



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hayes, 2020 ONCA 284

DATE: 20200504

DOCKET: C64333

Feldman, Tulloch and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mathew Hayes

Appellant

James Harbic and Robert Harbic, for the
    appellant

Sean Horgan and Craig Harper, for the
    respondent

Heard: December 5, 2019

On appeal
    from the conviction entered by Justice M. Gregory Ellies of the Superior Court
    of Justice, sitting with a jury, on December 14, 2016.

Tulloch J.A.:

I.

OVERVIEW

[1]

On June 4, 2013, at approximately 7:30 a.m., Christopher Parsons body
    was found by his roommate, Laura Heavens. He was naked, lying face down on the
    floor, with a pool of blood under his head. There was blood spatter surrounding
    his body, including on the walls and ceiling.

[2]

Forensic analysis revealed that Mr. Parsons had suffered at least seven
    blows to his head, a sharp force injury to his neck, as well as lacerations to
    his forehead, face, and scalp. There were also minor injuries consistent with a
    physical altercation. The murder weapon was not identified or located.

[3]

The appellant, Mr. Hayes, a friend of Mr. Parsons, was charged and
    subsequently convicted of first-degree murder in his death.

[4]

Mr. Hayes now appeals his conviction. For the reasons that follow, I
    would dismiss the appeal.

II.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The day before the murder

[5]

Mr. Parsons worked at a gas station in Haileybury, Ontario. On the day
    before the murder, he worked a shift from 2:00 p.m. to 10:00 p.m. After his
    shift ended, he met up with his roommate, Laura Heavens, and friends, Caitlin
    Willard, and the appellant. He drove them to various locations and eventually
    dropped Ms. Heavens off at a friends house, where she spent the night. He
    dropped Ms. Willard and the appellant off at the Silverland Motel in
    Cobalt, Ontario, which is about an eight minute drive from Haileybury. At some
    point during the car ride, Mr. Parsons mentioned that he was receiving money in
    his bank account that night.

[6]

The appellant and Ms. Willard spent the night at the Silverland Motel.
    Earlier that day, they had moved their belongings out of their motel room with
    the help of Ms. Heavens. Both the appellant and Ms. Willard were unemployed and
    were being forced to leave their room at the Silverland due to their inability
    to pay rent. At trial, Ms. Heavens described them as in dire financial
    circumstances, [a]lmost starving broke. She testified that the appellant had
    asked her if she would drive the car while he robbed the gas station where Mr.
    Parsons worked. She thought he was joking.

[7]

At trial, Ms. Willard acknowledged the occurrence of this discussion
    between the appellant and Ms. Heavens. She stated that the two also discussed
    the possibility of robbing Mr. Parsons, and that Ms. Heavens had mentioned that
    Mr. Parsons kept his bank PIN on the back of his bank card.

The day of the murder

[8]

At approximately 7:30 a.m. on June 4, 2013, Ms. Heavens returned to her
    and Mr. Parsons apartment after spending the night at her friends house. At
    7:36 a.m., Ms. Heavens called 911 to attend to her apartment where she
    found Mr. Parsons lying on the floor in his bedroom.

[9]

A few hours prior, at 5:23 a.m., the appellant was identified on video
    surveillance leaving the Silverland Motel. He appeared to be carrying something
    in his hand.

[10]

At
    5:37 a.m., he was again observed on video, this time at a convenience store. He
    was carrying a white plastic bag. The video appears to show a rigid object
    inside the bag.

[11]

Later,
    at 6:17 a.m., the appellant was seen on video using Mr. Parsons bank card to
    withdraw $160 from an ATM.

[12]

At
    approximately 6:41 a.m., the appellant was seen again on video at the
    convenience store. He no longer appeared to be carrying the white bag with the
    rigid object inside.

[13]

At
    trial, Ms. Willard claimed that, before he left that morning, the appellant told
    her that he was going to rob Mr. Parsons. She testified that he left their room
    and, when he returned, told her that Mr. Parsons had not been home, but that he
    had run into his father, who had given him some money.

[14]

The
    appellant testified at trial. He claimed that he arrived at Mr. Parsons house
    around 5:50 a.m. to ask whether he had left his morphine pills in Mr. Parsons
    car. He testified that he went early in the morning because he was worried that
    someone else would find the pills. He hitchhiked from Cobalt to Haileybury. He was
    dropped off at a convenience store. He then walked to Mr. Parsons house,
    taking an indirect route. When he got to Mr. Parsons house, he knocked but there
    was no answer. He then went into Mr. Parsons car, which was unlocked, and took
    Mr. Parsons wallet and his own morphine pills. He then used the card at an
    ATM, withdrawing $160, before hitchhiking back to Cobalt.

[15]

With
    regards to the white plastic bag and the apparent object inside, he testified
    that he was a regular cannabis user and that the bag contained a bong. He
    claimed that, on his return trip, he put the bong up his coat sleeve and no
    longer carried the bag.

[16]

At
    approximately 7:14 a.m., the appellant was seen on camera walking back to the Silverland
    Motel after being dropped off nearby.

[17]

Later
    that day, at approximately 2:10 p.m., the appellant was again seen on camera
    walking with a black garbage bag.

[18]

The
    appellants DNA was not found at the apartment, nor on any of the items seized
    from it. At trial, however, a forensic scientist testified to the fact that the
    absence of evidence (of someone being present) was not evidence of absence.

The days following the murder

[19]

On
    or about June 8, 2013, a few days after Mr. Parsons was killed, the appellant
    and Ms. Willard took a trip together to Kirkland Lake. Ms. Willard testified
    that, during the trip, they got into an argument while they were intoxicated.
    She claimed that, during the fight, the appellant told her that he had murdered
    Crispy, the name by which she knew Christopher Parsons. In her eventual
    statement to police, Ms. Willard noted that the appellant had told her that he
    had killed Mr. Parsons with a hammer and a pocket knife. At trial, she initially
    could not remember any details of what he had told her, other than that he had
    killed Mr. Parsons. Crown counsel then presented her with her police
    statement for the purpose of refreshing her memory. She then testified that the
    appellant had told her that he had used a hammer and a pocket knife as weapons.
    A hammer in the appellants possession was later recovered. Blood was not
    detected on it and no DNA testing was performed.

[20]

Ms.
    Willard also testified that she believed the appellant had communicated to her
    that he had burned the clothes he was wearing on the day of the murder. He did
    not say this to her explicitly but, when she asked him about his clothing, he
    communicated it through a motion of setting something on fire with a lighter.

