



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Wood, 2022 ONCA 87

DATE: 20220128

DOCKET: C64231

Fairburn A.C.J.O., Doherty and Watt
JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shane Alan Wood

Appellant

Lance Beechener and Alexander Ostroff
, for the appellant

Christopher Webb, for the respondent

Heard: October 5, 2021 by video conference

On appeal from the
conviction entered by Justice Peter B. Hockin of the Superior Court of Justice,
sitting with a jury, on November 2, 2015.

Watt J.A.:



[1]

Some good times and some bad times. An uncle and
his nephew. Paul Curry and Shane Wood. They worked together for a time, then
went their separate ways.

[2]

They argued. Then they reconciled. Except for
their last argument when no reconciliation was possible.

[3]

Shane Wood killed his uncle Paul Curry. He set
fire to his uncle and his uncles house.

[4]

Shane Wood was charged with first degree murder,
arson and offering an indignity to his uncles body. A jury found him guilty on
all three counts.

[5]

Shane Wood appeals his conviction of first
degree murder. These reasons explain why I have concluded that his appeal fails
and should be dismissed.

The Background Facts

[6]

The appellant testified at trial. He admitted
that he killed the deceased after they had argued but claimed he had done so in
self-defence. He denied having set any fires in the deceaseds home,
maintaining that the deceased had done so himself.

[7]

A brief summary of the evidence adduced at trial
provides an adequate background for an evaluation of the grounds of appeal the
appellant advances.

The Principals and Their Relationship

[8]

The appellant and deceased worked together in a
landscaping business the deceased set up in 2012 after another business venture
had failed. Later that same year, the appellant resumed working alone because
of a disagreement with the deceased about the appellants share of the profits
from a lucrative landscaping contract.

[9]

Over the years, the relationship between the
appellant and the deceased had been volatile. They would argue and reconcile.
Again and again.

[10]

When their business relationship in the
deceaseds landscaping company disintegrated, each complained about the other.
The deceased characterized the appellant as tardy and lazy. The appellant claimed
that the deceased did not pay him adequately for the work he (the appellant)
had done. Each denigrated the other. In text messages between them. And in
communications to others.

[11]

The appellant testified that the deceased spent
most of the winter in 2012‑2013 in either Costa Rica or in Russia. The
men resumed working together in the summer of 2013, but the deceased soon
departed to return to Russia, leaving the appellant to manage their landscaping
projects including problems with malfunctioning equipment. Although they
completed the outstanding project shortly after the deceaseds return, the men
argued.

The Business Relationship Ends

[12]

In early August, 2013 the appellant left the
deceaseds company to work at his own landscaping business. He offered to help
the deceased if the deceased required any assistance. The appellant sent
several texts about his relationship with the deceased to Gary Lazurek, a man who
worked for both the appellant and the deceased. The appellant offered to pay Lazurek
$40 if Lazurek would not report for work with the deceased the following day.
The appellant testified that his purpose in making this offer was to keep Gary
Lazurek as an employee with his (the appellants) own business.

The Wood Chipper Discussion

[13]

Gary Lazurek and the appellant testified about
discussions they had about getting a wood chipper, a machine used in the
landscaping business.

[14]

Gary Lazurek testified that the appellant called
him on September 13, 2013, two days before the deceased was killed, and asked
him to be ready to go out of town at 3:30 the following morning. The appellant
arrived at Lazureks home at 1:30 a.m., two hours earlier than he had asked Mr.
Lazurek to be ready. Kim Rolph-Smith let the appellant into the house. The
appellant was intoxicated. He explained that he had made a good deal on a wood chipper.
The machine was in Tillsonburg.

[15]

After Gary Lazurek got dressed, he and the
appellant got into Lazureks truck to drive to Tillsonburg to pick up the wood chipper.
Instead, the appellant directed Mr. Lazurek to the deceaseds street. The
appellant noticed that the deceaseds door was open. He described the deceased
as a fool, an idiot, a person who never learns. He then directed Lazurek
to continue driving around and past the deceaseds residence. They did this
several times. On their final pass by the deceaseds home, the appellant asked Gary
Lazurek to stop. The appellant then asked You going to back my play, right?. Gary
Lazurek asked whether that meant that the appellant and deceased were going to
have a fight. The appellant said that the deceased was not drunk enough yet
anyway. He told Lazurek to get laid, get his affairs in order, and that he,
the appellant, would get in touch with him later. Mr. Lazurek drove the
appellant home.

[16]

The appellant gave a different version of the
early morning trip to the deceaseds house. He recalled that a few days prior
to September 14, 2013, Gary Lazurek told him that the deceased had asked
Lazurek to take his (the deceaseds) wood chipper so that the deceased could
make a fraudulent claim to his insurer that the machine had been stolen. The
deceased did not want the appellant involved. Mr. Lazurek was to take the wood chipper
to a friend of his, a man named Lloyd or Floyd, who lived near Woodstock.

[17]

The appellant walked over to Gary Lazureks
house early one morning. Kim Rolph-Smith let the appellant in. As Gary
Lazurek got dressed, Ms. Rolph‑Smith asked what they were doing. The
appellant was not sure who said what, but the plan to pick up the deceaseds
wood chipper and take it out of town was discussed while Ms. Rolph-Smith was
present.

[18]

The appellant testified that he and Gary Lazurek
drove over to the deceaseds house in Mr. Lazureks truck. The lights in the
deceaseds home were on. The deceased was awake, sitting on the couch. Gary Lazurek
wanted to steal the chipper. The appellant refused to help him. The appellant
never said are you going to back my play?. Gary Lazurek then drove the
appellant home.

Lazurek and the Appellant: Duelling Texts

[19]

Throughout the rest of the day on September 14, the
appellant and Gary Lazurek began an exchange of acrimonious texts. The
appellant told Lazurek that he (Lazurek) could no longer work for him and that
he would pay Lazurek a final $160 for the week. Lazurek replied that the
appellant owed him an additional $160. He called the appellant rude. The
appellant told Lazurek to deal with it. He then said that he would feed
Lazureks throat his teeth and tell Lazureks brother his address. The men
traded insults about their drinking and drug habits.

Lazurek and the Deceased: The Heads-Up

[20]

Later that same day, Gary Lazurek and Kim
Rolph-Smith drove over to the deceaseds home to tell him about what had
occurred earlier, when the appellant had directed Lazurek to drive to the
deceaseds home instead of Tillsonburg to pick up the wood chipper. Gary
Lazurek expressed his concern that the appellant would harm the deceased. After
Gary Lazurek and Ms. Rolph-Smith had left, the deceased called a friend to whom
he related what Gary Lazurek had told him about the appellant. The friend
suggested the deceased should call the police. The deceased rejected the
suggestion. He said he was not afraid of the appellant.

The Facebook Postings

[21]

Shortly before midnight on September 15, 2013,
the appellant made two Facebook posts. By then, he had drunk eight or nine
beers. He posted:

RED river RED rover who wants to be OVER

He testified that the post made no
sense. His phone screen was smashed. He may have tried to write red rover, red
rover, who wants to come over as an invitation to his friends. He denied that
it reflected his intention to kill the deceased, or that red river reflected a
river of blood he was going to spill.

[22]

In a longer, second post the appellant wrote
about his decision to block out those who brought him down. The appellant testified
that arguments with Gary Lazurek and his own father prompted this post.

[23]

After making the Facebook posts, the appellant
said he fell asleep.

