WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding of
    any information that may disclose the identity of the children of Susanna
    Balogh or Paul Bradey shall not be published or broadcast in any way pursuant
    to an order made by Justice A. Stong, Superior Court of Justice, on May 21,
    2009.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bradey, 2015 ONCA 738

DATE: 20151103

DOCKET: C52829

Weiler, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paul Bradey

Appellant

John Norris and Meara Conway, for the appellant

Roger A. Pinnock and Sean Doyle, for the respondent

Heard: January 19, 2015

On appeal from the conviction entered on July 31, 2009 by
    Justice Alfred Stong of the Superior Court of Justice, sitting with a jury.

Watt J.A.:

[1]

Paul Bradey, Susanna Balogh and Matthew Sitte had a problem. In the
    basement of the house they shared near Midland. For them, Katlin Cousineau was
    the problem. She was dead on the basement floor. With burns all over her body.
    From a blowtorch.

[2]

Bradey, Balogh and Sitte were each in their own way responsible for
    Katlin Cousineaus death. None of them wanted to take the blame for what they
    had done. So they devised a plan. And the purpose of the plan was to destroy
    any evidence about how Katlin Cousineau died and who was involved in her death.

[3]

The plan involved a fire. A blaze that would completely destroy the
    house and any evidence about how Katlin Cousineau died. And maybe Bradey, who
    owned the house, would be able to collect the proceeds of the fire insurance
    policy he had placed on the house.

[4]

The fire had to look accidental. And so it was that a yarn was to be
    spun about a cooking accident and a threesome involving Sitte and two girls.
    The story would serve two purposes. It would characterize the fire as
    accidental in origin. And it would provide an explanation for the absence of
    Bradey and Balogh from the house when the fire started.

[5]

The house burned down. But the story about the origins of the fire was soon
    extinguished. Bradey, Balogh and Sitte got arrested. Each was charged with
    offences arising out of the fire and unlawful killing of Katlin Cousineau.

[6]

Matthew Sitte pleaded guilty to second degree murder.

[7]

Susanna Balogh pleaded guilty to criminal negligence causing death.

[8]

Paul Bradey had a trial. Susanna Balogh and Matthew Sitte testified for
    the Crown. The jury found Bradey guilty of first degree murder, arson and
    rendering an indignity to the body of Katlin Cousineau.

[9]

Paul Bradey appeals. He says the trial judge made mistakes in failing to
    order production of some psychological records about Susanna Balogh and in his
    instructions to the jury on two issues involving the assessment of evidence
    given at trial.

[10]

These
    reasons explain why I would dismiss the appeal.

THE BACKGROUND FACTS

The Principals and their Relationship

[11]

Susanna
    Balogh and Katlin Cousineau were neighbours in Waubaushene. Katlin Cousineau
    lived with her husband, Philip St. Amand. Cousineau was 23 years old but
    developmentally delayed. Susanna Balogh lived with her children, and Michael
    John with whom she was in a relationship.

[12]

Katlin
    Cousineau and Philip St. Amand separated. Cousineau moved into the Balogh/John
    home. Susanna Balogh began an affair with Paul Bradey in the summer of 2004.
    When Michael John discovered the affair, he ended his relationship with Balogh.

[13]

Susanna
    Balogh moved in with Paul Bradey at his house in Waubaushene. Katlin Cousineau
    joined them.

[14]

In
    October, 2005, Paul Bradey bought a house at 8960 County Road 93 near Midland. Shortly
    before Bradey, Balogh, Cousineau and the other occupants of the Waubaushene
    home moved to Midland, Baloghs sister and a friend, Matthew Sitte, came to Waubaushene
    for a visit and stayed to help with the move to Midland. Sitte spent his days
    drinking and getting high with Susanna Balogh. Baloghs sister left. Sitte
    stayed.

The House on County Road 93

[15]

Among
    the occupants of the new house on County Road 93, only Paul Bradey had a job.
    Susanna Balogh was on public assistance. Matthew Sitte lived on an inheritance.
    Katlin Cousineau received disability allowance. The house, home to a large
    number of pets, was described as a pigsty. Balogh home schooled her
    children. They played videogames. Susanna Balogh and Matthew Sitte remained at
    home during the day when Paul Bradey was at work. They had fun and played
    games.

[16]

Katlin
    Cousineau lived in the basement of the Midland house. She slept on the concrete
    floor with a sheet, comforter and pillow. She was not allowed to use the
    toilet, only a bucket that was left in the basement.

The Treatment
    of Katlin Cousineau

[17]

Paul
    Bradey and Matthew Sitte abused Katlin Cousineau. To some extent, Susanna
    Balogh also participated in the abuse. Katlin Cousineau was kicked, punched and
    struck with a two-by-four. Sometimes, she was handcuffed to the rafters to
    facilitate a beating. On at least one occasion, a broomstick was inserted in
    Cousineaus anus.

[18]

Katlin
    Cousineaus presence in the house was a source of concern for Paul Bradey. From
    time to time, he suggested that Katlin Cousineau be thrown in a bog or dropped
    off at a mental hospital. When Cousineau got out of hand, Bradey would crush
    Baloghs medication  Epival and Lorazepam  and put it in Cousineaus food
    without her knowledge. The medication would cause Cousineau to fall asleep.

The Death of Katlin Cousineau and the
    Fire on County Road 93

[19]

The
    events that culminated in the death of Katlin Cousineau and the fire that destroyed
    the Bradey home spanned a four-day period in November, 2005.

The First Blowtorch Incident

[20]

Sitte
    testified that on Thursday, November 10, 2005, Baloghs children complained
    about Katlin Cousineaus smell. At Baloghs direction, Sitte gave Cousineau a
    shower. Sitte turned the water to hot. Cousineau reacted and broke the shower
    rod. According to Sitte, Paul Bradey continued this treatment, turning the
    water to hot, then to cold. Bradey then got a blowtorch and threw fireballs
    onto Cousineaus body. After turning the propane off, Bradey burned Cousineaus
    vagina with the nozzle of the blowtorch. Bradey then turned the propane back on
    and ran the flame over Cousineaus arms, chest, stomach and legs. Sitte
    recalled that Balogh turned the water on the areas of Cousineaus body on which
    Bradey had put the fireballs.

[21]

Balogh
    testified that Bradey obtained visitation rights with his daughter at his
    parents cottage on November 10, 2005. Cellphone records showed contact between
    the cellphones of Bradey and Sitte during the afternoon of that day. Sitte
    maintained his position that the blowtorching (first) occurred on that day.
    Balogh recalled no such incident.

The Second Blowtorch Incident

[22]

Sitte
    testified that when Paul Bradey returned home on November 11, 2005, he smelled
    the odour of marijuana wafting upstairs from the basement. He blamed the odour
    on Katlin Cousineau. Bradey, with Sittes help, blowtorched Cousineau on the
    shoulders, breasts, stomach, arms, legs and back while Sitte restrained her.

[23]

After
    the blowtorching ended, Bradey and Sitte left Katlin Cousineau in the basement
    without medical attention. Sitte noticed that Cousineaus body was severely
    burned; her breathing, shallow.

[24]

Despite
    having testified earlier that these events had occurred on the following day
    (November 12, 2005), Sitte insisted that Bradey blowtorched Cousineau on
    November 11, 2005. He admitted that he had lied at the preliminary inquiry when
    he said Balogh had also participated in the blowtorching.

[25]

Balogh
    said the blowtorching did not occur until the evening of Saturday, November 12,
    2005. She recalled having heard screaming from the basement. When she
    investigated, she saw Paul Bradey burning Cousineau with the blowtorch. Matthew
    Sitte joined the abuse, making fireballs by throwing rubbing alcohol on
    Cousineaus body. After going upstairs to see her children, Balogh returned to
    check on Cousineau. Cousineau was sitting on the floor humming, the burns on
    her breasts, legs, arms, face and back visible.

The Death of Katlin Cousineau

[26]

Matthew
    Sitte said he went to the basement to check on Cousineau on November 12, 2005.
    He found her burned, but alive.

[27]

Both
    Sitte and Balogh testified that they went to a pharmacy to buy supplies to
    treat Cousineaus burns. Sitte testified that this happened on November 12,
    2005. Balogh recalled that they did not go to the pharmacy until the following
    day (November 13, 2005). They purchased and applied topical treatments.
    Cousineau hummed and was unresponsive. She appeared to be in pain. Balogh and
    Sitte left Cousineau in the basement.

[28]

At
    around 8:00 a.m. on Sunday, November 13, 2005, Balogh and Sitte checked on
    Cousineaus condition. Balogh testified that she saw that Cousineau was alive.
    She spoke to Bradey on the telephone and told him Cousineau needed help. Bradey
    told Balogh to leave Cousineau alone and that he would return from his parents
    cottage shortly. When he returned, Bradey went to the basement. He told Balogh
    that Cousineau would be fine. Sitte recalled that Cousineau was dead when he
    checked on her in the morning.

The Plan to Set a Fire

[29]

When
    Bradey, Balogh and Sitte discovered that Katlin Cousineau was dead, they
    discussed what they should do. Dump her body in a swamp? Cut up her body and
    dump her body parts in different places?

[30]

Paul
    Bradey suggested that they set a fire and burn the house down. Before learning
    of Cousineaus death, Bradey had explained that the fire would have to be set
    before Cousineau died so that she would have soot in her lungs. Susanna Balogh
    and Matthew Sitte agreed with Bradeys proposal. Balogh showed Bradey and Sitte
    how a few potato chips on the stove could start a grease fire.

[31]

While
    Paul Bradey was away from the house during the day, Matthew Sitte concocted a
    story to explain how the fire started and why Balogh and Bradey were not home
    at the time. Sitte would say that he was planning to have a threesome with
    two women that night.  To afford him privacy for his venture, Bradey, Balogh
    and the children would spend the night at a motel. Sitte would tell
    investigators that he had left a pot of pasta cooking on the stove unattended.
    A fire had started. He had been unable to reach Cousineau either because of the
    smoke or because of the locked basement door.

