. Allen, 2009 ABCA 341, [2009] A.J. No. 1116 (C.A.) paras 86-89.

[89] Finally the evidence, pre-911 call in particular, is evidence of how Craig Short spent his time after he left his wife and before he returned home and found her body. Those witnesses provide a narrative that allows the jury, again with proper instruction, to have a more complete picture of the circumstances surrounding the death of Barbara Short.

[90] This leads me to the evidence which can be properly described as evidence of demeanor. Rosenberg J.A. discussed the danger of demeanour evidence in R. v. Levert (2001), 159 C.C.C. (3d) paras. 27 and 28:

[27] The probative value of this type of evidence is highly suspect. In the two recent cases of Susan Nelles and Guy Paul Morin use of the accuseds’ demeanour was found to have played a part in the wrongful prosecution. The Report of The Commission on Proceedings Involving Guy Paul Morin, 1998, vol. 2, pp. 1142 to 1150, contains an extensive discussion of the dangers of admitting such demeanour evidence. The expert and other evidence introduced at the Commission strongly suggests that this evidence can be highly suspect and should be admitted at a criminal trial with caution. Perceptions of guilt based on demeanour are likely to depend upon highly subjective impressions that may be difficult to convey to the jury and in any event the significance of the reaction will often be equivocal.

[28] In my view, had he been asked to do so, the trial judge might well have exercised his discretion to exclude this evidence on the basis that the prejudicial effect of the evidence outweighed its probative value.

[91] In the two previous trials, the juries heard a great deal about the actions and reactions of Craig Short. All this evidence was admitted as post-offence conduct. Various of the witnesses noted the accused “did not cry”, “did not seem to be grieving”, “acted unusually”, “was not at his usual place at the bar”, “odd and not normal”. All of these comments came to investigators after Short had been charged by police and in the context of his discussing his actions of the day and the murder of his wife.

[92] In the second trial, Constable M. told the jury that in his experience, persons in like circumstances, including suspects, did not react as Craig Short did. He lacked emotion and the officer offered the opinion that he was faking.

[93] Doherty J.A. in the appeal decision in this matter considered the demeanour evidence in the second trial. At paras. 51-55 of the judgment, he offered some direction to this Court:

[51] The jury heard a great deal of evidence about how the appellant acted or reacted on various occasions on the night of the murder and in the days following. That evidence included testimony from various witnesses that the appellant seemed “normal” or, to the contrary, “unusual”. The jury also heard evidence that some of the things the appellant did and said seemed to others to be contrived or rehearsed.

[52] Evidence describing the demeanour of an accused when he did or said something can be admissible. The demeanour may be sufficiently unambiguous to give it probative value, or it may be an integral part of the witness’s description of the relevant event: R. v. Trotta (2004), 190 C.C.C. (3d) 199 (Ont. C.A.), at para. 41.

[53] Demeanour evidence is, however, often of little or no probative value. There is also a real risk that a jury might give too much weight to demeanour evidence unless clearly cautioned that the evidence can be misleading and often provides little or no real insight into a person’s state of mind, or the reasons for that person’s actions: R. v. Levert (2001), 159 C.C.C. (3d) 71 (Ont. C.A.), at para. 27; R. v. Wall (2005), 77 O.R. (3d) 784 (C.A.), at paras. 49-50.

[54] At the new trial, the trial judge may conclude that some of the demeanour evidence has virtually no probative value and should not be admitted. For example, if a witness describes the appellant as acting “unusually”, but does not know the appellant and cannot articulate any basis upon which the witness formed his or her opinion about the appellant’s behaviour, the trial judge may well conclude that the witness’s opinion about the appellant’s behaviour has no probative value and should not be admitted.

[55] To the extent that demeanour evidence is properly before the jury, the trial judge must be careful to instruct the jury about the risks inherent in drawing inferences from a witness’s description of someone else’s demeanour: see Wall, at paras. 49-50.

[94] While some of the witnesses who provided the comments mentioned above were friends or acquaintances of Short from the bar he frequented, I am unable to find on this record that the witnesses are in a position to note what might be normal, unusual or odd about the actions of Craig Short. The opinion of Constable M. is clearly of no probative value.

[95] That does not mean the witnesses cannot testify about the actions of Craig Short or his position in the bar or elsewhere. It is their interpretation of those actions that makes the evidence dangerous.

