



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Province, 2019 ONCA 638

DATE: 20190731

DOCKET: C62575

Watt, Huscroft and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Province

Appellant

Anil K. Kapoor and Dana C. Achtemichuk, for the
    appellant

Jamie Klukach and Dominic Bell, for the respondent

Heard: January 30, 2019

On appeal from the conviction entered by Justice Bruce G.
    Thomas of the Superior Court of Justice, sitting with a jury, on December 1,
    2015.

Watt J.A.:

[1]

In 2010, James Province (the appellant) and Joanne Underhill (the
    deceased) separated after 21 years of marriage. In its early stages, the
    separation was amicable. The couple continued to live together with their three
    children. They tried to resolve their family law issues without lawyers.

[2]

Over time, things changed. Hostility replaced amicability. Financial
    issues became a sore point. The deceased moved out with the couples younger
    daughter. Then came the lawyers. And more lawyers.

[3]

The deceased told her friends and co-workers about her fears of the
    appellant, of what he might do. After moving out, she took precautions to
    ensure that the appellant did not know where she lived. The appellant also
    complained. He said he was not being treated fairly. His support payments were
    too high.

[4]

Early one morning, the appellant got out of bed. He dressed in dark
    clothing. He put a knife in his backpack, got in his car and drove over to the
    area where the deceased lived. After parking a short distance away from the
    deceaseds home, the appellant walked towards the house, his backpack and knife
    with him.

[5]

The deceaseds home was in darkness. Using a key he had surreptitiously
    obtained, the appellant entered the house. Once inside, he walked to the
    deceaseds bedroom. In a brief struggle, the appellant stabbed the deceased
    three times, then left the house trying to lock the door behind him. He drove
    home where he waited for police to arrest him.

[6]

A jury found the appellant guilty of first degree murder. He appeals.
    These reasons explain my conclusion that his appeal fails and should be
    dismissed.

THE BACKGROUND

[7]

A brief canvass of some of the circumstances preceding and concluding
    with the deceaseds death will furnish the background necessary to understand
    the basis upon which the case was advanced by the parties at trial. To the
    extent that further detail is required to appreciate the grounds of appeal
    advanced and my assessment of them, it appears in the discussion of the ground
    of appeal to which it relates.

[8]

The essential narrative as it unfolded at trial was largely
    uncontroversial, although the parties differed significantly on the inferences
    and conclusions to be drawn from it.

The Early Years

[9]

In 2010, the appellant and deceased had been married for 21 years. They
    had three children. The family lived together.

The Initial Separation

[10]

In
    early 2010, the appellant and deceased decided to separate. Despite this
    decision, they continued to live together in the same house with their
    children. The separation was amicable. They tried to settle their family law
    issues without the intervention and expense of lawyers.

[11]

The
    appellant and deceased participated in private mediation. The deceased
    concluded that private mediation was not working. She retained a lawyer.

The Figurines

[12]

The
    deceased had a valuable collection of Royal Doulton figurines. In July of 2010,
    the appellant discovered that the deceased had removed this collection from the
    home they had occupied together. The appellant got upset. Two events annoyed
    him. The deceased had retained a lawyer and she had removed the figurines, which
    the appellant regarded as an attempt by the deceased to hide assets, thus to
    remove them from any potential property settlement.

The Retaliation

[13]

In
    retaliation for the deceaseds removal of her collection of figurines, the
    appellant gathered up several more of the deceaseds collectibles, put them in
    a box and smashed them. His purpose in doing so, he said at trial, was not to
    scare the deceased, but rather to ensure that she felt some of the pain that he
    was feeling as a result of their ongoing matrimonial issues.

The Final Separation

[14]

When
    the deceased discovered that the appellant smashed her collectibles, she and
    their younger daughter never returned to live in the family home. The couple
    and family never lived together again. The deceased and her younger daughter lived
    for a time at a womens shelter, then at the home of a friend. She kept her
    location secret and did not tell her friends or her older children where she
    lived. Later, she, her son and younger daughter moved into a home, which they
    rented.

The Family Law Litigation

[15]

The
    family law litigation between the appellant and deceased began around mid-2010
    and continued into 2012. The proceedings were hard fought, especially over
    financial issues. Each of the parties retained and discharged lawyers.

The Deceaseds Fears

[16]

Throughout
    the separation and the litigation that followed, the deceased expressed
    concerns to her friends, co-workers and her children about the appellants
    behaviour. With her supervisors, she devised a plan to ensure her safety at
    work should the appellant appear there.

[17]

A
    police officer lived across the road from the deceaseds new home. She asked
    the officer to keep a watchful eye on her house for her safety. The deceased
    contacted Victim Services.

[18]

She
    described the appellant as very angry. She wondered aloud to others whether he
    would ever hurt her. She told a friend that she was scared and uncertain about
    what the appellant might do after he had an outburst when she attended the
    funeral of his step-sister. She continued to express these fears until one or
    two weeks prior to her death.

The Appellants State

[19]

During
    2011 and 2012, the family law litigation between the appellant and deceased
    continued unabated. Rancour was its predominant characteristic. The appellant
    bristled at the amounts he was required to pay for spousal and child support.
    He complained to his co-workers and his children about the deceaseds excessive
    financial demands and warned the deceased that she was not going to get his
    money.

[20]

In
    early 2012, the appellant was injured playing hockey. He broke his arm. At
    first, he took sick leave. Then, he went on short-term disability. He stopped
    working in May or early June of 2012. By mid-August 2012, his base pay was
    reduced to 66 percent.

The Motion to Reduce Support

[21]

About
    two weeks before the death of the deceased, the appellant tried to serve a
    motion to reduce his support payments on the deceaseds lawyer. The motion was
    returnable the following week. The lawyer refused to accept service. The motion
    did not proceed. This incensed the appellant.

[22]

The
    appellants older daughter described her father as not being himself during
    this time period. He appeared defeated. He just sat and watched television.

The Drop-off Incident

[23]

On
    August 28, 2012, the deceased dropped off the couples younger daughter for an
    arranged visit with the appellant, who pressed the deceased to fire her lawyer
    and agree to mediation with him alone. He also wanted his support payments
    reduced.

[24]

The
    deceased rejected the appellants entreaties. The appellant believed she would
    not meet with him in any public place to continue the discussion. The deceased
    complained to others that the appellant raised his voice as he made his demands
    and invaded her personal space. The appellant disputed this characterization of
    their interaction.

The Early Morning of September 7, 2012

[25]

The
    appellant could not sleep early in the morning of September 7, 2012. He got up at
    about 4:00 a.m. He was wound up. He wanted to do something after having
    repeatedly failed to reduce his support payments.