The Early Morning Visit

[24]

The appellant testified that he woke up at about
1:45 a.m. on September 16, 2013. He decided he would walk over to the
deceaseds place. The deceased was often up at this time, drinking, as he was
when the appellant arrived. The two men sat down in the kitchen, drank beer and
talked. A few minutes later, the appellant said we gotta talk about Gary. He
told the deceased about the late-night drive and the texts. The deceased became
agitated. He told the appellant that Gary Lazurek had come by and had told the
deceased that you guys (Lazurek and the appellant) were driving around and
the appellant said, or that Lazurek believed, that he (the appellant) wanted to
fight with the deceased. The deceased said Shane, the guys fucked.

[25]

Tensions between the men began to escalate. The
appellant felt that the deceased was minimizing his concerns about Gary
Lazurek. The appellant accused the deceased of having lied about his July trip
to Russia. The deceased replied go fuck yourself, Shane, you dont know what
you are talking about. The appellant got up and went to the washroom.

The Fire Starts

[26]

When the appellant returned from the washroom,
the deceased was feeding paper into a small fire on the floor.

The Fight

[27]

The appellant testified that as he tried to
leave the house, the deceased pushed him from behind, then swung a weapon at
him, injuring the appellants right hand. The appellant ran downstairs as the
deceased chased him. The appellant then grabbed a beer bottle from the steps and
hit the deceased over the head with it. The appellant was afraid that the
deceased would kill him with the weapon he had in his hand. The appellant then
ran back up the stairs.

[28]

The appellant tried to get out the front door.
The deceased tackled him. The men returned to the stairwell. Each was armed.
The deceased had a knife or a barbeque fork, the appellant, a beer bottle or a
pair of scissors. The fight carried on into the kitchen. There, the appellant
saw small fires on the bedroom floor and bed. He told the deceased to call the
fire department. Instead, the deceased swung a bucket saw at him. The appellant
avoided the blow and kicked the deceased who fell on the bed. When the deceased
got up, the appellant kneed him. Flames flashed, perhaps from the fuel in the
saw. When the deceased continued his attack, the appellant kicked him in the
head, then fled through an open window, got in his truck and drove away.

[29]

The appellant denied immediately attacking the
deceased, killing him in the stairwell, moving his body into the bedroom, and
setting the fire to conceal the nature of the deceaseds injuries.

The After-the-Fact Conduct

[30]

When the appellant got back home, he showered,
cleaned up his injured hand, and washed his clothes. He texted Gary Lazurek at
3:26 a.m. He told Lazurek that he had gone to sleep at 11:00 p.m. and had just
awakened. In cross‑examination at trial, the appellant denied having sent
the text to conceal his involvement in the deceaseds death.

[31]

The appellant lied to his other uncle Ray about
how his right hand had been injured. He claimed that it had been caused by a
broken mirror. He lied to the police maintaining he had not seen the deceased
for a month or a month and a half. He also hid a sock with the deceaseds blood
on it in an outdoor speaker in his backyard.

The Forensic Evidence

[32]

First responders arrived at the deceaseds home
about three hours after the appellant had sent his texts shortly before
midnight. They found the deceaseds body on his bed, burned beyond visual
recognition.

[33]

A fire investigator concluded that the fire in
the deceaseds home had been deliberately set. It had originated on a corner of
the deceaseds bed. Another fire had started in a garbage pail in the bathroom,
but it did not spread beyond the container.

[34]

Blood from the appellant and deceased was found
on various surfaces throughout the deceaseds home. The deceaseds blood was
found on the porch, inside the front door, and on the wall close to the kitchen
floor. His blood and a piece of his scalp were found on the stairs and a
landing near the side door. The appellants blood was detected on a stool in
the living room, as well as on a computer in the bedroom, in the living room,
and on the kitchen floor. The blood of both men was found on the kitchen table
and in the dining room.

The Cause of Death

[35]

The deceased died of blood loss caused by
several head and neck injuries. The blood loss would have been significant but
not rapid because the wounds the deceased suffered did not penetrate any vital
structures. Nor would the deceased have been immediately immobilized by his
injuries or blood loss. He would have been able to continue involvement in a
physical altercation. The pathologist found no soot in the deceaseds airways
and no carbon monoxide in his blood. This meant that the deceased was
not
breathing once the fire got beyond its infancy.

[36]

The deceased suffered 11 sharp force injuries to:
the back of his head and neck (7); his upper back (1); and his lower left
abdomen (3). Multiple blunt force injuries to the deceaseds head and neck
included fractures on the left side of his face. Significant force was required
to cause these fractures.

The Grounds of Appeal

[37]

The appellant advances three grounds of appeal.
He says that the trial judge erred in failing:

i.

to admit the statements of Kim Rolph-Smith
tendered by the defence;

ii.

to properly instruct the jury on the use it
could make of evidence of the appellants after-the-fact conduct; and

iii.

to properly deal with evidence of improper
conduct by one of the jurors.

Ground #1: The Statement of Kim Rolph-Smith

[38]

This ground of appeal challenges a ruling made
by the trial judge excluding evidence tendered as part of the defence case. The
evidence was part of a police interview conducted of Kim Rolph-Smith on
September 16, 2013, the day the deceased was killed. The specific passage
proposed for admission consisted of Ms. Rolph-Smiths recollection of a
conversation about a wood chipper between Gary Lazurek and the appellant. The
discussion occurred early in the morning about two days before the deceaseds
death.

[39]

Some additional background is essential to an
understanding of the error alleged and my proposed disposition of it.

The Essential Background

[40]

Defence counsel called Kim Rolph-Smith as a
witness. After some preliminary questions, it became abundantly clear that the
witness had no memory of meeting either the appellant or the deceased. In the
absence of the witness and jury, defence counsel indicated that he wanted to
bring an application under s. 9(2) of the
Canada Evidence Act
(
CEA
),
R.S.C., 1985, c. C-5, or seek to have at least a portion of the witness police
interview admitted as past recollection recorded.

[41]

Counsel called Ms. Rolph-Smith as his only
witness on the
voir dire
. The focal point of the inquiry was a part of
the witness first police interview in which she described an early morning
discussion between Gary Lazurek and the appellant about a wood chipper:

DC: Okay. Uh, have you ever met or spoken to
Shane?

KS: A couple of times, yeah.

DC: Okay. Can you tell me more about that?

KS: Uh, he came over three oclock in the 
or, two  1:30 in the morning and, um, wanted Gary to drive him around.

DC: Okay, so when was that?

KS: Within this past week.

DC: Okay. Do you know what day?

KS: No, I cant tell you what day  I dont
know day, cause it was

DC: Okay, so he came over at 1:30 in the
morning and wanted

KS:  cause it  cause it was  it wa-, it
was t-, a total surprise, like, you know, he  he said he wanted him to  to 
for him to  to do some, um, what do you call it  a chipper machine for the 
for the  for the business.

DC: Okay.

KS: So, I took it they were trying to go and
get one or he was in the idea of thought possibly steal one from his uncles
place.

DC: Okay.

KS: So, thats the  thats the impression I
got.

The Arguments at Trial

[42]

Defence counsel did not pursue the application
under s. 9(2) of the
CEA
. He contended that the relevant passage was
admissible as evidence for the truth of its contents as past recollection
recorded. The trial judge was not satisfied that the passage met the
requirements for admission as evidence on this basis and dismissed the
application.

[43]

Defence counsel then sought to have the trial
judge admit the same portion of the first interview, or in the alternative,
both police interviews of Ms. Rolph-Smith as evidence of the truth of their
contents under the principled exception to the hearsay rule.

