



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Maestrello, 2019 ONCA 952

DATE: 20191204

DOCKET: C52600

Simmons, Huscroft and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Maestrello

Appellant

James Lockyer and Lance Beechener, for
    the appellant

Craig Harper and Andrew Hotke, for the
    respondent

Heard: November 18-19, 2019

On appeal from the convictions entered
    by Justice Hugh R. McLean of the Superior Court of Justice, sitting with a jury,
    on July 8, 2010.

Nordheimer
    J.A.:

[1]

Jason Maestrello appeals his convictions on two
    counts of first degree murder and one count of attempted murder while using a
    firearm. For the reasons that follow, I would allow the appeal. In my view, the
    cumulative effect of various errors made by the trial judge in the course of
    his final instructions to the jury require their verdicts to be set aside and a
    new trial ordered.

A.

Background

[2]

The charges arise out of a planned drug
    rip-off. The deceased were two large-scale marijuana dealers. They were lured
    to an isolated location for the supposed purpose of completing a major drug
    transaction in which the deceased were going to purchase a large amount of
    marijuana for a significant sum of money. At this location, on July 16, 2005,
    the deceased were each shot multiple times.

[3]

Four individuals were involved in the drug
    transaction from the sellers side  the appellant, Michael Boyle, Roger Belair,
    and Andrew Paul. As things developed, the appellant and Boyle on the one hand,
    and Belair and Paul on the other, had diametrically different positions as to who
    orchestrated the rip-off and who shot the deceased.

[4]

In reciting the following facts, I should note
    that of these four individuals, only Belair and Paul gave evidence at the trial.
    The appellant did not give evidence, nor did Boyle. Boyle had been a co-accused
    with the appellant but, for reasons that are not important for the purposes of
    this appeal (save for the fresh evidence application that I will address later),
    the charges against him had been severed such that the trial proceeded against
    the appellant alone.

[5]

The appellant lived in Sudbury. Belair lived in
    Cornwall. He and Belair met in 2000 or 2001. They became friends. Both the
    appellant and Belair were involved in drug dealing. The appellant was
    principally a cocaine dealer and Belair was principally a marijuana dealer. Belair
    was, as described by the Crown, a career criminal involved in several criminal
    enterprises in Cornwall, including trafficking drugs.

[6]

The appellant and Boyle travelled to Cornwall in
    June 2005. They stayed at Belairs apartment. The appellant had also visited
    Belair in May 2005. Belair said that the appellant and Boyle were present with
    him for some drug deals during the time that they stayed with Belair, including
    drug deals involving the deceased. Paul was involved in some of these drug
    deals.

[7]

Belair knew the deceased. He had done three or
    four marijuana transactions with them in the year prior to the shooting. In these
    transactions, Belair and Paul acted as middlemen between a drug supplier and
    the deceased. However, there had been problems with a couple of these
    transactions, including one where the deceased did not have enough money to
    purchase all the marijuana that they had agreed to buy.

[8]

According to Belair, in early July 2005 the
    deceased approached him about a large-scale marijuana deal. However, when he
    told them he was no longer working with his supplier, the appellant intervened
    and said he and Boyle could supply the marijuana. The appellant, Boyle, Belair
    and Paul subsequently became involved in making arrangements for the
    transaction. Although he could not remember the name of the person with whom he
    was dealing, Paul claimed he separately agreed to sell a large quantity of
    marijuana to a secondary purchaser on the understanding the appellants and
    Boyles supplier had access to two tons of marijuana.

[9]

On the evening of July 14, 2005, the deceased
    met with Belair, Paul and the appellant. Belair was shown a bag of money by one
    of the deceased. It was explained to Belair that the deceased did not yet have
    all of the money necessary for the drug deal but they would have it in time. Indeed,
    one of the deceased called the next day to say that he had all of the money
    needed for the deal.

[10]

Belair had selected an automotive repair shop as
    a possible location for the drug deal. On July 15, the day prior to the
    shootings, Belair said that he, the appellant and Boyle went to the repair shop.
    Belair spoke with the owner about the possibility of renting one of the bays in
    the garage. The appellant and Boyle remained in the vehicle. It appears that
    this was a pretext in order to scout out the location.

[11]

About 10:00 p.m. on that same day, Belair once
    again drove the appellant and Boyle in his truck to the repair shop. The
    purpose of the visit was to ensure that the repair shop was unattended and to
    cut off the lock on the gate leading to the repair shop. Belair had brought
    bolt cutters with him for this purpose, which he had borrowed from a friend. An
    employee of the repair shop was present but after the employee left, the lock
    was cut. According to Belair, the lock was cut by the appellant and Boyle. At
    this time, Paul was out with a friend drinking and ingesting cocaine.

[12]

Around midnight, Paul called Belair. He then
    left his friend and drove to Belairs apartment, carrying with him a money
    counter. When he arrived, he found that the deceased, Belair, Boyle and the
    appellant were already there. A short time later, Paul left. Paul gave evidence
    that he left to meet the secondary purchaser, who also intended to purchase a
    large quantity of marijuana.

