



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hall, 2018 ONCA 185

DATE: 20180226

DOCKET: C56854

Feldman, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeremy Hall

Appellant

Dirk Derstine and Stephanie Digiuseppe, for the
    appellant

Rosella Cornaviera and Peter Fraser, for the respondent

Heard: November 20 & 21, 2017

On appeal from the conviction entered on March 5, 2013 by
    Justice Thomas Lofchik of the Superior Court of Justice, sitting with a jury.

Benotto J.A.:

[1]

The appellant was convicted of first degree murder in the death of
    William Mason. The appellants co-accused, Jason Lusted, pleaded guilty to
    accessory after the fact to the murder and became the main Crown witness. Lusted
    testified that in the winter of 2006, he and the appellant abducted Mason and
    drove him to a field where the appellant shot and killed him. They later
    returned to collect Masons body which they took to the appellants farm and incinerated
    in an open-air bonfire. The appellant was charged four years later in 2010. No
    trace of Masons body was ever found.

[2]

Lusted provided the only direct evidence of the murder. The Crown led
    circumstantial evidence including phone records purporting to show certain
    locations of the appellant and Lusted; the testimony of the fire marshal; and
    the evidence of Edmund Huard. Huard testified that the appellant plotted to
    murder Lusted because Lusted knew things that could put the appellant away
    for a long time.

[3]

The appellant submits that the trial judge erred with respect to the
    phone records, the evidence of the fire marshal and the evidence of Huard.

[4]

For the reasons that follow, I have concluded that the evidence of Huard
    was inadmissible. I would allow the appeal and order a new trial.

FACTS

[5]

The appellant led a life of crime. Lusted was a partner in crime. So too
    was Huard. They committed home invasions, weapons offences, robberies and drug
    deals.

[6]

According to Lusted, the appellant had ripped off someone of drugs and
    cash not realizing that the person was working with the Hells Angels. Several
    shots were later fired at the appellants home in Hamilton when he, his common
    law wife, and their children were there. The appellant attributed this to
    retaliation from the Hells Angels. He blamed Mason for giving him bad
    information leading to the rip-off. According to the Crown, this was the motive
    for the murder of Mason.

The Abduction, Murder and Cremation of Mason

[7]

The only direct evidence of the murder of Mason came from Lusted. Lusted
    testified that he and the appellant drove together in a stolen truck to where
    Mason was abducted at gunpoint. Lusted testified that they walked into Masons
    apartment and the appellant told him to put his shoes and coat on because they
    were going to see a guy down the road.  Mason grabbed his phone and the
    appellant ripped it out of his hand and pulled out a sawed-off shotgun that had
    been hidden in his coat.  Lusted and the appellant left with Mason. They then drove
    to a secluded location where the appellant shot and killed Mason. Lusted
    claimed that he panicked, and the appellant responded by firing a shot in the
    air and asking if he wanted to be next.

[8]

After the murder they drove the truck the appellant had stolen to carry
    out the murder back to Hamilton. Lusted retrieved his car and the two drove to
    the outskirts of Smithville where the appellant burned the truck while Lusted
    drove around to make sure no one saw them. Lusted testified that the truck was
    a red GMC or Chevy. A red GMC truck had been reported stolen on February 3,
    2006. At 4:47 pm on February 24 a truck was reported on fire in a driveway just
    outside of Smithville.

[9]

Although Lusted said the murder took place in January 2006, it was
    proven that Mason was still alive in January. The Crown relied on the report of
    the fire to support the theory that the murder took place on February 24, 2006.

[10]

Lusted
    testified that days after the murder they went to the appellants farm in Alma,
    Ontario where they burned Masons body into bones and ash. They put the body on
    a cement pad at the back of the house flanked by barns, placed wood on it and
    doused it with gasoline. Lusted said he was present while the body was burning
    for four hours. He said there were bones and ash in the fire when he left. The
    appellant later told him that he put the remains of the fire in animal feed
    bags. Two experts testified regarding the location of the appellant and
    Lusteds phones when they pinged off certain towers. The phone records show
    that the two men spent several hours in the vicinity of the appellants farm in
    Alma on the night of March 1, 2006. The Crown relied on this evidence in
    support of the theory that the cremation took place in the early hours of March
    2, 2006.