[26]

The
    appellant got out of bed and put on dark clothing: black shoes, sweat pants, a
    nylon jacket and a blue t-shirt. He put on a baseball cap, although he was not
    in the habit of wearing one. He also picked up a knife from the kitchen and put
    it in a backpack to take with him. He testified that he took the knife to have
    as a deterrent in case the deceaseds boyfriend was at her home when he arrived
    there.

[27]

The
    appellant drove to the deceaseds neighbourhood. He parked about a quarter-mile
    from her house and walked there. He did not look to see whether the deceaseds
    boyfriends motorcycle or vehicle was parked outside the house before he used a
    key he had surreptitiously obtained and duplicated to enter. The house was in
    darkness.

[28]

The
    appellant took the knife out of his backpack and put it in his pocket. He walked
    silently through the house. As he passed his younger daughters room, he closed
    the door. As he approached the deceaseds room, he took the knife out of his
    pocket and held it in his right hand down by his side. He pushed the bedroom
    door open.

The Stabbing

[29]

The
    deceased was alone in her bed. According to the appellant, she awakened and
    asked [w]hats going on? The appellant said that he responded [b]e quiet, I
    just want to talk. He approached the deceased.

[30]

In
    his evidence at trial, the appellant claimed that as he approached the bed, he
    tripped, stumbled and fell to the floor beside the bed. As he put his hand on
    the side of the bed to assist him to regain his standing position, the deceased,
    who had stood up on the bed upon hearing the appellants voice, jumped off. She
    fell against the appellants arm. Both fell towards the wall.

[31]

The
    appellant realized that the deceased was dead. He took the knife, left the room
    and closed the bedroom door. He put the knife in his pocket, picked up his
    backpack and left the house, closing the door and fidgeting with the deadbolt as
    he did so. He shoved the knife into a garbage bag left outside on a
    neighbouring property, walked back to his car and then drove home. His son,
    awakened in his basement room at the deceaseds house by a noise from upstairs,
    got up, got into his mothers car and saw the appellant walking away at a brisk
    pace. He returned home, found his mothers body and called 911.

The Cause of Death

[32]

The
    deceased suffered two stab wounds and one incised wound to her left knee. Each
    had been inflicted prior to death. She had also received several blunt force
    injuries, mostly in the form of abrasions.

[33]

The
    fatal stab wound was to the left side of the deceaseds chest. The wound
    penetrated to a distance of approximately 15.5 centimetres. It passed through
    the chest cavity, left lung and heart and entered the right lung. The wound was
    linear; that is to say, the knife had been removed along the same path it
    followed on entry. The wound track was consistent with infliction when the
    deceased was not moving.

[34]

The
    second-most serious stab wound entered the deceaseds abdomen in a right to
    left direction.

[35]

No
    defensive wounds were visible on the deceaseds hands.

The Positions of the Parties at Trial

[36]

The
    primary position of the Crown at trial was that the unlawful killing of the
    deceased was a planned and deliberate first degree murder. The Crown also
    contended that the appellant murdered the deceased while committing criminal
    harassment, and thus was guilty of first degree murder under s. 231(6) of the
Criminal
    Code
, R.S.C. 1985, c. C-46
.

[37]

The
    defence position was that the appellant went to the deceaseds home to persuade
    her to settle their family law disputes, not to harm or kill her. He had no
    motive to do so. Her death was a tragic accident.

THE GROUNDS OF APPEAL

[38]

The
    appellant advances three grounds of appeal. The first has to do with the
    selection of the jury, the second and third with the charge to the jury.

[39]

As I
    would paraphrase the appellants complaints, they are that the trial judge
    erred:

i.

in
    substituting a second pair of static triers to determine the truth of the
    challenge for cause on the second day of jury selection, in the absence of any
    statutory authority to do so, which resulted in the jury being improperly
    constituted;

ii.

in leaving
    s. 231(6) of the
Criminal Code
to the jury as a basis upon which the
    appellant could be found guilty of first degree murder; and

iii.

in failing to
    properly instruct the jury on the essential elements of constructive first
    degree murder under s. 231(6).

Ground #1: The Jury Selection Issue

[40]

Some
    further background is necessary to understand this ground and how I propose to
    resolve it.

The Opening Instructions to the Jury Panel

[41]

In
    his opening instructions to the jury panel, the trial judge explained that the
    parties would be selecting 14 jurors and 2 alternates for a trial estimated to
    take up to 4 weeks to complete. The judge told the panel in plain language that
    prospective jurors would be challenged for cause based on pre-trial publicity.

[42]

The
    trial judge then explained how the challenge for cause process would work. Two
    persons from the panel would be selected as triers of the challenge. They would
    decide on the acceptability of each prospective juror. They would fulfill this
    role until the entire jury was selected, but would not become jurors
    themselves.

The Selection of the Triers

[43]

The
    numbers of two jury panel members were drawn to serve as triers. One was
    excused because his son was a member of the investigating police force. Another
    panel members card was selected. These two jury panel members became the
    triers of the challenge for cause. The trial judge instructed them on their duties.

[44]

The
    trial judge divided the remainder of the jury panel into groups of 12 for
    selection purposes.

The First Day of Jury Selection

[45]

The
    selection of the jury for trial continued throughout the first day. The triers
    participated. Their decisions about each prospective juror who was challenged
    for cause were unanimous. At the conclusion of the sittings on that day, 13
    jurors had been selected. This meant that three more jurors (one additional
    juror and two alternates) were required to complete the selection process.

The Discharge of the Triers

[46]

At
    the conclusion of the sittings on the first day of jury selection, the trial
    judge addressed the triers. He said:

Okay, so we have exhausted our groups for today. Ladies, as
    triers, I want to thank you for your service today, okay? Im going to let you
    go now and youre free to go. You have certainly done everything weve asked of
    you, all right? And we will carry on tomorrow to complete our jury selection
    but we wont do it with you, okay?

[47]

Before
    he discharged the triers, the trial judge did not advise counsel of his
    intention or reason for doing so. He did not invite or receive submissions on
    the issue. Neither the Crown nor defence counsel, none of whom are counsel on
    appeal, objected to the discharge of the triers.

The Second Day of Jury Selection

[48]

The
    following day, the appellant was re-arraigned before another jury panel. The
    trial judge repeated the instructions he had given to the first panel,
    including what he said about the challenge for cause and the procedure that
    would be followed to decide it. Two triers were selected, the remainder of the
    panel divided into groups of 12 and selection continued until 12 jurors, 2
    additional jurors and 2 alternates had been chosen.

[49]

On
    this day, the same triers determined the acceptability of every juror who was
    challenged for cause. In each case, their verdict was unanimous.