[13]

Belair gave evidence that shortly after Paul
    left, he drove the appellant and Boyle to the repair shop, arriving there
    around 12:45 a.m. This was confirmed by security cameras located at other
    businesses along the route that Belair took to get to the repair shop. Belair
    says that he left the appellant and Boyle at the deserted repair shop where he
    understood they were to meet with the supplier of the marijuana. Belair
    returned to his apartment where the deceased had remained.

[14]

Cell phone records were adduced at the trial. Those
    records showed that the appellant did not stay at the repair shop but, rather,
    moved to different locations north and east of the repair shop. Curiously, the
    evidence was that the appellant did not have any vehicle available to him when
    he and Boyle were left at the repair shop. Nevertheless, over the next couple
    of hours, the cell phone records clearly show the appellant moving around
    between the cell area that encompassed the repair shop and an adjoining cell
    area.

[15]

Meanwhile, Paul said that he met up with this
    secondary purchaser and they waited for news that the marijuana deal was ready
    to proceed. They waited at a Tim Hortons on the east side of Cornwall that was
    close to the repair shop.

[16]

Belair said that he and the deceased waited at
    his apartment until about 2:30 a.m. or almost two hours after Belair had
    dropped the appellant and Boyle at the repair shop. During this time, Belair
    had a number of telephone calls with both the appellant and with Paul.

[17]

Around 2:30 a.m., Belair said that the appellant
    called and told him that the marijuana deal was ready to proceed. Belair and
    the deceased left the apartment and headed to the repair shop. Security cameras
    showed Belairs car and the deceaseds truck approaching the repair shop at
    2:36 a.m. When they arrived, Belair said that neither Boyle nor the appellant was
    there. Belair and the deceased waited. The appellant called Belair three times:
    2:39 a.m.; 2:58 a.m. and 3:04 a.m. According to Belair, the appellant told him
    that he and Boyle had become separated  he with the marijuana supplier and
    Boyle with the driver who actually had the marijuana. They were trying to
    reconnect. With respect to the 3:04 call, the appellants phone pinged off
    the Cornwall downtown cell area, not the cell area where the repair shop was
    located.

[18]

During this time, Paul was still waiting with
    his secondary purchaser. Paul says that at 3:00 a.m., the secondary purchaser
    got tired of waiting and left.

[19]

Belair said that, while he was waiting with the
    deceased, he heard gravel moving. Then a masked man with a gun appeared and
    ordered Belair to the ground. Belair then heard a couple of gunshots and dove
    under his car after which he heard one of the deceased say just take it, just
    take it. Then there were more gunshots. Boyle then appeared and told Belair
    that it was alright and to come out. Belair says that Boyle was holding a gun
    and had a masked pulled up above his face. Boyle and Belair walked over to the
    deceased who were injured but still alive. Belair then saw the appellant who
    also had a mask pulled up above his face. The appellant had a shotgun and a
    handgun.

[20]

Belair said that Boyle gave him the gun he was
    holding and told him to finish off the deceased or else he would join them. Belair
    said that he put the gun against one of the deceaseds neck and pulled the trigger.
    The gun did not go off. While this was going on, the appellant was using the
    butt end of a shotgun to break the glass of a window on the deceaseds truck.
    Belair said that the appellant and Boyle entered the truck and retrieved a bag
     presumably the bag of money for the drug deal. Belair was told to get in his
    car. The appellant then walked over to the two deceased and separately shot
    each of them at point blank range with the shotgun. The appellant and Boyle got
    into Belairs car and left the scene. Video surveillance showed Belairs car
    travelling away from the repair shop at 3:17 a.m.
[1]

[21]

The appellant told Belair to drive to the home
    of Belairs estranged wife, Clarissa Thompson. Along the way, the appellant
    told Belair to call Paul. Belair called Pauls cell phone at 3:15 a.m. and 3:18
    a.m. On arrival at Thompsons, Belair said that the appellant and Boyle carried
    the bag of money that also included the guns and some other items into the home.

[22]

Belair says that the appellant again told him to
    call Paul for the purpose of arranging a meeting. A series of calls took place
    between Belair and Paul. Pauls evidence was that he wanted to know how the
    deal with the deceased had gone and to get his cut from that deal. Belair and
    Paul agreed to meet. Belair said that he and Boyle then left Thompsons home,
    leaving the appellant at Thompsons. During the drive, Boyle produced one of
    the handguns. Boyle told Belair that he would have to kill Paul or his family
    would be shot.

[23]

Belair and Boyle picked up Paul in Belairs car.
    They drove off, ostensibly to go and collect the marijuana for the deal with
    Pauls secondary purchaser. Nothing was said about what had happened earlier
    with the deceased. The three drove to an abandoned farm house. Once there,
    Belair said that he walked up behind Paul and shot him in the back of his head.
    Belair and Boyle then left the farmhouse with Paul apparently dead on the ground.
    In fact, Paul was still alive.

[24]

Belair and Boyle returned to the Thompson home. When
    they arrived, the appellant had already showered and put his clothes in a bag.
    They reported on the shooting of Paul. Belair was told to shower and put his
    clothes in the same bag. Boyle did the same. At some point, they left the
    Thompson home and went to Belairs apartment, taking with them the bag of
    clothes and the bag with the money and the guns.

