COURT FILE NO.: CR 11-3244

DATE: 2021/01/05

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Crown

S. O’Brien and J. Dean, on behalf of the Crown Attorney

• and -

JEREMY HALL

Accused

D. Derstine and R. Gregor, on behalf of the accused

HEARD: January 13, 14, 15, 16, 17, 20, 21, 23, 24, 28, 29, February 6, 7, 10, 11, 12, 18, 19, 20, 21, 24, 27, 28, March 2, 3, July 13, 14, 15, 21, 22, 23, August 27, 28, September 3, October 30, November 12, and December 17, 2020

A.J. Goodman J.

REASONS FOR JUDGMENT

INTRODUCTION:

[1] The accused, Jeremy Hall (“Hall”) is charged with first degree murder in relation to the death of Billy Mason (“Mason”).

[2] This is a retrial of the offence with a judge sitting alone. The charge relates to an incident that was alleged to have occurred on February 24, 2006 in the City of Hamilton and elsewhere in the Province of Ontario. The accused has pleaded not guilty.

[3] Due to the COVID-19 pandemic, the trial was adjourned for four months before it could resume safely in the courtroom. Following final arguments and while my decision was under reserve, the defence sought further disclosure and to re-open the case based on the Crown’s principal witness being implicated in an alleged homicide that came to light in October 2020. I granted the defence request for further production under the Third Party records regime. Subsequently, after hearing submissions, I denied the application to re-open the case and to hear further evidence.

POSITIONS OF THE PARTIES:

Crown Attorney’s Position:

[4] Hall stands charged with first degree murder in relation to the 2006 disappearance of Mason. The Crown alleges that Hall, and Jason Lusted, (“Lusted”), Hall’s criminal counterpart, abducted Mason from his residence on February 24, 2006, brought him to a rural area outside of Hamilton, and shot him. It is further alleged that days later, on the evening of March 1, 2006, Hall and Lusted returned to the murder site, retrieved Mason’s body, transported it in the back of a pickup truck to Hall’s rental farm property in Alma, Ontario, where they subsequently burned the body in an open-air bonfire on a concrete pad. Mason’s body was never located.

[5] The primary evidence against Hall comes from Lusted viva voce, along with the August 26, 2010 statement of Hall’s common-law partner at the time, Carol Ann Eaton (“Eaton”).

[6] The Crown also relies on other important pieces of circumstantial evidence.

[7] The Crown concedes that Lusted is an unreliable witness. However, his testimony has been corroborated by other independent evidence, including that of Eaton. The Crown says that Eaton provided credible and reliable information to the police in her August 2010 statement. All of the other Crown witnesses provided truthful testimony. The cellphone records also corroborate Lusted’s version of events on the important issues in this case.

[8] The Crown says that many segments of Hall’s testimony and denials were self-serving and not credible. The other defence (non-expert) witnesses are not believable and their evidence ought to be rejected.

[9] The Crown theory is that Hall had a motive to murder Mason. Mason set up a “bad score” for Hall that subsequently resulted in the accused’s family home being “shot up”. The Crown submits that Hall avenged the shooting and resulting danger to his family by planning and subsequently carrying out Mason’s murder. The evidence supports planning and deliberation.

[10] Alternatively, the Crown says that constructive first degree murder is made out on the evidence related to an abduction of Mason at gunpoint from his apartment and his forcible confinement that continued up to the moment of his killing. On the entirety of the evidence, the charge has been established beyond a reasonable doubt.

Defence Position:

[11] The defence rejects the Crown’s theory that Hall is responsible for Mason’s murder. The defence submits both Lusted and Eaton are Vetrovec witnesses and proven perjurers. Moreover, their evidence is inconsistent with each other and inconsistent within themselves. These two unreliable witnesses could not possibly be a foundation for a determination of guilt.

[12] The defence submits that Lusted was neither credible nor reliable. Accordingly, his evidence ought to leave this court with a reasonable doubt. As a self-proclaimed career criminal and Vetrovec witness of the worst sort, Lusted repeatedly and unapologetically lied under oath in these proceedings. His demeanour throughout cross-examination was nothing short of aggressive, flippant, and obstructionist. The defence says that the posing of questions to this witness was laborious due to his consistent outbursts, hostility, sarcasm, interruptions, evasiveness, and tendency to attempt to control the narrative. Lusted’s version at this trial is illogical and unsupported by any reliable corroborative evidence.

[13] The defence says that Eaton was an evasive and often non-responsive witness. She was coerced and pressured in giving her two sworn statements to the police. As such, her evidence is wholly unreliable or ought to be given no weight.

[14] Hall testified and denied his guilt. Other defence witnesses provided evidence in support of Hall’s refutations, which positively establishes reasonable doubt. The defence submits that Hall’s testimony should be believed or, at the very least, give rise to a reasonable doubt in a W.D. analysis. Mr. Derstine submits that even if this court does not find his client credible, the Crown has failed to establish Hall’s guilt.

[15] While an accused is under no obligation to prove anything, through its own witnesses and the cross-examination of witnesses, Mr. Derstine says that the defence has demonstrated that the Crown theory related to the fire on the cement pad is not scientifically possible and the cell phone evidence has been disproved. The evidence as a whole is so consumed by improbabilities, deceits, contradictions, evidentiary gaps and other reasonable inferences, that the court should have no confidence in its veracity.

[16] What really transpired, or more importantly, why or when Mason went missing or was killed is not established. Mr. Derstine submits that the objective evidence belies the prosecution’s theory of the case. Accordingly, on the totality of the record, this court ought to be left in in a state of reasonable doubt and an acquittal should follow.

LEGAL PRINCIPLES:

[17] All of the evidence must be considered in determining whether the Crown has made out the charge beyond a reasonable doubt. An accused is entitled to the benefit of the presumption of innocence and is not required to give any evidence. The defence was neither required to disprove the offence occurred as alleged by the Crown and in the manner proposed by the prosecution nor required to substantiate their theory of the case. Before an accused can be found guilty, a court must be satisfied beyond a reasonable doubt that the evidence establishes all of the essential elements of the offence charged against him.

Reasonable Doubt:

[18] The standard of proof in a criminal matter is the higher standard of proof; namely, beyond a reasonable doubt.

[19] The Supreme Court of Canada has commented on the principle of proof beyond a reasonable doubt in several cases. In R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, at para. 14, the Supreme Court explains that the meaning of proof beyond a reasonable doubt is "[a] standard of proof [that] is higher than… a balance of probabilities, yet less than proof to an absolute certainty."

[20] The law provides for no burden of proof on the defendant at any stage in the proceedings. Absolute certainty is not required, for that would be an impossibly high standard for the prosecution to achieve. However, it does demand considerably more than probable guilt. A conclusion of probable or likely guilt requires that an acquittal be entered: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144.

[21] Further, reasonable doubt cannot be based on sympathy or prejudice, but must be founded in reason and common sense and be logically connected to the evidence or the absence of evidence.

[22] The reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities in trials where the evidence pits the prosecution’s evidence against the denial of an accused and the result turns on the trial judge's credibility assessments. I am mindful that I must consider all of the evidence fully and fairly and not assess the defence evidence with any greater scrutiny than the witnesses presented by the Crown, or arbitrarily place less weight on the testimony of the defence witnesses.

Assessing Credibility:

[23] Both the Crown and the defence focused on this as a case concerned principally with credibility and the internal and external consistency, reliability, and rationality of the evidence advanced by the witnesses.

[24] In a trial such as this, the framework for evaluation of the evidence and the credibility of the witnesses is the three-step method of analysis described by the Supreme Court of Canada in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. This seminal test is straightforward. First, if I believe the evidence of the accused, then the accused must be acquitted. However, even if I do not believe the accused’s testimony or the evidence adduced by the defence, I would be obliged to dismiss the charge if it leaves me in a position of reasonable doubt. Finally, even if I am not left in doubt by the evidence of the accused or the defence, I am required to ask myself, having regard to the whole of the evidence presented at trial and on the basis of the evidence that I do accept, whether I am convinced beyond a reasonable doubt of the guilt of the accused.

[25] In assessing the evidence, there are many well-established principles to be kept in mind. A criminal trial is not a credibility contest between witnesses. Time and time again the Supreme Court of Canada and the Court of Appeal for Ontario have made it clear that the court's verdict should not be based on a choice between the accused’s evidence and the Crown’s evidence, but on whether, based on the whole of the evidence, the court is left with a reasonable doubt as to the accused’s guilt: R. v. Challice (1979), 1979 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.); R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345.

[26] I feel it is important to reiterate this fundamental principle because I must not permit the burden of proof to be inadvertently shifted to the accused by requiring him or her to convince the court that the defence evidence might reasonably be true.

[27] The assessment of credibility is often the primary and the most daunting task that the trier of fact faces in a criminal trial, involving determinations of the truthfulness of witnesses and an assessment of their reliability. It requires a determination of whether their recollections are accurate regardless of the sincerity or insincerity of their beliefs.

[28] It is trite law that a trier of fact may believe all, none, or some of a witness’ evidence. A judge is entitled to accept parts of a witness’ evidence and reject other parts. Similarly, the trier can accord different weight to different segments of the evidence that is accepted.

[29] There are no fixed rules to which a judge can look to guide his or her assessment of the credibility of witnesses, but a number of elements may be considered. These include the perceptions of the witnesses, their memory, how reliably and accurately they recall the events, the manner in which the witnesses’ observations have been communicated to the court, and whether the information has been presented in a sincere, complete and truthful manner. A judge will look to the witnesses and assess whether they are being sincere and frank, biased, dishonest or careless with the truth, or perhaps reticent or evasive in the evidence that they have provided.

[30] Inconsistencies in the evidence of witnesses on relatively minor matters or matters of specific detail are, of course, normal. I must assess whether there is a pattern or rehearsed version of events advanced by the witness. Indeed, this may be of even greater concern, for it may suggest collusion, fabrication, or excessive rehearsal and regurgitation of a set story.

[31] However, where an inconsistency of a witness involves a material matter central to the elements of the alleged offences and about which common sense dictates that an honest witness is unlikely to be mistaken, the inconsistency can demonstrate carelessness with the truth that may undermine the whole of a witness’ evidence.

[32] A significant amount of evidence adduced during this trial is circumstantial. The relationship between circumstantial evidence and proof beyond a reasonable doubt was discussed by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 35-38.

At one time, it was said that in circumstantial cases, "conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts" see R. v. McIver, 1965 26 (ON CA), [1965] 2 O.R. 475 (Ont. C.A.) , at p. 479, aff'd without discussion of this point 1966 6 (SCC), [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: [Citations omitted]. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.

I agree with the respondent's position that a reasonable doubt, or theory alternative to guilt, is not rendered "speculative" by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus , a reasonable doubt "is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence: para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt […]

When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt: R. v. Comba, 1938 14 (ON CA), [1938] O.R. 200 (C.A.) , at pp. 205 and 211, per Middleton J.A., aff'd 1938 7 (SCC), [1938] S.C.R. 396 (S.C.C.) ; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII) , at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities […] "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

Of course, the line between a "plausible theory" and "speculation" is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

See also the discussion in R. v. B. (S.), 2018 ONCA 807, 143 O.R. (3d) 81 at paras. 122-124.

Vetrovec Warning:

[33] Another important consideration in this case is the legal principle that is oft-referred to as a Vetrovec warning: R. v. Vetrovec, 1982 20 (SCC), [1982] 1 S.C.R. 811, (1982), 27 C.R. (3d) 304.

[34] Even in a judge-alone trial, a jurist ought to direct himself/herself respecting unreliable evidence much in the same way as a jury. In other words, a judge sitting without a jury must obviously treat the evidence with equal caution. However, the court’s self-instruction need not reflect the same detail as a jury charge.[^1]

[35] In R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, the Supreme Court of Canada held that there is no fixed and invariable rule requiring a clear and a sharp warning as a matter of course regarding the testimony of certain categories of witnesses. It is a matter within the trial judge's discretion. The witness' credibility and the importance of the evidence to the Crown's case are relevant factors. The greater the concern over the credibility of the witness and the more important the evidence, the more likely the caution would be mandatory. The trier of fact ought to consider the evidence and thoroughly examine all the factors which might impair the worth of a particular witness.

[36] An instructive case on point is R. v. Yummu, 2010 ONCA 637, 260 C.C.C. (3d) 421, (aff’d 2012 SCC 73), at paras. 157-165. While Watt J.A. was addressing the crafting of a jury charge, he offered four elements that guide trial judges about the testimony of potentially untrustworthy witnesses: i. identification of the witness whose evidence requires special scrutiny; ii. explanation of the reasons why the evidence is subject to special scrutiny; iii. a caution that it is dangerous to convict on unconfirmed evidence of this kind, though jurors are entitled to do so if they are satisfied that the evidence is true; and iv. in determining the veracity of the suspect evidence, they should look for evidence from another source tending to show that the untrustworthy witness is telling the truth.[^2]

THE EVIDENCE AT TRIAL:

[37] This was a hard-fought trial. Extensive details about the principal parties and the related events surrounding Mason’s killing were presented and challenged by both the Crown and defence. Hence, this requires a review of some of the evidence.[^3]

[38] There are several facts that have been established or are not in dispute: The elements leading up to this murder – the parties, their relationships - have all been proven. At the material times, Hall and Eaton were in a common-law relationship. Lusted and Hall were in a criminal partnership. Mason was good friends with Shauna Cowley (“Cowley”). Initially, Hall resided at 85 Martha Street in Hamilton with Eaton and their children. Hall robbed an individual by the name of Kevin Gentles (“Gentles”) in 2005. Subsequently, Hall’s house was shot up on October 21, 2005, seemingly in retaliation for the robbery. He and his family were inside the home at the time.

[39] Hall, Eaton and their children moved out immediately and, in December 2005, relocated to an isolated farmhouse outside Alma, Ontario. Henry Van Ankum (“Van Ankum”) is the owner/landlord of the Alma farm. He met Hall and Eaton and they moved into the farmhouse in mid-December of that year. They paid their rent on time and always in cash. Their lease agreement was for the house and immediate grounds of the house. There was a “fire pit” adjacent to the house which they were able to use.

[40] In late winter or spring of 2006 or 2007, Van Ankum noticed the unmistakable marks of a fire on the concrete pad behind the house adjacent to the barns. He also noticed that a pile of firewood and another pile of scrap wood in his barns were both depleted. Hall and Eaton told him in late 2008 that they were moving out.

[41] In July and August 2009, based on Lusted’s information, police and fire officials searched the farm and a segment of the concrete pad for evidence of a fire or human remains. The searches were thorough. Some evidence was found of a fire; however, no human remains were discovered.

DISCUSSION:

[42] Section 229>(a) of the Criminal Code provides that culpable homicide is murder and has three essential elements, all of which Crown counsel must prove beyond a reasonable doubt. In this case they are: that Hall caused Mason’s death; that Mason’s death was caused unlawfully; and that Hall had the state of mind required for murder. This means that Hall either intended to kill Mason, or intended to cause Mason bodily harm that he knew was likely to cause his death and was reckless whether Mason died or not.

[43] I have no doubt whatsoever that Mason went missing and was killed. In this case, however, there are two diametrically opposed versions of what befell Mason and his eventual demise. For illustration purposes only; they are on the one hand, Lusted’s account at trial with other circumstantial evidence of what Hall and Lusted did at the relevant times before, during and after the killing, how others became aware of the events, and the circumstances of Lusted’s varied disclosure about the murder.

[44] On the other hand, the defence’s challenge to the prosecution’s case and witnesses, with evidence adduced that any alleged acts by the accused leading to Mason’s disappearance and murder never occurred, or that Hall was never implicated in them.

Lusted’s Overall Demeanour and Presentation at trial:

[45] Principally, the Crown’s case rests on my acceptance of Lusted’s testimony at this trial with the evidence adduced in support of his latest version of events.

[46] Lusted is the quintessential Vetrovec witness.

[47] There is no real dispute that Lusted is an unsavory, disreputable witness who admitted past involvement in illegal activity. His record is replete with crimes of dishonesty. He was an admitted accomplice in this alleged murder. He implicated himself in the crime and the cover-up of the murder. He admitted lying to the police repeatedly. He admitted lying under oath on prior occasions related to this case, at the preliminary inquiry and at the first trial.

[48] Lusted’s criminal record speaks for itself. He is 49 years of age and still, to this day, continues to be involved in serious criminality. Not only does this include crimes of dishonesty but also dangerous driving and violence. His lack of memory about his criminal antecedents is indicative of its routine nature and speaks to a cavalier mentality towards his conduct. The defence says that, amongst other matters, these are important points that Lusted repeatedly tried to avoid and dispute during his testimony. The defence has urged extreme caution in relying on any evidence given by Lusted.

[49] I agree. Anything short of a critical self-caution concerning Lusted’s testimony and its reliability would give rise to a miscarriage of justice.

[50] Indeed, given the importance of his evidence to the prosecution’s case, Lusted’s evidence must be looked at with the greatest care and caution. It must be corroborated by independent confirmatory evidence which lends support to his testimony so as to satisfy me that his untrustworthy evidence can be relied on as truthful. Such independent confirmatory evidence does not have to implicate the accused directly in the commission of the offence charged, but it must be capable of restoring my faith in the relevant aspects of his account. It is enough that the corroborating evidence of facts in the narrative lend credence to the witness’ story. See R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 17-19; R. v. Sauvé (2004), 2004 9054 (ON CA), 182 C.C.C. (3d) 321 (Ont. C.A.), at para. 82.

[51] The defence also says that Lusted displayed several dishonest patterns of behaviour. He merely switched from one falsehood to the next, committing only to the information that served him in the present and abandoning aspects that no longer did. Lusted routinely omitted harmful details. At times, Lusted lied to the court and would deliver one answer in one moment, only to be followed by a completely contradictory answer the next. It was commonplace for him to indicate that he did not understand the question. The defence emphasizes that every time that Lusted has been under oath, whether in court or providing a sworn statement to the police, he has been caught lying in relation to matters of substance.

[52] Lusted testified that on July 3, 2009, he knew that he was being taken by the police to provide a statement under oath. Lusted had contacted legal counsel and signed a KGB warning prior to the commencement of this interview. He was clearly warned at length about the consequences of lying under oath. He agreed that this statement amounted to a “pack of lies”.

[53] The defence says that another mechanism that Lusted can be seen utilizing to bolster his falsehoods involves phrases such “If I told you that, I would be lying” and “I want to be totally upfront”. These types of phrases have the impact he is trying his hardest to tell the truth and does not want to provide any information that could be misleading. Lusted admitted to being able to be emotional when he is lying. Lusted agreed that he intentionally combines real events with lies to increase the likelihood that his lies will be believed.