The Replacement of a Juror

[50]

After
    16 jurors had been selected, the trial judge reviewed notes he had received
    from 2 jurors who had been chosen on the first day of selection. Each, for
    different reasons, sought to be relieved of their responsibility as trial
    jurors. The trial judge questioned each and invited submissions from counsel.
    He discharged one juror and replaced that juror with another who had been
    selected on the first day of jury selection. The second juror who had sent the
    trial judge a note remained on the jury.

[51]

The
    appellant was given in charge of the jury, which consisted of 14 jurors.

The Arguments on Appeal

[52]

The
    appellant contends that the jury selection process was fatally flawed when, for
    no apparent reason, the trial judge discharged the original triers and
    continued the selection process the following day with two new triers.

[53]

The
    combined effect of ss. 640(2.1) and (2.2) of the
Criminal Code
, the
    appellant says, is to require the
same
set of triers to determine
all
challenges for cause. This is, after all, the very purpose of the static trier
    scheme. The only exception, inapplicable here, permits discharge of the triers
    and selection of new triers in the event of disagreement over the acceptability
    of a prospective juror, pursuant to s. 640(4).

[54]

The
    appellant submits that what occurred here upset the carefully crafted statutory
    scheme for determining the acceptability of prospective jurors and assigned it
    arbitrarily, as it were, to another adjudicator. The provisions in issue, ss.
    640(2.1) and (2.2), grant exclusive authority for determining the acceptability
    of prospective jurors to two triers and, subject to the exception in subsection
    (4), to only two triers. The same two triers. This ensures a fair trial by an
    impartial jury.

[55]

What
    happened here, the appellant continues, is analogous to what occurred in
R.
    v. W.V.
, 2007 ONCA 546, leave to appeal refused, [2007] S.C.C.A. No. 615
    and fatally flawed those proceedings. The assignment of the decision-making
    authority to a second set of triers lacked statutory authority. As in
W.V.
,
    the lack of objection by trial counsel cannot fill the jurisdictional deficit.

[56]

The
    appellant accepts that, despite the statutory nature of the scheme for
    determining the acceptability of prospective jurors challenged for cause, a
    trial judge has inherent jurisdiction to control the jury selection process to
    ensure its fairness on all sides. But this inherent jurisdiction is not
    unlimited. It does not permit an unprincipled departure from the statutory
    scheme or allow contravention or alteration of the statutory procedure.

[57]

The
    appellant also acknowledges that some errors occurring in the jury selection
    process may be forgiven by the application of various provisos, some limited to
    defects in the empanelling of juries, others of more general import. But none
    of those extend appellate forgiveness for what happened here. Not s. 670, because
    what happened deprived the appellant of his right to a trial by a lawfully
    constituted jury. The same holds true for s. 671. And s. 686(1)(b)(iv) is
    unavailing because the court lacked jurisdiction to try the appellant.

[58]

The
    respondent advances two alternative arguments in opposition to the appellants
    claim of fatal error.

[59]

First,
    the respondent says, a trial judge has a wide discretion, sometimes
    characterized as an inherent jurisdiction, to control the jury selection
    process, ensure it is fair to all sides and promote impartiality in the jury
    selected. This authority the judge may exercise even in statutorily-regulated
    areas, provided what is done does not contravene any statutory provision.

[60]

In
    this case, the respondent continues, the trial judge was alive to the mandates
    of s. 640(2.2). He told the two static triers who were chosen on the first day
    that they would determine juror acceptability until the full jury was selected.
    It is a reasonable inference that at the end of a long day of jury selection,
    the trial judge thought it undesirable and unnecessary to subject the triers to
    the inconvenience of returning the second day to choose the remaining
    additional juror and two alternates.

[61]

The
    respondent submits that the statutory provisions governing jury selection should
    be interpreted in a way that favours preservation of a broad discretion in the
    presiding judge to manage the process fairly. More specifically, that discretion
    ought to encompass the authority to discharge static triers for reasons other
    than their inability to agree on the acceptability of a prospective juror as s.
    640(4) permits. The language of subsection (2.2) does not expressly prohibit
    the availability of such a discretion.

[62]

In
    this case, the respondent concludes, the discretion or inherent jurisdiction is
    sufficiently expansive to permit discharge out of concern for the fair
    treatment of the static triers. The substitution of new triers advanced the overarching
    objectives of a fair process of selection and the empanelling of an impartial
    jury.

[63]

Second,
    and in the alternative, the respondent invokes the curative proviso of s.
    686(1)(b)(iv) to save harmless any error that might be found to have occurred
    in the substitution of the static triers.

[64]

The
    respondent characterizes s. 686(1)(b)(iv) as available to hold harmless even serious
    errors that result in a loss of jurisdiction, provided the error does not
    prejudice the accused or result in fundamental defects in the constitution of
    the jury such that trial jurisdiction is never obtained. The respondent also
    accepts that this proviso does not forgive decisions that contravene express
    statutory provisions or breach fundamental rights.

[65]

On
    the other hand, the respondent points out, s. 686(1)(b)(iv) has been applied
    where trial judges have permitted or directed procedural steps that the
Criminal
    Code
neither permits nor prohibits. The withdrawal of challenges for
    cause. Pre-vetting of the jury panel. The prejudice inquiry, which s.
    686(1)(b)(iv) directs, requires a reviewing court to consider both
actual
prejudice to the accused and prejudice to the administration of justice on the
    one hand, and any benefit the error may have conferred to the accused and the
    absence of objection, on the other.
[1]


[66]

Here, the respondent concludes, what occurred was a minor
    procedural irregularity. The appellant was not denied any fundamental right to
    choose the method by which his challenges for cause would be tried. He applied
    for static triers. He got static triers. Changing the static triers on the
    second day of jury selection did not undermine the impartiality of the
    selection process or of the jury selected. What was done was not expressly
    prohibited by the
Criminal Code
. This is not a case in which trial
    jurisdiction was never obtained. The trial started with a lawfully constituted
    jury. No objection was taken at trial, perhaps the most accurate measuring
    stick by which to determine whether the appellant was prejudiced by what
    occurred.

The Governing Principles

[67]

Several
    principles inform the decision on this ground of appeal. Some apply to the jury
    selection process as a whole, others to the challenge for cause aspect of that
    process. Yet others define the boundaries within which procedural errors will
    not cause a trial verdict to be set aside.

