COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Moffit, 2015 ONCA 412

DATE: 20150609

DOCKET: C51929

Doherty, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Moffit

Appellant

Ian R. Smith, for the appellant

Christine Tier, for the respondent

Heard: September 25, 2014

On appeal from the conviction entered by Justice Joseph
    M. W. Donohue of the Superior Court of Justice, sitting with a jury, on June
    18, 2009.

Tulloch J.A.:

A.

Overview

[1]

Following a trial by judge and jury, the appellant, Thomas Moffit was
    convicted of second degree murder for the death of his domestic partner,
    Shelley Marie Mathieu-Read, and was sentenced to life imprisonment without
    eligibility for parole for at least 17 years. Ms. Mathieu-Read had not been
    seen or heard from since May 20, 2007. Her body was never found.

[2]

The Crowns case at trial relied heavily on the testimony of the
    appellants sister, Kathy Long, to whom the appellant had apparently confessed
    his role in Ms. Mathieu-Reads disappearance. The appellant argued the Crown
    had failed to prove both that Ms. Mathieu-Read was dead and that he was
    involved in her death. In the alternative, he submitted that if the jury was
    satisfied that Ms. Mathieu-Read was dead, and that he caused her death, the
    jury should find him guilty of manslaughter and not murder.

[3]

The appellant raised six grounds of appeal in his factum, but only
    argued four in oral argument.  As he did not explicitly abandon any of his
    arguments, I have addressed all of them below. The arguments advanced by the
    appellant are the following:

1.       The verdict was unreasonable;

2.       The trial judge erred in his
    instructions to the jury   on several points, namely:

(a) The appellants conduct before and
    after the killing;

(b) The appellants statement to Kathy
    Long;

(c) The caution on Kathy Longs
    evidence; and

(d) The charge on manslaughter; and

3.       The trial judge should have
    ordered a mistrial         after the jury heard irrelevant and prejudicial  evidence.

[4]

For the reasons that follow, I would not give effect to any of these
    grounds of appeal.

B.

Factual
    Background

[5]

Shelley Marie Mathieu-Read disappeared in May 2007. She has been
    presumed dead for several years now. The location of her body remains unknown.
    In the months prior to her disappearance, Ms. Mathieu-Read was living in an
    apartment with her then-domestic partner, Thomas Moffit, the appellant.

[6]

In June 2007, the appellants sister, Kathy Long, told a former friend,
    Erin Fox, that the appellant had killed Ms. Mathieu-Read.  Ms. Fox believed the
    story was fabricated, but in August 2007, after reading of Ms. Mathieu-Reads
    disappearance, Ms. Fox contacted the police.  Ms. Long initially told the
    police she had lied to Ms. Fox, but she later recanted and implicated her
    brother in Ms. Mathieu-Reads death.

[7]

Ms. Long told police  and testified at the appellants trial  that one
    Friday night in May 2007, the appellant called her and asked to meet at a bar
    called the Puck Around.  She agreed.  While the appellant had sounded sober and
    happy on the phone, when Ms. Long arrived at the bar, the appellant was drunk.
    The appellant told her that Ms. Mathieu-Read was never coming back.  He then
    went on to relay to her the circumstances of Ms. Mathieu-Reads death.

[8]

According to Ms. Long, the appellant told her that Ms. Mathieu-Read was
    running down the hall in their apartment building to call the police on him.
    He followed her.  He grabbed her by her hair at the back of her head, turned
    her head around and broke her neck.

[9]

The appellant told Ms. Long that [s]he looked up at [him] with big dead
    eyes and he could not believe it was that easy to break somebodys neck.  In
    Ms. Longs opinion, the appellant seemed surprised that Ms. Mathieu-Read had
    died.

[10]

Ms.
    Long testified the appellant told her he then dragged Ms. Mathieu-Reads body
    back to their apartment.  He placed her on a chair and left her there.

[11]

During
    the conversation between the appellant and Ms. Long, he asked to borrow her
    truck.  He wanted to use it to transport Ms. Mathieu-Reads body to bury her.
    Ms. Long refused as she was unsure whether to believe the appellant.  She
    suggested that if he had killed Ms. Mathieu-Read as he described, it was an
    accident, and he should contact the police.  The appellant then became angry.
    At one point, he told Ms. Long that Ms. Mathieu-Read was, nothing but a drug
    addict and a whore and nobodyll miss her anyway.

[12]

The
    appellant called Ms. Long the next day and again asked to borrow her truck.
    Again, she refused.  The appellant called the following day and told Ms. Long
    he needed the truck because Ms. Mathieu-Reads body, which he had put in a box,
    was starting to leak. He said that he put Ms. Mathieu-Read in a box but he
    could not get her foot in and he wasnt that sick to cut it off. Ms. Long
    refused his request for the truck, but told the appellant she would lend him
    the truck if he called her while sober.

[13]

The
    next morning, the appellant called Ms. Long.  This time he was sober, and Ms.
    Long agreed to lend him her truck.  He told her he intended to dig a hole
    during the day, and then bury Ms. Mathieu-Read in it after dark.  That day, Ms.
    Long lent the appellant her truck. She also lent him a wheelbarrow and a
    shovel.  He returned the truck at around 10:30 in the evening.  Ms. Long then
    drove him home.  While on their way, Ms. Long and the appellant stopped twice:
    first, to leave his pants and boots in a ditch, and second, to dispose of a
    blanket in a creek.  Ms. Long later led the police to the pants, boots and
    blanket.

The Appellants Trial

[14]

As
    a result of Ms. Longs statements to police, the appellant was charged with
    second degree murder.  Ms. Long was charged as an accessory after the fact to
    Ms. Mathieu-Reads murder, and her testimony was central to the Crowns case
    against the appellant.

[15]

Evidence
    was adduced at trial regarding the nature of the relationship between the
    appellant and Ms. Mathieu-Read.  In the months leading up to Ms. Mathieu-Reads
    disappearance, the police had been called multiple times to deal with disputes
    between the couple.  On March 1, 2007, Ms. Mathieu-Read provided a written
    statement to police alleging the appellant assaulted her and threatened to kill
    her.

[16]

Robin
    Hardman, Ms. Mathieu-Reads daughter, testified at the appellants trial.  At
    one point, Crown counsel asked her a question about the state of the
    relationship between Ms. Mathieu-Read and the appellant, apparently attempting
    to determine whether the relationship was on or off at a particular time.
    Ms. Hardman misunderstood the question, and responded that the relationship was
    abusive.  She later stated she knew the appellant had hurt Ms. Mathieu-Read
    in the past.

[17]

Evidence
    was also adduced, at times unintentionally, about the appellants character and
    criminal record.  During her testimony, Ms. Long mentioned twice that the
    appellant had been in jail before.  She nearly referred to an allegation that
    the appellant had killed someone while in jail, but was stopped by counsel
    before doing so.  When counsel asked Ms. Long how she felt about the appellant,
    Ms. Long alleged the appellant had attempted to sexually assault her daughter.

[18]

A
    video of the appellants booking at the police station was also introduced into
    evidence.  In the video, the appellant stated he was banned from firearms and
    he had a terrible record.

[19]

The
    trial judge gave cautionary instructions on all of this evidence which the
    appellant submits were inadequate.  I will discuss this issue in greater detail
    subsequently in these reasons.

C.

Grounds of Appeal

[20]

As
    stated above, the appellant raises six grounds of appeal. Below, I address the
    appellants submission that the verdict was unreasonable. I then consider each
    of the appellants grounds of appeal relating to the trial judges instructions
    to the jury. Finally, I review the appellants argument that the trial judge
    should have granted a mistrial after the jury heard certain prejudicial
    evidence, because no instruction could have remedied the prejudice.

(1)

Unreasonable Verdict

[21]

The
    appellant submits that no jury, properly instructed and acting judicially,
    could reasonably have rendered a verdict of guilty of second degree murder, as
    there was no evidence that he had the
mens rea
required for murder.
    The appellant notes that the Crown was required to establish either that the
    appellant intended to cause Ms. Mathieu-Reads death  under s. 229(a)(i) of
    the
Criminal Code
, R.S.C. 1985, c. C-46  or that he intended to cause
    bodily harm that he knew was likely to cause death and was reckless as to
    whether death ensued or not  under s. 229(a)(ii).