[21]

The
    appellant denied confessing to Ms. Willard that he killed Mr. Parsons. He
    agreed that they had gone to Kirkland Lake together and had a fight. He also
    agreed that he had burned his clothes from the day of the murder, but denied
    that this was because there was blood residue on them. Instead, he testified
    that, after Ms. Willard was shown a picture of him at a bank machine during a
    meeting with a police officer on June 7, 2013, she told him he would get blamed
    for the murder because he had stolen Mr. Parsons bank card, and that he should
    burn his clothes. He ended up burning the clothes along the shoreline of Cobalt
    Lake and throwing the remains in the water.

The appellants arrest and statement to police

[22]

The
    appellant was arrested on July 10, 2014, and gave a statement to the police on
    October 7, 2014. The interview lasted approximately five hours. In the
    interview, he told the police that he did not use Mr. Parsons bank card to
    take money out of his bank account.

[23]

At
    trial, the Crown sought to introduce the statement the appellant made to the
    police denying that he had withdrawn money from Mr. Parsons account as a form
    of after-the-fact conduct: 2016 ONSC 6178. The appellant argued that it should
    be excluded because it was obtained in oppressive circumstances, using police
    trickery and was therefore involuntary. Among other things, he argued that the
    police officer undermined his right to counsel by telling him a story about Al Capones
    lawyer, which was designed to, and had the effect of, undermining the
    appellants confidence in his own lawyer.

[24]

The
    trial judge granted the application to include the statement, finding that the
    story was not told for the purpose of undermining the appellants confidence in
    his own lawyer, nor did it have such an effect. In context, it appeared to be a
    story about the lawyers moral duty to his children, told to convince the
    appellant to confess for the sake of his own children.

Crimestoppers tip

[25]

In
    February 2015, the Crown was advised that the police had received an anonymous
    Crimestoppers tip relating to the murder of Mr. Christopher Parsons. The tip
    had been submitted anonymously in writing through an online portal called
    Webtip. On March 11, 2015, the Crown informed defence counsel that a tip had
    been received and that it suggested that someone other than the appellant was
    responsible for Mr. Parsons murder. The tip also suggested a motive for the
    commission of the murder. However, the Crown noted that it did not intend on
    disclosing the wording of the tip, because doing so could reveal the identity
    of the person who provided it. Neither the police nor the Crown were aware of
    the identity of the tipster.

[26]

Prior
    to trial, the appellant brought an application seeking an order compelling the
    Crown to disclose the wording of the tip on the basis that his innocence was at
    stake: 2015 ONSC 6366. The application judge denied the application, finding
    that the appellant had failed to meet the threshold test to trigger the
    innocence at stake exception to informer privilege. The appellant failed on the
    basis that there was other evidence with which he could raise a reasonable
    doubt as to his guilt. Specifically, there was circumstantial evidence on which
    the appellant could raise an alternate suspect defence.

Third-party suspect application

[27]

Prior
    to trial, the appellant sought to introduce alternate suspect evidence against
    three people: Laura Heavens (Mr. Parsons roommate), Roger Busch (his
    neighbour), and Vanessa Tracey (his friend): 2016 ONSC 6103.
[1]
The trial judge allowed the
    application with respect to Ms. Tracey, but denied it for Ms. Heavens and Mr.
    Busch. The appellant argued that Ms. Heavens had a motive to kill Mr. Parsons
    because he had reported her for welfare fraud a few days earlier. Mr. Busch
    had a motive, either out of greed to fund a drug habit or out of jealousy
    because Mr. Parsons lived with Ms. Heavens, who was Mr. Buschs former
    girlfriend. The trial judge found that there was no air of reality to Ms.
    Heavens as an alternate suspect, as there was no evidence that she knew that
    the victim had reported her for welfare fraud until after he was murdered. He
    similarly found that there was no evidence connecting Mr. Busch to the murder
    and no coherent evidence of motive or animus.

Jury trial and verdict

[28]

The
    appellant was tried before a jury and found guilty of first-degree murder.

III.

ISSUES

[29]

The
    appellant appeals his conviction and raises the following nine issues:

1)

Did the trial judge err by not excluding the
    appellants statement to the police on the basis of police trickery?

2)

Did the trial judge err in denying the
    third-party suspect applications against Laura Heavens and Roger Busch?

3)

Did the trial judge err in failing to order the
    disclosure of the Crimestoppers tip?

4)

Did the trial judge err in not directing a
    verdict of acquittal on the charge of first-degree murder?

5)

Did the trial judge err in his
W.(D.)
instructions
    about the proper use of the evidence of the white plastic bag?

6)

Did the trial judge err in his instructions to
    the jury on circumstantial evidence?

7)

Did the trial judge err in failing to correct
    the Crowns misstatement of evidence in its closing address?

8)

Did the trial judge err in failing to correct
    the accidental disclosure of bad character evidence?

9)

Did the trial judge err in accidentally informing the jury that the
    appellant was in custody during the trial?

IV.

ANALYSIS

1)

Did the trial judge err by not excluding the appellants statement to
    the police on the basis of police trickery?

[30]

After
    the appellant was arrested, he was transported from the North Bay Jail (where
    he was in custody for another matter) to the North Bay Detachment of the
    Ontario Provincial Police. He spoke twice with legal counsel. He was later
    transported to the Temiskaming Detachment where he was interviewed on October
    7, 2014, by Detective Sergeant Darren Miller. The interview began around 12:49
    p.m. and ended at 5:55 p.m., lasting approximately five hours.

[31]

Approximately
    four hours into the interview, Detective Miller began telling the appellant the
    story of Easy Eddie OHare, who, according to Detective Miller, was Al
    Capones lawyer. According to the story, after the birth of his son, OHare had
    a change of heart about representing Capone. OHare subsequently went to the
    authorities and betrayed Capones confidence, thereby breaching his
    solicitor-client relationship.

