



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Howley, 2021 ONCA 386

DATE: 20210607

DOCKET: C64789

Strathy C.J.O., Rouleau and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Todd Howley

Appellant

Delmar Doucette, Angela Ruffo and Zahra Shariff, for the
    appellant

Gregory Tweney and Rebecca Schwartz, for the respondent

Heard: November 25, 2020 by video
    conference

On appeal from the conviction entered
    on April 9, 2016 by Justice R. Cary Boswell of the Superior Court of Justice,
    sitting with a jury.

By the Court
:

OVERVIEW

[1]

The appellant appeals his conviction for first-degree murder. He
    challenges the trial judges admission of certain internet searches carried out
    on the appellants computer, as well as the appropriateness of the Crowns
    closing submissions before the jury. He seeks to have the conviction for
    first-degree murder quashed or stayed and a conviction for second-degree murder
    substituted. In the alternative, he asks that a new trial be ordered. For the
    reasons that follow, we dismiss the appeal.

FACTS

[2]

The appellant and Paul Maasland were business partners. By mid-June
    2010, Mr. Maasland had advanced the appellant over $100,000 in business loans
    relating to a commercial process for using algae to convert carbon dioxide to
    clean energy. The appellant, however, had spent much of these funds on his own
    personal expenses.

[3]

Two tests of the technology being developed by the appellant had produced
    inconclusive results and it was agreed that a third and final test was needed.
    The appellant and Mr. Maasland arranged to conduct the test at the appellants
    Oakville warehouse on Sunday, August 29, 2010.

[4]

According to video evidence, Mr. Maasland left his Toronto apartment for
    the scheduled meeting at the appellants warehouse just after 9:00 a.m. on
    August 29. He was expected back by 12:30 p.m. for a prearranged lunch date with
    his mother, but he never returned.

[5]

Early the next morning, Mr. Maaslands body was found at the end of a
    boat launch in Bracebridge. He was wearing the same clothes he had been wearing
    when he left for his meeting with the appellant. His head and feet were covered
    in garbage bags and a white nylon rope was tied around his chest. He had
    obviously been badly beaten. The post-mortem examination revealed extensive
    lacerations, fractures and bruising all over his body. The pathologist
    concluded his death was caused by blunt force injuries.

[6]

Just a week after the murder, police in Bracebridge received an
    anonymous letter from someone claiming to have knowledge of the circumstances
    leading to Mr. Maaslands death. The letter claimed that Mr. Maasland was
    murdered in Bracebridge by two unidentified women who knew Mr. Maasland and his
    spouse through their interest in Boxer dogs. The letter contained details that
    only the killer could know. A subsequent forensic examination of the
    appellants computer revealed that this letter had been drafted on September 1,
    2010, just two days after the murder.

[7]

At trial, the Crown tendered considerable circumstantial evidence
    pointing to the appellant as the murderer. This evidence included an extensive
    compilation of surveillance video showing the movement of people and vehicles
    around the appellants warehouse on the day of the murder, forensic evidence
    including DNA analysis connecting the appellant to the crime scene and details
    concerning the appellants internet activity suggesting that the murder had
    been planned.

[8]

The trial lasted six weeks. The Crown called nearly 40 witnesses,
    including numerous experts, and filed 158 exhibits. The appellant called no
    evidence. After a day of deliberations, the jury found the appellant guilty of
    first-degree murder.

ISSUES

[9]

On appeal, the appellant concedes that the Crown led a compelling case
    identifying him as the killer. He maintains, however, that the evidence of
    planning and deliberation was weak. He advances two grounds of appeal as
    follows:

1.

The trial judge erred in admitting the evidence about the appellants
    internet searches regarding nail guns made several weeks before the murder;
    and

2.

The trial judge erred in failing to declare a mistrial after the Crowns
    closing address, in which she referred to certain after-the-fact conduct
    evidence the trial judge had ruled was irrelevant to the issue of planning and
    deliberation. Alternatively, the Crowns submissions constituted an abuse of
    process requiring a stay of proceedings.