[25]

At 8:20 a.m., Belair called his cleaning lady
    and arranged for her to come and clean his apartment. The appellant gave Belair
    US$20,000. He also told him that he should get his car cleaned. Belair took his
    car to a carwash and left it for cleaning. Belair said that the appellant then
    told him to dispose of the bag that now contained the guns, the money counter
    and some other items. Belair and the appellant took Belairs boat out onto the
    St. Lawrence River and dropped the bag overboard.

[26]

Belair said that the appellant wanted to burn
    the bag of clothes. Belair suggested they could do that at his sisters farm.
    Belair, Boyle and the appellant drove to the farm, arriving in the afternoon. Belair
    told his nephew, who was at the farm, that he had to use their fire pit. Belair
    says that he stayed in the house while Boyle and the appellant went and burned
    the clothes. However, there was other evidence that suggested that Belair had
    gone to the pit when the clothes were burned. Belairs sister did not arrive at
    the farm until after the clothes were burning.

[27]

On July 21, five days after the murders, the
    police arrested Belair for the attempted murder of Paul. By this time, the
    appellant and Boyle had returned to Sudbury. Belair told the police that the
    appellant had shot Paul, even though he knew that Paul was alive and thus able
    to tell the police that the appellant had not been there when he was shot.

[28]

On August 17, Belair led the police to the
    location on the St. Lawrence River where they had disposed of the bag with the
    guns. The police were able to locate and retrieve the bag. It contained two
    handguns, a shot gun, ammunition, a pair of bolt cutters, a pry bar, a latex
    glove, two balaclavas, plastic ties, homemade handcuffs, bear spray, a towel, a
    can of paint, a flashlight and a money counter. Belair testified that the guns
    were the ones that had been used in the murders and the shooting of Paul. The evidence
    was that Belair had owned each of these guns. Belair claimed that the
    balaclavas were not the ones used by the appellant and Boyle during the
    murders. Belair also acknowledged the bolt cutters, which he had obtained from
    a friend of his. A hair was found on the towel that had a mitochondrial DNA
    profile from which the appellant could not be excluded. The day after the
    police recovered the bag with the guns, the appellant and Boyle were arrested
    in Sudbury.

[29]

In late December 2006, Belair reached an
    agreement with the Crown by which he agreed to plead guilty to a charge of
    aggravated assault with respect to the shooting of Paul. The Crown agreed to seek
    a sentence of no more than 2 ½ years in addition to pre-trial custody
    consequent on this plea. Belair would, in turn, co-operate with the police in
    the prosecution of the appellant and Boyle for the murders, including giving
    evidence in that prosecution.

[30]

The trial against the appellant and Boyle
    proceeded. It began on October 5, 2009 but the trial was cut short by a late
    breaking development that led the trial judge to dismiss the jury shortly
    after they were empanelled. As a consequence of those issues, the Crown decided
    to sever the charges against the appellant and Boyle. The trial for the
    appellant proceeded on May 10, 2010. The appellant was convicted on July 8,
    2010.

[31]

Before dealing with each of the grounds of
    appeal, I should mention a few additional facts. This was a complicated case.
    The Crown called over one hundred witnesses. The trial took two months to
    complete. That said, the trial largely rested on the evidence of Belair and, to
    a lesser extent, Paul, who had been directly involved in the events.

[32]

Belair had a significant criminal record,
    including a prior conviction for aggravated assault. He was a known drug
    dealer. Paul had an extensive criminal record, including prior convictions for
    assault. Paul also had issues with alcohol and drugs.

[33]

Finally, as the trial judge told the jury, the
    only issue that was left with the jury to decide was whether the appellant had
    committed the murders. Trial counsel had agreed that all of the other elements
    of the offence of first degree murder had been made out, except who had committed
    the murders.

B.

Analysis

[34]

The appellant raises a number of grounds of
    appeal, which I would collect into three. They are:

1.

The verdicts were unreasonable such that
    acquittals ought to be entered;

2.

There were several errors in the trial judges
    final instructions that require a new trial; and

3.

There is fresh evidence that, if admitted, would
    warrant a new trial being ordered.

[35]

I would allow the appeal on the second ground of
    appeal. The jurys verdict can be supported by a reasonable view of the
    evidence put before them at trial. However, errors made by the trial judge in
    instructing the jury, particularly on the issue of post-offence conduct, are
    sufficiently serious that these verdicts cannot stand. That conclusion makes it
    unnecessary to deal with the fresh evidence application.

(1)

Unreasonable verdicts

[36]

The appellant says that the verdicts were
    unreasonable ones that no jury, properly instructed, could have reached on the
    evidence that was placed before them. The appellant says that the evidence
    adduced by the Crown so lacked credibility that convictions simply could not be
    properly reached on it. The appellant points to the bad character of Belair,
    his history of committing crimes, especially drug-related crimes, his motive to
    implicate the appellant, and the various inconsistencies and/or improbabilities
    in his evidence. In particular, the appellant says that Belairs contention
    that he was simply following the directions of the appellant throughout these
    events is not a credible one.

[37]

I do not intend to deal with this ground of
    appeal at length. I accept that the appellant makes a number of valid points in
    his criticism of the Crowns case, many of which I will address when I deal
    with the second ground of appeal. I do not need to deal with the ground at
    length because, in my view, even accepting much of what the appellant advances,
    the appellant has failed to establish that the jurys verdicts are
    unreasonable.