[54] Indeed, there were abundant internal and external inconsistencies and contradictions in his evidence. While I consider the peripheral inconsistencies as less significant, I have some concerns about certain details alleged by Lusted, in view of his differing versions of events provided to the police. Therefore, I am unable to accept a large segment of Lusted’s testimony as credible or trustworthy without cogent, corroborative evidence.

Lusted’s Evidence at Trial:

[55] At all material times, Lusted was living with his girlfriend, Dawn Corbett (“Corbett”), in Forest, Ontario, just outside Sarnia.

[56] Lusted testified that he met Hall in 2000 when they were serving time in a penitentiary. They became friends and criminal partners. In 2005/2006 Lusted engaged in criminal activity with Hall. Lusted would visit him at the Alma farm, where stolen property from the Hamilton and Niagara regions was being kept. Hamilton was the regular meeting point for Hall and Lusted.

[57] Lusted adopted the phone number 905-541-8804 (“8804”) as being his Rogers cell phone number at the relevant time. He testified that this was his only phone. When Lusted was first asked, “Do you know anything about Mr. Hall’s cell phone at the time, do you know how he came to have it?”, Lusted responded “No”. It was not until Mr. O’Brien pressed the question a second time that Lusted responded, “I believe he got it from me”. Lusted then went on to testify that he purchased a “ghost phone” from his sister, Tammy Milligan, (“Milligan”) and then “gave” it to Hall. He said he sold the phone to Hall for $100.

[58] At some point, Hall informed Lusted that his house had been shot up because of a “home invasion” and that a “bullet was close to his kid’s room”.

[59] Lusted testified that he did not know Mason, but ultimately came to be involved in his abduction. Lusted believed that the incident occurred in the winter. He testified: “2006 maybe? No it was earlier than that, 2004 maybe, I’m not even sure”. Lusted claimed that he is not good with dates.[^4]

[60] According to Lusted, Hall told him that he had a “good score” and to meet him in Hamilton. Lusted drove his Crown Victoria automobile from Forest to Sanford and Cannon streets in Hamilton (where Milligan resided), arriving there in the early afternoon with Corbett. Shortly thereafter, Hall arrived in a red or maroon GMC pickup truck. Lusted testified that “I believe it was a cab and a half, yeah”. Mr. Boughner testified in relation to his stolen GMC pickup truck and stated that his truck had no cab.

[61] On the day in question Lusted got into the truck with Hall, who then took him to Mason’s apartment. Hall knocked on the door, which was answered by “a coloured lady”. Hall announced his name as “Jeremy” and they were both let in by the unidentified black woman. Mason was in the apartment. Hall told Mason to put his shoes on as they were going to see someone up the road. Lusted testified that at one point, Hall produced a shotgun for all to see. The shotgun was cut off at both ends and was approximately 18 inches in length.

[62] According to Lusted, when they were leaving, Hall stated to the woman that “he’ll be right back”, referring to Mason.

[63] Hall, Lusted, and Mason walked to the pickup truck and got in. Everyone was smoking joints in the truck and Hall was conversing with Mason, asking Mason why he set him up. Lusted described Mason as calm.

[64] Lusted claimed that they drove around Hamilton, then to Moores Road. Lusted said he was familiar with this area because he and Hall had previously been there to burn trucks. Lusted testified that he believed that Hall was going to kill Mason, although Hall never said anything prior to meeting with Mason or during their travels in the truck.

[65] Specifically, in examination-in-chief, Lusted testified that:

We were just driving around Hamilton, then we started driving out, out of Hamilton. Q. Okay, and while you’re in the truck and driving and the conversation between Hall and Billy is going on, are, are you listening to music, smoking cigarettes, drinking a beer, tell us about that? A. Yeah, we were smoking joints. Q. All right, the three of you or? A. Yes. Q. All right, and do you recall the, the route that you took in terms of you say you started heading out of Hamilton, do you recall the route that you took? A. I can’t recall, certainly, but I think we went up Nebo Road… Q. All right, did you recall any landmarks or any places that stood out in your mind as you were driving? A. Glanford Iron. Q. Okay, that’s a business? A. Yes. Q. When you get to Glanford Iron, about how much longer do you, do you drive for? A. Four or five minutes. Q. Okay, and where do you end up going to? A. Moores Road. Q. All right. Where, where is Moores Road, roughly, is it in Hamilton, is it outside of Hamilton? A. Just outside of Hamilton.. Q. All right. Had you been to Moores Road before? A. Yes. Q. All right, with who? A. Jeremy. Q. All right, what, what was your purpose on, on earlier occasions of going to Moores Road? A. We had burned stolen vehicles there before.. Q. Can you describe it for us, is, is it a, is it a main road, a secondary road? A. It’s a dirt road that tractors use…

Q. All right. Do you, do you know why you’re going to Moores Road at that point? A. I had an idea. Q. All right. What was the idea? A. That Jeremy was going to kill Billy. Q. All right, do you say anything to him about that? A. Not at that time. Q. Okay, and so does the vehicle, when you’re driving on Moores Road, does it stop, does it keep going on Moores? A. No, we stopped on Moores Road….We get out. Q. All three of you or... A. Yes. Q. ...just the.... A. All three of us. Q. All right, and you’re in the passenger seat, so you get out which door? A. I get out the passenger door. Q. What about Billy? A. He gets out my door. Q. All right, and what about Mr. Hall? A. He gets out his door. Q. All right, the, the driver door? A. That’s correct. Q. And when Billy got out, what – when you got out, what did you – where did you go, what did you do? A. Well, Billy started walking towards the front of the truck and Jeremy had the gun at him and I went to try grabbing the gun from Jeremy and Jeremy shot him. Q. All right, how, how long does this whole business take? A. Very fast, very quick. Q. All right, is Mr., Mr. Mason - or Billy walked to the front of the truck? A. Mm-hmm. Q. Yes? … He’s walking backwards, facing Jeremy. Q. Okay, and where does the gun appear from? A. From Jeremy. Q. All right, from the jacket? A. From the jacket. Q. All right. A. No, I believe it wasn’t in the jacket, it was right on the – beside him in the truck. Q. Okay, how far away was Mr. Hall from Billy, approximately, when he shot him? A. Four or five feet. Q. Does Billy say anything while he’s backing up or while he’s out of the truck? A. I don’t remember, he was saying something, I don’t remember what it was. Q. All right. Does Mr. Hall say anything that you.... A. Not to my knowledge. Q. And when Mr. Hall shoots him, does he shoot him once or more than once? A. Once. Q. What – do you see that Billy has been struck by the, by the shot? A. Yes. Q. All right, what does he do once, once he’s been hit? A. Billy? Q. Yes? Q. He backs up and then he walked a little bit and then fell. Q. Okay. What do you do at this point? Mr. Hall has shot Billy. A. I started panicking. Q. All right, meaning, meaning what, what did you.... A. Like what the fuck’s going on and – you know what I mean? Q. Were you saying this to Mr. Hall? A. Yeah. Q. All right. What, what does Mr. Hall do then? A. He fires a shot in the air and he says, ―You want to be next? Q. Okay, fires another shot? A. Yeah, in the air, yeah. Q. In the air? Who is the comment ―do you want to be next? A. To me. Q. All right. And what did you understand that he meant by that? Do you, do you, Jason Lusted, want to be next, what did you take that to mean? A. I might be next if I don’t settle down. Q. Like be shot? A. Yeah. Q. All right. And you say Billy fell after a period of time, he walked a distance and then fell? A. Mm-hmm. Q. Yes? A. Yes, correct. Q. Do you see whether he’s moving once he’s fallen to the ground? A. I did not see that. Q. And at that stage, what does, what does Mr. Hall do? A. He went over to Billy. Q. All right, to where he as lying? A. Yes. Q. All right, and what, what do you see him do? A. I’m not sure what exactly he was doing out there. Q. What – well, you may not be sure of what you were – what he was doing, what did you see him doing? A. Leaning over Billy.

[66] While Hall walked over to Mason, Lusted got into the truck on the passenger’s side. Mr. O’Brien then asked Lusted “Are you sure about that…that you got in the passenger side?”. Lusted responded “I’m not a hundred percent”. [^5] Having read his prior testimony, Lusted responded that he got in the driver’s side in an attempt to drive away because he was scared; a point he did not remember moments earlier despite being in a heightened state of panic. Lusted moved from knowing he got into the passenger door, to not being 100% certain, to not being certain at all, then commits to having climbed in the driver’s side.

[67] Lusted testified that Hall then got in the truck and “we went separate ways, he went his way, I went my way when we got to Hamilton”. Later in his examination-in chief, Lusted remembered that he and Hall did not go their separate ways. Rather, they retrieved his Crown Victoria automobile from where it was parked and proceeded to Smithville to burn the truck that was utilized to abduct Mason.

[68] After recalling that he and Hall went to burn the truck for the purpose of destroying evidence, Lusted testified that doing this was all Hall’s idea. Lusted testified that he and Hall ended up in the “Smithville area”. A location was ultimately selected and Hall burned the truck. While Hall was destroying evidence, Lusted was driving up and down a nearby road and viewed the GMC truck engulfed in flames.

[69] Hall then got back into Lusted’s vehicle. Lusted thought they then went to steal another truck someplace outside of Hamilton. Hall stole another pickup truck in order to have a ride home. Hall also gave Lusted a gun and instructed him to take it to East End Auto in Stoney Creek – a car lot the two men had regular dealings with. Hall told him to put the gun in the back of one of the old cars. Hall went home and Lusted travelled to East End Auto to dispose of the firearm. Later, Lusted then went back to his sister’s home in Hamilton to retrieve his girlfriend before heading back to Forest.

[70] Lusted testified that he believed he spoke to Hall that same evening but, after that, had not spoken with him for a number of days following the incident. Lusted testified that he was afraid of Hall and did not want to speak with him. When Hall eventually contacted Lusted, he informed him that they had to go and get the body. Lusted expressed reluctance and Hall told him, “you have no choice”. Lusted agreed to help Hall because he did not want Hall hurting his family.

[71] Lusted travelled from Forest back to Hamilton with Corbett to Sanford and Cannon. By the time Lusted arrived in Hamilton, it was “getting dark”. Corbett went into Milligan’s house. Hall arrived shortly after Lusted, driving the truck that he had stolen a few days prior. Lusted got into Hall’s truck and the two men drove to Moores Road.

[72] When they arrived back at Moores Road, Hall “backed up [the truck] to where Billy was”. Hall then got out of the truck, wrapped Mason in plastic, and put him in the back of the truck. He testified that the plastic came from a “bed that Jeremy bought”. Lusted testified that he neither assisted nor observed any of this, he just heard a “clunk in the back of the truck”. He described this plastic in the following ways: “It was a plastic from when you buy a new bed that comes in plastic” “…it was like plastic you put on your windows… -“it was a hard plastic…it can fold -“…it was clear”. “Q: Could you see through it? A: No.”.

[73] After Mason was placed in the back of the pickup truck, they started to drive back to the Alma farm. On the way, they stopped to get gas on Highway 6 North in Guelph where Hall filled a gas can.

[74] When they arrived at the farm, Hall and Lusted pulled Mason off the truck and took the body “towards the back of the farm”. Lusted could not see Mason through the plastic. Mason was then placed “somewhere” on the cement pad.

[75] At trial, Lusted was provided with a series of photographs depicting the Alma farm.[^6] Even with the photos, Lusted could not identify where on the cement pad the burning of Mason’s body was said to have occurred.

[76] Lusted testified that at Hall’s direction, he only retrieved wood from one area that he believed to be the side of the barn. Lusted made several trips to retrieve the wood. With respect to the building of the fire, Lusted testified that Hall “got the wood and he lit the fire and put gasoline all over. The wood was on top of Billy”. Lusted described the fire as being a “fair size”. He and Hall fed the fire and they both drank beer. He claimed that the fire burned for five hours.

[77] Lusted did not notice that there was any odour associated with the fire and the burning of the body until later on when he changed his clothes.

[78] With respect to the changing of his clothes, Lusted testified that he was wearing a black sweatshirt when he arrived at the farm property. He could not recall what clothes he changed into, but did recall that they belonged to Jeremy. When asked if the clothes fit him, Lusted responded “not really”. Lusted claimed that he was in the house for 10 or 15 minutes.

[79] Lusted testified that nobody was supposed to be at the farm. At one point, he entered the farmhouse to change his clothes and heard a baby crying. Although he did not see Eaton, he assumed she was there caring for the child.

[80] When Lusted left the farm, he departed in the stolen black truck that had been utilized to retrieve Mason’s body. When Lusted returned to Hamilton, he estimated it was somewhere between the hours of 3:00 a.m. and 5:00 a.m. He woke up Corbett and they went back home to Forest.

[81] Lusted thought he might have spoken with Hall the next day. When asked by the Crown whether they had any further discussions about Mason’s body, Lusted responded “No”. After refreshing his memory from his previous trial testimony, Lusted testified that Hall told him that Mason’s remains were put in feed bags.

[82] In the days that followed the burning, Lusted testified that he was scared that Hall was “coming for him next”. Nonetheless, he continued to engage in a criminal partnership with Hall until 2009.

Lusted’s Alleged Testimonial Inconsistencies:

[83] The focus of the defence challenge to Lusted’s testimonial inconsistencies was based on his prior sworn statements as well as various utterances provided to the police during his visits to the Alma farm property.

[84] Under cross-examination, Lusted agreed that the version of events he gave in his July 3, 2009 Alma farm Walk-Through was short-lived and he soon thereafter concocted a new story. Initially, Lusted told the police that the killing of Mason took place on the Alma farm. Six weeks later, he was once again back at the police detachment to provide another statement under oath with all the well-known associated cautions. During this statement, Lusted proceeded to tell Sergeant Thom (“Thom”) that he lied in his previous statement because he was scared Hall was going to kill him.[^7]

[85] The defence points out some other examples: In 2006, Lusted was approximately 400 lb., twice Hall’s weight. He is 6’2” and towers over Hall who is 5’7”. It is clear from the 2009 Alma Walk Through video that Lusted lumbered along and was not a fast mover. Any inferences that Lusted was moving to bring loads of wood to continually fuel a fire or changing into clothes that belonged to Hall are improbable.

[86] The defence also says that Lusted’s oscillation on the topic of the plastic wrap or tarp is questionable. In chief, Lusted was certain that the plastic was from a mattress that Hall purchased as he believed Hall told him so. He described it as typical plastic that new beds were packaged in. He claimed that the plastic was clear, but not transparent. In his July 3, 2009 statement, and at the previous trial, Lusted admitted that he did not say that Jeremy told him the plastic was from a mattress.

[87] In his August 21, 2009 statement, Lusted told Thom that he assisted Hall in wrapping Mason in plastic. He described this event in detail and indicated that he was at Mason’s feet and Hall was at Mason’s head and they were both tucking the plastic around the dead body. At trial, he testified that all of this was a lie and that he had nothing to do with the wrapping of Mason in plastic, as he remained in the truck while Hall did it.

[88] Another example is the July 7, 2009 Alma Walk-Through video. Lusted indicated that after Mason was shot by Hall at the farm, Hall approached his body. Lusted asked Hall “what are you doing” and Hall replied “I’m just seeing if he’s dead”. While Hall was walking over to Mason, he held a knife in his hand. Mr. Derstine then asked Lusted if this actually happened to which Lusted responded, “yes”. Lusted’s testimony in chief made no mention whatsoever about Hall approaching Mason with a knife. To the contrary, Lusted testified that Hall leaned over Mason’s body, but was not sure of what he was doing.

[89] When questioned about why he didn’t provide this information about the knife, Lusted testified that it was because he didn’t see Hall “physically do that”. Under cross-examination, Lusted agreed with Mr. Derstine that he had said in previous statements that he looked and saw Jeremy with a “big knife”. Lusted maintained that he did not tell Mr. O’Brien about the knife because he did not know what the object was in Hall’s hand. Having been confronted with his previous statement and asked why he didn’t recall the knife the day prior, Lusted responded that he did not remember. He maintained that he never actually saw what object Hall had in his hand.

[90] Lusted acknowledged that during the course of the Alma-Walk Through video he was asked by Thom about the details of the gun Hall utilized to shoot Mason. He agreed that he told Thom that Hall shot Mason with a double-barreled shotgun. In chief, Lusted testified that Hall fired two shots: one that struck Billy; and, one in the air to scare him. He indicated that he was certain that shell casings were discharged from the firearm on each shot. He testified that he then witnessed Hall pick up two shell casings and put them in his pocket. He generally agreed that double barreled shot guns do not discharge shell casings, but maintained that this particular gun did, and that Hall picked up the casings.

[91] I will address the “cement pad fire” issue in greater detail later in these reasons.

Carol-Ann Eaton:

[92] It is conceded by the Crown that Jason Lusted is a Vetrovec witness. The Crown says that Eaton as a witness is a very different matter.

[93] In my previous “KGB” ruling, I made certain findings and the defence invites me to re-consider those issues. I agree with the defence that factual findings made on a voir dire do not automatically apply to the trial proper. I am required to make factual findings based on an assessment of the evidence as a whole.

[94] The defence advances much of their same arguments in relation to the impropriety of Ian Matthews (“Matthews”) and Greg Walton (“Walton”) and their alleged mistreatment and coercive or deceitful behaviour towards Eaton. In this regard, the defence relies, in part, on the uncontradicted evidence of Jane Doe. The defence also relies on the police notes of Matthews and Thom that pertain to their first meeting with Lusted. As well, the defence points out that since the voir dire I have heard a substantial amount of new evidence.[^8]

[95] The defence submits that Eaton, while perhaps not as far on the spectrum as Lusted, is a liar and a Vetrovec witness. The defence says that she was a perjurer before her August 2010 statement to the police and she remains a perjurer to this day as evidenced by her deplorable conduct during the course of this trial. The defence strenuously argues that Eaton’s KGB statement ought to be given no weight in my ultimate assessment.

[96] As discussed in my previous ruling, on May 23, 2005, Eaton attended Niagara Regional Police and provided recorded KGB statements. Her statement implicated Hall in assaultive and threatening behavior. Hall was charged with assault and uttering threats. Eventually, Eaton was charged with public mischief. On March 1, 2006, in St. Catharines, she plead guilty to one count of public mischief for lying to the police and received a conditional discharge.

[97] While a finding of guilt for public mischief may give rise for concerns about a witness’ credibility, Eaton explained the underlying circumstances of why she resiled from her original sworn statement against Hall, which lead to the original criminal charge. I accept the explanation in her police statement of August 26, 2010, that the assault and threats against her by Hall did actually occur as she described, but for a variety of reasons she recanted. In my view, her details of the incident and explanations muted the impact of such a finding of guilt as it pertains to her credibility at the relevant time.