(1)

The admissibility of the nail gun internet searches

[10]

An
    expert on computer forensics and data recovery examined two computers seized
    from the appellants warehouse and residence. He discovered that the following
    internet browsing activity had been conducted in the month before the murder:

·

Internet searches conducted on August 2, 2010 relating to nail guns;

·

Internet searches conducted on August 8 and 19, 2010 relating to Mr. Maasland,
    his spouse, London and Boxer dogs;

·

Internet searches conducted on August 26, 2010 using Google maps
    to access locations in Barrie, Norland and Bracebridge;

·

Internet searches conducted on August 28, 2020 relating to
    transportation in and around Bracebridge.

[11]

The
    August 2 internet activity relating to nail guns consisted of the following:

·

Google query for Nail Gun Massacre at 12:04:19 p.m.

·

Wikipedia article titled Nail Gun Massacre accessed at 12:04:45
    p.m.;

·

Google query for nail gun safety at 12:06:34 p.m.;

·

Wikipedia article for nail gun accessed at 12:06:45 p.m.;

·

Google query for nail gun operation at 12:22:48 p.m.;

·

Google query for
nail gun modified at 12:23:11
    p.m.;

·

Second page of search results for nail gun modified at 12:24:11
    p.m.

[12]

In
    a pretrial motion, the appellant challenged the admissibility of the nail gun
    search evidence on the basis that its probative value was outweighed by its
    prejudicial effect. He argued that the searches had no probative value absent
    improper speculation because Mr. Maasland was not killed with a nail gun. In
    particular, the appellant submitted that the Nail Gun Massacre query and
    article carried a high potential for moral prejudice. The Crown took the
    position that the searches provided early evidence that the appellant was
    conducting research on how to kill Mr. Maasland. The trial judge rejected the
    appellants arguments and admitted the evidence.

[13]

On
    appeal, the appellant renews his complaint about the nail gun searches but does
    so on a somewhat different basis. He argues that the evidence amounted to
    needless cumulative evidence and that the trial judge erred in failing to take
    into account the fact that its probative value was diminished by the existence
    of other extensive evidence of planning and deliberation. In the appellants
    submission, the prejudice remained substantial.

[14]

In
    balancing the probative value of evidence against its prejudicial effect, courts
    have come to recognize two well established sources of prejudice: moral
    prejudice and reasoning prejudice. As the Supreme Court explained in
R. v.
    Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908, moral prejudice refers to the risk
    associated with evidence that could paint the accused with the stigma of bad
    personhood and cause the jury to assess the accuseds guilt or innocence on
    the basis of general propensity or disposition: at paras. 42, 100, and 139. By
    contrast, reasoning prejudice refers to the risk that evidence will distract
    the jury from its proper focus on the facts as charged:
Handy
, at paras.
    100, 144 and 146. See also
R. v. Lo
, 2020 ONCA 622, 393 C.C.C. (3d) 543,
    at paras. 111-116.

[15]

Needless
    cumulative evidence carries a risk of both moral prejudice and reasoning
    prejudice. As this court explained in
R. v. Candir
, 2009 ONCA 915, 250
    C.C.C. (3d) 139, at para. 60, leave to appeal refused [2012] S.C.C.A No. 8:

Th[e] forensic piling on of evidence by the acre unnecessarily
    lengthens trials, diffuses their focus and diverts the attention of the trier
    of fact. Cumulative evidence, whether testimony, exhibits or both, often
    occupies a borderland around the periphery of the case, adding nothing to the
    contested issues, preferring instead to suffocate the trier of fact with the
    uncontroversial or marginal.

[16]

Beyond the concerns for trial efficiency raised in
Candir
,
    a trial judges discretion to exclude cumulative evidence may also serve to
    prevent the prejudicial effect which the sheer volume and repetition of
    [certain] evidence would have on the jury:
R. v. Parsons
(1996)
,

146 Nfld. &
    P.E.I.R 210 (Nfld C.A.), at para. 42
. Thus, for example, once a
    fact has been admitted, a trial judge has discretion to exclude further evidence
    that proves the same fact by more prejudicial means:
R. v. Foreman
(2002), 169 C.C.C. (3d) 489 (Ont. C.A.), at para. 29, leave to appeal refused
    [2003] S.C.C.A. No. 199.