[68]

First,
    as a matter of general principle, it is well established that a trial judge has
    an inherent jurisdiction, to control the jury selection process involving
    challenges for cause. This discretion is exercised to prevent an abuse of the
    selection process and to ensure fairness to the parties, as well as to the
    prospective jurors:
R. v. Moore-McFarlane
(2001), 160 C.C.C. (3d) 493
    (Ont. C.A.), at para. 85;
R. v. Noureddine
, 2015 ONCA 770, 332 C.C.C.
    (3d) 114, at para. 38;
R. v. Grant
, 2016 ONCA 639, 342 C.C.C. (3d)
    514, at para. 11;
R. v. Murray
, 2017 ONCA 393, 347 C.C.C. (3d) 529, at
    para. 47;
R. v. Husbands
, 2017 ONCA 607, 353 C.C.C. (3d) 317, at para.
    31, leave to appeal refused, [2017] S.C.C.A. No. 364;
R. v. Riley
,
    2017 ONCA 650, 351 C.C.C. (3d) 223, at para. 109, leave to appeal refused,
    [2018] S.C.C.A. No. 216.

[69]

The
    discretion or inherent jurisdiction affords some latitude to trial judges to
    ensure that jury selection proceeds in a fair and efficient manner to select an
    impartial jury without compromise of the rights of the accused:
R. v. Gayle
(2001), 154 C.C.C. (3d) 221 (Ont. C.A.), at paras. 52-53, leave to appeal to
    S.C.C. refused (2002), 159 C.C.C. (3d) vi (note). This is all the more so where
    the
Criminal Code
does not specifically address the issue:
W.V.
,
    at para. 21; see also
R. v. Brown
(2002), 166 C.C.C. (3d) 570 (Ont.
    C.A.), at paras. 17-19. Implicit in these authorities is that the
Criminal
    Code
is not exhaustive of the trial judges authority over jury selection.

[70]

The
    boundaries of this inherent jurisdiction, necessarily lack precise demarcation.
    But whatever those outer limits may be, it is clear is that this jurisdiction
    does
not
extend to permit orders that contradict mandatory
Criminal
    Code
requirements:
W.V.
, at para. 22;
Noureddine
, at
    para. 38;
Murray
, at para. 47;
Riley
, at para. 110;
R. v.
    Swite
, 2011 BCCA 54, 268 C.C.C. (3d) 184, at para. 28.

[71]

All
    this is to say that the jury selection process, with its unforeseen and
    unforeseeable contingencies, is regulated by statutory provisions, some
    directory, others mandatory, as well as a common law discretion to fill in the
    unregulated spaces to ensure fairness to all participants and impartiality in
    the selection process and in the jury selected.

[72]

Turning
    next to the static trier procedure put in place to determine the acceptability of
    prospective jurors challenged for cause.
[2]


[73]

The
    static trier procedure to determine the truth of challenges for cause is
    invoked on an application by the accused under s. 640(2.1) to have
all
jurors  sworn and unsworn  excluded from the courtroom until it is determined
    whether the challenge for cause is true. The discretion to order this exclusion
    only becomes engaged if the trial or jury selection judge is satisfied that the
    exclusion is necessary to preserve the impartiality of the jurors.

[74]

An
    exclusion order under s. 640(2.1) brings subsection (2.2) into play. This
    subsection governs trial of the challenge for cause where an exclusion order
    has been made under s. 640(2.1). Section 640(2.2) defines:

i.

who tries
    the challenge;

ii.

the issue to be
    tried; and

iii.

the term of the
    triers mandate.

[75]

The
    trial or jury selection judge chooses two triers from the panel of prospective
    jurors or from persons present in the courtroom. The task assigned to them is
    to determine whether the challenge is true. And the triers are to do so until
    12, 13 or 14 jurors and any alternate jurors are sworn. It is implicit, but not
    expressly stated in subsection (2.2), that these triers will not become members
    of the trial jury.

[76]

Section
    640 also provides for the eventuality of disagreement between the triers about
    their verdict on the truth of the challenge. In those circumstances, s. 640(4)
permits
the presiding judge to discharge the triers and to direct two other persons to
    be sworn to determine whether the ground of challenge is true if the original
    triers have been unable to agree on their verdict after what the judge
    considers to be a reasonable time. The subsection says nothing about whether
    these replacement triers are to continue for the balance of the selection
    process.

[77]

Section
    640 contains no express provision permitting or requiring a judge presiding
    over jury selection involving the use of static triers to vet those triers to
    determine their suitability to perform the task to be assigned to them. Despite
    this statutory vacuum, this court has held that pre-screening of prospective
    triers is permissible:
Riley
, at paras. 120-124.

[78]

Section
    640 contains no express provision that permits or prohibits substitution of
    static triers in circumstances that do not involve their inability to reach a
    unanimous decision about the acceptability of this prospective juror after a
    reasonable time.

[79]

The
Criminal
    Code
contains provisions that permit verdicts challenged on appeal to be
    sustained despite errors made in the conduct of a trial. Some are specific to
    the jury selection process, as for example, ss. 643(3) and 670-672. Others are
    of more general application, as for example, ss. 686(1)(b)(iii) for errors of
    law and 686(1)(b)(iv) for any procedural irregularity at trial.

[80]

Section
    643(3) is of no avail here because it does not apply to any failure to comply
    with s. 640:
Noureddine
, at paras. 40, 43-44. In a similar way, ss.
    670 and 671, which refer to irregularities in the summoning or empanelling
    of the jury and omissions to observe the directions set out in any Act
    regulating the jury selection process, have no application where the error
    deprives an accused of a statutory right or a right to be tried by a lawfully
    constituted jury:
Noureddine
, at paras. 40-44;
R. v. Rowbotham
(1988), 41 C.C.C. (3d) 1 (Ont. C.A.), at p. 33.

[81]

By
    its terms, s. 686(1)(b)(iv) permits an appellate court to dismiss an appeal
    from conviction despite a procedural irregularity at trial, provided the trial
    court had jurisdiction over the class of offence of which the appellant was
    convicted and the appellate court is of the opinion that the appellant suffered
    no prejudice by virtue of the procedural irregularity. Under this provision,
    prejudice includes
actual
prejudice to the appellants ability to
    defend against the case for the Crown, as well as prejudice to the appearance
    of the due administration of justice:
Husbands
, at para. 40;
Noureddine
,
    at paras. 47-48, 62-64;
Riley
, at paras. 70-73.

[82]

Section
    686(1)(b)(iv) applies but is not limited to minor procedural irregularities. It
    also embraces serious procedural irregularities, otherwise amounting to errors
    of law occurring in cases in which, under existing law, the trial court would
    lose jurisdiction over the person of the accused, but not over the offence with
    which the accused was charged:
R. v. Khan
, 2001 SCC 86, [2001] 3
    S.C.R. 823, at para. 16. Procedural irregularities that deny an accused a fair
    trial amount to a miscarriage of justice and cannot be saved by s.
    686(1)(b)(iv):
Khan
, at para. 27.

