



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McMorris, 2020 ONCA 844

DATE: 20201229

DOCKET: C63072

Lauwers, Huscroft and
    Harvison Young JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Dellan
    McMorris

Appellant

James Lockyer and Lance
    Beechener, for the appellant

Karen Papadopoulos, for the
    respondent

Heard: September
    23, 2020 by video conference, and by supplementary submissions on October 19,
    2020, in writing

On appeal from the
    conviction entered on June 24, 2016 by Justice Brian W. Trafford of the
    Superior Court of Justice, sitting with a jury.

Lauwers J.A.:

A.

Overview

[1]

A jury convicted the appellant, Dellan McMorris, of first-degree murder
    for the killing of Delano Coombs. Jerome Bent pleaded guilty to first-degree
    murder for the same killing.

[2]

The jury was faced with two starkly different versions of events. On the
    evidence led by the Crown, Coombs was driving through a laneway in order to
    exit from the Cooper Mills housing complex in the west end of Toronto. Three
    assailants were waiting for him and emerged from a stairwell with guns drawn. They
    fired shots at the windshield; Coombs stepped out of his car but fell to the ground.
    One shooter, who was wearing a black hoodie, fired the final volley of shots. Coombs
    was shot at least eight times. Witnesses also heard the sound of a gun
    misfiring.

[3]

The assailants fled in different directions. Eyewitnesses described the
    shooter wearing the black hoodie running west and then north, crossing a set of
    train tracks. He dropped the hoodie near the tracks, where the police would
    later find it. The only identifiable DNA on the hoodie belonged to the
    appellant.

[4]

One of the assailants was Jerome Bent. Phone records indicated that Bent
    and the appellant exchanged numerous calls in the days and hours leading up to
    the shooting. Bents girlfriend, Amanda Rumbolt, testified that after receiving
    a cellphone call, Bent instructed her to drive to a location near the housing
    complex where they met the appellant. Bent got out of Rumbolts car, telling
    her to wait for his return. He got into another car with the appellant and
    left. About an hour later Bent returned alone and told Rumbolt to drive home.
    Sirens were wailing.

[5]

The appellant testified that he was not one of the assailants. He
    admitted he was in the complex at the time of the murder but said that he went
    there to retrieve some cocaine from his girlfriends apartment in order to
    complete a drug transaction with Bent. He said that the numerous cellphone
    contacts between him and Bent before the murder were about the drug deal, not
    about the murder. When he heard the gunshots, he fled on foot.

[6]

The jury had before it, on the one hand, the Crowns theory that the
    appellant and Bent were two of the three assailants, and that the appellant was
    either the principal shooter or he was a participant party also guilty of first-degree
    murder. On the other hand, the jury heard the appellants testimony that he was
    not at the murder scene but was elsewhere in the complex.

[7]

As the verdict shows, the jury did not accept the appellants testimony.

[8]

The appellant argues that the trial judge made errors on the
    admissibility of evidence that rendered the trial unjust and require the
    verdict to be set aside.

[9]

For the reasons set out below, I would dismiss the appeal.

B.

The Issues

[10]

The
    appellant submits that the trial judge made three errors:

1. He rejected the defence application
    to admit into evidence before the jury Bents out-of-court statements to his
    friend, Jermaine Graham, that implicated Bent as the principal shooter wearing
    the hoodie;

2. He admitted into evidence before the jury Bents guilty
    plea, together with the transcript of his plea and the agreed statement of
    facts accompanying his plea, both edited by the trial judge;

3. He instructed the jury that they could consider the
    appellants post-offence conduct as evidence of planning and deliberation
    related to the first-degree murder charge.

[11]

The
    first two issues arise from pre-trial rulings by the trial judge. This was a
    fast-moving trial requiring quick responses by the trial judge in difficult
    circumstances. The motion on the admissibility of Bents declarations to Graham
    was argued on May 16 and 17, 2016, and the reasons were released on May 25, and
    reported at 2016 ONSC 3400. The motion on the admissibility of Bents guilty
    plea was filed on May 27, argued on May 31, and the reasons were released on June
    1, and reported at 2016 ONSC 3604. The trial started with witnesses on June 1,
    2016.

[12]

The
    trial judge knew when he heard the arguments on the admissibility of Bents
    declarations to Graham that he would later be making the plea ruling. As the rulings
    anticipated, Bent was summoned to testify but he refused to be sworn.

A.

Issue one: Did the Trial Judge err in dismissing the defence application
    to admit into evidence before the jury Bents out-of-court statement to
    Jermaine Graham that implicated Bent?

[13]

Bent
    made three sets of statements to Graham, who was a close friend of about 15
    years. Bent first spoke to Graham in July 2012, about two months after the
    murder, and then again later in the same month. Graham described his
    conversations with Bent to police officers in a series of interviews beginning
    in November 2012. Then, on April 3, 2013 Graham was put into a cell with Bent and
    their conversation was audio and videotaped with Grahams consent. One week
    later, Graham debriefed police on his intercepted conversation with Bent in the
    cell. Graham testified at the appellants preliminary inquiry.

[14]

The
    trial judge had before him Bents declarations to Graham from July 2012 as
    disclosed to police in November 2012, the intercepted jail cell conversation of
    April 3, 2013, Grahams police debriefing, and Grahams testimony at the
    appellants preliminary inquiry.

[15]

The
    defence applied to have Bents July statements admitted into evidence. The
    defence wanted to have these admitted for the truth of their contents because
    they were evidence that Bent was the principal shooter, that he was the one
    wearing the hoodie who fled the scene and dropped the hoodie bearing the
    appellants DNA near the railway tracks, and that the appellant was present at
    the murder scene but only watched.

[16]

The
    Crown applied to have the intercepted conversation admitted. In that conversation
    Bent said that the appellant was the primary shooter, contrary to what he had said
    in his July statements. The Crown wanted the intercepted statements to be
    admitted on the issues of identity and the appellants role in the murder.

[17]

Each
    party opposed the others application. The trial judge dismissed both
    applications.

[18]

The
    appellant argues that the trial judge should have granted the defence
    application but that he correctly dismissed the Crown application.

(1)

The Governing
    Principles

[19]

Bents
    statements to Graham were plainly hearsay statements and were therefore
    presumptively inadmissible:
R. v. Khelawon
, 2006 SCC 57, [2006] 2
    S.C.R. 787, at para. 3. Fish J. explained the dangers that render hearsay
    presumptively inadmissible in
R. v. Baldree
, 2013 SCC 35, [2013] 2
    S.C.R. 520, at para. 32:

First, the declarant may have
misperceived
the facts to which the hearsay statement relates; second, even if correctly
    perceived, the relevant facts may have been
wrongly
    remembered
; third, the declarant may have narrated the relevant facts in
    an
unintentionally misleading manner
; and finally,
    the declarant may have
knowingly made a false assertion
.
    The opportunity to fully probe these potential sources of error arises only if
    the declarant is present in court and subject to cross-examination. [Emphasis
    in original.]

[20]

Trial
    judges may nevertheless admit hearsay evidence under one of the traditional
    exceptions to the hearsay rule or under the principled exception developed by
    the Supreme Court in
R. v.

Khan
,

[1990] 2 S.C.R.
    531, and
Khelawon
. Karakatsanis J. traced the evolution of the
    principled exception in
R. v.

Bradshaw
, 2017 SCC 35, [2017] 1
    S.C.R. 865, at paras. 19-24.

[21]

The
    principled exception is intended to enhance the truth-seeking function of a
    trial and accurate fact-finding. Hearsay evidence is admissible under the
    principled exception if it meets the twin threshold requirements of necessity
    and reliability:
R. v. Youvarajah
, 2013 SCC 41, [2013] 2 S.C.R. 720,
    at para. 21. By the nature of these requirements, this must be a flexible
    case-by-case examination:
Youvarajah
, at para. 21.

(a)

Necessity

[22]

Necessity
    can be established when a witness dies, recants, or, as here, refuses to
    testify:
Bradshaw
, at para. 25;
R. v. K.G.B.
, [1993] 1 S.C.R.
    740, at pp. 796-99. It is common ground that Bents refusal to testify
    satisfied the necessity requirement in this case. The issue was whether Bents
    statements met the threshold reliability test.

(b)

Threshold Reliability

[23]

The
    trial judges task is to determine threshold reliability on a balance of
    probabilities. Ultimate reliability is a matter for the trier of fact, in this
    case the jury.

[24]

Although
    it has been said that some form of cross-examination of the hearsay declarant is
    usually required, such as preliminary inquiry testimony or cross-examination of
    a recanting witness at trial, the whole point of the principled exception to
    the hearsay rule is that exceptions are acceptable in certain circumstances.

[25]

The
    methodology for trial judges to follow in determining threshold reliability, was
    prescribed in
Bradshaw
, at paras. 26-28, and 30-32. I re-state the
    methodology in brief.

[26]

Threshold
    reliability is established by showing that cross-examination of the declarant
    is unnecessary because there are: (1) adequate substitutes for testing truth
    and accuracy (procedural reliability); or (2) sufficient circumstantial or
    evidentiary guarantees that the statement is inherently trustworthy
    (substantive reliability); or (3) a combination of elements of both procedural
    and substantive reliability (which plays no role in this case).

[27]

The
    trial judge must specify the statements particular hearsay dangers regarding the
    declarants perception, memory, narration, or sincerity, and must evaluate
    whether and how the dangers specific to the case can be overcome because the truth
    of the statement cannot be tested by the declarants cross-examination.

(i)

Procedural Reliability

[28]

Procedural
    reliability is established by showing that there are adequate substitutes for
    testing the hearsay evidence to permit the trier of fact to rationally evaluate
    the truth and accuracy of the hearsay statement. Substitutes might be a video or
    audio recording of the declarants statement, the presence of an oath, or a
    warning to the declarant about the consequences of lying.

(ii)

Substantive
    Reliability

[29]

Substantive
    reliability is established by showing that the hearsay statement is inherently
    trustworthy because of the circumstances in which the declarant made it and
    evidence, if any, that corroborates it.

