



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Short, 2018 ONCA 1

DATE: 20180102

DOCKET: C57652

Hoy A.C.J.O., Doherty and Feldman JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roger Craig Short

Appellant

Michael Dineen, Jennifer Micallef and Kristen Allen, for
    the appellant

Roger A. Pinnock, for the respondent

Heard: December 4, 2017

On appeal from the conviction entered by Justice Joseph
    M.W. Donohue of the Superior Court of Justice on February 27, 2013, sitting
    with a jury.

First degree Murder  removal of
    trial counsel from the record  third party suspects  demeanour evidence 
    police officer opinion evidence  hearsay.

Doherty J.A.:


I



overview

[1]

The appellant was charged with the first degree murder of his wife,
    Barbara Short (Mrs. Short). His first trial ended in a hung jury. The jury
    convicted the appellant of first degree murder at his second trial.

[2]

The appellant raises several grounds of appeal based on the trial
    record. He also asks this court to admit fresh evidence in support of the
    ground of appeal relating to the admissibility of evidence pointing to Geoff
    Harper as the potential perpetrator of the murder.

[3]

I would allow the appeal. About six weeks before the trial, defence
    counsel brought an application to be removed from the record. As I will
    explain, the trial judge was obliged in the circumstances to remove trial
    counsel from the record. Instead, he required counsel to continue to act for
    the appellant at the trial.

[4]

The trial judge erred in law in his ruling. His ruling created the
    appearance of unfairness regardless of whether it actually negatively impacted
    the conduct of the defence. The error requires that the conviction be quashed
    and a new trial be ordered.

[5]

As there must be a new trial, I need not address the other grounds of
    appeal in detail. I will, however, briefly refer to some of the issues raised
    in the hope that my comments may assist on the retrial.


II



the trial

[6]

A brief overview of the evidence adduced at trial will suffice for the
    purpose of these reasons.

[7]

Mrs. Short was killed some time during the evening of October 18 or
    early morning of October 19, 2008. The appellant testified that he found his
    wifes body in their backyard at about 1:30 a.m., when he returned home after
    attending a local hockey game and visiting various bars. According to the
    appellant, he had left the house just after 7:00 p.m. on the evening of October
    18. He testified that his wife was alive when he left.

[8]

The autopsy revealed that Mrs. Short had died from blows to the head. A 4
    x 4 board with Mrs. Shorts blood on it was found near her body. The
    authorities did not establish a time of death. Mrs. Short had last been seen by
    her neighbours at about 6:00 p.m.

[9]

The appellant testified that when he came upon his wifes body in the
    backyard, he smelled a strong odour of gas. Her body was near the family gas
    tank at the back of the property. The first responders also smelled gas and noticed
    that the gas cap was beside the tank.

[10]

The
    police came to suspect the appellant for various reasons. He was arrested on October
    24, 2008.

[11]

The
    appellant and Mrs. Short had been married for 28 years. There was a lot of evidence
    that the marriage was not a happy one. The appellant habitually verbally and
    emotionally abused and belittled Mrs. Short. He was controlling, arrogant, and
    volatile. There was no evidence of physical abuse.

[12]

It
    was the Crowns position that by the spring of 2008, Mrs. Short had finally
    decided that she had had enough of the appellant. She began to take steps to
    gain her independence from the appellant. These steps included obtaining her
    drivers license, looking for a job outside of the home, and seeking the advice
    of a divorce lawyer.

[13]

The
    Crown maintained that during the summer of 2008, the appellant became aware
    that Mrs. Short was no longer prepared to tolerate his abuse and submit to his
    control. He knew that she was taking steps to leave him. Specifically, he knew
    that Mrs. Short had hired a lawyer and that she was having an affair with
    another man. On the Crowns theory, the appellant became very angry at the
    thought of having to provide financial compensation to Mrs. Short as part of
    any divorce. He decided to murder her rather than pay her.

[14]

In
    support of its position, the Crown led evidence of:

·

the nature of the relationship between the appellant and Mrs.
    Short, especially from the summer of 2008 to her death in October;

·

statements the appellant made to Mrs. Short and her nephew to the
    effect that he would rather kill or hurt Mrs. Short than give her half of his stuff
    as part of a divorce settlement;

·

Mrs. Shorts state of mind, particularly her determination to stand
    up to the appellant, leave him and have a life of her own;

·

the appellants efforts to divert suspicion from himself,
    beginning with his conduct on the evening of October 18 after he left his home just
    after 7:00 p.m., and extending over several days;

·

the appellants attempts to conceal his ongoing marital
    difficulties from the police;

·

very shortly after the murder, the appellant asked a friend to destroy
    the demand letter from Mrs. Shorts lawyer sent to the appellant on July 31,
    2008; and

·

the appellants destruction of poems written by Mrs. Short describing
    her marriage and emotional state, and his lies to the police about what he had
    done with those poems.