[44]

On the admissibility inquiry, Ms. Rolph-Smith
was again the only witness. The parties agreed that the evidence elicited on
the first
voir dire
applied to the second, on which much of the
questioning was directed to the second police interview of October 15, 2013.
Ms. Rolph-Smith testified that she had no recollection of being interviewed by
the police or of the events discussed on the recording.

[45]

Each police interview was audio recorded, but
not video recorded. Ms. Rolph-Smith was not under oath and had not been
warned about the consequences of lying.

The Ruling of the Trial Judge

[46]

The trial judge was satisfied, as the trial
Crown conceded, that the necessity requirement had been established. However,
reliability had not been demonstrated. No evidence was adduced about the
circumstances in which either interview occurred. The reliability of the
passage could not be assessed. In addition, the trial judge said, the evidence
had little or no probative value as evidence of an impression.

[47]

The trial judge rejected the alternative
submission that both interviews should be admitted in their entirety. He
rejected this alternative on the basis that, taken as a whole, the statements were
of little probative value and substantial prejudice to all aspects of the
appellants defence.

The Arguments on Appeal

[48]

The appellant begins with the submission that
Ms. Rolph-Smiths report of her contemporaneous impression of the wood chipper
discussion was circumstantial evidence that a plan to take the deceaseds wood chipper
was discussed in her presence. Irrespective of the capacity of the evidence to
prove what was said or the actual purpose of the trip, the statements
undermined Gary Lazureks evidence that no such discussion took place and he
was inexplicably directed by the appellant to drive to the deceaseds house.
The evidence should have been admitted on this basis.

[49]

The appellant says that the trial judge made a
further error in his assessment of the prejudicial effect of the proposed
evidence in his role as gatekeeper. Four discrete errors contributed to this
flawed conclusion. The trial judge violated the appellants right to control
his own defence; failed to properly apply the relaxed approach to the
admissibility of exculpatory evidence tendered by the defence; misapprehended
the substance of the evidence; and failed to properly take into account the
impact of evidence already admitted at trial in his assessment of prejudicial
effect.

[50]

In addition, the appellant continues, the trial
judge was mistaken in his evaluation of the probative value of the proposed
evidence. Two separate errors contributed to this faulty conclusion. The judge
misapprehended the appellants evidence about what was discussed in Ms.
Rolph-Smiths presence. And in assessing the probative value of the proposed
evidence, the trial judge failed to consider the probative value of the
evidence not arising from the truth of the statement.

[51]

The respondent rejects any suggestion of error
in the trial judges analysis or in the conclusion he reached. Offered to prove
the truth of their contents, the statements of Ms. Rolph-Smith did not satisfy
the reliability requirement to be admissible under the principled exception to
the hearsay rule. Their probative value was low or non-existent and their
prejudicial effect, as the trial judge concluded, was substantial. This
warranted exclusion under the governing principles. Nor was admission warranted
under a relaxed approach to the hearsay rule.

[52]

The proposed testimony of Ms. Rolph-Smith was
relevant to the evidence given by the appellant and by Gary Lazurek. The
testimony of Gary Lazurek was relevant to the appellants motive to kill the
deceased  money owed and animosity  and to planning and deliberation  the late-night
drive to the deceaseds house two days before the murder. That the proposed
evidence was relevant on the issues of motive and planning and deliberation was
not sufficient to render it admissible as evidence of the truth of its
contents. The hearsay rule intervened and required an exception, the principled
exception.

[53]

The trial judges ruling, the respondent
submits, reflects a proper application of the principled exception to the
hearsay rule. No issue arose about necessity. But the appellant failed to
establish reliability. Ms. Rolph-Smith could not remember the police interview
nor the contents of what was said. As a result, she could not be effectively
cross-examined about them including about what was said or led her to her
impression about what was happening. Further, the circumstances in which the
interviews were conducted provided no suitable substitutes to justify a finding
of reliability. No oath. No warning about the consequences of lying. No
videotaping to permit an assessment of the declarants demeanour. No evidence
about the circumstances in which the interviews occurred. Contradiction by both
Lazurek and the appellant.

[54]

The submission that the trial judge erred in
invoking his discretion to exclude the evidence, the respondent urges, is also
unavailing. The right of an accused to control the conduct of their defence
entitles them to seek the admission of defence evidence. But it does not
include an unfettered right to have that evidence admitted. Rules of
admissibility may foreclose its reception. Relaxation of those rules does not
authorize their abandonment, as for example, of the reliability requirement
here.

[55]

The respondent takes issue with the appellants
claim that the trial judge applied the wrong standard in excluding the evidence
in the exercise of his gatekeeper function. The reasons betray any reliance on
the standard applicable when the proponent of the evidence is the Crown. The
language used, particularly the descriptive substantial in relation to the
prejudicial effect of the proposed evidence, coincides with the proper standard
for excluding defence evidence. As a result, the balancing should be accorded
deference by this court and the conclusion left undisturbed.

The Governing Principles

[56]

Before turning to the principles that govern my
assessment of this ground of appeal, it is helpful to clarify the extent of the
controversy we are required to resolve.

[57]

When Kim Rolph-Smith was called as the final
defence witness at trial, it became quickly apparent that she denied ever
having met either the deceased or the appellant and did not recall being
interviewed by the police or the contents of what she apparently said there. As
a result, defence counsel sought to cross‑examine her under s. 9(2) of
the
CEA
and to have a specific portion of her first police interview received
as past recollection recorded. A
voir dire
was held. Ms. Rolph-Smith
testified as the only witness. Defence counsel did not pursue the s. 9(2)
application. The trial judge dismissed the application to have the evidence
received as past recollection recorded. No appeal is taken from that decision.

[58]

Defence counsel then sought admission of the
same evidence, in the alternative both records of interview in their entirety,
under the principled exception to the hearsay rule. In other words, he sought
their admission as proof of the truth of their contents. The trial judge found
the reliability requirement lacking in respect of the specific portion of the
first interview and excluded the evidence of both interviews on the basis that
their minimal probative value was exceeded by their substantial prejudicial
effect.

[59]

It is fundamental that to be receivable in a
criminal trial, an item of evidence must be relevant, material, compliant with
any applicable admissibility rule, and be more probative than prejudicial
according to the applicable standard:
R. v. Calnen
, 2019 SCC 6, [2019]
1 S.C.R. 301, at para. 107,
per
Martin J. (dissenting, but not on this
point).

[60]

As is well known, relevance is not an inherent
characteristic of any item of evidence. Rather, it exists as a relation between
an item of evidence and a proposition of fact that its proponent seeks to
establish by its introduction. Relevance is a matter of everyday experience and
common sense. The threshold for relevance is not high. Evidence is relevant if
it renders the fact it seeks to establish slightly more or less probable than
that fact would be without the evidence. We assess relevance in the context of
the entire case and the positions of counsel:
Calnen
, at para. 108,
per
Martin J. (dissenting, but not on this point);
R. v. Luciano
, 2011
ONCA 89, 267 C.C.C. (3d) 16, at paras. 204-206.

[61]

Trial judges retain the general discretion to
exclude evidence that is relevant, material, and compliant with any applicable
admissibility rule where an imbalance exists between the probative value of
that evidence and its prejudicial effect:
Calnen
, at para. 110,
per
Martin J. (dissenting, but not on this point);
R. v. White
, 2011 SCC
13, [2011] 1 S.C.R. 433, at para. 31. Where the balance settles as between probative
value and prejudicial effect depends upon who is the proponent of the evidence.