[30]

The
    standard for substantive reliability is high, but what is commonly referred to
    as the circumstantial guarantee of trustworthiness does not require absolute
    certainty. The trial judge must be satisfied that the statement is so reliable
    that contemporaneous cross-examination of the declarant would add little if
    anything to the process, for example, when the statement is made under
    circumstances which substantially negate the possibility that the declarant was
    untruthful or mistaken, so that the statement is so reliable that it is unlikely
    to change under cross-examination, or when the only likely explanation is that
    the statement is true:
Bradshaw,
at para. 31.

(iii)

The Role of Corroborative Evidence

[31]

A
    trial judge may rely on corroborative evidence to find that a hearsay statement
    shows sufficient substantive reliability to justify a finding of threshold
    reliability:
Bradshaw
, at para. 4. Karakatsanis J. set out the
    methodology and the principles for the use of corroborative evidence in the
    substantive reliability analysis in
Bradshaw
, at para. 57:

1.

identify the material aspects of the hearsay statement that are tendered
    for their truth;

2.

identify the specific hearsay dangers raised by those aspects of the
    statement in the particular circumstances of the case;

3.

based on the circumstances and these dangers, consider alternative, even
    speculative, explanations for the statement; and

4.

determine whether, given the circumstances of the case, the
    corroborative evidence led at the
voir dire
rules out these
    alternative explanations such that the only remaining likely explanation for
    the statement is the declarants truthfulness about, or the accuracy of, the
    material aspects of the statement.

[32]

Commentators
    have expressed concern that a degree of uncertainty might have been injected
    into the test by Karakatsanis J.s use of the words alternative, even
    speculative, explanations for the statement, at paras. 48 and 57 of
Bradshaw
:
    See Hamish Stewart, The Future of the Principled Approach to Hearsay (2018)
    23 Can. Crim. L. Rev. 183;
Chris D.L. Hunt and
    Micah Rankin, 
R. v. Bradshaw
:
    The Principled Approach to Hearsay Revisited (2018) 22 Intl J. Evidence &
    Proof 68.

[33]

I
    do not share this concern. In my view Karakatsanis J. was describing the trial
    judges anticipated reasoning process, not its culmination. The trial judge is
    required to consider alternative, even speculative, explanations for the
    statement while thinking through the reliability analysis. But speculative
    explanations must survive scrutiny under the lens of para. 49 in order to
    warrant a role in the determination of threshold reliability:

While the declarants truthfulness or accuracy must be more
    likely than any of the alternative explanations, this is not sufficient.
    Rather, the fact that the threshold reliability analysis takes place on a
    balance of probabilities means that, based on the circumstances and any
    evidence led on
voir dire
,
the trial judge must
    be able to rule out any plausible alternative explanations on a balance of
    probabilities.
[Emphasis added.]

[34]

Any
    speculative explanation, in short, must be plausible on a balance of probabilities
    and any speculative explanation that does not survive such scrutiny is to be rejected.
    Any explanation left over becomes the plausible candidate for assessment at
    step four; the only remaining likely explanation for the statement is the
    declarants truthfulness about, or the accuracy of, the material aspects of the
    statement. In other words, not just any speculative explanation or fanciful
    idea suffices to abort the threshold reliability analysis  only those that
    are, on reflection, reasonably plausible. I take this to have been the
    intention of Karakatsanis J. in
Bradshaw
. This courts decision in
R.
    v. Nurse
, 2019 ONCA 260, takes that approach at paras. 105 ff, and so
    demonstrates that the test can be met, despite Professor Stewarts concern that
    the
Bradshaw
test sets a standard that is almost impossible to meet:
    Stewart, at p. 193. See also the comment by Lisa Dufraimont on
Nurse
to the same effect: 54 C.R. (7th). And see
R. v. Tsega
, 2019 ONCA 111,
    leave to appeal refused, [2019] S.C.C.A. No. 106, at para. 26,
per
Hourigan J.A.

(iv)

When the Narrator is not the Declarant

[35]

When
    the narrator is not the declarant, how is threshold reliability to be assessed?
    This case presents such a situation. There is both a narrator  Jermaine Graham
     and a declarant  Jerome Bent.

[36]

As
    this court observed in
R. v. Humaid
(2006), 208 C.C.C. (3d) 43 (Ont. C.A.),
    leave to appeal refused, [2006] S.C.C.A. No. 232, at para. 51, and more
    recently in
R. v. Vickers
, 2020 ONCA 275, at para. 58, threshold
    reliability is a substitute for the cross-examination of the declarant, not the
    narrator. Charron J. endorsed the
Humaid
approach in
R. v.
    Blackman
, 2008 SCC 37, [2008] 2 S.C.R. 298, at paras. 48-50.

[37]

In
Blackman
, Charron J. noted, at para. 48, that because the narrator
    would have testified at trial, her credibility and reliability as they related
    to the [deceased wifes] out-of-court statements could be fully tested on
    cross-examination at trial. She added, at para. 50, that the cross-examination
    of the narrator would put the triers of fact in a position to fully assess the
    truthfulness and accuracy of the narrators testimony. If the narrator is
    available for cross-examination at trial, then the narrators credibility can safely
    be left to the trier of fact to consider:
Vickers
, at para. 58,
    citing
R. v. Berry
, 2017 ONCA 17, 345 C.C.C. (3d) 32, leave to appeal
    refused, [2017] S.C.C.A. No. 171, at para. 50. And see
R. v. Charlton
,
    2019 ONCA 400, 146 O.R. (3d) 353, at paras. 33-34;
R. v. Cote,
2018
    ONCA 870, 143 O.R. (3d) 333, at para. 30.

[38]

However,
    there is not a categorical prohibition on the trial judge making preliminary evaluations
    of the narrators credibility and reliability at the threshold reliability
    stage. Charron J. specifically noted, at para. 51 of
Blackman
that, in
    cases where the recipient of the out-of-court statement is
not
available for cross-examination, his or her
    credibility and truthfulness may play an important role in assessing the
    question of threshold admissibility (emphasis in original). She presented the
    apt example of a jailhouse informant, at para. 51:

Consider, for example, if the Crown sought to adduce the
    out-of-court statement of a jailhouse informant containing an alleged statement
    from the accused and the informant was not available to be cross-examined.
    Difficulties with the recipients evidence would be relevant to the question of
    threshold reliability because the form in which the hearsay statement is
    packaged necessarily impacts on the jurys ability to test the truth and
    accuracy of the declarants statements.

[39]

Crucially,
    Charron J. also endorsed Doherty J.A.s caveat at para. 57 of
Humaid
:

There may be cases where the credibility
    or reliability of the narrator of the out-of-court statement is so deficient
    that it robs the out-of-court statement of any potential probative value.
In such cases, and I think they would be relatively rare, a trial judge could
    conclude that the narrators evidence was so incredible or unreliable as to
    necessitate the exclusion of the evidence based on the exercise of his or her
    residual discretion.

[40]

To
    summarize the law on the application of the
Humaid
caveat to the
    assessment of threshold reliability when the narrator is not the declarant:
    first, the caveat is an exception to the general rule that excluding evidence
    about a declarants statement based on the reliability of the narrator would be
    an error if the narrator is available to testify; second, the circumstances
    giving rise to the caveat will be relatively rare; and, third, the decision to
    rely on the caveat falls under the trial judges residual discretion:
Berry
,

at paras. 50-53.

(c)

Balancing Probative
    Value and Prejudicial Effect

[41]

A
    trial judge has discretion to exclude evidence that otherwise qualifies for admission
    under the principled exception to the hearsay rule if its prejudicial effect exceeds
    its probative value, in the case of Crown evidence, or, in the case of defence
    evidence, the potential prejudice substantially outweighs the potential
    probative value to the defence of the out-of-court statement:
Humaid
, at
    para. 57, citing
R. v. Arcangioli
, [1994] 1 S.C.R. 129 and
R. v.
    Seaboyer,
[1991] 2 S.C.R. 577.

[42]

This
    court owes deference to a trial judges discretionary decision to exclude
    evidence:
R. v. Candir
, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para.
    80,
per
Watt J.A.

(d)

The Trial Judges Residual
    Discretion

[43]

A
    trial judge has discretion to relax the rules of evidence as they apply to the
    defence where doing so is necessary to prevent a miscarriage of justice:
Bradshaw
,
    at para. 187;
R. v. Tash
, 2013 ONCA 380, 306 O.A.C. 173, at para. 89;
R.
    v. Kimberley
(2001), 56 O.R. (3d) 18 (C.A.), leave to appeal refused
    [2002] S.C.C.A. No. 29. Again, this court owes deference to the trial judges
    exercise of such discretion.

(2)

The Trial Judges Approach

[44]

The
    trial judges focus was on trial fairness, including the legitimate interest
    of the public in the truth-seeking capacity of the trial and the right of the
    defendant to make full answer and defence by effectively challenging the reliability
    of the evidence tendered by the Crown. The trial judge recognized the
    importance of contemporaneous cross-examination, or its substitutes, to the
    fairness of the trial, especially from the perspective of the defence.

[45]

The
    trial judges reasons addressed each set of statements separately. He set his
    task as gatekeeper this way:

It is not up to me to determine what the Bent declarations
    were, but it is my responsibility, as the gatekeeper, to determine whether the
    jury has sufficient tools to determine what the declarations were and, further,
    the ultimate reliability of any such declarations, absent a contemporaneous
    cross-examination of Bent. The examination and cross-examination of Graham at
    trial is one such tool, but its sufficiency, in the context of the evidence as
    a whole, is to be determined in these applications.

[46]

In
    that spirit, the trial judge made a fair observation during argument about the contending
    applications to admit Bents conflicting declarations through the same narrator.
    He said: [i]t looks like everybodys cherry-picking what they want here and [t]aking
    what they can get from this tree, adding:

But my point is that although youve marshalled the
    declarations youre relying upon there are other declarations, arguably, that
    are inconsistent with these declarations and it seems, if were just using the
    notion of fairness, as most of us would use it.
If the
    jurys got some of this, they may as well have the whole package
.