The Fire Marshals evidence

[11]

Fire
    Marshal Gregory Olson testified that he went to the Alma farm on July 4, 2009
    and August 7, 2009  roughly three years after the alleged cremation. He saw
    signs of a fire on the concrete pad. He testified that his team removed
    material from between the cracks in the concrete and screened it for human
    bone. This yielded only small pieces of charcoal and animal bone. He testified
    that it would have required a careful cleanup to remove bone fragments to the
    extent that they would have not been caught by the quarter-inch screen used. He
    said it would take a fire a lot bigger than a bonfire to burn a body. He also
    testified that his inability to say with certainty that a fire had occurred was
    due to the passage of time, the impact of the weather, and cleaning of the
    site.

[12]

Olsons
    cross-examination would later become an issue at trial. A textbook was put to
    him. He was asked about the proposition in the book that it would take more than
    six to seven hours and require 700-900 kilograms of wood to cremate a human
    body in an open-air fire. Olson said that he better not contradict the
    proposition as one of the editors of the text was his former professor. He also
    said that there were too many variables involved and he had not taken part in
    similar studies, so he could not refute the book.

[13]

Defence
    counsel referred to this testimony in his closing submissions to the jury. He
    said:

The fire marshal  seemed to put great trust in  the textbook
    that the teacher wrote  there had been multiple experiments  and on the
    leading authority  they said that it would take approximately six to seven
    hours to burn a body. That to burn a body in that amount of time you would have
    to have 7 to 900 kilograms of wood.

[14]

Defence
    counsel then went on to discuss the impossibility of this timing in light of
    other evidence that the appellant was at the farm for four hours or less.
    Counsel put various calculations to the jury to demonstrate the point.

[15]

After
    the defence closing, the Crown objected. He asked the trial judge to correct
    what defence counsel had said because he had just discovered that the passage
    read to Olson was not authored by the editors of the textbook, but rather by an
    osteoarchaeologist with whom Olson was not familiar.

[16]

After
    argument by counsel the trial judge added the following to his charge:

There is no scientific evidence before you by way of expert
    opinion to consider in determining the length of time required, or the amount of
    wood required to burn a body.

Evidence of Edmund Huard

[17]

Huard
    was an unsavoury witness with a lengthy criminal record. He met the appellant
    and Lusted in federal prison. For a time, he lived in a trailer on the Alma
    farm. Together he and the appellant committed multiple crimes including weapons
    offences, home invasions, a marijuana grow-op and auto thefts. Huard was also
    schizophrenic.

[18]

Huard
    testified that the appellant often told me that [Lusted] had to go. He knew
    too much. He knew something that could put him away for a long time.  Huard
    explained how, in 2008, the appellant thought up the mechanisms of a plot to
    kill Lusted. The appellant would drive to a spot to meet Lusted. Huard would
    hide in the trunk holding a sawed off shot gun. When the cue was given, Huard
    would be let out and he would shoot Lusted.

[19]

Huard
    and Lusted set out to go through with the plan. Huard was in the trunk with the
    gun. The appellant was outside talking to Lusted. He could hear Lusteds voice.
    He did not get the cue to jump out. He said that the appellant called off the
    plan because there were too many people around. All of this took place soon
    after Lusted was released from prison.

[20]

The
    trial judge instructed the jury that they could use Huards testimony as
    evidence corroborating Lusted if they found that the appellant and Huard
    conspired to kill Lusted and that they conspired to kill him because he was a
    witness to Masons murder.

ISSUES

[21]

The
    appellant raises three primary grounds of appeal. He submits that the trial
    judge erred by: (i) instructing the jury that the phone records corroborated
    the testimony of Lusted; (ii) withdrawing Olsons evidence from the jury; and
    (iii) admitting the evidence of Huard.

[22]

He
    also seeks to admit fresh evidence about Huard and his testimony.

ANALYSIS

The Phone Records

[23]

The
    appellant submits that the trial judge erred in instructing the jury that the
    phone records corroborated the testimony of Lusted. The phone records are not
    corroborative because:

·

The phone records do not corroborate the date that Lusted said
    the murder occurred.