[83]

Section
    686(1)(b)(iv) is indiscriminate about the source of the procedural irregularity
    that falls within its compass. No reason in principle removes procedural
    irregularities in the jury selection process from its potential application.

[84]

Where
    the procedural irregularity amounts to a failure to comply with a
mandatory
statutory provision, the proviso in s. 686(1)(b)(iv) will not preserve the
    result reached at trial:
Noureddine
, at paras. 57-59;
W.V.
,
    at paras. 26-27;
Swite
, at paras. 54-55;
Husbands
, at para.
    41.

[85]

In
    other instances, whether through the application of s. 686(1)(b)(iv) or
    otherwise, procedural irregularities that do not contravene mandatory statutory
    provisions, but rather operate in areas not governed by statutory enactments
    and do not compromise the accuseds fair trial interests or the impartiality of
    the jury or its selection, will be saved harmless:
Gayle
, at para. 53;
R. v. Katoch
, 2009 ONCA 621, 246 C.C.C. (3d) 423, at paras. 55, 58;
R.
    v. Betker
(1997), 115 C.C.C. (3d) 421 (Ont. C.A.), at p. 449, leave to
    appeal S.C.C. refused (1998), 121 C.C.C. (3d) vi (note);
R. v. Brown
(2005), 194 C.C.C. (3d) 76 (Ont. C.A.), at paras. 50-53.

The Principles Applied

[86]

As I
    will explain, I would not give effect to this ground of appeal. My conclusion proceeds
    through a series of steps.

[87]

I
    begin with what some, perhaps many, might characterize as but a penetrating
    glimpse into the obvious: taken as a whole, the jury selection provisions of
    the
Criminal Code
are not exhaustive. A moments reflection would
    convince even the most steadfast adherent to the definitive or all-inclusive
    nature of a code that the reality is otherwise. No amount of human ingenuity
    could make provision for every eventuality or contingency which could arise in
    the selection of jurors to try an allegation of crime.

[88]

Gaps
    exist. We know, for example, that when rotating triers determine the
    acceptability of prospective jurors challenged for cause that the judge
    presiding over jury selection has a discretion to exclude prospective jurors
    from the courtroom as each individual panel members acceptability is tested
    before the rotating triers. Yet there is not a word of this authority in the
Criminal
    Code
: see
Riley
, at para. 62.

[89]

We
    also accept, as does the appellant, that a judge presiding over jury selection
    has a discretion, sometimes designated an inherent jurisdiction, to adopt
    procedures, give directions and make orders about subjects at least to the
    extent that the
Criminal Code
does not specifically address the issue.
    The boundaries within which this discretion operates are not fully delineated.
    But we insist that what is done be for the purpose of making effective use of
    court resources, ensuring fairness to all participants in the selection process
    and empanelling an impartial jury. And that it
not
breach any
    mandatory statutory provision.

[90]

At
    first light, what was done here  the selection of a second pair of static
    triers  would appear to fall within the sweep of this discretion or inherent
    jurisdiction with which the presiding judge is endowed. But this will not be so
    if the substitution contravened any mandatory provision of the
Criminal
    Code
.

[91]

Sections
    640(2.1) and (2.2) create the static trier procedure to determine the truth of
    challenges for cause. Section 640(2.2) makes it clear that the persons selected
    as static triers are to exercise their duties until the full jury, including
    additional jurors and alternates, have been sworn. The subsection awards
    exclusive jurisdiction to try the challenge for cause in relation to all the
    jurors to be empanelled to the triers chosen under the section. But it does so
    as a matter of status, the need for a designation, in the words of the
    subsection, those persons so appointed. While the language appears to refer
    to a one-time-only selection, other factors tend to support the availability of
    substitutions, yet maintain the exclusive authority of the static triers to
    decide the question.

[92]

Section
    640(4) permits substitution of a new pair of static triers when the chosen
    triers are unable to agree on their disposition of a challenge after what the
    judge considers a reasonable time. Indeed, the subsection would authorize
    selection of further substitutions should subsequent triers not reach a
    unanimous decision on the acceptability of other prospective jurors.

[93]

In
    much the same way as the enactment of the static triers scheme by ss. 640(2.1)
    and (2.2) did not oust the discretion or inherent jurisdiction of a judge to
    exclude prospective jurors from the courtroom during the trial of challenges
    for cause by rotating triers, I am satisfied that the inclusion in s. 640(4)
    does not foreclose substitution of static triers in situations other than an
    inability to reach a unanimous decision about the acceptability of a
    prospective juror. In the end, as the appellant wanted, the acceptability of
    every prospective juror was determined by two static triers.

[94]

The
    substitution of a second set of static triers did not compromise the
    appellants choice of the mode of trial of the challenge for cause. Or the
    actual or apparent fairness of the jury selection procedure. Or the
    impartiality of the jurors selected to try the case. What the appellant sought,
    the appellant got. Thus, no violation of s. 640 occurred. The jury was properly
    constituted.

[95]

Characterization
    of what occurred as a procedural irregularity does not alter the conclusion I
    have reached. Nothing that occurred here caused a loss of jurisdiction over the
    class of offence charged through an improperly constituted jury. The appellant
    suffered no actual prejudice. Nor was any apparent prejudice occasioned to the
    administration of justice. No substantial wrong or miscarriage of justice
    occurred. Any procedural irregularity that occurred here falls within the scope
    of the proviso in s. 686(1)(b)(iv).

Ground #2: The Availability of Section 231(6) as a Basis of Liability for
    First Degree Murder

[96]

The
    final two grounds of appeal are related. Each has to do with the trial judges
    decision, at the urging of the Crown, to leave s. 231(6) of the
Criminal
    Code
to the jury as a basis upon which the appellant could be convicted of
    first degree murder.

[97]

This
    ground of appeal takes issue with the capacity of the evidence adduced at trial
    to furnish the air of reality necessary to warrant submission of this basis of
    liability to the jury. A brief reference to the positions advanced by trial
    counsel and the trial judges ruling on the issue will furnish the background
    necessary to assess the claim.

The Pre-Charge Discussions

[98]

The
    Crown asked the trial judge to leave two bases of liability for first degree
    murder to the jury:

i.

planned
    and deliberate first degree murder under s. 231(2); and

ii.

criminal
    harassment first degree murder under s. 231(6).