[98] I disagree with the defence assertions that Eaton’s character calls into question the veracity of her police statement in and of itself.

[99] Before and after having turned over the firearms to police, Eaton expressed her fear of Hall and appeared to be genuinely frightened of him. She was reasonably informed about the witness protection process. Despite being offered options, it was Eaton who decided what protocol to engage with the police. I reject the assertion that in 2010, Eaton had other motives to lie to the police or provide misleading information.

[100] Further, I reject the defence submission that Eaton’s conduct is such that, like Lusted, there is no way for me to decipher when the lying ends and the truth begins, if at all. It is true that I concluded that Eaton flagrantly and wantonly lied during her in-court testimony. She was combative without cause, and obstructed the trial process by not attending to give evidence when she knew she had been subpoenaed and later evading service. She was deemed to be a hostile witness.

[101] With respect, however, I am neither going to reconsider my KGB ruling or issues arising therein nor am I prepared to revisit similar issues advanced during the voir dire as a result of the evidence adduced at this trial. Quite the contrary. I arrive at a different conclusion than that offered by the defence.

[102] I am not persuaded by the arguments about Eaton’s underlying complaints regarding the police and her vacillating motives for providing a statement to them. I reject any assertions in relation to the giving of her statements with any alleged police misconduct or actions that were raised during the KGB voir dire and repeated at the trial proper.

[103] At the time of the giving of her 2010 statement, she did not have a criminal record. Eaton eventually sought out the police to speak with them. I find that her statements to Detective Loader (“Loader”) were entirely forthcoming and voluntary. She was not a person associated to the alleged murder or an accomplice, or of otherwise bad character. While there was potential liability with respect to her involvement with the seized firearms, I am satisfied that she was provided with immunity for that prosecution, albeit not in a nature of a quid pro quo for information related to Mason.

[104] Moreover, there was no obligation on the police to provide a caution to Eaton qua witness at any time prior to and during the course of her two statements in August 2010.

[105] Despite the vigourous assertions offered by the defence, I am not persuaded that Eaton’s evidence falls under the Vetrovec principles. Even with her in-court obfuscation, lying or inconsistencies juxtaposed with her prior KGB statements, these and other considerations do not rise to the necessity or utility of warranting a Vetrovec caution. Frankly, this is not even a close call.

[106] However, given her presentation at this trial, it does not mean that her evidence ought to be accepted without scrutiny.

[107] Additionally, I do not accept the argument that there was collusion between Eaton and Lusted. Dennis Lusted (“Dennis”) knew very little about his brother. His evidence was premised on speculation. He was never able to hear any conversation between Eaton and Lusted on those occasions when he says they were together. He was not able to put anything close to accurate dates as to when they were together. He did not know, or barely knew, that his brother and Hall did crimes together. There is nothing credible or reliable in Dennis’ evidence to advance the collusion narrative.

[108] The evidence that Eaton and Lusted knew each other is undisputed, but opportunity does not automatically lead to a finding of collusion: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 44, R. v. Kennedy, [2006] O.J. No. 4976 (S.C.), at para. 36. Lusted and Eaton denied speaking about the specific events in question. As the defence also points out, Eaton’s evidence regarding what she observed and was informed about Mason, often differs from that of Lusted.

[109] On this point, she advanced the same theme about what she – and for that matter- Lusted was told to say in their respective statements. I reject any assertion by Eaton that she discussed the relevant events in question with Lusted. Even without accepting Lusted’s denial of any collusion with Eaton, I am left with no reliable evidence on this issue and I find that any suggestion of collusion is mere conjecture. As stated, I reject all of Eaton’s in-court testimony as contrived and untruthful.[^9]

[110] In summary, I accept Eaton’s August 26, 2010 statement to Loader as truthful, to the extent that she made personal observations. Further, I am satisfied that certain relevant information that she provided to Loader could only have been details furnished to her from Hall. I find that Eaton’s KGB statement to Loader is entirely credible and reliable.

Hall’s testimony:

[111] Hall testified in his own defence at this trial. He presented confidently in court and is quite articulate. His evidence can be summarized as follows:

[112] Hall grew up in Hamilton and became involved in criminal activity at a relatively young age. He has an extensive criminal record, which includes crimes of dishonesty.

[113] During the early to mid-2000s, his main criminal associates were Rudy Tatum (“Tatum”) and Lusted. At the relevant time, he was primarily involved in high-end thefts, commercial B&E’s, and drug dealer robberies. Hall was also involved in drug and gun trafficking and operated a “chop shop”.

[114] Hall met Lusted in jail in late 1999 and they developed a friendship. Once the two men were both out of jail, they were committing crimes together frequently. Often, they would spend time together that did not involve criminal activity. Hall described Lusted as someone that was continually in and out of jail and was uncertain as to when exactly Lusted was released.

[115] In terms of their business arrangement, Hall testified that there was no hierarchy. The structure involved Hall and Lusted in the role of thieves. Tatum would provide a location for the stolen property to be stored and would fence the stolen items for profit. Clients would place orders and they would then steal items such as vintage or modern cars, motorcycles, boats, RVs, car haulers, trailers, tractors, dirt bikes and snowmobiles. Items were stored at Tatum’s, East End Auto and at the Alma farm. In 2006, their business was going well and they were a “cohesive unit”.

[116] Hall testified that Lusted, in 2006, was “morbidly obese”, not agile and estimated his weight to be at least 400 lb.

[117] Hall met Eaton in 1997 at a New Year’s Eve party. The two commenced a common-law relationship shortly thereafter and have three children. He remained in a relationship with Eaton until their breakup in 2014. He testified that Lusted and Eaton were friends and Lusted would look out for her while he was in prison.

[118] Hall testified that he did not get Eaton involved in his criminal lifestyle. Eaton never questioned him about his dealings as she had no business knowing what he was doing. From early on in their relationship, Eaton was not permitted to ask him about his “business”, save and except for two occasions. In 2009, after he was arrested, Hall spoke to Eaton from jail. She indicated to him that the “cops were breathing” down her neck. Apparently, Eaton was spoken to by Matthews following Hall’s court appearance in 2009 and the police were looking for Mason’s body and there was a search warrant for the Alma farm.

[119] Hall testified that he became paranoid with respect to the police presence because he had guns buried in the backyard. He told Eaton to get rid of the guns and indicated to her that he did not care what she did with them. He felt as though he had no choice but to ask Eaton as he was severing his ties with his criminal associates and did not want people knowing he was living in Brampton. Hall did not advise Eaton to put the guns in her brother’s storage locker and was unaware that Eaton put the guns in the storage unit until she informed him several months later.

[120] According to Hall, there was only one other time that he gave Eaton information about his “business” and that pertained to the house being shot up and his belief as to why that had occurred. He testified that he had to tell her because she was in the house at the time and, for that reason, it was no longer just his business – “it had become their business”. He felt he had put Eaton in danger and that she had the right to know what was going on.

[121] Hall testified that he did not personally know Mason, but he knew “of him”. He would recognize Mason to see him. He understood Eaton was friends with Mason when she was younger. Hall said: “…he’s nobody that I ever had a relationship with, man. I maybe seen the guy a couple times in my life…If I saw him, I knew that that’s the guy. Like, I can’t ever say I even spoke a word to him, shook his hand, or gave him a high five, you know what I mean? Like, you’re from the same neighborhood you have your own circles. You know, our circles didn’t cross like on a Venn diagram. We were over here and you guys were over there and that was the way it was.” Hall testified that the only thing he knew about Mason was that he was a drug addict that smoked crack.

[122] Hall was adamant that he never spoke to Mason on the telephone. When asked if he ever spoke to anyone named “Billy” on the phone in 2005-2006, Hall testified that the only Billy he knew, other than his father, was an individual by the name of Billy Angel, who was a mutual friend of Lusted’s.

[123] Hall testified that he has never committed crimes with Mason, as he would not commit crimes with “somebody like that guy” and would not work with drug addicts because they are notoriously unreliable. Hall only works with people that he has established relationships with and even then, he does not even trust those individuals 100%.

[124] Hall testified that, to his knowledge, Mason had never wronged him in any way. He did not know where Mason lived prior to these proceedings. Mason was never involved in setting up any robberies for him.

[125] Hall conceded that at “some point” he came to learn that Mason was missing. He heard people talking about it, saw it on a bulletin board and also viewed it on the news. He could not speak to when exactly he became aware that he was missing. When asked if Eaton was with him when he saw Mason on the news, Hall could not recall but acknowledged that it was possible. He could not recall where he was when he saw this on the news and denied ever asking Eaton if she thought differently of him. He testified that it is possible that he discussed with Eaton the fact that Mason was missing after becoming aware of that information, but denied having any conversations with Eaton that would inculpate him in Mason’s disappearance. Hall was adamant throughout his testimony that he did not kill Mason.

[126] When asked if he robbed an individual by the name of Gentles, Hall responded “100%” and said he did so in the “summer-ish” of 2005. He committed this robbery with Mikey Hall and Johnny Rora somewhere on the Hamilton mountain.[^10] Hall bought the information from Jay Bomberry (“Bomberry”). Specifically, Bomberry gave Hall information about a “couple of young guys up on the hill pushing some decent weight”. Hall understood this robbery to be an “easy in and out”. Hall agreed to pay Bomberry 10% for setting up the robbery. In respect of the Gentles robbery, Hall kicked in the door and was successful in obtaining money and drugs. Hall testified that Mason was not associated with this robbery in any manner.

[127] Hall spoke about another robbery that he committed, which he referred to as the robbery of “Slappy” (AKA Mikey “Clapham”). Hall testified that this robbery took place well after the Gentles robbery, which he estimated to be about two to three months later, but could not say precisely. Hall obtained the information for this robbery from another person. Hall robbed Clapham of a “decent amount of cash” and “a decent amount of weight” (drugs).

[128] Following the robbery, Hall described an attempt by Clapham to accost him, which was unsuccessful. Aside from this attempt, Hall, at that time, did not believe that there were any further issues associated to this robbery. He changed his mind about this at a later date when it became apparent to him that this was the catalyst to his house being shot up. Hall was adamant that Mason also had nothing to do with the Clapham robbery.

[129] Hall resided on Martha Street in the City of Hamilton and that, while living there, the house was shot up while he, Eaton, and their baby were home. He was certain that this occurred in 2005 “well after” both the Gentles and the Clapham robbery. On the night of the Martha Street shooting, Hall was still up watching TV with Eaton. Hall received a call on his landline and he then instinctively went to look out the window. He saw “a whole wack of guys” in the parking lot across the street. Hall told Eaton to take the baby downstairs to hide behind the furnace. Hall remained upstairs, looking out the window and he witnessed some of the men slash his tires before a white pickup truck pulled up in front of his house and started firing shots. Hall remained at the window because he wanted to see what was happening so he could intercept anyone trying to enter his house.

[130] After the shooting, Hall and his family remained at Eaton’s mother’s house for a period of time before moving to the Alma Farm. He testified that it no longer appeared feasible to him to stay in Hamilton, because he did not know who did the shooting and could therefore not adequately protect his family.

[131] Hall settled on the Alma farm because it offered everything that he was looking for at the time: safety, security, anonymity, and room for his business. They moved in by Christmas of 2005. Van Ankum visited the property frequently and did not need permission to come onto the property.

[132] Hall had two wood stoves and would sometimes take wood from the pile to heat his home. He testified that he was not concerned about taking the wood because Van Ankum never used it. There were two piles of wood, a pile of scrap lumber and another pile of wood behind a shipping container. Hall estimated there to be about two dozen pieces of scrap lumber in the pile on the night he had a fire with Lusted. The other pile of wood was circular and knee height. The two piles of wood were very close in proximity to one another. Hall would use this wood and sometimes replenish it.

[133] Hall testified that he had “countless” fires on the Alma property and that he made a bonfire any chance he could. It provided him with some degree of comfort, “peace to my soul”. He also burned garbage. Hall had most of these fires in his fire pit. He did not have fires on the concrete pad very often and estimated that would have occurred approximately a half a dozen times.

[134] Hall testified that he had only one fire on the cement pad where Lusted was present. He could not remember when that fire with Lusted occurred, but he recalled that there was no snow on the ground, as he was laying on the ground underneath the truck to remove the body mounts. Hall had taken trucks apart on the property many times before and normally utilized the garage. On this occasion, the garage was not a viable option because it was directly underneath his children’s’ bedroom and it was late at night.

[135] Hall estimated this fire to have lasted approximately two hours. They were cutting up a stolen truck on the concrete pad at night. The fire had the dual purpose of acting as a light source and burning parts that could not be sold, which included the interior of the truck. The process involved taking all of the sellable parts off the truck and burning the worthless scraps.

[136] On the night of this fire, Hall testified that it was possible that he and Lusted went inside the house, although Hall had no specific recollection of doing so. Hall had no recollection of ever cleaning up this fire. Hall said he used the construction lumber for this fire and that he used some of the other firewood as well. Hall testified that he never instructed Eaton to take wood off the property. He never melted a gun in a fire and did not burn a body.

[137] Hall stated that it was not possible that he had more than one fire with Lusted on the concrete pad, although Lusted had been present for other bonfires at the farm in general.

[138] Hall testified that he eventually came to believe that it was the Hell’s Angels that shot up his house due to the Gentles robbery. He indicated that he held this belief as a result of information that was provided from Lusted. He knew Lusted to be connected to the Hell’s Angels because he lived four doors down from Louis Malone, (“Malone”) a well-known vest wearing member. Hall indicated that when Lusted was giving him this information it “made sense” for the most part, although it did not make sense why the M.C. would wait so long after the Gentles robbery to conduct the shooting. Hall acknowledged that he communicated to Eaton his belief and the circumstances as to why the Martha Street house was shot up.

[139] At some point, years later, Hall’s belief with respect to who shot up his house changed. It was not the Hell’s Angels that were directly involved, but just Malone. Hall came to understand that the drugs he took from Clapham belonged to Malone as a result of information received from other sources.

[140] Regarding the phones, when at the Alma farm, there was a landline and Hall had two burner phones. He described these as cheap, disposable, throw-away phones. These burner phones had a shelf life dependant on what he was using them for at any given time. Hall testified that did not “purchase” a burner phone from Lusted. They were partners and would not sell things to one another. Burner phones were purchased at the mall. He also said it was possible that Lusted “gave” him a burner phone because burner phones got passed around pretty frequently within his crew. If someone in the group needed a phone, they would provide them to each other. Hall acknowledged that it was possible that the 8060 cell phone number “was his”.

[141] Hall testified that he had no recollection of ever burning a truck with Lusted. He testified that burning a truck is a waste of money as he was making approximately $2400 off of each stolen truck.

[142] Hall was very familiar with East End Auto. Hall and Lusted carried on all sorts of illegal activity that involved both the car lot and its owners. In 2005 and 2006, Hall visited the car lot “constantly”. He would regularly store items in cars at the lot, such as weapons and drugs. He did this because it was a good location for what Hall described as “deniability”, as storing illegal items there decreased the risk of detection. Hall testified that he never asked Lusted to store a gun at East End Auto.[^11]

[143] The defence submits that there is no basis to reject Hall’s testimony as he gave his evidence in a straightforward and sensible manner. He readily conceded reasonable suggestions and admitted to criminal activity. Hall was cross-examined at length and his evidence was not contradicted at any point. Hall’s evidence should be believed or at the very least, leave the court with a reasonable doubt.

ANALYSIS:

Events after the fact:

[144] There was much evidence adduced regarding events that occurred after the alleged murder. Both parties spent much time at trial in both the presentation and refutation of evidence, particularly on the issue of the fire on the cement pad. The focus and relevance of this entire spectrum of evidence was to either enhance or negative Eaton’s (and for that matter - Lusted’s) trustworthiness, credibility and reliability as a witness. The defence suggests that Lusted and Eaton’s evidence was riddled with fiction and obfuscation.

[145] Some of the points raised by the defence include the following:

[146] In her KGB statement, Eaton tells Loader that Hall informed her that when he burned Mason, the blood ran or trickled all the way from the fire to the house. The defence says that this is a complete fabrication for multiple reasons. It is an admitted fact at this trial that the human body contains approximately 5L of blood. The distance from the alleged fire to the house is substantial. The fire is alleged to have happened in winter and on a porous surface; these two facts alone make it obvious that any liquid dumped in that area, at that time of year, under those circumstances, would not have made it very far.

[147] Given the alleged location of the fire, the body allegedly being engulfed in flames, and the flat terrain the blood would need to traverse, the suggestion that it could run to the house cannot be believed. The defence says that I need not even turn to the testimony of the expert witnesses.

[148] However, this evidence arises from Eaton as to what she says Hall informed her about the event. It was not a personal observation and she did not see the actual fire or the burning of any body.

[149] Eaton tells Loader that Hall informed her in words and with hand gestures “that with the wood, that he made a great big bed and that he put him (Mason) on it and then when they burned him that his blood ran all the way to the house and he couldn’t believe that the blood came all the way there..”.

[150] It is not, as defence says, an unequivocal blatant deceit and a testament to how convincingly Eaton can lie. I accept Eaton’s version as to what Hall informed her. For whatever reason, I accept that Hall had advised her of this (apparently inaccurate) detail. I note that Lusted makes no mention of running blood. Even if Eaton is prone to exaggeration on this very point, I am not persuaded that it impacts on her overall credibility.

[151] Eaton initially tells Loader that on the day after she observed Hall loading the sacks onto the truck, she saw Hall melting a gun in the fire pit. It was like a garbage fire, not a “bomb fire” (sic). She said: “I just seen him making a fire and it wasn’t like weren’t (sic) doing our garbage or anything like that and it wasn’t night time… I just remember seeing him melting [the gun] and then he took the metal piece and did something with it… it was like a big gun … but a little one like .22 or something… I think a hunting rifle like it was a just a skinny barrel… it may have actually been sawed off”. She did not ask Hall any questions about melting the gun down.

[152] Eaton then went on to tell Loader that she viewed the metal piece after it had melted. At a later stage, she informed Loader that she never actually saw Hall melting the gun but that Hall was making a fire and it was not for garbage. She only saw the metal piece after the gun had melted. Whether the entire gun was destroyed or not is not established. It seems that Eaton was equivocal with this segment of her information. That being said, I am persuaded that nothing really turns on this particular observation as affecting Eaton’s overall reliability.

[153] The defence submits that Eaton is also inconsistent in describing the information exchange during her relationship with Hall. The defence says that for the most part, she appears adamant that Hall keeps her completely in the dark with respect to his criminal activity and has trained her not to ask questions. At other times, she appears to suggest the exact opposite when she tells Loader that Hall is sharing details with her about Mason.