[62]

Where the proponent of the evidence is the
Crown, the exclusionary discretion is engaged where the prejudicial effect of
the evidence exceeds its probative value:
Calnen
, at para. 107,
per
Martin J. (dissenting, but not on this point);
White
, at para. 31. See
also,
R. v. Mohan
, [1994] 2 S.C.R. 9, at pp. 20-21;
R. v. Khelawon
,
2006 SCC 57, [2006] 2 S.C.R. 787, at para. 3.

[63]

Where the proponent of the evidence is the
defence, evidence that is relevant, material, and compliant with any applicable
admissibility rules may only be excluded where the prejudicial effect of that
evidence substantially exceeds its probative value:
R. v. Seaboyer
,
[1991] 2 S.C.R. 577, at p. 611;
R. v. Shearing
, 2002 SCC 58, [2002] 3
S.C.R. 33, at para. 107.

[64]

In the absence of legal error, a misapprehension
of material evidence or a conclusion that is plainly unreasonable, a trial
judges evaluation of where the balance between probative value and prejudicial
effect settles attracts substantial deference on appeal:
Shearing
, at
para. 73;
Luciano
, at para. 234.

[65]

The admissibility rule applicable here is the
hearsay rule, more specifically, the principled exception to that rule, by
which evidence subject to the exclusionary effect of the rule may be received.
The applicable principles are uncontroversial.

[66]

First, the nature of hearsay evidence. No
evidence is hearsay on its face. Said in another way, hearsay is not an
inherent characteristic of any item of evidence. What warrants characterization
of an item of evidence as hearsay is the
purpose
for which that
evidence is introduced. The purpose for which the evidence is adduced labels
the evidence as hearsay and engages the hearsay rule:
R. v. Baldree
,
2013 SCC 35, [2013] 2 S.C.R. 520, at para. 36;
Khelawon
, at para. 57;
R.
v. Tsekouras
, 2017 ONCA 290, 353 C.C.C. (3d) 349, at para. 181, leave to
appeal refused, [2017] S.C.C.A. No. 225. The purpose which engages the hearsay
rule is when the evidence is adduced to prove the truth of the facts stated:
Baldree
,
at para. 36.

[67]

Second and relatedly, it follows where the
purpose for which the item of evidence is tendered is
not
to prove the
truth of a statements contents, the hearsay rule is not implicated, thus does
not constitute a bar to the admission of the evidence. However, removal of the
hearsay rule as a bar to reception of the evidence does not mean that the
evidence will be received. Another rule may intrude, or the evidence may be
excluded in the exercise of judicial discretion.

[68]

Where evidence is not tendered or is admitted
for a non-hearsay purpose it is not reached by the exclusionary aspect of the
hearsay rule, thus does
not
require an exception to justify its
admission. Evidence not tendered to prove the truth of its contents may have
probative value as non-hearsay, as for example, to establish that a party had
notice of certain information, was the speaker, or received threats supportive
of the excuse of duress:
Tsekouras
, at para. 182;
R. v. Evans
,
[1993] 3 S.C.R. 653, at pp. 662-663.

[69]

Third, the essential defining features of
hearsay. The defining features of hearsay are the fact that the purpose for which
the statement is adduced is to prove the truth of its contents and the absence
of a contemporaneous opportunity to cross-examine the hearsay declarant:
Baldree
,
at para. 30, citing
Khelawon
, at para. 56. Hearsay evidence is
presumptively inadmissible because of the difficulties inherent in testing the
reliability of the declarants assertion:
Baldree
, at para. 31;
Tsekouras
,
at para. 147.

[70]

Fourth, the exceptions to the exclusionary rule.
Hearsay may be admitted under a listed exception or, more recently, under the
principled exception which requires its proponent to establish not only that its
admission is necessary, but also that the hearsay tendered for admission is
reliable:
Khelawon
, at paras. 2, 47;
R. v. Bradshaw
, 2017 SCC
35, [2017] 1 S.C.R. 865, at para. 23.

[71]

Fifth, the reliability requirement. A proponent
may establish the threshold reliability of hearsay evidence by showing that:

i.

there are adequate substitutes for testing the
truth and accuracy of the proposed evidence (
procedural
reliability);
or

ii.

there are sufficient circumstantial or
evidentiary guarantees that the statement is inherently trustworthy (
substantive
reliability).

See,
Khelawon
, at paras.
61-63;
Bradshaw
, at para. 27;
R. v. Youvarajah
, 2013 SCC 41, [2013]
2 S.C.R. 720, at para. 30.

[72]

To establish
procedural
reliability,
the proponent must adduce evidence that adequate substitutes exist for testing
the hearsay evidence since the declarant has not testified in court, under oath
or its equivalent, and under the scrutiny of contemporaneous cross-examination.
These surrogates must provide a satisfactory basis for the trier of fact to
rationally evaluate the truth and accuracy of the hearsay statement. Typical
substitutes for the usual safeguards include a video recording of the
statement, the presence of an oath or its equivalent, and a warning about the
consequences of lying. But some form of cross-examination is ordinarily
required:
Bradshaw
, at para. 28.

[73]

Substantive
reliability, the functional equivalent of Dean Wigmores circumstantial
guarantee of trustworthiness, sets a higher standard for the hearsay proponent
to meet. The judge or court must be satisfied that the statement is so reliable
that contemporaneous cross-examination of the declarant would add little, if
anything, to the process. To determine whether the statement is inherently
trustworthy, the trial judge or court can consider the circumstances in which
the statement was made, as well as any evidence that corroborates or conflicts
with it:
Bradshaw
, at paras. 30-31. Substantive reliability is established
where the statement is so reliable that it is unlikely to change under
cross-examination:
Bradshaw
, at para. 31, citing
Khelawon
, at
para. 107. See also,
R. v. Smith
, [1992] 2 S.C.R. 915, at p. 937.

[74]

The procedural and substantive approaches to
establishing threshold reliability under the principled exception to the
hearsay rule are not mutually exclusive. They may work in tandem. Factors
relevant to one can complement the other. But at bottom, the threshold
reliability standard remains high. The statement must be reliable enough to
overcome the specific hearsay dangers it presents, whether perception, memory,
communication, sincerity or some combination of them:
Bradshaw
, at
para. 32.

[75]

Sometimes, embedded within a hearsay statement
tendered for admission is an additional hearsay statement. To permit reception
in these circumstances, each level of hearsay must be admissible under a listed
or the principled exception: see
R. v. Starr
, 2000 SCC 40, [2000] 2 S.C.R.
144, at para. 172.

[76]

The final point concerns circumstantial
evidence. Like any item of evidence, circumstantial evidence must be relevant,
material, compliant with any applicable admissibility rule and more probative
than prejudicial. Circumstantial evidence is all about inferences. An inference
is a deduction of fact that may logically and reasonably be drawn from another
fact or group of facts found or otherwise established in the proceedings.
Inferences arise from objective facts that give rise to those inferences.
Absent such facts from which the inferences may be drawn, no inference arises,
only impermissible speculation and conjecture.

The Principles Applied

[77]

In my respectful view, this ground of appeal
cannot prevail.

[78]

At trial the principal evidence defence counsel
sought to introduce was a portion of Kim Rolph-Smiths police interview in
which she described her
impression
of an early morning conversation
between the appellant and Gary Lazurek about a wood chipper. The conversation
took place about two days before the appellant killed the deceased. The purpose
for which defence counsel sought to introduce this evidence and later both
police interviews of Kim Rolph-Smith in their entirety was to prove the truth
of what she said.

