



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hurd, 2014 ONCA 554

DATE: 20140721

DOCKET: C54593

Gillese, Rouleau and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Peter Hurd

Appellant

Paul Calarco, for the appellant

David Lepofsky, for the respondent

Heard: May 21, 2014

On appeal from the conviction entered by Justice John R.
    Sproat of the Superior Court of Justice, sitting with a jury, on April 19, 2011.

Pepall J.A.:

INTRODUCTION

[1]

The appellant, Christopher Peter Hurd, was convicted of the first degree
    murder of Loretta Lavalley in a trial before a judge and jury.  In an agreed
    statement of facts, the appellant admitted to sexually assaulting, forcibly
    confining, and causing the death of Ms. Lavalley.

[2]

According to the appellant, the Crown had an almost unanswerable
    case.  The only defence presented at trial was that the appellant lacked the
mens
    rea
for murder because he was intoxicated due to consumption of drugs and
    alcohol.  This defence would reduce a conviction for murder to one of manslaughter.

[3]

On appeal, the appellant submits that the trial was unfair because Crown
    counsel, Stephen Sherriff, engaged in an unfair, sarcastic, and demeaning
    cross-examination of the appellant and the suggestions made were reinforced in
    the Crowns jury address.  Furthermore, the trial judge failed to correct the
    resulting prejudice.  The appellant seeks a new trial.

[4]

The appellant also seeks leave to admit fresh evidence of alleged juror
    misconduct discovered after the trial.  The appellant submits that, at a
    minimum, this evidence deprived the appellant of the appearance of a fair
    trial.

BACKGROUND FACTS

[5]

On November 29, 2008, the appellant was drinking alcohol and smoking
    marijuana with three friends. Two of the friends described the appellant as
    being heavily intoxicated that night
[1]
.
    The appellant claims to have consumed magic mushrooms that evening, though this
    evidence was contested. Around 11:00 p.m., the appellant decided to drive a car
    stolen two days earlier. He started it with a screwdriver.  He rear-ended a
    friends car, drove the stolen car into a cemetery, and walked back to the
    scene of the car accident. A witness, Vanessa Boisse, lived across the street
    from the car accident.  She observed the appellant and testified that he seemed
    calm and she did not notice anything unusual about his movements or demeanour.

[6]

The police arrived and Officer Peter Danos interviewed the appellant,
    who claimed to be a bystander who was uninvolved in the accident. Officer Danos
    described the appellant as calm and articulate without any signs of
    impairment.  The appellant answered questions; Officer Danos believed him and
    let him go.

[7]

Officer Danos found the car in the cemetery. He opined that it would be
    difficult to park the car where he found it and would require a significant
    amount of maneuvering.

[8]

The victim, Loretta Lavalley, was 36 years of age.  She lived alone in a
    ground-floor apartment near the scene of the car accident. The appellant trekked
    through a fish pond to the rear of Ms. Lavalleys apartment building.  He then
    entered Ms. Lavalleys apartment through a sliding patio door that did not lock
    properly.

[9]

Over at least the next 18 minutes, he beat her, tied her hands behind her
    back, and sexually assaulted her.

[10]

At
    some point during the attack, Ms. Lavalley dialed 911 on her cellphone. She did
    not speak to the operator, but the recording, which lasted for 18 minutes,
    captured the sounds of the attack and voices. This included Ms. Lavalley
    pleading with the appellant to stop hurting her, as well as the appellant
    ordering Ms. Lavalley to perform sexual acts. The 911 operator called Ms.
    Lavalleys landline, but the call went unanswered. The police traced the call,
    pounded on the front door of the apartment, and forced themselves in. The
    appellant, whom they encountered nude, tried to fight them. He was Tasered approximately
    four times before he was finally subdued and arrested. Three officers testified
    that he maintained his coordination and balance. The police officers who
    arrested the appellant did not believe him to be intoxicated due to his conduct
    during the physical fight but admitted that they could not tell if he was under
    the influence of alcohol or drugs.  One, Officer Petroff, smelled alcohol on
    his breath. At the time of his arrest, his blood alcohol concentration was
    projected to have been between 156 and 199 milligrams per 100 millilitres. 
    (The legal limit over which it is an offence to operate a car is 80 milligrams
    in 100 millilitres.)