·

Lusted testified that he and the appellant burned a truck in
    Smithville following the murder. At the time the evidence suggests a truck was
    burned in Smithville, the appellants phone was pinging off a tower in Hamilton
    and Burlington. The trial judge instructed the jury that at this time the phone
    activity was in Smithville.

[24]

The
    appellant submits that the phone records also do not corroborate Lusteds story
    regarding the burning of Masons body. Lusted indicated that he was at the farm
    for 4-5 hours or a long time. The phone records suggest that he was likely
    at the farm for 2 hours and 40 minutes. The trial judge did not refer to this
    or to the frailties in the evidence of the cell phone experts in his charge to
    the jury.

[25]

In
    my view, the trial judge correctly instructed the jury that the phone records
    were capable of being confirmatory. It was for the jury to assess the evidence
    and determine whether it could show that Lusted was telling the truth. The
    issues raised by the appellant were highlighted for the jury either in the
    charge or the judges recitation of the summary of the defence position, or by
    counsel in the closing remarks. The jury would have appreciated the defence
    position.

[26]

I
    would not give effect to this ground of appeal.

The Fire Marshals evidence

[27]

The
    appellant submits that the trial judge erred by withdrawing from the jurys
    consideration Olsons evidence regarding the time and conditions required to
    incinerate a human body. This evidence was central to his defence and formed a
    fundamental feature of the defences closing address. The withdrawal during the
    final instructions was highly prejudicial to the appellants fair trial rights.
    The Crown did not object when the evidence was being called. It was too late to
    object after the close of the evidence. Further, the appellant submits that the
    trial judge eviscerated the exculpatory evidence when he instructed the jury
    that there was no scientific evidence to consider in determining the length
    of time or amount of wood required to burn a body.

[28]

To
    some extent, I agree with the appellant. The judges charge to the jury went
    too far in declaring that there was no scientific evidence. Olson did testify
    about matters other than the impugned textbook reference. In particular, Olson
    was equivocal in his evidence as to the time and amount of wood. He said there
    were too many variables and would not venture an opinion. This was evidence
    that assisted the defence.

[29]

Although
    I agree that the trial judge went too far when he said there was no scientific
    evidence, the error was of no moment. First, he referred to the equivocal
    nature of Olsons evidence and the fact that there were several variables in
    play. Second, the reference to no scientific evidence was responsive only to
    defence counsels submission to the jury that the timing and the amount of wood
    had been scientifically proven. The trial judges charge on this issue, read as
    a whole, is fair to the defence. Third, Olson did not adopt the contents of the
    article on cremation. The text does not, in any event, demonstrate what the
    appellant says it does. There were  as Olson said  too many variables to make
    this determination.

[30]

I
    would not give effect to this ground of appeal.

Evidence of Huard

[31]

The appellant submits that the trial judge erred in
    admitting the evidence of Huard because it required circular reasoning to be
    admissible and because the prejudicial effect outweighed its probative value. The
    Crown argues that evidence of the appellants plot to kill the only eye-witness
    to the murder was probative and properly admitted, as was evidence of plots to
    kill witnesses in several other cases:
R. v. McCullough
(2000), 142 C.C.C. (3d) 149
; R. v.
    Lawrence
(1989), 36 O.A.C. 198 (C.A.);
R. v. Ganton
(1992),
    105 Sask. R. 126 (C.A.);
R. v. Panzevecchia
(1997), 99 O.A.C. 214 (Ont. C.A.); and
R.
    v. Tran
, 2001 NSCA 2, 150 C.C.C. (3d)
    481.

The Trial Judges Admissibility Ruling

[32]

There
    were two reasons advanced for the admissibility of the evidence of Huard: (i)
    to corroborate the evidence of Lusted; and (ii) to demonstrate consciousness of
    guilt arising from after the fact conduct. The trial judge heard lengthy
    submissions as to the admissibility of Huards testimony.

[33]

The
    trial judges reasons for admitting the evidence are contained in a so called
    omnibus ruling with respect to discreditable conduct. As pointed out by the
    Crown, the trial judge correctly articulates the test from
R. v. B. (C.R.),
[1990] 1 S.C.R. 717, at pp. 731-732

and
R. v. Handy,
2002 SCC 56,
    [2002] 2 S.C.R. 908, at para. 41
with respect to discreditable
    conduct of an accused. The specific reasons for admitting the evidence of Huard
    consists of these three paragraphs:

Defence counsel
    argues that the evidence of Edmond Huard about the plot to kill Lusted is
    extremely prejudicial. However, it is also powerful probative evidence of [the
    appellants] consciousness of guilt. If the jury accepts the evidence that [the
    appellant] plotted to do away with the only witness to Billy Masons murder
    giving the reason for such action as being that Lusted had information that
    would put [the appellant] away for a long time, it is open to the jury to draw
    the inference that [the appellant] is the killer of Mason.