[79]

In light of the purpose for which defence counsel
sought to introduce the evidence and the lack of any contemporaneous
opportunity to cross-examine the declarant because of her memory deficit, it
was incumbent on defence counsel to establish that the proposed excerpt and
interviews met the necessity and reliability requirements for the principled
exception to the hearsay rule.

[80]

The trial Crown conceded necessity because the declarant
claimed no live memory of the interviews or their contents. That left
reliability to be established on either or on some combination of procedural
and substantive reliability. On the evidence adduced at trial, neither
procedural nor substantive reliability, nor any combination of them was
established.

[81]

Procedural
reliability requires adequate substitutes for testing sources of potential
error so that the trier of fact can rationally evaluate the truth and accuracy
of the hearsay statement proposed for admission. No such satisfactory
substitutes appear here. No video to evaluate the declarants demeanour. No
oath or its equivalent. No warning about the need to speak truthfully and the
consequences of lying. Cross-examination of the declarant is not realistically
available because of the declarants lack of memory of relevant events and of
the interviews themselves. It may not also be without significance that there
appears to be some issue about the competency of the declarant as a witness.

[82]

The standard for
substantive
reliability is high. The only witness who testified on the admissibility inquiry
was the declarant herself. She disclosed that the police came to her home to
talk to her. Beyond that, the record is bankrupt of any evidence about the
circumstances in which the interview was conducted. No evidence was adduced upon
which the trial judge could be satisfied that any of the statements were so
reliable that contemporaneous cross-examination of the declarant would add
little, if anything, to the process. Nor could it be said that any or all of
the statements were so reliable that it was unlikely to change under cross‑examination.

[83]

It follows from what I have said that the
application of the principles of necessity and reliability would not permit the
introduction of the proposed evidence for the purpose of establishing the truth
of their respective contents.

[84]

The appellants submissions that excluding the
evidence violated his right to control his own defence and failed to give
effect to the relaxed approach to the admissibility of exculpatory defence
evidence are equally unpersuasive.

[85]

The appellants right to control his own defence
is
not
unlimited. It does not entitle an accused to introduce evidence
that lacks relevance or materiality or is not compliant with the applicable
rules of admissibility. In much the same way, it does not permit an accused to
advance a defence, justification, or excuse for which there is no evidence
adduced at trial to provide it with an air of reality.

[86]

Relatedly, relaxation of admissibility
requirements when defence counsel tenders exculpatory evidence for reception
does not assist the appellants quest for a ruling favouring admissibility. The
principle first bruited in
R. v. Williams
(1985), 50 O.R. (2d) 321 (C.A.),
at p. 372, leave to appeal refused, [1985] S.C.C.A. No. 168, and cited with
approval by Cory J. in
R. v. Finta
, [1994] 1 S.C.R. 701, at p.
854, does not invite an abandonment of the threshold reliability inquiry when
hearsay evidence is tendered by the defence:
R. v. Kimberley
(2001), 56
O.R. (3d) 18 (C.A.), at para. 80, leave to appeal refused, [2002] S.C.C.A. No.
29;
R. v. Post
, 2007 BCCA 123, 217 C.C.C. (3d) 225, at para. 87, leave
to appeal refused, [2007] S.C.C.A. No. 207.

[87]

In addition, both the specific portion of the
first interview tendered for admission and the interviews themselves have
embedded within them the declarants report of words spoken by others. To the
extent that what others said to the declarant is tendered to prove the truth of
what the others said, it too is hearsay and requires its own exception to
justify admission. None do so.

[88]

The appellant also faults the trial judge for
applying the wrong standard in exercising his discretion to exclude the excerpt
and interviews on the basis that the prejudicial effect of the evidence
exceeded its probative value. The essence of the submission is that the trial
judge applied the standard applicable when the proponent of the evidence is the
Crown, rather than the more stringent standard applicable when the evidence is
adduced by the defence.

[89]

This submission fails for two principal reasons.
The first is that the exclusionary discretion is engaged only in respect of
evidence that is otherwise admissible. In this case, the appellant has failed
to establish that the evidence was admissible under the principled exception to
the hearsay rule or otherwise. It follows that the exclusionary discretion was
not engaged. Any error in its exercise did not occasion the appellant any prejudice.

[90]

Second, I am not persuaded that the trial judge
applied the wrong standard as alleged. The trial judge referred to the evidence
as evidence of
little
probative value, but
substantial
prejudicial
effect. This is consonant with the standard applied to defence evidence, not
that applicable where the proponent of the evidence is the Crown.

[91]

The appellants submission that the trial judge
erred in failing to consider the admissibility of the evidence for a
non-hearsay purpose also fails.

[92]

This argument is inconsistent with the position
the appellant advanced at trial. There, admission was sought on the basis of
the principled exception to the hearsay rule after the claim of past
recollection recorded failed. The hearsay rule is engaged and an exception
required to permit reception of the evidence only where the purpose of
introducing the evidence is to prove the truth of what the declarant said.
Where the purpose of introducing the evidence is otherwise, as is now
suggested, the hearsay rule is not engaged and no exception is required.

[93]

Characterizing the evidence as original
evidence, thus disentangling its reception from the exclusionary grip of the
hearsay rule, does not assist the appellant in his quest to demonstrate error.
Every item of evidence must be relevant. At bottom, what was tendered here was
a witness impression of a conversation between two others. Witnesses give
evidence of what they perceive with their senses. Of sight. Of hearing. Of
smell. While some exceptions exist permitting non-experts to express opinions,
this evidence cannot shelter under that principle.

[94]

This ground of appeal fails.

Ground #2: The Instructions on After-the-Fact Conduct

[95]

This ground of appeal alleges error in the trial
judges instructions to the jury on their use of evidence of after-the-fact
conduct in reaching their verdict. The appellant does not challenge the
admissibility of the evidence, or its characterization as evidence of
after-the-fact conduct, only the adequacy of the instructions about its use.

[96]

To better appreciate the argument advanced, it
is helpful to begin with a brief description of the relevant evidence and a
reference to the impugned portions of the trial judges instructions on its
use.

The Evidence

[97]

The evidence of after-the-fact conduct included
both things done and lies told by the appellant in the immediate aftermath of
the deceaseds death. The appellant:

i.

set fire to the deceaseds bed on which his
charred body was found;

ii.

hid a sock stained with the deceaseds blood in
an old burned speaker in his backyard;

iii.

texted Gary Lazurek claiming that he had gone to
bed at 11:00 p.m. and awakened at 3:26 a.m. the following morning;

iv.

lied to his uncle Ray about how he had injured
his right hand, claiming that he had cut it on a broken mirror on which he
placed a bloodied towel; and

v.

lied to the police about not having seen the
deceased for about one or one and one half months before his death.

The Defence Advanced at Trial

[98]

The appellant admitted that he killed the
deceased, but claimed he did so in lawful self-defence repelling an attack
initiated by the deceased. He did not intend to kill the deceased, nor had he
planned to do so. The appellant denied having set any fire in the deceaseds
home. He claimed that the deceased had done so himself.

The Charge to the Jury

[99]

The trial judge and counsel discussed the
contents of the charge in advance of its delivery. On several occasions, they
debated what should be said about jury use of evidence of after-the-fact
conduct.
R. v. Rodgerson
, 2015 SCC 38, [2015] 2 S.C.R. 760, was a
focal point in their discussion about the use of the evidence that the
appellant set fire to the deceaseds bed.

[100]

The trial judge instructed the jury that they could consider all the
evidence of after-the-fact conduct, along with the rest of the evidence, in
deciding whether the appellant unlawfully killed the deceased. The judge
explained that before the jury could use this evidence in determining whether
the appellant unlawfully killed the deceased, they had to be satisfied first
that the appellant said or did the things alleged to constitute the evidence of
after-the-fact conduct.