[154] While Hall testified that he did not share particulars of his crimes with Eaton, he did admit to relating certain details to her. For example, the impetus of the Martha Street shooting. Further, I accept that Hall made certain spontaneous utterances to her during the relevant time, for instance, when they were watching the news together following Mason’s disappearance.

[155] I must differ with the defence argument that the words and gestures attributed to Hall by Eaton are incomplete hearsay utterances of the type contemplated in the jurisprudence. For the most part, I am not persuaded that Hall is providing her with incomplete “odds and ends” in a piecemeal fashion on different dates, and then Eaton herself is stringing them all together.

[156] However, it is true that, at times during her statement, Eaton tells Loader, “The thing is with Jeremy he touches on things and he does it at moments where you’ll know what he’s talking about so it wasn’t one full conversation it was like in bits and pieces over the years… he never sat down and said this is what I’ve done”…

[157] Therefore, where so qualified, I have reviewed the evidence to ensure that I am satisfied that the admissions from Hall to Eaton that I accept are not deficient. Indeed, I have rejected some of Eaton’s evidence where there is the possibility of incompleteness, speculation or bald assertions. It is in this context, that I cannot accept her evidence as to what Hall did not say or directly express to her either directly or by implication. I also reject her opinions where unsubstantiated. For example, during her statement to Loader she opined that “she believed that he (Hall) killed Mason”.

[158] Eaton voluntarily drew a diagram of the farm area to assist the police. The defence also points out that Eaton took the officers to a general area and they searched and found some wood. The equivocal direction that Eaton gave police was “It’s somewhere around here, so stop”. Evidence of other witnesses in this regard also show that the area itself was saturated with wood. Eaton indicates that she was only able to locate one half burned log.

[159] The investigators located seven pieces of wood consistent with burning and a spent shotgun cartridge. Eaton indicated that she took only one log, not seven, and said nothing whatsoever about a shell casing. The defence argues that given that the wood and shell were found together and they do not match Eaton’s description, the only logical inference is that they are from some unrelated event entirely.

[160] I accept that Eaton was told by Hall to clean up the burn site. Clearly, Eaton was mistaken about the location where she deposited the wood. The significant passage of time, the terrain, along with her equivocal assertions as to the exact location of the wood, do not detract from her overall reliability.

[161] The defence also says that Eaton was adamant that this fire occurred on the night prior to her March 1st St. Catherine’s court appearance. In fact, my review of her statement indicates that she claims that “Jeremy got in touch with Jay, it was the day before my court”.

[162] The defence submits that the cell phone records, - which in and of themselves involve some degree of “cherry picking” to locate an evening that presents the possibility for this fire to occur - completely refutes Eaton’s assertion that this fire occurred the night before her court date. The defence says that if this was the only thing Eaton was off about, then perhaps it is excusable but she, like Lusted, is “off” about everything.

[163] In any event, the Crown responds that it is, in essence, “no big deal” that she is off by one day; it is not by days or weeks. Her statement to police is given over four years after the events in question and her 2006 court date.

[164] As an anchor to the relevant date, I agree with the Crown that Eaton was entirely honest, but mistaken. Upon my review of the whole of the evidence, I find that this is fully understandable in the circumstances and does not detract from her overall trustworthiness as a valid historian.

[165] I am also not persuaded by the defence argument that most of the information that Eaton gave in her statement in relation to Mason would have been known to her as it was generally available to her through the media, the police, or Lusted. Some of the details she provided could only have come from the mouth of Hall.

[166] Nor am I convinced that when the factual nexus surrounding Eaton’s statement is examined, the information she divulges can be explained simply by her general knowledge combined with her alleged dishonesty. In sum, I reject the claim that Eaton could have easily taken “bits and pieces” over the years, and wove these items together to create a false, but believable narrative.

[167] The defence also says that although there are some similarities between the evidence of these two witnesses, Eaton and Lusted’s evidence is primarily at odds. It is true that Eaton does not continually corroborate Lusted. For example: Lusted says nothing about the presence of vertebrae or the need to crush bone as a result of the burning body. It seems to me that Eaton’s version is most logical and consistent with the expert evidence that an entire recognizable skeleton would be remaining, as fire does not destroy bone.

[168] Lusted, who initially told police that no one was home the night of the fire, testified that he assumed Eaton was home because he heard a baby crying. This is different than what Eaton tells Loader about the evening of the fire. She indicates that she was woken up by the sound of “beers clinking”. She came downstairs to see what was going on and saw Lusted and Hall in the kitchen. Just because Eaton observed Lusted and Hall does not necessarily mean that they saw her. I note as well that during his testimony, Hall did not recall observing Eaton in the kitchen on the night in question.

[169] The defence says that Eaton described an odour in the kitchen unlike anything she has ever smelled. In chief, Lusted explained that “…at the time, I didn’t realize the odour but there was an odour. I at the time really didn’t feel the odour – I didn’t smell the odour until I changed my clothes.” The defence suggests that one would think that the smell of burning a human body while it was happening would be something one would expect to remember. The defence stresses that Eaton’s evidence that she smelled the most horrendous odour imaginable simply cannot be reconciled with Lusted’s failure to notice a smell at the time of the fire. I find that this is not externally inconsistent per se, as I don’t take Lusted to be saying there was no odour, just that he didn’t notice the odour until later on, after changing his clothes. Nonetheless, I prefer Eaton’s evidence on this point.

The Fire on the Cement Pad:

[170] As mentioned, a significant segment of the evidence in this trial related to the issue of the alleged fire on the cement pad that the Crown says was used to burn Mason’s body.

[171] Greg Olson (“Olson”) had years of experience as a fire marshal and as a police officer. He was qualified to give evidence in the area of fire scene assessment and examination.

[172] Olson visited the Alma farm for investigative purposes on two occasions, July 4, 2009, at the request and in the presence of Dr. Gruspier, a forensic anthropologist, and later on August 7, 2009. Olson’s role was to attempt to locate an area where the alleged fire had taken place and to ascertain if there were any human remains near that area.

[173] When Olson arrived at the scene on July 4, he proceeded to the area where Lusted originally believed that the fire had occurred. Olson described the concrete pad as being in poor condition, with vegetation growing through the cracks. The area was screened for both charred wood and human remains. After a thorough search, Olson did not locate any charred wood, human remains, or anything else of interest.

[174] Olson revisited the farm on August 7 because he received information that police now believed the burning to have taken place in a different area of the large concrete pad, closer to the outbuilding. The forensic team thoroughly combed this particular area, its underbelly, and its crevices and found no evidence of human remains. Olson found several small pieces of charred wood and two small burnt fragments of bone within the cracks of the concrete pad. The bones were sent for scientific analysis and were found to be animal. The concrete itself displayed what Olson described as “significant spalling”.[^12] The spalling was universal throughout the concrete pad and was not unique to the areas Olson searched.

[175] Olson accepted that the concrete pad itself could not inform his opinion as to whether a fire had taken place in a specific location. He indicated that a fire “could have” occurred where there was spalling, but it was also possible that the spalling was due to weathering. The spalling was so universal that it was not evidence of a fire, but the possibility that a fire had taken place could not be discounted.

[176] Olson spoke at length about the effect of fire on the human body. He indicated that the amount of destruction a fire will have on a human is dependent upon multiple variables such as temperature, heat release, and duration of burn. Olson testified that he has investigated many fire scenes where human remains were located. At some of these scenes, the fire process had been incomplete in rendering the body down and tissue was still present. He indicated that he had also been to fires where the only things left were skull fragments, portions of teeth, and portions of the long bones of the legs. Bone, when burned, will undergo a series of identifiable and predictable changes. As the bone starts to lose its organics, it will begin losing moisture and will change colour. If sufficient heat continues to be applied, it will char and the colour will turn to dark grey and, eventually, white. Skin and muscle will not burn; however, fat does. Fat, when burned, will eventually transform from a solid to a liquid and create a “wicking effect”.

[177] Olson accepted that hardwood burns longer and hotter than softwood. Standard 2x4 construction wood is softwood. To burn a body with softwood, a larger volume of wood would be required. Accelerants, such as gasoline, could impact how effectively a fire burns, but the impact of accelerants are short in duration. Spalling looks different depending on the amount of heat applied. There was no evidence of cratering/hollowing on the concrete pad. If the fire built is smaller than the body to be consumed, then only the part of the body in contact with the fire would burn. If a broom was being used on this concrete pad to sweep up bone it would be inevitable, due to the extensive cracking, that some of the bone would fall within the cracks. Crematoria is the best method known to burn a body, as it is a completely closed environment with an amount of heat at around 1600 degrees Celsius. Crematoria fires typically burn for around two hours and at its conclusion, there is still obvious remaining bone matter and it is typically put through a bone crusher to reduce it to fine ash. An open-air fire, with only a bottom surface, is the least efficient form of burning. A pyre structure[^13] with a body placed on top of the wood would render the remains down much quicker than if the body was on the ground and wood placed on top of the body. A frozen body would take longer to burn than one at normal temperature.

[178] Olson testified that if there were human bones left at that scene, he would have likely found them. He accepted that in the many fires he had investigated, it was very seldom that he had not found something that was clearly identifiable as being human. At the same time, he testified that he had never examined a burn site more than three years after the event.

[179] Jeffrey Myatt, (“Myatt”) an experienced forensic identification officer with the OPP at the time, was present for both searches of the Alma property (July 2, 2009 and August 7, 2009). He also took aerial photographs of the area. Myatt testified that when he searched the property, he was accompanied by an experienced team of professionals and a cadaver dog that was specifically trained to locate people, human remains and human bone. Myatt testified that the team actually removed many of the pieces of concrete that could be moved to completely search that area for any possible remains.

[180] Dr. Gruspier testified that she found no charcoal and no human remains on the Alma farm. She described the careful and meticulous search that she herself was involved in. Dr. Gruspier testified that when she left the Alma property she was satisfied there were no human remains.

[181] Dr. Gruspier agreed that human bone could become very small and could easily fall down cracks. This is why they did a careful job excavating the cracks on the concrete. She testified that if a body was burned at a site down to skeletal remains, one would expect to find, at least at the time of burning, fragments of bone. She agreed with Dr. Rogers that there would be no way for a non-expert to separate human bone from animal bone.

[182] Dr. Gruspier testified about the side road area. At this location, she excavated the dirt down for a number of inches in various places. Dr. Gruspier testified that she found a large number of other largish burnt pieces of wood and a number of other artefacts”. No human remains were located.

[183] Dr. Rogers, a forensic anthropologist, was called by the defence. She was qualified to give an opinion on human remains, forensic taphonomy, and other related areas. Dr. Rogers described forensic anthropology as involving the search for, the recovery, the analysis and the interpretation of human remains.

[184] Dr. Rogers testified that she has a particular interest in the impact of fire on human remains and, as such, has informed herself with certain knowledge on the issue of fire and body burning.

[185] Dr. Gruspier was critical of Dr. Rogers’ opinion and qualifications to address this specific area. The defence responds that Dr. Gruspier’s general attack on Dr. Rogers’ expert opinion in this area was baseless, unresearched and an uninformed distraction to the matters at issue. The defence argues that one could glean from Dr. Gruspier that forensic anthropology exists on a broad spectrum that may often require the expert to branch out into other areas in order to provide an opinion. As an example, Dr. Gruspier now opines in the area of the effects of tools on bone.

[186] I agree with the Crown. There is a distinction as to the scope of an opinion from a forensic anthropologist proffered by Dr. Roger’s as an expert to speak about the effect and mechanism of a fire to incinerate a body or the nature or dynamics of a fire and Dr. Gruspier’s ability to speak to the effect of tools on bone. It is one thing to comment on the impact of a fire generally on human remains and quite another to opine on the exact fuel load, temperature, and duration necessary to render a body to a given state. It is the degree of precision that caused Dr. Rogers to exceed her expertise. By comparison, that Dr. Gruspier can speak to the effect of tools on bone does not necessarily mean she is qualified to discuss the exact amount of force needed to inflict certain kinds of damage in anything more than generalities.

[187] While it is not determinative of the issues that I need decide, in my view, Dr. Rogers strayed out of her area of expertise as it pertained to her interpretation of the mechanics of a fire to burn a body. This consists of an opinion from a duly qualified expert outside her respective field and does not satisfy the criteria laid down by the Supreme Court of Canada in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9 and White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 19, 24.

[188] Therefore, I give no weight to Dr. Roger’s opinion related to the mechanism or structure of fire obtained through her research from other sources, or limited experimentation. This includes, inter alia, that 700-900 kg of wood would be required to incinerate a body, an amount of wood being utilized as revealed in the “McKinley” research.

[189] Nevertheless, I am entitled to draw common sense conclusions. I agree with the defence that an open-air bonfire with a body placed under wood is less efficient. Although it is possible to reduce a body to ash if it is placed underneath wood, doing so would take a considerably longer amount of time. I also accept that there is a requirement for a sizable and suitable amount of wood to largely burn a body in an open air environment.

[190] The defence also says that the Crown’s theory is that a fire occurred on the evening of March 1, 2006. The Crown relies on cell phone records that tend to suggest Lusted, is utilizing the phone number 8806, was at the Alma farm. Lusted and Hall are together from the time they meet in Hamilton, to the time Lusted leaves Hall’s Alma farm. These phone records, if they are to be accepted, demonstrate that Lusted could have only been at that location for a period of roughly 2.5 hours. The defence argues that the 8060 number is pinging in Guelph at 11:42 pm on the evening of March 1, 2020. Van Ankum opined that it takes approximately 40 minutes to get from the Alma Farm to Guelph. Therefore, they would not have arrived at the Alma farm until approximately 12:15 or 12:25 a.m. on March 2, 2006. The records show that Lusted was pinging back in Guelph at 3:51 a.m. The defence says that if Lusted was at the Alma property on the evening in question, then he was there for a total of two hours and 45 minutes to three hours.

[191] Lusted testified that the body had to be unloaded and the fire had to be built. The defence also suggests that this would involve a number of trips to the barn by a slow moving, highly-overweight person and would use up a considerable amount of time during the limited timeframe. After the fire was done, Lusted claimed to have walked to the farmhouse and entered the farmhouse to change his clothes. According to Eaton, there was beer drinking. Even from a conservative estimate of the events afterwards lasting fifteen minutes, the defence says that this leaves only two hours and fifteen minutes for the body burning fire to be ignited and completed.

[192] Van Ankum observed remnants of a fire on the concrete pad. He believed that the wood pile was depleted. Hall testified that it was possible he used some of the firewood for the truck burning but that he used the “old scrap” construction lumber. Van Ankum adopted the suggestions that the fire circle he observed was three to four feet in diameter. Both Olson and Dr. Rogers testified that a fire circle that was produced by a burning fire would have to be bigger than the body that was being burned.

[193] Dr. Rogers testified that bone that is exposed to high degrees of heat has a tendency to fracture and separate from the skeleton at large. As a result, it is vulnerable to falling into areas such as cracks. Dr. Rogers also explained that the breaking down of tissue and the calcination of bone requires extremely high temperatures that are maintained for significant durations of time. According to Dr. Rogers, the cold cement surface would have had the effect of protecting the body. As the wood was stacked on top of Mason, this would have created a situation where the heat was flowing away from Mason, The fire itself, in winter, would have not maintained a steady heat due to the loss of temperature to the environment.

[194] The defence argues that this type of fire would have made it difficult for all areas of the body to receive consistent burning or produce the temperatures required to reduce a body to a calcined state. The defence reiterates that not only was there not enough wood to have this fire, there was not the right type of wood.

[195] Lusted testified that the fire was “still burning” when he left the farm. In cross-examination he was asked what he meant as follows:

Q: …you said you burned the body and that when you left the body was still burning. Is that right?

A: That’s correct.

Q: Tell me about that. What do you mean by burning? Do you mean like smoldering or do you mean like big flames?

A: No. It was coals.

Q: Coals.

A: Yes, red hot coals.

Q: So the fire was down to coals and, I’m suggesting you’ve said this in the past, ash. Is that right?

A: Sure.

Q: And that there was no sign of Billy’s body?

A: That’s correct.

Q: It had entirely gone away in the fire?

A: That’s correct.

[196] The defence says that Lusted’s testimony leaves no room for an inference that the fire was still burning Mason’s body when he left the farm. Lusted’s version of events could not have happened and an approximate two and a quarter hours is nowhere near the amount of time that would be required to reduce a body to a calcined state. The defence says that there is no reliable evidence that speaks to the existence of a long-sustained hot fire on the concrete pad. Even if it were, there would still be a full skeleton with recognizable bones. For these reasons, the Crown’s theory is a scientific impossibility. By extension, the defence submits that Lusted is lying about the state of the body when he left, and therefore he must be lying about the fire in its totality along with the rest of his testimony.

[197] The Crown responds to the argument regarding not enough time, not a big enough fire circle, not the right type of wood, not enough wood and not enough heat by stating that the defence neglects to consider the elongated passage of time that existed from the event itself to the police involvement. There is also the fact of extreme weather variations during the course of the three plus year hiatus. While Olson and Dr. Gruspier both indicated that if there were remains there, they would have been located, they accepted that they had not examined a scene with such a temporal disparity from the event to their investigation.

[198] The Crown further submits that there is a problem with the defence’s assertions. That is not its theory. The Crown accepts that under the conditions described by Lusted, in the timeline reflected by the cell phone records, it would be scientifically impossible to reduce Mason’s body to ash.

[199] The Crown does not argue that Mason’s body was reduced to ash in the remaining hours of darkness following Lusted’s departure from the farm. The Crown does not submit that Mason’s body was ever reduced to ash in a fire.

[200] However, the Crown says that to dispose of Mason’s body, all Hall needed was one night, a stack of wood, and a shovel. The Crown says that in chief, Lusted is clear: when he left the farm the body was still burning. Under cross-examination Lusted agrees that the body was still burning and with the suggestion that “the fire was down to coals...ash.”

[201] I observed that Lusted was firmly pressed on this issue by counsel and became exasperated. At this juncture, I noted that he appeared to willingly agree with any suggestion offered from counsel, including that there was “no sign of Billy’s body.” Being repeatedly pursued on the point, he also readily agreed with the suggestion “it had entirely gone away in the fire.” He says the fire is still going when he leaves, but expresses that the body is well along in being consumed by the fire.[^14]

[202] If I accept the defence interpretation, it is clear that Lusted is mistaken when he indicates that Mason’s body was burned to ash at the Alma farm. Lusted never says that he does not see a body in the fire. Whether Lusted pointed out the accurate location of the fire to police is debatable. Whether he erred as to his observation of the burning state of the body upon his departure, for whatever reason, is also questionable. Lusted’s observations may be flawed as to what he said he observed remaining in the fire upon his departure. Even if I am wrong in this interpretation, that does not end the analysis.

