





CITATION:
R. v. Mordue, 2011 ONCA 538



DATE: 20110729



DOCKET: C48727



COURT OF APPEAL FOR ONTARIO



Feldman, Blair and Watt JJ.A.



BETWEEN



Her Majesty The Queen



Respondent



and



Erland Wallace Mordue



Appellant



Monte MacGregor, for the appellant



Roger A. Pinnock, for the respondent



Heard and released orally: July 25, 2011



On appeal from conviction entered by Justice Thomas Heeney of
          the Superior Court of Justice, sitting with a jury, dated April 12, 2007.



ENDORSEMENT



[1]

The appellant admitted at trial that he murdered the
    victim but denied that the murder was planned and deliberate.

[2]

The appellant raises three grounds of appeal against
    his conviction for first degree murder. One, the trial judge erred by failing
    to give a no-probative value instruction regarding the evidence of the attempted
    suicide by the appellant as after-the-fact conduct relevant to the issue of
    planning and deliberation. Two, the trial judge erred by making a lengthy
    review of the evidence where identity was not an issue.  Three, the verdict was unreasonable.

[3]

We would not give effect to any of these three grounds
    of appeal. There was a strong case of planning and deliberation based on the appellants
    handwritten notes that refer to the murder and the suicide, and the fact that
    the appellant went to the victims home, cut the phone line, and waited for her
    while drinking beer and smoking for some period of time. As the appellant did
    not testify, there is no explanation that the jury could consider to put these
    circumstances in another light.

[4]

Dealing specifically with each ground. With respect to
    ground one, defence counsel at trial did not ask for a no-probative value instruction,
    but rather, used the attempted suicide evidence as part of his defence theory. Regarding
    ground two, the trial judge chose to review the evidence in detail. Arguably,
    his review could have been shorter but we see no error or any prejudice to the
    appellant. Regarding ground three, the Crowns case was a strong one. There is
    no basis to suggest that the verdict was unreasonable.

[5]

The appeal is therefore dismissed.

Signed:           K. Feldman J.A.


    R. A. Blair J.A.

David
    Watt J.A.