[38]

The test for an unreasonable verdict is the one
    to which I just alluded. It is whether the verdict is one that a properly
    instructed jury acting judicially, could reasonably have rendered:
R. v.
    Yebes
, [1987] 2 S.C.R. 168, at p. 185.

[39]

The application of this test was described in
R.
    v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381, where Arbour J. said, at
    para. 36:

That formulation of the test imports both an
    objective assessment and, to some extent, a subjective one. It requires the
    appeal court to determine what verdict a reasonable jury, properly instructed,
    could judicially have arrived at, and, in doing so, to review, analyse and,
    within the limits of appellate disadvantage, weigh the evidence.

[40]

The application of the test was noted in
Biniaris
to be a more difficult one where the verdicts are rendered by a jury. A finding
    that a verdict is unreasonable is not met where, as Arbour J. noted, an
    appellate court only has a vague unease, or a lingering or lurking doubt: at
    para. 38. In order to find a jurys verdicts unreasonable, especially when they
    will have to have been based in whole or in part on their assessment of the
    credibility of witnesses, an appellate court must find that those credibility
    assessments cannot be supported on any reasonable view of the evidence:
R.
    v. Burke
,

[1996] 1 S.C.R. 474, at para. 7.

[41]

I do not quarrel with many of the points that
    the appellant makes respecting the problems with the evidence of Belair.
    However, those problems do not rise to the level where a jury simply could not
    believe him and that is the level to which they would have to rise for this
    court to properly find the verdicts to be unreasonable.

[42]

The Crowns initial response to this ground of
    appeal is to assert that this was a strong Crown case. I disagree. This was the
    antithesis of a strong case. It depended largely on the evidence of two
    criminals, one of whose blood was found at the murder scene and the other of
    whom acknowledged being at the scene and had a motive to exact revenge on the
    deceased. That said, though, this does not mean that there was no evidence implicating
    the appellant in the murders. In addition to the direct evidence of Belair,
    there was cell phone evidence that placed the appellant in the vicinity of the
    murders at the relevant time. I appreciate that the cell phone evidence cuts
    both ways. In particular, the 3:04 call places the appellant some distance from
    the repair shop. His window of opportunity to get back to the repair shop, sneak
    in along with Boyle and commit the murders is a tight one. However, it is not
    an impossible one. Further, other witnesses established that the appellant was
    involved in the burning of the clothes at the farm. In addition, there was the
    appellants history of being a drug dealer and of his involvement in other drug
    transactions involving Belair and the deceased.

[43]

Had the jury been properly instructed and had
    they reached the same verdicts, I cannot say that the experience of judicial
    fact-finding would preclude such a result. Properly instructed, the jury would
    have been entitled to sift through all the problems in the Crowns case, and in
    Belairs evidence, and still conclude that the appellant had committed the
    murders. Although that result might have been unlikely, I cannot conclude that
    it would have been precluded.

(2)

Errors in the final instructions

[44]

The appellant advances a number of errors that
    he says were made in the trial judges final instructions to the jury. They
    are:


(i)

The trial judge failed to give a
Vetrovec
warning with
    respect to Thompson;


(ii)

The
Vetrovec
warnings that the trial
    judge gave with respect to Belair and Paul were inadequate;


(iii)

The trial judge erred in his instruction on post
    offence conduct;

(iv)

The trial judge erred in his answer to the first question from the
    jury.

(a)

Vetrovec
warning
    for Thompson

[45]

The appellant asked the trial judge to give a
Vetrovec
warning for Thompson essentially because of her very close connection to
    Belair. She was the estranged spouse of Belair; she had stated that she
    continued to be infatuated with him; she had changed her story from what she
    initially told the police to what she said at trial in a manner that directly
    assisted Belair; and she had many contacts with Belair after the murders during
    which she had ample opportunity to tailor her evidence to fit his. In
    particular, on this point, Thompson gave evidence at trial that Belair had come
    to her house along with the appellant and Boyle in the early hours of July 16.
    Thompson had earlier told the police in a statement that she had not seen
    Belair, the appellant or Boyle that day.

[46]

The trial judge declined to give a
Vetrovec
warning for Thompson because he found that her evidence was not important and
    did not have the centralness required for such a warning. The trial judge erred
    in his analysis of the importance of Thompsons evidence. Thompson said at
    trial that she saw the appellant with Belair and Boyle immediately following
    the murders. She had earlier told the police that she had not seen any of them
    in the morning after the murders. Of course, her trial evidence tended to support
    the evidence of Belair, who was the primary witness against the appellant.

[47]

Thompsons evidence was not unimportant nor was
    it peripheral. It provided some confirmation for Belairs evidence. Its
    importance was not lost on trial counsel. Defence counsel told the trial judge,
    if the jury concludes that Clarissa Thompson is telling the truth about the
    garage on July the 16
th
, then there will be a conviction. Its as simple
    as that. Crown counsel also thought that Thompsons evidence was important.
    They told the trial judge that they would make a big deal out of her
    evidence. Indeed, in his closing, Crown counsel told the jury [i]f you believe
    [Thompsons] evidence then, really, theres no escape for Jason Maestrello.