[32]

The
    relevant portion of the exchange is captured below:

Detective Miller: no well Easy Eddie was a
    lawyer for Al CAPONE so you can imagine what kinda lawyer that would be right
    hed definitely be aware of the corruption and murder and everything else
    involved with the mafia obviously but he was a really good lawyer and he was
    really really well taken care of by the mafia and Al CAPONE and all his mafia
    ya know tonnes of money flashy cars nice house everything else and um well
    everything was wonderful he had a really good looking woman that he hooked up
    with who was attracted to him and you know what they ended up falling in love
    and she ended up having a baby well after they had a baby and he now had a son
    it was a baby boy um it changed for him and he looked ya know as the baby was
    growing and developing as a baby he looked and went ya know I dont want this
    lifestyle this is not what I wanna bring my child into ya know and and learn
    from me ya know like parents watch their parents learn from their parents
    children sorry learn from their parents right uh at all ages right out even
    through adulthood lets face it like we still talk to our parents right we
    still learn from em or or people we like or respect uncles aunts it doesnt
    matter not just parents grandparents right that continues all through life so
    anyway Easy Eddie who was the best lawyer there was got CAPONE off on numerous
    things decided ya know what I cant do this whats more important for me is my
    son to learn the importance of of good being good so he made a very big
    decision to turn against Al CAPONE and kinda come forward with all the things
    that he was aware of and he knew what that would in in result in ya know and I
    dont even think I have to spell it out were talking mafia with the worst of
    the worst right so you know its gonna be his demise but he made that decision
    Mat now Im gonna tell you another story you know the OHare airport in Chicago



Detective Miller: but the thing is ya know do
    you see where Im going with that though do you understand because this is an
    opportunity for you

The appellant: I understand I understand what
    youre trying to do yeah

Detective Miller: but but the last thing you
    wanna do Mat the last thing you wanna do is send a message to your kids ya know
    theyre not going anywhere theyre gonna be here your got a lotta life left but
    it goes that far ya know how I said like outside impact and stuff but you can
    show your kids that people make mistakes but the last thing you wanna show them
    is to le ya know and to take responsibility and admit that they own mistakes

[33]

Prior
    to trial, the Crown brought an application to have the videotaped interview
    admitted as evidence. The Crown argued that the statements made by the
    appellant during the interview, including his lie about the use of Mr. Parsons
    bank card, were voluntary. Defence counsel disagreed, arguing that the Easy
    Eddie story amounted to police trickery, and that the effect of the story was
    to undermine the appellants confidence in his lawyer to maintain
    confidentiality.

[34]

The
    trial judge held that, while a police attack on an accuseds willingness to
    trust in their lawyer could constitute police trickery, the Easy Eddie story
    was not told for the purpose of undermining the appellants relationship with
    his lawyer. Rather, Detective Miller had told the story in an attempt to
    persuade Mr. Hayes to tell the truth for the sake of [his] children: 2016 ONSC
    6178, at para. 46. None of the comments during the exchange can be reasonably
    construed as suggesting that the appellants lawyer would betray his confidence
    and there was no evidence to suggest that the appellant interpreted the story
    that way.

[35]

On
    appeal, the appellant submits that the trial judge erred in his interpretation
    of the story. The true purpose of the Easy Eddie story was to suggest to the
    appellant that, despite any assurances made to him by counsel regarding
    privilege, there was a real possibility that his lawyer would share privileged
    information against his best interest. The appellant points to the case of
R.
    v. Jackson
(2009), 190 C.R.R. (2d) 72 (Ont. S.C.), in which one of the
    accused, Mr. Serieaux, was charged with first-degree murder. During an
    interview with police, an officer stated that, Your lawyer has given you your
    rights and told you not to say anything but also your lawyers not the one that
    first facing [sic] the First Degree Murder charge either so Im not sure if he
    took the time and I dont want to know: at para. 75. The officer then
    suggested that the right thing would be to give a statement. The trial judge
    found that the comment by the officer was made to induce the defendant to make
    a statement contrary to the advice of the defendants lawyer and was
    tantamount to him saying that giving a statement would make things better for
    him in the trial process than following his lawyers advice to remain silent:
    at para. 79. He found that the effect of that statement was to undermine the
    client/lawyer relationship and hence, the balance of the statement should not
    be admitted into evidence: at para. 80.

[36]

The
    appellant argues that the comments made in this case are comparable, as a
    reasonable person in his situation would have drawn the inference that his
    lawyer could betray his trust.

[37]

I
    do not agree.

[38]

The
    confessions rule, as outlined by the Supreme Court of Canada in
R. v.
    Oickle
, 2000 SCC 38, [2000] 2 S.C.R. 3, establishes that, whenever a
    person in authority questions a suspect, any statement made can only be
    admitted where the Crown can demonstrate, beyond a reasonable doubt, that it
    was made voluntarily: at para. 30. The rule is animated by [o]ne of the
    overriding concerns of the criminal justice system  that the innocent must
    not be convicted: at para. 36.

[39]

Where
    the voluntariness of an accuseds statement is at issue, a trial judge must
    engage in a contextual analysis, with an eye to a number of relevant factors,
    including: 1) whether there were any threats or promises; 2) whether there were
    any oppressive circumstances; 3) whether the accused had an operating mind; and
    4) whether there were any instances of police trickery:
Oickle
,

at
    paras. 47-71.

[40]

Where,
    as here, there are allegations of police trickery, the trial judge must engage
    in an inquiry which, while related to voluntariness, has a more specific
    objective [of] maintaining the integrity of the criminal justice system:
Oickle
,
    at para. 65. While the police may resort to tricks or other forms of deceit in
    order to legitimately pursue their investigations, a confession induced by the
    use of police trickery will not be admissible where the conduct of the police
    would shock the community: at para. 66, citing
Rothman v. The Queen
,
    [1981] 1 S.C.R. 640, at p. 697
per
Lamer J. (concurring);
R.
    v. Collins
, [1987] 1 S.C.R. 265, at p. 286-287.

[41]

Overall,
    in undertaking the confessions rule analysis, the trial judge should strive to
    understand the circumstances surrounding the confession and ask if it gives
    rise to a reasonable doubt as to the confessions voluntariness, taking into
    account all aspects of the rule:
Oickle
, at para. 71. If a trial
    judge properly considers all the relevant circumstances, then a finding
    regarding voluntariness is essentially a factual one, and should only be
    overturned for some
palpable and overriding
error
    which affected [the trial judges] assessment of the facts: at para. 71,
    citing
Schwartz v. Canada
, [1996] 1 S.C.R. 254, at p. 279 (emphasis in
Schwartz
).

[42]

In
    determining whether the use of the story of Easy Eddie amounted to police
    trickery, the trial judge considered the appropriate test as outlined in
Oickle
.
    His decision regarding the voluntariness of the appellants statement was,
    therefore, a finding of fact. Absent a palpable and overriding error, his
    decision is subject to deference. In reading the exchange between Detective
    Miller and the appellant, it is clear that the purpose of the story was to
    attempt to persuade the appellant to admit to the murder of Mr. Parsons for the
    sake of his children, as the trial judge found. Detective Miller suggested that
    Easy Eddies decision to turn against Al Capone for the sake of his son
    was the right thing to do and that, likewise, it would be good for Mr. Parsons
    to act honestly and be a model for his children. In this way, the story is
    clearly dissimilar to the comment made by the police in
Jackson
, where
    the thrust was to impugn the accuseds lawyer and their advice. There was no
    error.