Preparations for the Fire

[32]

Paul
    Bradey returned home later on November 13, 2005. He and the others began
    preparations to set the house on fire. They bought gasoline and splashed it and
    some paint thinners around in the basement, including on and around Cousineaus
    prone body. Matthew Sitte either agreed or proposed to set the fire. He
    originally claimed he agreed to do so because he did not want Balogh to lose
    custody of her children. He later added that he also did not want Paul Bradey
    to lose his recently granted access to his daughter. Paul Bradey told Sitte to
    wait 20 minutes before lighting the fire in the basement.

The Motel

[33]

Bradey,
    Balogh and her children checked into a nearby motel at 11:51 p.m. on November
    13, 2005. Bradey and Balogh then left the children at the motel and went over
    to a nearby Tim Hortons to await Sittes call about the fire. Some police
    officers were also in the coffee shop when Bradey and Balogh entered.

The Fire

[34]

Matthew
    Sitte opened the doors of the house and rushed the dogs outside. He started a
    fire in the kitchen by dumping bags of potato chips on an element and turning
    on the burner. In the basement, he lit a matchbook and tossed it into some
    gasoline near Katlin Cousineaus body.

[35]

Sitte
    waited until the house was seriously engulfed by the fire before he called
    911. He called Susanna Balogh at 12:02 a.m. to tell her that the fire had been
    set. His call to 911 was received at 12:03 a.m.

The Emergency Response

[36]

Fire
    and police services, including the officers who had been at Tim Hortons,
    responded immediately to the 911 call. When they arrived two minutes later, the
    house was fully engulfed. A rescue attempt was impossible.

[37]

Matthew
    Sitte told different stories to different police officers who had responded to
    the 911 call. To one, he said that he had fallen asleep and was awakened by the
    fire. To another, he maintained the tale about the threesome and the cooking
    accident. In the 911 call, Sitte said that someone could still be inside the
    house. He told the officer at the fire scene that he had last seen Katlin
    Cousineau earlier that day.

The Arrival of Bradey and Balogh

[38]

Paul
    Bradey counselled Susanna Balogh to feign upset as he also would when they
    returned to their home. The couple arrived between 12:30 and 12:40 a.m. Bradey
    hurried out of their vehicle, raced towards the house and ignored commands to
    stay back.

[39]

Balogh
    and Sitte told one of the investigators at the fire scene that Katlin Cousineau
    slept in the basement of the home. Balogh explained that she, Bradey and the
    children were staying at a motel to afford Sitte some privacy to entertain two
    girls. Sitte confirmed the plan and explained that the fire started when a pot
    he was using to prepare pasta boiled over and oil in the water spilled onto the
    stove.

The Insurance Claim

[40]

About
    four hours after the fire was reported, Paul Bradey called his home insurer to
    commence a claim under his fire insurance policy. He told the insurers
    representative that Katlin St. Amand
[1]
had died in the fire. About four months later, Bradey told another
    representative of the insurer that he did not learn of the deceaseds death
    until four or five days after the fire.

[41]

When
    Paul Bradey first called his insurer to start his claim for proceeds under his
    fire insurance policy, Katlin Cousineaus body had not been found. It was found
    later, nude, in the basement.

The Cause of Death

[42]

The
    pathologist who conducted the post mortem on the body of the deceased could not
    determine the precise cause of death. It was clear, however, that Cousineau had
    died
before
the fire started. Her lungs revealed no signs of smoke
    inhalation. Her blood disclosed low levels of carbon monoxide and no signs of
    cyanide.

[43]

The
    pathologist did find leopard skin spots on the mucosal lining of Cousineaus
    stomach. These spots suggested hypothermia, stress and significant
    physiological shock had occurred in the days or hours prior to death. The body
    displayed no signs of soft tissue injuries.

The Cause of the Fire

[44]

Gasoline
    was used to start the fire. Traces of it were found in the basement and on the
    surface of the rear deck.

The Pre-arrest Statements of Paul
    Bradey

[45]

The
    Crown introduced evidence of several statements Paul Bradey made to police and
    to an insurance adjuster after the fire, but before his arrest.

[46]

In
    general terms, Paul Bradey maintained that he, Balogh and the children had gone
    to the motel because Sitte wanted to have a threesome and he (Bradey) did not
    want the children to see this
ménage à trois
. Bradey wanted to be nice
    to Sitte, who had helped with the move from Waubaushene. Baloghs children were
    also excited about staying in a motel. Bradey said he first learned about the
    fire and how it had started when Sitte phoned to report it.

[47]

The
    Crown relied on inconsistencies and falsehoods in Bradeys statements.
    Inconsistencies about his contact with Katlin Cousineau on November 13, 2005.
    Falsehoods about the furnishings in the basement where Cousineau lived. And statements
    that made little sense in the circumstances. Like the presence of gasoline and
    paint thinners in the basement when the fire was alleged to have started with a
    cooking accident upstairs in the kitchen. And his description of his treatment
    of Cousineau before he was considered a suspect in her death.

The Positions of the Parties at Trial

[48]

The
    Crown contended that Bradey and Sitte killed the deceased by severely burning
    her with a blowtorch while they unlawfully confined her in the basement, then
    leaving her without medical treatment. When they discovered that Cousineau had
    died, they fabricated a story about the origins of the fire Sitte deliberately
    set after both Bradey and Sitte had spread gasoline as an accelerant. The story
    assigned an accidental cause for the fire  a cooking accident  and also
    provided an explanation for the absence of Bradey, Balogh and the children from
    the home  the
ménage à trois
involving Sitte. The purpose of the fire
    was to destroy the evidence of any involvement of Bradey, Sitte and Balogh in
    the unlawful death of Cousineau.

[49]

At
    trial, Paul Bradey denied any role in the unlawful killing of Katlin Cousineau.
    It was his position that Matthew Sitte and Susanna Balogh killed Cousineau on
    November 13, 2005 while he, Bradey, was visiting his daughter at his parents
    cottage. He relied on his statements to representatives of his insurer and to
    the police in support of his position. Paul Bradey did not testify at trial.

THE GROUNDS OF APPEAL

[50]

In
    this court, Bradey advances four grounds of appeal. The first claims a mistake
    in rejection of an application for production of third party records. The
    remaining three allege errors in the substance and manner of the trial judges
    charge to the jury.

[51]

I
    would paraphrase the grounds of appeal as alleged errors:

i.

in failing to find psychological records relating to Susanna Balogh in
    the custody of the Grand River Institution likely relevant on an application
    for their production at trial;

ii.

in failing to properly instruct the jury in connection with the evidence
    of Susanna Balogh and Matthew Sitte whose evidence was subject to a
Vetrovec
warning at trial;

iii.

in failing to properly instruct the jury about an allegedly fabricated
    statement of Bradey introduced at trial; and

iv.

in failing to provide the jury with properly balanced final
    instructions.

Ground #1: The Third Party Records Application

[52]

This
    ground of appeal questions the correctness of the trial judges decision to
    reject a mid-trial application for production of psychological records relating
    to a witness for the Crown  Susanna Balogh. The records were in the possession
    of the Correctional Service of Canada at Grand Valley Institution, a federal penitentiary
    for women where Balogh was serving her sentence on her conviction of criminal
    negligence causing death arising out of the unlawful killing of Katlin
    Cousineau.

[53]

Some
    additional background is necessary to appreciate the circumstances in which
    production was sought and the application dismissed.

The First Application

[54]

During
    sentencing proceedings following Susanna Baloghs plea of guilty to and
    conviction of criminal negligence causing death, a psychological report about
    her was filed as an exhibit. Trial counsel for Bradey sought production of this
    material in advance of trial. Balogh consented to the application. The Crown
    agreed. The records were produced and available for the purposes of
    cross-examination.

The
    Application at Trial

[55]

During
    examination-in-chief by the trial Crown, Susanna Balogh was asked whether she
    had ever told anybody the whole truth about the events leading to Katlin
    Cousineaus death before she (Balogh) gave evidence before the jury. Balogh
    responded:

No, except for my psychologist.

Further questioning established that the psychologist
    was at Grand Valley Institution and that the relationship was an ongoing one.
    Balogh explained that she had received a lot of help during her imprisonment
    at Grand Valley.

[56]

Trial
    counsel sought production of the psychological materials at Grand Valley so
    that he could use them in his just-begun cross-examination of Balogh. Balogh
    resisted the application as did Crown counsel. The trial judge appointed
    counsel to represent Baloghs interest.

[57]

Counsel
    and the trial judge agreed that the application could be argued without a
    formal written application as would usually be required. Counsel for Bradey said
    he sought statements Balogh had made:

i.

about the offence;

ii.

about her relationship with Paul Bradey; and

iii.

about her plea of guilty to the lesser offence of criminal negligence
    causing death.

Counsel proposed to use the statements to challenge
    Baloghs claim that she had told the jury the whole truth as she had done with
    her psychologist at Grand Valley.

[58]

On
    the application, Crown counsel called Dr. Janice Cutler, the Chief Psychologist
    at Grand Valley. Dr. Cutler was not the psychologist with whom Balogh was
    dealing. She was, however, familiar with Baloghs file and had read most of it
    in preparation for her testimony.

[59]

Dr.
    Cutler explained that a psychologists notes are to include the date of an
    interview, who was interviewed and a general account of what occurred during
    the interview. The amount of detail varies but the clinician is under no
    obligation to note exactly what was said or to have the patient verify the
    accuracy of the notes. Dr. Cutler said that she, and perhaps others, might take
    notes of any details of the offence that the patient disclosed.

[60]

Dr.
    Cutler expressed some concerns about production of the notes. Release could
    damage the therapeutic relationship and impede the inmates rehabilitation.
    Some of the notes, for example, those reflecting psychological history, might
    require interpretation by a psychologist. Third party privacy interests might
    be implicated.

The Ruling of
    the Trial Judge

[61]

The
    trial judge dismissed the application on the ground that Bradey had failed to
    establish the likely relevance of the records to an issue at trial, including
    the testimonial competence or credibility of Susanna Balogh.