[47]

The
    trial judge then assessed Grahams retelling of Bents statements, including:
    Bents July statements to Graham, which Graham disclosed to the police in
    November 2012, the April 3, 2013 intercepted conversation, the debriefing of
    that conversation by the police a week later, and Grahams preliminary inquiry
    testimony in May 2015. This review took many pages, after which the trial judge
    observed:

Bent is not available for any cross-examination, about the
    alleged murder in May 2012 or, as prior inconsistent statements, the
    conversations with Graham in July 2012 and during the intercepted conversation
    on April 3, 2013. Graham is available for cross-examination but how that may
    reliably sort out declarations from gossip, rumor, guesses, assumptions and
    other sources of information, whatever they may have been, in May 2015 for
    events in July 2012 through November 2012 and April 2013 is not clear to me.

[48]

The
    trial judge did not have the benefit of the Supreme Courts decision in
Bradshaw
although he did cite
Blackman
. In his application of the law to the
    July declarations, the trial judge noted:

There is no record of the declarations, whatever they may have
    been, by audio-recording, video-recording or contemporaneous notes by Graham.
    Grahams evidence of the declarations includes the attribution of some words to
    Bent, but that attribution changed significantly from November 2012 to May
    2015. The changes included guesses, assumptions, opinions and speculation by
    Graham, as well as gossip and rumor in the community, a community that appears
    to be part of a criminal subculture in Toronto that may include the dynamics of
    the urban street gangs in the area.

[49]

He
    added: All of these factors may have had a lingering and cumulative effect on
    Grahams recollection of his July 2012 conversations with Bent, through May
    2015.

[50]

The
    trial judge dismissed the defence application. He noted the absence of any
    clear statement by Bent expressed in Grahams evidence and pointed to the many
    ways in which Grahams evidence could have been tainted by outside influences.
    The Crown provided a fair summary of the problems identified by the trial
    judge:

a. there was no recording, or any contemporaneous notes made by
    Graham about what Bent said to him on either occasion in July 2012;

b. Graham did not relay his recollection of the two
    conversations with Bent to the police until four months after the fact;

c. the declarations by Bent were part of a casual conversation,
    not under oath or caution and not to a person of authority;

d. Graham was materially inconsistent about Bents various
    declarations to him over the course of his many interviews and at the
    preliminary inquiry, with the attribution of words to Bent changing significantly
    from November 2012 to May 2015;

e. Grahams various recollections about what Bent told him
    about the Coombs murder were blended with community rumour, gossip,
    speculation, and personal opinions, making it impossible to determine the
    source of the information;

f. Grahams motivation was to help himself by giving this
    information to the [Toronto Police Service];

g. some of the purported declarations were in response to
    leading questions by the TPS; and

h. the source of the information known to Graham could have
    been his agent handlers or one of Bents many known contacts in the community
    privy to information via one of the other perpetrators.

[51]

The
    trial judge noted his worry:

[H]ow the jury would sort out the reliability of Grahams
    evidence is not clear to me, given the absence of contemporaneous notes by
    Graham or an audio-recording of the conversations. All of this goes to the
    critical importance of the absence of a cross-examination of Bent at trial --
    to the extent the record of the declaration is weak the substitutes for such a
    cross-examination must compensate for them.

(3)

The Principles
    Applied

[52]

I
    first consider the trial judges assessment of the April intercepted jail cell conversation
    between Bent and Graham and then his assessment of the July statements.
    Although the intercepted statements are not in issue in this appeal, they do
    set the context for the trial judges disquiet about the introduction of any of
    Bents statements to Graham into evidence before the jury.

(a)

The Admissibility of
    the April 2013 Intercepted Statements

[53]

As
    noted, in the jail cell intercept Bent said that the appellant was the principal
    shooter, contrary to his statement in July that he, Bent, was the principal shooter.
    The Crown wanted the intercepted statements to be admitted on the issues of
    identity and the appellants role in the murder. The defence resisted.

[54]

The
    trial judge set out the April intercepted statements over several pages and
    summarized their effect:

So, in this intercepted conversation, as transcribed, Graham
    lied to Bent to stimulate a conversation about the Coombs murder. Bent adopted
    as true the information that
McMorris
was the
    shooter, but added some information about his own motive to kill Coombs and
    described the third perpetrator as the one who shot at Edwards. The identity of
    that perpetrator, Killa, and the calibre of the handguns used in the murder
    were suggested by Graham and adopted by Bent. Bents declarations on April 3, 2011
    are inconsistent with the declarations of July 2012 attributed to him by Graham
    in the earlier interviews. [Emphasis in original.]

[55]

The
    trial judge also noted:

Bent did have a motive to fabricate, to minimize his own
    involvement in the murder, especially in the presence of another inmate and the
    undercover officer. A party to a murder who is not a principal offender but
    rather an aider or abettor of a principal offender may be less responsible in
    his own mind, although not legally. A person who is merely present may also
    regard himself as innocent; such a person is not culpable at law. Bents
    motivation at all material times, at the time of the shooting and during the
    conversations with Graham, is a live issue in this trial. This shows the need
    for a cross-examination of Bent at trial.

[56]

The
    trial judge assessed the intercepted statements in light of the legal
    principles, and concluded:

Thus, in the circumstances of this case, including the absence
    of an oath or affirmation, the poor quality of the audio-recording and
    video-recording of the conversation, the absence of important details about the
    roles of the perpetrators in the murder, the lack of spontaneity by Bent in
    making the declaration, the motivation of Bent to minimize his own role in the
    murder and the absence of independent, material evidence that implicates the
    defendant in the murder, I am not satisfied on a balance of probabilities that
    there are adequate substitutes for the absence of a contemporaneous
    cross-examination of Bent.

[57]

I
    see no basis for questioning the trial judges conclusion that the reliability
    of Bents intercepted statements could not be tested adequately unless Bent was
    cross-examined. Although the intercepted statements have the benefit of greater
    procedural reliability because there were video and audio recordings and an
    undisputed transcript of what was said, there were also serious circumstantial
    threats to substantive reliability, which the trial judge set out. The
    intercepted statements also cast doubt on the reliability of Bents statements
    to Graham in July, to which I now turn.

(b)

The Admissibility of Bents
    July Statements

[58]

As
    noted, the defence wanted Bents statements made to Graham in July admitted
    into evidence before the jury because they were evidence that Bent was the
    principal shooter, that he was the one wearing the hoodie who fled the scene
    and dropped the hoodie bearing the appellants DNA near the railway tracks, and
    that the appellant was present at the murder but only watched. The statement
    that the appellant only watched was repeated three times by Graham and repeated
    twice in the April police debrief of Graham on the content of the intercepted
    conversation.

[59]

Substantive
    reliability is in issue respecting the July declarations, not procedural reliability.
    Bent made the July declarations during a casual, unrecorded conversation
    between friends. There can be no procedural reliability in those circumstances.

[60]

The
    appellant argues that the trial judge erred in excluding Bents July declarations
    in four respects: first, there were circumstantial guarantees of reliability;
    second, there was corroborative evidence; third, the trial judge should have
    relaxed the evidentiary rules in favour of the defence and admitted the July
    statements; fourth, the trial judge made the
Humaid
error and applied
    the reliability test to the narrator Graham and not to the declarant, Bent. I
    deal with each in turn.

(i)

The Circumstantial Guarantees

[61]

The
    appellant argues that Bents admission to Graham was inherently trustworthy:

The only likely explanation for it was that it was true. It was
    a spontaneous admission by Bent against his interest, with no motive to
    fabricate, during a conversation between two long-term friends. The information
    about the discovery of the hoodie on the tracks was not public, and when Bent
    said it, neither he nor Graham had reason to believe that Bent was suspected in
    the homicide.

[62]

These
    factors do lean in favour of admission and must be factored in the mix.

(ii)

The
    Corroborative Evidence

[63]

The
    appellant asserts that there was a formidable array of corroborative evidence
    sufficient to meet the test of threshold reliability. He points to: the
    evidence of the eyewitnesses whose descriptions of the shooter corresponded
    with that of Bent, Bents association with S.T.G. [the black hoodie bore this
    logo], the presence of gunshot residue and DNA belonging to
three
individuals on the hoodie, and Bents
    guilty plea. The most significant item was that: Graham provided information
    that he got from Bent to the investigators that could only have been known by
    the gunman who shot Coombs and was seen to flee by several onlookers.

[64]

The
    trial judge disagreed, finding that the evidence confirmed a version of events
    that, innocently or otherwise, may not have originated with Bent. The basis
    for his concern, based on his review of the statements, was that: The evidence
    may be confirmatory not of Bents words but of rumor, gossip, speculation,
    guesses, assumptions or the substance of the leading questions by the [police].
    The trial judge was also troubled by Grahams inability to recall accurately
    his police-intercepted conversation with Bent a mere eight days later when he
    was debriefed by police officers. This led him to conclude that: the confirmatory
    evidence in this case is not an adequate substitute for a cross-examination of
    Bent at trial, by itself and in the context of a cross-examination of Graham at
    trial by a counsel opposed in interest.

[65]

The
    appellant argues that the trial judges focus on the frailties of Grahams
    evidence was speculative and that if
Bradshaw
had been available to
    him, the trial judge would have relied on the formidable corroborative
    evidence to admit Bents statements.

[66]

The
Bradshaw
methodology for the use of corroborative evidence in the
    substantive reliability analysis has four steps, as noted above.

[67]

At
    the first step, the question is to determine the material aspects of the
    declarations attributed to Bent. The trial judge expressed uncertainty about what
    statements could be clearly attributed to Bent and the Crown pressed the point
    on appeal. I do not read the Crown or the trial judge to be asserting that
    Bents statements are not statements simply because Graham was unable to
    recite the statements verbatim or consistently. That would set too high a
    standard. As Fish J. wrote in
Baldree
, a hearsay statement can be
    express or implied. In
Nurse
the statement was not verbal because the
    victims vocal cords had been cut; it was an accusatory gesture at the accused
    as the victim lay dying. See also
R. v. Perciballi
, (2001), 154 C.C.C.
    (3d) 481 (Ont. C.A.) affd 2002 SCC 51, [2002] 2 S.C.R. 761.