[22]

The
    appellant argues that Ms. Longs evidence of his confession was not capable of
    giving rise to a reasonable inference of intention or recklessness because this
    evidence indicated the appellant was surprised that his actions caused Ms.
    Mathieu-Reads death. The appellant points to his comment to Ms. Long that he couldnt
    believe it was that easy to break somebodys neck and to Ms. Longs evidence
    that the appellant appeared surprised that Ms. Mathieu-Read had died.  He
    further argues that none of the evidence of his conduct before or after the
    killing could support an inference of intention or recklessness.

[23]

I
    would reject this argument. It was open to the jury to infer the appellant
    either intended to cause death or intended to cause bodily harm likely to cause
    death and was reckless as to whether death ensued. Ms. Longs evidence was
    capable of supporting more than one reasonable inference. The verdict was not
    unreasonable.

Analysis

[24]

The
    general test for the reasonableness of a jurys verdict is well-established and
    undisputed.  A verdict will be unreasonable or unsupported on the evidence if
    it is one that a properly instructed jury acting judicially could not
    reasonably have rendered:
R. v. W.H.
, 2013 SCC 22, [2013] 2 S.C.R.
    180, at para. 26.

[25]

An
    appellate court is not a 13
th
juror. A verdict will not be
    unreasonable simply because an appellate court may have a reasonable doubt
    about an appellants guilt based on its review of the record:
W.H.,
at
    para. 27.  However, the task of the appellate court is greater than identifying
    some evidence which, if believed, would support the conviction.  Appellate
    courts must consider not only whether there is evidence in the record to
    support the verdict, but also whether the jury's conclusion conflicts with the
    bulk of judicial experience:
W.H.
, at para. 28.

[26]

In
    my view, not only was there evidence to support the jurys verdict, but the
    verdict does not conflict with the bulk of judicial experience.

[27]

As
    acknowledged by both parties, the jury was entitled to accept all, some, or
    none of the appellants statement to Ms. Long, I couldnt believe it was that
    easy to break somebodys neck.

[28]

If
    the jury accepted the appellants statement as true, the jury could have
    inferred the appellant was surprised that Ms. Mathieu-Read had died, but it
    would have been equally reasonable for the jury to infer that the appellant
    intended to cause death or bodily harm and did not realize that it would be so
    easy to accomplish.  If the jury accepted the second interpretation, it could
    have used this statement in conjunction with the other circumstantial evidence
    to find that the appellant had the requisite
mens rea
for second
    degree murder.

[29]

Even
    if the jury did not accept that the appellants statement to Ms. Long was made
    or considered it to be untruthful, the jury could have reasonably found the
    appellant had the
mens rea
for second degree murder based on the
    nature of the act itself and the circumstantial evidence. For example, the jury
    could have reasonably concluded that the force required to break Ms.
    Mathieu-Reads neck was consistent only with an intention to cause death or
    bodily harm likely to cause death.  There was also evidence that the appellant
    had a motive or animus to kill Ms. Mathieu-Read  to stop her from calling the
    police  which could support an inference of intention: see
R. v. Moo,
2009
    ONCA 645, 247 C.C.C. (3d) 34, at para. 98, leave to appeal to S.C.C. refused,
    [2010] S.C.C.A. No. 152.

[30]

Although
    Ms. Long testified that she thought the appellant appeared surprised that Ms.
    Mathieu-Read had died, the jury was not bound to accept that Ms. Longs
    impression was accurate.  The appellants state of mind at the time of Ms.
    Mathieu-Reads death was for the jury to decide based on all the evidence.

[31]

It
    was open to the jury to draw the above inferences and conclude on the totality
    of the evidence that the appellant had the
mens rea
for murder. It
    therefore cannot be said that the verdict is one that a properly instructed
    jury acting judicially could not reasonably have rendered. I would reject this
    ground of appeal.

(2)

The Charge to the Jury

[32]

The
    appellant submits that the instructions to the jury were inadequate for several
    reasons.  First, I will deal with his main argument, that the charge on the
    post-offence conduct evidence was inadequate and that a no probative value
    instruction was required with respect to the evidence of his conduct before the
    killing. I will then address his arguments regarding the charge on his
    statement to Ms. Long, the caution on Ms. Longs evidence and the charge on
    manslaughter.

(a)

Evidence of Post-Offence Conduct and Conduct before the Killing

[33]

The
    appellant argues that while the evidence of his post-offence conduct was
    relevant to whether he caused Ms. Mathieu-Reads death, it is equally
    consistent with manslaughter and murder and that the jury should have been
    instructed that this evidence had no probative value to the determination of
    his level of culpability. He submits the trial judges statement that it was
    his view that the post-offence conduct had no probative value was
    insufficient, considering the trial judge summarized the Crowns position that
    the post-offence conduct was relevant to the appellants state of mind.

[34]

Second,
    the appellant argues that the instruction contained the error identified in
R.
    v. Hall
, 2010 ONCA 724,
263 C.C.C. (3d) 5, leave to
    appeal to S.C.C. refused, [2010] S.C.C.A. No. 499
.

[35]

Third,
    the appellant makes a parallel argument with respect to the evidence of his
    conduct prior to the killing.  He argues that, with the possible exception of
    the death threat, none of this evidence is probative of his
mens rea
.
    With respect to the death threat, the appellant relies on
R. v. Bucik
,
    2011 ONCA 546,
274 C.C.C. (3d) 421,
at paras. 17-23,
    to argue that the jury should have been instructed that it must be satisfied
    that the appellant literally meant that he had intended to kill Ms.
    Mathieu-Read before it could use the death threat as evidence of
mens rea
.

[36]

I
    would reject each of these arguments. In my view, the trial judges
    instructions were adequate in the circumstances.

(i)

The charge on post-offence conduct

[37]

There
    was substantial evidence of post-offence conduct in this case. In my view, this
    evidence, taken cumulatively, was capable of supporting the inference urged by
    the Crown, that when the appellant killed Ms. Mathieu-Read he intended to kill
    her or intended to cause her serious bodily harm knowing it was likely to cause
    her death. I take the appellants point that some of the evidence, if
    considered in isolation, might not be capable of supporting this inference. However,
    in my view, the charge the trial judge gave adequately equipped the jury for
    the task at hand.

[38]

The
    trial judge listed the following evidence of post-offence conduct relied on by
    the Crown on the issue of the appellants state of mind:

·

He did not call out for help.

·

He did not try to revive her.

·

He did not call 911 for medical or other assistance.

·

He dragged her into the apartment and sat her in a chair and
    looked at her.

·

The only call made in evidence, eventually, to his sister to
    arrange a meeting where he asked to borrow her truck to bury Shelly Marie Mathieu-Reads
    body.

·

He commented to the sister, I couldnt believe it was that easy
    to break somebodys neck.

·

Kathy Long said it was her impression he was surprised.

·

There is no evidence that he said he was surprised.

·

There is no evidence the [appellant] said he did not mean to
    break her neck, he did not mean to kill her.

·

When Kathy Long raised the issue of possible accident the
    [appellant] never agreed with that possibility or used that word.

·

When Kathy Long offered to take him to the police station that night
    the [appellants] response according to her was that he got upset, mad and
    said, No.

·

After the Puck Around meeting with his sister, at some point he
    moved her from a chair to a box.

·

He continued to ask for the truck.

·

He repeated his need to get rid of her now because she was
    leaking and starting to smell.

·

She was in the box with her foot sticking out.

·

He told the sister of his plan to dig a hole, return when it was
    dark and put the box with Ms. Mathieu-Read in it.

·

He borrowed the truck, wheelbarrow and shovel.

·

On the way home he disposed of the blanket/comforter, his pants
    and boots.

·

He would not tell his sister where Shelleys body was.

·

He made sure by this method that she was never found and he made
    sure no one would ever be able to ascertain what really happened.