[17]

However, evidence is
    not prejudicial merely because it increases the chances of conviction:
R. v.
    McMorris
, 2020 ONCA 844, at para. 124. The Crown will not necessarily be
    piling on by building a strong case. In deciding whether or not to exclude
    cumulative evidence, the question is not whether the accused could be convicted
    with less, but rather whether the prejudicial effect of additional evidence
    outweighs its probative value, keeping in mind that probative value may
    diminish with repetition. As with any such balancing of probative value and
    prejudicial effect,
the trial judges determination is entitled
    to a high degree of deference on appeal:
R. v. Araya
, 2015 SCC 11,
    [2015] 1 S.C.R. 581.

[18]

In
    this case, the appellant argues that the moral prejudice associated with the
    internet searches flows from the fact that a search for Nail Gun Massacre was
    highly inflammatory, evoking images of mass killing and extraordinary violence.
    This would suggest that the person carrying out the search had a propensity for
    violence. It would follow that the appellant was a bad person with a violent
    disposition, independent of any evidence in relation to the murder. The jury
    might use that evidence in improper propensity reasoning.

[19]

The
    appellant also submits that there was reasoning prejudice not known to the
    trial judge at the point when he made his ruling. The ruling had been made
    before all of the evidence had been heard. In cross-examination at trial, the
    expert conceded that he could not tell whether the queries had been typed by
    the user or had been auto-populated when the user began to type a different query.
    This meant that the jury would be required to speculate whether the user
    intended to type in Nail Gun Massacre or whether, after typing in nail gun
    the search engine auto-populated nail gun massacre as an option to be
    searched, which the user clicked on out of curiosity, leading him to the
    Wikipedia article about the movie Nail Gun Massacre.

[20]

In
    the appellants submission, the trial judge failed to measure the probative
    value of the evidence, as attenuated by the already substantial evidence of
    planning and deliberation adduced at trial, against the substantial moral and
    reasoning prejudice, including the need to speculate as to how the search was
    carried out. Had he done so, the probative versus prejudicial value of the
    evidence considered in light of the other evidence led at trial shifted in
    favour of its exclusion.

[21]

We
    disagree. The trial judge properly admitted the evidence and gave thorough
    reasons for his decision to do so. The trial judge rejected the defence
    submission that there was significant prejudice associated with the use of the
    word massacre. The evidence was not offered to show that the appellant had a
    propensity for violence, and any concerns in this regard could be addressed by
    a jury instruction. The trial judge concluded that, based on the number and
    content of the searches it would be open to the jury to find that the appellant
    was not interested in movies but rather was interested in how a nail gun operates
    and whether it could be modified for use as a weapon. The evidence therefore
    had relevance to planning and deliberation.

[22]

The
    internet searches were relevant because, four weeks before the killing, the
    appellant was investigating nail guns and their use, not because the word
    massacre was either part of his search or was auto-populated by the search
    engine as the defence suggested. Even if the jury were to conclude that the
    appellant himself typed Nail Gun Massacre, we see little likelihood of either
    moral prejudice or reasoning prejudice given the purpose for which the evidence
    was tendered.

[23]

The
    suggestion that the evidence of planning was so strong that the admission of
    the internet search evidence amounted to unfair piling on was not a
    submission made by experienced defence counsel at trial. In our view there is
    little merit in the submission.

[24]

When
    the trial judge made his ruling, he had before him a detailed synopsis
    outlining the anticipated evidence in this case, including the other evidence
    relevant to planning and deliberation. It is apparent from his ruling that he
    considered the probative value of the nail gun searches in the context of the
    anticipated evidence as a whole. He correctly observed that planning and
    deliberation was a very significant issue in this case.