[15]

The
    case against the appellant was entirely circumstantial. There was no forensic
    evidence connecting him to the murder.

[16]

The
    appellant testified and denied that he had killed his wife. It was the position
    of the defence that:

·

the marriage was not nearly as bad as the Crown depicted it. The appellant
    and Mrs. Short were making efforts to improve their marriage in the months
    before her death;

·

the appellant did nothing unusual or untoward either on the night
    of Mrs. Shorts death or in the days following;

·

the police developed tunnel vision very early in the
    investigation. They focused exclusively on the appellant. Their many efforts to
    generate incriminating evidence against the appellant failed. Meanwhile, routine
    investigative steps went undone and important leads and suspects were left
    uninvestigated; and

·

there was a real possibility on the evidence that Mrs. Short was
    killed by an unknown person who she caught in the act of stealing gas from the
    Shorts gas tank at the back of the property. The defence argued that the crime
    scene supported the conclusion that Mrs. Short had interrupted a gas theft. The
    thief attacked and killed her.

[17]

At
    trial, the defence also tried to lead evidence pointing to Ken Robertson and
    Geoff Harper as possible perpetrators of the murder. Mr. Robertson, who was
    married, was having an affair with Mrs. Short at the time of her death. They
    communicated on a frequent basis. There was evidence that Mrs. Short sometimes invited
    Mr. Robertson to her home when she knew the appellant was going to be out. The
    day before her murder, Mrs. Short had proposed that she and Mr. Robertson meet
    up on the night of her death.

[18]

There
    was also evidence that Mrs. Short and Mr. Robertson had discussed having anal
    intercourse. Forensic evidence offered some support for the defence position
    that Mr. Robertson and Mrs. Short may have had anal sex shortly before her
    death.

[19]

Mr.
    Harper, a repeat offender with a history of violence, lived a relatively short
    distance from the Shorts home. His prior convictions included a conviction for
    gas theft. The defence also relied on an anonymous Crime Stoppers tip from June
    30, 2009, identifying Harper as the perpetrator of the murder.

[20]

The
    third party suspect evidence involving Mr. Robertson and Mr. Harper had been elicited
    at the first trial without objection from the Crown. The Crown objected to the
    admissibility of the evidence on the second trial. The trial judge excluded the
    evidence.


III



the grounds of appeal

A: Counsels application to be removed from the record

[21]

Trial
    counsel had represented the appellant at his first trial. He continued to
    represent the appellant in the pretrial motions leading up to the second trial.
    According to trial counsel, despite assurances from the appellant, he was not
    paid for the first trial or for the proceedings leading up to the second trial.
    About six weeks before the second trial was to commence, trial counsel brought
    an application to be removed from the record.

[22]

Trial
    counsels assistant, a licensed paralegal, filed a brief affidavit on the application.
    In the affidavit, she indicated that trial counsel had not been paid and that
    it may be necessary for him to sue the appellant for payment. She also
    indicated:

The relationship between the client and counsel has broken
    down. [Trial counsel] cannot ethically represent Mr. Short.

Counsel took immediate steps following such a loss of
    confidence in the relationship to prepare and file the Notice of Application.

[23]

The
    appellant was served with trial counsels notice of application. He was present
    on the application, but the trial judge declined to make any inquiry of the
    appellant as to his position, fearing that the appellant might inadvertently
    disclose privileged conversations he had had with his lawyer.

[24]

Trial
    counsel made representations to the trial judge in which he briefly outlined the
    history of his relationship with the appellant. Counsel indicated he had not been
    paid and referred to the possibility of a lawsuit for payment of the funds owed
    to him. Counsel also advised the trial judge that because of the non-payment,
    he had been unable to do things that should have been done in preparation for
    the second trial.

[25]

Trial
    counsel went on to indicate:

There are communications between Mr. Short and I that have led
    to loss of confidence issues that I cannot disclose to you, but
I can tell
    you as an officer of the court ethically that my position is I cannot go
    forward ethically as a result of some of those communications.
[Emphasis added.]