[11]

In
    the next room, officers found Ms. Lavalley lying naked from the waist down with
    her hands tied behind her back and exhibiting no vital signs. She was taken to
    the hospital where she was later pronounced dead.

[12]

A
    cellular phone was found tucked inside the fold of a green blanket in the
    middle of a pile of clothing and blankets on top of a chest beside the bed in
    Ms. Lavalleys room. This was the cellphone used to call the 911 dispatcher
    which recorded the attack on Ms. Lavalley.

[13]

The
    appellants jeans were found on the floor in the bedroom closet which was
    open.  The legs of the jeans were wet and muddy.

[14]

Paramedics
    attended at the crime scene.  The paramedics who treated the appellant
    initially assessed him as fully conscious, though lethargic and slow to respond
    to questions.  His pupils were observed as being unusually small in size.  At
    one point, his level of consciousness decreased substantially.  The paramedics
    did not recall smelling alcohol on his breath.

[15]

He
    was taken to the hospital, where his blood and urine were tested for the
    presence of drugs and alcohol. He told the paramedics that he had consumed
    ecstasy and Oxycontin but neither was detected in his blood. He did not mention
    magic mushrooms. His bodily fluids revealed the presence of marijuana, alcohol
    and psilocin, the metabolite of psilocybin, which is the psychoactive drug in
    magic mushrooms.  It was not possible to determine the timing of consumption,
    but the level of psilocin was consistent with consumption within 48 hours of
    the killing. At the hospital, before being admitted into care, he became
    aggressive and was sedated.

[16]

Hours
    later, he was transported by police cruiser to the police station.

[17]

When
    arrested and in hospital, he wore a ring on his finger that was not his own but
    which bore the DNA of Ms. Lavalley.  A friend of the victim identified the ring
    as possibly belonging to Ms. Lavalley.  The appellant did not know why he took
    the ring and could not recall taking it off of Ms. Lavalleys hand.  He
    admitted that it was not worth stealing.  When he arrived at the police
    station, the appellant was no longer wearing the ring.  The police found the
    ring under the back seat of the police cruiser that had transported the
    appellant to the police station.

[18]

At
    the police station, the appellant gave a video statement. He told the police
    that he knew and had interacted with Ms. Lavalley and that she had invited him
    into her apartment. The police could not find any evidence that the appellant
    and Ms. Lavalley knew each other.

[19]

Dr.
    Michael Pollanen, the Chief Forensic Pathologist for the Province of Ontario,
    testified for the Crown.  In his opinion, the cause of death was deprivation of
    oxygen to the brain due to strangulation.  However, he could not rule out death
    from blood in Ms. Lavalleys air passage as a contributing cause.

[20]

Dr.
    Joel Mayer, an expert in pharmacology and toxicology was called by the defence. 
    He testified that someone with the appellants blood alcohol content would be
    significantly or seriously intoxicated but he could not say whether the
    appellants projected blood alcohol level would have eliminated murder
mens
    rea
.  The appellant was a long-time alcohol and drug abuser and frequent
    users build up tolerance thereby reducing the effects of intoxicants.  He also
    testified that marijuana slows thinking and impairs thought, and psilocybin
    could produce hallucinations, but the combined effect of psilocybin, alcohol
    and marijuana is unknown. He testified that a person may not show outward signs
    of impairment but still have cognitive impairment. The expert agreed that it
    was not possible to say what level of intoxication would deprive a person of
    the knowledge that they were killing another person.

[21]

At
    trial, the Crown took the position that this was a clear and overwhelming case
    of first degree murder; the appellant had the intent for murder and this was
    not a case of manslaughter.  The Crown prosecutor argued that the appellant
    strangled Ms. Lavalley because he did not want the police to discover that he
    had brutally sexually assaulted her.  In support of this theory, the Crown noted:

·

The tape revealed that he was deliberately hurting Ms. Lavalley
    for 15 minutes until the strangulation began.