This evidence of the
    plot to do away with Lusted is not similar fact evidence or propensity evidence
    unrelated to the murder charge before the court but rather part of the
    continuing narrative of the events surrounding the murder of Billy Mason and
    directly related to the involvement of [the appellant]. The fact that this
    evidence maybe powerful evidence for the prosecution does not lead to a
    conclusion of prejudice. The evidence may be unfortunate for the accused but
    not prejudicial in the legal sense.

Doing my best to balance the probative value of
    the evidence in question against the prejudicial effect, having regard to the
    importance of the issues for which the evidence is legitimately offered against
    the risk that jury will use it for other improper purposes, and taking into the
    account the effectiveness of any limiting instructions I can conclude that the
    probative value of the evidence proffered by the Crown outweighs the
    prejudicial effect and that the evidence proffered is admissible.

[34]

In
    short, the trial judge determined that the evidence of Huard: provides
    powerful probative evidence of [the appellants] consciousness of guilt as
    the jury could draw the inference that the appellant is the killer of Mason; is
    not similar fact or propensity but part of a continuing narrative; and is more
    probative than prejudicial.

[35]

I
    do not agree with these conclusions. The evidence was only marginally relevant
    and was not probative. Further, the effect was highly prejudicial.

[36]

Deference
    is owed to a trial judges balancing of probative versus prejudicial effect. As
    stated in
R. v. Higginbottom
(2001)
,

156 C.C.C. (3d) 178, at para. 9:

A trial judges decision on the admissibility of
    evidence of prior discreditable conduct involves a delicate balancing of the
    probative value of the evidence against its prejudicial effect and is entitled
    to a high degree of deference upon appellate review. In my view, the trial
    judges assessment of the evidence and his conclusion that its probative value
    exceeded its potential prejudicial effect were reasonable.

[37]

The
    usual deference afforded to a trial judges balancing of the probative versus
    prejudicial effect is diminished here because the conclusory nature of his
    reasons does not allow for appellate review: see
R. v. Czibulka
, 2011
    ONCA 82, 267 C.C.C. (3d) 276, at para. 23. It is not clear from his reasons, or
    his later jury charge, that he was alive to the factors that impacted the
    probative value and enhanced the prejudicial effect.

Probative Value:

[38]

For
    the evidence of the plot between Huard and the appellant to kill Lusted to have
    relevance, two assumptions would have to be made:

1.

That Mason had
    been murdered; and

2.

That the
    appellant did it.

[39]

This
    required the jury to engage in a form of circular reasoning and assume facts
    not in evidence. There was no nexus between the plot to murder Lusted and the
    murder of Mason. In addition, the frailties of Huards evidence in general,
    combined with the timing of the plot further diminished any potential probative
    value.

No nexus to the murder of Mason

[40]

The
    plot was developed two years after the disappearance of Mason. Huard testified
    to nothing that would connect the plot to the Mason murder. There was no
    mention in Huards testimony of Masons murder or of Lusteds involvement.
    There was no triggering event to the plan to kill Lusted. Lusted had not just
    gone to the police or threatened to disclose what he knew. The Crown submits
    that he had just been released from prison, but Lusted had not been in jail the
    entire time after Masons disappearance.

[41]

Huard
    said that the appellant told him that Lusted knew things. Although Huard said
    that he was like family to the appellant and was ready to kill for him, he did
    not say what those things were.

[42]

The
    Crown submits that the plot to kill Lusted had to be a result of the murder
    because the other criminal activities that Lusted knew the appellant had done were
    not as serious as murder. It is logical, according to the Crown, that the
    phrase put away for a long time would relate to the penalty for first degree
    murder not the lesser offences. I do not agree. Lusted and the appellant had
    committed many serious crimes together. Plus, there was evidence that implied
    the appellant had other reasons to eliminate Lusted. Huard said that he
    understood that Lusted was a threat to [the appellant] and his family [and]
    can pose a danger on his kids. He said that, while the appellant was in
    custody, Lusted came out to his farm and scared the appellants wife and kids
    and attempted to take stuff. She yelled at Lusted and told him she would call
    the police.