[26]

After
    the trial judge questioned the content of the affidavit from the legal
    assistant as it related to the reasons for the breakdown of the relationship,
    trial counsel said:

I am telling Your Honour that there are issues that have
    arisen that result in a loss of confidence between Mr. Short and I

[
A
]
nd I
    can tell you as an officer of the court, this is not me putting on top of a
    non-payment of fees, a paragraph that says theres a loss of confidence just to
    get an easy way out.
This is probably the most difficult decision I have
    done. In this particular case I have, without disclosing anything, done
    everything I can to move this case forward. After the second trial I wiped much
    of my calendar clean to get this second trial as quick as possible. Obviously,
    there were communications between my client and I that allowed me to make the
    decision to go forward, financially and for another, another, another, abound
    of reasons. But I am telling the [sic] today,
is that having no funds, and
    not being able to disclose to you the communications between the client and I,
    that I cannot represent Mr. Short going forward.
[Emphasis added.]

[27]

Crown
    counsel at trial opposed trial counsels application to be removed from the
    record. He submitted that it was the appellants failure to pay trial counsel,
    and not ethical concerns, that was the prime motivation for why this
    application is being brought. Counsel referred to
R. v. Cunningham
, 2010
    SCC 10, [2010] 1 S.C.R. 331, the leading authority, and acknowledged that if
    counsel put forward ethical reasons as the basis for his request to be removed
    from the record, the trial judge should allow counsel to withdraw. The Crown
    argued, however:

And here, Your Honour, my respectful submission, weve heard
    nothing from the affidavit nor in my friends comments that would take it
    beyond non-payment of fees.

[28]

Crown
    counsels submissions can only be read as suggesting that trial counsels
    references to ethical concerns and loss of confidence were camouflage for the
    real reason counsel wanted off the record  he had not been paid. The Crown
    argued, that in the circumstances, non-payment could not justify removal from
    the record.

[29]

In
    refusing counsels application to be removed from the record, the trial judge
    was critical of the affidavit filed by the legal assistant. He observed that it
    dealt mostly with non-payment of fees, and contained virtually no details of
    the ethical concerns or the reasons for loss of confidence.

[30]

The
    trial judge concluded:

Given the weight and tenor of the balance of the affidavit
    dwelling on financial issues, I am forced to conclude that the reference to
    ethics in the adverb ethically has no basis in evidence.
I am persuaded
    that [trial counsels] difficulties relate to payment of his accounts and not
    to an ethical dilemma.
[Emphasis
    added.]

[31]

The
    trial judge essentially agreed with Crown counsels submissions. He too refused
    to accept trial counsels representation that his request for removal from the
    record related to ethical problems and a breakdown in the client-solicitor
    relationship.

[32]

The
    trial judge went on to consider whether, in the circumstances, non-payment of
    fees justified removal of trial counsel from the record. Stressing the
    proximity of the trial date, the seriousness of the charge, and the potential
    negative impact on the accused were counsel to be removed from the record, the
    trial judge declined to allow counsel to be removed.

[33]

There
    is no controversy as to the applicable legal principles. If trial counsel seeks
    to be removed from the record because he has not been paid, the trial judge has
    a discretion to allow counsel to get off the record. If the trial judge
    declines to allow counsel to get off the record, counsel must continue to act
    for the accused, subject of course to being fired by the client. If, however,
    ethical concerns motivate counsels application to be removed from the
    record, the trial judge is obliged to order counsel removed without any inquiry
    into the particulars underlying the request:
Cunningham
, at paras. 48-49,
    58;
R. v. C. (D.D.)
,
1996
    ABCA 303, 110 C.C.C. (3d) 323, at para. 19, leave to appeal refused: [1996]
    S.C.C.A. No. 453.

[34]

In
    this context, ethical reasons could refer to a clients request that a lawyer
    act illegally or contrary to the Law Society of Upper Canadas
Rules of
    Professional Conduct
. Ethical reasons also extend to circumstances that may
    not involve any illegality, but which have resulted in a breakdown of the
    client-solicitor relationship to the point that counsel cannot effectively give
    legal advice or receive instructions from the client. The phrase loss of
    confidence is often used to describe this latter situation:
C. (D.D.)
,
    at para. 26; David Layton & Hon. Michel Proulx,
Ethics and Criminal Law
,
    2d ed. (Toronto: Irwin Law Inc., 2015) at pp. 561-62;
Law Society of Upper
    Canada Rules of Professional Conduct
:  Rule 3.7.2 and commentary.