In addition to this evidence, there was also evidence
    that the appellant sounded sober and happy when he called his sister to
    arrange a meeting after killing Ms. Read, he was smiling when he told his
    sister that he had killed Ms. Read, and he told his sister that Ms. Read was
    nothing but a drug addict and a whore and nobodyll miss her anyway.

[39]

The
    trial judge instructed the jury that it could use the post-offence conduct in
    determining whether the appellant caused Ms. Mathieu-Reads death.  This much
    is uncontroversial.  Then, the trial judge went on to say:

As I will shortly explain, culpable or blameworthy homicide is
    either murder or manslaughter. If you are satisfied beyond a reasonable doubt
    that he unlawfully caused her death it is my view that the after the fact
    conduct does not help you decide the level of culpability, whether murder or
    manslaughter, because it is consistent with each level.

[40]

The
    trial judge told the jury that when considering the appellants state of mind
    at the time of the killing, it should consider all the evidence, including his
    words and conduct before, at the time and after the unlawful act that caused
    her death. Then, in the part of the charge dealing with the position of the
    Crown, the trial judge told the jury that the Crowns position was that the
    appellants state of mind at the time of the killing could be determined in
    part by what the appellant did or did not do at the time. The trial judge
    referred to the appellants failure to call for help, the evidence that he
    dragged the body into his apartment and the evidence that the first call he
    made was to Ms. Long to ask to borrow her truck.

Analysis

[41]

Post-offence
    conduct evidence is circumstantial evidence which may be probative of guilt,
    just like other circumstantial evidence. There is no special rule governing
    when evidence of post-offence conduct will be probative of guilt:
R. v.
    White
, 2011 SCC 13, [2011] S.C.R. 433,
per
Rothstein J. at paras.
    22, 36;
R. v. White
, [1998] 2 S.C.R. 72, at para. 21. Rather, the
    general rule of relevance applies.  As summarized by Laskin J.A. in
R. v.
    Angelis
, 2013 ONCA 70,
296 C.C.C. (3d) 143,
at
    para. 55:

Post-offence conduct  is not subject to blanket rules. It is
    circumstantial evidence whose probative value depends on the nature of the
    evidence, the issues at trial and the positions of the parties. Thus, we do not
    automatically label certain kinds of post-offence conduct as always or never
    relevant to a particular issue. Rather, we must consider all the circumstances of
    a case to determine whether the post-offence conduct is probative and, if so,
    what use the jury may properly make of it. In the words of Rothstein J., at
    para. 36 of
R. v. White
[2011], the overriding question is this: what
    do "logic and human experience" suggest that a jury can legitimately
    or rationally infer from the accused's post-offence conduct?

[42]

When
    post-offence conduct has no probative value with respect to a particular issue,
    the jury should be so instructed. The issue of a no probative value instruction
    frequently arises when the post-offence conduct evidence is probative of
    whether an accused person committed the
actus reus
of an offence, but
    is equally consistent with culpability for two or more offences, such as
    manslaughter and murder. A jury can consider the evidence in relation to the
actus
    reus
, but to the extent a piece of evidence is equally consistent with two
    or more offences, the jury must not consider that evidence in determining which
    of the offences was committed:
White
(2011),
per
Rothstein
    J., at paras. 37, 39.

[43]

There
    is a risk that evidence of post-offence conduct will be misused by juries,
    especially when it is not probative of an accuseds level of culpability.
    Trial judges must take care to ensure that this evidence is not misused to
    avoid the danger that a jury may erroneously leap from such evidence to a
    conclusion of guilt if not properly instructed:
R. v. Arcangioli
,
    [1994] 1 S.C.R. 129, at p. 143.  Care must be taken with this evidence because,
    as stated by Laskin J.A. in
Angelis
, at para. 52, That people will
    generally behave one way after they kill someone purposefully and another way
    after they kill someone accidentally is often a dubious assumption.

[44]

The
    question on this appeal is whether the post-offence conduct evidence had some
    tendency as a matter of logic and human experience to make the proposition for
    which it is advanced  that the appellant intended to kill or intended to
    cause serious bodily harm likely to cause death  more likely than that
    proposition would be in the absence of that evidence:
White
(2011),
    at para. 36. And if the evidence of post-offence conduct was not relevant to
    the appellants level of culpability, did the trial judge adequately instruct
    the jury to that effect?

[45]

In
    my view, the evidence of post-offence conduct, taken as a whole, was probative
    of whether the appellant had the required
mens rea
for murder.  To the
    extent that certain pieces of this evidence, viewed in isolation, could not
    support the Crowns inference, the jury was adequately instructed.

[46]

For
    example, the evidence of the appellants behaviour immediately following Ms.
    Mathieu-Reads death, considered in combination with the evidence that the
    appellant sounded happy on the telephone with Ms. Long and the evidence that he
    was smiling when he told Ms. Long about Ms. Mathieu-Reads death was capable of
    supporting the inference that he had accomplished what he intended to do. The
    evidence that the appellant did not agree with Ms. Longs suggestion that the
    killing was accidental could support an inference that the appellant believed
    the killing was intentional.

[47]

On
    the other hand, the evidence relating to the appellants disposal of Ms. Mathieu-Reads
    body, viewed in isolation, could not reasonably support an inference of
    intention to kill. This evidence is capable of supporting the inference that
    the appellant did not want the body to be discovered, but does not on its own
    support an inference that he had the
mens rea
required for murder.

[48]

Destruction
    of a body can be probative of intent if, on the evidence in a particular case,
    it is reasonable to infer the accused destroyed the body after causing that
    persons death did so because he knows that the victim suffered injuries that
    are inconsistent with a non-intentional cause of death:
R. v. Teske
(2005), 32 C.R. (6th) 103

(C.A.)
,

at
    para. 86. The inference arises because presumably an individual would not take
    the greater risk involved in destroying a body without some reward: concealing
    the exact cause of death and nature of the injuries.

[49]

On
    the facts of the present case, an inference that the appellant buried Ms.
    Mathieu-Reads body in order to conceal more than the fact that he caused her
    death would be speculative. Unlike in
Teske
, the appellant did not
    take extreme steps, such as cremating the body. There was also no suggestion in
    the evidence that the body, if discovered, would reveal injuries consistent
    only with an intentional killing. The evidence as a whole does not support an
    inference that the appellant buried Ms. Mathieu-Reads body in order to cover
    up injuries consistent only with an intentional killing.

[50]

The
    trial judge could have told the jury that some of the post-offence conduct evidence,
    looked at in isolation, could not reasonably support an inference of intention,
    but had he done so, he would have had to explain in more detail how the
    evidence supported the Crowns inference. Instead, he provided a general
    instruction and made it clear to the jury that his view was that this evidence
    would not help it to decide whether the appellant had the requisite
mens
    rea
for murder. The approach he took, in my view, was favourable to the
    appellant.

[51]

Jury
    instructions are not held to a standard of perfection:
R. v. Jacquard
,
    [1997] 1 S.C.R. 314, at para. 2. The adequacy of jury instructions is tested in
    a functional way, holding them up against the purpose they are required to fulfill:
R. v. Simon
, 2010 ONCA 754,
104 O.R. (3d) 340,
at
    para. 44, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 459.

[52]

The
    instruction provided was more than adequate in the circumstances. It equipped
    the jury to weigh the evidence and give weight only to evidence with some
    probative value. The charge as a whole downplayed the potential value of the
    appellants post offence conduct on the issue of his
mens rea
and was
    sufficient to alert the jury to the danger of making an erroneous leap from
    evidence of post-offence conduct to guilt:
Arcangioli,
at p. 143.

(ii)

The
Hall

error

[53]

The
    appellant alleges that the trial judge invited the jury to engage in the
    tautological reasoning criticized in
R. v. Hall
by requiring them to
    determine whether the appellant was conscious that he committed the offence
    before they could use the post-offence conduct evidence to decide if he
    committed the offence (at para. 142). I would reject this argument.