[99]

In
    support of the submission that the appellants liability could be established
    under s. 231(6), the trial Crown pointed to the evidence about what happened on
    the morning the deceased was killed. This included the appellants own
    testimony in which he acknowledged that his appearance would cause the deceased
    to be fearful and call the police, and that she was startled when she awakened.
    The Crown also relied on the prior history between the parties to provide
    context for what happened on the day of the killing. The deceaseds reported
    expressions of fear. The precautions she took at work and at home to keep safe.
    The unabated anger of the appellant about the financial demands of the deceased
    and the amounts of his support obligations. The appellants frustrations about
    his injury and inability to work.

[100]

The trial Crown also
    submitted that the evidence adduced permitted the jury to find that there was
    conduct amounting to criminal harassment that was distinct from the killing and
    other events, and that the criminal harassment and murder of the deceased were
    part of a single, ongoing transaction. The Crown contended that the offence of
    criminal harassment was complete and the appellant arrestable for it when he
    unlawfully entered the deceaseds home on the morning he killed her.

[101]

Defence counsel
    resisted submission of s. 231(6) to the jury as a basis upon which the
    appellant could be found guilty of first degree murder. The predicate offence
    the appellant committed was breaking and entering the deceaseds home, not
    criminal harassment. And breaking and entering does not engage s. 231(6) of the
Criminal Code
, or for that matter, any other first degree constructive
    murder provision.

[102]

It was also the
    position of the appellants trial counsel that the evidence adduced at trial
    did not warrant submission of s. 231(6) to the jury as a basis upon which the
    jury could find the appellant guilty of first degree murder. This was so, the
    argument proceeded, for two reasons. There was no evidence of persistent
    conduct by the appellant. But more importantly, even if there were evidence
    sufficient to establish criminal harassment, there was no evidence to permit a
    finding that the criminal harassment and murder were distinct acts as required
    by the authorities.

The Ruling of the Trial Judge

[103]

The trial judge
    concluded that the evidence adduced at trial warranted submission of the
    provision of s. 231(6) to the jury, in addition to the primary basis invoked by
    the Crown, that the murder was planned and deliberate.

[104]

The trial judge
    considered the availability of s. 231(6), as the trial Crown advanced it, on
    the basis of a single act under s. 264(2)(d) rather than as a pattern of
    persistent conduct. The judge considered the appellants conduct in unlawfully
    entering the deceaseds home  in the dead of night, armed with a knife, and
    confronting her in her bedroom with the knife in his hand  in light of the
    history of their relationship after she left the matrimonial home. Her repeatedly
    expressed fears of the appellant. The appellants aggressive conduct towards
    her on any occasion when they were at the same place at the same time. And the
    confrontation of August 28, 2012, less than two weeks before the deceaseds
    death.

[105]

The trial judge
    separated out the essential elements of criminal harassment based on the
    conduct described in s. 264(2)(d), engaging in threatening conduct directed at
    the other person, and concluded that the evidence adduced at trial permitted a
    properly instructed jury to find that the Crown had proven the predicate
    offence of criminal harassment.

[106]

In his discussion of
    the elements of constructive first degree murder, the trial judge noted that
    the phrase while committing or attempting to commit an offence under section
    264 required that the criminal harassment and murder be part of the same
    transaction or part of the same series of events. On this issue, the trial
    judge concluded:

Provinces evidence is that from the time he let himself into
    Underhills home until she lay dead in her bedroom it was only a matter of
    minutes. There can be no dispute that the acts had the necessary temporal
    connection.

The Closing Addresses of Counsel

[107]

Defence counsel
    addressed the jury first. In responding to the Crowns likely invocation of s.
    231(6) as a basis of liability for first degree murder, counsel focused on the
    failure of the Crown to prove an essential element of criminal harassment; that
    is to say, the intention to cause the deceased to fear for her safety. It
    followed from this submission that the appellant could not be found guilty of
    first degree murder under s. 231(6) for want of proof of an essential element
    of the predicate offence, and thus of the offence charged.

[108]

The trial Crown made
    it clear in her closing address that her primary theory of liability was that
    the appellant committed a planned and deliberate first degree murder. She also
    advanced s. 231(6) as a basis upon which the appellants guilt of first degree
    murder was proven and pointed out the evidence on which she relied to establish
    guilt on this basis.

The Arguments on Appeal

[109]

The appellant contends
    that the trial judge erred in leaving constructive first degree murder under s.
    231(6) as a basis upon which the jury could convict him of the offence charged.

[110]

Under s. 231(6), the
    appellant says, it is not enough that the criminal harassment and murder are
    part of a single transaction or series of events to have the murder classified
    as first degree murder on this basis. In addition to this single transaction
    requirement, the evidence must also establish that the criminal harassment and
    the murder were distinct acts. The evidence adduced was incapable of supporting
    this critical finding. The trial judges ruling makes no mention of it. This is
    fundamental to
all
forms of constructive first degree murder. Here,
    the criminal harassment was integral to and inherent in the killing. This is
    not good enough and falls well short of what is required as a matter of law.

[111]

In addition, the
    appellant submits, it is an essential element of criminal harassment that the
    victim be cognizant of the harassment, and thus feel harassed and fearful for
    her safety. In this case, the Crown contended that the predicate offence of
    criminal harassment was established when the appellant entered the deceaseds
    home. This is wrong as a matter of law. The deceased was asleep, and thus could
    not be harassed or feel fearful for her safety. In combination, the failure of
    the evidence adduced at trial to provide the support necessary for these
    findings, as well as the distinct acts requirement, should have put paid to
    any suggestion of this alternative basis of liability.

[112]

The appellant also argues
    there is evidence that at least one juror relied on this route to liability
    improperly left. Before rendering its verdict, the jury asked a question about
    one of the elements for criminal harassment, namely, fear [being] reasonable
    in all the circumstances. The appellant submits that this question indicates
    that at least one juror was considering s. 231(6) as a basis for guilt. When a
    route to first degree murder is improperly left with the jury and the appellant
    is convicted of that offence, the appellant says, a new trial is necessary.

[113]

The respondent
    disagrees. No error has been established. The evidence adduced at trial was
    sufficient to ground the factual findings necessary to establish the essential
    elements of criminal harassment, and the criminal harassment and unlawful
    killing were at once distinct acts and part of a single series of events or a
    single transaction.

[114]

The respondent says
    that the appellants entry into the deceaseds home in the early morning hours
    and his confrontation of her in the bedroom fulfilled the requirements of s.
    264(2)(d) of the
Criminal Code
. This was threatening conduct directed
    at the deceased. And she was aware of this harassment as she awakened to the
    appellant in her bedroom, armed with a knife, and was startled. On its face,
    this conduct, in light of the history between the couple, would cause the
    deceased to fear for her safety and be harassed. Repetitive conduct is not
    required. A single act is sufficient.