·

Ms. Lavalleys cellphone was found inside a blanket in the middle
    of a pile of bedding and it was likely that she was hiding the phone from the
    appellant, making it more likely that his conduct was intentional.

·

The appellant accelerated the murder in response to the presence
    of police.  Ms. Lavalley stopped screaming before the third of nine knocks on
    her apartment door by the police.

·

The reason the appellant put up a struggle with police was
    because he knew Ms. Lavalley was dead. For this reason, he never asked about
    the victims condition while being interrogated at the police station.

·

The appellants actions were strategic and calculated:

-

After
    the car accident, the appellant and his friend planned to drive the cars in
    opposite directions to avoid police;

-

The
    appellant tricked Officer Danos into believing that he was merely an innocent
    bystander;

-

In
    the video statement the appellant gave to police after the crime, he maintained
    that he knew Ms. Lavalley and that she had invited him into her apartment.  In
    cross-examination, he said he had never met Ms. Lavalley before.  He agreed
    that it was a lie that he had been invited into her premises.

·

At the time of his arrest, he was wearing a silver ring on his
    pinkie finger.  The Crown argued that the appellant took the ring as a trophy
    and tried to hide it in the cruiser.

·

While the appellant was probably too intoxicated to drive, he was
    not too intoxicated to form the intent for murder.  The officers who arrested
    the appellant testified as to his balance, co-ordination, and tenaciousness in
    the fight.  Officer Danos found the appellants car parked in a location in the
    cemetery that, in his view, required difficult manoeuvering in very poor
    lighting.  The appellant had parked the car in the cemetery about 20 minutes
    before the 911 call from Ms. Lavalley commenced.

[22]

At
    trial, the appellant took the position that he was intoxicated and therefore
    lacked the necessary
mens rea
for murder. He relied on the evidence of
    the pharmacology and toxicology expert, the evidence of his two friends and his
    own testimony. Additionally, he relied on a reference to drug consumption in
    the 911 recording and the evidence of Laura Grava, the appellants sometime
    spouse and mother of his child, who testified that he had a history of drug and
    alcohol abuse and that she had observed him in the week preceding the crime
    with a white powder, mushrooms and alcohol.  She described him as paranoid and
    incoherent when under the influence of drugs and alcohol. She testified that on
    the day of the killing, there were two 60 ounce bottles, one of rum and one of
    vodka, that were being consumed by the appellant and two others, one of whom
    testified that the appellant engaged in three hours of non-stop drinking. Another
    witness, Esha Rani, testified that she saw the appellant use marijuana that
    night. No one saw him take magic mushrooms that night or heard him saying he
    was doing so.

FRESH EVIDENCE

[23]

The
    fresh evidence includes a Globe and Mail newspaper website report on the case. 
    In the comments section, a person self-identifying as Shadsfan stated:

I was a juror on this trial and was pleased that we were all
    able to deliver the justice required within the frame of the law and get
    Lorettas family some decent closure on their sad loss.  At the trials end,
    one of her family called a quiet thank you to me as I left the jury box.  It
    was heart wrenching for me and although I could not respond, I would like her
    and her friends [and] family to know that Loretta was always in our thoughts as
    we deliberated on the proceedings and agreed on a first degree charge.  May
    Loretta rest in peace and may her family find solace in her memory.  I only
    wish their [
sic
] was a law that would have allowed us to go even
    further in this terrible case.  If we cant bring back the death penalty, we
    should at least increase the sentences.  RIP Loretta.

[24]

The
    Globe and Mail website provided for responses to comments.  Someone
    self-identifying as Kate and as a relative of Ms. Lavalley thanked the juror
    for the verdict.

[25]

Shadsfan
    replied, stating that [t]he Crown prosecutor Mr. Sherriff did a good job and
    made some interesting comments to the press which I must agree with.

[26]

The
    appellant also seeks to introduce news articles in which, after the verdict, Mr.
    Sherriff is reported as stating that the appellant was capable of killing again
    and the verdict had the potential to or did prevent more murders.