[203] While I accept the defence evidence in this regard as to the fire and its improbability of its effect on Mason as evinced by the evidence, it does not mean that I reject the entirety of Lusted’s evidence at trial. Clearly, this whole line of questioning and extensive evidence was to impugn Lusted’s credibility and trustworthiness as an eye-witness to the event. It was also directed at Eaton’s veracity as a corroborating witness.

[204] In any event, on the whole of the evidence, I concur with the Crown that the defence has interpreted this entire exchange with Lusted as saying Mason’s body was completely reduced to nothing but ash prior to his departure.[^15]

[205] The Crown says that the purpose of the fire was simple. There was no need to reduce Mason’s body to ash but to reduce it to a shape and size where Hall could easily dispose of it. That is all he had to do. And that is what he in fact, did.

[206] Regardless, as I will explain in a moment, I accept that the fire was still burning Mason’s body when Lusted left the farm in the early morning hours.

[207] Despite the defence assertion that there is nothing but speculation to support the Crown’s case of a further enduring fire or that the volume of wood militating against their theory, based on the whole of the evidence, I draw the reasonable inference that the fire endured and went on much longer than Lusted claims. I agree with the Crown in relation to this entire issue and what was required to be done to eliminate Mason’s body.

[208] Clearly, Lusted was not at the farm for the period exceeding three hours. While Lusted testified that wood was placed on top of Mason’s body, Eaton suggests the exact opposite. She tells Loader that Hall informed her that they made a big bed of wood and placed Mason on top of the wood.

[209] Eaton informs Loader, on more than one occasion that Hall told her “when the spine burnt, the vertebrae stayed intact, although they were burnt to ash and he had to break them all up”, “like he just crunched it all up before he put it in the bags”. Hall told Eaton that he “like used all the wood and just how the blood came and that the vertebrae stayed, even though there was ash and stayed intact”. Eaton personally observes Hall disposing at least six bags, some of them “ripped like with black charcoal” into the back of his truck the day following the fire. This is in conjunction with the night previous of the terrible, disgusting odour. That is why I accept that on the next day, Hall told Lusted he put Mason’s remains in feed bags.

[210] I am persuaded that Hall went on to burn Mason’s body to a point where it could be broken up, as he readily described to Eaton. I find that Hall burned Mason’s body and was able to reduce Mason’s body into a disposable form without creating a funeral pyre. He was able to do it without the “ideal” amount of heat, and without the “ideal” type of wood. He was able to do it without limiting himself to two hours and 30 minutes when Lusted was present at the farm, and well beyond his accomplice’s departure.

[211] As such, most of Olson and Dr. Rogers’ evidence becomes less relevant on the fire issue and, by extension, its impact on the reliability of Lusted’s evidence.

[212] I also accept that Hall learned about the police investigation and subsequently requested Eaton to clean up the cement pad. In Eaton's statement, she told Loader that Hall provided directions to the site, and after following them, she found one-half burned log, no ashes and “little black charcoals” underneath the grass in the cracks of the concrete. Eaton picked up the log and the charcoals and took them away from the site. It seems to me that much of the clean-up had already been undertaken by Hall.

[213] Lusted’s overall description and observations of the fire event does not lead me to automatically conclude that he was intentionally misleading or lying about his own and Hall’s involvement on the night in question.

[214] With respect, I disagree with the defence that Lusted’s evidence ought to be rejected or that Eaton is not a valid historian with respect to what she observed, or that any inconsistency calls into question the veracity of her statement on this point. Rather, Eaton’s evidence tends to corroborate Lusted’s testimony, warts and all, on the material issue of the burning of Mason’s body at the farm.

Alleged Cell Phone Evidence Frailties:

[215] The Crown submits that the cell phone evidence in this case corroborates Lusted’s version. The defence responds that it actually proves that a number of things are impossible. In addition to demonstrating that there was no body burning at the Alma farm, it also shows that Hall could not have been present for the Smithville truck burning. The cell phone evidence is in direct conflict with the date Eaton suggests that the body is being burned.

[216] Cell phone evidence was heard over the course of several days in this trial. The Crown alleges the following numerical associations that can be traced throughout the relevant time period by way of “pings” and billing information.

[217] The phones in question are the Lusted cell phone – 905-516-8804 (adopted by him). Hall’s cell phone – 905-541-8060 (at issue) and Hall landline – 519-638-5385 (which is admitted).

[218] Lorne Ellison and Darren Lawrence each testified that both Rogers and Bell had elaborate and widespread systems of cellphone towers. The locations of the Rogers towers was established by specific addresses. The Bell tower locations were not as precise but were identified by the nearest municipality.

[219] The defence says that the cell phone chart created by Jovan Krasulja, (“Krasulja”) a crime analyst, is little more than a pictorial representation of the Crown’s theory of the case. The chart itself is not the result of an independent work product. Rather, it is the replica of the chart made by Ms. Leigh at Hall’s previous trial and is misleading in major respects.

[220] I respectfully disagree with all of the defence submissions on point.

[221] First, it is true that the chart does not include all of the calls associated to the applicable numbers on the relevant days and essentially selects the calls deemed significant.[^16] This aid is not meant to capture all of the calls, but the relevant contact between the Lusted and Hall phones.

[222] Next, the defence says that the chart applies no spatial uniformity to its temporal representations. The consequence of this is that specific time periods receive vast overrepresentation and emphasis. Again, this chart is an aid. As a judge sitting alone, I can analyze the chart with all of the defence criticisms without overshadowing other areas of the chart or applying undue weight to its visual representation in applying the appropriate analysis.

[223] In any event, I have also reviewed the raw data with the calls between the relevant numbers. I do not accept the defence argument that the so-called “abnormality” does not flow from the call activity, which is fairly consistent over an extended duration when we look at the issue of activity between these numbers on any given day from January – March, 2006. I reject the submission that contact between these numbers is somehow indicative of high volumes of contact over relatively short durations and thus reduces its cogency for the specific period between February 24 and March 2, 2006.

[224] I find as a fact that the 8060 number was used exclusively by Hall during the relevant timeframe in this case.

[225] As mentioned, the defence submits that a review of the cell phone evidence from February 28 and March 1 either completely refutes Eaton’s statement or renders the Crown theory that these numbers belong to Hall and Lusted obsolete. The two are unable to cohesively exist.

[226] I need not further address the argument that there is nothing in the cell phone evidence on February 28, 2006 to support the assertion that the Hall and Lusted were together. As I stated earlier, Eaton is honestly mistaken and her timeline is off by 24 hours. I accept that the cell phone records contribute to the inference that Mason’s body was burned on March 1 and 2, not February 28 and March 1, 2006.

[227] The Crown alleges the abduction and killing of Mason occurred on February 24. Indeed, the defence says that their entire theory erroneously relies on that narrow window. Krasulja’s leaves out several other outgoing calls around this time from the 8060 line. The 8060 call detail records reflect that the 8060 number from 2:54 p.m. to 3:51 p.m. made six outgoing calls to three different numbers. All are pinging in Hamilton.

[228] The defence hypothesizes that it is extremely improbable that an experienced criminal would be making phone calls during an abduction and killing unless such phone calls were absolutely necessary. Any criminal operating at the level of Hall and Lusted are aware of how cell phone technology works. The defence says that if there was an occasion for a cell phone to be utilized in the middle of an alleged abduction and murder, it is highly improbable that this device would remain active after the event. The cell phone is still operational over a week after it said Mason was murdered.

[229] With respect, I am not persuaded by this or any of the related defence arguments. As the Crown points out, there was no worry of discovery and concerns related to the continued utility or obsolescence of the cell phones in question, as long as Lusted maintained his silence.

[230] A careful analysis of the relevant call detail records of the 8060 and 8804 numbers establishes that the phones were being used by Hall and Lusted, as well as going silent during the relevant timeframe, including the commission of a murder and subsequent disposal of Mason’s body. I am satisfied that the cell phone records are powerful evidence to bolster Lusted’s version as to overall dates, times and proximate locations.

The Smithville Truck Burning:

[231] The defence does not challenge the impartial evidence from Maureen Guilland, (“Guilland”) a Smithville resident, that on February 24, 2006 she witnessed a truck burning and called 911. Guilland can and should be viewed as an accurate historian because her actions were recorded in a journal and are corroborated by police evidence insofar as times are concerned.

[232] Guilland was driving her school bus to her residence. She was almost home when she saw a lot of smoke and some flames. She quickly ascertained that the smoke was coming from her neighbour’s property. A “very short” period of time passed between the time Guilland witnessed the smoke and the time she called 911. When Guilland witnessed the fire, she was able to observe that it was burning “heavily”, along with the nearby trees and bushes.

[233] Guilland called 911 at approximately 4:47 p.m. She estimated that this call was made two to three minutes after she saw the truck on fire. The defence submits that it would not have taken more than approximately five minutes for Guilland to witness the smoke from her bus, park her bus, witness the truck on fire, and call 911.

[234] Constable Spink responded to Guilland’s 911 call. He arrived on scene at 4:56 p.m. By the time he arrived, the fire was no longer burning. The fire department was already present on the property.

[235] The defence says that the Crown did not call any witness from the fire department to speak to the state of this vehicle when they arrived on scene. No expert evidence was called in relation to how long it takes a truck or this specific truck to burn. This falls within the realm of expert evidence and any inference drawn in this regard would be impermissible speculation.

[236] The defence says that we do not know the precise time that the fire was extinguished and there is a gap in the evidence. Without this, there is no cogent evidence to suggest that this fire was burning for any significant duration prior to it being witnessed by Guilland. In other words, the Crown theory that the truck was set on fire some 50 minutes prior to Guilland calling 911 is completely without evidentiary foundation and is speculative. All of this is significant because at 4:45 p.m. and 4:46 p.m. the 8060 number is pinging in Hamilton. At 4:47 p.m. it is pinging in Burlington. If Hall was in Smithville igniting a truck with the 8060 number, the defence says that it would not make sense that thereafter his phone would be pinging in Hamilton unless that truck was ignited around 4:00 p.m. The defence says that to conclude that the truck must have been burning since 4:00 p.m. would be to engage in impermissible circular reasoning as the conclusion relies on guilt to establish a primary fact.

[237] I agree that the Crown is required to establish primary facts before they can be utilized as circumstantial evidence of guilt. The defence is not required to establish a fact before making an argument that an inference is available that is consistent with innocence. In this example, although neither party is able to point to any evidence with respect to when the truck was ignited, the defence says that because the Crown is unable to establish the primary fact, it is unable to use it as an inference to support Hall’s guilt.

[238] In my view, the defence is overstating the issue as to the timing and duration of the burning of the truck. It can be reasonably deduced that the fire was burning well before Guilland witnessed it. This is an obvious inference that flows from the mere fact that it would take some time for a vehicle to take blaze and produce an associated dense smoke. Expert opinion is not required. The nearby trees and bushes were also on fire. I draw the inference that this fire would have been burning for a considerable, albeit unascertained, amount of time prior to Guilland making her observations.

[239] The defence says that even if we assume that the truck was set on fire at approximately 4:00 pm, there would still not have been sufficient time for Hall, using the 8060 number, to get to from Smithville to Hamilton by 4:45 p.m. This is because on Lusted’s evidence, after they burned the truck, they drove around the area, located another vehicle for Hall to steal. I may be incorrect, but we do not know the location of this truck theft, other than “outside of Hamilton”. Further, the cell phone records show that both Hall and Lusted are in the area of the truck burn at 3:51 pm. I also draw the reasonable inference that both Hall and Lusted did not just stick around for a long time to watch the fire burning spectacle, especially if the attempt was to destroy evidence.

[240] Moreover, during the vehicle burning in Smithville, the 8060 and 8804 number are in continual contact. The defence says that this does not make sense because on Lusted’s version, the two are together during this time.

[241] Except, Lusted testified that after Mason was shot, Hall and Lusted travelled back to Hamilton to allow them to retrieve his automobile. Lusted, now operating his own vehicle, then followed Hall to Smithville. Hall burns the truck and according to Lusted, he remained in his vehicle and is in contact with Hall. Thereafter, they both get into Lusted’s car, at which time he drives Hall around looking for another truck to steal, which he ultimately does.

[242] I disagree with the defence assertions about the dearth of evidence, expert or otherwise, as to when the fire started or its duration. I draw reasonable inferences from the fact that the truck fire occurred on February 24, 2006 in the Smithville area as Lusted claims. The truck fire’s exact time or its precise duration of burn is not a primary fact that needs to be established prior to it becoming a piece of circumstantial evidence, upon which it can be relied upon or guilt can be inferred.

The Date of the Offence:

[243] The date of the alleged offence is disputed by the defence. The defence submits that the Crown has failed to establish the primary fact that Mason went missing on February 24, 2006.

[244] The defence takes no issue that Mason went missing sometime prior to March 1, 2006. He was officially reported missing on that date. The evidence with respect to when Mason was last heard from came from Cowley. The defence disputes Cowley’s precision of detail in that she is certain that she last spoke to Mason on February 24, 2006 and is tailored to neatly fit the Crown theory. Cowley is neither credible nor reliable in this regard.

[245] I agree with the defence that absence of evidence can, in certain circumstances, create doubt. The defence argues that the absence of evidence, particularly in relation to the Gentles robbery and the assertion that Mason arranged it, creates a problematic evidentiary gap. Furthermore, without more evidence, this court could not possibly say that Mason went missing on February 24, 2006. The cell phone evidence cannot be utilized as a piece of circumstantial evidence to suggest that he went missing on that day because to utilize the cell phone records in that manner would be to engage in prohibited circular reasoning as its probative value depends on an assumption of guilt.

[246] I am also mindful about circular reasoning in order to establish a fact at issue. In R. v. White 1998 789 (SCC), [1998] 2 S.C.R. 72, at paras. 46-47, the Supreme Court was not persuaded by the defence criticism of circular reasoning as it pertained to post-offence conduct. See also R. v. Hall, 2018 ONCA 185, at para. 47. What is problematic, as stated by Doherty J.A. in R. v. Portillo (2003), 2003 5709 (ON CA), 176 C.C.C. (3d) 467 (Ont. C.A.), at para. 37 is “reasoning [that] goes beyond inference to assumption and speculation." As discussed below, that is not the case here. In any event, the lines are often blurred between the impermissible use of circular reasoning to establish a fact at issue and evidence that is corroborative of a witness’ version of events.

[247] Cowley testified that she spoke to Mason by phone regularly. It is her belief – a reasonable one – that she spoke briefly to Mason on his home landline on February 24, 2006 at midday. She appears to be the last friend to ever speak to him as he was never seen or heard from again.

[248] Contrary to the assertions raised by the defence, there is nothing nefarious or problematic with a witness consulting a calendar to assist with dates. In this case, I find nothing to discredit Cowley’s testimony.

[249] Moreover, I accept Lusted’s evidence that the truck used in the Mason killing was burned the very same afternoon. Even if I am wrong about the precise timing of the burning, the evidence is unchallenged that a pickup truck was alight in the relevant location in the Smithville area on February 24, 2006. The fact of the burning of the truck and its exact location is proven by Guilland and Spink. Further, Eaton told Loader that when Hall gets rid of a vehicle he will take it somewhere to a country road and sets it on fire. Not only does that provide some inferences to support this question but also tends to corroborate, to a limited extent, Lusted’s version of what had occurred on the day in question.

[250] Indeed, the notional concerns about circular reasoning as between the evidence of Cowley regarding February 24, and the evidence relating to the truck burning on February 24 are also addressed when I consider the evidence of Eaton during her KGB statement when she speaks of the timing between Hall’s “I got one of them” date and her March 1st court date: “it was about a week or it was a work week five (5) days and then when he finally got in touch with Jay it was the day before my court the night before my court and that was March 1st.” March 1 has been proven to have been her court date. February 24 was five days previous. Lusted’s evidence is the murder occurred in Winter 2006, I accept that he is not good with dates.

[251] Despite counsel’s able argument and extensive submissions on this point, I accept Cowley’s evidence regarding the date of February 24. All of these facts lead me to the conclusion that the event in question occurred on February 24, 2006. I need not even consult the cell phone records, although, as stated, they provide corroboration for Lusted’s testimony on this point. The Crown has established the date of Mason’s killing.

Was Lusted’s Evidence Corroborated?

[252] As stated at the outset, this segment of my analysis is a most crucial aspect for this trial. The Crown says that Lusted’s evidence is corroborated through cell phone records. Hall phoned Lusted in the morning of February 24, 2006. He wanted Lusted to meet him in the Hamilton area to do “a score” – a theft. Hall was in Alma at the time of the call (Mount Forest). Lusted was in Forest.

[253] The Crown says that it is proven – though cell phone records – that on the day in question, they both travelled separately to Hamilton, arriving at midday. Lusted drove his own automobile. Hall was driving a pickup truck that Lusted recognized as one stolen by Hall earlier from Dickenson Road. The vehicle in question is related to Mr. Boughner. Hall and Lusted were together for the next few hours. They did not need to communicate by phone. Cell phone records prove that they did not phone each other between 12:50 and 3:51 p.m.

[254] Lusted testified they drove in the stolen truck from Sandford and Cannon to a walk-up apartment building on Main Street East. The two men enter the building and walk up a single set of stairs to an apartment on the first floor – confirmed through Cowley as Mason’s apartment. The two men enter. Lusted testified that Hall tells the male – Mason – to put his shoes on because they are going for a ride.

[255] Hall drives to a field that Lusted recognized as Moores Road. The three get out of the truck. Hall shoots Mason. They leave the scene, leaving Mason’s body in the field. They drive back to Sandford and Cannon. Lusted testified that, back in Hamilton, he gets in his Crown Victoria and follows Hall – still in the truck – to the Smithville area.

[256] The phone calls between the two men resume. Cellphone records establish calls between them from 3:51 p.m to 4:21 p.m. Aside from a single ping in St. Anns, the rest is in Smithville. In that same half hour, the Bell phone – Hall’s – pings variously in towers only described municipally – Welland, Grimsby and Dunnville.

[257] It is manifestly clear that Hall is not actually in all those towns in that tight timeframe. According to the evidence, the actual situs of the cell phone being connected to the specific tower location is approximate and not exact. This is acutely the case with the less precise Bell tower technology at that time. Moreover, it depends on sight lines, obstructions and other factors. As the Court of Appeal stated in R. v. Cyr, 2012 ONCA 919, 294 C.C.C. (3d) 421 at para. 88: “Cell phone propagation maps do not establish precise locations from which calls have been made, only the general area from which the call originated”. Cell phone technology is ever-evolving. I echo the comments of Fairburn, J. (as she then was) in R. v. Brown, 2015 ONSC 3725, at para. 77. The cell phone tower evidence “is nothing more than another piece of circumstantial evidence, that must be considered along with all of the other evidence in the case: R. v. Hamilton et al., 2011 ONCA 399.