[35]

The
    requirement that the court accept, without inquiry, trial counsels assertion
    that ethical reasons or, to put it more broadly, a breakdown in the
    client-solicitor relationship, require that counsel no longer act for the
    client, does not rest on some exaggerated notion of the integrity of all
    counsel. The prohibition is predicated on the very real risk that any inquiry
    would reveal communications that are subject to client-solicitor privilege and would
    put trial counsel in a position where he or she had to compromise the duty of
    loyalty owed to the client to fully explain the breakdown of the relationship. It
    is hard to think of circumstances in which any meaningful inquiry into the
    reason for the breakdown in the client-solicitor relationship would not potentially
    compromise the accuseds position and his future defence by other counsel.

[36]

In
    considering and rejecting the application, the trial judge wrongly focused on
    the content of the legal assistants affidavit. He found the affidavit lacking
    in details and any explanation of the legal assistants expertise in matters of
    legal ethics. The trial judge should have instead focused on counsels
    representations. Bearing in mind the reason counsel wanted off the record, the legal
    assistants affidavit could not add much of substance to the inquiry.

[37]

Trial
    counsel was candid in indicating that non-payment of his fees had created
    considerable strain in the relationship and made it impossible for him to properly
    prepare for the second trial. At the same time, however, trial counsel repeatedly
    told the court that the problems between he and the appellant had gone beyond
    those related to the non-payment of his fees and had reached the point where
    the client-solicitor relationship had broken down. As I understand
Cunningham
,
    the trial judge was obligated to accept trial counsels representation.

[38]

I
    do not agree with the Crowns submission in this court that trial counsels
    reference to ethical reasons related exclusively to his concern that he may be
    in a conflict of interest with his client if he was required to sue his client
    for non-payment of fees. No doubt, the legal assistants affidavit and trial
    counsels submissions connect the non-payment of fees to the eventual loss of
    confidence and the breakdown of the relationship. This is hardly a surprising
    connection. Counsels representations that ethical reasons prevented him from
    continuing to act cannot be read as limited to his concerns about possibly
    suing his client for his fees. Trial counsel expressly indicated that the concerns
    went well beyond that.

[39]

On
    my review of the transcript, trial counsel made it abundantly clear that there
    had been a complete breakdown in the client-solicitor relationship and that for
    that reason he could not continue to act for the appellant. The trial judge was
    required to accept that representation and remove trial counsel from the
    record. By requiring counsel to remain on the record, the appellant was left to
    be defended on a first degree murder charge, not by counsel fully and unequivocally
    committed to his defence, but by counsel who had announced to the court that he
    could not, in good conscience, continue to act for the appellant. The trial
    judges ruling rendered the appearance of the trial unfair and resulted in a
    miscarriage of justice, requiring a new trial:
R. v. Rushlow
, 2009 ONCA 461,
245 C.C.C. (3d) 505, at
    paras. 35-37.

[40]

Before
    leaving this issue, I will comment on the trial judges decision to not hear
    from the appellant personally in the course of trial counsels application to
    be removed from the record. I understand the trial judges concern that the
    appellant not be put in a position where he might inadvertently say something
    compromising client-solicitor privilege. However, on an application by trial
    counsel to be removed from the record, it is imperative that the clients
    position be known to the judge hearing the application. Some inquiry, albeit
    one carefully circumscribed to avoid entrenching on client-solicitor privilege,
    is necessary.

[41]

A
    client is entitled to discharge counsel at any time for any reason. If a client
    does not want to be represented by a particular counsel, the court cannot force
    that representation on the client: David Layton & Hon. Michel Proulx, at p.
    543;
R. v. Chemama
, 2016 ONCA 579, 351 O.A.C. 381, at para. 58.

[42]

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

[43]

Trial
    counsels application to be removed from the record put the appellant in a
    difficult position, although he may well have been responsible for his own
    predicament. If possible, I think it would have been helpful had the appellant
    received some legal advice from duty counsel, or perhaps some senior member of
    the bar, before the application proceeded. Counsel could have ensured that the appellant
    understood the nature of the application, his options in respect of
    representation and participation in the application, his right to maintain the
    confidentiality of his communications with his trial lawyer, and the potential
    impact of the outcome of the application on the timing of, and the appellants representation
    at, his upcoming trial.

B: The Other Grounds of Appeal

(i)

The admissibility of third party suspect evidence referable to Geoff
    Harper

[44]

The
    trial judge excluded evidence offered to support the inference that Geoff
    Harper had attempted to steal gas from the Shorts gas tank on the night of Mrs.
    Shorts murder. The defence argued that the evidence supported the inference that
    Mrs. Short had interrupted the gas theft, and that Geoff Harper had killed her.