[27]

The
    appellant submits that this evidence, which was discovered after the verdict,
    reveals that a juror acted improperly.  The appellant argues that the juror
    failed to abide by his oath to try the case upon the merits and without favour
    by identifying with the deceased and her family; wishing the appellant could be
    executed; offering to meet with a relative of the deceased; and agreeing with
    inflammatory post-verdict comments made by the Crown that the convictions in
    the case had prevented further murders.  The appellant argues that this
    misconduct, at minimum, deprived the appellant of the appearance of a fair
    trial and demands the intervention of this court.

GROUND OF APPEAL

[28]

The appellant argues that the accused was deprived of a fair trial due
    to the inflammatory statements made by Crown counsel, Mr. Sherriff, in his
    opening address, cross-examination and closing address.  He asserts that Crown
    counsels conduct failed to meet the standards demanded of his office.  The
    appellant submits that although the prosecutions case appeared very strong, no
    conviction should rest upon a trial conducted in this manner.  Moreover, he
    submits that the jurors statements described in the fresh evidence also
    demonstrate the depth of improper conduct by the Crown.  He argues that the
    fresh evidence demonstrates an appearance of bias.  In these circumstances, he
    states that the verdict cannot stand and a new trial should be ordered.

DISCUSSION

[29]

I
    would dismiss the appeal.  In my view, while some of Mr. Sherriffs comments
    were ill-advised and somewhat provocative, the appellant was not deprived of a
    fair trial.

[30]

The
    appellant relies on numerous examples of statements made by the Crown in
    support of his position. Most of the alleged improprieties are thoroughly
    canvassed and answered in the Crowns factum.  Many are unfounded, overstated
    or immaterial. I have considered the instances both individually and cumulatively
    and have determined that it is unnecessary to address each example.  My
    approach here mirrors that adopted by Moldaver J.A., as he then was, in
R.
    v. Clark
(2004), 69 O.R. (3d) 321 (C.A.), at para. 122.  That said, I will
    expressly address the most critical allegations.

[31]

Moreover,
    I note that no fault may be found with the trial judges control and conduct of
    the trial or with his charge.  Indeed, the appellant was satisfied with the
    charge.

A.

Legal Principles

[32]

Crown
    prosecutors are advocates who are expected to act rigorously but fairly,
    persuasively but responsibly.  A criminal prosecution takes place within the
    parameters of an adversarial system.  As Moldaver J.A. emphasized in
Clark
,
    at para. 126, a murder prosecution is not a tea party: both sides [are]
    entitled to press their case and put their best foot forward.

[33]

On
    the other hand, as noted by this court in
R. v. Henderson
(1999), 44
    O.R. (3d) 628 (C.A.), at p. 638, Crown counsels role is unique given their
    role as ministers of justice.  Rand J. described the role, as far back as
    1954, in
R. v. Boucher
, [1955] S.C.R. 16, at pp. 23-24:

It cannot be over-emphasized that the purpose of a criminal
    prosecution is not to obtain a conviction; it is to lay before a jury what the
    Crown considers to be credible evidence relevant to what is alleged to be a
    crime. Counsel have a duty to see that all available legal proof of the facts
    is presented: it should be done firmly and pressed to its legitimate strength,
    but it must also be done fairly. The role of prosecutor excludes any notion of
    winning or losing; his function is a matter of public duty than which in civil
    life there can be none charged with greater personal responsibility. It is to
    be efficiently performed with an ingrained sense of the dignity, the
    seriousness and the justness of judicial proceedings.

[34]

While
    these principles are easy to state, Crown counsels dual role presents a
    certain tension and the application of the principles sometimes proves
    challenging.  Nonetheless, Crown counsel must never part company with fairness
    and integrity.  The fundamental question to be answered in each case is: has
    the accused been deprived of a fair trial?

B.

Allegations of impropriety

(1)

The Ring

[35]

In
    his opening address, Crown counsel took the position that the appellant took
    the victims ring as a trophy and that he later tried to hide it in the police
    cruiser.  Under cross-examination, the appellant testified that the ring was
    not his and he did not know why he took it.  He agreed that it did not look
    like it was worth stealing.  Crown counsel said that he was going to make an
    ugly suggestion to the appellant namely, that the ring was a trophy, and he questioned
    whether the appellant had any nicer version of this to offer up.