[54]

The
    relevant portion of the jury instruction in this case tracks almost
    word-for-word the instruction disapproved of in
Hall
, with one
    important difference. The trial judge in
Hall
told the jury to
    consider whether Hall acted as he did because he was conscious of having done
    what was alleged against him. The trial judge here asked the jury to consider
    whether he acted as he did because he was conscious of having caused Ms.
    Mathieu-Reads death. In other words, this part of the charge related to the
    use the jury could make of the post-offence conduct in deciding whether the
    appellant caused death.

[55]

As
    in
R. v. Kostyk
, 2014 ONCA 447, 312 C.C.C. (3d) 101, causation was
    only one of several steps the jury had to take before determining the ultimate
    question of whether the appellant was guilty of murder or manslaughter (at
    para. 99). The jury was not invited to jump directly to the issue of guilt, as
    was the case in
Hall
.

(iii)

Evidence of the appellants
conduct before the killing

[56]

The
    appellant argues that this evidence, like evidence of post-offence conduct,
    requires a no probative value instruction where the evidence is equally
    consistent with murder and manslaughter. Even assuming such an instruction could
    be required, it would not have been appropriate here as the evidence of the
    appellants conduct prior to the killing was probative of his
mens rea
.

[57]

The
    evidence of the appellants tumultuous relationship with Ms. Mathieu-Read and
    the evidence that he uttered a death threat to her on March 1, 2007, was
    relevant to animus and motive. Animus and motive are probative of identity and
mens
    rea
.  As stated by Watt J.A. in
Moo
, at para. 98:

In prosecutions for domestic homicide, evidence is frequently
    admitted to elucidate the nature of the relationship between the accused and
    the deceased. This evidence, which often discloses misconduct other than that
    charged, not only demonstrates the nature of the relationship between the
    parties, but also may afford evidence of motive and animus relevant to
    establish the identity of the deceased's killer
and the state of mind with
    which the killing was done
. [Emphasis added.]

As this evidence was relevant both to whether the
    appellant caused death and if so, his
mens rea
, a no probative value
    instruction was not required.

[58]

The
    appellant acknowledges that the death threat may be probative of
mens rea
,
    but argues based on this courts decision in
Bucik
that the jury
    should have been instructed that it could only use the death threat as evidence
    of
mens rea
if the jury was satisfied that the appellant literally
    meant that he intended to kill Ms. Mathieu-Read.

[59]

I
    do not agree.
Bucik
is not applicable to the present case.

[60]

In
Bucik
, the trial judge erroneously described a statement made by
    Buciks co-accused that he was going to kill the deceased as a statement that
    they  the co-accused and Bucik  were going to kill the deceased. The trial
    judges misapprehension of the evidence in this regard was significant because
    the mistake enabled the jury to use the statement as evidence of Buciks
    intention to jointly pursue and kill the deceased. On the evidence as it
    actually was, the statement could only be probative of Buciks intention if
    Bucik knew his co-accused intended to kill, which would require Bucik to have
    understood his co-accused to mean the comment literally (at para. 19).

[61]

This
    court in
Bucik
did not state as a general principle that a trial judge
    must instruct the jury that a death threat is only probative of intent if the
    jury is satisfied that the accused meant it.

[62]

For
    these reasons, it is my view that trial judge charged the jury adequately on the
    evidence of the appellants conduct before and after the death of Ms.
    Mathieu-Read. Accordingly, I would not give effect to this ground of appeal.

(b)

The Appellants Statement to Ms. Long

[63]

The
    appellant argues the trial judge erred in his charge to the jury on the use the
    jury could make of the appellants statement to Ms. Long.  He submits the trial
    judge was required to instruct the jury that the jury should acquit the appellant
    of murder if it believed the exculpatory aspects of the appellants alleged
    confession or on the basis of the exculpatory aspects even if it did not
    believe those aspects, as long as the jury did not reject them as untrue.  The
    appellant relies on
Bucik
, at para. 29-34, to support this argument,
    and on the parts of his confession that he says demonstrated surprise.

[64]

In
    my view, the instruction to the jury on Ms. Longs statement was appropriate.  Unlike
    in
Bucik
, the aspects of the confession the appellant points to were
    not clearly exculpatory. Any exculpatory value depended on the jury accepting
    the interpretation advanced by the appellant.

[65]

In
Bucik
, a police officer testified that the accused Harrington had made
    a statement to him that while he (Harrington) was at the scene of the incident
    he was not the one who used the weapon.  The trial judge had instructed the
    jury:

If you decide that one or both of Ian Harrington and Mirko
    Bucik made a remark that may help him in his defence, or if you cannot decide
    whether he made such a remark, you will consider that portion of the statement
    along with the rest of the evidence in deciding whether you have a reasonable
    doubt about Ian Harrington's or Mirko Bucik's guilt.

You may give anything you find Ian Harrington or Mirko Bucik
    said as much or as little importance as you think it deserves in deciding this
    case. It is for you to say. Anything you find said by Ian Harrington or Mirko
    Bucik, however, is only part of the evidence in this case. You should consider it
    along with and in the same way as all the other evidence. [
Bucik
, at
    para. 29.]

[66]

On
    appeal, this court held that this instruction was insufficient.  The court held
    that the jury should have been instructed that exculpatory evidence can be the
    source of a reasonable doubt even if not affirmatively believed because it is
    arguably not the kind of common sense reasoning that jurors would apply in
    making credibility assessments in their day-to-day lives (at para. 33).

[67]

Harringtons
    statement in
Bucik
was purely exculpatory and was not open to
    interpretation. The trial judges error arose because the instruction focussed
    on whether the statement was made  which was not in issue  and failed to set out
    that Harringtons exculpatory statement could be the source of reasonable doubt
    even if not affirmatively believed. By contrast, the appellants statement that
    he couldnt believe it was that easy to break somebodys neck is open to
    competing exculpatory and inculpatory interpretations.  It was open to the jury
    to believe both that the appellant made the statement and that it was true, and
    nevertheless convict the appellant of second degree murder.

[68]

Bearing
    in mind the functional approach to the review of jury instructions set out
    above, I am satisfied that the trial judge made no error in this portion of the
    instruction. The trial judge appropriately instructed the jury that they were
    to consider any remarks attributed to the appellant that could help the
    appellant in his defence even if it could not decide whether he made them.

[69]

I
    would not give effect to this ground of appeal.

(c)

The Caution on Ms. Longs Evidence

[70]

The
    appellants fourth argument is that the trial judge was required to give a full
Vetrovec
[1]
warning with respect to the testimony of Ms. Long. The appellant acknowledges
    that defence counsel at trial conceded that a
Vetrovec
warning was not
    required, but submits that because Ms. Long was charged as an accessory after
    the fact, her testimony changed over time, and her evidence was central to the
    Crowns case, the jury should have been fully warned about the danger of
    relying on her evidence.

[71]

The
    respondent submits that the instruction given by the trial judge was sufficient
    in the circumstances.  Again, I agree with the respondent.

[72]

In
    the pre-charge conference, Crown counsel suggested that the jury be given what
    is sometimes referred to as a
Titus
[2]
instruction, an instruction to be cautious about relying on Ms. Longs evidence
    because Ms. Long was a Crown witness facing outstanding charges and might have
    an interest in testifying favourably for the Crown.  The trial judge agreed to give
    the
Titus
instruction, and then asked counsel, There is no suggestion
    that a
Vetrovec
is required?  Both counsel indicated that it was not
    required.

[73]

The
    trial judge provided the following caution in his instructions to the jury on
    the evidence of Ms. Long:

Regarding the outstanding charge against Kathy Long, Kathy Long
    is charged with being an accessory after the fact to murder. The trial has not
    yet been held on that charge. A Crown witness who is awaiting trial herself on
    a charge may have an interest in testifying favourably for the Crown in this
    trial. Favourable testimony here may help the witness with her own case later,
    or the witness may believe that it will do so.

You should approach the evidence of Kathy Long with care and
    caution. When you consider how much or little you will believe of and rely upon
    this evidence to decide this case take into account the fact that she is
    herself awaiting trial on another charge. It is a factor for you to consider.
    How much or little it influences you is up to you.