[48]

It is useful at this stage to return to the
    decision in
R. v. Vetrovec
, [1982] 1 S.C.R. 811, to see what the
    Supreme Court of Canada said about the need for such a warning. In particular,
    Dickson J. decried the laws then requirement to identify accomplices as
    requiring a special warning regarding their credibility or believability.
    Rather, he thought that all witnesses should be treated equally. If a
    particular witness, for a particular reason, required a special warning, then a
    trial judge should give it. Otherwise, all witnesses should be treated in the
    same fashion, none of them being required to be singled out for special
    treatment. In the end result, that proper approach was, according to Dickson
    J., at p. 823:

Rather than attempting to pigeon-hole a
    witness into a category and then recite a ritualistic incantation, the trial
    judge might better direct his mind to the facts of the case, and thoroughly
    examine all the factors which might impair the worth of a particular witness.
    If, in his judgment, the credit of the witness is such that the jury should be
    cautioned, then he may instruct accordingly. If, on the other hand, he believes
    the witness to be trustworthy, then, regardless of whether the witness is
    technically an accomplice no warning is necessary.

[49]

If a witness fell into the category requiring a special
    caution, Dickson J. said, at p. 831, that the trial judge should give a clear
    and sharp warning to attract the attention of the juror to the risks of
    adopting, without more, the evidence of the witness.

[50]

In my view, the trial judge was correct in
    concluding that Thompson was not the type of witness that required a formal
Vetrovec
caution, although I disagree with the reasons that the trial judge gave for
    reaching that conclusion. That said, however, Thompson was an important witness
    who, given her changing story and her personal connection to Belair, required
    some attention by the trial judge in his review of the evidence. The trial
    judge ought to have specifically mentioned her evidence and pointed out some of
    the factors that the jury would want to take into account in assessing her
    evidence, including the ones that I have just mentioned. This did not occur. Indeed,
    there was precious little review of the evidence at the trial undertaken by the
    trial judge generally. Further, when the trial judge did mention Thompsons
    evidence he misstated or underplayed it  telling the jury incorrectly that in
    her first police statement she failed to mention the men coming to her house when,
    in fact, she had said that she had not seen them. The failure of the trial
    judge to more fully review her evidence and identify the frailties in it was an
    error, but it is not one that, by itself, would warrant intervention by this
    court.

(b)

Vetrovec
warnings for Belair and Paul

[51]

The trial judge gave
Vetrovec
warnings
    for Belair and Paul, largely in the same terms. The appellant advances two
    complaints. One is that with respect to Paul, the trial judge did not identify all
    of the reasons why Pauls evidence should be approached cautiously. In
    particular, the trial judge mentioned only Pauls criminal record but did not
    point out the possibility that Paul was, in fact, present for the murders and
    may have participated in them. In that regard, it is important to note that,
    among other evidence, Pauls blood was found inside the deceaseds vehicle, which
    could have been deposited when the window was broken to obtain the bag of cash.
    Paul rejected that suggestion at trial and explained that his blood could have been
    deposited at an earlier time, when he had also been in the deceaseds vehicle,
    although he could not explain what would have caused his blood to be left then.

[52]

When dealing with a witness that requires a
Vetrovec
warning, it is important that the trial judge identify the reasons why the jury
    should approach the witness evidence with caution. As Fish J. said in
R. v.
    Smith
, 2009 SCC 5, [2009] 1 S.C.R. 146, at para. 14:

In order to assess the risk of accepting
    testimony from an unsavoury witness, a jury must understand the reasons for special
    scrutiny (
R. v.

Sauvé
(2004), 182 C.C.C. (3d) 321
    (Ont. C.A.), at para. 85). This requires identifying for the jury the
    characteristics of the witness that bring his or her credibility into serious
    question. [Citation in original.]

[53]

The trial judge erred in not better explaining
    to the jury the reasons why they should approach Pauls evidence with caution.

[54]

The second complaint is that the trial judge did
    not properly explain what confirmatory evidence there might have been for
    either Belair or Paul. With respect to Belair, the trial judge referred to the
    cell phone evidence, the trip to burn the clothes, and the evidence of Paul.
    With respect to Paul, the trial judge also referred to the cell phone evidence,
    the evidence of another witness who was with Paul for a portion of the evening
    of July 15, and the evidence of Belair.

[55]

The problem with the trial judges references to
    evidence that might be confirmatory is that the trial judge failed to explain
    why any of these pieces of evidence could be confirmatory. For example, the
    trial judge mentions the cell phone records but fails to explain how those cell
    phone records might confirm the evidence of Belair or Paul. As the appellant
    points out, some of the cell phone evidence could actually be seen as
    contradicting both Belair and Paul. Similarly, as I will elaborate, the trip to
    burn the clothes implicated Belair as much as it did the appellant.

[56]

The difficulty with the issue of confirmatory
    evidence is that it tends to be a two-edged sword for an accused person. If the
    trial judge goes into great detail with respect to confirmatory evidence, it
    may only serve to buttress the evidence of the witness that the accused person is
    trying to discredit. It is a reason why some defence counsel would prefer that
Vetrovec
warnings not be given at all. As Dickson J. explained in
Vetrovec
, at
    p. 818:

The accused is in the unhappy position of
    hearing the judge draw particular attention to the evidence which tends to
    confirm the testimony the accomplice has given. Cogent prejudicial testimony is
    thus repeated and high-lighted.