[96] As mentioned previously, the Crown concedes that much of this evidence must be cleansed from the witness testimony. I find it to have virtually no probative value and therefore inadmissible.

[97] After finding the evidence of Short’s statements probative and material, I must consider its prejudicial effect. I have concerns about the quantity of this post-offence conduct evidence that the jury will hear. Care must be taken so that the cumulative effect of this evidence does not become so prejudicial as to overwhelm its probative value (R. v. Candir, 2009 ONCA 914, para. 59).

[98] Further, it may prove to be difficult for defence counsel to cross-examine on the significance of the comments of Craig Short without exposing the demeanour evidence I have excluded.

[99] I have found much of this post-offence conduct to be admissible. I urge the Crown to attempt to create an Agreed Statement of Facts that captures enough of the admissible evidence it seeks without exposing this trial to the dangers I have noted and that were apparent in the previous proceedings. If Crown and Defence counsel are unable to come to terms on an Agreement Statement of Facts, I will need to work with counsel as the trial proceeds to pre-screen the post-offence evidence as it is presented while ultimately seeking assistance on the appropriate directions to provide the jury regarding the acceptable use of the evidence.

Conclusion

[100] Subject to the limitations I have discussed above, I find that the post-offence conduct evidence as described by the Crown in its application is admissible. That evidence amounts to the testimony of:

(a) Stacey Worsley (b) Melissa White (c) Colleen Buckley (d) Peter Buckley (e) Helen Tsaprailis (both before and after the 911 call) (f) 911 call (g) Tony Camara (h) Sgt. Poole (i) Det. T.A. (j) Laurie-Lee Bawling (k) Jaylene Poirier (l) William Newton (m) Rhonda Srokosz (n) Dave Pellegrine (o) David Rowe (p) Kristine Butte (q) Tara Hagan (subject to the required editing) (r) Cst. MacDonnell (s) M. statement of October 21, 2008 (subject to required editing) (t) Bridgette Short

[101] The length of the list above reinforces the need for the Crown to be selective and for the Court to be vigilant.

5. Precluding Reliance by the Crown on the Second Trial Testimony of Craig Short

[102] Craig Short gave evidence only in the second trial. His testimony occupied two days from February 14-15, 2015. The Defence seeks a ruling precluding the Crown from using the evidence to cross-examine Short should he choose to testify in his third trial. The application is the product of the failed attempt by Phillip Millar to be removed as counsel within two months of the trial and the effect of that decision upon the trial itself. The Defence factum alludes to an affidavit wherein Short speaks to his concerns about his representation by previous trial counsel Millar. No sworn affidavit was delivered by the defence and so the application proceeded without consideration of any direct evidence of Craig Short on that issue.

Positions of the Parties

[103] The Defence offers many of the same concerns it raised in the abuse of process application wherein I dismissed the request for a stay. However, in this instance it is argued a different and more “modest” remedy is sought. The Defence seeks to identify multiple Charter breaches that at least cumulatively demand this remedy.

[104] I will attempt to summarize the scope of the Defence position that leads to the requested remedy of excluding the previous trial evidence of Craig Short as well as the reaction of the Crown to those arguments.

Right to Counsel of Choice

[105] It is argued that there was a breach of s. 10(b) of the Charter in that in forcing the accused to go to trial with Phillip Millar as his counsel, his constitutional right to counsel of choice was violated.

[106] Counsel for the Defence acknowledges that while there is no direct evidence from Craig Short that he wanted to dismiss Millar, the submissions of counsel on the application before Donohue J., as well as the evidence of Phillip Millar in the pre-trial motions, leaves little doubt that the accused was unhappy with his representation. He was not communicating with his counsel Millar told this Court on October 19, 2018:

…And then you add the fact that I couldn’t communicate with the client the way I wanted to, either we weren’t really – I know he was speaking to other people, and there was resentment there, so it was a difficult time.

[107] The Defence offers that this failure to allow counsel of choice damages the perception of trial fairness (R. v. McCallen (1999), 43 O.R. (3d) 56, paras. 33-38) and further that no prejudice need be demonstrated beyond the fact of the violation (R. v. Tran, [1994] 2 S.C.R. 951, paras. 72-74).

[108] The Crown responds that the Court needs to recognize that the burden on a balance of probabilities rests with the Applicant. The Crown states that there is no evidence upon which the Court can find Craig Short did not want Millar to represent him in the second trial. At para. 42 of the appeal judgment, Doherty J.A. was critical of the trial judge for not ascertaining the position the accused on his counsel’s continuing retainer.