[25]

The
    appellant argues that there is no temporal nexus linking the internet search on
    nail guns to the murder because the search was carried out some 27 days
    before the murder. Again, this was for the trial judge to weigh in reaching his
    decision. It is equally plausible to read the internet search evidence as extending
    the temporal nexus to a point earlier in the genesis of the murder.
    Significantly, the search was carried out some four minutes after the appellant
    had agreed to conduct a third test on the project being funded in part by Mr. Maasland.
    This third test was the reason for Mr. Maaslands attendance at the appellants
    premises on the day he was killed. In addition, it was the first in a series of
    four internet searches led by the Crown that were relevant to different aspects
    of the planned killing of Mr. Maasland. The nail gun searches therefore had significant
    probative value as they expanded the length of the planning and deliberation
    alleged by the Crown and showed a constant period of internet activity in the
    period commencing with the arranged visit and ending with the murder. The mere
    fact that there were additional incriminating internet searches does not constitute
    a needless piling on of the evidence.

[26]

In
    any event, the fact that the same purpose may be achieved by the introduction
    of fewer pieces of evidence does not mean that a judge should exercise the
    discretion to exclude relevant evidence. As explained in
Candir
, at paras.
    81-85: The line between enough and too much is not always easy to fathom even
    with hindsight. In this case, while the Crowns case for planning and
    deliberation was strong, it was not so strong that the evidence of the nail gun
    searches created redundancy or repetition. Indeed, the appellant argues
    elsewhere in his factum that while the Crown had a strong case on identity, it
    did not have such a strong case that he had committed a planned murder.

[27]

As
    a result, we agree with the Crowns submission that the line in this case has not
    been crossed.

(2)

The Crowns closing address
    to the jury

[28]

The
    second ground of appeal relates to the Crowns jury address. In the final hours
    of its three-day closing jury address, the Crown referred to certain elements
    of the appellants after-the-fact conduct as being relevant to the question of
    whether the murder was planned and deliberate. Defence counsel sought a
    mistrial on the basis that the Crowns submission violated the trial judges
    ruling that only a limited portion of the appellants after-the-fact conduct could
    be used as evidence of planning and deliberation. In the alternative, defence
    counsel urged that the judge find that the Crowns disobedience of the court
    ruling on this issue amounted to an abuse of process and that dismissal of the
    jury was the appropriate remedy.

[29]

The
    trial judge rejected both requests, finding that a curative instruction was
    sufficient to address concerns arising from the Crowns remarks. The appellant
    submits that the trial judge erred in dismissing the application for a mistrial
    and rejecting the abuse of process claim.

[30]

To
    properly address this issue, some background is required. After the evidentiary
    portion of the trial had concluded, the trial judge provided the parties with a
    draft of his charge. It contained a section summarizing the appellants after-the-fact
    conduct and its relevance to the issue of identity. It also provided that there
    was another use that some of the after-the-fact evidence could be put to. He
    explained that sometimes evidence as to what a person does after a crime has
    been committed can constitute circumstantial evidence of a pre-existing plan.
    He gave as examples the fact that the body being dumped in Bracebridge could be
    seen as having a connection with the internet searches of locations in
    Bracebridge and Gravenhurst, and taxicabs servicing Bracebridge and
    Gravenhurst.

[31]

The
    draft charge did not contain a limiting instruction prohibiting the jury from
    considering other aspects of the appellants after-the-fact conduct on the
    issue of whether the murder was planned and deliberate.

[32]

At
    a pre-charge conference on March 29, 2016 the Crown expressed concern that the
    charge should not foreclose the jurys consideration of additional examples of
    after-the-fact conduct potentially relevant to the issue of whether the murder
    was planned. The Crown invited the judge to include more examples of
    after-the-fact conduct for the jury to consider as evidence that the murder was
    planned and deliberate. Specifically, the Crown gave six examples as follows:

a.