[45]

On
    appeal, counsel argued that the trial judge was wrong in his ruling. Counsel
    also sought to introduce fresh evidence said to provide further evidence linking
    Geoff Harper to the gas theft and the murder. Some of the fresh evidence
    consisted of material that could have been brought forward at the first trial. However,
    the most significant part of the fresh evidence involved statements attributed
    to Mr. Harpers former wife by various people, including an investigator hired
    by the appellant post-conviction. At least one of those statements strongly implicates
    Geoff Harper in Mrs. Shorts death.

[46]

There
    is no need to consider the correctness of the trial judges ruling that the
    defence could not lead evidence pointing to Geoff Harper as a suspect. Presumably,
    if the defence renews the motion at the new trial, the evidentiary record will
    include at least some of the material placed before this court. Admissibility
    will depend upon an application of the well-established legal principles to
    that record: e.g.
R. v. Grandinetti
, 2005 SCC 5, [2005] 1 S.C.R. 27;
R.
    v. Grant
, 2015 SCC 9, [2015] 1 S.C.R. 475. Depending primarily on what
    evidence, if any, comes from Mr. Harpers former wife, the defence may have a
    strong argument for the admissibility of evidence pointing to Mr. Harper as a
    third party suspect.

(ii)

The admissibility of evidence identifying Ken Robertson as a third party
    suspect

[47]

Mr.
    Robertson and Mrs. Short had been having an affair for several years. That
    affair was very active at the time of Mrs. Shorts death. The defence sought to
    cross-examine Mr. Robertson and his then-wife in support of a claim that Mr.
    Robertson may have killed Mrs. Short. The trial judge refused to allow the
    questioning on the basis that there was not a sufficient connection between Mr.
    Robertson and the murder. The trial judge did, however, somewhat inconsistently,
    allow the Crown to lead evidence that Mr. Robertson was at home with his then-wife
    on the evening that Mrs. Short was murdered.

[48]

On
    appeal, counsel in addition to maintaining the argument that Mr. Robertson was
    a legitimate third party suspect, added a wrinkle to the admissibility
    argument. Counsel submitted that, as it was the Crowns theory that the
    appellant had murdered Mrs. Short before he left their home just after 7:00
    p.m., evidence putting Mr. Robertson at the home visiting Mrs. Short at some
    time after 7:00 p.m. would effectively destroy the case for the Crown,
    regardless of whether Mr. Robertson had anything to do with Mrs. Shorts death.

[49]

I
    think counsels submission is correct. Evidence that Mr. Robertson was at the
    Short household on the evening of the murder was relevant even if he was not the
    killer. The evidence of the relationship between Mr. Robertson and Mrs. Short at
    the time of her death, the e-mail messages back and forth in the days preceding
    her death, the forensic evidence concerning the substance found in Mrs. Shorts
    anal cavity, and Mr. Robertsons behaviour in the days after the murder, taken
    together, provided a sufficient basis to allow the defence to explore whether
    Mr. Robertson was at the Shorts home at some point on the evening of October 18.
    The evidence that Mr. Robertson was at home with his wife was of course equally
    admissible to rebut the defence contention that Mr. Robertson was at the
    Shorts home.

[50]

As
    I am satisfied that evidence supporting the inference that Mr. Robertson was at
    the Shorts home on the evening of October 18 was admissible regardless of
    whether Mr. Robertson was implicated in the crime, it is unnecessary for me to
    consider the submission that he was a legitimate third party suspect.

(iii)

The admissibility of demeanour evidence and the jury instruction on that
    evidence

[51]

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

[52]

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

[53]

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

[54]

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

[55]

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

(iv)

The absence of any limiting instruction in respect of Officer Millers testimony

[56]

The
    defence claimed that the police quickly focused on the appellant as the
    perpetrator of the murder to the exclusion of all other suspects. To support
    this tunnel vision theory, defence counsel cross-examined Detective Miller
    with a view to demonstrating that he quickly decided, based on his impression
    of the appellant, that the appellant had murdered his wife.

[57]

In
    cross-examination, Detective Miller testified that, in his opinion, the
    appellant did not react to being questioned about Mrs. Shorts death in the way
    that someone who was innocent would have reacted. Detective Miller testified:

I believe he was faking. He didnt cry once and hed, hed have
    an outburst and then immediately start talking calm again which is very
    inconsistent with anything Ive seen in my career.