[62]

The
    trial judge relied on several factors in support of his conclusion that no case
    of likely relevance had been established:

i.

the mere fact that a witness has spoken to a counsellor about matters
    touching the issues at trial does not make a record of those observations
    likely relevant to a fact in issue or the witness credibility;

ii.

the records only pass the likely relevance threshold if there is some
    basis to conclude that the statements have the potential to provide an accused
    with some added information not already available to him or to have some
    impeachment potential;

iii.

confidentiality is paramount in the relationship and a high expectation
    of privacy attaches to the records with the result that unsupported, at large
    assertions of likely relevance fail to meet the threshold standard for review;
    and

iv.

the witness statement about the consistency between the account to her
    psychologist and that provided to the jury demonstrates no inconsistency.

The Arguments on Appeal

The Likely
    Relevance Test

[63]

Bradey
    says that the trial judge erred in failing to hold that the records sought were
    likely relevant to an issue at trial. The likely relevant standard is not
    onerous.  It is satisfied where an applicant demonstrates that there is a
    reasonable possibility that the records contain information logically probative
    of an issue at trial, including the credibility of a witness. The information
    sought here would meet the
Stinchcombe
standard for disclosure if it
    (the information) were in the possession of the Crown.

[64]

Bradey
    submits that the trial judge made four discrete errors in deciding that the
    materials sought did not satisfy the likely relevance threshold.

[65]

First,
    the trial judge mischaracterized the significance of the evidence of Susanna
    Balogh that she told her psychologist the whole truth. This evidence may not
    have been elicited by the Crown as a prior consistent statement to bolster her
    credibility, but the jury may have seen or taken it that way. The implication
    was that counselling had helped her to arrive at the truth, a subject that the
    defence should have been entitled to explore.

[66]

Second,
    Bradey says, the trial judge failed to appreciate the impeachment value of the
    psychological records. Instead of considering Baloghs claim of consistency as
    dispositive, the trial judge should have considered that claim in the context
    of the evidence as a whole. After all, Balogh was a self-admitted and confirmed
    liar.

[67]

Third,
    Bradey contends that the trial judge overemphasized Baloghs privacy interest
    in the psychological records. Baloghs privacy interest was significantly
    reduced. She was a perpetrator of an offence, not a victim or other stranger to
    the litigation. She had previously signed a consent permitting the Crown to
    access
all
her medical records. The failure of the Crown to do so did
    not diminish the already reduced expectation of privacy. And in the end, Balogh
    was in jail, a place of reduced expectation of privacy not only for inmates,
    but also for the records about them.

[68]

Fourth,
    the trial judge failed to balance Baloghs privacy interest against the
    appellants right to make full answer and defence.

[69]

The
    Crown resists any suggestion of error in the trial judges analysis.

[70]

The
    Crown says that the mere fact that Balogh made statements to a psychologist
    about an offence does not meet the standard required to establish likely
    relevance. Such statements only pass the likely relevance threshold if there is
    some basis for concluding that the statements have some potential to provide
    the appellant with some additional information not already available to the
    defence or have some impeachment value. That case has not been made out here.

[71]

In
    the end, the Crown submits, the trial judge recited and applied the proper
    principles. He did not, as Bradey suggests, misapprehend the evidence. His
    decision is entitled to deference. And what is more, he got it right.

Production
    of the Records

[72]

In
    accordance with the
subpoena duces tecum
to which she responded, Dr.
    Cutler had brought with her to the hearing of the
OConnor
application
    at trial the Grand Valley records. Unfortunately, however, the sealed records were
    not then made a lettered exhibit at the hearing, as they should have been, and
    thus were not part of the record forwarded to this court on the hearing of the
    appeal. They remained in the court file.

[73]

Neither
    party to the appeal applied to the panel to invoke s. 683(1)(a) of the
Criminal
    Code
, R.S.C., 1985, c. C-46, to order production of the records as any
    writingor other thing connected with the proceedings. As a result, the Senior
    Legal Officer of this court wrote to counsel, seeking their written submissions
    in answer to this question:

If the court is of the view that the trial judge erred in his
    ruling on the likely relevance of the Grand Valley Institutions records for
    Ms. Balogh, should we invoke our jurisdiction to order their production from
    the court file under s. 683(1)(a) of the
Criminal Code
, consider the
    records and decide whether some, none or all should have been disclosed to defence
    counsel at trial?

[74]

Counsel
    on the appeal agreed that, if we were of the view the trial judge erred in this
    regard, we should obtain the Grand Valley records, review them and conduct the
    second stage of the
OConnor
/
McNeil
analysis to determine
    what, if any, portion of those records should have been produced to trial
    counsel for the appellant.

The Governing
    Principles

[75]

The
    principles that control the determination of this ground of appeal are those
    elucidated in
R. v. OConnor
, [1995] 4 S.C.R. 411. And that is so, the
    parties agree, because the records sought are in the possession and control of
    a third party, a stranger to the litigation, Grand Valley Institution. They
    relate to an inmate, a person convicted of criminal negligence causing death as
    a result of her involvement in the unlawful death of another. The inmate was a
    witness for the Crown in the prosecution of another for his role in the same
    unlawful killing.

[76]

Some
    basic principles that emerge from
OConnor
and its offspring are
    critical to a correct disposition of this ground of appeal.

[77]

First,
    the
OConnor
principles apply but are not confined to medical or
    therapeutic records in the custody or control of a third party. The principles
    extend not only to third party records to which a reasonable expectation of
    privacy attaches, but also to those to which no such expectation adheres:
OConnor
,
    at para. 99;
R. v. McNeil
, 2009 SCC 3, [2009] 1 S.C.R. 66, at para.
    11. Said otherwise, the common law regime put in place by
OConnor
provides a general mechanism for production of
any
record beyond the
    possession or control of the prosecuting Crown.

[78]

The
    operation of this regime is not premised on the existence of a reasonable
    expectation of privacy:
McNeil
, at para. 11. It would seem logically
    to follow that the reduced expectation of privacy in a penitentiary does not
    render the
OConnor
regime inapplicable to prison records:
R. v.
    Major
(2004), 186 C.C.C. (3d) 513 (Ont. C.A.), at para. 35.

[79]

Second,
    under
OConnor
, production does not issue as of right upon
    application. After all, these records are in the hands of a third party, a
    stranger to the litigation. They are not part of a case to meet or in the
    possession or control of the prosecutorial authority. So the applicant bears an
    onus of establishing a basis for production. An applicant must establish a
    basis that could enable the presiding judge to conclude that there is actually
    further material in existence that may be useful to the applicant in making
    full answer and defence, in the sense that the material is logically probative:
OConnor
, at para. 138.

[80]

Third,
    since the records have been created by a third party for a purpose unrelated to
    the investigation or prosecution of the offence, we cannot assume that the
    records are likely to be relevant. And so we impose a burden on the applicant
    to demonstrate the likely relevance of what is sought:
OConnor
, at
    para. 141.

[81]

Fourth,
    the burden on an applicant to demonstrate likely relevance is a significant but
    not onerous one:
OConnor
, at para. 24;
McNeil
, at para. 29.
    The burden is significant because it must play a meaningful role in screening
    applications to weed out speculative, fanciful, disruptive, unmeritorious and
    time-consuming requests for production:
McNeil
, at para. 29;
OConnor
,
    at para. 24. For example, an unsupported assertion that prior inconsistent
    statements might be unearthed or that psychological counselling implies
    unreliability is inadequate to establish likely relevance:
OConnor
,
    at paras. 142-43.

[82]

Fifth,
    an applicant must satisfy the court that information contained in the records
    is likely relevant to an issue in the proceedings or to the competence of a
    witness to testify:
OConnor
, at para. 138. An issue in the
    proceedings includes substantive issues, the credibility of the witness and the
    reliability of other evidence in the case:
OConnor
, at para. 22;
McNeil
,
    at para. 33; and
R. v. Batte
(2000), 49 O.R. (3d) 321 (C.A.), at
    paras. 53, 64.

[83]

Further,
    the mere fact that the witness said something about relevant events or about
    something that could affect her credibility is not sufficient to pass the
    likely relevance standard:
Batte
, at paras. 70-71. Where confidential
    records are shown to contain statements made by a witness to a therapist on
    issues potentially relevant to the witness credibility, the records will pass
    the likely relevance threshold only if there is some sound basis for concluding
    that the statements have some potential to provide the accused with some
    additional information not already available to the accused, or have some
    impeachment value:
Batte
, at para. 72.

[84]

The
    likely relevance stage cannot require a demonstration of the precise manner in
    which the documents could be used at trial. The reason is simple: at this
    stage, the accused has not seen the documents:
McNeil
, at para. 33.

[85]

Sixth,
    if the records are found to be likely relevant, the inquiry shifts to a
    consideration of whether production should be ordered. This requires a
    case-specific consideration and balancing of myriad factors.

[86]

After
    review of the records, production should only be ordered in respect of those
    records, or parts of records, that have significant probative value that is not
    substantially outweighed by the danger of prejudice to the proper
    administration of justice or by the harm to the privacy rights of the witness
    or to any claim of privilege:
OConnor
, at para. 155.

[87]

Relevant
    factors include, but are not limited to:

i.

the extent to which the record is necessary for the accused to make full
    answer and defence;

ii.

the probative value of the record;

iii.

the nature and extent of the reasonable expectation of privacy vested in
    the record;

iv.

potential prejudice to the dignity, privacy or security of the person of
    the individual who is the subject of the record; and

v.

the effect on the integrity of the trial process of producing or failing
    to produce the record:
OConnor
, at paras. 31, 156;
McNeil
, at
    para. 35.

The Principles Applied

[88]

As
    I will explain, I agree with the appellant that the trial judge erred in
    holding that the appellant had failed to meet the likely relevance threshold
    in connection with the Grand Valley records. That said, a review of the records
    satisfies me that their production would not have been ordered had the trial
    judge reached the second stage of the
OConnor
/
McNeil
analysis.

The Likely
    Relevance Test

[89]

At
    the outset, it is essential to keep at the forefront what was sought, in
    respect of whom, and for what purpose.

[90]

The
    records sought were parts of a psychological file created for an inmate at
    Grand Valley Institution, a federal penitentiary for female offenders. What was
    sought were those parts of the file in which the inmate, Susanna Balogh,
    described to a staff psychologist the circumstances of the unlawful killing of
    Katlin Cousineau, Baloghs relationship with the appellant and the
    circumstances surrounding Baloghs plea of guilty to criminal negligence
    causing death. The relationship between Balogh and the psychologist was a
    therapeutic, not an investigative, one.