[68]

In
    my view the evidence of the July statements, as the trial judge acknowledged, is
    that Graham clearly attributed to Bent several material aspects: Bent told Graham
    he shot Coombs; he ran across the railway tracks; he dropped a jacket or hoodie
    near the tracks; and he was paranoid that discarding the hoodie would get him
    caught. The trial judge laid out the police interviews about the July
    declarations in considerable detail. At the time neither the appellant nor Bent
    were suspects. Bent and Graham were long-time friends. The first conversation
    took place about two months after the murder. The trial judge quoted Grahams
    investigative transcript:

Graham: We first talked about the murder.
He was really paranoid about getting caught
. [Emphasis
    added.]

[69]

He
    added another quotation from the first conversation:

Graham: I didnt ask him about anything. I dont try to inquire
    about it. He just pulled me off to the side and started talking to me about it,
    saying basically, ...fuck him, he deserved it...
Im
    happy I did what I did
.... There's a lot of controversy in regards to
    the murder. Some people say he was killed because he was talking about another
    killer, Menace, Shaquille Bell. [Emphasis added.]

[70]

Later,
    the trial judge quoted a passage of transcript in which Graham answered an officers
    question:

Dhillon: What were his exact words, if you can remember them?

Graham: I cannot remember the exact words, but he was saying...
    basically just trying to describe his feelings towards what he did, and why he
    did it... he wasnt very happy...
he was very upset and
    paranoid about it
, and being caught... trying to explain to me why he
    did it... at the same time he was happy about it, him finally dying. [Emphasis
    added.]

[71]

And
    elsewhere:

Dhillon: What else did he say?

Graham: That's pretty much it. At the time, I just wanted to
    get out of there.

Dhillon: You mentioned that he was angry but happy at the same
    time. How do you know this?

Graham: His face expressions... the way he was stalking... just
    the gestures... saying, over and over, ...fuck that nigger... fuck that
    nigger... he deserved it....

[72]

Bent
    and Graham had a second conversation, a few days after the first, about which
    Graham said:

Graham: We had another conversation. I asked him why he was so
    paranoid about it.
He told me he dropped the jacket when
    he was hopping a fence near the railroad tracks
. [Emphasis added.]

[73]

Graham
    added:

The second time he spoke to me... we met on one of the side
    streets... shared a joint and talked about it... I asked him Why are you so
    paranoid about it?
Thats when he brought up the jacket.
And, he was not sure if he (was) on camera or not. [Emphasis added.]

[74]

In
    short, although they may not have emerged clearly or consistently in Grahams
    telling, it is possible to identify the material aspects of Bents statements
    that the defence sought to tender for their truth.

[75]

At
    the second step of the
Bradshaw
analysis, the court is required to
    identify the specific hearsay dangers noted in
Baldree
that are
    triggered by the statement in the particular circumstances. In terms of the
    typical hearsay dangers, neither Bents possible misperception nor his possible
    misremembering are live. What is left for assessment is whether Bent knowingly
    made a false statement. This step was not considered by the trial judge.

[76]

At
    the third
Bradshaw
step, based on the circumstances and this specific
    danger, the court must consider alternative, even speculative, explanations for
    why the declarant made the statement, as explained earlier. The two
    possibilities are that Bent was not the shooter but was taking responsibility
    for the acts of someone else, or that he was taking the credit for the shooting.

[77]

In
    my view, the circumstances in which Bents statements were made undermine the
    plausibility of both speculative alternatives. There was no reason for Bent to
    be thinking about taking the fall for the appellant when neither was under
    police suspicion. The possibility that Bent was taking credit for Coombss
    killing is more plausible, but Bents statements and his evident worry about
    getting caught undermines this alternative.

[78]

At
    the fourth
Bradshaw
step, given the circumstances in which Bent made
    the statements to Graham, the trial judge was required to consider whether the
    corroborative evidence led at the
voir dire
and the preliminary
    inquiry ruled out the plausibility of alternative explanations, leaving Bents
    truthfulness as the only remaining likely explanation for the statement.

[79]

The
    trial judge noted the need to identify with specificity the issue to which the
    declaration is relevant when taking into account any confirmatory evidence. He stated:
    confirmatory evidence is independent evidence that implicates the defendant
    and added that [e]vidence that only confirms other ancillary parts of the
    declaration is not sufficient. He then laid out the package of confirmatory
    evidence and noted: On its face it is formidable and probative of the
    reliability of what is attributed to Bent.

[80]

Although
    the parties have not produced the entire application record on appeal, there
    was clearly corroborative evidence confirming elements of Bents account,
    including the fact that one of the shooters dropped a hoodie by the tracks. But,
    on closer inspection, it is equally clear that the corroborative evidence did not
    actually mitigate the danger that Bent was lying or misrepresenting the facts
    to Graham when he said that
he was the one
who dropped
    the hoodie.

[81]

The
    fact that someone dropped the hoodie was corroborated by the hoodie itself, and
    by the testimony of Robert Cull and Karoly Pozsgai, who both saw an individual drop
    a hoodie. However, the evidence corroborating Bents identity as the person who
    dropped the hoodie was less definite. On the one hand, both Pozsgai and his
    wife, Gyongyi Sulyok, said that the man in the black hoodie wore his hair in braided
    corn rows, like the appellant. And the appellants DNA was on the hoodie. On
    the other hand, only Cull described the person with the hoodie as having short
    hair like Bent. The corroborative evidence on the issue of the identity of
    the person who dropped the hoodie was equivocal and conflicted with Bents
    account in certain ways. Put simply, the
Bradshaw
approach yields the
    same conclusion as the trial judges approach: the corroborative evidence
    confirms only the ancillary elements of Bents statements, not the central
    element of identity.

(iii)

Refusing to Relax the Rules of Evidence

[82]

The
    appellant argues that the trial judge erred in refusing to relax the
    evidentiary rules for the defence. This led to serious prejudice and the
    prospect of a miscarriage of justice because: The admission by Bent that he
    was the man in the hoodie, if believed by the jury, nullified a key feature of
    the Crowns case, that the hoodie which bore the Appellants DNA had been worn
    by [the appellant] during the shooting. The appellant does not identify the
    prejudice, but I infer that it rests on the premise that the Crown believed
    Bents July statements that he was the primary shooter but chose to
    cross-examine the appellant on the basis that he, not Bent, was the primary shooter.
    The appellant asserts that the prejudice was aggravated by this Crown cross-examination
    of the appellant:

Q. But that hoodie that you gave away to [Jatherson] -

A. Yeah.

Q .... ends up on the train tracks immediately after this
    murder.

A. Are you implying that I, I - are you trying to imply right
    now that I killed Delano Coombs and jumped the fence and put the hoodie there?
    Is that what youre implying right now?

Q. I think thats fairly obvious, isnt it?

A. You and I both know I wasnt wearing the hoodie. You know
    that.

Q. I dont know that.

A. You know Jerome was wearing the hoodie.

Q. All the evidence suggests that you
    were wearing it, Sir.

A. No, you know Jerome was wearing the hoodie. You know that
    for a fact. We know this.

Q. I dont know that.

A. Come on.

Q. All the evidence points to you wearing
    that hoodie, Sir.

A. Is that what you believe?

Q. I do.

A. Well if thats  youre wrong, youre completely wrong. Thats
    not true. Completely wrong. [Emphasis added by the appellant.]

[83]

Against
    this cross-examination, the appellant argues that: The Crown, knowing what Graham
    would have said if the defence had been allowed to call his evidence about the
    hoodie, should never have asserted that all the evidence points to you wearing
    that hoodie.  The appellant asserts that: The Crown knew this was untrue.

[84]

In
    my view, the evidence did not unequivocally point to either Bent or the
    appellant as the primary shooter. The Crowns suggestion that all the
    evidence pointed to the appellant wearing the hoodie was imprecise, but it was
    not improper. Two witnesses described the person wearing the hoodie as having
    the appellants hairstyle. The hoodie bore his DNA. It was open to the Crown to
    put this evidence to the appellant for a rebuttal, and he rebutted it in strong
    terms. Whether the jury believed him on this specific point is unknowable and
    ultimately not dispositive. The jury could have found liability either on the
    basis that the appellant was the primary shooter wearing the hoodie or that he
    was a party to the murder.

[85]

In
    any event, appellate deference is owed to the trial judges discretionary
    decision not to relax the rules of evidence in favour of the defence. The
    appellant did not renew his application to admit Bents statements after the
    cross-examination reproduced above. I see no error in law or principle and no
    reason to disturb the trial judges ruling on appeal.

(iv)

Did the Trial Judge Make the
Humaid
Error?

[86]

The
    appellant argued for the first time in oral submissions that the trial judge
    had committed the error in
Humaid
and
Blackman
by excluding
    Bents statements on the basis of the narrator Grahams credibility and
    reliability rather than the declarant Bents. The defence did not raise this
    issue at trial or in its written submissions on appeal. The Crown requested and
    received an opportunity to make further submissions on the
Humaid
issue.

[87]

The
    Crown argues that the burden is on the appellant to obtain leave to raise the
Humaid
issue and cites the statement by Watt J.A.: As a general rule, appellate
    courts will not entertain grounds that were not raised at trial:
R. v.
    Reid
, 2016 ONCA 524, leave to appeal refused [2016] S.C.C.A. No. 432, at
    para. 28. The appellant responds that it is the role of this court to correct
    errors of law regardless of who bore the responsibility for raising the issue
    in first instance. In this case the appellant is correct. The
Humaid
error, if it is present here, is an error of law that can be identified in the
    trial judges reasons without concern for the adequacy of the factual record
    before the appellate court. As a novel issue, it does not engage the concerns
    in
Reid
.

[88]

The
    Crown acknowledges that the trial judge considered factors relevant to Grahams
    credibility and reliability, contrary to the general prohibition in
Humaid
and
Blackman
. However, the Crown points to the caveat in
Humaid
and invokes the trial judges residual discretion to exclude evidence when the
    narrators credibility and reliability is so deficient that it robs the
    out-of-court statement of any potential probative value:
Humaid
, at
    para. 57. The Crown argues that the trial judges reasons strongly suggest that
    he would have used his residual discretion to exclude Bents statements if he
    had been provided with the relevant jurisprudence at the time.

[89]

Next,
    the Crown argues that the rule in
Humaid
is premised on the notion
    that the narrators credibility will be challenged at trial. However, neither
    the Crown nor the defence would have had an incentive to properly attack
    Grahams credibility or reliability because both sides needed something from
    him.