2)

Did the trial judge err in denying the third-party suspect applications
    against Laura Heavens and Roger Busch?

[43]

Prior
    to his trial, the appellant brought an application to introduce evidence of alternate
    suspects in the death of Mr. Parsons. Specifically, the appellant sought to
    introduce evidence with respect to Vanessa Tracey, Roger Busch, and Laura
    Heavens.

[44]

The
    trial judge allowed the application with respect to Ms. Tracey, finding that
    there was evidence of a sufficient connection between her and the crime. Regarding
    Mr. Busch and Ms. Heavens, however, the trial judge found that there was
    insufficient evidence to establish an air of reality to the claim that either
    one of them was involved in the killing of Mr. Parsons: 2016 ONSC 6103.

[45]

Mr.
    Busch, who was Mr. Parsons neighbour, was a drug dealer and, at the time of
    the murder, was serving a conditional sentence that required him to remain in
    his place of residence, except for certain brief periods of time. He testified,
    along with another woman, Tessa Mercier, that they were at his apartment on the
    night of June 3, 2013. Mr. Busch had previously been in a romantic relationship
    with Ms. Heavens, who was living with Mr. Parsons at the time. The defence
    argued that Mr. Busch killed Mr. Parsons either as a result of jealousy over
    his relationship with Ms. Heavens, or because he wanted or needed Mr. Parsons
    money.

[46]

The
    trial judge found, however, that there was no evidence that Mr. Busch was ever
    in Mr. Parsons apartment, that he had ever sold drugs to Mr. Parsons, or that
    he was jealous of Mr. Parsons relationship with Ms. Heavens. The trial judge
    also noted that, if Mr. Busch had killed Mr. Parsons for money, there was no
    evidence to explain why the appellant had been the one attempting to use Mr. Parsons
    bank card, as opposed to Mr. Busch.

[47]

With
    respect to Ms. Heavens, she was living with Mr. Parsons at the time of his
    murder. Prior to his death, Mr. Parsons reported Ms. Heavens to the welfare
    authorities on allegations of fraud. On the night of June 3, 2013, she spent
    the night at the home of her friend, Rene Dumais. She found Mr. Parsons the
    next morning in their apartment. The defence contended that she had been
    involved in a plan with Mr. Busch to kill Mr. Parsons. The trial judge
    disagreed, finding that there was no evidence of any plan. Ms. Heavens was also
    without a key to Mr. Parsons apartment and was staying with Mr. Dumais
    the night before the murder (the door was unlocked when she arrived that
    morning). The trial judge also found that there was no evidence to refute that
    Ms. Heavens was unaware of the fact that Mr. Parsons had reported her to
    the welfare authorities until after his death.

[48]

The
    appellant argues that the trial judge erred in dismissing the application to
    allow him to adduce evidence against Mr. Busch and Ms. Heavens. Ms. Heavens
    had a motive to kill Mr. Parsons, as he had recently reported her to the welfare
    authorities for two incidents of fraud. She was also alleged to have previously
    stolen money from him. At the time of the murder, Ms. Heavens was living with
    Mr. Parsons. She also had been in a prior relationship with Mr. Busch, a
    drug dealer with a criminal record for violence. His alibi for the night of
    June 3, 2013 was only corroborated by one person, Ms. Mercier. As such, there
    was an air of reality to the proposition that either of Ms. Heavens or Mr.
    Busch was involved in the death of Mr. Parsons.

[49]

I
    do not agree.

[50]

Where
    an individual is charged with an offence, it is open to the accused, as part of
    the defence, to adduce evidence to prove that someone else, in fact, committed
    the offence:
R. v.
Grandinetti
, 2005 SCC 5,
    [2005] 1 S.C.R. 27, at para. 46. In
Grandinetti
, the Supreme
    Court identified the circumstances in which an accused may raise such evidence.
    The evidence must be relevant and have sufficient probative value, such that
    there is a sufficient connection between the third party and the crime: at
    para. 47. The evidence connecting the third party to the offence may be
    inferential, but the inferences must be reasonable, based on the evidence, and
    not amount to speculation: at para. 47. In other words, the defence must show
    that there is some basis upon which a reasonable, properly instructed jury
    could acquit based on the defence: at para. 48, citing
R. v. Fontaine
,
    2004 SCC 27, [2004] 1 S.C.R. 702, at para. 70. If the accused cannot establish
    a sufficient connection, the defence of third party involvement will lack the
    requisite air of reality: at para. 48, citing
R. v. Cinous
, 2002 SCC
    29, [2002] 2 S.C.R. 3. A determination as to the existence of an air of reality
    is a legal one and therefore subject to a standard of review of correctness:
R.
    v. Tran
, 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 40;
Cinous
,
    at para. 55.

[51]

In
    this case, the trial judge made a finding that there was no air of reality to
    either of these two proposed alternative suspects. I see no error in his
    ruling. The trial judge properly applied the law governing third-party suspect
    evidence. Unlike with Ms. Tracey, there was no coherent evidence to connect Ms.
    Heavens or Mr. Busch to the death of Mr. Parsons. Both had alibis for the
    night before Mr. Parsons death and neither had a compelling motive for
    murder. The trial judge was correct to conclude that, outside of mere
    speculation, there was no evidentiary basis upon which a reasonable jury,
    properly instructed, could conclude that either Mr. Busch or Ms. Heavens were
    involved in Mr. Parsons death.

3)

Did the trial judge err in failing to order the disclosure of the
    Crimestoppers tip?

[52]

Before
    trial, the appellant brought an application for an order compelling the Crown
    to disclose a Crimestoppers tip relating to the death of Mr. Parsons. The
    appellant argued that, without the disclosure of the tip, he would be unable to
    raise an alternate suspect defence. The Crown disagreed, arguing that the
    appellant would likely be able to adduce evidence about the possible involvement
    of Laura Heavens, Roger Busch, Chantal Bujold, and others.

[53]

The
    application judge held that, based on the evidentiary record, there was a likelihood
    of the appellant being able to adduce evidence against third parties and,
    therefore, it would be inaccurate to say that, without the privileged
    information, the [appellant] is unable to raise a reasonable doubt about his
    guilt: 2015 ONSC 6366, at para. 47. The appellant thus failed to meet the
    threshold test for piercing informer privilege.

[54]

On
    appeal, the appellant argues that, while the innocence at stake exception is
    exceedingly narrow, it is appropriate in this case. As a result of the rulings
    on third-party suspects, the appellant could only lead evidence relating to Ms.
    Tracey and Ms. Bujold as alternate suspects. The information within the tip
    could have established additional third-party suspects or strengthened the
    evidence against Ms. Tracey or Ms. Bujold. Even if the application judge did
    not err, this court should assess the significance of the tip. It came after
    the appellant was arrested for first-degree murder and the informant provided
    an alternate perpetrator and motive. The court may be able to provide some
    limited information without breaching privilege.