[258] I accept that the records reflect Bell’s less specific tower locations but place Hall in the same area as Lusted. They pick a spot on Sixteen Road just outside Smithville. Lusted picks him up and he and Hall return together to Hamilton. Their cell phones are not in contact between 4:21 p.m. and 5:47 p.m. They steal another truck in or outside of Hamilton to provide Hall transportation back to Alma. Hall gives Lusted the gun and tells him to stash it in a car at East End Auto in Stoney Creek, a place well familiar to them both. Lusted testified that he did so. Cell phone records of their many calls to each other in this period place Lusted in Stoney Creek at the relevant time. Hall is in Hamilton. Between 9:01 p.m. and 11:59 p.m. on February 24, cell phone contact between them stops. At 11:59 p.m. Hall is home (Mount Forest) and Lusted is home as well (Forest). Cell phone records establish Lusted passing through Flamborough and London on his way – the route he testified to at trial.

[259] Lusted claims that he is shaken by these events and that he is fearful of Hall based on what he had witnessed. Whether or not that is the case, the evidence is unequivocal – through Eaton, Lusted, and cell phone records – that Hall begins to bombard Lusted with calls on February 25, 26, 27 and 28. Lusted testified that he was reluctant to answer. He finally does and is directed by Hall that they must return to Moores Road and recover Mason’s body. Lusted agrees and they both travel to Sandford and Cannon. Cell phone records establish this occurred on the evening of March 1st. The two men travel in Hall’s truck to Moores Road. It is dark. They drive to the body, wrap it up and place it in the truck bed. They drive to Alma. They are together and there are no phone communications between them from 11:42 p.m. on March 1st and 4:02 a.m. on March 2nd.

[260] They stop at a gas station in Guelph to get another cannister of gas. The body was brought back to the Alma farm and burned at night. They both tend to the fire, adding gasoline, wood and stoking it. Eaton’s evidence is that Hall told her that he built a “bed” of wood. Lusted does not mention “a bed” but testified that they put wood and gasoline on the body and burned it. Hall has Lusted change his clothing, likely due to the fire smell and provides him with some ill-fitting clothes. Eaton said that Lusted was not happy that he had to wear Hall’s ill-fitting clothes. He later departs the Alma farm in the stolen truck.

[261] During the burn, Lusted says that Corbett was in Hamilton waiting for him. Cell phone records show Corbett in Hamilton calling Lusted in Alma a number of times during this important period. Lusted testified he called Hall on his way back. Cell phone records confirm this at 4:02 a.m. Lusted parks the truck at Sandford and Cannon, picks up Corbett, and the two return to Forest.

[262] Cellphone records show the Bell number (8060) disappearing as an active phone in the first week of March 2006. The Alma landline number is shown by billing records to be in frequent contact with Lusted’s phone in the following weeks.

[263] In August 2010, police received a phone call from Eaton’s father informing officers that Eaton now wanted to speak to them. They met at Mr. Eaton’s house. Subsequently, Eaton took police to a storage locker in Stoney Creek where she turned over weapons to them. On August 26, 2010, Eaton also agreed to be formally interviewed by them, both to her initial fear of Hall and related concerns, as well as to her knowledge of the Mason disappearance.

[264] In Eaton’s K.G.B. statement she informed Loader that Hall and Mason knew each other. Moreover, she heard Hall talking to Mason “several times,” “over and over” about setting up a robbery in the time prior to October, 2005.

[265] I am persuaded, – through Eaton – that Mason set up a robbery to be implement by Hall in the summer or early fall of 2005. Mason provided the information (who, what and where) that Hall acted on. I find that it was generated from Mason, not anyone else.

[266] That robbery caused problematic consequences for Hall and his family. Eaton states in the fall of 2005, her residence on Martha St. was shot up right before Halloween. They moved out immediately after shootout, and into the Alma farm on December 15, 2005. This corroborates evidence of several officers that Eaton was living at 85 Martha, that there were reports of a shooting in late October 2005. Evidence of the shooting was recovered by police. This also validates Lusted’s evidence that Hall moved to a farm in Alma after the latter’s house was shot up.

[267] Eaton stated that she heard Hall contacting Mason and repeatedly asking him over the phone whether the targets of their intended robbery were connected with bikers or the mafia. Eaton claimed that Hall wanted to confirm with Mason that there would be no repercussions. This corroborates Lusted that during the events of February 24, Hall confronted Mason about setting up for a bad score and blaming Mason for his house getting shot up.

[268] Eaton’s evidence is that in February 2006, shortly after Hall came home to the farm in the middle of the night and said, “I got one of them”. Eaton stated Hall was beside himself, trying over and over again to get a hold of Lusted, and Lusted was dodging him. Again, this mirrors Lusted’s evidence and is corroborated by cell phone records. There is an unmistakable pattern of Hall making repeated calls to Lusted in the days following Feb 24, 2006 – the last day Mason was seen by anyone not connected to the murder.

[269] From February 25, 2006 to February 28, 2006, phone records show Hall made 42 calls to Lusted. Lusted made four to Hall. When they finally connect over the phone, Eaton states she heard Hall tell Lusted “we gotta go pick that thing up”. Again, this corroborates Lusted’s evidence, who testified that three to four days after the killing, Hall called him and stated they have to go back and get the body.

[270] Eaton awoke in the middle of the night to find Hall and Lusted in her kitchen getting a beer. Hall made Lusted change his clothes that were too tight for him. Her evidence provides some support to Lusted’s version.

[271] Of significance is Eaton’s evidence was that on the night of the fire, there was a “terrible disgusting” burning smell in the kitchen, nothing like she ever experienced before. She also revealed that both men “looked shook”. I draw the reasonable inference that Eaton’s detection of this very repugnant odour is consistent with the burning of a body, Mason’s body. In my opinion, it is powerful, corroborative evidence. This is also corroborated by cell phone records that place Lusted’s phone connecting to towers in Goldstone and Arthur in the early morning hours of March 2, 2005.

[272] While I find that Eaton is in error related to the date of the events at the Alma farm corresponding to her court appearance in St. Catharines, I accept her observations as revealed to Loader during her statement. Eaton saw Hall loading at least six vinyl sacks ripped with black charcoal into the back of his truck. This corroborates Lusted’s evidence that Hall told him that he put the remains of the fire in feed bags the day after the burning.

[273] I prefer Eaton’s evidence that includes where she stated to Loader that “the first time I heard Billy’s name brought up again after all these years is Jeremy setting up a robbery to steal cocaine and Billy was kind of the person setting up the robbery”. She goes on the state that “she heard Jeremy talking to Billy several times on the phone, calling him over and over and saying are you sure they’re not hooked up with anybody, they’re not selling for someone that’s gonna come back and do something to me.”

[274] Of significance, Eaton informed Loader that Hall told her about the drive when Billy was in the truck and… that “Jeremy was explaining like my house got shot up because of you my kids you know almost died because of you and Billy said well I have a daughter too and then Jeremy told me that Jay turned around and said well he has a fuckin daughter too like screaming at Billy and then they took him to some kinda field”. … Billy took a couple of steps and then Jay went running so then Jeremy had to chase after him and they left Billy there. This contradicts the accused’s evidence regarding any involvement with Mason and tends to corroborate Lusted’s version.

[275] Hall tells Eaton that they put him in the back of the truck and on the way from wherever they were coming up Highway 6 and that police kept passing him and how scared he was that police were on their trail and he said if they only knew what was in the back of the truck. This also corroborates Lusted’s description of the drive to Alma with Mason’s body in the back of the truck.

[276] Recall that the experts testified that even after a careful cleanup they would have expected some evidence of the presence of human bone to have been located. However, I agree with the Crown attorney that the investigation of the burn site was over three years after the event. The burn site was exposed to three years of wind, rain, snow and heat, without even having to add the fact that Hall cleaned it up, and at some point at his request, Eaton attempted some clean-up of the burn site.

[277] Both Olson and Gruspier testified that they had never examined a fire site three and a half years after a fire had apparently occurred. Even if I accept that weather alone over that time period could not completely eliminate any signs of a fire, I am not persuaded that Lusted pointed the investigators to the accurate location on the large concrete pad where the Mason burning occurred. Lusted’s description of where the actual burning of Mason’s body occurred could be flawed.

[278] It should not surprise anyone that no remains were found approximately three and a half years after the fire, whose exact location is still unascertained or subject to some debate. Eaton tells Loader that she didn’t really know the exact spot of the burning on the cement pad. In any event, I reject Hall’s denial or explanation, if it was offered, as to any possible motive for Eaton to clean up the site.

[279] In any event, I do not accept Hall’s testimony that the one fire on the cement pad admitted to by him where Lusted was present, was for dealing with a truck, requiring some illumination and burning of useless car parts. That is absolutely absurd. Of all of the numerous bonfires, he apparently recalls this one fire with seemingly acute precision as to its duration and purpose. His specific details of this one – and only one - fire with Lusted on the cement pad as to its duration and circumstances is all but contrived.

[280] Eaton informed Loader that she heard Hall say to someone on the phone that he had a gun stashed in the trunk of a car at East End Auto and wanted to retrieve it. This may or may not corroborate Lusted’s version, who testified after the shooting, at Hall’s direction, he put the gun under the seat in the back of a car at East End Auto. Lusted told Hall over the phone where he had left it. However, I must be very cautious as it may be that this gun may not have been the same weapon used in the killing.

[281] Regarding the alleged abduction and killing of Mason, Eaton states to Loader that after watching a media report, Hall told her “we didn’t march him out, where do they come up with this shit?” Again, Eaton advises that Hall told Mason he was to blame for his house getting shot up and that his kids almost died. To a limited extent, this also corroborates Lusted when he testified that during this drive, Hall told Mason he had set him up with people who were connected.

[282] Eaton testified that Hall told her that they left Mason in the field. This corroborates Lusted’s evidence when he testified the left Mason in the field and continued driving away from Moores Road.

[283] Eaton goes on to say that Hall told her when they retrieved Mason’s body, they wrapped his body in a tarp and he was frozen stiff. Lusted testified that Hall wrapped Mason’s body in a foggy plastic before loading him onto the back of the truck. They took Highway6 to the farm with Mason in the back of the truck. They made a stop to purchase gas with the body still in the back of the truck. Recall that Eaton spoke about Hall’s degree of nervousness about being detected by police while on route to the farm.

[284] According to Eaton, at the farm, they made a great big bed of wood and put Mason on it and set him on fire. This is in line with Lusted who testified that once arriving at the farm, they place the body on the cement pad, gather lots of wood, and place the wood on the body and set it on fire with the gasoline. The following summer, Hall telephoned Eaton from jail and asked her to assist cleaning up the burn site. He gave her very specific directions to the location of the burn site. Eaton followed his instructions and located a partially burnt log and some pieces of black charcoal and removed them. She swept the cracks in the concrete.

[285] During her statement, Eaton drew a map indicating her understanding of the location of the cleanup site.[^17] Eaton states that after cleaning up the area, she placed the items in a leftover sack and disposed them down a sideroad a short distance from the farm.

[286] Recall that Lusted testified that he wanted to distance himself from Hall after Mason was killed and left in the field. He was afraid of Hall, and I accept that he attempted to avoid speaking with Hall, despite Hall attempting to contact him. This evidence is corroborated by Eaton who informed Loader that she believed that Hall was acting really funny and he kept trying to get a hold of Jay and was “just sweating bullets” and “Jay was dodging him”.

[287] As mentioned, I find that the Bell phone (“8060”) was used by Hall at the relevant time. The route by which that phone got into Hall’s hands is established in evidence. It was rented as a “burner phone” by Anderson in mid-January, 2006. Anderson promptly sold it to Milligan, who in turn promptly sold it to Lusted in late January, 2006. Lusted then sold the phone to Hall. I reject Hall’s vague assertions that the 8060 Bell phone was some sort of community phone shared amongst his colleagues as fiction.

[288] The cell records clearly demonstrate its connection to the Alma farm, the other locations and movement of the parties at various times and dates, for the relevant period of time it was used by Hall.

[289] I accept Krasulja’s evidence going through the cellphone records and transposing that material onto the chart. I find that with some minor modifications to the chart, it provides a reasonable and complete aid to understanding the cellphone records at the relevant time. It is a timeline as to exactly when – and by whom and to whom – cell phone calls were made. It is also a roadmap as to where the cellphones were when the calls were made. More importantly, the silences it reveals – when activity between the two main phones was dormant – are just as important as the calls themselves, because they imply the parties were together. The cell phone records provide powerful confirmatory evidence of Lusted’s testimony on the material issues of the killing and cover-up.

[290] Hall clearly does not want to be blamed for Mason’s disappearance and he did not acknowledge and tended to minimize his dealings with Lusted during the course of the events in question. Again, I reject his explanations (“anybody could have taken the phone”) regarding his own or other potential users of the 8060 cellphone. Hall’s testimony as to why he had recalled the one fire on the concrete pad with Lusted present is rejected as contrived.

[291] I do not accept Hall’s testimony on the material points or his denials of any involvement in relation to Mason. I find that his evidence was purposefully tailored to deflect from any relationship or contact with Mason, which includes some of the precipitating events leading up to the actual killing, despite his statements to Eaton on the same subject. Although he readily conceded points in cross-examination, he was, at times, evasive. This was particularly true of his explanations regarding the cell phone usage evidence, relevant times and locations, and his numerous contacts with Lusted (“if it was me using the phone”). In the face of documented phone records, his responses were to deny or attempt to rationalize the evidence. In other words, his evidence was speckled with alternatives or excuses related to any opportunity to commit the crime or be in a certain location. In my view, Hall’s evidence is self-serving and I find him not to be credible.

[292] As mentioned, the cell phone contacts or their silence are but one important piece of the puzzle. Even if I have misinterpreted the cell phone records as some corroboration of Lusted’s testimony, the importance of Eaton’s second police interview on August 26, 2010 about Mason and his murder is powerful and devastating evidence against Hall. This, from a person who was uniquely positioned to learn what Hall told her directly about the murder, as well as what she personally observed, as revealed to Loader. The information provided to Eaton from Hall after the Mason disappearance is solid, corroborative evidence. As mentioned earlier in these reasons, I accept Eaton’s statement to Loader as entirely truthful and reliable.

[293] I find that Lusted’s evidence as to the relevant events of February 24, 2006 is corroborated on the essential elements required to establish Mason’s murder. Hall shot Mason and later burned the body, with Lusted’s assistance, and thereafter disposed of it on March 1 and 2, 2006.

[294] On the whole of the evidence, I am satisfied beyond a reasonable doubt that the accused had the requisite intent to murder Mason on February 24, 2006. The question remains whether the homicide is first degree murder as charged in the indictment?

FIRST DEGREE MURDER:

[295] In this case, culpable homicide is classified as first degree murder where the Crown has established planning and deliberation or constructive first degree murder beyond a reasonable doubt.

[296] In response to my specific query during final submissions, Mr. Derstine did neither elect to elaborate nor respond in detail as to his client’s potential level of culpability. In fact, with respect, his response was quite dismissive. However, this is not at all surprising, in that counsel strenuously argued for an acquittal of the charge. Indeed, there is no obligation on defence counsel to provide alternate theories or positions in a criminal trial. Thus, I do not draw any inferences or conclusions on this basis.

[297] Nonetheless, it is incumbent on me to determine whether first degree murder has been established beyond a reasonable doubt.

Planning and Deliberation:

[298] Section 231(2) of the Criminal Code provides that murder is first degree murder when it is planned and deliberate.

[299] The meaning of planed and deliberate is well established. As Doherty J.A. stated in R. v. Robinson, 2017 ONCA 645, 352 C.C.C. (3d) 503 at para. 34:

A murder is planned if it is the product of "a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed". A murder is "deliberate" if it is "'considered,' 'not impulsive' . . . implying that the accused must take time to weigh the advantages and disadvantages of his intended action": R. v. Widdifield (1961), 6 Crim. L.Q. 152 (Ont. H.C.), per Gale J.; and R. v. Nygaard, 1989 6 (SCC), [1989] 2 S.C.R. 1074 (S.C.C.), at p. 1084. Murder, as defined in either s. 229(a)(i) or s. 229(a)(ii), can be planned and deliberate: R. v. Banwait, 2010 ONCA 869, 265 C.C.C. (3d) 201 (Ont. C.A.), at paras. 59 -64, rev'd, but not on this issue, 2011 SCC 55, [2011] 3 S.C.R. 533.

[300] As I understand it, the Crown is saying one of two things on s.231(2) route to liability. Either Hall had formed a plan to kill Mason when he called Lusted and told him they were going to do a rip; or Hall settled on a plan to kill Mason at some point after he was picked up from his apartment.

[301] The difficulty with these submissions is that the only evidence we have on what Hall said to Lusted comes from Lusted himself. As an inveterate liar, Lusted’s testimony can only really be trusted insofar as it is corroborated.

[302] On Lusted’s version, they drive to Mason’s apartment, Hall says that it’s Jeremy and the door is opened. Lusted then goes on to give an account of events wherein Hall tells Mason to put on his shoes, a phone is taken from both Mason and the woman in the apartment, and at one point Hall allegedly pulls out a firearm, and Lusted covers his face with his shirt. Lusted also testified that Hall said to the black woman, “he will be right back”. This is not corroborated and is somewhat refuted by Eaton’s evidence.

[303] Eaton’s statement provides no corroborative evidence on the substance of Lusted’s account prior to arrival and in the apartment. Further, Eaton’s account corroborates none of the details given by Lusted about driving around and smoking joints, or regarding Mason’s demeanour in the vehicle.

[304] On its own, Lusted’s testimony does not provide the basis for first degree murder based on planning and deliberation. Nothing is said about a killing or causing grievous bodily harm to Mason before or during the events leading up to the murder. Lusted testified that his understanding of why he went with Hall to the apartment was “to see a guy”. According to his evidence, he is anticipating a “drug rip”, a theft, and nothing more. As far as he is concerned, that is the plan.

[305] The evidence of Eaton and Lusted tells us that the conversation in the car at one point turned to Hall explained to Mason that his house got shot up because of him (Mason), but little else is corroborated between the pair.

[306] There is no reliable evidence that Hall actually planned or expressed a plan to him or others to murder Mason or cause him grievous bodily harm, either by word or deed, much less any evidence whatsoever of deliberation. Lusted never testified that there was a change in his understanding of the plan or expressed by Hall as the events unfolded in the pickup truck. Moreover, as I will explain momentarily, I reject his evidence about a firearm being brandished in the apartment.