[57]

Once again, the trial judge erred in his
    approach to this issue. He ought to have much better explained how the evidence,
    that he was reciting as confirmatory, was, in fact, confirmatory.

[58]

However, I am not satisfied that either of the
    trial judges errors with respect to the
Vetrovec
warnings is sufficient
    to warrant appellate intervention. The fact remains that the evidence of both
    Belair and Paul were made the subject of a special caution. The jury was made
    aware that they should approach their evidence with caution and, while they
    could accept their evidence, it would be dangerous to do so. They were also
    told to look for confirmatory evidence before accepting their evidence. In the
    end result, the central objective of a
Vetrovec
warning was achieved. I would
    also note, on this point, that trial counsel did not make any objection to the
    trial judges instructions in this regard, which suggests that trial counsel
    did not view it as a serious problem.

(c)

Post-offence conduct

[59]

The trial judge gave the jury a standard
    instruction regarding the post-offence conduct. In this case, this particular
    evidence related to the disposal of the bag with the guns and other items in
    the river, and the burning of the clothes at the farm of Belairs sister. In
    his instruction, the trial judge said, in part:

On the other hand, if you find that [what] Mr.
    Maestrello did or said afterwards was
because he was conscious of having done
    what is alleged against him
, you may consider this evidence together with
    all the other evidence in deciding to  in reaching your verdicts. [Emphasis
    added.]

[60]

There are two problems with the trial judges
    post-offence conduct instructions. The above portion of the instructions
    repeats the error identified in
R. v. Hall
, 2010 ONCA 724, 263 C.C.C.
    (3d) 5, leave to appeal refused, [2010] S.C.C.A. No. 499, and in
R. v.
    Taylor
, 2015 ONCA 448, 325 C.C.C. (3d) 413, because it invites the jury
    to jump directly to the issue of guilt as a pre-condition to the use of the
    evidence of post-offence conduct in determining whether guilt has been
    established:
Taylor
, at para. 141. In fairness to the trial judge, his
    instructions to the jury predated the decisions in
Hall

and
Taylor
.

[61]

As this court held in
Hall
, in
Taylor
and in
R. v. Nur
, 2018 ONCA 8, this error is not necessarily fatal. In
Taylor
, for example, the court identified the fact that the defence
    position had been thoroughly canvassed by the trial judge, that there had
    been no objection at trial, and that the post-offence conduct evidence did not
    occupy a prominent place in proving guilt as reasons why the erroneous
    instruction in that case was not fatal: at paras. 143-46.

[62]

In this case, not all of those countervailing
    factors are present. Admittedly, there was no objection by trial counsel.
    However, one cannot say that the defence position was thoroughly canvassed with
    the jury. The trial judge did summarize the defence position from the closing
    but did nothing more. Also, in this case, the post-offence conduct did occupy a
    prominent place in proving guilt.

[63]

That latter observation leads to the second problem
    with the trial judges instructions on post-offence conduct. The fact is that
    the post-offence conduct pointed as much to Belair being the murderer as it did
    to the appellant. Of significance on this point is the fact that the guns belonged
    to Belair. There was also no explanation offered in the evidence as to how
    those guns got to the repair shop to be used to commit the murders. Further, if
    Belair did not actually dispose of the bag with the guns in the river, he was
    certainly present for that event. Indeed, it was his boat that was used to make
    the trip out on the river to drop the bag overboard. Finally, Belair was also present
    for the burning of the clothes that was undertaken, notably, at the farm of his
    sister  a location that he had suggested.

[64]

Despite these facts, the trial judge did not
    instruct the jury on this salient point, that is, the equivalent impact of this
    evidence as between the appellant and Belair, when he dealt with the
    post-offence conduct. In particular, he never told the jury about the alternative
    implications of the evidence along the lines a trial judge might do if dealing
    with a third party suspect instruction. By saying that, I am not necessarily saying
    that a formal third party instruction was required. No request was made for
    such an instruction and, in any event, it would have been obvious to the jury
    that Belair was implicated in these events including being present at the time
    of the murders and also for the attempted murder. Nevertheless, the trial judge
    had a duty to ensure that the jury clearly understood the conflicting positions
    of the parties, the evidence that supported those positions and the necessity
    of assessing the evidence on a reasonable doubt standard. At the very least,
    the trial judge ought to have cautioned the jury that, in considering the
    evidence of post-offence conduct, they had to consider that it pointed equally to
    Belair being the perpetrator of the murders. The trial judge did not do this, despite
    the fact that, in an exchange he had with counsel about answering the jurys
    question (the issue I come to next) he said:

And why I was trying to be careful with it is
    they can use that evidence against Mr. Belair if they want to, because they can
    say the he dealt with the tires, he burnt the clothes and, therefore, he is
    guilty of the offence, not your client.

[65]

Much like the situation in
Hall
, while
    the first error might not be fatal, this second error is of greater consequence.
    Indeed, this case mirrors what occurred in
Hall
, where this court said, at
    para. 150:

Although the trial judge warned the jury that
    it was particularly important to consider evidence of any other explanations
    for the appellant's conduct, she did not suggest to them what other possible
    explanations there were.