[55]

In
    response, the Crown argues that the application judge correctly found that, as
    the appellant had other evidence that could raise a reasonable doubt, the
    innocence at stake exception is not met.

[56]

I
    agree with the Crown.

[57]

As
    outlined in the Supreme Courts decision in
R. v. Durham Regional Crime
    Stoppers Inc.
, 2017 SCC 45, [2017] 2 S.C.R. 157, informer privilege is a
    class privilege that prohibits the disclosure of an informers identity in
    public or in court: at para. 11. The rationale for the protection is that, as
    informers play an essential role in the investigation of crime through the
    passing on of pertinent and otherwise inaccessible information, it is in the
    public interest to ensure their anonymity is secure: at para. 12. Informer
    privilege is particularly important for anonymous informers, as it is the
    promise of anonymity which allays the fear of criminal retaliation which
    otherwise discourages citizen involvement in reporting crime:
R. v.
    Leipert
, [1997] 1 S.C.R. 281, at para. 11, quoting
People v. Callen
,
    194 Cal. App. 3d 558 (1987). The only exception to informer privilege is where
    the innocence of an accused is at stake:
Crime Stoppers
, at para. 14.

[58]

The
    innocence at stake exception is operative where the disclosure of privileged
    information could raise a reasonable doubt as to the guilt of an accused:
R.
    v. McClure
, 2001 SCC 14, [2001] 1 S.C.R. 445;
R. v. Brassington
,
    2018 SCC 37, [2018] 2 S.C.R. 617. In order for the exception to apply, the
    following test must be met: 1) the accused must establish that the information
    sought is not available from any other source and they are unable to raise a
    reasonable doubt as to their guilt in any other way; 2) if the first threshold
    is met, the accused must then provide some evidentiary basis upon which to
    conclude that the information could raise a reasonable doubt about the guilt of
    the accused (mere speculation will be insufficient); and 3) if there is such
    evidence, the judge must examine the privileged information to determine
    whether it is likely to raise a reasonable doubt as to the guilt of the
    accused. If this final stage is met, the judge should order the production of
    the privileged information:
McClure
, at paras. 48-61;
Brassington
,
    at paras. 36-38. However, the court should only reveal as much information as
    is necessary to allow proof of innocence:
Leipert
, at para. 33.

[59]

In
    this case, the application judge correctly applied the test as outlined above. The
    appellant was permitted to adduce evidence against two individuals as
    third-party suspects in the death of Mr. Parsons. This evidence could have
    raised a reasonable doubt as to the appellants guilt, thus defeating his claim
    at the threshold stage of the innocence at stake test. While the tip may well
    have contained exculpatory details regarding the appellants role in the murder,
    informer privilege can only be pierced where the information is the accuseds
    sole means of raising a reasonable doubt. As expressed by Major J. in
R. v.
    Brown
, 2002 SCC 32, [2002] 2 S.C.R. 185, at para. 54:

I stress again that the trial judge should
    only allow the
McClure
application if and when she is of the view that
    the accused will be unable to raise a reasonable doubt without the evidence
    protected by the privilege. If there is or may be some evidence upon which a
    reasonable jury, properly instructed, could acquit, the
McClure
application should be denied or postponed.

[60]

Here,
    there was such evidence. This ground of appeal is dismissed.

4)

Did the trial judge err in not directing a verdict of acquittal on the
    charge of first-degree murder?

[61]

After
    the close of the calling of evidence, the appellant brought a motion for a
    directed verdict of acquittal on the charge of first-degree murder. He argued
    that there was insufficient evidence of planning and deliberation. The motion
    was denied by the trial judge on the basis that there was evidence that the
    appellant had in his possession a long, hard object in a white plastic bag,
    that he attended Mr. Parsons residence, and that he no longer possessed the bag
    or the object when he was later seen again at the convenience store. It would
    not be impermissible speculation for the jury to infer that the object in the
    bag was a weapon used to cause the blunt force injuries or lacerations that
    were inflicted on Mr. Parsons. The fact that the weapon could have been used
    for robbery instead of murder does not disentitle the jury from considering
    murder.

[62]

On
    appeal, the appellant argues that the trial judge erred in denying the motion. As
    there is no direct evidence of planning and deliberation, the trial judge was
    required to weigh the reasonableness of the inferences to be drawn from the
    circumstantial evidence. In weighing that evidence, the trial judge erred in
    finding that it reasonably supported an inference of planning and deliberation.
    Properly considered, the evidence suggested an absence of planning and
    deliberation. The appellant hitchhiked to and from Mr. Parsons residence (an
    unreliable form of transportation); he volunteered his name to the woman who
    gave him a ride; and he did not bring a change of clothes or wear clothes that
    would make him difficult to recognize. Even taking the Crowns case at its
    highest, there was no evidentiary basis upon which a properly instructed jury
    could reasonably infer guilt.

[63]

In
    response, the Crown argues that the trial judge was correct to find that there
    was sufficient evidence to instruct the jury on first-degree murder. The Crown
    identifies a number of pieces of evidence that could support inferences of
    planning and deliberation, including: the appellant was known to Mr. Parsons; the
    appellant was in a stressful financial situation; the appellant had discussed
    robbing Mr.

Parsons the day prior to his murder; the
    appellant was aware that Mr. Parsons kept his PIN on the back of his bank card
    and that he had money in his account; the appellant was aware that Ms. Heavens
    would not be sleeping at her and Mr. Parsons apartment; the appellant
    took an indirect route to Mr. Parsons apartment; at 5:37 a.m., the appellant
    was seen at a convenience store, carrying an object in a white plastic bag that
    appeared long and hard enough to be used as a weapon to inflict blunt force
    injuries; at 6:41 a.m., after leaving Mr. Parsons residence, the appellant was
    no longer in possession of the object in the white plastic bag; at 2:10 p.m., the
    appellant was seen walking with a black garbage bag that may have contained
    clothes; the clothing the appellant was wearing on June  4, 2013 was never
    seen again; and the appellant told Ms. Willard that he killed Mr. Parsons using
    a hammer and a pocket knife. The trial judge correctly recognized that this
    evidence was sufficient to infer that the appellant may have armed himself,
    attended the deceaseds residence, and disposed of the weapon that could have
    caused the injuries to the deceased. When considered in the context of the
    entirety of the evidence, it was appropriate for the trial judge to have left
    the issue of first-degree murder with the jury.

[64]

I
    agree with the submissions of the Crown and reject the appellants position on
    this issue.