[90]

Finally,
    if the trial judge did commit a
Humaid
error, the Crown asks this
    court to apply the curative proviso under s. 686(1)(b)(iii) of the
Criminal
    Code
and find that the trial judges decision did not occasion a
    miscarriage of justice.

[91]

In
    reply, the appellant points to a number of passages in the trial judges
    reasons indicative of a
Humaid
error. The appellant also notes that
    Doherty J.A. limited the application of the
Humaid
caveat to
    relatively rare cases. In this case, the appellant argues that Grahams
    evidence as to Bent leaving the hoodie on the train tracks was clear and
    precise each time he told the police about it. Any concerns about Grahams
    credibility and reliability could have been fully tested by cross-examination
    before the jury. The appellant argues that the exclusion of the evidence
    occasioned a miscarriage of justice because it virtually ensured that the jury
    would find, based on the DNA evidence, that the appellant was the principal
    shooter who dropped the black hoodie near the tracks.

[92]

In
    my view, far from making the
Humaid
error, the trial judge properly
    applied the
Humaid
caveat. He stated: This is not a case where the
    evidence of the declarations is strong and the sufficiency of the substitutes
    for the absence of contemporaneous cross-examination is weak. To the contrary,
    in his view the apt observation was that of Doherty J.A. in
Kimberley
,
    at para. 82: The admission of evidence of such inherently unreliable
    statements would hardly prevent a miscarriage of justice. Indeed, it could
    occasion a miscarriage of justice.

[93]

The
    trial judge explained that: What Graham said about the declarations at any
    point in time is open to serious questions about its reliability, and the
    reliability of what he said earlier or later about the same declarations. As I
    see it, the trial judges statement echoes the caveat Doherty J.A. made in
Humaid
,
    at para. 57, which I repeat here for convenience:

There may be cases where the credibility or reliability of the
    narrator of the out-of-court statement is so deficient that it robs the
    out-of-court statement of any potential probative value. In such cases, and I
    think they would be relatively rare, a trial judge could conclude that the
    narrators evidence was so incredible or unreliable as to necessitate the
    exclusion of the evidence based on the exercise of his or her residual
    discretion.

As noted, this caveat was approved by Charron J. in
Blackman
,
    at para. 51.

[94]

Finally,
    the appellant asserts that the trial judge was obliged to revisit his ruling on
    this evidence after the plea ruling. I do not agree. As I explain below, the
    trial judges decision to admit the guilty plea essentially accomplished what
    both parties sought to do in these applications, but in a way that preserved
    trial fairness and did not require cherry-picking from the same tree. In
    any event, the defence did not request it at trial.

[95]

I
    would reject this ground of appeal. The trial judge did not err in rejecting
    the defence application to admit into evidence before the jury Bents
    out-of-court statements in July to Graham, which implicated Bent as the
    principal shooter wearing the hoodie.

B.

Issue Two:
    Did the trIAl judge err in admitting Bents guilty plea, together with the
    transcript of his plea, and the agreed statement of facts accompanying his plea
    as edited by him?

[96]

Bents
    plea bargain forms the context for this issue. Bent pleaded guilty to the
    first-degree murder of Coombs. He also faced a first-degree murder charge for
    the killing of Daniel Davis and charges of attempted murder and conspiracy to
    commit murder relating to Tyrone Matthews. After Bents plea to the
    first-degree murder of Coombs, the Crown accepted his plea to the lesser
    offence of second-degree murder of Davis and withdrew the Matthews charges. The
    Crowns resolution position was that Bents periods of parole ineligibility
    would run concurrently.

[97]

The
    trial judge granted the Crowns application to put before the jury Bents plea
    of guilty to the charge of first-degree murder for Coombss killing. He also permitted
    the Crown to tender the transcript of Bents guilty plea before McMahon J.,
    edited by the trial judge. The trial judge added the requirement that the jury
    be provided with an excerpt from the agreed statement of facts supporting the
    plea that he also edited, which established that Bent did not act alone.

[98]

The
    appellant makes four arguments about the plea ruling: first, the cases require
    circumstantial guarantees of reliability but these were not present in this
    case because of the perverse incentive the plea bargain gave to Bent; second, the
    prejudicial effect of Bents guilty plea and the agreed statement of facts
    exceeded their probative value; third, the trial judges edits to the plea
    transcript and the agreed statement of facts made matters worse and left the
    appellant too exposed to a finding that he was the primary assailant in the
    Coombs murder; and fourth, the jury instruction aggravated the prejudice to
    the appellant.

(1)

The Governing
    Principles

[99]

The
    Crown acknowledges that it is rare for a guilty plea to be admitted in evidence
    at the trial of a co-accused. Although it is true that the Crown is generally
    not entitled to lead an accomplices guilty plea, it does not follow that the Crown
    may never be entitled to do so:
R. v. Caesar
, 2016 ONCA 599, 333
    C.C.C. (3d) 354,
per
Blair J.A., at para. 54.

[100]

The basis for the general
    exclusion is that the guilty plea of another person is irrelevant in the trial
    of the accused and that it is hearsay and presumptively inadmissible. The same
    logic applies to an agreed statement of facts supporting a guilty plea. I will
    not repeat the governing principles concerning the principled exception to the
    hearsay rule, which apply equally to the guilty plea, the plea transcript and
    to the agreed statement of facts.

[101]

The Crown relies on
Youvarajah
,
    in which the Supreme Court found admissible an agreed statement of facts
    against a co-accused. This court has generally adopted a flexible case-by-case
    examination, as prescribed in
Youvarajah
at para. 21, and has
    approved the admission of guilty pleas or agreed statements of facts or both in
    trials in several cases:
R. v. Duong
(1998), 124 C.C.C. (3d) 392, [1989]
    O.J. No. 1681, at para. 46 (a guilty plea);
R. v. Tran
, 2010 ONCA 471
    (a guilty plea),
R. v. Kanagalingam
, 2014 ONCA 727 (three guilty pleas
    and agreed statements of fact),
R. v. P.C.
, 2015 ONCA 30 (two guilty
    pleas despite errors in their use)
, Berry
(a guilty plea), and
R.
    v. Tsekouras
, 2017 ONCA 290 (a guilty plea and agreed statement of facts
    for the purposes of a
voir dire
). The court has declined to do so in
    several other cases:
R. v. Alexander
, 2015 ONCA 167 (a guilty plea and
    agreed statement of facts),
Caesar
(a transcript of the guilty plea
    proceedings), and
Vickers
(a draft affidavit containing an admission).
    There is no hard and fast rule. The analysis is case-specific.

(2)

The Trial Judges
    Approach

[102]

As noted, Bents plea bargain
    forms the context for this issue. The appellant submits that Bents plea to the
    first-degree murder of Coombs potentially saved him an additional 25 years of
    parole ineligibility for the first (or second) degree murder of Davis. I return
    to this submission below.

[103]

The trial judge
    admitted Bents guilty plea to the Coombs murder into evidence before the jury,
    along with an edited audio-recording or transcript of his plea proceedings, and
    an edited excerpt from the agreed statement of facts that accompanied Bents
    plea.

[104]

The trial judge edited
    the audio-recording and the transcript of Bents guilty plea to the Coombs
    murder by removing the elements of the plea bargain related to the killings of
    Davis and Matthews. The trial judge also required the Crown to put forward an excerpt
    from the agreed statement of facts that he edited in order to complete the factual
    context. The excerpt read as follows:

On May 10th, 2012 at approximately 3:00 p.m., Delano Coombs was
    driving a grey Toyota Camry in a housing complex located at 4020 Dundas Street
    West in Toronto. He was accompanied by Joel Edwards. Jerome Bent was armed with
    a firearm, a Glock 17 handgun. He waited near a stairwell. Bent along with at
    least one other male, began to shoot at the windshield of the car. Mr. Coombs
    abandoned the car and attempted to escape, but one of the suspects walked
    around the car, stood over Mr. Coombs and shot at him several more times
    at close range. Mr. Edwards managed to escape from the vehicle unharmed.

A firearms expert determined that nine out of ten
    shell casings recovered from the scene were fired from the same nine-millimetre
    Glock pistol.

(3)

The Principles
    Applied to the Plea Ruling

[105]

The trial judges
    reasons were thorough. He accepted that the guilty plea, the plea transcript,
    and the agreed statement of facts were hearsay statements and therefore were
    presumptively inadmissible. He considered the principled exception to the
    exclusion of hearsay evidence and applied the pre-
Bradshaw
approach. The
    trial judge noted that the principled exception applies where necessity and
    threshold reliability, which are the conditions precedent to admissibility, are
    proven on a balance of probabilities. He stated that this can be done by
    showing there is no real concern about the truth of the statement because there
    are adequate substitutes for the absence of contemporaneous cross-examination.

[106]

The trial judge listed
    what he considered to be the relevant factors, which the appellant has fairly
    summarized in his factum:

The threshold reliability flowed from two factors: (1) the
    immediate circumstances of the plea - citing
Youvarajah,
the trial
    judge concluded that since Bent only implicated himself in the homicide and did
    not shift responsibility to another person, the solemnity of the proceedings
    was sufficient to ensure threshold reliability. This solemnity included that
    the agreed statement had been drafted by counsel, a plea inquiry was conducted,
    and there was no suggestion that Bents counsel, a well-regarded lawyer, had
    been ineffective; and (2) the trial judge found that there were adequate
    substitutes for cross-examination of Bent. These substitutes were the
    supportive testimony of eyewitnesses and the forensic evidence.

[107]

The appellant argues,
    first, that Bents plea of guilty to the first-degree murder of Coombs was not
    a true plea because the plea bargain rendered the plea untrustworthy; second,
    the trial judge ought to have admitted all of the evidence regarding the plea
    bargain to equip the jury to assess its trustworthiness, and third, the
    prejudicial value of the guilty plea exceeded its probative value. If this last
    argument were accepted, then the evidence about Bents guilty plea would not have
    been admissible because he refused to testify.

[108]

I address the appellants
    three arguments about the plea ruling.

(a)

Did Bents plea bargain
    render his guilty plea untrustworthy?