[115]

Further, the
    respondent argues, the evidence adduced could support a conclusion that the
    criminal harassment and unlawful killing were discrete acts. This is not a case
    in which the criminal harassment is subsumed in the act of killing.

[116]

In the alternative,
    the respondent says, even if s. 231(6) should not have been left to the jury as
    a basis upon which the appellant could be convicted of first degree murder, the
    error occasioned the appellant no substantial wrong or miscarriage of justice.
    This is so, according to the respondent, because the evidence that the murder
    of the deceased was planned and deliberate was overwhelming.

The Governing Principles

[117]

The principles that
    inform the decision on this ground of appeal are those that define the
    essential elements of the offence of criminal harassment when the conduct in
    issue falls within s. 264(2)(d) of the
Criminal Code
,
those that serve the same purpose where
    the classification of murder as first degree murder is under s. 231(6), and
    those that define the limits within which the proviso of s. 686(1)(b)(iii) is available
    to sustain a verdict rendered at trial.

[118]

First, the offence of
    criminal harassment.

[119]

The offence of
    criminal harassment is committed when a person, without lawful authority and
    knowing that, or is reckless or wilfully blind as to whether another person is
    harassed, does something prohibited that causes the other person reasonably, in
    all the circumstances, to fear for their own safety, or the safety of another
    person whom they know. The something prohibited consists of conduct described
    in s. 264(2), which includes engaging in threatening conduct directed at the
    other person or any member of their family.

[120]

The essential elements
    of criminal harassment where the prohibited conduct falls within s. 264(2)(d)
    are these:

i.

the
    accused engaged in threatening conduct directed at the complainant or a member
    of the complainants family;

ii.

the complainant
    was harassed;

iii.

the accused knew or
    was reckless or wilfully blind as to whether the complainant was harassed;

iv.

the conduct caused the
    complainant to fear for her or his safety or the safety of someone she or he knew;
    and

v.

the
    complainants fear was, in all the circumstances, reasonable.

See
R. v. Kosikar
(1999), 138 C.C.C. (3d) 217 (Ont. C.A.), at para. 19, leave to appeal to S.C.C.
    refused (2000), 142 C.C.C. (3d) vi.

[121]

Threatening conduct need
    not be repeated in order to violate s. 264(2)(d). A single threatening act
    directed at the complainant or a member of the complainants family may
    constitute criminal harassment. Nor need the conduct itself be harassment,
    provided it causes the complainant to be harassed:
Kosikar
, at paras.
    20, 22, 26.

[122]

Parliament has not
    defined the term harassed or, for that matter, harassment. The authorities
    make it clear, however, that it is not enough that the conduct vexes, disquiets
    or annoys the complainant. What is required is that the conduct tormented,
    troubled, worried continually or chronically, plagued, bedevilled and badgered
    the complainant:
Kosikar
, at para. 24, citing
R. v. Lamontagne
(1998), 129 C.C.C. (3d) 181 (Que. C.A.), at p. 188.

[123]

A final point concerns
    the nature of the threatening conduct under s. 264(2)(d). That conduct must
    amount to a tool of intimidation which is designed to instill a sense of fear
    in the recipient. The conduct should be viewed objectively with due
    consideration for the circumstances in which it took place and its effect on
    the complainant:
R. v. Burns
, 2008 ONCA 6, at para. 2, citing
R.
    v. George
, 2002 YKCA 2,
162 C.C.C. (3d) 337, at para. 39; see also
R. v. Sim
, 2017 ONCA 856,
    41 C.R. (7th) 416, at para. 16.

[124]

Second, constructive first
    degree murder under s. 231(6).

[125]

Section 231 does not
    create a distinct and independent substantive offence of first degree
    constructive murder; rather, it classifies for sentencing purposes the crime of
    murder, defined elsewhere, as first degree murder or second degree murder:
R.
    v. Farrant
, [1983] 1 S.C.R. 124, at pp. 140-41;
R. v. Harbottle
,
    [1993] 3 S.C.R. 306, at p. 323.

[126]

Section 231 contains
    several provisions that classify as first degree murder unlawful killings which
    amount to murder, committed while the accused is also committing or attempting
    to commit another offence. In general terms, this classification requires proof
    that:

i.

the accused
    committed or attempted to commit a listed underlying crime (predicate offence);

ii.

the accused
    murdered the victim;

iii.

the accused
    participated in the murder in such a manner that he or she was a substantial
    cause of the victims death;

iv.

no intervening act of another
    resulted in the accused no longer being substantially connected to the death of
    the victim; and

v.

the listed crime
    and the murder of the victim were part of the same transaction; that is to say,
    the victims death was caused while the accused was committing or attempting to
    commit the listed crime as part of the same series of events.

See
Harbottle
, at p. 325;
    see also
R. v. Magoon
, 2018 SCC 14, [2018] 1 S.C.R. 309, at para. 17.

[127]

In s. 231(6) the
    listed crime or predicate offence is criminal harassment, whether completed or
    merely attempted. Further, the accused must also intend to cause the victim to
    fear for his or her own safety or the safety of another person whom the victim
    knows.

[128]

To satisfy what might
    be termed the single transaction requirement under s. 231(6), summarized as
    item (v) above, the criminal harassment or attempted criminal harassment and
    the murder of the victim must be temporally and causally connected so as to
    form a continuous single transaction:
R. v. Pritchard
, 2008 SCC 59,
    [2008] 3 S.C.R. 195, at paras. 19, 25, 28, 35. But, as is the case with other
    forms of first degree constructive murder, the predicate offence and the
    killing must also be distinct acts:
Pritchard
, at paras. 3, 27;
R.
    v. Kimberley
(2001), 157 C.C.C. (3d) 129, at para. 108, leave to appeal
    refused, [2002] S.C.C.A. No. 29;
R. v. Smith
, 2015 ONCA 831, 344
    O.A.C. 22, at para. 11;
R. v. Parris
, 2013 ONCA 515, 300 C.C.C. (3d)
    41, at paras. 50-53;
R. v. McLellan
, 2018 ONCA 510, 362 C.C.C. (3d)
    183, at para. 69. Said somewhat differently, the conduct that constitutes the
    attempted or completed predicate offence  in this case, criminal harassment 
    and the murder must be distinct and independent acts one from the other, not
    one and the same:
Pritchard
, at paras. 27-29;
Kimberley
, at
    para. 108;
Smith
, at para. 11;
Parris
, at paras. 53, 57.

[129]

Finally, the
    availability of the proviso in s. 686(1)(b)(iii).