Considering her situation, her perception, expectation or hope
    of benefit may be of greater importance as a determinant of credibility and
    reliability than the reality as explained in other evidence. If you are
    concerned about the reliability of Kathy Longs testimony you may want to ask
    yourselves what evidence of other witnesses or concrete exhibits confirms her
    account.

[74]

Where
    a trial judge is of the opinion that a witness is untrustworthy, the trial
    judge has the discretion to give a clear and sharp warning to attract the
    attention of the juror to the risks of adopting, without more, the evidence of
    the witness:
Vetrovec
, at p. 831.  The fact that a witness is an
    accomplice is not necessarily determinative of whether a
Vetrovec
warning should be given:
Vetrovec
, at pp. 830-832.

[75]

Although
    generally a trial judges decision whether to give a
Vetrovec
caution
    is discretionary and owed significant deference by appellate courts, in some
    circumstances, a
Vetrovec
caution will be mandatory:
R. v. Bevan
,
    [1993] 2 S.C.R. 599, at para. 34;
R. v. Sauvé
(2004), 182 C.C.C. (3d)
    321 (C.A.), at para. 70, leave to appeal to S.C.C. refused, [2005] 1 S.C.R. xv.
    Whether a
Vetrovec
warning is mandatory depends on two factors: the
    witness's credibility, and the importance of the witness's testimony to the
    Crown's case:
R. v. Brooks
, 2000 SCC 11, [2000] 1 S.C.R. 237, at paras.
    4 and 80.  If the witnesss evidence is absolutely essential to the Crown's
    case, more moderate credibility problems will warrant a warning.  Where the
    witness has overwhelming credibility problems, a warning may be necessary even
    if the Crown's case is a strong one without the witness's evidence:
Brooks
,
    at para. 80.

[76]

In
    my view, a full
Vetrovec
warning was not mandatory in this case. While
    Ms. Longs evidence was central to the Crowns case, Ms. Longs credibility
    problems were arguably more minor.  It was open to the trial judge to decide,
    based on the factors in
Brooks
, that a full
Vetrovec
warning
    was not required.  The trial judges discretionary decision is entitled to
    deference from this court.

[77]

The
    trial judges instruction was adequate, and though a
Vetrovec
warning
    was not mandatory, it contained several of the elements of a standard
Vetrovec
warning: see
R. v. Khela
, 2009 SCC 4, [2009] 1 S.C.R. 104, at para.
    37;
Sauvé
, at para. 82. The trial judge explained to the jury why Ms.
    Longs evidence should be approached with care, and suggested to the jury that
    it consider whether other evidence confirmed her account. The jury would have
    been fully aware of the issues with Ms. Longs evidence.

[78]

Finally,
    I would note that defence counsel conceded a
Vetrovec
warning was not
    required. As Bastarache J. commented in
Brooks
, at para. 17, counsels
    decision not to request a
Vetrovec
warning may be a tactical one, in
    order to avoid a summary of the evidence capable of confirming an unsavory
    witnesss testimony. Such evidence was extensive and included the polices recovery
    of the discarded boots, pants and comforter in the locations described by Ms.
    Long.

[79]

Accordingly,
    I would not give effect to this ground of appeal.

(d)

The Charge on Manslaughter

[80]

The
    final argument raised by the appellant in relation to the jury charge is that
    the trial judge failed to properly instruct the jury on the
mens rea
required for manslaughter. He argues the trial judge focussed exclusively on
    the
mens rea
for murder and failed to instruct the jury on the
    objective foreseeability element of manslaughter.

[81]

In
    my view, this ground of appeal must fail as well. The trial judge correctly
    instructed the jury on the
mens rea
required for manslaughter, and was
    not required to give a more detailed charge, given that defence counsel had
    conceded that if the jury concluded the appellant killed Ms. Mathieu-Read, he
    was guilty of manslaughter.

[82]

The
    trial judge instructed the jury that if it was satisfied beyond a reasonable
    doubt that the appellant had caused Ms. Mathieu-Reads death, it should
    consider whether he caused her death by an unlawful act. He stated that the
    unlawful act must be one that any reasonable person in the circumstances would
    think likely put another person at risk of some harm or injury that is more
    than minor or brief in nature.

[83]

The
mens rea
for unlawful act manslaughter is objective foreseeability of
    the risk of bodily harm which is neither trivial nor transitory, in the context
    of a dangerous act:
R. v. Creighton
, [1993] 3 S.C.R. 3, at pp. 44-45.
    The trial judge correctly charged the jury on the
mens rea
for
    manslaughter when he described the unlawful act as set out above.

[84]

The
    trial judges instruction on manslaughter was correct, and given defence
    counsels concession at trial, a more detailed instruction on this point was
    not required. I would not give effect to this ground of appeal.

(3)

The Prejudicial Evidence

[85]

Finally,
    the appellant points to a number of items of prejudicial evidence that were
    adduced at trial. He submits the trial judges attempts to deal with this
    evidence were insufficient or even exacerbated the prejudicial effect of the
    evidence.  He further argues that some of the evidence was so prejudicial, no
    instruction could have cured it, and in these circumstances the trial judge
    should have declared a mistrial.  Although defence counsel did not seek a
    mistrial, the appellant relies on
R. v. Huang
, 2013 ONCA 240, 115 O.R.
    (3d) 596, at para. 21, to argue that this does not constitute a waiver of his
    rights.

[86]

The
    evidence relied on by the appellant in support of this ground of appeal
    includes: (1) Ms. Longs two references to the appellants having been in jail
    before; (2) Ms. Longs near-repetition of an allegation that the appellant had
    killed someone while in jail; (3) Ms. Longs allegation that the appellant
    attempted to sexually assault her daughter; (4) Ms. Hardmans comments that Ms.
    Mathieu-Reads relationship with the appellant was abusive and that he had
    hurt her in the past; and (5) the appellants statements during his booking
    video that he was banned from firearms and had a terrible record.

[87]

While
    I agree with the appellant that this evidence was potentially prejudicial, in
    my view, the trial judges response to the evidence during the trial and in the
    course of the charge was adequate in the circumstances.

The charge and the mid-trial cautions

[88]

In
    his final instructions to the jury, the trial judge provided the following
    caution to the jury regarding the prejudicial evidence in the trial:

This is an important caution that I now give you about evidence
    of lifestyle. You have heard evidence disparaging of Mr. Moffits character
    which has nothing to do with this charge. He is not on trial for his work
    ethic, drinking or drug using habits, his vulgar mouth, antagonism to police,
    breaches of bail, periods in jail, periodic homelessness. Those aspects of his
    personal history have nothing to do with whether the Crown has proven beyond a
    reasonable doubt the charge against him.

You should particularly ignore his utterance about his record
    at the booking-in process in London and that comment by Kathy Long of her
    opinion of what he tried to do to her daughter. Each of these allusions were
    completely non-specific, or a matter of opinion based on hearsay and of no help
    whatsoever to you in deciding this case. Set such matters aside entirely. They
    are not subjects for proof before you and no inferences whatsoever can be drawn
    from the fact that they were ever mentioned.

[89]

The
    trial judge later elaborated on this instruction and made particular reference
    to the evidence of the March 1, 2007 incident in which the appellant allegedly
    assaulted and threatened Ms. Mathieu-Read:

I have already given an instruction regarding the lifestyle of
    the accused. My instruction to you regarding the March 1
st
incident
    repeats first of all the caution that you must not convict on the charge before
    you simply because you conclude that he is the sort of person generally to do
    bad acts, such as abusing his partner. You must not convict on the basis of a
    generally unworthy lifestyle.

You may however treat the evidence of the March 1
st
incident as indicating a hostile, aggressive attitude by him towards her
    specifically. In that sense, it is evidence of a motive on his part and may
    point to him as the person responsible for her death. The evidence of the March
    1
st
episode is circumstantial evidence, tending to show identity of
    the person who caused her death.

[90]

In
    addition to the above comments, when particular pieces of prejudicial evidence
    arose during the trial, the trial judge provided mid-trial cautions.