[36]

The
    defence objected on the grounds that the question could not be answered since
    the appellant had no recollection and that the question invited speculation and
    argument.  Defence counsel suggested that the Crown simply make the argument in
    his closing address to the jury: if Mr. Sherriff wants to make that argument
    hes more than welcome to make that argument.  Let him make that argument to
    the jury in his closing address. Mr. Sherriff responded that he was giving the
    appellant a fair chance to explain something before putting an ugly theory to
    the jury.

[37]

The
    trial judge ruled that the Crown was entitled to ask whether the appellant
    could think of any reason why he would have taken the ring.  However, questions
    suggesting that there was an onus on the appellant to come up with an
    explanation were to be avoided.  The Crown then asked the appellant if he could
    think of any reason why he would have taken the ring and the appellant replied
    that he could not.

[38]

In
    his closing address, the defence expressly raised the trophy argument, and stated
    that if the appellant had taken the ring as a trophy, he would have removed it
    when the police arrived.  Defence counsel offered that it was most likely that the
    appellant simply lost the ring in the police cruiser without realizing it.  In his
    closing address, Crown counsel submitted that the ring was a thoughtful trophy
    which showed that the appellant was thinking and therefore had the state of
    mind necessary for murder.

[39]

In
    his charge to the jury, the trial judge stated that the fact that the appellant
    left the ring in the police vehicle was not in itself relevant to ascertain
    whether he had murder
mens rea
.  This was because, as a matter of common
    sense, this conduct was equally consistent with his having committed
    manslaughter.  In addition, the fact that the appellant might have stolen the
    victims ring could not be considered to the extent that it indicated bad
    character.  He then referred to the ring again when summarizing the appellants
    testimony. The trial judge did not refer to the Crowns trophy argument.

[40]

The
    defence did not object to the Crowns closing argument, nor did he seek any
    instruction from the trial judge.

[41]

The
    appellant argues that the Crowns line of questioning portrayed the appellant
    as a twisted psychotic.  This attacked the appellants disposition and
    prejudiced the defence.  Moreover, there was no correction by the trial judge. 
    Additionally, the appellant submits that by his questioning, the Crown also
    suggested that the appellant bore the onus to refute this theory.

[42]

In
    my view, on the basis of the record, it was open to the Crown to invite an
    inference that the appellant took the ring as a trophy to assist in showing
    that he had murder
mens rea
.  Although not determinative, neither of
    the two defence lawyers at trial ever argued that this was an impermissible
    Crown argument or inference.  Nor did they argue that a mistrial was required
    in response to this issue. Indeed, the Crown was invited to address this
    argument in its closing submissions.

[43]

The
    defence was able to answer the theory and in fact did address the trophy
    argument in its own address to the jury.  The trial judge did not make any
    reference to the Crowns trophy argument and correctly instructed the jury on
    the burden of proof.  In any event, the questioning did not impermissibly shift
    the burden of proof.  Lastly, the judges instructions made it clear that
    lawyers comments, including questions asked of witnesses, do not constitute
    evidence unless agreed to by a witness.

(2)

Causing Pain to Ms. Lavalley

[44]

Under
    cross-examination, the appellant admitted to hitting the victim and hearing
    sounds of pain, yet claimed that he did not know she was hurt and did not hear
    her repeatedly asking him to stop or telling him that she was hurt. Crown
    counsel suggested to the appellant that he must have enjoyed hurting Ms.
    Lavalley.  The appellant responded that he did not and that he did not know
    what he was doing.