The suggestion that the appellant drove to Bracebridge shortly after the
    murder and while there used the victims phone to place a call to the
    appellant;

b.

The sand from Muskoka Falls beach deposited inside the victims car;

c.

The staging of the scene where the body was dumped;

d.

The quick return to Oakville after dumping the body;

e.

The content of the anonymous letter blaming the murder on two
    unidentified women connected to Mr. Maasland through Boxer dogs, and which said
    his death occurred at Muskoka Falls beach; and

f.

The complete and thorough clean up of the appellants warehouse.

[33]

Two
    days later on March 31, 2016 the trial judge sent counsel a revised charge. In
    a covering email, he indicated as follows: I believe that my decisions in
    terms of the issues raised during the pre-charge conference will be manifest in
    the revised document. He also said he intended to provide brief written
    reasons for his decision with respect to three areas, one of which was a
    decision he made with respect to post-offence conduct.

[34]

The
    revised charge provided by the trial judge contained one additional example of
    after-the-fact conduct relevant to whether the murder was planned and
    deliberate. He cited the anonymous letter prepared after the murder and its
    connection to the appellants pre-offence internet searches of Paul Maasland, his
    spouse, London and Boxer dogs. The revised charge was not revised to contain a
    limiting instruction prohibiting the jury from considering any other after-the-fact
    conduct when deciding whether the murder was planned and deliberate.

[35]

The
    Crowns closing address commenced the following Monday, April 4, 2016. At the
    end of the first day of the Crown closing, the judge advised counsel that his
    written reasons on the issues raised at the pre-charge conference were
    finished. He said he did not hand them out at the start of the day because he
    did not want to distract anyone. He went on to say I dont think anything in
    them would be an advantage to one person or another  It just explains why I
    did what I did. The judge indicated he was prepared to release the reasons at any
    time but was also willing to hold on to them until after the closings were
    complete. Both sides were content to leave the timing of the distribution of
    the reasons up to the judge.

[36]

The
    reasons were in fact distributed the next morning prior to the commencement of
    the Crowns second day of her closing address to the jury. In his reasons, the
    trial judge referred to the six additional items of after-the-fact conduct that
    the Crown argued were relevant to the issue of planning and deliberation. The
    judge explained that it was a close call but, in the end, he concluded that the
    majority of these items of after-the-fact conduct were equally consistent with
    a plan conceived before or after the killing. He would not, as a result,
    instruct the jury that these additional items of post-offence conduct were capable
    of supporting the assertion that the murder was planned and deliberate.

[37]

In
    the final hour of the third and final day of the Crowns closing address, the
    Crown addressed the jury on the issue of planning and deliberation. The Crown
    started by noting that the judge would instruct them on the law relating to
    both planning and deliberation and the use that could be made of the
    appellants after-the-fact conduct as it might bear on that issue. The jury was
    to take their instructions from the trial judge.

[38]

After
    reviewing the pre-offence conduct relevant to the issue of planning and
    deliberation as well as the circumstances of the killing itself, the Crown
    concluded her closing address with a review of the after-the-fact conduct which
    the Crown argued was relevant to planning and deliberation. Included in this
    part of the closing was a reference to each of the six items of after-the-fact
    conduct the Crown had advanced during the pre-charge conference and which the
    judge had since ruled were not relevant to the issue of planning and
    deliberation.

[39]

As
    soon as the jury was released for the day, defence counsel objected to the
    Crowns reference to the items of after-the-fact conduct the judge had ruled
    were irrelevant to planning and deliberation. The next morning defence counsel filed
    a notice of application seeking a mistrial.

[40]

Both
    Crown counsel apologized to the court and to the appellant for running afoul of
    the courts ruling on the scope of after-the-fact conduct evidence relevant to
    the issue of planning and deliberation. The Crown assured the court that its
    conduct was not intentional but simply the result of not having read the
    courts ruling prior to concluding its closing submissions.