[91]

There
    was no direct evidence about the contents of the notes, in particular, the
    inclusion or completeness of any statements regarding the subjects about which
    the information was sought. The only evidence was that the practice of noting
    statements varies from one clinician to another. About the inclusion of
    statements. And about the completeness of them. Psychologists are under no
    obligation to record statements, much less to record them accurately or
    completely. The inmate is not shown the notes, and thus does not verify their
    accuracy.

[92]

No
    one testified about any institutional use of the notes. In view of the setting,
    however, it is a reasonable inference that the notes could be used to inform
    decisions about classification, programming and parole. Doubtless, the parties
    considered the relationship a confidential one of a therapeutic nature.

[93]

The
    witness whose records were sought is one who was
particeps criminis
in
    the unlawful killing of Katlin Cousineau. She was not a victim of a crime nor a
    stranger who happened by when an offence was underway. She was one of two
    former co-accused who testified for the Crown against the appellant.

[94]

At
    trial, the testimony of Susanna Balogh was the subject of a
Vetrovec
caution.
    She had a history of drug abuse. She acknowledged that in the past she and the
    truth were not good friends. She lied to investigators about the origins of the
    fire and the reason she, Bradey and the children went to the motel. She had
    given several statements that were inconsistent with each other and with what
    she said at trial. She denied the suggestion that her evidence at trial was the
    first time she had told the truth. She testified at trial that she had told the
    same thing to her psychologist at Grand Valley Institution.

[95]

Counsel
    for the appellant at trial vigorously challenged the credibility of Susanna
    Balogh and the reliability of her evidence. He sought the psychological records
    to put the lie to her claim that her testimony at trial was not the first time
    she had told the truth about relevant events. Without the Grand Valley records,
    counsel argued, he could not put the lie to her claim.

[96]

In
    my respectful view, the reasons of the trial judge rejecting the application
    for production on the ground that the applicant failed to satisfy the likely
    relevance test are marred by several flaws.

[97]

First,
    the trial judge appears to have treated as dispositive of the issue of likely
    relevance the witness own assertion that what she told the psychologist and
    what she said at trial were the same thing. Put differently, according to the
    witness, the accounts were consistent. On this basis, the trial judge concluded
    that the purpose of seeking production  to obtain material for impeachment
    could not be achieved.

[98]

The
    witness characterization of the statements to the psychologist as congruent
    with her trial evidence was not dispositive of the application. If it were
    otherwise, all applications on this basis would fail on the
ipse dixit
of the witness whose credibility is impugned. The inquiry into likely relevance
    cannot be decided on the witness say-so.

[99]

Second,
    under the regime applicable here, the confidential nature of the relationship
    during which the sought-after records were created affords no basis upon which
    to deny likely relevance. The person whose records are sought will often have a
    reasonable expectation of privacy in the records. The
OConnor/McNeil
procedure provides a general mechanism for ordering production of
any
record
    beyond the control of the prosecuting Crown. It applies where the relationship
    is a confidential one, but equally where it is not. It applies whether the
    record gives rise to a reasonable expectation of privacy or fails to do so. The
    relevance of these issues seems more suited to the second stage of the
OConnor/McNeil
analysis, not to the first or likely relevance threshold.

[100]

Third, the trial
    judge appears to have placed undue emphasis on the lack of reliability of the
    records based on the absence of any obligation to record statements accurately
    or completely, or have them verified by their author. Although relevant, these
    factors are not dispositive of the likely relevance stage of the
OConnor
/
McNeil
analysis. The applicant proposed to use the statements to test the credibility
    of the witness and the reliability of her testimony, not to introduce them for
    substantive purposes. Confirmation that they were made and differed from the
    witness evidence at trial could also be used to demonstrate the falsity of her
    claim that she told the truth to both the psychologist and the court.

[101]

Fourth, the
    trial judge appears to have intermingled or confused the concepts of an
    expectation of privacy and likely relevance. A record to which a high
    expectation of privacy attaches may contain information that satisfies the
    likely relevance threshold. Likely or probable relevance refers to a
    relationship, based on logic and common sense, between the information sought
    and an issue in the proceedings. A reasonable expectation of privacy refers to
    an expectation that the record fosters.

[102]

Finally, the
    witness acknowledged that she spoke to her psychologist at Grand Valley about
    the relevant events. This would seem to provide some basis for concluding that
    the records might contain some notes of what was said.

[103]

In the result, I
    am satisfied that the records sought satisfied the likely relevance test and
    that the trial judge erred in holding otherwise.

Production of the Records

[104]

Based on the
    above conclusion, and counsels agreement that we should receive the documents
    in question, we have reviewed the records.

[105]

In general terms,
    the records consist of Clinical Progress Notes created by psychologists at
    Grand Valley. They describe various interactions between Balogh and a
    psychologist at the institution in what is plainly a therapeutic relationship.
    Included is an Informed Consent for Individualized Psychotherapy or Treatment
    that characterizes the relationship and describes it as confidential but
    includes certain exceptions, among them production under a subpoena.

[106]

The notes
    contain summaries of the interaction between Balogh and her psychologist about
    Baloghs experiences in Grand Valley, including her involvement with other
    inmates and her functioning within institutional rules. The notes contain no
    information about the circumstances of her guilty plea or relationship with the
    appellant. Any reference to what happened is brief, generalized and not
    inconsistent with her trial testimony.

[107]

The principal
    purpose for which the records were sought was to impeach Baloghs credibility
    and the reliability of her evidence on the basis of statements inconsistent
    with her trial testimony. At trial, she was cross-examined for several days. A
    prominent feature of the cross-examination was her impeachment by statements
    made elsewhere  to investigators and at the preliminary inquiry  relative to,
    but said to be inconsistent with, her trial testimony. These statements were
    accurately recorded and, in some instances, under oath. Her testimony at trial
    was the subject of a
Vetrovec
caution.

[108]

In light of
    this, it is difficult to see how the production of these records would have
    furthered the appellants ability to make full answer and defence. That
    difficulty is compounded as the casual reference to relevant events in summary
    form in a single document affords no basis for cross-examination under s. 10(1)
    or, for that matter, under s. 11 of the
Canada Evidence Act
.

[109]

Moreover, the
    records are sought in relation to collateral issues  the credibility of Balogh
    and the reliability of her evidence. Information relating to collateral issues,
    more accurately, failure to direct its production, does not impair an accuseds
    right to make full answer and defence:
OConnor
, at para. 161.

[110]

At the second
    stage, it is a relevant consideration that the records originated in a therapeutic
    context. Such records, it has been said, are inherently unreliable:
OConnor
,
    at para. 165. Nothing indicates preparation contemporaneous with any statements
    that may have been made by Balogh. There was no requirement that the notes
    accurately record any statements. Anything contained in the record was not
    verified by Balogh. As substantive evidence, any references to things said on interview
    would be inadmissible hearsay.

[111]

Nor can it be
    said that no privacy interest attaches to the records. Despite the reduced
    expectation of privacy inherent in the correctional context, the Clinical
    Progress Notes originated in a therapeutic relationship. Disclosure of
    information revealed in that relationship may be injurious to the relationship
    and stunt its rehabilitative purpose.

[112]

As a result, I
    would not order production of any of the Grand Valley Records. Consequently, the
    demonstrated error about likely relevance has no impact on the appellants
    conviction.

Ground #2: Inadequate Instructions on Assessing the Evidence
    of Susanna Balogh and Matthew Sitte

[113]

This ground of
    appeal focuses on the trial judges final instructions about the manner in
    which jurors were to assess the testimony of Susanna Balogh and Matthew Sitte.
    The grievance is two-fold. The
Vetrovec
caution was inadequate. And
    its inadequacies were exacerbated by other portions of the charge which diluted
    the caution even further.

[114]

The nature of
    the argument advanced renders unnecessary any further recital of the substance
    of the testimony of Balogh and Sitte but does warrant a brief overview about
    some features of the charge to the jury.

The Charge to
    the Jury

[115]

In his
Vetrovec
caution the trial judge:

i.

identified Balogh and Sitte as the witnesses whose evidence was subject
    to a special instruction;

ii.

described the reasons for the instruction;

iii.

cautioned the jury about the danger of acting on the evidence of Balogh
    and Sitte in the absence of confirmation from some other source, but advised
    the jury that it could act on their evidence without confirmation if they
    believed it was true; and

iv.

instructed the jury that it should look for confirmation of their
    evidence from other sources.

[116]

In his charge,
    the trial judge also instructed the jury that there is a presumption that
    witnesses give their honest recollection of events when testifying. In his
    description of what constituted evidence on which jurors could make their
    findings of fact, the trial judge distinguished between questions asked, or more
    accurately suggestions made to a witness, and the witness answers. The latter
    were evidence, the former not, unless the witness agreed with the suggestion of
    the questioner. The trial judge also reminded jurors that they were not
    required to be unanimous about their views on individual pieces of evidence or
    the basis of liability. Unanimity on proof of the essential elements of the
    offence, however, was required to find the appellant guilty of an offence.

[117]

The trial judge
    provided two deliberation aids to the jury in addition to a written copy of his
    final instructions. One of the documents was a decision tree,
[2]
in standard form. The trial judge explained its use to jurors.

The Arguments
    on Appeal

[118]

The appellant
    contends that the
Vetrovec
caution provided by the trial judge was not
    sufficiently robust to bring home to the jury the frailties of the evidence of
    Balogh and Sitte and the dangers of acting upon it.

[119]

The appellant
    acknowledges that the trial judge told the jury that it was
dangerous
to act on the unconfirmed evidence of Balogh and Sitte. But, the appellant
    says, this language was watered down by the more tepid phrase, feeling of
    skepticism, and the invitation to found a conviction based on their testimony
    if the jurors believed they were telling the truth. The instructions implicitly
    endorsed the credibility of these witnesses and unduly emphasized the jurors
    right to act upon it. Further, the trial judge failed to expressly point out
    that the admitted involvement of both Balogh and Sitte in the relevant events
    allowed them to manufacture details about the appellants involvement that
    could not be contradicted.