[43]

The
    Crown submits that a plot to kill a witness is after the fact conduct from
    which a consciousness of guilt can be inferred. In my view, this misstates the
    nature of the evidence. Unlike other cases, here there is no evidence linking
    the plot to the crime charged.  For example: in
Lawrence
the plot to
    shoot the Crown witness was discussed by the accused with a fellow inmate and
    in a letter to his spouse; in
Panzevecchia
, the
    threat to kill the witness was made during the assault; in
Tran
, the accused told a cell-mate about the plot to kill
    the witness.  Here, there is no evidence linking the plot to kill Lusted to the
    murder of Mason.

[44]

The
    Crown submits that it is up to the jury to determine the reason for the
    conduct.
In
R. v. White
, [1998] 2 S.C.R. 72, at p. 89
Major J. said:

As a general rule, it will be for the jury to
    decide, on the basis of the evidence as a whole, whether the post‑offence
    conduct of the accused is related to the crime before them rather than to some
    other culpable act. It is also within the province of the jury to consider how
    much weight, if any, such evidence should be accorded in the final
    determination of guilt or innocence. For the trial judge to interfere in that
    process will in most cases constitute a usurpation of the jury's exclusive fact‑finding
    role.

[45]

Again,
    I disagree. In my view,
White
does not apply. Even if the statements
    attributed to the appellant were true, there were reasons  apart from culpable
    acts - as to why he would want Lusted dead. For example, there was the fear
    that Lusted would harm the appellants family. These facts bring this situation
    outside the reasoning in
White
.

[46]

More
    importantly, to accept the Crowns submission would be to force the jury to
    engage in circular reasoning.

Circular reasoning

[47]

I recognize that the argument that circular reasoning is improper
    in connection with after the fact conduct has been rejected
by
    the Supreme Court: see
White
, at p. 100.
    However, the circumstances here are different. This is not a case where the
    appellant is asking for a separate reasonable doubt analysis on circumstantial
    evidence.

[48]

The issue here is the assumptions the jury would
    have to make in order to draw inferences from the evidence. First, the jury
    would have to accept that Mason had been murdered; second, that the appellant
    did it; and third, that the appellant was referring to the murder when he said
    that Lusted knew things. It is this last assumption that is the most
    problematic since there was no evidence from which that inference could be
    drawn. Huard did not testify about the murder of Mason or about the appellants
    involvement in it.

[49]

One would have to
assume
that the
    reason the plot to kill Lusted was hatched was
because
the appellant had killed Mason. There is no link between the plot to
    kill Lusted and the killing of Mason unless the jury makes the unsupported
    assumption that the appellant wanted Lusted dead because he was a witness to
    the murder of Mason. With no evidentiary link between the plot to kill Lusted
    and the murder of Mason  the inference is only available if the jury first
    accepts Lusteds evidence and finds that the appellant killed Mason. One would
    have to draw the inference that the appellant hatched the plot because he
    killed Mason and then use that same plot to conclude that he did kill Mason. Hence
    the circular reasoning.

[50]

The probative analysis here is similar to that in
R. v.
    Portillo
(2003),
176 C.C.C. (3d) 467
.
That case involved
    circumstantial evidence presented by the Crown to prove that Portillo had
    participated in a murder.
An expert compared impressions taken of
    the treads of running shoes found near Portillos home with impressions of the
    footprints found at the scene. The Crown argued that it was open to the jury to
    find that the partial footprint at the scene of the murder was Portillos, and
    that inference provided cogent evidence of Portillos involvement in the
    killing.

[51]

In rejecting the probative value of the footwear, Doherty J.A. said at
    paras. 29-32:

The Crowns argument
    both at trial and on appeal as to the probative value of the footwear
    evidence is seductive. I agree, however, with [defence counsels] contention
    that the Crowns argument as to the relevance of the evidence is ultimately
    based on circular reasoning.