[65]

When
    an accused brings a motion for a directed verdict of acquittal, the trial
    judge must decide whether there is any evidence on the basis of which a reasonable
    jury, properly instructed, could return a verdict of guilty for the offence in
    question:
R. v. Tomlinson
, 2014 ONCA 158, 307 C.C.C. (3d) 36, at para.
    151. To this end, the Crown must adduce some evidence of culpability for every
    essential element of the offence for which the Crown has the evidential burden:
    at para. 151. Where the Crowns case is circumstantial, the trial judge must
    engage in a limited weighing of the evidence in order to determine whether it
    is reasonably capable of supporting the inferences the Crown seeks to have the
    jury draw: at paras. 153-154. The test to be met is whether the evidence, if
    believed, could reasonably support an inference of guilt: at para. 154. A
    trial judges decision on a motion for a directed verdict of acquittal is to be
    reviewed on a standard of correctness: at para. 155.

[66]

Where the offence at issue is first-degree murder under s. 231(2)
    of the
Criminal Code
, R.S.C. 1985, c. C-46, the essential elements
    are: 1) culpable homicide; 2) an intent to cause death or an intent to cause
    bodily harm that is likely to cause death, while being reckless as to whether
    or not death ensues; and 3) planning and deliberation.

[67]

In
R. v. Robinson
, 2017 ONCA 645, 352 C.C.C. (3d) 503, at para. 34,
    Doherty J.A. outlined the requirements for a murder to be planned and
    deliberate:

A murder is planned if it is the product of a calculated
    scheme or design which has been carefully thought out, and the nature and
    consequences of which have been considered and weighed.  A murder is
    deliberate if it is considered, not impulsive  implying that the
    accused must take time to weigh the advantages and disadvantages of his
    intended action.  Murder, as defined in either s. 229(a)(i) or s. 229(a)(ii),
    can be planned and deliberate.

[68]

Applying
    these legal principles to the case at bar, the trial judge was correct to put
    the issue of first-degree murder before the jury. There was direct evidence,
    via Ms. Willards testimony, that the appellant had murdered Mr. Parsons using
    a hammer and a pocket knife. There was also circumstantial evidence, including the
    early morning trip to Mr. Parsons apartment and the hard object in the white
    bag, that the appellant had visited Mr. Parsons with the intention of robbing
    and killing him. While it was not necessary for the jury to have concluded that
    the appellant did, in fact, attend Mr. Parsons apartment that morning with the
    intention of murdering him, there was sufficient evidence for them to so find.

5)

Did the trial judge err in his
W.(D.)
instructions about the proper
    use of the evidence of the white plastic bag?

[69]

In
    his charge, the trial judge instructed the jury regarding the proper use of the
    evidence of the white plastic bag the appellant was carrying. The instruction
    was as follows:

Mr. Hayes had with him a white plastic bag
    when he left. When he is seen at the One-stop on his way to Haileybury, he
    places that bag on the counter. When he picks it up, he does so in a way that
    could lead one to believe that the object inside is long and hard. He does not
    have this bag with him when he again stops at the One-stop on the way back to
    Cobalt.
If you do not accept his evidence that the bag contained his bong,
    or are not left with a reasonable doubt by it, this evidence is evidence of
    planning and deliberation
. [Emphasis added].


[70]

The
    appellant submits that this instruction was a clear misdirection. The
    instruction erroneously suggested that if the jury did not accept the
    appellants explanation for the bag, they could jump to the conclusion that it
    was evidence that the appellant planned to murder the deceased. The trial judge
    failed to explain that the jury were not obliged to accept either explanation
    and that there was a third alternative where they could have a reasonable
    doubt. The jury did not have to accept anything that the appellant said for
    there to be reasonable doubt. The appellant submits that this instruction was
    not sufficient to meet the
W.(D.)
standard, as the trial judge
    incorrectly implied that the appellant had the burden of proof, when the burden
    of proof rests with the Crown. The appellant further submits that this error
    cannot be cured by the
curative proviso

because the error is not trivial and there is no overwhelming body of
    evidence that would suggest to this court that, by ordering a new trial, the
    appellant would surely be convicted again.

[71]

After
    reviewing the charge, I agree that the trial judges instruction on the proper
    use of the white bag was problematic, as he failed to instruct the jury that,
    even if they did not accept the appellants evidence, they could have been left
    in reasonable doubt as to whether the white bag contained a weapon and was
    therefore evidence of planning and deliberation. However, in light of the charge
    as a whole, I am not convinced that the jury would have misunderstood that the
    burden was on the Crown to prove the element of planning and deliberation
    beyond a reasonable doubt.

[72]

When
    assessing an alleged error in a trial judges jury instructions, an appellate
    court must examine the alleged error in the context of the entire charge and
    of the trial as a whole:
R. v. Araya
, 2015 SCC 11, [2015] 1 S.C.R.
    581, at para. 39. The instructions must not be held to a standard of perfection
    and appellate courts should not examine minute details of a jury instruction
    in isolation: at para. 39. Rather, what matters is the overall effect of the
    charge: at para. 39, quoting
R. v. Daley
, 2007 SCC 53, [2007] 3
    S.C.R. 523, at para. 31.

[73]

Here,
    the alleged error pertains to a
W.(D.)
instruction. Pursuant to the
    Supreme Courts decisions in
R. v. W.(D.)
, [1991] 1 S.C.R. 742, and
R.
    v. J.H.S.
, 2008 SCC 30, [2008] 2 S.C.R. 152, the
W.(D.)
framework
    unpacks for the benefit of the lay jury what reasonable doubt means in the
    context of evaluating conflicting testimonial accounts and alerts them to a credibility
    contest error:
J.H.S.,
at para. 9. It requires that trial judges
    impress on the jury that the burden never shifts from the Crown to prove every
    element of the offence beyond a reasonable doubt: at para. 9.

[74]

In
    this case, the trial judge set out the correct instructions on reasonable doubt
    on three separate occasions and indicated seven times that the burden of proof
    was on the Crown. In his instruction on planning and deliberation, he explained
    that Crown counsel must prove beyond a reasonable doubt not only that Mr. Hayes
    murdered Mr. Parsons, but also that the murder was both planned and
    deliberate. He instructed the jury that, in deciding the issue, they should
    consider all the evidence. The impugned instruction then came during the trial
    judges identification of evidence relevant to the issue. Defence counsel did
    not object to the instruction.

[75]

In
    these circumstances, I am not satisfied that the oversight by the trial judge
    would have mislead the jury as to their obligations in assessing the evidence
    and determining the issue. After hearing the whole of the charge, it would have
    been clear to the jury that they could only find that the murder had been
    planned and deliberate if, on the basis of all the evidence, the Crown proved
    the element beyond a reasonable doubt.