[101]

In his instructions to the jury about the state of mind required to
prove that an unlawful killing was murder, the trial judge told the jury that
they could consider:

i.

the common-sense inference that a person intends
the natural and probable consequences of their acts;

ii.

the evidence of the forensic pathologist who
conducted the post-mortem on the deceased about the nature and extent of the
injuries inflicted and the degree of force required to inflict them;

iii.

the appellants evidence about the blows he
inflicted and his emotional state at the time;

iv.

the physical evidence at the scene as reflected
in the photographs and other exhibits filed; and

v.

the evidence that the appellant set fire to the
deceaseds bed to conceal the nature and extent of the deceaseds injuries.

[102]

Towards the conclusion of his charge, the trial judge gave this
instruction:

I instruct you, however, and I mentioned this
a long time ago now, that whatever evidence I have summarized you on one issue
may be used by you on any issue that you may think may be helpful to you. You
can use the evidence then across the board. Everything you have heard you can
use to decide this case in any manner that you wish. Okay? Just because I have
been setting some of it on one issue, does not mean you cannot use it somewhere
else. You can do whatever you want to, as long as it has some relevance to it,
to what you are deciding.

[103]

The trial Crown objected to the last instruction. Defence counsel
agreed. The trial judge recalled the jury and said:

I indicated that the evidence you have heard
may be used as you see fit, that is across the board was the phrase I used. I
want to qualify that instruction as follows: I spoke to you of the relevance of
the use of the conduct or behaviour of the accused after the assault, after the
fight, including the fire and his behaviour with his Uncle Ray and the police
and so forth.

That evidence may be used in this limited way,
to decide whether the actions of the accused were lawful or unlawful. And the
evidence with respect to the setting of the fire, to decide whether the act was
the state of mind for murder, that is, to conceal the extent of injury.

[104]

Apart from his concurrence with the trial Crowns objection, defence
counsel did not object to the instructions on the evidence of after-the-fact
conduct. He expressly agreed with the trial judges corrective instruction.

The Arguments on Appeal

[105]

The appellant contends that the trial judge failed to adequately
instruct the jury on its use of evidence of after-the-fact conduct. Admittedly,
a trial judge need not follow a set formula in providing proper instructions. But,
typically, the instruction should direct the jury about the permitted and
prohibited uses of this evidence and that it cannot be used for its permitted
purpose unless the jury rejects any other explanation advanced for it.

[106]

In this case, the trial judge omitted several essential elements of
a proper instruction. He provided no caution against prohibited use and his
instruction on the permitted use included no limitative words. The judge failed
to tell the jury that this evidence could not be used in determining whether
the murder of the deceased was planned and deliberate. The jury was not
cautioned that to consider this evidence they must first reject any alternate explanations
for the conduct. Nor was the jury instructed, as it should have been, that they
could not infer from this evidence that the appellant was not acting in
self-defence or that the intent required for murder had been established unless
they were satisfied that these were the only reasonable inferences that could
be drawn from all the evidence.

[107]

The appellant points out that, in one respect, the trial judge
misstated the substance of the evidence of after-the-fact conduct. The blood-stained
sock the appellant put inside a speaker in his backyard was not that of the
deceased as the trial judge described them. No evidence was adduced that this was
the deceaseds sock. Although the blood on the sock was that of the deceased, remnants
of sports socks were found on the deceaseds body. This misstatement could have
borne directly on the jurys reasoning process since this meant that the
appellant had already planned to conceal his involvement before leaving the
house and had not acted in self-defence as he claimed in his testimony.

[108]

The respondent acknowledges that the trial judge misspoke when he
described the origin of the sock the appellant put in his backyard speaker. But
apart from this harmless error, the respondent says that the instructions met
the standard required of them.

[109]

Our review of jury instructions, the respondent reminds us, requires
a functional approach. We are to examine the charge as a whole, mindful of the
requirement that it need not be perfect, only proper. We are to determine
whether the instruction enabled the trier of fact to decide the case in
accordance with the governing legal principles on the evidence adduced at
trial. The instructions provided here did that. What is more, an important
factor in assessing their adequacy is the position of defence counsel at trial.
These instructions attracted no objection from defence counsel either before or
after they were delivered.

[110]

The respondent submits that evidence of after-the-fact conduct is
neither more nor less than circumstantial evidence. Its relevance is highly
context and fact specific. It is not the subject of any bright line rules, but
is commonly used to assist in proof of the unlawful character of an accuseds
conduct, to negate a defence rendering conduct lawful, such as self-defence,
and to establish an accuseds state of mind.

[111]

Here, the respondent continues, the trial judge approached the
issues in a series of logical steps reflecting the essential elements of the
offence of first degree murder. As part of the evidence relevant to the issue
of whether the appellant unlawfully caused death, thus was not acting in lawful
self-defence, the trial judge instructed the jury that they could consider the
evidence of after-the-fact conduct he described for them. This included the
entire catalogue of the evidence of after-the-fact conduct. In connection with
the question of whether the Crown had proven beyond a reasonable doubt that the
unlawful killing of the deceased was murder, the trial judge instructed the
jury that they could consider the evidence that the appellant set fire to the
deceaseds bed to conceal the nature and extent of the injuries he had
inflicted. This was the only item of evidence of after-the-fact conduct which
the trial judge left to the jury on this issue.

[112]

The respondent argues that the trial judges instructions made it
clear that the evidence of after-the-fact conduct was simply part of the
evidence available for the jury to consider in reaching their conclusions on
the issues of unlawful killing and the state of mind that accompanied it. The
inferences were permissive, not mandatory, the decision of the jury. The
standard of proof required of each essential element was described both
generally and more specifically when the evidence was entirely circumstantial.

[113]

According to the respondent, cautions about evidence of after-the-fact
conduct, as well as a specific direction about the need to consider and reject
evidence of any alternative explanations, are context and fact-specific. In
this case, the after-the-fact conduct was closely connected temporally with the
offence to which it related. This was not a case where a remote connection made
inference drawing more difficult and thus a caution desirable. No alternative explanations
were advanced, hence the absence of instruction is of no consequence. Trial
counsel did not object to the instructions given.

[114]

The respondent accepts that the weight of the evidence adduced at
trial supports a finding that the partially burned sock with the deceaseds
blood on it found in the appellants backyard was his sock, not that of the deceased
as the trial judge misdescribed it. But this misdescription was of no moment.
The central driver of its probative value was that the appellant attempted to
hide evidence that linked him to the scene of the deceaseds death. The
misstatement was of no practical moment in light of the evidence that the
appellant set the premises on fire incinerating the body of the deceased.

The Governing Principles

[115]

Well-established precedent governs our evaluation of the merits of
this ground of appeal which alleges non-direction jury instructions about
evidence of after-the-fact conduct.

[116]

Our approach when asked to review the adequacy of jury instructions
is functional. We examine the instructions as a whole to determine whether, in
the context of the entire trial, those instructions enabled the jury, as the
trier of fact, to decide the case in accordance with the law and the evidence
admitted at trial. The jury must be properly, but need not be perfectly
instructed. The overriding question is whether the instructions, taken as a
whole, properly equipped the jury to decide the case, despite the absence of
instructions now said to have been required but omitted in error:
Calnen
,
at paras. 8-9.