[45]

In
    his closing address, Crown counsel argued that the appellant deliberately
    inflicted pain on the victim in spite of her protests and that this constituted
    proof that he knew what he was doing.  She suffered a beating that far exceeded
    what was needed to compel her to submit to the sexual assault.  He stated:

This crime is foreign to you and it appears senseless to you
    for good reason, but dont conclude that it was senseless for him. He inflicted
    so much pain and suffering for so long he must have been getting something out
    of it in a twisted way or he would have left. You will not be able to
    understand that. It doesnt mean that he didnt want what he was doing.  You
    cant hope to understand what satisfaction he wanted.  Did he want control,
    power, dominance?  Did he get pleasure out of her pain? Who knows? And it
    doesnt matter.  It does not matter.  All that matters is, did he intend to
    kill her not why did he intend to kill her.

[46]

The
    trial judge provided the standard instruction that what lawyers say is not
    evidence and that the jury should not engage in bad character or propensity
    reasoning.  In addition, the trial judge summarized the Crowns position which
    included the allegation that he was intentionally hurting the victim which, in
    that sense, revealed intentional conduct.

[47]

The
    appellant submits that the cross-examination questions and closing address suggested
    that the appellant enjoyed hurting the deceased, portrayed him as a sadist, was
    not based on evidence and was designed to prejudice the appellant.

[48]

Again,
    in my view, it was open to the Crown to suggest that the appellant enjoyed
    hurting Ms. Lavalley.  There was an evidentiary basis for the question.  The
    beating suffered by Ms. Lavalley far exceeded the force necessary to submit to
    a sexual assault. The attack lasted at least 18 minutes.  As so clearly evidenced
    by the 911 recording, Ms. Lavalley experienced extreme pain and made repeated
    pleas that the appellant stop.  The appellant admitted that he heard her sounds
    of pain.  Since the jury heard the 911 recording, it was an inference the jury could
    have drawn even if the Crown had said nothing.

[49]

While
    Crown counsels wording might not have been ideal, this was a fair line of
    questioning.  The line of questions was relevant to the appellants intention
    and the Crown gave the appellant an opportunity to respond to the allegation.

[50]

The
    Crowns statement that the jury could not hope to understand the appellants
    satisfaction was not designed to portray the appellant as a sadist. Rather, it
    was designed to refute a possible inference that due to the aberrant and alien
    nature of the crime, the appellant must not have intended his actions. It was
    open to the Crown to deflect this possible inference by cautioning the jury
    that an inability to relate to the appellants actions did not mean that there
    was no murder
mens rea
.

(3)

The Appellants Struggle with the Police

[51]

In
    his examination-in-chief, the appellant admitted that he fought with the police
    as they tried to get into the apartment.  The Crown in cross-examination asked
    whether the appellant knew he was delaying the police from rescuing the victim
    by struggling with them.  The Crown then proceeded to suggest an alternative,
    namely that the appellant already knew the victim was dead when struggling with
    the police and the reason he struggled was to avoid being captured.  The
    precise exchange was as follows:

Q.  Now, I am not going to suggest to you that you are
    struggling with the police so that [the victim]s going to die.  Im not going
    to suggest that.  That would be very cruel.  Im not going to suggest that.

A.  Then why would you say it?

Q.  Well, no  because  Im going to suggest to you another
    alternative.  You know shes dead.  You already know shes dead and therefore
    its all about you.  Its all about you getting out of there.  You dont say to
    the police, Help her.  Go there.  Theres a lady in the room.  You have left
    her for dead.  Thats my suggestion.

A. I dont believe that.  I was not aware of any of that.

[52]

The
    appellant submits that despite the Crowns flimsy cover, the Crown was in
    fact improperly suggesting that the appellant, whom he portrayed as a
    psychotic, sadistic killer, was doing everything he could to ensure the victim
    expired by preventing any attempt to rescue her.

[53]

The
    statements made by the Crown by way of preamble to his questions ought not to
    have been made.  While the cross-examination removed the inference that the
    appellant was struggling with the police so that Ms. Lavalley would die, the
    statements were largely unnecessary.  That said, from the context of the trial
    as a whole, it is clear that the Crowns position throughout was not that the
    appellant was trying to ensure that the victim died, but rather that the
    appellant knew the victim was dead before fighting police. This position was
    consistent with both the Crowns closing address and the trial judges summary
    of the theory of the Crown case.  The cross-examination  did not seek to
    advance the inference that the appellant was struggling with the police so that
    Ms. Lavalley would die.  The statements made by the Crown by way of preamble to
    his question ought not to have been made but in context it did not prejudice
    the appellant.