[109]

The appellant argues
    that it was a mistake and contrary to common sense, for the trial judge to consider
    Bents first-degree murder plea to be a true plea despite circumstantial
    guarantees of reliability because of three obvious inducements to a false plea:
    concurrent rather than consecutive periods of parole ineligibility for two
    separate homicides, and a plea to the lesser offence of second degree murder
    on the alleged first-degree murder of Davis, and the withdrawal of the
    Matthews charges. These inducements undermined the trustworthiness of the plea
    because they would undoubtedly impact on how many years after the 25-year
    minimum [Bent] would have to serve before obtaining parole. Consequently, nothing
    less than full cross-examination of Bent on his guilty plea would suffice,
    asserts the appellant, because avoidance of a second consecutive 25 years of
    parole ineligibility, making for a total of 50 years of parole ineligibility,
    was as strong an incentive as can be imagined.

[110]

The trial judge was
    alive to these arguments. He stated:

Bent was motivated to plead guilty to second degree murder in
    connection with the shooting of Davis, and to obtain the joint submission of
    counsel that the two periods of parole ineligibility, for first-degree murder
    and second degree murder, be concurrent.
However, in my
    view, that motivation would not lead him to falsely admit to the first-degree
    murder of Coombs. Obtaining the concession by the Crown on the Davis murder and
    the withdrawal of the charge of attempted murder would not be at the price of a
    wrongful conviction for first-degree murder on the Coombs murder. It is the
    threshold reliability of the plea to the charge of first-degree murder that is
    the core of this application
. The motivation of Bent, as summarized,
    does not require a cross-examination of Bent at trialon the issue of the
    ultimate reliability of the plea to first-degree murder. There are adequate
    substitutes for it, as summarized earlier. [Emphasis added.]

[111]

As can be seen, the
    trial judge specifically rejected the appellants argument that the avoidance
    of two consecutive terms of parole ineligibility for two separate murders was a
    sufficient motive for Bent to falsely plead guilty to the first-degree murder
    of Coombs. During argument the following colloquy occurred:

THE COURT: In the abstract, it matters as you indicate, but hes
    there for 25 years. Hes got a second conviction for murder; whether its
    second degree murder; whether its only second degree murder or something else
    isnt going to matter much. If the Parole Board knows this mans [Bents] makeup,
    unless he makes a huge change between now and 25 years from now, hes going
    nowhere.

MR. ROSS: Im not suggesting otherwise.

THE COURT: So, he didnt get much of a deal here.

MR. ROSS: Well, that -- that might be the  in reality that's
    very unlikely that in 25 years hes going to get parole...

THE COURT: Yes.

[112]

The trial judges
    conclusion that Bents first-degree guilty plea in the Coombs murder was a true
    plea for the purpose of threshold reliability is not unreasonable. But finding
    the plea not to have been a true plea would not have been of assistance to the
    appellant, because there is no escape from the fact that Bent participated in
    the murder, either as the primary shooter or as a party to the shooting by
    another, the appellant or the third unidentified assailant.

(b)

Did the trial judges
    refusal to admit the full plea bargain fail to equip the jury with all the
    tools they needed to assess the trustworthiness of the guilty plea?

[113]

In
Bradshaw
,
    Karakatsanis J. noted that the trial judges concern is to ensure that the
    trier of fact has the tools for testing hearsay in order to be sufficiently equipped
    to evaluate the ultimate reliability of the statement: at paras. 101 and 110.
    The trial judge is uniquely positioned to make this determination: at para. 101.

[114]

The appellant argues
    that by limiting the evidence about the plea bargain the trial judge deprived
    the jury of the necessary tools to test the truth of the plea. Because Bent
    could not be cross-examined, the jury had no realistic basis on which to
    question Bents plea, the accompanying proceedings, and the agreed statement.
    In the absence of any mention of the Davis or Matthews charges and
    dispositions, the jury was deprived of the opportunity to assess their impact
    on Bent's reasons for pleading guilty to Coombss first-degree murder.
    Accordingly, the jury was virtually bound to accept that the plea and the
    agreed statement were true.

[115]

Trial defence counsel
    raised these concerns in argument before the trial judge, stressing the importance
    of either cross-examining Bent or speaking with Bents defence counsel in order
    to obtain more information about Bents plea bargain. Defence counsel suspected
    that Bent might have been forced to admit to certain facts in order to get the
    deal, and expressed concern that he would be unable to properly challenge the
    guilty plea without additional context. Unfortunately, trial was set to begin
    the next day, leading to the following exchange:

THE COURT: All right. So you say I should rule on what the
    Crowns done and get rid of the Agreed Statement of Fact completely? Otherwise

MR. ROSS: Yes, otherwise I want an opportunity to interview
    [Bent and his counsel].

THE COURT: Well, we cant keep repairing this case forever,
    this is our time slot for trial I think.

[116]

The parties briefly
    considered the logistical challenges involved in summoning Bent, Bents
    counsel, or the Crown attorney assigned to Bents case until, finally, the
    trial judge put this question to the defence:

THE COURT: Well, let me ask you this, if the Crowns legal
    analysis is preferred, contrary to what you and Ms. Carrington are
    advocating, is there any part of the Agreed Statement of Fact that you would
    want to help in the conduct of the defence?

[117]

Defence counsel chose
    the passage from the agreed statement of facts, reproduced above, that the
    trial judge ultimately admitted in his ruling. The trial judge then gave the
    defence a short opportunity to find and speak with Bent or his counsel,
    indicating that if Bent provided any information of significance, it could be
    taken into account. Unfortunately, it appears that Bent could not be found.

[118]

The next day, the
    trial judge issued his ruling admitting the guilty plea, but he did not
    foreclose on the possibility of hearing from Bent on the details of his plea
    bargain. The trial judge even suggested that he would be willing to revisit the
    ruling if additional information came to light. None did.

[119]

This process was
    hurried but it did not arrive at the wrong result. The trial judge was clearly
    concerned with properly presenting the guilty plea to the jury. He included the
    excerpt from the agreed statement of facts in order to stop the jury from
    drawing impermissible inferences that might flow from the guilty plea without
    additional context, noting: The inclusion of some parts of the ASF, and the
    editing of some other parts of the ASF,
is necessary to
    ensure the fairness of the trial
, including the legitimate interest of
    the public in the truth-seeking capacity of the trial
and
    the right of the defendant to make full answer and defence
by
    effectively challenging the reliability of the evidence tendered by the Crown
    (emphasis added).

[120]

Even if the omission
    of Bents plea bargain limited the information available to the jury as a means
    by which it could assess the truth of the guilty plea, it is not obvious that
    the jury would have come to a different conclusion. There is no indication that
    the strategic options available to Bent at the time of his plea could have had
    any impact on his guilty plea. He pleaded guilty to first degree murder as
    arraigned. He did not inculpate the appellant in return for a reduced sentence.
    He might have had an incentive to plead guilty, but he did not have an
    incentive to plead guilty falsely. Barring an attempt on Bents part to take
    the fall for the appellant, there is no reason to believe that Bent pleaded
    guilty to inaccurate facts when there were plenty of accurate facts to which he
    could plead guilty. The trial judge did not believe that this missing context
    would interfere with the jurys evaluation of Bents guilty plea. I agree.

(c)

Did the prejudicial
    effect of Bents guilty plea and the agreed statement of facts exceed their
    probative value?

[121]

The appellants third
    argument is that the prejudicial effect of Bents guilty plea and the agreed
    statement of facts exceeded their probative value so that they ought to have
    been excluded from the appellants trial.

[122]

A trial judges power
    to exclude evidence because of its prejudicial effect is fact-specific and
    discretionary.

[123]

The appellant argues
    that the trial judge should have excluded the guilty plea due to its minimal
    probative value as contrasted with the severe prejudice caused to the defence
    by its admission. In my view, it is wrong to say that the guilty plea has
    minimal probative value. It provided concrete evidence on a live issue at
    trial and was clearly probative:
R. v. Hart
, 2014 SCC 52, [2014]
    S.C.R. 544, at para. 109. The real question is whether it was severely
    prejudicial, as the appellant suggests it was. In my view, it was not.

[124]

Evidence is not
    prejudicial simply because it bolsters the Crowns case and increases the risk
    of conviction. Evidence is prejudicial only if its reception would threaten the
    fairness of the trial, for example, where it cannot be adequately tested and
    challenged through the adversarial process, or where there is a real risk that
    the jury will misuse the evidence or be unable to properly assess the evidence
    regardless of the trial judges instructions:
R. v. Frimpong
, 2013
    ONCA 243, 305 O.A.C. 243, at para. 18.

[125]

Many of the appellants
    arguments boil down to laments about the strength of the Crowns case. However,
    the appellant does identify two potential sources of prejudice. First, the
    appellant argues that by editing the agreed statement of facts to exclude
    information about Bents plea deal, the judge deprived the jury of an important
    means to assess its reliability and significance. For the reasons set out
    above, I do not accept this submission. The jury had sufficient information to
    assess the plea.

[126]

Second, the appellant
    submits that the admission of Bents guilty plea to first degree murder would
    have led the jury to conclude that the appellants guilt was the same as Bents.
    The appellants complaint is that, on its own, the guilty plea could have led
    the jury to engage in impermissible reasoning about the appellants involvement
    in planning and deliberation.

[127]

In my view, any such
    risk was mitigated by the trial judges clear jury instruction. He reminded the
    jury more than once that Bents guilty plea was proof only of Bents
    involvement and had no bearing on the appellants guilt. If the jury came to
    believe that the appellants liability was the same as Bents  which it
    plainly did, given the verdict  it was possible to reach that conclusion on
    the basis of the evidence of planning and deliberation between Bent and the
    appellant, including their phone records, their in-person meeting some 30
    minutes before the shooting, and the fact that the assailants were lying in
    wait for the victim.

(d)

Did the edited plea
    transcript and the edited agreed statement of facts prejudice the appellant?

[128]

I turn to the
    appellants fourth argument: the trial judge erred in the plea ruling because
    his edits of the plea transcript and the agreed statement of facts made matters
    worse for the appellant.