[42] In deciding trial counsel’s application, the trial judge had to know whether the appellant wanted trial counsel to continue to act for him in light of trial counsel’s application and representations made in that application. Without making that inquiry, the trial judge was in no position to force counsel to continue to act for the appellant. The trial judge seems to have assumed that the appellant wanted trial counsel to continue to act. The assumption may or may not have been accurate. A proper inquiry would have removed any uncertainty.

[109] Without that disclosure and without any other direct evidence from Craig Short, it is suggested I am unable to find a breach of s. 10(b).

Ineffective Assistance of Counsel

[110] Defence counsel maintains there was a breach of Craig Short’s s. 7 and s. 11(d) rights by a denial of effective assistance of counsel amounting to a breach of a principle of fundamental justice negating the ability to make full answer and defence. (R. v. Stark, 2017 ONCA 148, para. 10).

[111] Counsel reminds me of para. 50 of my Reasons on the abuse of process application where I summarize some of the evidence of Phillip Millar:

[50] He concedes now that the law required him to bring an alternate suspect application in the first trial and he did not. He concedes he should have listened to the full interview of Cheryl Harper instead of simply relying upon the police synopsis. He should have realized that Mike and Mark Lacey were brothers. Finally, he said he was over confident about the alternate suspect application argued before Donohue J. on January 24, 2013.

[112] Defence counsel provides a list of deficiencies taken from the trial evidence, the affidavit provided by Phillip Millar and his evidence in these pre-trial applications.

1. He did not review the audio recordings of Detective D.L.’s [sic] interviews with the third-party suspect witnesses.
2. He relied on the word of D.L., the lead investigator, that there was nothing to the Crime Stoppers tip because Geoff Harper had an alibi for the relevant night.
3. Because he did not review the audio interview of Cheryl Harper, he did not order further disclosure with respect to Cheryl Harper or the anonymous tip.
4. As a lawyer for only five years at the time and just recently moved to the defence side, he conducted a first-degree murder trial with no one in court to assist him against a prosecution team in of two experienced Crown attorneys and two senior OPP officers.
5. He accepted the word of the lead investigator D.L. discounting the gas thief theory, and therefore did not pursue it with vigour.
6. He did not request a copy of the Harper gas theft Occurrence Report despite his awareness of its existence.
7. When the Crown led false evidence before the jury that D.L.’s recording device did not have a pause button, Millar did not cross-examine D.L. on the issue nor did he ask that the recorder be made an exhibit.
8. Millar conducted the trial in a state of functional non-communication with his client.

[113] The Defence acknowledges the burden of establishing ineffective assistance at trial and that the presumption of competence is not easily discharged. Further, it is acknowledged that the analytical framework was described by Doherty J.A. in R. v. Joanisse (1995), 102 C.C.C. (3d) 35 at para. 69:

The framework has three elements. First, the appellant must establish the facts on which the claim of incompetence is based.

Second, the appellant must establish that the representation provided by trial counsel was incompetent, in that counsel’s performance fell below a standard of reasonable professional assistance.

Third, the appellant must establish prejudice by showing that the incompetent representation resulted in a miscarriage of justice. The miscarriage of justice can be established in one of two ways. The first is to show that incompetent representation undermines the reliability of the verdict. The second is to show that the incompetent representation undermined the appearance of the fairness of the trial proceeding.

[114] The Defence suggests that the cases assessing ineffective assistance of counsel are appellate decisions. Counsel maintains that the performance failures in this case are clear and that the prejudice, while obvious, need not rise to the standard required by an appeal court to grant a remedy, but rather when the failures of trial counsel here are added to the other trial failures discussed in these Reasons, a remedy is required.

[115] In applying the framework in Joanisse, the Crown concedes the existence of the mistakes suggested by the Defence.

[116] The Crown agrees that the failures of previous trial counsel could amount to ineffective assistance. However, Crown counsel argues that there is no actual prejudice shown to the accused. Counsel provides the reference from para 160 of my Reasons on the abuse of process application where I found that even if the Defence had been armed with the missing disclosure, the alternate suspect application was “doomed to fail”.