[58]

The
    defence was entitled, if so advised, to bring out the evidence that it did from
    Detective Miller to support its tunnel vision theory. The trial judge,
    however, had to make it clear to the jury that Detective Millers opinion about
    the appellants veracity was irrelevant to their deliberations. The trial judge
    also had to make it clear to the jury that Detective Millers opinions about
    the appellants demeanour and the inferences that could be drawn from that
    demeanour could not be used by the jury as evidence of the appellants guilt: see
R. v. Van
, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 73.

[59]

I
    think it was crucial that the limiting instructions described above be given. If
    the jury thought they could act on Detective Millers opinions, the case for
    the defence was in serious peril. Nor do I agree with the respondent that
    because the evidence was elicited by the defence, a limiting instruction was
    unnecessary. The risk that the jury would misuse the evidence remained
    regardless of which party elicited the evidence.

(v)

The admissibility of out-of-court statements

[60]

The
    Crown adduced evidence of many out-of-court statements, primarily oral and
    written statements allegedly made by Mrs. Short to various people, including to
    her divorce lawyer. The statements were subject to an admissibility ruling at
    the first trial:
R. v. Short
, 2012 ONSC 1514, 100 W.C.B. (2d) 898.  The
    appellant did not seek to revisit that ruling at the second trial:
Criminal
    Code
,
s. 653.1.

[61]

In
    addition to the out-of-court statements that were the subject of the ruling at
    the first trial, the Crown at the second trial, over the objection of the
    defence, was allowed to lead evidence of two statements made by Linda Short,
    Mrs. Shorts sister-in-law, to the police shortly after Mrs. Shorts death. Those
    statements described certain events that occurred on the afternoon of October
    18. Linda Short died before the trial.

[62]

The
    appellant argues that the statements of Linda Short should not have been
    admitted. The appellant also challenges the admissibility of some of the other
    out-of-court statements.

[63]

I
    do not propose to review the entirety of the evidentiary rulings. I will,
    however, make two observations. First, to the extent that the statements were
    tendered as admissible hearsay under the principled exception, for example, the
    statements of Linda Short, the admissibility of those statements may be
    affected by the judgment in
R. v. Bradshaw
, 2017 SCC 35, 349 C.C.C.
    (3d) 429. That decision, released after the trial, may impact the assessment of
    the threshold reliability of some of the out-court-statements.

[64]

My
    second observation is a more general one. The various out-of-court statements
    were offered for different purposes. Some were presented as evidence of the
    state of the marriage, Mrs. Shorts state of mind prior to her death, or her
    intended course of conduct. Other statements were offered as evidence of what
    the appellant said to Mrs. Short, and others in support of inferences concerning
    the appellants state of mind, his animus towards Mrs. Short, and his motive
    for killing her.

[65]

The
    admissibility of out-of-court statements depends, in part, on the purpose for
    which those statements are tendered. Before admissibility can be properly
    determined, the party tendering the evidence must clearly articulate the precise
    purpose for which the out-of-court statement is being tendered:
R. v. Bridgman
,
    2017 ONCA 940, at para. 32. Different parts of the same out-of-court statement
    may be offered for different evidentiary purposes requiring a different
    analysis and possibly leading to a different admissibility ruling.

[66]

I
    offer one example. The Crown led evidence of a statement Mrs. Short made to her
    divorce lawyer. In the statement, Mrs. Short said various things that were
    admissible to show her state of mind and her attitude toward the marriage. She
    also referred to a threat the appellant made to her. That part of the statement
    was relevant to Mrs. Shorts state of mind. However, it was apparently also admitted
    as evidence of a threat made by the appellant demonstrating his state of mind.

[67]

If
    at the new trial, the statement is offered again as evidence of Mrs. Shorts
    state of mind and evidence of the appellants animus and motive, the
    admissibility of the statement will have to be determined as it relates to each
    purpose. It does not follow that because the statement is admissible to show Mrs.
    Shorts state of mind, or intended course of conduct, that it is necessarily admissible
    as a threat made by the appellant showing his state of mind:
R. v. Foreman
(2002), 62 O.R. (3d) 204 (C.A.), at paras. 31-35.


IV



conclusion

[68]

I
    would allow the appeal, quash the conviction, and order a new trial on the
    charge of first degree murder.

Released: AH  JAN 02 2018

Doherty J.A.

I agree Alexandra Hoy
    A.C.J.O.

I agree K. Feldman
    J.A.