[129]

The trial judge was
    concerned about trial fairness for the appellant in the face of Bents guilty
    plea. During the argument he laid out his concern for trial fairness:

Bent was involved in this case. The jury has to know that
    somehow in a way thats consistent with the fair trial interests of everybody.
    We cant put blinders on the administration of criminal justice in this
    courtroom. Somehow weve got to  they should know, consistent with your
    clients fair trial interest, that Bent was involved in this case and he was
    one of the shooters. Theres virtually no doubt about that, at all, on the
    entire history of this.

[130]

The trial judge
    reflected this concern for trial fairness in his ruling:

[Bents guilty] plea itself, that is, without any reference to
    the ASF [agreed statement of facts], is vague and otherwise imprecise, given
    the scope of the definition of parties under s. 21 of the
Code
. As
    there is no eyewitness testimony identifying the perpetrators of the alleged
    offence, the plea, by itself and in the context of the evidence as a whole,
    could be evidence of the commission of first-degree murder by Bent as a
    principal offender or as an aider or abettor of a principal offender who was
    not at the scene of the crime. The plea may lead to speculation by the jury.
    That is the antithesis of the judicial function. It would tend to undermine the
    public interest in the reliability of the fact-finding processes of the trial
    and the right of the defence to challenge the Crowns case.

[131]

The trial judges
    worry was that the jury might identify the appellant as the principal offender instead
    of Bent. This comes out more clearly in the trial judges discussion of what
    parts of the agreed statement of facts he would admit, at para. 23:

[S]ome of the ASF meets the requirement of threshold
    reliability and some of the ASF does not. The former parts add to the
    reliability of the fact-finding processes of the trial -- Bent was present
    during the shooting and Bent was a shooter. The latter parts detract from not
    only that reliability but also the fairness of the defendants trial -- three
    males waited for Coombs at the stairwell and emerged when the car driven by the
    deceased approached them.

[132]

The agreed statement
    of facts, as edited by the trial judge, provided basic details about the
    commission of the offence, which I repeat here for convenience:

On May 10th, 2012 at approximately 3:00 p.m., Delano Coombs was
    driving a grey Toyota Camry in a housing complex located at 4020 Dundas Street
    West in Toronto. He was accompanied by Joel Edwards. Jerome Bent was armed with
    a firearm, a Glock 17 handgun. He waited near a stairwell. Bent along with at
    least one other male, began to shoot at the windshield of the car. Mr. Coombs
    abandoned the car and attempted to escape, but one of the suspects walked
    around the car, stood over Mr. Coombs and shot at him several more times
    at close range. Mr. Edwards managed to escape from the vehicle unharmed.

[133]

The trial judge took
    the position that facts about the Coombs murder should come through witnesses
    where possible. He edited out of the original agreed statement of facts that three
    assailants carried out the Coombs murder. He also edited out anything related
    to the other charges to which Bent had pleaded and any information Bent had
    provided to the proposed Crown witness, Jermaine Graham. The trial judge tried
    to pare down the hearsay statements and lessen their influence on the jury as
    much as he could while maintaining admissibility.

[134]

The trial judge
    concluded his ruling with a statement that expressed his intention: This
    package of evidence, the edited audio-recording of the plea of guilty to first-degree
    murder on July 15, 2015 and the related edited transcript of the ASF, will
    serve the legitimate interest of the public in the truth-seeking capacity of
    this trial and the right of the defendant to make full answer and defence.

[135]

In the trial judges
    view, threshold reliability was established through the immediate circumstances
    of the plea and the adequate substitutes for cross-examination. The eyewitness
    evidence was a substitute for cross-examination on the details of the shooting.
    Moreover, Bents plea did not implicate the defendant or anyone else. The
    statement was prepared by counsel and reviewed by Bent who agreed to it in open
    court. Both defence counsel and McMahon J. conducted plea inquiries before it
    was agreed to. On this basis, the trial judge ruled that it met the test for
    threshold reliability and granted the Crowns application.

[136]

I do not accept the
    argument that the trial judges edits prejudiced the appellant. The trial
    judges edits assisted the appellant by making Bent appear to be the primary
    assailant. This was, as he put it, in the fair trial interests of everybody.

(i)

Did the jury instruction aggravate the prejudice?

[137]

The appellant argues
    that the jury instruction aggravated the prejudice of admitting the edited
    versions of the plea transcript and the agreed statement of facts. The
    appellant takes particular issue with this part of the jury instruction:

Thus, through such an analysis of the other evidence at trial,
    you may be satisfied that all of the facts admitted by Bent during the plea
    have been proven reliable by independent evidence, tending to prove those facts
    to be correct. You may conclude that, to the extent that Bent is likely
    reliable on those facts, he is likely reliable in admitting his planned,
    deliberate and intentional shooting of Coombs on May 10, 2012, especially in
    the context of the testimony of Amanda Rumbolt. She drove Bent to Old Dundas
    Street at his request to meet some friends. She parked her car. Another car
    came. The defendant [the appellant McMorris] and another man got out of the
    passenger side doors of the other car, and spoke with Bent. The three of them
    got into the other car. It was driven east on old Dundas Street towards Dundas
    Street West, which it intersects near the complex, the scene of the crime.

[138]

This instruction left
    to the jury the decision as to the ultimate reliability of Bents plea. The
    appellants argument is that this was insufficient. Because Bent could not be
    cross-examined, the jury had no realistic basis on which to question Bents
    plea, the accompanying proceedings, and the agreed statement. In the absence
    of any mention of the Davis or Matthews charges and dispositions, the jury was
    deprived of the opportunity to assess their impact on Bents reasons for
    pleading guilty to Coombss first-degree murder. Accordingly, the jury was
    virtually bound to accept that the plea and the agreed statement were true. The
    appellant also argues that the judges detailed review of the evidence at
    trial, especially the reference to Amanda Rumbolts evidence, bound [the jury]
    to accept that Bents plea was true. In his legal argument the appellant
    picks out the
Youvarajah
and
Caesar
decisions as being
    especially pertinent.

[139]

I would reject these
    arguments for three reasons.

[140]

First, I do not accept
    the appellants assertion that the jury instruction aggravated the prejudice
    of admitting Bents plea. The trial judges instruction was well balanced. He
    instructed the jury on the permissible and impermissible uses of Bents plea
    and the admitted facts. He told the jury more than once that Bents admission
    that he planned and deliberated the murder was evidence only of Bents conduct,
    not evidence of the appellants conduct and state of mind. The trial judge instructed:

That admission of planning and deliberation on Bents part is not
    evidence that the defendant or any other perpetrator planned and deliberated
    about the killing. The state of mind of any other perpetrator is to be
    determined by you in accordance with this charge, keeping in mind the burden on
    the Crown to prove the elements of an offence allegedly committed by the
    defendant beyond a reasonable doubt.

***

What was alleged by the Crown during the plea by Bent dealt
    exclusively with Bents involvement in the first-degree murder of Coombs.

***

If you are satisfied that Bents plea and admission is reliable
    and truthful, you may use the plea and the admissions as proof of their
    substance  Bent planned and deliberated about killing Coombs and intentionally
    shot him, in the circumstances he admitted. There was no admission of when the
    planning and deliberation occurred in relation to the arrival at the complex,
    or the identity of any other person involved in such planning, deliberation and
    intentional killing. On the other hand, if you are not satisfied of such
    reliability and such truth, disregard the plea and the admissions in the rest
    of your deliberations.

The trial judge repeated this point in his summary of
    the defence position.

[141]

Second, the trial
    judge instructed the jury on how to assess the reliability of Bents guilty
    plea and agreed statement of facts. He noted that Bent did not testify at trial
    about his plea, that his plea was not made under oath or affirmation, that the
    plea was not video recorded, and that Bent was not cross-examined on its
    reliability. The trial judge also instructed the jury to take into account the
    immediate circumstances surrounding the plea and all of the evidence at trial in
    the reliability assessment. The trial judges instruction ended with another
    caution about accepting Bents hearsay evidence via the plea, noting that they
    were to scrutinize his evidence more carefully than that of witnesses who
    testified at trial.

[142]

Finally, the trial
    judge told the jury they must pay attention to the limits he had set out for
    them in their permissible use of the evidence:

It is of fundamental importance to the fairness of the trial of
    the defendant that you not use any such evidence for an improper purpose.
    Appreciate the distinctions I have drawn and make sure you do not use evidence
    for a prohibited purpose in your deliberations. Use evidence only in accordance
    with its limited admissibility as I have described it to you in this or other
    segments of the charge.

[143]

In summary, the trial
    judge correctly instructed the jury on the permissible and impermissible uses
    of Bents guilty plea. He alerted them to its risks and properly framed their
    task of determining its ultimate reliability. To the extent that the guilty
    plea and the agreed statement of facts prejudiced the appellant  which, as I
    have described, was minimal  the trial judges jury charge mitigated that
    prejudice.

[144]

To conclude, the trial
    judge did not err in admitting into evidence before the jury Bents guilty
    plea, together with the transcript of his plea and the agreed statement of
    facts accompanying his plea, as edited by the trial judge.

C.

Issue
    three: Did the trial judge wrongly instruct the jury that they could consider
    the appellants post-offence conduct as evidence of planning and deliberation?

[145]

There are two pieces
    of evidence of post-offence conduct in issue. The first is that the appellant
    and Bent were in frequent contact by cellphone just before the Coombs murder
    but only once after it. The second was that the appellant fled the complex just
    after the murder was committed.

[146]

The appellant argues
    that: The evidence of the cessation in telecommunications between the
    Appellant and Bent after the homicide should not have been left with the jury
    as an item of post-offence conduct from which they could infer the Appellant
    was a party to the murder. In the alternative, the appellant argues that: the
    trial judge erred by instructing the jury that the post-offence conduct was
    probative of planning and deliberation.

[147]

I will address these
    arguments after setting out the governing principles.

(1)

The Governing
    Principles on Post-Offence Conduct

[148]

The relationship between post-offence conduct and a fact in issue
    in the trial is generally for the jury to decide, provided that they have been
    properly instructed in its use.
The conceptual
    framework was explained by Major J. in
R. v. White

[1998] 2 S.C.R. 72, at paras. 21-27. Post-offence
    conduct is circumstantial evidence: In some cases it may be highly
    incriminating, while in others it might play only a minor corroborative role.
    He noted that: Like any piece of circumstantial evidence, an act of flight or
    concealment may be subject to competing interpretations and must be weighed by
    the jury, in light of all the evidence, to determine whether it is consistent
    with guilt and inconsistent with any other rational conclusion. The jurys
    task is 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. The weight of the evidence in the final
    determination of guilt or innocence is also for the jury.