[307] While the motivation behind the murder suggested by the Crown is the prior shooting up of the Martha Street house with Hall and his family present and Hall blaming Mason for the incident, the evidence as to planning and deliberation comes directly from Lusted, and to a lesser extent from Eaton.

[308] It is true that post-offence conduct can, in certain limited circumstances provide the basis for a level of culpability. The probative value of post-offence conduct depends on the nature of the evidence, the issues in the case and positions of the parties. As a matter of common sense and human experience, it is capable of supporting an inference that the accused had a particular state of mind at the time of the offence: R. v. MacKinnon (1999), 1999 1723 (ON CA), 43 O.R. (3d) 378, [1999] O.J. No. 346 (C.A.) at para. 14, White, [1998] at para. 25.

[309] However, in most cases, such as found here, post-offence conduct cannot help to determine the state of mind of an accused: R. v. Chambers, 2016 ONCA 684, [2016] O.J. No. 4802, R. v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129, [1994] S.C.J. No. 5 at pp. 145-147. For example, the fact that Hall took steps to dispose of the body and evidence related to this after-the-fact event cannot assist in addressing his level of culpability, as such conduct is equally consistent with either first or second degree murder.

[310] As mentioned earlier, the only evidence from Eaton on the issue of potential planning and deliberation is when Hall made certain comments to her days after the event in question. Eaton told Loader that Hall confirmed it in her mind when he came in in the middle of the night and he “just kind of like I got one of them babe, I got one of them”. After hearing that comment, Eaton freaked out that Billy was missing. She also stated that she didn’t ask him any question and she really didn’t want to know the details.

[311] Hall’s statements to Eaton lend support to the commission of the unlawful act but cannot assist me as some post-offence utterance that can give rise to establish a degree of culpability or the accused’s state of mind: White, [1998] at paras. 27-28, Arcangioli, at pp 145, 147. See also R. v. White 2011 SCC 13, [2011] 1 S.C.R. 433 (2011) at paras. 37, 41-42, R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301 at paras. 121-123.

[312] For this part of the analysis, Eaton’s statements to Loader as to what she felt occurred with Mason at the hands of Hall are not helpful. Her expressed belief about being sure that in “Jeremy’s eyes” the person responsible for the house shooting was Mason, or that she formed a belief based on Hall’s gestures or statements that he was responsible for killing Mason is strictly her opinion. While her comments may be derived from observed fact, it is a lay opinion that touches upon a central issue of the trial. It is neither an implied assertion nor admissible evidence: White Burgess, at para. 14:

(1) The Exclusionary Rule for Opinion Evidence

To the modern general rule that all relevant evidence is admissible there are many qualifications. One of them relates to opinion evidence, which is the subject of a complicated exclusionary rule. Witnesses are to testify as to the facts which they perceived, not as to the inferences — that is, the opinions — that they drew from them. As one great evidence scholar put it long ago, it is "for the jury to form opinions, and draw inferences and conclusions, and not for the witness": J. B. Thayer, A Preliminary Treatise on Evidence at the Common Law (1898; reprinted 1969), at p. 524; see also C. Tapper, Cross and Tapper on Evidence (12th ed. 2010), at p. 530. While various rationales have been offered for this exclusionary rule, the most convincing is probably that these ready-formed inferences are not helpful to the trier of fact and might even be misleading: see, e.g., R. v. Graat, 1982 33 (SCC), [1982] 2 S.C.R. 819 (S.C.C.), at p. 836; Halsbury's Laws of Canada: Evidence (2014 Reissue), at para. HEV-137 "General rule against opinion evidence".

[313] Also see Cyr, at para. 118 per Watt J.A.:

Third, the law of evidence distinguishes fact from opinion. Generally, witnesses testify only about observed facts. The trier of fact draws inferences from those facts. An opinion is an inference from observed facts. Lay witnesses can give opinion evidence only on issues that do not require special knowledge and where it is virtually impossible to separate the facts from the inferences based on those facts: Collins, at para. 17.

[314] In my review of Eaton’s evidence, she goes on to opine that the motive for the murder was that Mason “set up the score, and got people to try and kill my kids” so “I guess that was his motive”. Indeed, it is more probable than not that Hall blamed Mason as the impetus to the Martha Street home being shot up and his family being placed in jeopardy by persons unknown. It is likely that Hall not only blamed Mason for the incident; but he set out to avenge the home shooting and the lethal danger faced by his family.

[315] However, terms such as likely or probably”, is not the standard of proof in criminal law. Eaton’s statements to Loader give rise to a degree of guesswork or speculation as to motive. Supposition or conjecture is not evidence that can form the foundation for planning and deliberation.

[316] Recall that Eaton informed Loader that Hall tells her about the drive with Mason in the truck and that “Jeremy was explaining like my house got shot up because of you my kids you know almost died because of you and Billy said well I have a daughter too and then Jeremy told me that Jay turned around and said well he has a fuckin daughter too like screaming at Billy”.

[317] On this evidence, it appears that it was Lusted who verbally challenged Mason in the truck, not Hall. It could be that something occurred in the truck that may have escalated the situation. If there was an escalation or change in the “so-called” plan, this is all but omitted in Lusted’s testimony.

[318] In this case, while I am persuaded that there is strong evidence of motive and intention, those principles are not synonymous with the legal principles of planning and deliberation for first degree murder. See, for example, R. v. McKenzie, 2018 ONSC 2006, at paras. 33-34, citing with approval the decision of the Nunavut Court of Appeal, R. v. Evaloakjuk, 2001 39421 (NU CA), 2001 NUCA 1:

Evidence that the applicant was angry or felt animosity towards Mr. Green and Mr. Mohammed may be evidence of motive but not, in my view, of planning and deliberation. This was explained by Vancise J.A. in Evaloakjuk, at para. 18:

The evidence itemized in the previous paragraph all points to an animosity on the part of the accused towards the deceased. This animosity is plainly evidence of motive. But, in my opinion, motive standing alone cannot support an inference of planning and deliberation. Motive is always a relevant circumstance and it may assist in removing doubt. As noted in Lewis v. The Queen (1979), 1979 19 (SCC), 47 C.C.C. (2d) 24 (S.C.C.), at 37, proved presence of motive may be an important factual ingredient in the Crown's case "notably on the issues of identity and intention". It is well established that evidence of motive is admissible to prove the doing of an act as well as the intent with which the act was done: R. v. Jackson, (1980), 1980 2945 (ON CA), 57 C.C.C. (2d) 154 (Ont. C.A.), at 167. But intent is not the same thing as planning or deliberation. This evidence of motive may constitute circumstantial evidence of intent but not planning and deliberation. Evidence of animosity, even an altercation in close proximity in time to the murder, is not sufficient to infer planning and deliberation: see, for example, Re Demerais and The Queen (1978), 1978 2480 (ON CA), 42 C.C.C. (2d) 287 (Ont. C.A.).

[319] I recognize that it is improper to consider evidence on a piecemeal basis and that it is the cumulative effect of the evidence that matters. However, motive combined with an opportunity to plan and deliberate does not, in my view, equate to any evidence of planning and deliberation. Indeed, if the existence of motive and an opportunity to plan was sufficient, virtually every culpable homicide would potentially be first degree murder.

[320] For a murder to be planned there must be some evidence that the killing was the result of the scheme or design previously formulated by the accused. The implementation of a murder committed on a sudden impulse and without prior consideration will not constitute a planned murder even though the intent to kill is clearly established: R. v. Smith (1979), 1979 2233 (SK CA), 51 C.C.C. (2d) 381 (Sask. C.A.).

[321] For this reason, there is a dearth of credible, corroborated evidence on the presence or absence of a plan to kill Mason. I am not prepared to draw the inference on the basis of Hall bringing Lusted along and that a firearm was present at the time (though not necessarily revealed in the apartment), in addition to the evidence that Mason was driven out of Hamilton to a remote location, all combined with the existing animus to come up with such a plan.

[322] Willfulness has to do with the intention to commit murder and does not equate with deliberation. A murder committed on sudden impulse and without prior consideration, even with a motive and intention to kill, is not a deliberate murder.

[323] In sum, on these facts, I cannot draw the conclusions sought by the Crown as there are other competing, reasonable inferences. On the basis of Lusted’s version of events, there is a deficit of reliable evidence about if or when Hall planned and deliberated Mason’s murder to establish planning and deliberation beyond a reasonable doubt.

Constructive First Degree Murder:

[324] The Crown also relies on constructive first degree murder.

[325] Section 231(5) of the Criminal Code stipulates that irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections: “(e) section 279 (kidnapping and forcible confinement)”.

[326] On its face, Lusted does provide some evidence that could lead to a finding of constructive first degree murder. He testified that:

Q. Did Mr. Hall appear to have anything in his hands while you’re walking to the apartment with him? A. Not that I could see. Q. All right, and what happens when you get to the door? A. Jeremy knocked on the door. Q. All right. Does anyone answer? A. Someone asked who it was. Q. Okay, is that – sorry, was that through the door or? A. Through the door, yeah… Q. Did, did anybody reply when.... A. Yes. Q. Who, who replied? A. Coloured lady. Q. No, but sorry, I just – I, I may have confused you there. You say that somebody said through the door, who is it or something like that? A. Yes. Q. All right, did either you or Mr. Hall make a reply to that? A. Jeremy said it was him. Q. Said it was Jeremy? A. Yeah, said it was Jeremy. Q. Okay, and what happened then? A. Then a coloured lady opened the door. Q. Okay, can you describe her? A. No, I can’t.

Q. Height, build, anything like that? A. No, she was slim. Q. Slim? Height? A. Five-seven maybe. Q. Okay. Did you, did you recognize this black lady, coloured lady? A. No, I didn’t. Q. So, when she opens the door, what, what happens then? A. We entered. Q. All right, the two of you? A. Yes. Q. And who was in the apartment when you, when you entered? You’ve told us about the coloured lady.... A. And Billy was there. Q. All right, when you say Billy, is this a person that you’d - had you seen this person before? A. Never seen him in my life. Q. All right, and was there anybody other than Billy and the black lady and you two? A. No. Q. All right. And by now it’s what time of day? A. Afternoon. Q. All right. So, who, who does the talking when you’re in there? Who – does anyone speak to the, the male that you’ve called Billy? A. Yeah Jeremy does. Q. All right, do you hear what he says to him? A. Told him to put his shoes on, we’ve got to go up the road to see somebody. Q. All.... A. I’m not sure of the name he said.

Q. Okay. What was – how did he say that, was he yelling, whispering, laughing? A. Firm, voice was firm. Q. All right, and so I gather Billy, was he wearing shoes at the time? A. I don’t think he was, no. Q. No, all right, so what, what does – what happens then when he’s told to put his shoes on, we’ve got to go see a guy? A. Billy grabbed the phone and Jeremy grabbed it out of his hand, threw it on the thing and the lady grabbed the phone and I got it off her and put it on the TV. Q. Okay, what kind of phone was it, cell phone, landline? A. Landline. Q. All right, so the man you’ve described as Billy picked up the phone, is that correct? A. Mm-hmm. Q. All right, and what did Jeremy do then when he picked up the phone, when Billy picked up the phone? A. He took it out of his hands. Q. All right, and did what with it? A. Threw it on the couch. Q. Okay, and it’s on the couch, then what happens to it? A. The coloured lady picks it up. Q. All right, and what happens with it at that point, when she’s got the phone in hand? A. I took it out of her hand, put it on the TV. Q. All right, did you do that of your own will or? A. I believe I did. Q. All right, did Mr. Hall say anything about what to do with the phone? A. I can’t recall. Q. All right, so that’s the - the phone is no longer in Mr. – in Billy’s hand, what did Mr. Hall do then? A. I believe that’s when the shotgun came out. Q. All right, and tell us about that, when you say the shotgun came out, how did it come out? A. It came out from his jacket. Q. All right, how did it come out? Who took it out from under his jacket? A. Jeremy. Q. All right, and you say this was out from under his jacket? A. That’s correct. Q. All right, had you see that shotgun before? A. I’m not sure if I seen that one. I’ve seen guns, but I don’t... Q. All right. A. ...remember that one. Q. Had you see it at all that day up to that point? A. No. Q. All right, had Mr. Hall made any reference to having it with him? A. No. Q. So, you've called it a shotgun, can you describe it a bit for us, was it a, was it a regular size shotgun? Tell us about that. A. It was a cut off shotgun. Q. Cut off? All right. Cut off how, at one end or both ends or what? A. I believe it was cut at both ends. Q. All right, that is to say, the barrel and the, the stalk or the butt of the gun, is that correct? A. That’s correct. Q. All right. Can you estimate – tell us about how long it was, or even, even gesture in that regard? A. I couldn’t tell you how long. I couldn’t tell you how long it was….Q. Right, Eight, eighteen inches, something of that... A. That’s correct… Q. Maybe two feet? All right. Did you have – you told us you didn’t know about the gun, did you have any expectation of that gun suddenly appearing, Mr., Mr. Hall producing it? A. No, I didn’t. Q. All right. So, when the gun was pulled out by Mr. Hall, out from under his jacket, you’ve told us you weren’t expecting that. What do you do at that point? A. I pull my shirt up over my face. Q. All right, what, what kind of shirt are we talking about? You’re wearing a collared shirt.... A. I think I was wearing a hoodie. Q. Okay, anything under the hoodie? A. Maybe a black shirt. Q. All right, and is that – like is the hoodie – the hoodie’s a sweatshirt, is that what you pull up? Tell is about that. A. Yeah, I just pulled it up over my face. Q. All right. Up over your face about how far? A. About my nose. Q. Okay, why? Why would you do that? A. I panicked. People seeing. Q. All right, so, all right, you’ve pulled the shirt up over your face, the, the gun is out, is it being pointed at anybody? A. Yeah, at Billy. Q. All right, what, what happens next? A. He puts his shoes on, we go outside. We.... Q. Sorry, who puts their shoes on? A. Billy. Q. All right. What about anything like a, a coat or jacket? It’s winter, tell us about that. A. I can’t recall if he put a jacket on or not. Q. All right. Did you hear any, anybody say Billy while you were in that room? A. I believe I heard Jeremy say that, yeah. Q. All right, in relation to the male? A. Yes. Q. Okay. And so, what – he – Billy puts on his shoes, what happens then with the – you and Mr. Hall and Billy and the coloured lady? A. We proceed to the truck. Q. Okay, who’s we? A. Me, Jeremy and Billy. Q. All right, the – what about the coloured lady, what, what becomes of her? A. She was left in the house. Q. All right. Does anybody – does she – anybody make any comments to her at that point? A. Jeremy said we’ll be back, or he’ll be back. Q. Sorry, he said he’ll... A. He’ll be back. Q. ...he’ll be back meaning? A. Billy. Q. Who did you believe that to mean? A. He means Billy. Q. All right, and that was said by Jeremy to who? A. To the coloured lady. Q. All right, and so you, you leave the apartment at that point, the three of you? A. That’s correct. Q. All right, where is the gun, still in Mr. Hall’s hands or – tell us about that. A. I think it was back in his jacket. Q. Okay, and so it was not, not visible on the street, he wasn’t... A. No, I don’t think so. Q. ...carrying it where it could be seen? A. No. Q. All right. And the three of you walk out of the apartment together, I take it? A. That’s correct. Q. And where do you go? A. To the truck.. Q. All right. And I gather you get in, is that fair to say? A. That’s correct. Q. All right, and tell us about the, the, the seating arrangement then, who’s, who’s driving, where you sitting? A. Jeremy was driving, Billy was in the middle, I was in the passenger seat. Q. All in the same bench? A. Yes. Q. All right. And do you stay parked and have a chat or do you leave? A. No, we leave. Q. And the, the vehicle drives off? A. Yeah. Q. All right. Now, at, at this stage, as you’re driving off, do you know what the plan is as to where you’re going? A. No. Q. All right. Does any conversation take place between Mr. Hall and Billy.... A. Yeah, him and Billy were talking. Q. All right. What, what was Mr. Hall saying to Billy? A. That he set him up. He told me that these people weren’t connected and stuff like that… Q. ...set him up? A. Yeah. Q. All right. And what was his, what was his demeanour when he was talking to Billy, was he happy, sad, calm? Tell us about that. A. No, he was pretty calm.

[327] Lusted’s self-described behaviour upon viewing the alleged firearm in the apartment is not only the subject of some internal inconsistencies, but it does not make sense. He testified that he saw the shotgun, that he is immediately panicked and covers his face with a hoodie.

[328] If there was such a firearm shown to the occupants of the apartment, some questions are raised. If Hall had produced a sawed off shotgun at the apartment, and Lusted reacts in a panicked state, why does he claim to be panicked (again) at Moores Road? [^18] By that time, it would be obvious to Lusted that based on the scenario painted by him, Hall was not shy about wielding the firearm for all to see. There likely would involve the use of or the intimidating tactic of this weapon being employed again.

[329] It also appears that when the shotgun is revealed and pointed at Mason, there is no real commotion in the apartment. While there is some evidence of Hall’s voice being firm, on Lusted’s version, Mason is not described as being shocked, panicked, or otherwise fearful, albeit seemingly rushed. In fact, there is no evidence as to Mason expressing any angst, torment, comments or pleading for compassion or even an expression of resignation as to his possible fate as the three men venture out to the pickup truck.

[330] Eaton made no mention whatsoever about a phone being taken or Mason attempting to make a phone call as described by Lusted. Eaton also tells Loader that Hall says that Mason made both of them wait while he bundled up his crack. Hall apparently said to her that “it wasn’t even crack, it was just ashes and he bundled it up to take with him” Lusted says nothing whatsoever about this, rather suggests a somewhat urgent interaction that is only interrupted by Mason’s attempt to utilize a phone, and perhaps to get his shoes. Again, this is contrary to Lusted’s version as to what occurred and the threatening nature of the situation.

[331] Eaton’s evidence includes that Hall told Mason “we’re going for a ride” and permitted him time to get ready. Hall told Mason “put your shoes on”. It seems from Eaton’s rendition that Hall permitted Mason time to get ready before leaving, dissimilar to the flavour of events from Lusted as to the urgency and pressing nature of their entry, interaction and eventual departure from the apartment. In fact, Lusted’s account suggests that in conjunction with a weapon being brandished, Mason was given practically no time to do anything.

[332] Lusted’s version suggests that Mason was being told that they were only going a short distance (down the road) to see someone, although Lusted could not recall the name. Frankly, Lusted’s scant recall of the important details leading up to the shooting, and in particular while travelling in the pickup truck is noteworthy. In the pickup truck, Mason appears to be calm and had a conversation with Hall (and perhaps an argument with Lusted).

[333] In my view, this is significant. Lusted never testified as to some escalation or threats by Hall towards Mason in the truck.