[117] In dealing with the erroneous “pause button” evidence lead by the Crown through Detective D.L., counsel suggests the Crown closing did not mention the pause button nor did it suggest the recording could not be altered and so the credibility of the Defence witnesses including the accused was unaffected by the false evidence, Millar’s failure to cross-examine, or his failure to make the recorder an exhibit.

Pause Button Evidence

[118] Defence counsel maintains that Craig Short’s s. 7 and 11(d) Charter rights were infringed when the Crown lead false evidence that D.L.’s recording device did not have a pause button when it clearly did. It was the Defence theory that D.L. manipulated the recording of Short’s comments by selectively pausing the recording.

[119] It is the position of the Defence that this evidence impacted the credibility assessment of Craig Short and his daughter Robyn as it would leave the jury with the impression that the recording must have been complete and that those witnesses must have been lying about the missing police comments.

[120] The Defence submits that my conclusion in the abuse of process application that I could not find that the Crown Weatherston purposefully lead the false evidence, while perhaps justifying a failure of the stay application, should not be determinative of the relief sought here.

[121] The Crown response is consistent with my comments above, seeking to point out a lack of emphasis on that evidence by the Crown. As well, the Crown suggests there is no nexus between the piece of evidence and the fairness of the third trial if the Crown cross-examines Craig Short on his previous trial evidence.

Multiple Charter Violations

[122] The Defence position is that the multiple Charter breaches considered above (s. 10(b), s. 7 and 11(d)) amplifies the seriousness of constitutional infringement and demands a remedy (R. v. Davidson, 2017 ONCA 257, [2017] O.J. No. 1572 (C.A.)).

Remedies

[123] Defence counsel argues that there are three available routes to the relief sought. I could determine that the previous trial evidence is unavailable in this third trial by excluding it pursuant to s. 24(2), 24(1), or by exercising my common law authority to ensure a fair trial (R. v. Harrer, [1995] S.C.J. No. 81 (Harrer)).

[124] The Defence maintains that Craig Short’s testimony was “obtained in a manner” that infringed his Charter rights identified above and that I should not be concerned about a direct causal link, (R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Goldhart, [1996] 2 S.C.R. 463) and that the weighing exercise directed by R. v. Grant, 2009 SCC 32 favours exclusion by s. 24(2).

[125] Counsel, alternatively, suggests that if I am not convinced as to the application of s. 24(2), I should exclude Short’s prior evidence utilizing s. 24(1). The argument is that any use by the Crown of that prior testimony could render the trial unfair and infringe Short’s s. 7 and s. 11(d) Charter rights (R. v. Spackman, 2012 ONCA 905, para 101).

[126] The Crown responds that without direct evidence from Craig Short on his choice of counsel, or the effect of the ineffective assistance of counsel on his trial testimony, the accused has failed to meet his burden regarding those alleged breaches of s. 10(b), s. 7 and 11 (d). In addition, consistent with my findings regarding abuse of process, there is simply no way to determine that D.L.’s evidence on the recorder pause button prejudiced his trial.

[127] The Crown maintains that Craig Short volunteered his evidence in his second trial and as such, there are overriding policy considerations that dictate that an accused “…should not be able to shelter self-serving inconsistencies behind a Charter barrier.” (R. v. Morris, [2012] O.J. No. 829 (S.C.J.) para 23; R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609 (Henry); R. v. Nedelcu, 2012 SCC 59, [2012] 3 S.C.R. 311 (Nedelcu)).

Analysis

[128] I agree with the Crown that in the record before me I cannot find a breach of Craig Short’s s. 10(b) right. Doherty J.A. at para 29 of Short confirms a complete breakdown of the solicitor/client relationship. Despite that, I have no direct evidence of Short’s position on Millar’s continued representation.

[129] In my ruling on the abuse of process application, I could not find that D.L. paused his recordings to selectively eliminate evidence (para. 233). I could not find that the trial Crown Weatherston purposely lead false evidence on the existence of a pause button. (para. 209). While I am aware that I need not find intentional state misconduct to find a constitutional infringement that deserves a remedy (R. v. La (1977), 116 C.C.C. (3d) 97 (S.C.C.) paras. 20-24), I do not find an infringement related to the recording evidence affecting the accused’s s. 7 and 11(d) Charter rights.

[130] The failures of previous trial counsel concern me. Those mistakes have been sufficiently detailed above. While it has been conceded that those mistakes fell below an accepted standard of reasonable assistance, I cannot find a reasonable probability that “but for counsel’s errors the result of the proceedings would have been different.” (R. v. Dunbar, 2003 BCCA 667, para. 26).