[91]

For
    example, when Ms. Long alleged the appellant had attempted to sexually assault
    her daughter, the trial judge immediately told the jury to ignore references
    to matters that have nothing to do with this case. After a brief recess, the
    trial judge instructed the jury that laypersons may sometimes refer to hearsay
    allegations and do not understand the difference between relevant and
    irrelevant facts, or hearsay and non-hearsay evidence. The trial judge told the
    jury that Ms. Longs feelings were not evidence of historical facts and
    should play no part in the decision-making process. When the trial resumed
    after a weekend, the trial judge expanded on this instruction, and told the
    jury:

THE COURT:        As I told you on Thursday, laypersons are not
    legally trained. On occasion they include hearsay and irrelevancies in their
    answers. These come out unexpectedly and therefore cannot be screened in
    advance. As the trier of fact you will simply ignore such statements. I am
    going to state a hypothetical example for you of hearsay and irrelevant statements
    by a witness, just so that you get the idea of these concepts. In a trial on a
    charge of murder suppose a witness blurts out: After I left home he stole a
    cherry from the neighbours tree. You would set that statement aside if you
    were the jurors. You would ignore it. First and foremost it is completely
    irrelevant to the facts the jury have to decide. Second, it is hearsay, not
    something the witness knows from his own observation. Therefore it is entitled
    to no consideration in a jurys deliberations. So I hope that little example
    helps you with your deliberations.

[92]

The
    trial judge similarly provided a mid-trial caution on Ms. Hardmans
    characterization of the relationship between the appellant and Ms. Mathieu-Read
    as abusive, as follows:

At one point this witness went beyond the specific question
    that was asked by Ms. Foster and she made kind of a global characterization of
    the relationship between her mother and the accused. She used a popular term.
    She said it was an abusive relationship. That was a statement of an opinion and
    really it was not in response to a question about a specific fact. That is for
    you to decide in this case, so I will just ask you to set that opinion of a lay
    person aside and base the case on the facts as you find them.

Analysis

[93]

A
    trial judges decision on the appropriate remedy when the jury has heard
    inadmissible and potentially prejudicial evidence is entitled to substantial
    deference on appeal, as the trial judge is in the best position to assess the
    circumstances of each individual case and select the most appropriate remedy:
R.
    v. Burke
, 2002 SCC 55, [2002] 2 S.C.R. 857, at para. 75. As summarized by
    Blair J.A. in
R. v. Jeanvenne
, 2010 ONCA 706, 261 C.C.C. (3d) 462, at
    para. 58:

I accept that trial judges are particularly well-placed to
    assess the impact of inadmissible and potentially prejudicial evidence in the
    context of the trial dynamic, including the effectiveness of any warning that
    may be issued. Their discretionary decision whether or not to grant a mistrial
    is entitled to great deference. Indeed, trial judges themselves are only to
    order a mistrial "as a last resort, in the clearest of cases and where no
    remedy short of that relief will adequately redress the actual harm
    occasioned":
R. v. Toutissani
, 2007 ONCA 773, at para. 9.

[94]

I
    am satisfied that the trial judge adequately dealt with the potentially
    prejudicial evidence through his mid-trial instructions and in his charge. The
    jury was capable of disregarding the prejudicial evidence, and the instructions
    given were sufficient to remedy any harm caused by the evidence.

[95]

The
    appellant asserts that the evidence in this case raises both moral prejudice
    (the potential stigma of bad personhood) and reasoning prejudice
    (including potential confusion and distraction of the jury from the actual
    charge):
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908, at para.
    100.  While I agree that evidence of bad character may create both these forms
    of prejudice, there was no serious issue of reasoning prejudice in this case.
    For example, while some time at trial was taken up by the impugned evidence to
    the extent the jury had to be instructed to disregard it, there was no trial
    within a trial in which the appellant attempted to disprove the attempted
    sexual assault allegation, distracting the jury from the central question of
    whether he was guilty of the offence charged.

[96]

Rather,
    the evidence in this case raises primarily the issue of moral prejudice. The
    evidence described above had the potential to cause the jury to make the
    impermissible inference that because the appellant was capable of doing bad
    acts he was guilty of the offence charged.

[97]

However,
    the trial judge clearly instructed the jury that it could not use this line of
    reasoning.

[98]

The
    jury was instructed that the appellants work ethic, drinking or drug using
    habits, his vulgar mouth, antagonism to police, breaches of bail, periods in
    jail, periodic homelessness were all irrelevant to the jurys deliberations.
    They were instructed to particularly ignore his utterance about his record at
    the booking-in process in London and the comment by Kathy Long of her opinion
    of what he tried to do to her daughter. The trial judge carefully avoided
    referring explicitly to an attempt at sexual assault, presumably in order to
    avoid unnecessarily repeating this allegation. Furthermore, the trial judge
    told the jury that they were not to convict on the basis that he was the sort
    of person generally to do bad acts, such as abusing his partner.

[99]

In
    my view, with these instructions, the jury would have understood that the impugned
    prejudicial evidence could not support a finding of guilt.

[100]

While the
    allegation of attempted sexual assault was dramatic, it does not follow that
    the members of the jury would be incapable of separating an unfounded
    allegation from the question of whether the appellant killed Ms. Mathieu-Read
    and if so, whether he had the state of mind required for murder. It is
    fundamental to jury trials that juries be trusted to follow the instructions
    given by trial judges:
R. v. Corbett
, [1988] 1 S.C.R. 670, at p. 692;
R.
    v. Griffin
, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 72.  The jury was
    told in very strong language, immediately and repeatedly, that the allegation
    made by Ms. Long was irrelevant to its task.  In my view, this court should
    trust that the jury followed this instruction.

[101]

The evidence of
    the abusive relationship may have been the most difficult for the jury
    members to put out of their minds, as there may be a tendency to reason that
    someone who abuses his domestic partner is the kind of person who would kill
    his domestic partner.

[102]

However, as
    noted by the respondent, the evidence of the nature of the relationship between
    the appellant and Ms. Mathieu-Read was admissible as evidence of motive and
    animus on the issues of identity and intent. The introduction of such evidence
    was unavoidable, and the jury was properly instructed to avoid propensity reasoning
    based on the abusive nature of the relationship. While Ms. Hardmans opinion
    was unnecessary and irrelevant, it could not have created additional prejudice
    in the minds of the jury, who had already heard admissible evidence on that
    point. The jury was instructed on the use to which it could put this evidence,
    and must be trusted to have followed those instructions.

[103]

Finally, while
    the allegation that the appellant had killed someone while in jail was
    potentially very prejudicial, fortunately, the jury remained in the dark thanks
    to the timely intervention of defence counsel. Had this allegation come out,
    the jury might not have been capable of avoiding the impermissible reasoning
    that if he killed someone before, he likely did so again. However, as Ms. Long
    was interrupted, no harm was caused. I would reject the appellants submission
    that the jury must have known or guessed the substance of what Ms. Long was
    about to say. Ms. Long was cut off before any details emerged.

[104]

For the above
    reasons, I would not give effect to this ground of appeal.

D.

Conclusion

[105]

Accordingly, I
    would dismiss the appeal.

Released: DD June 9, 2015

M. Tulloch J.A.

I agree. Doherty
    J.A.

I agree. S. E.
    Pepall J.A.

[1]

Vetrovec v. The Queen
, [1982] 1 S.C.R. 811.

[2]

Titus v. The Queen
, [1983] 1 S.C.R. 259.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Moreira, 2015 ONCA 467

DATE: 20150623

DOCKET: C58767

Laskin, Gillese and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew Moreira

Appellant

Theodore Sarantis, for the appellant

Greg Skerkowski, for the respondent

Heard: June 16, 2015

On appeal from the conviction entered on December 12,
    2013 and the sentence imposed on March 27, 2014 by Justice Paul L.
    Bellefontaine of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The complainants purse was stolen and the appellants receipt was found
    in it. In addition the complainants wallet was found 40m from where the
    appellant lived. This circumstantial evidence was so overwhelming that the
    trial judge concluded the only rational inference available was that of the
    appellants guilt. He did not err in that conclusion.

[2]

We add that the trial judge considered the defence evidence and
    concluded that, in the light of the circumstantial evidence, it did not raise a
    reasonable doubt.

[3]

The appeal is dismissed.