[117]

Final instructions to the jury need not follow a particular formula.
The words used, the sequence followed, and related considerations fall within
the discretion of the trial judge. What matters is the general sense which the
words used must have conveyed, in all likelihood, to the minds of the jury:
R.
v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 30;
Calnen
,
at para. 8.

[118]

In addition to these general principles, a wealth of precedent
describes what is necessary in final instructions about evidence of
after-the-fact conduct.

[119]

Evidence of after-the-fact conduct is neither more nor less than
circumstantial evidence. As circumstantial evidence, it allows the trier of
fact to draw inferences. Those inferences are based on logic, common sense and
human experience. The inferences must be reasonable according to the measuring
stick of human experience and will depend on the nature of the conduct, the
inferences the proponent seeks to have drawn from it, the positions of the
parties and the totality of the evidence:
Calnen
, at paras. 111-112 (
per
Martin J., dissenting, but not on this point);
R. v. McGregor
, 2019
ONCA 307, 145 O.R. (3d) 641, at paras. 100-101.

[120]

As with any item of evidence adduced at trial, evidence of
after-the-fact conduct may be relevant to and admissible for a particular
purpose or more than one purpose, but not for another or other purposes. In a
jury trial, the trial judge should identify for the jury the permitted and
prohibited purposes for which the evidence of after-the-fact conduct may be
used and that or those for which it cannot be used. The language used to
provide this instruction need not follow a particular formula:
Calnen
,
at para. 113,
per
Martin J. (dissenting, but not on this point);
McGregor
,
at para. 105.

[121]

Typically, a jury instruction about the use of evidence of
after-the-fact conduct in reaching a verdict has three components:

i.

identification
of the evidence as after-the-fact conduct;

ii.

a description of the
permitted
use of
the evidence; and

iii.

a description of the
prohibited
use of
the evidence.

See,
Calnen
, at para. 42;
McGregor
,
at para. 106. Failure to provide an express instruction about the permitted and
prohibited uses of this evidence is not always fatal:
R. v. Adamson
,
2018 ONCA 678, 364 C.C.C. (3d) 41, at para. 65;
Calnen
, at para. 5.

[122]

Where it is admitted, evidence of after-the-fact conduct may present
some unique reasoning risks. It often consists of things done and said at a time
that is temporally remote from the events that form the subject matter of the
charge. This may make it more difficult to draw an inference about the prior
conduct by invoking retrospective reasoning. The evidence may also appear more probative
than it actually is. It may be inaccurate. It may encourage speculation, give
rise to imprecise reasoning, and abet decision-makers in reaching immature
conclusions. As an antidote, judges instruct jurors to take into account
alternative explanations for the conduct before coming to any conclusion about
the persuasive force of the evidence:
Calnen
, at paras. 116-117,
per
Martin J. (dissenting, but not on this point);
McGregor
, at paras.
107-108.

[123]

Among the issues upon which evidence of after-the-fact conduct may
be relevant and admissible is proof of an accuseds mental state or intent when
engaging in conduct that forms the subject matter of the charge. This includes
distinguishing between different levels of culpability:
Calnen
, at
para. 119,
per
Martin J. (dissenting, but not on this point). For
example, an accuseds efforts at concealment may support inferences that:

i.

the accused was acting unlawfully when they
engaged in conduct that forms the subject matter of the charge; and

ii.

the accused was attempting to hide the extent of
the crime, for example, in a homicide case, the nature and extent of the
deceaseds injuries, thus the force required to inflict them, and further, the
state of mind that accompanied their infliction.

See,
Rodgerson
, at para. 20.

[124]

A final point concerns the standard of proof.

[125]

As an item or series of items of circumstantial evidence, this
evidence is not subject to the criminal standard of proof except where it is
the only evidence available to establish an essential element of the offence or
the offence as a whole:
R. v. White
, [1998] 2 S.C.R. 72, at para. 39
(
White 1998
);
R. v. Morin
, [1998] 2 S.C.R. 345, at p. 354.

The Principles Applied

[126]

Several reasons persuade me that this ground of appeal is
unavailing.

[127]

The essence of the complaint, as I understand it, is that the
combined force of several omissions in the charge left the jury unequipped to
evaluate the evidence of after-the-fact conduct in reaching their conclusion
that the appellant unlawfully killed the deceased and, when doing so, had the
state of mind necessary to make the unlawful killing murder. The omissions
related to the prohibited use of the evidence, the obligations to consider
alternative explanations, and a caution not to reach a premature conclusion
based on the evidence.

[128]

To assess the merits of this claim of error, I begin with a weather eye
on two basic principles.

[129]

The first is that my approach must be functional, asking whether the
charge on this issue as a whole enabled the trier of fact to make proper use of
this evidence in rendering its decision. The overriding question is whether the
jury was properly equipped to render its decision in the absence of the
instructions of which complaint is now made. The instructions as a whole must
be proper but they need not be perfect.

[130]

The second principle has to do with the nature of the complaints
advanced. These are allegations of non-direction, not misdirection. Of things
left out, not things said wrong.

[131]

Rarely will final instructions to a jury include everything that
could be said about a particular subject like the use the jury can make of
various items of evidence admitted at trial. But on review, the issue is not
whether something more or something different could have been said, or some
direction could have been more felicitously phrased. The issue is whether, in
the context of the trial as a whole, what was said was sufficient.

[132]

Misdirection does not occur when a judge fails to tell a jury
everything that could be said about a particular subject. On its own,
non-direction is not misdirection. Non-direction only becomes misdirection when
something left unsaid makes wrong something that was said, or where what was
left unsaid was essential to an accurate instruction on the subject:
Adamson
,
at para. 71;
R. v. Demeter
(1975), 25 C.C.C. (2d) 417 (Ont. C.A.), at
pp. 436‑437.

[133]

In this case, apart from the erroneous across the board reference
which was later corrected, the trial judge did not say anything wrong to the
jury about the use of evidence of after-the-fact conduct on the issues of the
unlawfulness of the killing and the appellants state of mind at the time. The
evidence he recited was relevant to those issues and was left as part of the
evidence relevant for consideration in deciding whether the Crown had proven
those essential elements of the offence beyond a reasonable doubt, provided the
jury made the threshold finding required to permit consideration of the
evidence.

[134]

Doubtless, the trial judge could have added an instruction that
enjoined the use of the evidence on other issues. This could have been done
expressly, or simply by adding an exclusive word such as only to the
permitted use instruction. However, I reject the submission that such an
instruction was essential as a prophylactic against improper use. The evidence
was not linked directly or inferentially to any other issue. The jurors were
told what it could be used for. It beggars belief that they would use it
otherwise, especially in light of the corrective instruction on the across the
board reference which advised the jurors of the use of the evidence in this
limited way.

[135]

The evidence of after-the-fact conduct in this case was not, as in
many, temporally remote from the killing of the deceased. Nor were there any
alternate explanations advanced worthy of consideration. The lies were
admitted. The forensic evidence put paid to the appellants claim that the
deceased set fire to his own house. And the jury instructions made it clear
that the jury had to first find that the appellant set the fire to use that evidence
on the issues to which it was relevant.

[136]

The respondent acknowledges that the trial judge erred in his
description of the blood-stained sock found in a burned speaker in the
appellants backyard. The sock contained the deceaseds blood, but the preponderance
of the evidence adduced at trial favoured the conclusion that the sock belonged
to the appellant, not to the deceased as the trial judge advised the jury.

[137]

The error here related to the origin of a piece of evidence admitted
at trial. The trial judge had previously told the jury that it was the jurys
recollection of the evidence that counted, not the recollections of counsel or
the trial judge. Where the recollections differed, the jurors were the final
arbiters of the substance of the evidence.