[120]

To make matters
    worse, the appellant continues, the inadequate
Vetrovec
caution was
    further weakened by several other instructions the trial judge included in his
    charge. The erroneous assertion of a presumption that witnesses are truthful.
    The repeated reference to the non-evidentiary use of questions or suggestions
    put to the witnesses without adoption of their contents in the witnesses
    answers. The repeated reference to the lack of any requirement of unanimity on
    individual items of evidence and the failure to link the differences in
    recollections by Balogh and Sitte about important events (like the
    blowtorching) to the principle of reasonable doubt. And the failure to include
    in the decision tree, or in the instructions about its use, a reference to the
    consequences of uncertainty about the adequacy of the Crowns proof.

[121]

The respondent
    rejects any suggestion that the
Vetrovec
caution was substandard or
    its adequacy was diminished by any of the specific complaints advanced by the
    appellant.

[122]

The respondent
    says that the
Vetrovec
caution contained the four essential components
    required by the jurisprudence. The language used, including the term
    dangerous, faithfully tracks that jurisprudence. Absent some other
    deficiency, a caution that contains these prescribed components is adequate.
    And even if the charge does not properly track the prior jurisprudence, there
    is no mandatory formula, rather a healthy margin for language choice and
    entitlement to deference on appellate review.

[123]

The respondent
    notes that the reference to a feeling of skepticism was immediately followed
    by a reference to dangerous to convict. It was not improper to refer to the
    witnesses claims to be speaking the truth, or to remind the jury of its
    undoubted right to found a conviction on the unconfirmed testimony of the
    tainted witnesses. Taken as a whole, the instructions adequately reviewed the
    witnesses history of lying and did not enhance their credibility. They rather
    left it to the jury to sort out as it was right to do. The frailties associated
    with these witnesses and their evidence were self-evident and required no
    further elaboration.

[124]

The respondent
    accepts that the trial judge was wrong in instructing the jury about the
    presumption of truthfulness for witnesses. But when the instructions are
    considered as a whole, especially those that focused on the danger of acting on
    the unconfirmed evidence of Balogh and Sitte, the erroneous instruction caused
    the appellant no prejudice. In a similar way, the legally correct distinction
    between an examiners questions and a witness answers did
not
diminish the force of the
Vetrovec
caution. In the end, the jurors
    understood what was and what was not evidence and that, even if a witness
    adopted a suggestion put by counsel, it was for the jury to say to what extent
    they would accept and act upon that evidence.

[125]

The respondent
    submits that the instructions about unanimity, more particularly the absence of
    any requirement of unanimity for individual items of evidence or the legal
    basis of liability, were neither wrong nor compromising of the
Vetrovec
caution. The trial judge did relate reasonable doubt to the contradictions
    between Balogh and Sitte about the date of the blowtorching and provided a
W.(D.)
instruction about evidence that the appellant was at his parents cottage
    when the blowtorching occurred.

[126]

The respondent
    contests the appellants submission about the inadequacy of the decision tree.
    This deliberation aid must be considered along with the specific instructions
    given about its purpose and use, as well as the instructions given about proof
    of the essential elements of the offence reflected in the decision tree. A
    yes answer requires proof beyond a reasonable doubt of each element.
    Uncertainty or a reasonable doubt about the adequacy of proof is
not
proof
    beyond a reasonable doubt and results in a no answer with specified verdict
    consequences.

The Governing Principles

[127]

Several
    principles contribute to an assessment of the validity of this ground of
    appeal. Some remind us of the standard we are to apply when reviewing alleged
    errors in jury instructions. Others relate to the essential components of
Vetrovec
cautions. Still others govern the specific complaints the appellant makes about
    the presumption of truthfulness, questions and answers as evidence,
Thatcher
-type
    instructions about requirements of unanimity, and the form and use of decision
    trees.

Appellate Review of Jury Instructions

[128]

In a criminal
    prosecution before a jury, the parties, including but not only the person
    charged, are entitled to a properly, but not a perfectly, instructed jury:
R.
    v. Jacquard
, [1997] 1 S.C.R. 314, at para. 2;
R. v. Daley
, 2007
    SCC 53, [2007] 3 S.C.R. 523, at para. 31.

[129]

Appellate courts
    take a functional approach to claims of inadequacy in jury instructions. We
    test the instructions as a whole against their ability to achieve their purpose
     to equip the decision-maker to decide the case they have been chosen to try.
    We do not test the instructions according to the extent to which they adhere to
    or depart from some predetermined pattern or formula:
Jacquard
, at
    para. 14;
R. v. Cooper
, [1993] 1 S.C.R. 146, at p. 163;
John v.
    The Queen
, [1971] S.C.R. 781, at pp. 792-93;
R. v. Khela
, 2009
    SCC 4, [2009] 1 S.C.R. 104, at para. 47.

[130]

In our review of
    the adequacy of jury instructions, we must bear in mind that a jury charge does
    not take place in splendid isolation; rather the context of the trial as a
    whole, the evidence adduced and the positions advanced are also important in
    our review:
Jacquard
, at paras. 33, 35;
Daley
, at para. 58,
R.
    v. Royz
, 2009 SCC 13, [2009] 1 S.C.R. 423, at para. 3. We must also
    recognize that the words used or sequence followed by a trial judge in final
    instructions is largely a matter left, and rightly left, to the sound
    discretion of the trial judge in the circumstances of the case:
Daley
,
    at para. 30.

[131]

A final point.
    It is not misdirection to fail to tell the jury everything that could be said about
    a particular subject. Non-direction only becomes misdirection when something
    left unsaid makes wrong something that was said, or where what was left unsaid
    is essential to an accurate instruction on the subject.

The Vetrovec Instruction

[132]

A
Vetrovec
instruction
    consists of four foundational elements:

i.

identification of the evidence or witness whose testimony requires
    special scrutiny;

ii.

an explanation of the reasons why the evidence is subject to special
    scrutiny;

iii.

a caution that it is dangerous to act on the unconfirmed evidence of the
    witness, but that the jury is entitled to do so if satisfied that the witness
    is telling the truth; and

iv.

an explanation that, in determining the veracity of the suspect
    evidence, the jury should look for evidence from another source tending to show
    that the witness is speaking the truth:
Khela
, at para.
37;
R. v. Kehler
, 2004 SCC 11, [2004] 1 S.C.R. 328, at
    paras. 17-19;
R. v. Sauvé
(2004), 182 C.C.C. (3d) 321 (Ont. C.A.), at
    para.
82.

These elements should guide trial judges in their
    formulation of a
Vetrovec
caution, although they are not to be applied
    in a rigid and formulaic way:
Khela
, at para. 38. That said, where a
    caution has these elements, absent some other flaw, it is generally adequate:
Khela
,
    at para. 44.

[133]

Like other
    aspects of a jury charge, we review the adequacy of a
Vetrovec
caution
    in the context of the entire charge, not in splendid seclusion from it:
R.
    v. Harriott
(2002) 58 O.R. (3d) 1, 161 C.C.C. (3d) 481 (C.A.), at para.
    37;
R. v. Winmill
(1999), 131 C.C.C. (3d) 380 (Ont. C.A.), at p. 405;
R.
    v. Crick
(2005), 197 O.A.C. 33 (C.A.), at para.
9;
R.
    v. Rochon
(2003) 173 C.C.C. (3d) 321 (Ont. C.A.), at para.
75. The
    nature and strength of the caution is very much a matter for the discretion of
    the trial judge:
Rochon
, at para. 75.

[134]

When the
    complaint about a
Vetrovec
instruction is that it was not strong or
    detailed enough, judicial restraint is a necessary ingredient in our
    assessment. Otherwise, we may slip back into the blind and empty formalism
    and ritualistic incantation talismanic of the pre-
Vetrovec
era that
Vetrovec
rejected:
R. v. Zebedee
(2006), 81 O.R. (3d) 583 (C.A.), at paras.
    80-81; see also,
R. v. Vetrovec
, [1982] 1 S.C.R. 811, at p. 823. Where
    a
Vetrovec
caution has been given, appellate intervention is justified
    only where an appellant can show that, in all the circumstances, the warning as
    formulated failed to convey to the jury the appropriate degree of caution
    required for the witnesses whose testimony is subject to the caution:
Zebedee
,
    at para. 84.

[135]

The word choice
    for the caution rests with the sound discretion of the trial judge. Provided
    the discretion is expressed reasonably, appellate courts should not interfere:
Zebedee
,
    at para. 92. Sometimes, one formulation is the functional equivalent of
    another:
Zebedee
, at para. 92.

[136]

Where an
    appellant claims that a
Vetrovec
caution is deficient because a trial
    judge failed to provide an exhaustive catalogue of the reasons for the caution,
    we should consider whether the characteristics omitted were latent or
    self-evident. The latter are unlikely to elude a 21
st
century jury:
Zebedee
,
    at para. 95;
R. v. Saleh
, 2013 ONCA 742, 303 C.C.C. (3d) 431, at para.
    108;
R. v. Linklater
, 2009 ONCA 172, 246 O.A.C. 303, at para. 10.

The Presumption of Truthfulness

[137]

No presumption
    of honesty or truthfulness accompanies the witness to the witness box. It
    follows that an instruction that such a presumption applies is legally wrong:
R.
    v. Luciano
, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 147;
R. v.
    Thain
, 2009 ONCA 223,

243 C.C.C. (3d) 230, at para. 32. Whether
    inclusion of such an instruction is fatal to the validity of a conviction will
    depend on the circumstances:
Luciano
, at para. 149.

Questions,
    Answers and Evidence

[138]

It is
    uncontroversial that it is open to counsel in cross-examination to put good
    faith suggestions to witnesses to seek their response. It is equally
    uncontroversial, however, that it is the witness response, not the
    cross-examiners question, that constitutes the witness evidence on the issue.
    If the witness adopts the cross-examiners question as truthful, the adoption
    becomes the witness evidence on the point. But the trier of fact, whether
    judge or jury, is not bound to accept the witness adoption as true. As with
    any other piece of evidence, the trier of fact is free to accept or reject it,
    in whole or in part. If the witness does not adopt the cross-examiners
    suggestion as his or her own, the suggestion is not evidence nor is disbelief
    of the answer given by the witness evidence of the contrary upon which the
    trier of fact can act.