[54]

Moreover,
    in the part of the jury charge that instructed the jury on the state of mind
    required for a finding of murder, the trial judge noted that the jury may
    consider the motive suggested by the Crown, namely to commit sexual assault
    and then to kill to avoid detection. The trial judge also noted the defences
    argument that the appellant lacked any motive to kill, and that he was heavily
    under the influence of drugs and alcohol. Again, while not determinative, it is
    notable that the defence did not object.

(4)

Ms. Lavalleys Photograph

[55]

The
    parties agreed to admit a photo of Ms. Lavalley into evidence. In
    examination-in-chief, the appellant testified that although he initially told the
    police that he knew the victim, after seeing pictures of her, he discovered he
    did not know her.

[56]

During
    the appellants cross-examination, the Crown placed a picture of Ms. Lavalley
    on the screen.  It was in view for a period of about eight minutes during the
    Crowns questioning on the appellants knowledge of Ms. Lavalley prior to the
    offence.  The defence objected to the Crowns line of questioning and asked that
    the photograph be taken down.  The trial judge stated that he did not think
    that the victims photograph should be left on display any longer.

[57]

There
    was no basis for appellate attack on the Crowns conduct in these
    circumstances. The photograph was clearly relevant to the questions going to
    the appellants prior knowledge of the victim given the appellants own
    evidence in chief and was taken down after approximately eight minutes.

(5)

Knowledge of Ms. Lavalley

[58]

In
    a statement given to the police on the night of the killing, the appellant told
    the police that he knew the victim and had hung out with her in the past. As
    mentioned earlier, at trial he testified in-chief that he did not know her. In
    cross-examination, the Crown said: So you kept on telling them until this
    trial, until this trial, you keep on telling the police that you knew this
    lady. The defence objected on the basis that Mr. Sherriff was alleging that
    the appellant was tailoring his evidence to fit the disclosure, and that this
    allegation was impermissible.

[59]

The
    trial judge agreed.  The Crown was permitted to continue with the
    cross-examination on the prior inconsistent statement without suggesting in any
    way that if the appellants testimony was true, he should have come forward
    earlier.

[60]

The
    appellant now submits that the Crowns comments were misleading because they
    suggested that there were multiple false statements by the accused that he knew
    the deceased whereas in fact, there was simply one statement to the police.

[61]

I
    reject this submission.  Although the original question may have suggested
    multiple false statements, after the objection the Crown only referred to one
    police statement and in any event, there was no objection on this basis by
    defence counsel. Moreover, the trial judge gave both a mid-trial instruction
    and a further instruction in his final charge on the actual basis for the
    objection. There was no prejudice caused to the appellant.

(6)

Hiding of the cellphone in the blanket

[62]

At
    some point during the attack, Ms. Lavalley dialed 911 on her cellphone.  One of
    the investigating officers testified that the cellphone was found in the fold
    of a green blanket on top of a chest in the apartment.

[63]

The
    appellant argues that Crown counsel misstated the evidence when he suggested,
    in cross-examination, that Ms. Lavalley had the presence of mind to hide the cellphone
    under a blanket when there was no such evidence. The appellant submits that
    there was no evidence that Ms. Lavalley hid the phone at all, and that this
    misstatement left the jury with the impression that the appellants actions
    were calculated and that the deceased had to take steps to hide the phone or
    the appellant would have terminated the call to prevent interference with his
    murderous plan.  If the phone had not been noticed by the appellant, this would
    be consistent with unplanned or spontaneous conduct which would suggest the absence
    of a plan to kill.

[64]

At
    trial, when defence counsel objected to the Crowns statement, he conceded that
    while the Crown could argue in closing that the victim put the cellphone in the
    blanket, this theory should not be put to the appellant in cross-examination. 
    The trial judge ruled that the Crown could ask how the cellphone got into the
    blanket but stated that there was no need to open this question by saying that
    the victim had the presence of mind to put it there.  After the jury
    returned, the Crown asked the appellant if he had any memory of seeing the
    phone or of the victim or himself putting it there or anything about the
    phone.  The appellant responded that he could not remember a phone.