The footwear evidence consisted of two primary
    facts:

 two partial shoe prints found at the scene were similar to
    impressions from two shoes found by the police in the course of their
    investigation; and

 the shoes were found in the vicinity of [Portillos] apartment.

The footwear evidence was relevant if it could
    reasonably be inferred from those primary facts, considered in the context of
    the rest of the evidence, that [Portillo] was at the scene of the homicide in
    close proximity to the body. That conclusion could be drawn only if these two inferences
    were reasonably available from the footwear evidence:

 the shoes found by the police made the prints at the scene; and

 the shoes belonged to [Portillo]

The footwear evidence had relevance only if
    both of the above inferences could be drawn.

[52]

This court concluded that the evidence was not relevant because it
    relied on the assumption of facts not proved.

[53]

Here, the primary fact is the plot to kill Lusted. This fact would only
    have relevance if it could be reasonably inferred from this fact that Mason was
    murdered by the appellant. Put another way, the plot to kill Lusted could only
    assist in proving that the appellant had killed Mason if the appellant wanted
    to kill Lusted
because
Lusted knew he had killed
    Mason. There were no facts to show that the plot was because of Masons murder
    absent an assumption of facts not proven. Thus, the plot - like the footwear in
Portillo
 was not relevant and had no probative
    value.

[54]

The trial judges ruling demonstrates that he fell into the same error
    as the trial court in
Portillo.
He assumed that
    the jury could find  absent evidence connecting the murder of Lusted to the
    murder of Mason - that the appellant wanted to kill Lusted because he witnessed
    the murder. This is clear from this excerpt from para. 27 of his ruling:

If the jury accepts the evidence that [the
    appellant] plotted to do away with the only witness to Billy Masons murder
    giving the reason for such action as being that Lusted had information that
    would put [the appellant] away for a long time, it is open to the jury to draw
    the inference that [the appellant] is the killer of Mason.

[55]

There was no evidence upon which the jury could accept that the reason
    for the murder plot was because the appellant had killed Mason. The probative
    value of the plot depends upon the assumption that it relates to the murder of
    Mason.

Frailties of Huards evidence

[56]

Huard
    was a
Vetrovec
witness, had a long criminal record, and suffered from
    schizophrenia and paranoia. He also heard voices. Then there is the timing of
    the plot.

[57]

Mason
    disappeared in 2006. The Crowns position was that the murder occurred on
    February 24, 2006. Masons body was never found. Huard testified that the plot
    to kill Lusted was hatched and aborted in the summer of 2008. The Crown submits
    that Lusteds release from prison in June 2008 was the reason for the plot. However,
    Lusted had only been in jail for 18 months out of the 28 months between Masons
    disappearance and the plot to kill Lusted. Lusted did not discuss the matter
    with the police until 2009. The appellant was arrested in 2010. Huard spoke
    about the 2008 plot to the police in 2010 after being promised immunity. These
    facts are difficult to reconcile with the trial judges conclusion that the
    plot is part of the continuing narrative.

[58]

Since
    I have concluded that Huards evidence was not probative, it is not necessary
    to consider the prejudicial effect. Nonetheless I do so to demonstrate the
    seriousness of the admission of the evidence.

Prejudicial Effect

[59]

Evidence
    that is otherwise admissible may be excluded on the ground that its probative
    value is overborne by its prejudicial effect. Watt J.A. said:

Prejudicial effect does
not
refer to the probability
    of conviction in the event the evidence is admitted. What is meant by
    prejudice, and what the required balancing seeks to avoid, is
improper
jury
use
of the evidence. In other words, it is
not
so much the
result
that is likely to follow upon reception of the evidence, rather the
manner
of achieving it that the exclusionary discretion seeks to avoid: David Watt,
Manual
    of Criminal Evidence
(Toronto: Thomson Reuters Canada Ltd., 2013), at pp.
    45-46.

[60]

Huard
    imported vast amounts of discreditable conduct by the appellant into the
    evidence: home invasions, stealing vehicles, chopping them apart and selling
    them, weapons, drugs and other criminal activity. Significantly, the plot to
    kill Lusted was criminal conduct which was a similar act to the crime charged.