[139]

An instruction
    that explains that answers not questions constitute evidence is routinely
    provided to jurors in this province and elsewhere to explain what constitutes
    evidence based on which jurors can make their findings of fact.

The Thatcher Instruction

[140]

In
R. v.
    Thatcher
, [1987] 1 S.C.R. 652, the Crown at trial relied on two
    alternative bases to prove Thatcher was guilty of first degree murder. The
    first, that Thatcher was the perpetrator, required proof of Thatchers presence
    at the time his ex-wife was shot and killed. The second, that Thatcher aided or
    abetted another who actually killed the deceased, did not require Thatchers
    presence at the time and place of the killing.

[141]

The Supreme
    Court decided that, assuming an evidentiary predicate for these alternative
    routes to liability, an accused could be found guilty provided all jurors were
    satisfied, on one basis or the other, that the accused committed the offence.
    Put differently, the law does not require jury unanimity as to the particular
    nature of an accuseds participation in the offence:
Thatcher
, at pp.
    698-699. Since the evidence supporting one basis of liability would not
    necessarily be the same as that supporting another, it necessarily follows that
    jurors need not be unanimous upon the evidentiary predicate on which each
    relies to reach his or her verdict. Nor do individual items of evidence need to
    meet the criminal standard of proof:
R. v. Morin
, [1988] 2 S.C.R. 345,
    at pp. 354-355;
R. v. Ménard
, [1998] 2 S.C.R. 109, at para. 23.

The Decision Tree

[142]

A decision tree
    is not a jury instruction. It is a deliberation aid that assists jurors in
    organizing their deliberations in the same sequence as the step-directions
    provided in the charge. The questions posed in the charge and those depicted in
    the decision tree are the same. The charge also makes it clear that the burden
    of proving the element referred to in each question rests upon the Crown and
    the standard of proof required for each is proof beyond a reasonable doubt.

[143]

In
R. v.
    Spanvier
, 2006 SKCA 139, 215 C.C.C. (3d) 555, the Saskatchewan Court of
    Appeal suggested a notation clarifying the burden and standard of proof would
    have been helpful in a decision tree provided to jurors:
Spanvier
, at
    para. 41. The Court went on to conclude, however, that the instructions of the
    trial judge, which stressed the requirement that the Crown had to prove each
    essential element, reflected in the questions posed in the decision tree,
    beyond a reasonable doubt, would not have left the jury under any
    misapprehension about either the burden or standard of proof:
Spanvier
,
    at para. 42.

The Principles
    Applied

[144]

I would not give
    effect to this ground of appeal. I am not persuaded that either the substance
    of the
Vetrovec
instruction or the other alleged errors said to dilute
    its force failed to convey to the jury the appropriate degree of caution
    required for the testimony of Balogh and Sitte.

[145]

I will begin
    with the complaint about the substance of the
Vetrovec
instruction. I
    would reject this claim of deficiency for several reasons.

[146]

First, the
    instructions contain the essential ingredients identified by the authorities.
    They identified the witnesses to whom the special instruction applied and
    listed the reasons underlying the need for special scrutiny, most of which
    would have been obvious to the jury. The caution referred to the danger in
    finding guilt based on the unconfirmed testimony of the witnesses. The
    inclusion of the reference to the authority of the jurors to find guilt
    established on the unconfirmed evidence of those witnesses is at once legally
    correct and part of the foundation elements approved in
Khela
, at
    para. 37. The caution concluded with an instruction that jurors should look for
    evidence from other sources tending to show that the untrustworthy witnesses
    were telling the truth about the guilt of the appellant.

[147]

Second, the
    authorities make it clear that, absent some flaw, a caution with the
    characteristics approved in
Khela
and present here, is generally
    adequate.

[148]

Third, the
    language used and the nature and strength of the warning are matters within the
    discretion of the trial judge and are entitled to substantial deference.
    Nothing said or left unsaid in the caution resulted in any failure to convey
    the appropriate degree of caution required for the testimony of either witness.

[149]

Fourth, the
    assessment of the adequacy of the caution is not limited to the bare words of
    the caution itself. The context of the evidence as a whole and the trial itself
    are also important. The central focus of the trial and counsels submissions
    (quite properly) was the credibility of these witnesses and the reliability of
    their evidence. The jurors could not have failed to appreciate the need for
    careful scrutiny of their testimony.

[150]

Fifth, our
    precedents counsel restraint when the essence of the complaint about a
Vetrovec
caution is that it was not strong or detailed enough. While undoubtedly
    accurate in some cases, such a complaint misses the mark in many others and risks
    a return to the ritualistic incantation approach abandoned in
Vetrovec
.

[151]

Finally, an
    essential feature of appellate scrutiny is a healthy appreciation of the scope
    of appellate review. Functional, not mechanistic. Substance, not form. Message,
    not medium. Proper, not perfect. This
Vetrovec
instruction was
    adequate to the task undertaken.

[152]

I am not
    persuaded that the specific complaints advanced as dilutants of the
Vetrovec
caution render it inadequate.

[153]

The instruction
    about the presumption of truthfulness or honesty among witnesses was wrong. We
    recognize no such presumption. Indeed, experience teaches otherwise. But, as in
Luciano
, the balance of the instruction focused correctly on the
    credibility of the main witnesses and the reliability of their evidence. A few
    words at the beginning of a sentence about a presumption of honesty would be
    long forgotten in the face of a protracted discussion of the lies told by those
    whose testimony was central to the demonstration of guilt and whose honesty was
    under attack.

[154]

Second, the
    instruction that distinguished between the evidentiary value of questions and
    answers was legally correct and essential in a case such as this in which
    several suggestions were put (not at all improperly) to Balogh and Sitte, but
    denied by each of them. Perhaps a case may arise in which frequent or constant
    reference to this distinction dilutes the force of a
Vetrovec
caution
    or otherwise causes unfairness, but that is not this case. Neither the fact nor
    frequency of such references ascends to that level here. Nor did it attract an
    objection at trial by very experienced trial counsel.

[155]

Third, the
    complaint about the effect of the legally correct
Thatcher
-like
    instruction also falls on barren ground. The jurors were properly apprised of
    the issues on which unanimity was and those on which unanimity was not
    necessary. This distinction was legally correct and did not compromise the
    force of the
Vetrovec
instruction.

[156]

Fourth, the
    decision tree provided as a deliberation aid for jurors, and the instructions
    about its use and the requirements of proof, did not compromise the
Vetrovec
caution. The jurors were clearly instructed about the obligation of the Crown
    to prove each essential element, as replicated in the questions posed during
    the charge and repeated in the decision tree. The consequences of a reasonable
    doubt on each issue, as well as the absence of a reasonable doubt on the same
    issue, were clearly explained. To include additional references such as uncertain
    or unable to decide in a decision tree, in light of the instructions given
    about their use and the burden and standard of proof, misunderstands the
    purpose of decision trees. Decision trees are not jury instructions or their
    surrogates. Jurors consider the instructions and decision trees as part of a
    package.

Ground #3: The Instruction on Fabricated Evidence

[157]

The appellant
    advances a further complaint about the substance of the trial judges charge to
    the jury. Its focus is what the trial judge told the jury about how they could
    use evidence of a fabricated statement to support an inference of guilt.

[158]

The instruction
    has its genesis in exculpatory statements made by the appellant to
    representatives of his insurer and to the police about the origins of the fire
    that destroyed his home and impeded some aspects of the investigation into the
    unlawful death of Katlin Cousineau. The Crown tendered these exculpatory statements
    as part of its case-in-chief and sought to establish that they had been
    fabricated to divert or deflect suspicion from the appellant in the unlawful
    killing of the deceased.

[159]

At trial,
    experienced defence counsel agreed that an instruction on fabricated evidence
    was appropriate, but he objected to the substance of the instruction that was
    ultimately given.

The Issue at
    Trial

[160]

The real issue
    at trial was whether there was any independent evidence to establish that the
    statements were fabricated as opposed to statements that the jury might simply
    disbelieve.

The Jury Instruction

[161]

In his charge
    to the jury, the trial judge invited the jury to consider several factors as
    capable of furnishing the independent evidence of fabrication required to
    determine whether the statements were fabricated. The trial judge said:

If you are satisfied that Paul Bradey's statements and assertions
    are false you must then decide whether the statements and assertions that you
    find to be unbelievable are fabricated. You may consider the following factors
    which are capable of furnishing the independent evidence of fabrication to
    determine whether he was fabricating those statements:

(1)

All of Paul Bradeys statements
    and assertions in them were voluntary;

(2)

Consider whether what he said in
    his statements  and  assertions was the result of his own initiative, or
    whether it was the result of  an  inquiry focused to elicit information from
    him and designed to confirm known or suspected facts;

(3)

Consider whether his statements
    contained precise details and specifics or whether his assertions were vague
    generalities;

(4)

Consider whether he had time to
    think and make up a concocted story, or whether he had opportunity to change
    his story over time to meet new developments as they came to light;

(5)

Consider whether he was aware that
    he was a suspect at the time he made the statement;

(6)

Consider whether he included in
    his statement facts that the police did not know or had not yet discovered.

If the answers to all, one, or any combination of these factors
    enable you to find that he was fabricating his statements, then you must next
    go on to consider the reason why he fabricated the evidence. You must then
    determine whether he fabricated his statements because he knew he was involved
    in the unlawful death of Katlin and he was attempting to avoid detection.

[162]

The trial judge
    then continued to review six other areas of the appellants statements that
    could be disbelieved because they were contradicted by other evidence.

The Arguments on Appeal

[163]

The appellant
    says that the trial judge properly distinguished, as the authorities require,
    between disbelief of an exculpatory statement and proof that the statement was
    fabricated. He recognized that to establish fabrication of a statement required
    independent evidence, but the evidence to which he referred the jury could not
    be characterized as independent. Further, the trial judge failed to clearly
    instruct the jury that if they disbelieved the statements and found them to
    have been fabricated on their consideration of independent evidence, such as
    the voluntariness of the statements, they could consider the substance of the
    statements themselves to determine whether they provided positive evidence of
    guilt.