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
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. P.L., 2015 ONCA 404

DATE: 20150605

DOCKET: C56976

Hoy A.C.J.O., Doherty and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.L.

Appellant

R. Sheppard, for the appellant

Avene Derwa, for the respondent

Heard and released orally: May 22, 2015

On appeal from the conviction entered on December 6, 2012
    by Justice John A. Desotti of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant was convicted of sexually assaulting his step-daughter
    while she was visiting home from university.

[2]

The evidence was that she was sleeping by the fireplace on a pull-out
    mattress in the den. She awoke to find the appellant touching her vagina. The
    appellant said he was just stoking the fire and denied touching her.

[3]

The following morning, the complainant, her boyfriend, and her mother
    confronted the appellant. The content of their discussion factors into the
    grounds for appeal.

[4]

The appellant submits that the trial judge erred in two respects: 1) by
    relying on the appellants convoluted testimony and lack of clarity to reject
    his evidence; and 2) by referring to the mothers testimony about the
    appellants thoughts in connection with her daughter.

Lack of clarity

[5]

The trial judge rejected the appellants testimony in part because of
    what he termed a rambling and confusing account of what transpired the
    morning after the event. The trial judge quoted from an answer the appellant
    gave to demonstrate the point. The appellant argues that this was unfair. We
    reject this submission.

[6]

The trial judges description of the testimony was accurate. The
    evidence concerned the events on the morning after the alleged assault, not the
    assault itself. It was open to the trial judge to consider his impressions as
    part of the credibility analysis. More significantly, the trial judge conducted
    a detailed review of the appellants evidence and rejected it in its entirety,
    largely based on the acceptance beyond a reasonable doubt of the evidence of
    the complainant and other Crown witnesses.

The thoughts

[7]

The complainants mother testified about a previous allegation of
    voyeurism involving the appellant and her daughter. These charges have been
    dismissed. She testified that the morning after the incident, the appellant
    admitted that he had thoughts that caused him to go to the fireplace where the
    complainant was sleeping. The boyfriend corroborated this evidence.

[8]

The appellant submits that, having correctly instructed himself not to
    consider the alleged voyeurism incident, the trial judge nonetheless relied on
    the comment by the mother that the appellant had thoughts about his
    step-daughter, and wrongly ascribed a sexual nature to those thoughts. The
    appellant argues that the inference drawn by the trial judge that the thoughts
    were sexual was not reasonably available in the absence of the evidence of
    voyeurism. We reject this submission.

[9]

In any event, the trial judge was entitled to refer to and rely upon the
    mothers comments, which were made in the context of a heated discussion about
    sexual activity. It was open to the trial judge to accept her interpretation which
    was also corroborated by the boyfriend. The trial judge was entitled to
    consider the context of the conversation and both witnesses interpretation of
    the meaning in drawing his own reasonable inference. It was a reasonable
    inference from all of the evidenceexcluding the alleged voyeurismthat the
    thoughts were sexual in nature. The trial judges reasons clarify that he was
    not considering the voyeurism allegation.

[10]

For
    these reasons, the appeal is dismissed.

Alexandra Hoy A.C.J.O.

Doherty J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Piccinini, 2015 ONCA 446

DATE: 20150618

DOCKET: C59578

Weiler, Tulloch and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Domenic Piccinini

Appellant

Jill Presser and Cate Martell, for the appellant

Michael Perlin, for the respondent

Heard: June 5, 2015

On appeal from the sentence imposed on March 5, 2013 by
    Justice Bruce Durno of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant and two co-accused pleaded guilty to fraud over $5,000,
    fraud for the benefit of a criminal organization and money laundering by
    transferring possession of proceeds of crime.  A fourth accused was found
    guilty after trial and sentenced separately. The appellant was sentenced to a
    total of six years imprisonment (prior to credit for pre-sentence custody) and
    a $500,000 fine in lieu of forfeiture.  The appellant seeks leave to appeal his
    sentence. The first ground of appeal concerns the amount of credit for
    pre-trial custody and is conceded by the Crown. The second ground of appeal and
     central issue is whether the sentencing judge erred in imposing a fine in lieu
    of forfeiture. A subsidiary issue is whether the amount of the fine imposed,
    $500,000, is arbitrary and unsupported by the evidence.

[2]

The offences arose from a telephone scam (a grandparent fraud) that
    targeted elderly individuals in the United States.  The scam ran out of a
    boiler room  a rented house - in Mississauga. The appellant and his
    co-accused, as well as three other people, used lists of names and phone
    numbers to call prospective victims. The caller would pose as the victims
    grandchild, claiming to have been arrested in Canada, and needing money for
    bail. Other callers in the boiler room would play the roles of police officers
    or lawyers. The victims were directed on how to send the required money to
    certain locations around the world using Western Union, and addressed to
    recipients  runners  identified by the callers.  In a call-back, the
    victim would provide the caller with the money transfer control number (MTCN)
    provided by Western Union, which was then communicated to the runner and used to
    collect the funds at the other end.

[3]

The appellant was the main boss of the organization; his domestic
    partner was second in command. The appellant paid rent on the house. He paid a
    weekly commission to the co-accused who made the phone calls. The appellant had
    the master phone list and provided the list of prospective victims to the
    callers. He directed the various locations around the world where the funds
    were to be transferred by the victims via Western Union.

[4]

The fraudulent activities took place over a six month period before the
    appellant and the others were arrested. Approximately $45,000 was seized from
    the appellants home and person at the time of the arrest. The police were
    unable to trace the majority of the funds and the total amount of the fraud was
    never established. For the purpose of the guilty plea and sentencing it was
    agreed that the total amount of the fraud was $900,000: the sum of $7,500
    multiplied by the number of days the scheme was carried out.

[5]

At the hearing of the appeal we gave effect to the first ground of
    appeal.   The sentencing took place before the Supreme Court of Canada decision
    in
R. v. Summers
, 2014 SCC 26. The parties agreed that the appellant
    was entitled to 1.5:1 days credit for each day of pre-sentence custody. We therefore
    varied the appellants custodial sentence to credit him with 1,116 days of
    pre-sentence custody instead of 864 days. His sentence was reduced by 252 days.
    As a result of the variation, the appellant had already passed his statutory
    release date, and we ordered his immediate release.

[6]

We reserved the second ground of appeal and indicated we would give
    reasons shortly. These are those reasons.

[7]

The appellant argues that there was no evidence that he had possession
    or control over $500,000; in the alternative, the appellant asserts that the
    sentencing judge ought to have exercised his discretion to impose a fine that
    was limited to the amount of the actual benefit he received.

[8]

Section 462.37 of the
Criminal Code
provides, in respect of
    certain designated offences, for the forfeiture of property of an offender
    that is the proceeds of crime.  Fraud over $5,000 is a designated offence. It
    is admitted in this case that the fraud generated proceeds of $900,000.

[9]

Pursuant to s. 462.37(3), a fine in lieu of forfeiture may be imposed if
    the sentencing court is satisfied that the property at issue cannot be made
    subject to a forfeiture order, because it cannot be located, has been
    transferred to a third party, is located outside Canada, has been substantially
    diminished in value, or has been comingled with other property that cannot be
    divided without difficulty.

[10]

In
    imposing a fine in lieu of forfeiture, the court must be satisfied that the subject
    of the fine is or was the property of the offender. In
R. v. Dwyer
,
    2013 ONCA 34, at paras. 23 and 24, this court held that it was not sufficient
    for the Crown to point to the amount of the fraud and the amount recovered and
    to conclude that the accused had possession or control of the balance. The
    sentencing judge may not infer that because an offender directed a fraud, he or
    she necessarily possessed, controlled or benefitted from the fruits of that
    fraud. The court must be satisfied on a balance of probabilities that the
    offender at some point had actual possession of or control over the targeted
    property.

[11]

The
    appellant points out that in
Dwyer
, the court found that the accused
    did not have control over the entire amount of proceeds from a mortgage fraud
    that had been paid into a lawyers trust account but only the sum for which the
    accused had signed a direction to the lawyer (the court also referred to other
    supporting documents such as cheques).
[1]
The appellant submits that a direction or similar type of documentation is
    required in order to determine the necessary control over the proceeds of fraud
    sufficient to justify a fine in lieu of forfeiture.