[66]

The end result was that the jury was left without
    an adequate instruction as to how to properly use the evidence of post-offence
    conduct. This is important in this case because the post-offence conduct
    evidence carries with it the significant risk that it may have been the
    evidence that led the jury to reason backward to a finding of guilt. The
    reality of that possibility becomes even more apparent when one considers the
    final error identified by the appellant.

(d)

The answer to the jurys first question
[2]

[67]

The jury commenced their deliberations around
    1:00 p.m. Around 8:00 p.m. they sent a question to the trial judge. The
    question was as follows:

The jury would like more clarification on aiding
    and abetting as it applies to the 3 charges on the indictment.

Example:

A)

Would aiding in the planning and destruction of evidence be
    sufficient for a guilty verdict on the 1
st
and 2
nd
charges?

B)

Would aiding in the planning and destruction of evidence be
    sufficient for a guilty verdict on the 3
rd
charge?

[68]

After discussing the question with counsel, briefly
    at the time and then more fully the next morning, the trial judge responded to
    the question. He first pointed out that the instruction on party liability
    through aiding and abetting related only to the third charge, that is, the
    attempted murder charge relating to Paul. He then repeated his charge on aiding
    and abetting.

[69]

The trial judge followed that with a repetition
    of his charge on post-offence conduct. This included repeating the problematic
    language to which I have referred above, language that might cause a jury to
    engage in backwards reasoning. The trial judge did so at the urging of Crown
    counsel, who contended that the reference to the destruction of evidence obviously
    engaged the issue of the post-offence conduct. Although that may be so, there
    is nothing in the jurys question that suggests that they had a problem
    relating to the post-offence conduct instruction. Rather, they clearly had a
    problem with how to consider party liability through aiding and abetting. This
    is evident from the fact that they link aiding and abetting to the first two
    counts, even though they had been told that that route for liability was only
    open to them with respect to the third count. I note that defence counsel
    disagreed with the trial judge re-instructing the jury on post-offence conduct.

[70]

Given that the trial judge had made it clear
    that he was going to repeat his charge on post-offence conduct, the defence suggested
    that the question raised a different possibility. The defence suggested that
    the jury might be considering whether the post-offence conduct demonstrated that
    the appellant was engaged in some criminal conduct other than involvement in the
    murders. The offence of accessory after the fact was brought up, by way of
    example.

[71]

The trial judges reaction to the defence
    suggestion is troubling. First, he said that he could not draw that concern
    from the question. I note that this did not seem to be an impediment to his
    view on the need to recharge on post-offence conduct, which was also not readily
    apparent from the question. Second, he seemed to be of the view that he was
    obliged, in answering the jurys question, to repeat word for word what he had
    said in his original instructions. For example, at one point in his exchange
    with counsel, the trial judge said:

Im not going to get into that. I'm going to
    recharge them as I did yesterday. Because, if [there] was a problem with that,
    that should have been dealt with before my start of the jurys deliberation. 
    I'm going to read the charge as I gave them yesterday, unless theres some
    debate or consent amongst counsel that I change it in some way. Otherwise, it's
    going to be the same.

[72]

The importance of questions from a jury, and of
    answering them fully and properly, cannot be gainsaid. As Cory J. observed in
R.
    v. S. (W.D.)
, [1994] 3 S.C.R. 521, at p. 528:

It is true that directions to a jury must
    always be read as a whole; however, it cannot ever be forgotten that questions
    from the jury require careful consideration and must be clearly, correctly and comprehensively
    answered. This is true for any number of reasons which have been expressed by
    this Court on other occasions. A question presented by a jury gives the
    clearest possible indication of the particular problem that the jury is
    confronting and upon which it seeks further instructions. Even if the question
    relates to a matter that has been carefully reviewed in the main charge, it
    still must be answered in a complete and careful manner. It may be that after a
    period of deliberation, the original instructions, no matter how exemplary they
    were, have been forgotten or some confusion has arisen in the minds of the
    jurors. The jury must be given a full and proper response to their question.
    The jury is entitled to no less. It is the obligation of the trial judge
    assisted by counsel to make certain that the question is fully and properly
    answered.

[73]

This was not a case where the jury had been
    given the trial judges final instructions in writing, so the observation by
    Cory J. that the jury may have forgotten, or become confused about, the
    instructions is an apt one.

[74]

There is no rule that precludes a trial judge from
    altering his earlier instructions, or elaborating on them, or otherwise
    changing them, if that is what is required to answer the question posed. If the
    trial judge proposes to do so, he should, of course, canvass the issue with
    counsel. But a trial judge is not in any form of straightjacket resulting from
    the original instructions. If those instructions need to be changed in order to
    provide a correct and comprehensive answer to the jurys question, then that is
    what should be done. Indeed, the fact that the jury has a question relating to
    a portion of the original instructions is likely a good indicator that there
    may be a problem with the way those original instructions were worded, or how
    they should apply them to the evidence that they have heard.

[75]

In my view, the first question reveals a jury
    that is very confused about what they are to consider and decide upon. The fact
    that the jury somehow related the aiding and abetting instruction to the first
    two counts is proof of that confusion. It should have been alarming to both
    counsel and the trial judge that this confusion existed especially because, I
    reiterate, the only issue before the jury was identity. It reinforced the need both
    to determine what was confusing the jury and for a comprehensive response to be
    given.