[164]

The respondent
    contends that it was common ground at trial that if the jury disbelieved the
    out-of-court statements, they could go on to consider whether the appellant had
    fabricated the statements because he had participated in the offence charged.
    Fabrication, everyone agreed, could only be established by independent
    evidence. In other words, something beyond mere disbelief was required. The
    respondent acknowledged an error, or at least confusion in the reference to independent
    evidence in the original charge, but says this was cleared up in the
    re-charge. In every event, it was made clear that use of this evidence was
    contingent on proof of fabrication, not simply disbelief. On these facts, that
    was enough.

The Governing Principles

[165]

Evidence of what
    an accused has said or done after an offence has been committed is often a
    vital part of the case for the Crown. This is circumstantial evidence that
    looks backward from what happened later to something that occurred before.

[166]

The subsequent
    conduct may take several forms. Flight. Destruction of evidence. Change of
    appearance. Recruitment of others to provide a false alibi. Much of the
    evidence that describes what an accused has said or done after an offence has
    been committed enters a trial without objection as an essential part of the
    narrative of relevant events:
R. v. White
, 2011 SCC 13, [2011] 1
    S.C.R. 433, at para. 140.

[167]

Sometimes, as
    here, Crown counsel will introduce, as part of the Crowns case-in-chief,
    evidence of exculpatory statements made by an accused after the offence. The
    recipients vary. The Crown does not suggest that the statements are true. Quite
    the opposite. The Crown invites the trier of fact to conclude not only that the
    statements are false, but also that they were
fabricated
by the
    accused in an effort to avoid culpability and thus constitute circumstantial
    evidence of guilt:
R. v. Coutts
(1998), 40 O.R. (3d) 198 (C.A.), at
    para. 13. We distinguish between an exculpatory statement that is disbelieved,
    and thus rejected by the trier of fact, and one that can be found to have been
    fabricated, concocted to avoid culpability:
Coutts
, at para. 13;
R.
    v. OConnor
(2002) 62 O.R. (3d) 263 (C.A.), at para. 17 (later
OConnor
(2002)).

[168]

The distinction
    between exculpatory evidence that is disbelieved, on the one hand, and
    exculpatory evidence that is found to have been fabricated or concocted, on the
    other, often arises where the exculpatory explanation is an alibi. But the
    distinction extends to any exculpatory statement:
OConnor
(2002), at
    para. 18.

[169]

An alibi or
    other exculpatory statement that is disbelieved is not and does not become an
    item of evidence that adds to the strength of the case for the Crown:
OConnor
(2002), at para. 17. On the other hand, where the Crown adduces evidence
    from which the trier of fact can infer that the exculpatory explanation has
    been fabricated, that evidence is capable of supporting an inference of guilt:
OConnor
(2002), at para. 17;
Coutts
, at para. 13.

[170]

If the
    disbelieved statement is not an alibi, we must consider the content of what it
    is that is disbelieved and the connection of the disbelieved statement to the
    offence charged:
OConnor
(2002), at para. 18.

[171]

In many, if not
    most, cases, a trier of fact may logically infer fabrication from disbelief.
    But the policy that underpins the distinction between disbelief and fabrication
    sets its face against using disbelief to infer fabrication. Instead, to
    establish fabrication, we insist on evidence that is
independent
of
    the evidence that contradicts or discredits the exculpatory explanation:
OConnor
(2002), at para. 21;
Coutts
, at para. 16.

[172]

Evidence of
    fabrication may emerge from the circumstances in which the disbelieved
    out-of-court statement was made:
OConnor
(2002), at para. 24. For
    example, the circumstances in which a false statement was made may show an
    intent to mislead the police or others or an intent to deflect suspicion from
    the maker of the statement or towards others:
OConnor
(2002), at
    para. 26.

[173]

The decision in
OConnor
(2002) affords some examples of circumstances in which a statement was made
    that might assist in proving that the statement was fabricated:

i.

the timing of the statement, for example that the accused provided the
    statement at a time when the police did not suspect or have any reason to
    suspect the involvement of the accused;

ii.

the scope of the exculpation provided by the statement; and

iii.

the degree of detail provided in the statement:
OConnor
(2002),
    at para. 31.

[174]

Where a judge
    concludes that there is independent evidence of fabrication of an exculpatory
    out-of-court statement, the judge should instruct the jury that it is open to
    them to find that the accused fabricated the exculpatory explanation
because
he or she was conscious of having done what it is alleged and that they may use
    that finding together with other evidence in deciding whether the Crown has
    proven an accused guilty beyond a reasonable doubt:
OConnor
(2002),
    at para. 37.

The Principles
    Applied

[175]

I would not give
    effect to this ground of appeal. Despite some faults in the charge, I am
    satisfied that jurors were not misled on this issue.

[176]

It was common
    ground at trial that a fabricated evidence instruction was appropriate and
    required in connection with the appellants pre-arrest but post-offence
    statements to representatives of his insurer and to the police. He was not a
    suspect at the time of the statements nor did the police have reasonable and
    probable grounds to suspect his involvement.

[177]

It was also
    common ground at trial that the evidence that could support a finding that the
    exculpatory statements were fabricated and not simply false was evidence of the
    circumstances in which the statements were made. The appellant acknowledges
    that the six factors listed by the trial judge in his final instructions, as
    circumstances about the making of the statements that were relevant to
    establish that the statements were fabricated, were correct.

[178]

The principal
    complaints about the instructions on this issue appear to be that the use of
    the term independent in relation to the origin of evidence to demonstrate
    fabrication was confusing when the source was the circumstances surrounding the
    statements themselves. And that some of the evidence mentioned showed no more
    than that the statements were false, unworthy of belief.

[179]

The term
    independent designates a quality items of evidence are to have to permit
    their use by the trier of fact in making a finding that an item of exculpatory
    evidence the trier has found to be untrue has been fabricated. In cases in
    which the evidence relied upon to establish fabrication originates in a source
    extrinsic to the circumstances in which the statement was made, the use of
    independent is apt. Where the evidence to establish fabrication originates in
    the circumstances surrounding the disbelieved and allegedly fabricated
    statement, however, it might be better to avoid the term independent in final
    instructions in favour of a simple recital of the relevant circumstances.

[180]

In this case,
    where the trial judge listed six admittedly appropriate factors emerging from
    the circumstances in which the disbelieved and allegedly fabricated statements
    were made as a basis to find fabrication, I am satisfied that the added
    descriptive independent would not confuse the jurors or compromise unfairly
    an otherwise correct instruction.

[181]

Further, despite
    the later erroneous evidentiary references, to which no objection was taken at
    trial, I am satisfied that, read as a whole, the instructions did not whittle
    down the requirement that the jury find that any exculpatory statements they
    disbelieved were fabricated before they could use the evidence in finding guilt
    established.

Ground #4: An Unbalanced Charge

The Arguments
    on Appeal

[182]

The final ground
    of appeal alleges that the charge to the jury was unbalanced, reflecting the
    trial judges thinly-veiled view about the appellants guilt. The appellant
    made no submissions in oral argument in connection with this ground, simply relying
    on his factum. The respondent did likewise.

[183]

In general
    terms, the appellant recycles his complaints about the inadequacies of the
    instructions on the credibility of the witnesses Balogh and Sitte and adds
    complaints about inferences the trial judge suggested could or could not be
    drawn from the telephone records filed as exhibits and the manner in which the
    trial judge treated some submissions made by trial counsel in his closing
    address to the jury.

The Governing
    Principles

[184]

It is well
    established that a jury charge should be even-handed, the instructions fair and
    balanced. A jury charge should not be a partisan broadcast:
R. v. Huard
,
    2013 ONCA 650, 302 C.C.C. (3d) 469, at para. 69;
R. v. Largie
, 2010
    ONCA 548, 101 O.R. (3d) 561, at para. 127;
R. v. Baltovich
(2004), 73
    O.R. (3d) 481 (C.A.), at paras. 117-18. The purpose of a jury charge is to
    educate the decision-maker so that it will make an informed decision, not to
    tell the decision-maker what decision to make.

[185]

Further,
    although it is open to a trial judge to outline inferences that may or may not
    be available from some circumstantial evidence adduced at trial, no obligation
    is imposed on a trial judge to catalogue all available inferences from each
    piece of evidence:
Huard
, at para. 71.

[186]

Finally,
    although failure to object to a jury charge on a ground later said to amount to
    a fatal flaw is not dispositive on appeal, the failure to object affords some
    evidence that trial counsel, an ear and eye witness to the trial proceedings,
    including the charge to the jury, did not consider the charge unfair,
    incomplete or unbalanced as later alleged:
Huard
, at para. 74;
Jacquard
,
    at paras. 35-37. It is especially so where counsel has had ample opportunity to
    review drafts of proposed instructions and ample time to offer suggestions for
    inclusions, deletions and improvements to ensure fairness and even-endedness:
Huard
,
    at para. 74.

The Principles
    Applied

[187]

In my respectful
    view, the appellants submissions on this ground fall well short of what is
    required to justify our intervention. The instructions, taken as a whole and in
    the context of the trial, did not depart from what is required to the extent
    necessary to warrant our intervention.

CONCLUSION

[188]

For these
    reasons, I would dismiss the appeal.

Released: November 3, 2015 (DW)

David
    Watt J.A.

I
    agree K.M. Weiler J.A.

I
    agree Gloria Epstein J.A.

Appendix A

DECISION TREE

CONSTRUCTIVE FIRST
    DEGREE MURDER

Did
Paul Bradey
cause
Katlin Cousineau
s death

No

Final
          Verdict: Not Guilty

Yes

Did
          Paul Bradey

cause
Katlin Cousineau
s death
unlawfully
?

No

Final
          Verdict: Not Guilty

Yes

Did
Paul Bradey
have the state of mind required for murder?

No

Final
          Verdict:

Not
          Guilty of First Degree Murder, but Guilty of Manslaughter

Yes

Did
Paul Bradey
do something that was an
essential
,
substantial
and
integral
part of the killing of
Katlin Cousineau
?

No

Final
          Verdict:

Not
          Guilty of First Degree Murder, but Guilty of Second Degree Murder

Yes

Did
Paul Bradey unlawfully confine Katlin Cousineau
?

No

Final
          Verdict:

Not
          Guilty of First Degree Murder, but Guilty of Second Degree Murder

Yes

Were
          the unlawful confinement and murder of
Katlin Cousineau
part of the
          same series of events?