[41]

After
    hearing submissions on the application, the trial judge dismissed the
    appellants application and indicated that he would provide an immediate
    curative instruction to the jury. A draft of it was provided to counsel for
    their review and input. The curative instruction was delivered that same day
    before defence commenced its closing. It clearly spelled out the after-the-fact
    conduct the jury could consider on the issue of planning and deliberation and
    that which it could not.

[42]

In
    addition, the charge delivered the next day contained the same curative
    instruction on after-the-fact conduct. A hard copy of the instructions was provided
    to the jury for their review during deliberations.

[43]

With
    that background we turn to the issue on appeal. The appellant argues that the
    trial judge erred in denying the mistrial application. He argues that Crown
    counsels closing address showed an egregious disregard for an express ruling.
    The closing on the issue of planning and deliberation was passionately and
    strongly made on a central issue in the case. Although the Crown had a
    strong case that the appellant had committed the murder, it did not have such a
    strong case that the murder had been planned.

[44]

In
    the appellants submission, when viewed in context, Crown counsels egregious
    and improper use of after-the-fact conduct could not be corrected. Through an
    impermissible step by step line of argument, the Crown had improperly linked
    and thus embedded in the jurys mind a combination of relevant after-the-fact
    conduct and irrelevant conduct, some of which the Crown counsel said was so
    powerful it could not be overstated.

[45]

The
    appellant suggests that the jury may well have been convinced by the
    painstakingly detailed and powerful climactic conclusion of the Crowns closing
    address where it focused on the issue of planning and deliberation. Any instruction
    telling them to disregard parts of the combined evidence that had convinced
    them was not about to unconvince them. As trial defence counsel stated in her
    application for a mistrial, it was impossible to unring the bell.

[46]

We
    disagree. Counsel acknowledged that the trial judges decision to refuse a
    mistrial and give a corrective instruction is a discretionary one, and that a
    corrective instruction will usually be sufficient to ensure trial fairness:
R.
    v. Rose
, [1998] 3 S.C.R. 262, at para. 126. The declaration of a mistrial
    is a drastic remedy and only appropriate as a measure of last resort in the
    clearest of cases where there is a real danger that trial fairness has been
    compromised:
R. v. Khan
, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 79;
R.
    v. Chiasson
, 2009 ONCA 789, at para. 14. Even in cases where the Crowns
    improper closing is not promptly corrected, this court has held that a mistrial
    is not necessarily warranted:
R. v. Mallory
, 2007 ONCA 46, 217 C.C.C.
    (3d) 266, at paras. 342-343.

[47]

It
    is also well established that the trial judges decision not to grant a
    mistrial is entitled to a high degree of deference having particular regard to
    his appreciation of the context and the impact of the submissions on the jury
    and the suitability of a corrective instruction to negate that impact:
Khan
,
    at paras. 79-80;
R. v. Zvolensky
, 2017 ONCA 273, 352 C.C.C. (3d) 217, at
    paras. 185-186, leave to appeal refused, [2017] S.C.C.A. No. 403. When the
    alleged unfairness arises in the context of counsels closing address to the
    jury, a timely and focussed curative instruction will be a sufficient remedy in
    the vast majority of cases. The central question is whether what was said
    deprived the accused of a fair trial:
R. v. Romeo
, [1991] 1 S.C.R. 86,
    at p. 95.

[48]

In
    choosing to provide a curative instruction, the trial judge clearly understood
    and was guided by the relevant principles and his reasons disclosed no error in
    principle nor can they be said to be clearly wrong.

[49]

As
    the Crown points out, the trial judges corrective instruction was timely and
    complete. It was also repeated as part of his charge. Our faith in the jury
    system is grounded in the firm belief that juries will follow the instructions
    they are given by trial judges:
R. v. Corbett
, [1988] 1 S.C.R. 670, at
    p. 695. The judges instructions here were firm and clear, and the jury could
    not have misunderstood them. There is no basis on which to conclude they would
    not follow them.