[334] The Crown also relies on Eaton’s evidence as it relates as to what Hall told her. Eaton tells Loader about the news reports and hearing that Mason was alleged to have been “marched out” of the apartment. She explains that Hall, after hearing this claim, spontaneously denied that information. He also told her “there must have been someone hiding in the apartment”. It seems that this statement carries with it a degree of surprise on Hall’s part that there could have been someone else in the unit. It is totally at odds with Lusted’s testimony that there was another person, a “coloured woman” present in the apartment. Clearly on Lusted’s version this black woman was visible and not hiding because she answered the door and seemingly interacted with both him and Hall throughout the entirety of their visit.

[335] On several occasions, along these same lines, Eaton advised Loader that, upon Hall seeing and hearing the news, he was laughing and he told her that essentially the media did not know what they were talking about, because Mason was not marched out of his apartment: “We didn’t march him out, where do they come up with this shit?”

[336] In fact, I have no reason to discount Hall’s spontaneous utterances to Eaton as accurately reported by her to Loader from back when the events in question were still very fresh. Eaton’s evidence on this point regarding Hall’s reaction and utterances does not supports Lusted’s version.

[337] So, if I were to accept Lusted’s story, he had been panicked, twice. Once more, after seeing a shotgun in the apartment, he again asserts to being “panicked” at Moore’s Road? On Lusted’s version, Mason and Lusted get out by the passenger door and Hall trains a shotgun on Mason as he comes around the front of the truck from the driver’s side. Lusted claims to have attempted to grab the gun from Hall.[^19] Given the rapidly evolving events and the relative positioning of the parties, there is no explanation or lucid details about how this could have even occurred.

[338] At its highest, I can accept that Lusted is panicked at Moore’s Road, with a firearm being brought out and Hall shooting Mason in the stomach, as there is some evidence from Eaton that supports this notion. However, it again begs the question as to why does he claim to be so surprised by the shotgun, having allegedly just seen it at the apartment earlier that afternoon with the underlying threat to Mason? As the defence points out, Lusted needs to embellish his version by testifying that he had to “pull his hoodie up” when Hall brandished a sawed-off shotgun for all to see in the apartment and by grabbing the shotgun as if to save Mason from his eventual demise.

[339] Again, aside from some brief mention, I have no cogent evidence about the unidentified black woman. It appears that this person did not react to the events as they unfolded and was left alone at the Mason apartment, even after a shotgun was allegedly brandished towards Mason. Lusted unequivocally testified that Hall said to this unidentified woman “He’ll be right back”. Right back? Perhaps. But after Mason was being forced out at gunpoint and under direct or implied threat from Hall? Highly improbable.

[340] Lusted did not testify that the woman appeared to be under the influence of drugs or other intoxicants. Having allegedly taken the phone out of her hands, there is no evidence that Hall or Lusted made any threats or otherwise menaced this unidentified woman. In fact, on Lusted’s version, Hall seems to provide this woman with some re-assurance regarding Mason’s eventual return to the apartment.

[341] In any event, there is no evidence that this unidentified woman reacted, shouted out, called friends or even the police for assistance if it had occurred as Lusted described. Even a day, a week, a month or more later after Mason went missing, there is no evidence that she or anyone on her behalf reported the details of what occurred in the apartment to the police or called anyone else, for that matter. Ever mindful of speculating, assuming for the moment, that even if this woman was implicated in the drug subculture or was fearful or distrustful of the police, does it make sense that she would not have reached out to someone to advise what she observed? Especially with Cowley, Mason’s family and the police making substantial efforts to reach out to people in the know for assistance or information; having raised the “missing persons” alarm, and the matter being splashed all over the media.

[342] Resoundingly, meagre, inconsistent details were provided by Lusted about this alleged abduction. Yet, the woman, who, on Lusted’s account, witnessed these dire events and was then left to her own devices, made no effort to reach out to the police anonymously or otherwise.

[343] I reject the evidence that Mason was otherwise marched out of the apartment at gunpoint or that Hall took out a shotgun at the apartment.

[344] Again, what is remarkable in this case is the scant lack of particulars from an eye-witness of what had occurred on route from the apartment to the pickup truck and the time in the truck itself. Recall that Lusted described the travel as driving around Hamilton, stopped at one location and then started driving out of Hamilton. They were all having a conversation, listening to music and smoking joints. Overall, I am left with some generalities and a dearth of conversational details while the parties while situated in the truck on route to a stop along the way, and then the eventual drive to Moores Road. What I do have tends to be inconsistent and illogical from the narrative leading up to the killing.

[345] It bears repeating that Lusted testified that Mason appeared to be calm. In the apartment, on route to the pickup, and in the truck during the time leading up to the shooting. What prompted Mason to get out of the truck at Moores Road? What was said or done moments earlier? We do not know, based on Lusted’s story and his inconsistent versions of what occurred at the scene of the shooting.

[346] Despite the Crown’s argument, the placement of the three persons in the pickup truck, with Mason in the middle seat does not, in and of itself, equate to forcible or unlawful confinement pursuant to s. 231(5)(e).

[347] During a pre-charge ruling in the case of R. v. Millard, 2016 ONSC 4046, (under appeal), the deceased voluntarily, albeit under very daunting and highly suspicious circumstances, got into his pickup truck to go for a test drive with the two accused strangers. In Millard, the Crown sought to have constructive murder left with the jury as a route to first degree murder. In that case at paras. 22 to 26 I stated:

As I read Pritchard [R. v. Pritchard, [2008] 3 S.C.R. 195, 2008 SCC 59] and its progeny, the cases stand at least – in part – for the proposition that it is unnecessary to instruct a jury that they must distinguish between the offences of robbery and unlawful confinement when deciding a charge of constructive first degree murder arising from an unlawful confinement alleged to have occurred during a robbery-murder or attempted robbery-murder. Rather, the issues to be determined under s. 231(5)(e) are: i) whether an actual or attempted unlawful confinement took place; and ii) if it did, whether it was distinct from the killing.” See Johnstone; R. v. Tomlinson, 2008 CarswellOnt 7032 (S.C.).

Although the predicate offence – unlawful confinement – must be distinct from the killing, the murder and unlawful confinement still must be linked together, both temporarily and causally, in circumstances that make the entire course of conduct a single transaction: Pritchard, at para. 35. The essential temporal-causal connection requirement is established where the unlawful confinement creates a “continuing illegal domination of the victim” that provides an accused with a position of power that he or she chooses to exploit to murder the victim: Pritchard, at para. 35.”

Although every robbery involves an element of violence or threatened violence, the level of violence does not always occasion confinement of the significant duration required to satisfy the test. The authorities provide that not all robberies involve domination of the victim. Thus, not all robbery-murders will satisfy s. 231(5)(e).

As stated, even a confinement which satisfies s. 279(2) will not trigger s. 231(5)(e) if it is consumed in the very act of killing. In order to trigger s. 231(5)(e), the confinement and the murder must constitute distinct criminal acts: R. v. Kimberley (2001), 2001 24120 (ON CA), 157 C.C.C. (3d) 129 (Ont. C.A.), per Doherty J.A., at para. 108. Thus, the issue under s. 231(5)(e) is not whether there was confinement independent of the act of robbery but whether “there was unlawful confinement distinct and independent from the act of killing. … If the jury is satisfied that the murder was committed in the course of that confinement such that the series of events may be characterized as a “single transaction” the requirements of s. 231(5)(e) are met.”

In sum, the jurisprudence therefore establishes that second degree murder will be elevated to first degree where the murder and the predicate offence (in this case unlawful confinement) are linked together both causally and temporally in circumstances that make the entire course of conduct a single transaction. The temporal-causal connection is established where the unlawful confinement creates a “continuing illegal domination of the victim” that provides the accused with a position of power which he or she chooses to exploit to murder the victim. If this is established the fact that along the way other offences are committed is no bar to the application of s. 231(5).

[348] At paras. 33 to 34, I held:

There is no doubt that a person who is seated in a moving truck is factually constrained from leaving the vehicle. However, in my opinion, that is not the legal test. Not every killing in the course of operating a moving motor vehicle invokes s. 231(5)(e) of the Code, without something more to summons the criteria required to raise the classification of the murder to first degree. Clearly Parliament did not intend to suggest that any killing occurring within or in the course of operating a motor vehicle per se, can be construed as constructive first degree murder.

Clearly, the subsequent events that occurred inside the Dodge pickup truck are for the most part unknown or unascertained, even at this late stage of trial. While all of the parties have their various theories and propositions to advance to the jury, the only direct evidence on this fundamental issue comes from Mr. Smich, who categorically denied that he was present in the pickup truck at the time leading up to and at the moment of the killing. Mr. Smich did not acknowledge any confinement, or suggestion of physical, emotional or psychological restraint preyed upon the deceased at any time while in his presence. There is no direct or circumstantial evidence of what actually occurred in the moments leading up to the killing of Mr. Bosma in the pickup truck, nor does the evidence provide for an air of reality supporting reasonable inferences of a unlawful confinement in law, based on the principles arising from the jurisprudence.

[349] In Millard, I ruled that while the prosecution was free to promote their theory of the case, there was no air of reality to permit the Crown to advance that route of liability for first degree murder. In other words, the Crown could not rely on constructive first degree murder where a person voluntarily gets into a pickup truck and is situated where he is unable to just get out. While a moving vehicle is a confinement in the literal sense of the word, I determined that type of situation could not give rise to an unlawful confinement for constructive first degree murder. Although the facts are different in this case as to the precipitating events, I cannot conclude that the circumstances here exist to otherwise reframe my holding as discussed in Millard.

[350] On the evidence here, I cannot accept the suggestion that Mason was lured or forced into the truck by Hall’s words, deeds or otherwise, with support from Lusted. None of Lusted’s evidence on this specific issue is corroborated. Further, his evidence on this critical point is also internally inconsistent, illogical and highly unreliable. Other than the testimony from this one eye-witness to the event, there is nothing else in the evidence that can provide a cogent basis to establish an unlawful confinement.

[351] In sum, I am satisfied that there are other reasonable inferences to draw from the evidence or the lack of evidence on this critical point. The alleged act of abduction or unlawful confinement, as distinct from the actual killing itself, is not credibly ascertained or substantiated.[^20]

CONCLUSION:

[352] As mentioned at the outset, this is a case where the principal witnesses suffered from various degrees of mendacity, obfuscation and inconsistencies. A case where the evidence of the Crown’s sole eye-witness to the incident must be analyzed with strict scrutiny and caution.

[353] In applying the requisite legal criteria under the first two factors in R. v. W.(D.), I reject Hall’s testimony as self-serving and not credible. I am not left with a reasonable doubt by the accused’s or the defence evidence as to the murder of Mason.

[354] I reject Eaton’s in-court testimony. Specifically, I find her wanton and dogged lack of recollection at this trial as feigned and concocted. I do not accept any and all complaints about how the police treated her leading up to, subsequent, and during the course of her interaction with them in 2010. Her grievances about the circumstances surrounding her two video statements under oath to Loader is a fabrication. Quite the contrary. I accept her video statement of August 26, 2010 to the police as entirely truthful and reliable.

[355] I have rejected a considerable segment of Lusted’s testimony as being unreliable. However, I have accepted some of his direct evidence where there is corroboration of the facts giving rise to the essential elements of the offence. In my opinion, the corroborative circumstantial evidence, viewed logically and in light of human experience, is not reasonably capable of supporting an inference other than that the accused is guilty.

[356] Based on the whole of the evidence, I am satisfied beyond a reasonable doubt that Hall had the requisite state of mind and intentionally shot Mason on February 24, 2006 resulting in the victim’s murder. He later took steps to incinerate Mason’s body and destroy the evidence of his crime.

[357] It is trite law that motive is not an essential component that must be proven by the Crown. Indeed, there are elements of planning and a probable motive engaged in this case. However, even on Lusted’s own version, the factual and legal requirements of planning and deliberation are not established in evidence.

[358] Further, with Lusted’s numerous external and internal inconsistent versions, in conjunction with the evidence raised by the defence on this issue, I am not satisfied beyond a reasonable doubt that the Crown has met its onus to prove planning and deliberation.

[359] While I reject a large segment of Hall’s testimony as to his requisite intent and involvement in the murder and disposal of Mason’s body; his evidence regarding some of the details preceding the murder - including but not limited to his spontaneous reaction to Eaton upon learning certain information about Mason - does provide a basis for a reasonable doubt as to his degree of culpability to raise this murder to first degree.

[360] More importantly, in addressing constructive first degree murder, Lusted’s version is not corroborated. He offered conflicting and conflicted testimony. His evidence on this point, combined with other evidence and applying common sense leads to a reasonable doubt that Mason was unlawfully or forcibly confined temporally and in conjunction with the murder. In other words, in applying the Vetrovec principles, it would be dangerous to rely on his testimony to convict Hall on the aggravated form of the indicted offence.

[361] Therefore, I find Jeremy Hall not guilty of first degree murder, but guilty of second degree murder. A conviction shall be registered on the indictment.

A.J. Goodman J.

Date: January 5, 2021

COURT FILE NO.: CR 11-3244

DATE: 2021/01/05

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

JEREMY HALL

REASONS FOR JUDGMENT

A. J. GOODMAN, J.

Date: January 5, 2021

[^1]: R. v. Barbeau, [2005] O.J. No. 4851 (Ont. C.A.); R. v. Ahmaddy, 2018 ONCA 496, at para. 8 ("trial judge was not required to specifically instruct himself on the dangers of relying on the evidence of an unsavoury witness"); R. v. Snyder 2011 ONCA 445, (2011), 273 C.C.C. (3d) 211 (Ont. C.A.), at paras. 23-25, (Vetrovec caution need not be specifically articulated in reasons); R. v. Moore, 2017 ONCA 217, at paras. 4-5; See also R. v. Ramta, 2017 ONCA 580, at paras. 12-13; R. v. Devitt, 2016 ONCA 871, at para. 10, R. v. Quesnelle, 2015 ONCA 554, at paras. 2-3.

[^2]: It is settled law that Vetrovec cautions are limited to witnesses called on behalf of the prosecution and relied upon to establish an accused's guilt: R. v. Suzack (2000), 2000 5630 (ON CA), 128 O.A.C. 140, 141 C.C.C. (3d) 449 (Ont. C.A.), at para. 186. While Vetrovec warnings do not apply to defence witnesses, a trial judge is entitled to comment on the credibility of witnesses and the reliability of their evidence, including defence witnesses: Suzack at para. 189; R. v. Tzimopoulos (1986), 1986 152 (ON CA), 17 O.A.C. 1, 29 C.C.C. (3d) 304 (C.A.), at p. 340.

[^3]: I am mindful that my job is not that of a court reporter. Nonetheless, as my analysis involves an assessment of key credibility and reliability findings, such an exercise is required in this case. I have also taken the liberty to reference some of the Crown and defence arguments related to portions of the evidence.

[^4]: In the winter of 2004, Lusted was in still in jail until the warrant expiry date of May 24, 2004.

[^5]: I agree with the defence that the manner this questioned was posed was leading. The defence says that Lusted is able to glean from Mr. O’Brien’s line of questioning that he has not given a correct answer. However, Lusted is unable to answer in the manner desired by the Crown (that he got into the driver’s side). This is true even when Mr. O’Brien is suggesting the answer to Lusted in a transparent manner by reminding him that he is panicked and wanting to leave. The defence says that because Lusted is lying, he has no idea what the correct answer is.

[^6]: The defence says that these photographs were leading in the sense that they contained an orange cone (and other forensic identifiers), which denoted where the body of Mason was allegedly burned.

[^7]: On June 8, 2006 when Thom met with Lusted who, at that juncture, was only trying to broker a deal in relation to his current set of outstanding charges. This involved a series of four demands, including a reduction in sentence for his outstanding charges. Lusted admitted that he was anxious for the deal to go through and called Thom to complain. Eventually, Lusted received a plea deal whereby he plead guilty only to accessory after the fact to murder. The ultimate sentence he received for that offence was only 4.5 years. The defence says that Lusted was clearly guilty of kidnapping and, at least, manslaughter. The proper tariff for such admitted conduct would have been much higher, likely, 12-15 years in jail. The defence submits that Lusted acted swiftly in entering his plea and had an obvious motive to lie.

[^8]: The defence adds that they sought to call the expert evidence at the voir dire out of turn in attempt to prove that many aspects of Eaton’s KGB statement were scientifically impossible; but, was not permitted to do so as the suggested procedure was unorthodox.

[^9]: Going forward, when I speak of Eaton’s evidence, I specifically refer to her second KGB statement to the police that is the relevant evidence and the subject of argument at this trial.

[^10]: Eaton also mentioned the name of Michael Hall.

[^11]: This tends to go against Lusted’s cell phone records following the burning of the GMC pickup truck on February 24, 2006

[^12]: The process that concrete undergoes when impinged by heat, either via direct flame or a solar energy, over a period of time. More specifically, it refers to the delamination and the breaking down of the surface due to the expansion of moisture within the concrete itself. Olson testified that deep freezing temperatures could also produce such an effect.

[^13]: A man-made stacked wood structure historically constructed for the purpose of cremating a body in outdoor funeral rituals. The structure is built from the ground upwards and the wood is stacked in opposite directions. This type of structure is efficient for burning because it draws in fresh air from the bottom in a process called “entrainment”.

[^14]: I acknowledge that Lusted was not re-examined on this issue.

[^15]: The defence says that none of Lusted’s testimony can be trusted unless corroborated, but here, appears to rely on his disputed observations of the fire and urges this court to rely on the truthfulness of this statements this specific point.

[^16]: See, for example, 4:21 pm – 5:23 pm on February 24/06. Mr. Krasulja’s chart as presented to this court was missing three calls from the 8060 line during this duration (which is a time period directly connected to the alleged Smithville truck burning). These missing calls, which depict the 8060-number pinging in Hamilton and, subsequently, Burlington, were pencilled in by Krasulja at the request of defence in cross-examination. See also the several missing calls from the 8060 line during the alleged abduction and killing (March 13, 2006 bill, page #38, lines 262-267).

[^17]: Albeit, it appears that the exact burn site may never be ascertained or known.

[^18]: If believed, one possible explanation is that the shooting itself as opposed to just intimidation was an escalation of the situation inducing panic. I reject that rationalisation.

[^19]: This significant series of events appear to be glossed over the Crown in examination-in-chief of Lusted.

[^20]: See the discussion in R. v. Pritchard, [2008] 3 S.C.R. 195, 2008 SCC 59, at paras. 27 - 35. The temporal-causal connection is established where the unlawful confinement creates a “continuing illegal domination of the victim” that provides the accused with a position of power which he or she chooses to exploit to murder the victim: at para. 35