No

Final
          Verdict:

Not
          Guilty of First Degree Murder, but Guilty of Second Degree Murder

Yes

Final
          Verdict:

Guilty
          of First Degree Murder

[1]

Katlin St. Amand was Katlin Cousineaus married name.

[2]
I have attached the decision tree as Appendix A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2015 ONCA 782

DATE: 20151118

DOCKET: C54597

Doherty, Laskin and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dean Dylan Brown

Appellant

Timothy E. Breen and Cate Martell, for the appellant

Benita Wassenaar, for the Respondent

Heard: November 10, 2015

On appeal from the convictions on two counts of first
    degree murder and one count of attempted murder returned by a jury presided
    over by Justice R. Byers of the Superior Court of Justice at Picton, Ontario on
    October 19, 2011.

By the
    Court:

I

[1]

The appellant was convicted of one count of attempted murder (Shannon
    Hannah) and two counts of first degree murder (Whitney Hannah and Tracy
    Hannah).  He appeals from the convictions on the first degree murder charges
    and asks this court to substitute convictions for second degree murder.

[2]

Counsel for the appellant has ably advanced two grounds of appeal.  She
    submits that the instruction on intoxication as it relates to planning and
    deliberation was inadequate.  She also submits that the trial judge unfairly
    commented on the evidence of the defence toxicologist and, in doing so,
    significantly diminished the potential value of his evidence to the defence.

[3]

The court called on the Crown on the first but not the second issue.  At
    the end of oral argument, the court advised counsel that the appeal was
    dismissed with reasons to follow.  These are those reasons.

II

[4]

The appellant and Shannon Hannah had been boyfriend and girlfriend for a
    number of years.  The relationship ended in the early part of 2010.  The
    appellant, who had initiated the break up, wanted to get back together with
    Shannon a couple of weeks later.  Shannon was not interested.

[5]

In the early morning hours of March 11, 2010, the appellant arrived,
    uninvited, at the Hannah home.  Tracy Hannah was at home with her two
    daughters, Whitney age 14 and Shannon, and a friend of Whitneys.  Mr. Hannah
    was at work.

[6]

The appellant had been drinking for several hours with friends.  He had
    also been texting Shannon throughout the evening.  She had made it clear she
    had no interest in seeing him.

[7]

Sometime after the appellants arrival, Tracy persuaded the appellant to
    let her drive him home.  Part way to the appellants home, he decided to get out
    of Tracys vehicle and walk back to the Hannah home.  Tracy drove home arriving
    there before the appellant.  She was in the basement getting ready for work
    when the appellant arrived back at the Hannah household at around 6:00 a.m.

[8]

Shortly after the appellant arrived back at the Hannah household, Tracy awoke
    her daughter, Shannon.  Tracy was clearly very upset and had a cut on her
    forehead.  She told Shannon that the appellant had raped her and asked Shannon
    to call the police.

[9]

Shannon was in the kitchen speaking to the 9-1-1 operator when she saw
    the appellant coming up the stairs armed with her fathers shotgun.  The
    appellant had retrieved the shotgun from the garage and loaded it with three
    shells.  He had put a fourth shell in his pocket.  In his statement to the
    police, he explained that he had four shells for the four people in the house.

[10]

Shannon
    testified that when the appellant got to the top of the stairs, he opened
    fire.  First, he shot Shannon in the neck seriously wounding her.  Next, he
    shot Whitney in the face, killing her instantly.  Finally, the appellant shot
    Tracy in the back as she turned and headed down the stairs.  Tracy died from
    her injuries.  All of the shots were fired from very close range.  After the
    appellant had shot Shannon, Whitney and Tracy, he apologized to Shannon, kissed
    her, said sorry I had to do this, left the house and drove away.  He told the
    police that he decided not to shoot Whitneys friend because he had already ripped
    apart one family.

[11]

The
    appellant testified and admitted shooting the victims.  He denied that he
    intended to kill anyone, relying on evidence that he was despondent over the
    breakup with Shannon, had been drinking heavily, had consumed Ecstasy, and was
    very angry at Tracy who had told him that he could no longer see Shannon.  According
    to the appellant, when Tracy told him that he could no longer have anything to
    do with Shannon, he lost his temper and attacked Tracy. The attack occurred in
    the basement bathroom shortly after the appellant walked back to the Hannah house
    at about 6:00 a.m.

[12]

In
    his testimony the appellant denied sexually assaulting Tracy. He testified that
    they had consensual sex sometime earlier before they left for his home. He also
    testified that he and Tracy had been involved in an ongoing sexual relationship
    for some time. The appellant had not mentioned either the ongoing relationship,
    or the consensual sexual activity on the day of the homicides, in his statement
    to the police.

[13]

The
    Crown argued that no consensual sexual relationship existed and that the
    appellant had brutally sexually assaulted Tracy immediately before retrieving
    the shotgun from the garage and shooting Shannon, Whitney and Tracy. As well as
    Tracys statement to Shannon, forensic evidence offered significant support for
    the Crowns contention.

THE GROUNDS OF APPEAL

(i)

The instruction on intoxication as it related to planning and
    deliberation

[14]

It
    is helpful to begin a consideration of this ground of appeal by setting out the
    instructions that the trial judge properly provided to the jury. He correctly instructed
    the jury on the issue of intoxication as it related to the intent required for
    murder under s. 229(a) of the
Criminal Code
.  He thoroughly and
    even-handedly reviewed the evidence of intoxication in the course of his
    instructions on the intent required for murder. The trial judge also gave to the
    jury the correct definitions of planning and deliberation and told the jury
    that evidence of intoxication was relevant to whether the Crown had proved planning
    and deliberation.

[15]

Counsel
    contends that the trial judge failed to make it clear to the jury that even if
    the evidence of intoxication did not leave the jury with a reasonable doubt on
    the issue of intention under s. 229(a), the jury must consider whether the same
    evidence left the jury with a reasonable doubt on either planning or deliberation.
    Counsel argues that the trial judge should have told the jury that the degree
    of intoxication needed to leave the jury with a reasonable doubt in respect of
    planning or deliberation may be less than the degree of intoxication required
    to leave the jury with a reasonable doubt on the issue of intent under s.
    229(a).

[16]

The
    applicable law comes from
R. v. Wallen
, [1990] 1 S.C.R. 827. McLachlin
    J., speaking for the majority, on this point, said at para. 38:

The judge was obliged to instruct the jury on the legal
    requirements for first degree murder.  He was required to explain to the jury
    what is required for a finding that the murder was planned and deliberate.  He
    was obliged to tell them that in determining whether those requirements were
    met they should consider the accuseds intoxication, and that this
    consideration is separate and distinct from consideration of his intoxication
    with respect to the capacity to form the intent to murder.  Those are the
    essential legal instructions.  The degree of drunkenness required to negative
    capacity to formulate and carry out a plan is a question of fact for the jury.
    In deciding this question the jury will take into account the complexity of the
    plan and the degree of intoxication demonstrated by the evidence.  It is
    evident to anyone who directs his mind to the matter that the degree of
    intoxication required to negative capacity to plan and execute a murder may be
    less than the degree required to negative intent to kill.  While it might be
    useful to tell the jury this expressly, failure to do so is insufficient to
    vitiate the charge, the matter being one of fact rather than law and one with
    which the jury is quite capable of dealing provided it has been properly
    instructed on the legal elements I have mentioned as well the facts.

[17]

The
    instructions provided by the trial judge contain all of the essential legal
    instructions described by McLachlin J. in the above quoted passage. The trial
    judge chose not to make a comparison between the degree of intoxication
    required to leave the jury with a reasonable doubt on planning or deliberation
    and the degree of intoxication required to leave a reasonable doubt on the
    issue of intent. As McLachlin J. states, the failure to make this comparison
    for the jury does not vitiate the charge. A jury is capable, having been
    given the proper definitions of planning and deliberation and heard the
    evidence of the nature of the planning alleged and the evidence of intoxication,
    of determining the effect, if any, of intoxication on the Crowns claim that
    the appellant planned and deliberated upon the commission of the murder.

[18]

As
    the passage quoted from
Wallen
makes clear, the essential message to
    the jury is that intoxication applies separately to the issue of intent and the
    issue of planning and deliberation. The jury must consider the evidence of
    intoxication in respect of those issues separately. A jurys finding that the
    accused had the intent required for murder despite the evidence of
    intoxication, is not determinative of whether the same evidence leads to a
    reasonable doubt on the issues of planning and deliberation.

[19]

The
    language used by the trial judge and the manner in which the trial judge
    structured his instructions, clearly conveyed to the jury that it must consider
    the impact of intoxication on planning and deliberation even though the jury
    was satisfied that intoxication did not affect the formation of the intent
    required for murder. The potential impact of the evidence of intoxication on
    planning and deliberation would be equally clear to the jury in light of the
    concise, straightforward definitions of planning and deliberation given to them
    by the trial judge.

(ii)

The trial judges comments on the evidence of the defence toxicologist

[20]

Counsel
    submits that the trial judge made two comments on the evidence of the defence
    toxicologist which amounted to an unwarranted intrusion on the jurys
    fact-finding responsibilities and unfairly undermined the case for the defence.

[21]

We
    see no need to set out the specific passages referred to by counsel. Both
    comments made by the trial judge were supported by the evidence and neither
    unfairly diminished the evidence of the toxicologist, or undermined the
    position advanced by the defence.

[22]

In
    rejecting this ground of appeal we make two additional observations. First, the
    charge as a whole was balanced and even-handed. On any objective view this
    charge cannot be read as an attempt by the trial judge to point the jury in any
    particular direction. Second, trial counsel made no objection to either comment
    made by the trial judge. If the comments by the trial judge had the disastrous
    effect on the defence now argued by counsel, surely experienced trial counsel
    would have said something.

III

[23]

The
    appeal is dismissed. We do not reach the application of the curative proviso as
    we find no error in law. We do however acknowledge the force of Crown counsels
    submission that the Crowns case on the first degree murder charges was so
    overwhelming as to render harmless any error in the instruction on intoxication
    as it related to planning and deliberation.

Released: DD  NOV 18 2015

Doherty J.A.

John Laskin J.A.

M. Tulloch J.A.