[65]

In
    his opening address to the jury, the Crown did not urge upon the jury that the
    victim had the presence of mind to put the phone in the blanket. However, the
    Crown did argue that Ms. Lavalley had tucked the cellphone into a blanket in
    the bedroom.  The defence did not object to this.

[66]

The
    trial judges charge to the jury referred to the 911 recording but did not
    refer to the cellphones location or how it arrived there.

[67]

In
    my view, it was open to the Crown to ask the jury to infer that the victim hid
    the cellphone given that she had used it to call 911 and given that one of the
    investigating officers testified that the cellphone was found in the fold of a
    green blanket on top of a chest in the apartment. There was no objection by
    defence counsel to the Crowns opening address and it was conceded that the
    Crown could invite this inference in its closing address.

(7)

Travel through water

[68]

The
    agreed statement of facts stated that the appellants lower clothing was wet
    when found. It also indicated that the morning after the killing, a community
    resident noticed that the ice on the pond in his backyard was broken. In his closing,
    defence counsel conceded that the appellant likely went through a pond the
    night of the killing.

[69]

In
    cross-examination, the appellant admitted to being aware that police have
    tracking dogs.  The Crown then suggested that going cross country, stepping
    into a pond which has got water in it, icy water, would help throw tracking
    dogs off their scent. In his closing address, the Crown argued that the
    appellants conduct in avoiding the police demonstrated that he was making
    deliberate, thoughtful decisions the night of the killing.

[70]

The
    appellant submits that it was not open to the Crown to suggest that he deliberately
    travelled through water to impede police dogs from trailing him:  there was no
    evidence of police dogs being used and this suggestion was improper because it portrayed
    the appellant as conscious and calculating.

[71]

I
    do not accept this submission. The absence of evidence that the police actually
    used dogs that night is irrelevant.  The Crowns question simply went to whether
    the appellants conduct was purposeful.  Furthermore, the defence closing
    address used the fact that the appellant likely went through the pond as
    additional evidence of intoxication.  It was open to the Crown to advance a
    different inference.

(8)

Ms. Boisse

[72]

The
    appellant complains that in cross-examination the Crown invited the appellant
    to comment on the credit of Ms. Boisse, a witness who had identified him as
    being involved in the car accident that occurred prior to the killing.  He
    submits that the appellants opinion on the evidence of another witness is
    irrelevant.

[73]

The
    trial judge instructed the Crown to refrain from asking the appellant to
    comment on the credibility or correctness of other witnesses evidence.  In his
    jury charge, the trial judge instructed the jury that the appellants view of
    other witnesses evidence was irrelevant.

[74]

This
    direction corrected any impropriety.

C.

Fresh Evidence

[75]

The
    fresh evidence, even if assumed to be accurate, does not prove Crown misconduct
    nor that the juror gave the defence short shrift as alleged by the appellant. 
    First, it must be recalled that the appellant admitted to sexually assaulting,
    forcibly confining, and causing the death of Ms. Lavalley.  Secondly, there is
    no direct evidence of Mr. Sherriffs post-sentence public statement and in any
    event by that time, the jury had been discharged so it could not have affected
    its deliberations.  Lastly, none of the statements made by the juror vitiated
    the verdict.  There was no compromise of the integrity of the trial.

CONCLUSION

[76]

In
    my view, the conduct of Crown counsel examined in the context of the entire
    trial cannot be said to have resulted in the deprivation of a fair trial. 
    While the behaviour of the Crown could not be characterized as model in nature,
    I am not persuaded that the appellant had an unfair trial.

[77]

Accordingly,
    I would dismiss the appeal and the motion to admit fresh evidence.

Released:

JUL 21 2014                                    S.E.
    Pepall J.A.

EEG                                                I
    agree E.E. Gillese J.A.

I
    agree Paul Rouleau J.A.





[1]
This trial testimony was somewhat inconsistent with previous statements they
    had made to the police.