[130]

Reviewing courts have identified two classes of errors that can engage
    the application of this proviso. The first category is that of harmless
    errors. These are errors of a minor nature that have no impact on the verdict
    entered at trial. The second category is different. It embraces serious errors
     mistakes that would justify a new trial, but for the fact that the evidence
    of the appellants guilt is so overwhelming that the reviewing court concludes
    that there was no substantial wrong or miscarriage of justice occasioned by the
    error:
Khan
, at paras. 26-31; see also
R. v. Brown
, 2018 ONCA
    481, 361 C.C.C. (3d) 510, at paras. 74-77.

The Principles Applied

[131]

As I will explain, I
    would not accede to this ground of appeal. I reach this conclusion not because
    I am satisfied that the trial judge was right in leaving s. 231(6) to the jury
    as a basis upon which they could find the appellant guilty of first degree
    murder. To the contrary, I am satisfied that doing so was legally wrong.
    However, I am satisfied that this error caused the appellant no substantial
    wrong and did not result in a miscarriage of justice.

[132]

To take first, the
    error.

[133]

At trial, the Crown
    took the position that the offence of criminal harassment was complete when the
    appellant, armed with a knife, unlawfully entered the deceaseds home in the
    early morning hours. At that time, the deceased and two of her children were
    asleep, unaware of the appellants presence.

[134]

Recall the essential
    elements of criminal harassment where the underlying conduct is that described
    in s. 264(2)(d). Threatening conduct directed at another person or a member of
    that persons family. Conduct that caused the victim to fear for her safety or
    the safety of anyone she knew. That the victim was harassed and reasonably feared
    for her safety or that of her children. On the basis of this theory, there was
    no evidence upon which a properly instructed jury, acting reasonably, could
    find that the appellants conduct amounted to criminal harassment on the basis
    advanced by Crown counsel at trial.

[135]

For different reasons,
    the same conclusion follows when we examine the circumstances that unfolded
    when the appellant confronted the deceased in her bedroom. Even if we assume
    that the appellants conduct there amounted to criminal harassment, or at least
    an attempt to commit criminal harassment (an issue not raised at trial), the
    air of reality standard necessary to warrant submission of s. 231(6) to the
    jury as a basis for a finding of guilt of first degree murder remains wanting.
    Briefly stated, the evidence simply cannot sustain a finding that there was a
    criminal harassment distinct and independent from the act of killing. The act
    of criminal harassment and that of killing were one and the same. Nor is there
    evidence, even in the appellants own version of events, which could meet the
    air of reality threshold for a finding that in criminally harassing or
    attempting to criminally harass the deceased, the appellant intended to cause
    her to fear for her own or her childrens safety as required to engage s.
    231(6).

[136]

Despite this error, I
    am satisfied that submission of this basis of liability to the jury caused the
    appellant no substantial wrong and occasioned no miscarriage of justice. The
    primary basis upon which the Crown sought to establish the appellants guilt of
    first degree murder was that the murder of the deceased was planned and
    deliberate. Section 231(6) was presented as an alternative, both in the
    addresses of counsel and in the charge to the jury.

[137]

The evidence marshalled
    in support of the submission that the murder of the deceased was planned and
    deliberate was overwhelming. Extensive preparations. Dark clothing. Possession
    of and concealing a knife. Driving to the deceaseds home in darkness, in the early
    hours of the morning. Parking a distance away so as not to associate his
    vehicle with the scene. Entry by use of a key duplicated from one
    surreptitiously taken from the appellants son. Quietly entering the house.
    Closing his daughters bedroom door. Inflicting a fatal wound that betrayed any
    bodily movement by the deceased at the time of its infliction. Withdrawing the
    knife through the same wound track as it entered. Leaving the deceased.
    Disposing of the knife. Leaving the scene. Never summoning assistance.

[138]

The inquiry from the
    jury about an element of criminal harassment does not alter my conclusion that
    the appellant experienced no substantial wrong or miscarriage of justice. The
    importance of jury questions as an indication of the particular issue the jury
    is confronting is well established:
R. v. W.D.S.,
[1994] 3 S.C.R. 521,
    at pp. 526, 528-29;
R. v. W. (D.)
, [1991] 1 S.C.R. 748, at pp. 759-60.
    However, the inquiry must be assessed in the circumstances of this case. Constructive
    first degree murder under s. 231(6) was improperly left with the jury in the
    face of an overwhelming case against the appellant on the basis that the murder
    was planned and deliberate. That was the principal route to liability, made
    clear in both the Crowns closing address and the charge to the jury. In my
    view, based on all the evidence, a reasonable and properly instructed jury
    would inevitably convict the appellant of first degree murder:
Khan
,
    at para. 31;
Brown
, at para. 76. Therefore, s. 686(1)(b)(iii) applies.

[139]

Heeding to the Supreme
    Court of Canadas advice in
R. v. Rodgerson
, 2015 SCC 38, [2015] 2
    S.C.R. 760, at paras. 44-46, the Crown should have carefully considered whether
    to pursue an alternate route to liability where the evidence for that route was
    tenuous. Decisions to pursue routes to liability based on tenuous evidence can
    increase the length and complexity of the trial and burden the jury
    deliberation process. Even further, they put at risk the sustainability of
    verdicts rendered at trial. These risks were present here by leaving with the
    jury a route to first degree murder pursuant to s. 231(6) where the evidence
    supporting that theory was strained and wanting.

[140]

I would not give
    effect to this ground of appeal.

Ground #3: Jury Instructions on Section 231(6)

[141]

The final ground of
    appeal alleges non-direction amounting to misdirection in the instructions to
    the jury on the constituent elements of constructive first degree murder under
    s. 231(6).

[142]

My conclusion on the
    second ground of appeal  that s. 231(6) should not have been left to the jury
    as a basis upon which the appellant could be found guilty of first degree
    murder  renders it unnecessary for me to examine the correctness of the trial
    judges instructions to the jury to determine whether legal error occurred.
    Suffice it to say that, although it may not be necessary in all cases of
    constructive first degree murder to add what might be described as a distinct
    acts direction to the current instructions, trial judges would be well advised
    to canvass this issue with counsel at the pre-charge conference and decide
    whether the circumstances of the case warrant such an inclusion in final
    instructions to the jury.

CONCLUSION

[143]

For these reasons, I
    would dismiss the appeal.

Released: DW JUL 31 2019

David Watt J.A.

I agree. Grant
    Huscroft J.A.

I agree. L.B.
    Roberts J.A.





[1]
In its factum, but not in oral argument, the respondent also relied on s.
    686(1)(b)(iii).



[2]
In amendments to s. 640 of the
Criminal Code
contained in S.C. 2019, c.
    29, which came into effect September 19, 2019 the trier of the truth of
    challenges for cause will be the presiding judge.