[76]

It might have been better if the trial judge had
    simply instructed the jury, in response to their question, that aiding and
    abetting related only to the third count, not the first two counts, and left
    the matter at that. This is what defence counsel originally asked be done. The
    trial judge rejected that approach. However, if the trial judge was going to go
    beyond the apparent confines of the question and get into the post-offence
    conduct issue, as Crown counsel asked him to do, then he should have been alert
    to other issues that that approach raised, including the possibility that the
    jury was considering whether the post-offence conduct suggested guilt of an
    offence (such as accessory after the fact) separate and apart from guilt on the
    murder counts. The fact that the trial judge refused to consider those issues
    is a problem in terms of whether he was providing an adequate response to the jurys
    question.

[77]

Because of the approach that the trial judge
    adopted, he failed to properly consider, and fully answer, the question that
    the jury had asked. Further, in taking the approach that he did, the trial
    judge effectively exacerbated the problem caused by the original instruction on
    post-offence conduct.

(e)

Summary on issues relating to the final
    instructions

[78]

The issues with respect to the various
Vetrovec
errors would not warrant intervention in this case. The issue with the
    instruction on post-offence conduct is much more problematic. It is especially
    so since none of the ameliorating factors identified in
Taylor
, for
    example, are present here, save the failure of defence counsel to object. The
    lack of objection is not, of course, a prohibition against appellate review:
R.
    v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58.

[79]

I am inclined to hold that the error relating to
    the post-offence conduct instruction is itself an irremediable error, both because
    it invited the jury to engage in backward reasoning in the circumstances of
    this case, and because the trial judge never told the jury that this evidence
    could be as indicative of guilt on the part of Belair as it might be with
    respect to the appellant.

[80]

However, my concern in this respect is raised to
    an entirely different and higher level because of the repetition of that
    instruction in response to the jurys question. Indeed, as defence counsel
    pointed out, the question itself could be seen as engaging in backwards
    reasoning because the jury appears to be using the destruction of evidence,
    through the aiding and abetting party liability, to engage the murder counts. The
    confusion that the jury had in this regard would not have been allayed by the
    answer to the question. Indeed, it might only have hastened them along the path
    of finding the appellant guilty because they were convinced that he engaged in
    that post-offence conduct. The trial judge had not provided them with any other
    option arising from the post-offence conduct through his instructions.

[81]

Given the seriousness of these errors, and their
    cumulative effect, along with the very real possibility of backwards reasoning
    that I have identified, the verdicts cannot stand. The verdicts must be set
    aside and a new trial ordered.

(3)

Fresh evidence

[82]

Given my conclusion with respect to the errors
    in the trial judges final instructions to the jury, and the consequent need
    for a new trial, it is unnecessary to address the fresh evidence application.

[83]

I will add one comment with respect to it,
    however.

[84]

The fresh evidence that the appellant seeks to
    adduce is the evidence of Boyle, who did not testify at trial. On September 15,
    2010, Boyle pleaded guilty to two counts of manslaughter and one count of
    attempted murder. Pursuant to a joint submission, Boyle was sentenced to 17 ½
    years. He received a credit of 10 years for his pre-trial custody, leaving a
    sentence of 7 ½ years to be served.

[85]

Shortly after his plea, Boyle told his parole
    officer what he says happened on the night of the murders. In particular, Boyle
    told his parole officer that the appellant had not even been present at the time
    of the murders. Rather, it was Belair and Paul who had committed the murders.
    Further, Boyle said that it was Belair who had shot Paul in the head in order
    to silence him.

[86]

Boyle subsequently told both the appellants
    trial counsel and his appellate counsel what he says happened. He provided an
    affidavit in October 2012 outlining his version of the events of the murders. His
    evidence includes assertions that the appellant knew of a planned robbery of
    the deceased by Belair and Paul and agreed to participate to the extent of
    driving around and calling Belair.

[87]

Even if the fresh evidence was admitted, that
    evidence is not so persuasive, on its own, that it would compel this court to
    enter acquittals rather than order a new trial. Nor does the appellant argue
    that it would. While the Boyle evidence may make the path to conviction for
    first degree murder and attempted murder an even steeper one for the
    prosecution to climb, it does not make it an insurmountable one.

C.

Conclusion

[88]

I would allow the appeal, set aside the
    convictions, and order a new trial on all three counts on the indictment.

[89]

In ordering a new trial, I am mindful of the
    fact that almost 15 years have passed since the murders were committed and
    almost 10 years since the trial took place. This lapse of time will undoubtedly
    make the re-prosecution of the appellant a difficult one for the Crown. It is
    also unacceptable, the responsibility for which lies with both sides. The
    passage of an inordinate amount of time harms everyone involved in a criminal
    prosecution.

[90]

If there is a fatal error in the conduct of a
    criminal prosecution, that error cannot be overcome by concerns over the
    passage of time. This case does, however, show the important responsibility
    that all parties bear in all criminal cases to ensure that prosecutions proceed
    as expeditiously as possible to their proper conclusion.

Released: GH DEC 4, 2019

I.V.B.
    Nordheimer J.A.

I
    agree. Janet Simmons J.A.
I agree. Grant Huscroft J.A.





[1]

This time varies by a few minutes depending on the source.



[2]

I refer to the jurys first question because the jury asked
    a second question seeking the replay of a witness evidence.