[61]

There
    is a straight line from this evidence to impermissible propensity reasoning on
    the part of the jury. When speaking of the exclusion of similar fact evidence,
    the Supreme Court stated in
Handy
at para. 37:

The policy basis for the exclusion is that while
    in some cases propensity inferred from similar facts may be relevant, it may
    also capture the attention of the trier of fact to an unwarranted degree. Its
    potential for prejudice, distraction and time consumption is very great and
    these disadvantages will almost always outweigh its probative value. It ought,
    in general, to form no part of the case which the accused is called on to
    answer. It is excluded notwithstanding the general rule that all relevant
    evidence is admissible. [Citations omitted.]

[62]

Handy
also described the prejudice that could result. As to moral
    prejudice, at para. 139:

It is frequently mentioned that prejudice in
    this context is not the risk of conviction. It is, more properly, the risk of
    an unfocussed trial and a
wrongful
conviction. The forbidden chain of
    reasoning is to infer guilt from
general
disposition or propensity. The
    evidence, if believed, shows that an accused has discreditable tendencies. In
    the end, the verdict may be based on prejudice rather than proof, thereby
    undermining the presumption of innocence enshrined in
ss.
    7
and
11
(
d
) of the
Canadian
    Charter of Rights and Freedoms
.

As to reasoning prejudice at paras. 144-145:

The major issue here
    is the distraction of members of the jury from their proper focus on the charge
    itself aggravated by the consumption of time in dealing with allegations of
    multiple incidents involving two victims in divergent circumstances rather than
    the single offence charged.

Distraction can take different forms. In
R. v.
    D. (L.E.)
(1987), 20 B.C.L.R. (2d) 384 (C.A.), McLachlin J.A. (as she then
    was) observed at p. 399 that the similar facts may induce

in the minds of
    the jury sentiments of revulsion and condemnation which might well deflect them
    from the rational, dispassionate analysis upon which the criminal process
    should rest.

[63]

As in
Handy
,
Huards evidence related to uncharged conduct and imported a separate
    criminal trial into the murder trial.

[64]

The improper use by the jury is yet more likely when the evidence of
    Huard is looked at in the
context of the rest of the Crowns case.
    Lusted was a classic
Vetrovec
witness. He met with police several
    times and told them several different stories regarding Masons disappearance.
    He clearly got the dates wrong, so the Crown based its theory of the dates on
    the phone records and the report of a fire. Lusted indicated that his last
    statement, which was consistent with his testimony, was the truth. At trial,
    videos of the earlier statements were played during his cross-examination. The
    evidence of the fire marshal was equivocal.

[65]

In
    light of these weaknesses in the Crowns case, there is an increased likelihood
    that the jury would engage in circular and propensity reasoning to jump the gap
    in the evidence. There was no correcting instruction given to the jury.

[66]

The
    trial judge provided the jury with the standard 
White
instructions
    relating to after the fact conduct. However, there was no instruction to the
    jury connecting the law to the evidence. In particular:

·

The fact that Huard did not connect the plot to the murder of
    Mason;

·

The timing of the plot as opposed to the timing of Masons
    disappearance;

·

The lack of triggering event to the plot;

·

The frailties of Huards evidence apart from the criminal conduct
    referred to in the
Vetrovec
warning;

·

The several other reasons the appellant might have for wanting
    Lusted dead, including their life of crime together and the altercation with
    his wife.

[67]

The
    trial judge said this to the jury:

To decide the reason for what [the
    appellant] did or said, you should consider all of the evidence, particularly,
    of particular importance is evidence that offers other explanations for his
    conduct or these statements.

Defence counsel argues that Lusted had lots of information
    about [the appellants] life of crime that could send [the appellant] away
.
    Consider whether any of that could be as serious as murder and serious enough
    to cause [the appellant] to do away with Lusted
. [Emphasis added.]

[68]

By
    adding the phrase serious enough to cause the plot, the trial judge essentially
    gave the jury the answer to the question about why the appellant wanted to kill
    Lusted.

SUMMARY

[69]

I
    have concluded that the evidence of Huard was not probative and thus not
    admissible. In light of this conclusion, it is not necessary to address the
    fresh evidence.

DISPOSITION

[70]

I
    would allow the appeal and order a new trial.

M.L. Benotto J.A.

I agree K. Feldman J.A.

I agree M. Tulloch J.A.

Released: February 26, 2018