6)

Did the trial judge err in his instructions to the jury on
    circumstantial evidence?

[76]

At
    trial, the Crowns case relied almost exclusively on circumstantial evidence. Consequently,
    in his final charge to the jury, the trial judge provided an instruction
    regarding the proper treatment of such evidence. On appeal, the appellant
    argues that part of the instruction, reproduced below, was erroneous:

Because of the fundamental principle that the
    Crown is required to prove a persons guilt beyond a reasonable doubt, in order
    to find Mr. Hayes guilty on the basis of circumstantial evidence alone, you
    must be satisfied beyond a reasonable doubt that his guilt is the only rational
    inference that can be drawn from the whole of the evidence. If there is any
    other rational inference available, you cannot find Mr. Hayes guilty.

The only direct evidence of Mr. Hayes
    involvement in this crime is that of Caitlin Willard, who testified that Mr. Hayes
    confessed to her. I will have more to say about her evidence later.
For now,
    what I wish to convey to you is that, if you do not believe Mr. Hayes evidence
    that he did not kill Mr. Parsons, which, of course, is direct evidence, if you
    are not left with a reasonable doubt by Mr. Hayes evidence, and if you do not
    believe Caitlin Willards evidence that Mr. Hayes confessed to her, then you
    are left only with circumstantial evidence. In that case, you must be satisfied
    beyond a reasonable doubt by the rest of the evidence that the only rational
    inference is that Mr. Hayes is guilty of first or second degree murder
, as
    I will explain those offences to you. [Emphasis added.]

[77]

The
    appellant argues that the instruction contains an error in that it suggests
    that the jury should compartmentalize the circumstantial evidence from the
    appellants testimony. The instruction is problematic because the jury could
    not properly determine whether the appellants evidence raised a reasonable
    doubt without simultaneously considering the circumstantial evidence. This is
    the same error as in
R. v. Miller
(1991), 5 O.R. (3d) 678 (C.A.), in
    which the trial judge instructed the jury to consider the evidence in different
    stages. In
Miller
, this court held that the effect of the instruction
    was to eliminate from the jurys consideration evidence which was neither
    accepted nor rejected and therefore prevent a consideration of the evidence as
    a whole. The appellant submits that this error cannot be cured by the
curative proviso
.

[78]

I
    disagree.

[79]

Where
    the Crowns case rests entirely or substantially on circumstantial evidence,
    the standard of proof requires that the trier of fact be satisfied beyond a
    reasonable doubt that the accuseds guilt is the only reasonable inference to
    be drawn from the evidence as a whole:
R. v. Lights
, 2020 ONCA 128, at
    para. 36;
R. v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000, at
    para. 20.

[80]

In
    this case, I am satisfied that the trial judges instruction on circumstantial
    evidence was correct. Contrary to the position of the appellant, I do not agree
    that the instruction directed the jury to consider the evidence in different
    stages, as occurred in
Miller
. When read in its entirety, the
    instruction was clear that the evidence needed to be assessed as a whole. The impugned
    instruction merely attempted to safeguard the appellants presumption of
    innocence by highlighting that, if the jury did not accept the direct evidence
    of his confession, they could only be satisfied of his guilt on the
    circumstantial evidence if there was no other rational inference available. Further,
    the fact that no objection was taken to the charge on this issue during the pre-charge
    or post-charge submissions is indicative of the absence of any meaningful
    issue. There was no error.

7)

Did the trial judge err in failing to correct the Crowns misstatement
    of evidence in its closing address
?

[81]

During
    the Crowns closing address, Crown counsel argued that a soaking wet towel,
    found in Mr. Parsons bathroom, had been used to wash away any blood that had
    sprayed onto the appellants clothing. The Crown argued that the fact that the
    towel was still soaked a few days after the murder suggested that a lot of
    water had been used to remove any staining:

Now, youll recall Mike Cruickshank testified
    that the red and white towel in the bathroom was soaked with water. And here
    you have a couple of pictures. That picture and the next slide are two pictures
    that show that towel. Youll recall that he testified that it was still soaked
    with water some three days or so after June 4th. In our view, this is
    indicative that this towel was used to wash something. It is our view that it
    was used to wash away the splatter that may have been on the jacket, may have
    been on the clothing. And as a matter of common sense, when youre washing away
    blood or wine or something that stains a lot, [youll use] a lot of, youll end
    up using a lot of water. Youll soak the item so that all of the staining is
    away. And that, in our submission, is consistent with that towel being used to
    wash away blood.

[82]

The
    appellant argues that the trial judge erred by failing to provide a corrective
    instruction to the jury with regards to the Crowns misstatement that the towel
    was wet and had Mr. Parsons DNA on it. The statement was misleading because
    the towel was not tested for DNA and it did not have blood on it (though there
    was blood near it). According to the appellant, it impacted his fair trial
    rights and to rectify this, the trial judge should have provided a curative
    instruction to the jury:
R. v. Bolus
, [2002] O.J. No. 386 (C.A.), at
    para. 2.

[83]

In
    response, the Crown argues that Crown counsel at trial submitted that the wet
    towel had been used by the appellant to wipe away blood spatter on his jacket. Crown
    counsel did not, however, state that the towel had blood or DNA on it. The jury
    was aware that the deceaseds blood or DNA was not found on any of the items
    seized by police. They also were aware that the appellant had admitted to
    burning his clothes after police had spoken to Ms. Willard. The comment did not
    prejudice the appellants fair trial rights. However, if the trial judge did
    err in not addressing the issue, the
curative
    proviso
should be applied.

[84]

In
    my view, there was no need for a corrective instruction by the trial judge.  While
    the appellant is correct to suggest that the Crowns statement regarding the
    red and white towel may have implied that blood or DNA was found on it, the
    Crowns emphasis on the towel being soaked suggested that, even if it had
    blood or DNA on it at one point, the blood and DNA would have been washed away
    by the water. In effect, the Crowns position was that the towel had no blood
    or DNA on it because it had been thoroughly washed. This, in my view, was not a
    misstatement of the evidence and no corrective instruction was required.

8)

Did the trial judge err in failing to correct the accidental disclosure
    of bad character evidence?

[85]

On
    or about June 8, 2013, a few days after Mr. Parsons was killed, the appellant
    and Ms. Willard were in Kirkland Lake, visiting a friend. After they missed
    their bus to return to Cobalt, they got into a heated argument. Ms. Willard
    testified that it was during this argument that the appellant confessed to her
    that he had killed Mr. Parsons.