[131] While there may be an ability to approach my concerns utilizing the broad less fettered powers of s. 24(1) (R. v. Mills, [1999] 3 S.C.R. 668), I choose rather to provide a remedy based on the following analysis.

[132] The failure of the trial judge in Short’s second trial to allow Millar to withdraw as counsel created a miscarriage of justice (Short, para. 39). The trial was rendered unfair. There had been a total breakdown of the client/solicitor relationship (Short, para. 39). There were ethical reasons and a loss of confidence that left the trial judge with circumstances that demanded the removal of Millar as counsel (Short, para. 34).

[133] In addition, there was no communication between client and solicitor.

[134] Following that mistake by the trial judge come the performance deficits of trial counsel recognized by all parties to this application. Counsel’s inadequacies add to the procedural unfairness in the proceeding. (R. v. D.M.G., 2011 ONCA 343, para. 103).

[135] Henry and Nedelcu examined whether s. 13 of the Charter was available in those specific situations to protect an accused from the use of his previous testimony to incriminate or impeach. The result being that s. 13 only offered a protection to those who were compelled to testify in a previous proceeding. The accused in Henry were appropriately cross-examined on contradictory evidence offered in a previous trial, a retrial being ordered for reasons unrelated to the testimony. Nedelcu’s prior evidence given during a discovery in a related proceeding could be used to test his credibility in his trial for impaired driving causing bodily harm as it was non-incriminatory at the time it was given.

[136] In R. v. Ramanthan, 2010 ONSC 5901 (Ramanthan), Corbett J. ordered that the Crown could not cross-examine Ramanthan on the testimony he gave at his first trial. The remedy, however, was granted recognizing that a mistrial had to be declared in the first trial due to Crown conduct related to its closing statement to the jury. He reasoned that the Crown should not be able to benefit from its own constitutional violation.

[137] Does not the Court owe a similar responsibility to Craig Short to ensure that his third trial is as fair as it can possibly be? The Crown should not be able to benefit from the fruits of a miscarriage of justice created by the Court. Despite evidence of a complete breakdown in the relationship, the Court forced a client/solicitor relationship in the context of a first degree murder trial. A relationship that then fostered multiple missteps by Defence counsel.

[138] At para 49 of Harrer, McLachlin J. states:

49 … The reason for exclusion of a statement taken in Canada in violation of the Charter is the unfairness of prosecuting the accused "with evidence created by the accused himself in circumstances in which the evidence would not have come into existence but for the state's failure to accord the accused a constitutionally protected right" (emphasis added): Sopinka, Lederman and Bryant, supra, at p. 402.

[139] While I am unable to say that Craig Short would not have testified had the trial judge removed his counsel, the evidence was a product of a highly dysfunctional client/solicitor relationship and delivered as part of a flawed defence.

[140] In the language of LaForest J. at para. 21 of Harrer, I find it appropriate to grant the relief sought based on my duty to exercise my discretion to exclude evidence that would result in an unfair trial. While that duty is now enshrined in s. 11(d) of the Charter, I choose to exercise my common law exclusionary power (Harrer, para. 42).

[141] The evidence of Craig Short in his second trial was provided over two days over four years ago. There may well be minor differences between evidence he may choose to offer in this trial and his previous detailed evidence. This is, however, a “modest” remedy. The Crown still has the benefit of the theory of the Defence exposed by the cross-examination of Crown witnesses and the evidence of Craig Short and other defence witnesses.

[142] There is as well the professional obligation imposed of Short’s Defence counsel here as it relates to the evidence the accused may provide in this his third trial.

Conclusion

[143] In all the circumstances here, I find that to allow the Crown to cross-examine Craig Short using his testimony in his second trial would undermine trial fairness.

[144] The retrial ordered by Doherty J.A. focussed on the single issue of trial counsel’s application to withdraw and cannot be seen as a prospective cure-all for all issues arising in the third trial of Craig Short.

[145] Therefore, should the accused provide evidence in this trial, the Crown will not be permitted to cross-examine the accused on his evidence from his second trial.

“Regional Senior Justice B. G. Thomas”

Regional Senior Justice B. G. Thomas

Released: March 19, 2019.

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – ROGER CRAIG SHORT REASONS ON PRETRIAL APPLICATIONS Thomas RSJ. Released: March 19, 2019.