[149]

On this appeal, both
    parties invoke the reasoning of Martin J. in
R. v.

Calnen
,
2019 SCC 6, [2019] 1 S.C.R. 301, at para. 112. In the
    process of drawing inferences from the facts, the trier of fact 
relies
    on logic, common sense, and experience, including evidence of post-offence
    conduct. The inferences must be reasonable according to the measuring stick of
    human experience and will depend on the nature of the conduct, what is sought
    to be inferred from the conduct, the parties positions, and the totality of
    the evidence:
R. v. Smith
, 2016 ONCA 25, 333 C.C.C. (3d) 534, at paras.
    77 and 78. And see
R. v. Allen
, 2009 ABCA 341, 324 D.L.R. (4th) 580,
    affd 2010 SCC 42, [2010] 2 S.C.R. 648, at para. 68.

[150]

In
R. v.
    Al-Kazragy
, 2018 ONCA 40 this court considered evidence of flight after
    the offence. The court found, at para. 18, that the trial judge did not err in
    leaving to the jury the inference to draw from the appellants flight and
    approved the trial judges invocation of the words of Binnie J. in
R. v.
    White
, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 137, that it was for the
    jury to decide: on the basis of the evidence as a whole, whether the post-offence
    conduct put in evidence against the accused is related to the commission of the
    crime before them rather than to something else, and if so, how much weight, if
    any, such evidence should be accorded in the final determination of guilt or
    innocence.

[151]

Such an evaluation is
    intensely contextual and depends on the particular fact in issue to which the
    evidence of post-offence conduct is claimed to relate.

(2)

The Principles
    Applied

[152]

As noted, the
    appellant makes two arguments. First, he submits that the evidence of the halt
    in cellphone contacts between the appellant and Bent after the murder should
    not have been left with the jury as an item of post-offence conduct from which
    they could infer that the appellant was a party to the murder. The inference, the
    appellant asserts, was speculative, if not risible. He adds that the trial
    judge, by compartmentalizing the cessation of phone contact with the Appellants
    flight  a common type of post-offence conduct  gave the cessation of phone
    contact an emphasis in the charge which it did not deserve.

[153]

Second, the appellant
    argues in the alternative, that: the trial judge erred by instructing the jury
    that the post-offence conduct was probative of planning and deliberation. He submits
    that the halt in cellphone contacts between the appellant and Bent and their
    flight after the murder were acts that were generic in nature and insufficiently
    cogent to be used to differentiate between the different states of mind required
    for each of the offences. The appellant argues that these two elements of
    post-offence conduct were only capable of supporting the broad inference that
    he participated in the shooting.

[154]

On scrutiny, both of
    these arguments collapse. The first collapses because there is nothing
    speculative or risible about the inference that the appellants post-offence
    conduct was probative of his participation, which the appellant effectively
    concedes when he says that the halt in cellphone contacts between the appellant
    and Bent and their flight right after the murder were only capable of
    supporting the broad inference that he participated in the shooting. The
    appellant testified and the defence argued to the jury that the calls were
    related to the appellants drug deal with Bent, not the murder. The jury could
    have drawn that inference but did not.

[155]

This post-offence conduct
    falls well within the principles set out in
Calnen,

Al-Kazragy
,

and the cases they cite. It was appropriate to have the jury decide, on
    the basis of the evidence as a whole, whether the post-offence conduct was
    related to the commission of the crime charged or to something else, and, if related
    to the crime, how much weight, if any, should be given to the evidence in the
    final determination of guilt or innocence.

[156]

The second argument
    collapses because the trial judge did not invite the jury to consider the
    appellants post-offence conduct in assessing the appellants mental state for
    first degree murder or the included offences. Doing so would have been an error
    in law:
R. v. Hill,
2015 ONCA 616, 330 C.C.C. (3d) 1, at para. 61.
    However, it is clear from the record that the trial judge gave the jury no such
    invitation.

[157]

The trial judge began
    by instructing the jury that its task was to determine whether the Crown had
    proved beyond a reasonable doubt the charge of first-degree murder,
    second-degree murder, or manslaughter. He explained the elements of those
    offences later in his instructions. The trial judge set out the two principal
    issues that the jury would be required to decide: the involvement of the appellant,
    if any, as a shooter or as a person who otherwise assisted Bent in the
    shooting, and the nature and extent of any such involvement.

[158]

The trial judge
    explained the role of a jury, the burden of proof on the Crown, the nature of
    the credibility and reliability analysis, and the difference between direct and
    circumstantial evidence. The trial judge summarized the available evidence of
    post-offence conduct, including the cessation in phone contact and the
    appellants flight from the housing complex in his review of the circumstantial
    evidence.

[159]

The thrust of the
    trial judges instruction on post-offence conduct dealt with the issue of the
    appellants identity as a participant. He began by saying:

Evidence of what a person did after an offence was committed
may help you decide whether that person was one of the people
    who committed it
. It may help. It may not help. [Emphasis added.]

[160]

Shortly after this, he
    added:

What a person did after an offence was committed may indicate
    that he acted in a way which, according to human experience and logic,
is consistent with the conduct of a person who committed the
    offence and inconsistent with the conduct of someone who did not commit it
.
    [Emphasis added.]

[161]

The trial judge then
    walked through the reasoning process that the jury should apply to the
    post-offence conduct evidence. It was in this context, according to the
    appellant, that the trial judge made statements that were wrong and
    prejudicial, including:

On the other hand, if you are satisfied the defendant made such
    a change or took such flight because he was conscious of his involvement in the
    alleged offence, you may consider this evidence, together with all of the other
    evidence, including the defendants testimony, in deciding whether the Crown
    has proven beyond a reasonable doubt that he was a party
to
    the alleged offence
. [Emphasis added by the appellant.]

***

Evidence that the defendant changed the pattern of his
    conversations with Bent after the alleged murder may, in the context of the
    evidence as a whole, including the defendant's testimony,
lead you to draw an inference that the defendant was a party to
    the alleged first degree murder
. [Emphasis added by the appellant.]

***

Evidence that the defendant took flight from the scene of the
    crime may, in the context of the evidence as a whole, including the defendants
    testimony,
lead you to draw an inference that the
    defendant was a party to the alleged first degree murder
. [Emphasis
    added by the appellant.]

[162]

The appellant
    highlights these passages to suggest that the trial judge told the jury to
    determine whether the appellants post-offence conduct was because he was
    conscious of his involvement in the alleged offence, and in particular, because
    he was conscious of his involvement in a planned and deliberate murder. I
    understand the appellant to be advancing this logic: if the trial judge told
    the jury to consider post-offence conduct in relation to the appellants
    involvement in the alleged first degree murder and the term first degree
    murder necessarily implies planning and deliberation, then the judge effectively
    told the jury to consider post-offence conduct in relation to planning and
    deliberation.

[163]

The appellant is incorrect.
    It is clear from the context in which he made these statements that the trial
    judge was discussing the issues of identity and participation, not the mental
    state of the appellant.

[164]

In the following
    section of the jury charge, the trial judge instructed the jury on the uses and
    limits of the joint admissions entered by the Crown and the defence, Bents
    guilty plea, the expert evidence, and the eyewitness testimony presented at
    trial.

[165]

In the next section of
    the jury instructions he explained the elements of first-degree murder and its
    included offences and explained the law as it related to aiding and abetting.
    At no point in his discussion of the elements of first-degree murder did the
    trial judge refer to post-offence conduct.

[166]

The trial judge then
    summarized the positions of the Crown and the defence. Here again, the
    appellant argues that the trial judge invited the jury to consider post-offence
    conduct as evidence of planning and deliberation when he said that the conduct
    of the defendant after the murder was an important part of the Crowns case
    and the Crowns case was first-degree murder. This is too subtle an
    interpretation, in my view.

[167]

Finally, the trial
    judge addressed the specific issues to be decided and outlined the reasoning process
    the jury should adopt in order to come to a verdict. After walking through the
    steps required to determine whether the appellant had participated in the
    shooting, the trial judge directed the jury to determine whether the appellant
    had the necessary state of mind for murder and, if so, whether he had planned
    and deliberated about the killing. He instructed the jury to look at the
    defendants words and conduct before and at the time of the shooting of Delano
    Coombs.

[168]

After briefly
    addressing the Crowns evidence, he summarized the defences evidence:

Pay particular regard to those aspects of the defence that you
    have not rejected as false, such as some parts of the defendants testimony,
    the weakness of the Crowns case as it relates to the defendants involvement
    in Bents planned and deliberate killing of Coombs
and
    the speculative nature of the alleged change in the alleged pattern of cell
    phone conversations with Bent after the murder
. All this frailty should
    be assessed in the context of the evidence of the defendant about the negative
    environment in the complex, for young people, such as the defendant. [Emphasis
    added by the appellant.]

[169]

The appellant argues
    that this statement tied the cessation of telecommunications with Bent to the
    issue of whether the murder was planned and deliberate. Although I agree that
    it would have been better for the trial judge to have avoided any mention of
    post-offence conduct in the section of his charge dealing with planning and
    deliberation, this mention did not prejudice the appellant in any way. The
    trial judge pointed out the speculative nature of the alleged cessation in
    phone contact as a frailty in the Crowns case. This favoured the defence.

[170]

Overall, the trial
    judges charge to the jury was clear and free from error. Although the
    appellant has taken issue with a few word choices, the trial judges
    instruction, read fairly and in context, correctly instructed the jury on the
    use of the post-offence conduct. When the trial judge discussed the elements of
    first-degree murder and the included offences, he did not refer to post-offence
    conduct. He specifically encouraged the jury to examine the appellants words
    and conduct
before and at the time
of the
    shooting.

[171]

For these reasons, I
    would dismiss the appeal.

Released: P.L. December 29, 2020

P. Lauwers J.A.

I agree. Grant
    Huscroft J.A.

I agree. Harvison
    Young J.A.