[138]

The real probative value of this evidence was that the appellant
attempted to hide or otherwise dispose of evidence that linked him to the death
of the deceased. The misdescription tended to indicate that the deceased was
dead at the time his sock was removed, thus that he died before the fire was
started, thereby was not its author. However, the forensic evidence had
already
provided the jury with cogent evidence to infer that the appellant
set the fire. As such, the import of the misdescription was to give rise to a
more limited inference  that the appellant attempted to conceal evidence. This
inference remains the same regardless of who the sock belonged to. The
misdescription did not attract any objection from trial counsel and caused no
prejudice to the appellant.

Ground #3: The Juror Inquiry

[139]

The final ground of appeal arises out of a communication sent by a
juror to the trial judge shortly after the judge concluded his charge. The
specific complaint is that the trial judges response reflects prejudicial
error.

The Essential Background

[140]

The appellant made two Facebook posts shortly before he killed the
deceased. The texts of one of those posts was in these words

RED river RED rover who wants to be OVER

followed by several exclamation
marks.

[141]

In his evidence at trial, the appellant acknowledged that the post
made no sense. He explained that the screen on his cellphone was damaged and
that he meant to send a text

Red rover, red rover, who wants to come over

as an invitation to his friends. He
denied the trial Crowns suggestion that the texts reflected his plan to kill
the deceased. The trial judge left the evidence to the jury as to whether it
reflected a motive to kill the deceased.

The Jurors Note

[142]

Around the time the trial judge concluded his corrective instruction
about his earlier erroneous across the board reference, he received and
disclosed to counsel a question received from a juror:

I am aware of a song (I looked it up) by a
well-known punk music duo; a song that contains lyrics that appear to have
influenced Shane Woods last Facebook post (Red river, red rover, who wants to
be over).

Should I share this with other members of the
jury?

[143]

The trial judge and counsel discussed how the question should be
handled. No one suggested that an inquiry should be held to determine the suitability
of the juror to continue participation in the jurys deliberations. Counsel agreed
with the trial judges proposed response and that he should provide it without
repeating the jurors inquiry. The jury was recalled. The judge instructed
them:

I have this instruction for you, members of
the jury. This case must be decided on the evidence we have heard and the
reasonable rational inferences from the evidence. You must not speculate. You
must not look elsewhere, that is beyond the evidence. Thank you very much.

The Arguments on Appeal

[144]

The appellant says that the trial judge should have conducted an
inquiry to determine the suitability of the individual juror and the jury as a
whole to continue their deliberations. The appellant accepts the strong
presumption of juror impartiality. However, the presumption is rebuttable and
has been rebutted here by the jurors own admission of improper conduct. This
triggered the trial judges obligation to conduct an inquiry.

[145]

The failure to conduct an inquiry, according to the appellant,
deprives us, as the reviewing court, of an appropriate record to evaluate on.
This, in turn, leaves us with no basis upon which we can rest assured that the
juror did not share his information with his colleagues. The judges
instruction was inadequate since the juror had already ignored a prior
direction when they conducted research in the first place. A new trial should
be ordered on the ground that a miscarriage of justice has occurred.

[146]

The respondent submits that nothing that occurred here rebutted the
well‑established presumption of juror impartiality, let alone the impartiality
of the jury as a whole. Nor did the trial judges response deprive this court
of an adequate record by which to determine whether a miscarriage of justice
actually or appears to have occurred.

[147]

The nature of the alleged irregularity is an important factor to
consider in determining whether an inquiry should have been undertaken. Here, a
juror looked up extraneous information about the source of the words
contained in a text posted by the appellant. Apparently similar language
appeared in the lyrics of a song. The inquiry indicated that the information
had not been shared with any other jurors. The question asked was whether it
could be disclosed to the other jurors.

[148]

In his response, the respondent continues, the trial judge did not
repeat the jurors question. This ensured that the information the juror found
was not communicated to the other members of the deliberating jury. And the
instruction given underscored the jurys obligation to decide the case on the
evidence adduced at trial and on no other basis. No more was required.

The Governing Principles

[149]

Two well-established presumptions apply to jurors acting in the
discharge of their duties. Each is rebuttable. The first is that jurors will
discharge their duties in accordance with their oath or solemn affirmation:
R.
v. Bains
, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 61, leave to appeal
refused, [2015] S.C.C.A. No. 478. The second is that jurors understand and
follow the trial judges instructions:
Bains
, at para. 61, citing
R.
v. Corbett
, [1988] 1 S.C.R. 670, at p. 695. See also,
R. v. Durant
,
2019 ONCA 74, 144 O.R. (3d) 465, at para. 146.

[150]

To rebut the presumption of juror impartiality, an appellant must
demonstrate a reasonable apprehension of bias or partiality. This is not an
easy task:
R. v. Dowholis
, 2016 ONCA 801, 341 C.C.C. (3d) 443, at
paras. 18-19, 80.

[151]

The circumstances that may prompt an inquiry into the suitability of
a juror to continue are myriad. Section 644(1) of the
Criminal Code,
R.S.C.,
1985, c. C-46
,
entitles a trial judge to discharge a juror for illness
or other reasonable cause. The subsection is unrevealing about the threshold
for conducting an inquiry, the factors to be considered in making that
determination, or the procedure to be followed on any inquiry that is
conducted. It would seem logically to follow that the decision about whether to
conduct an inquiry falls within the discretion of the trial judge in much the
same way as the discretion to determine the procedure to be followed on any
inquiry that is held:
Durant
, at para. 140. See also,
R. v. Giroux
(2006), 207 C.C.C. (3d) 512 (Ont. C.A.), at para. 34, leave to appeal refused, [2006]
S.C.C.A. No. 211.

[152]

Decisions under s. 644(1) of the
Criminal Code
about the
suitability of a juror to continue are afforded substantial deference on
appeal. They are set aside only when the decision is tainted by an error of law
or of principle, a misapprehension of material evidence, or on the ground that
the decision is plainly unreasonable:
Durant
, at para. 152. There would
seem no principled reason to adopt a different standard where the decision
under review is whether to embark on an inquiry into juror suitability.

The Principles Applied

[153]

I would reject this ground of appeal. In my respectful view, the
trial judge was not required to conduct a juror inquiry, an argument advanced
for the first time in this court. Nor did he err in the remedy he chose or in
the substance of what he said in his instruction.

[154]

The information provided to the trial judge by the juror who asked
the question revealed that the juror had not followed the trial judges announced
injunction against seeking outside information. The juror had looked up some
words used by the appellant in a Facebook post. The words were part of the
lyrics of a song. There was no suggestion that they were at all connected to
the appellant or any kind of extrinsic misconduct or other mischief. The
communication also revealed that the juror had not told any other jurors about
his discovery. That the juror asked whether he should do so seems to confirm
the truth of that statement.

[155]

The trial judge discussed the communications with counsel. No one
suggested an inquiry was necessary. All agreed that an instruction, without
repeating the inquiry, was the appropriate response.

[156]

Nothing that occurred here warranted a juror inquiry. The remedy
afforded was a reasonable response in the circumstances. The trial judges
decision is entitled to deference in this court. It is not cumbered by any
error in law or in principle, or any misapprehension of material evidence and
is not plainly unreasonable. End of story.

Disposition

[157]

It is for these reasons that I would dismiss this appeal.

Released: January 28, 2022 J.M.F.



David
Watt J.A.

I
agree. Fairburn A.C.J.O.

I
agree. Doherty J.A.