[86]

The
    appellant and Ms. Willard returned to Cobalt the next day. Shortly after
    returning, Ms. Willard was at a friends house with two other women, Chelsey
    Leonard and Shaylee Beaulieu. Ms. Willard had been texting the appellant, as
    they were in an argument. Ms. Willard and Ms. Leonard testified that during the
    evening, a man wearing a ski mask entered the apartment with a lighter and a
    container of oil, some of which he poured in the apartment and on Ms. Willards
    lap. He attempted to take Ms. Beaulieus cell phone, but did not succeed. Ms. Willard
    and Ms. Leonard testified that the appellant was the man in the ski mask. The
    man then left. The lighter was never lit.

[87]

Prior
    to the trial, the Crown brought an application to introduce evidence of the incident
    as post-offence conduct. The Crown argued that the appellants threat to set
    fire to Ms. Willard showed the appellants consciousness of guilt because it
    demonstrated his concern that Ms. Willard might reveal his confession. It also
    provided an explanation as to why Ms. Willard did not come forward with the
    information about the alleged confession until March 2015.

[88]

The
    trial judge denied the application, finding that the evidence was not
    probative. He also found that the evidence constituted bad character evidence
    and that, even if it was probative, its prejudicial effect would outweigh any
    probative value: 2016 ONSC 5209.

[89]

At
    trial, Detective Sergeant Carrie Morgan Bertoncello testified regarding her
    dealings with Ms. Willard. During her testimony, the following exchange
    occurred:

Q. And specifically do you have the dates of
    roughly when you were trying to get a hold of [Ms. Willard]?

A. Yeah, so the first time I was asked to speak
    to her was actually on the 5th of June, but I didnt speak with her that day.
    The first time I did speak with her is the 11th of June, and I saw her actually
    just outside the courthouse.

Q. This courthouse here?

A. Thats right. She was on the street in
    Haileybury. She was sitting on a retaining wall with another female, and myself
    and another detective approached her and were 
were trying to get her to
    come in and provide a statement, both in regards to the homicide as well as an
     in regards to the investigation into the domestic situation that had happened
    between her and Matt Hayes
.

Q. Okay, we cant get into that.

A. Okay, sorry.

[Emphasis added.]

[90]

The
    appellant argues that Detective Sergeant Bertoncellos testimony regarding the
    domestic situation that happened between Ms. Willard and the appellant was in
    direct violation of the trial judges exclusionary ruling. Regardless of whether
    the evidence was tendered intentionally or accidentally, the fairness of the
    trial was impacted and a new trial should be ordered.

[91]

The
    Crown argues that there was no error. Following the instruction by Crown
    counsel that we cant get into that, there was no further testimony regarding
    the domestic situation. Counsel for Mr. Hayes did not seek a limiting instruction.
    The comment was ambiguous, innocuous and had little, if any prejudice to the
    accused.

[92]

I
    agree with the submissions of the Crown. Although Detective Sergeant Bertoncello
    mistakenly mentioned the domestic situation between the appellant and Ms. Willard,
    there was no prejudice to the appellant due to Crown counsels immediate action
    to quell the line of testimony. The reference to a domestic situation was
    vague and would not have left the jury with any basis to engage in propensity
    reasoning. The absence of an objection or a request for a corrective
    instruction is also indicative of the absence of prejudice. There was no error.

9)

Did the trial judge err in accidentally informing the jury that the
    appellant was in custody during the trial?

[93]

At
    the end of proceedings on December 13, 2016, the trial judge accidentally
    mentioned to the jury that the appellant was in custody:

Long day. Thanks very much for your efforts
    today. Ive discussed it with counsel,
and in light of the fact that Mr. Hayes
    is being kept in North Bay and brought every day here
, I thought we should
    convene tomorrow at nine-thirty. And so thats what Im going to order. You
    know youre going to the hotel tonight and that youll be brought there and
    back, and youll begin your deliberations again tomorrow at nine-thirty. Mr.
    Hayes will be here, as will counsel and I. Okay? I bid you goodnight, ladies
    and gentlemen. Thank you very much. [Emphasis added.]

[94]

The
    next morning, in response to defence counsels concerns that the remark could
    result in prejudice against the appellant, the trial judge provided a limiting
    instruction to the jury:

I also wanted to mention one thing that I
    spoke of last night. Last night I, as we wrapped up, I said that Mr. Hayes
    is being kept in North Bay. And counsel, I think quite rightly, pointed out to
    me afterward that that would convey something to you that you might not be
    aware of, and that is that Mr. Hayes is in custody. That fact might be obvious
    to many of you given that there are police officers sitting on either side of
    him and that there were police officers who moved up and back with him as he gave
    his evidence.

Its important, though, for you to understand
    that you should take nothing from that. Its very common that someone charged
    with murder would be kept in custody pending the result of the trial. A person
    can be kept in custody for a lot of reasons, including simply the seriousness
    of the offence. And so, please, I ask you to take nothing from that, its
    irrelevant to your considerations. Okay?

[95]

The
    appellant argues that the trial judge undermined trial fairness when he
    mentioned to the jury that the appellant was being kept in North Bay during
    their deliberations. By stating that the appellant was in custody, the trial
    judge caused prejudice to the appellant. He failed to adequately address the
    error. The presumption of innocence was not protected.

[96]

The
    Crown argues in response that any prejudice arising from the jurys knowledge
    of the appellant being in custody was addressed by the instruction given to the
    jury before it resumed deliberating. Counsel for the appellant was satisfied by
    the instruction and did not bring an application for a mistrial.

[97]

Again,
    I agree with the Crowns response. Once the issue was raised with the trial
    judge by defence counsel, the trial judge immediately responded with a
    corrective instruction to the jury.

[98]

The
    trial judge correctly noted that he mistakenly commented to the jury that the
    appellant was in custody. He then gave a corrective instruction which had been approved
    by defence counsel. Defence counsel made no further submissions. In all the
    circumstances, it would have been clear to the jury that they could not
    consider the fact that the appellant was in custody during their deliberations.
    In addition, throughout the charge, the jury was instructed that the appellant
    was presumed innocent and that the burden of proving his guilt rested on the Crown.
    There was no error.

V.

DISPOSITION

[99]

In
    all the circumstances, I would dismiss the appeal.

Released: K.F. May 4, 2020

M.
    Tulloch J.A.

I
    agree. K. Feldman J.A.

I
    agree. M. Jamal J.A.





[1]
T
he
    appellant also brought another application, during trial, to adduce evidence
    with respect to Chantal Bujold. This
application
was
    allowed. It is, however, not directly relevant to the issues on appeal: 2016
    ONSC 7607.