[12]

The
    appellant contends that the sentencing judge erred in concluding that he
    exercised control over $500,000 of the proceeds of the fraud. At its highest,
    the appellant orchestrated the fraud, and he had control over the boiler
    room, but this did not mean that he had control over the funds that were
    generated by the fraud. The appellant contends that the evidence was capable of
    establishing that the appellant controlled only $86,400, the commission paid to
    the appellants two co-accused who made the phone calls.

[13]

In
    the present case, the sentencing judge was aware that a fine had to be based on
    evidence of the amount over which the appellant exercised control. He stated:

While he did not personally direct what happened to the money, [Piccinini]
    was in control of the entire operation, from where the money was to go, to the
    name of the supposed bail bondsperson, he provided the information. In my view he
    clearly had control of the proceeds. He was directing where it went; it was not
    like Dwyer where there was a gap and no evidence when it is his operation.

[14]

Not
    only was the appellant admittedly in control of the criminal organization that
    perpetrated the fraud in question, the evidence supported that he exercised
    control over the funds provided by the victims, which were the proceeds of the
    fraud. Each day he told his employees which Western Union location would be
    used as a destination for the funds, and the name of the person who was to
    retrieve the transferred funds (the runner).  The appellant would obtain the
    MTCN provided by the victim and pass it on to the runner, who would claim the
    money at the other end.  The appellant was the person who sent the runner to
    pick up the money. Whether or not the appellant personally received the money
    at the other end is irrelevant; the appellant clearly controlled the funds from
    when they left each victim until they were received.

[15]

In
    addition to the appellants control over the proceeds of the fraud, the appellants
    lifestyle, finances and expenses supported the finding that he had control over
    the funds. He had no other source of income; he funded the operating expenses
    of the criminal organization; he paid employees a small percentage of the gross
    proceeds; and he provided no explanation of what happened to the funds.

[16]

We
    therefore agree with the Crown that the evidence supported the sentencing
    judges finding that the appellant controlled the full amount that the offences
    grossed.

[17]

Finally,
    we do not accept the appellants argument that the sentencing judge erred in
    ordering a fine of $500,000, in the absence of evidence that he had profited by
    that amount. The appellant contends that the sentencing judge ought to have determined
    his actual benefit from the proceeds of the fraud and imposed a fine in that
    amount. The appellant points to the language of s. 462.37(3) which provides
    that the sentencing judge may order a fine in lieu of forfeiture. The
    appellant argues that the sentencing judge has discretion to impose a fine in
    cases where the purpose of the legislation is met; that is, in order to deprive
    the offender of his profit.

[18]

We
    do not agree with the appellants argument. In
R. v. Lavigne
, 2006 SCC
    10, the Supreme Court

recognized that the sentencing judge has a
    limited discretion to determine whether a fine in lieu of forfeiture is to be
    imposed, and to determine the value of the property: at para. 35. While the
    court may decide not to impose a fine in certain circumstances (including for
    example if the offender did not profit from the crime and if it was an isolated
    crime committed by an offender acting alone), once a decision is made to impose
    a fine, the amount of the fine is required to be equal to the value of the
    property over which the offender had possession or control:
Lavigne
at
    paras. 28, 34, 35, 43 and 44.

[19]

The
    value of the property as we have already discussed, is the value of the
    property that was possessed or controlled by the appellant. It is not the
    benefit received by the appellant: see
R. v. Siddiqi
, 2015 ONCA 374,
    where this court noted at para. 6, that the sentencing judge was not required
    to find that [the accused] personally benefitted from the funds he transferred
    to [a] third party, on a dollar-for-dollar basis, to impose a fine in lieu of
    forfeiture that included the amount of the transferred funds.

[20]

In
    the present case, the sentencing judge concluded that the value of the property
    over which the appellant had control was at least $500,000. He imposed a fine
    for this amount, rather than the entire proceeds that the appellant controlled,
    in order that the total amount of the fines imposed on all of the offenders did
    not exceed the gross proceeds of the fraud. If the sentencing judge was not
    entitled to apportion the amount (an argument raised by the appellant in his
    factum, but specifically abandoned in oral argument), this only benefited the
    appellant, and is not challenged by the respondent. It is therefore unnecessary
    to consider this issue in the present appeal.

[21]

Accordingly,
    leave to appeal is granted. The appeal is allowed on the issue of pre-sentence
    custody. The appeal of the fine in lieu of forfeiture is dismissed.

K.M. Weiler J.A.

M. Tulloch J.A.

K. van Rensburg J.A.

[1]
In
Dwyer
this court found that the direction and other supporting
    documents, including cheques, only accounted for $436,756.38, which was $10,700
    more than was recovered. The fine was therefore in the amount of $10,700.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Poitras, 2015 ONCA 475

DATE: 20150625

DOCKET: C57956

Cronk, Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nicholas Poitras

Appellant

James Foord, for the appellant

Mary-Ellen Hurman, for the respondent

Heard: June 19, 2015

On appeal from the decision of the Summary Conviction
    Appeal Court, dated September 5, 2013, by Justice Michel Z. Charbonneau of the
    Superior Court of Justice, dismissing the appeal from the conviction entered on
    January 18, 2012 by Justice Bruce E. MacPhee of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant seeks leave to appeal from a Summary Conviction Appeal
    Court (SCAC) decision dismissing his appeal from conviction for assault.

[2]

At the conclusion of oral argument, this court granted leave to appeal
    and allowed the appeal, for reasons to follow.  These are those reasons.

[3]

The test for leave to appeal to this court from a decision of the SCAC
    is an exacting one.  Leave may only be granted in one of two circumstances: i)
    where there is an arguable question of law that has significance to the
    administration of justice beyond the four corners of the case; or ii) where
    there appears to be a clear error of law, even if it cannot be said that the
    issue is one of general importance:
R. v. R.(R.)
(2009), 234 C.C.C.
    (3d) 463 (Ont. C.A.).

[4]

During oral argument, the focus of the appellants proposed appeal was
    significantly narrowed.  As argued, the appellant makes two main submissions.
    First, he contends that the trial judge erred, in effect, by failing to address
    and make an explicit finding on the
actus reus
for the common assault
    alleged.  Second, the appellant maintains that the SCAC judge erred by stating,
    without elaboration or analysis, that the trial judge clearly reject[ed] the
    idea that what occurred here was a consensual fight.

[5]

Crown counsel acknowledges that if the trial judge failed to determine
    that the Crown had established the
actus reus
for the alleged assault,
    this error would support the granting of leave to appeal to this court under
    the second part of the leave test articulated above.  We agree.

[6]

On our review of the record, it is unclear whether the
actus reus
of the offence charged was established at trial.  The trial judge made no
    explicit finding that the encounter between the appellant and his father was a
    non-consensual incident.  His reasons suggest that he found the appellant
    guilty of assault because he concluded that the appellant had acted unwisely in
    asserting his mothers claim to possession of a former family car.  Although
    the trial judge clearly held that the appellant initiated the attempt to retake
    possession of the car, he made no finding that the jostling and pushing that ensued
    in the front seat of the car when the father tried to retake the car keys and
    his son resisted those efforts, was non-consensual or that the appellant
    actually assaulted his father.

[7]

In these circumstances, the SCAC judge erred when he concluded that the
    trial judge had made a finding that the encounter between the appellant and his
    father was a non-consensual fight.  This error warrants intervention by this
    court.  The trial judge made no finding as to the
actus reus
of the
    assault  namely, that any force applied by the appellant occurred in the
    context of a non-consensual fight.

[8]

Accordingly, in the unusual circumstances of this case, leave to appeal
    is granted, the appeal is allowed and a new trial is ordered.  We note that the
    appellant has abandoned his sentence appeal.  Since the appellant has served his
    sentence  18 months probation  the Crown may wish to consider whether a new
    trial would be in the interests of justice.

E.A. Cronk J.A.

G. Pardu J.A.

M.L.
    Benotto J.A.