[50]

The
    appellant further argues that the trial judge erred in failing to find that the
    Crown conduct in this case constituted an abuse of process. In his submission,
    what Crown counsel did, whether intentionally or through willful blindness, falls
    into both categories of abuse of process recognized by the courts, as it was
    both an attack on the appellants right to a fair trial and an attack on the
    integrity of the justice process. Consequently, the appellant submits that a
    stay of proceedings is necessary and appropriate in the circumstances. We would
    not give effect to this submission.

[51]

As
    the Supreme Court stated in
R. v. Babos
, 2014 SCC 16, [2014] 1 S.C.R.
    309, at para. 31, there are generally two categories of abuse of process: cases
    in which state conduct compromises the fairness of an accuseds trial, and
    cases in which state conduct creates no threat to trial fairness but risks
    undermining the integrity of the judicial process. In the most drastic cases,
    an abuse of process may justify a stay of proceedings. In order to apply a
    stay, the court must be satisfied: 1) that the prejudice to the accuseds fair
    trial rights will be manifested, perpetuated, or aggravated through the
    conduct of the trial, or by its outcome; 2) that there is no alternative
    remedy capable of redressing the prejudice; and 3) where there is still
    uncertainty over whether a stay is warranted after steps (1) and (2), the court
    is required to balance the interests in favour of granting a stay, such as
    denouncing misconduct and preserving the integrity of the justice system,
    against the interest that society has in having a final decision on the
    merits:
Babos
, at para. 32, citing
R. v. Regan
, 2002 SCC 12,
    [2002] 1 S.C.R. 297.

[52]

Applying
    this framework, we do not find that the Crowns error in this case rises to the
    level of an abuse of process, much less an abuse of process requiring a stay of
    proceedings.

[53]

It
    is apparent that the Crown made a mistake for which it apologized. The Crown
    who delivered the closing address accepted responsibility for not reviewing the
    judges written reasons on the charge-related issues before concluding her
    address. In the way the matter unfolded, it would not have necessarily been
    apparent to Crown counsel that the judges ruling required immediate attention
    and would impact on what the Crown could say in its closing submissions. In
    fact, the trial judge even offered to delay its release until after the closing
    addresses were complete. In addition, and contrary to the appellants
    submission, we do not believe the changes the trial judge made to the draft
    charge would have clearly alerted the Crown to the importance of reviewing the
    reasons for his ruling or as signalling the trial judges view that five of the
    six elements of post‑offence conduct discussed at the pre-charge
    conference could not be put forward as post-offence conduct relevant to the
    issue of planning and deliberation.

[54]

Even
    if we were to conclude that the trial judges email and draft charge should
    have alerted the Crown to the important changes contained in the trial judges ruling,
    the Crowns error does not provide a basis to find an abuse of process. In his
    ruling on the mistrial application, the trial judge made strong findings of
    fact that this was a one off" mistake at the tail end of a trial in
    which, of the many things that could go wrong  none did. There is no basis
    to interfere with that finding.

[55]

The
    fairness of the trial was not irreparably compromised by the impugned portion of
    the Crowns closing address. As we have explained, the curative instruction
    crafted in response to the mistrial application appropriately delineated which
    elements of the appellants after-the-fact conduct could be considered by the
    jury on the issue of planning and deliberation and which could not. There is no
    basis to conclude that the jury would not have followed the judges
    instructions. Nor was the integrity of the judicial process undermined. This
    was simply one misstep in a lengthy and complex murder trial otherwise
    characterized by exceptional collaboration, professionalism, advocacy and
    courtesy by counsel on both sides of the case. There is no evidence that the
    Crowns submissions were a deliberate attempt to defy the courts ruling or to
    mislead the jury. The Crown readily accepted responsibility for its mistake.
    Finally, the impugned submissions did not denigrate the appellants fundamental
    procedural rights, such as the presumption of innocence, the right to remain
    silent or the burden of proof.

CONCLUSION

[56]

For
    these reasons, we dismiss the appeal.

Released: June 7, 2021 G.R.S.

George R. Strathy C.J.O.

Paul Rouleau J.A.

S. Coroza J.A.


