COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tremble, 2017 ONCA 671

DATE: 20170828

DOCKET: C57433

Weiler, Feldman and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Terry Tremble

Appellant

Richard Posner and Lance Beechener, for the appellant

Milan Rupic, for the respondent

Heard: April 24, 2017

On appeal from the conviction entered by Justice John R.
    Belleghem of the Superior Court of Justice, sitting with a jury, on February
    21, 2013.

Weiler J.A.:

A.

overview

[1]

Adrienne Roberts was murdered in the basement of her home. The
    appellant, Terry Tremble, her husband, was found guilty of first degree murder
    following a trial before a judge and jury. He appeals his conviction on three
    grounds. The first two grounds concern his
OConnor
application and
    his attempt to raise an unknown third party suspect defence at trial. He submits
    that the application judge erred in dismissing his
OConnor
application for production of criminal investigation files relating to another
    murder and a vicious assault, crimes that he alleged were strikingly similar to
    the Roberts murder. He also argues that the trial judge erred by dismissing his
    alternate suspect defence application. It is his position that he should have
    been able to put publicly available information about the other murder and
    assault before the jury so as to point out the alleged similarities between
    those two crimes and the Roberts murder.

[2]

The appellants third ground of appeal is that the first degree
    murder verdict was unreasonable and that the proper result is to substitute the
    verdict of second degree murder.

[3]

For the reasons that follow, I would hold that neither the
    application judge nor the trial judge erred in their rulings. I would also hold
    that the jurys verdict of first degree murder was not unreasonable.
    Accordingly, I would dismiss the appeal.

B.

facts

[4]

In order to appreciate the positions of the parties respecting
    the issues raised it is necessary to review the evidence in detail. In order to
    do so, I have drawn on the trial record, the facta of the parties, and the trial
    judges charge to the jury.

(1)

Evidence of Motive

[5]

At the time of her death on October 6, 2010, Roberts, who was 33
    years old, had been married to the appellant, then 50, for more than a year.
    They had an infant son, Caleb, who was approximately eight months old. Shortly
    after Caleb was born, Roberts moved down to the basement of their home, which
    was located at 116 Schmidt Drive in Arthur (the Arthur home). The appellants
    father, Alvin Tremble, who was in his 80s, was living on the main floor of the
    home. He had a caregiver, Betsie Follings, who came in to look after him while
    Roberts was at work. The appellant lived on the main floor of the home and also
    spent time on his fathers farm near Hanover. He looked after that farm as well
    as his own and was also employed at Schaus Land and Cattle.

[6]

Roberts told the appellant she wanted a divorce on September, 21,
    2010. She later told friends and family as well as the police that, when she
    did so, he became upset, screamed at her, and assaulted Caleb. Roberts met with
    her divorce lawyer on September 30, 2010 and told him that she was staying with
    her father and wanted the appellant out of her house. After the alleged
    assault, Roberts kept Caleb away from the appellant. The appellant tried to
    reconcile with her but was rebuffed.

[7]

On October 4, 2010, Roberts, who was a paramedic, worked the
    night shift at Guelph General Hospital and then went to the Ontario Provincial Police
    (the OPP) station in Fergus, where she gave a videotaped statement to Constable
    Grasman in which she discussed her worsening relationship with the appellant,
    her wish to get a divorce and the appellants assault on Caleb. She also said
    that the appellant subsequently accused her of infidelity. When Constable
    Grasman asked her whether she feared the appellant might seriously injure or
    kill her or Caleb, she responded, Most definitely. After leaving the police
    station, Roberts called the babysitter to confirm that the sitter could look
    after Caleb until 8 a.m. the next day. At 5 p.m. she went to her fathers house
    and told him the appellant was going to be arrested for assaulting Caleb. Her
    father had never seen her so frightened.

[8]

On the morning of October 5, the appellant spoke to his friend
    William Bucholtz. The appellant indicated he was upset by the state of his
    marriage. Bucholtz had never seen the appellant so upset, and he was concerned
    about his emotional state. Bucholtz told the appellant, Dont do anything
    stupid.

[9]

At 12:20 p.m. that same day, Constable Grasman contacted the
    appellant and asked him to attend the Fergus police station. When the appellant
    arrived at 4:52 p.m., he was arrested for the assault on Caleb. He was then
    released on a promise to appear with conditions prohibiting him from
    communicating with Roberts and Caleb and from attending the Arthur home except
    to attend on one occasion with a police officer to get his possessions. Constable
    Grasman then informed Roberts of this. She appeared shocked and upset to her
    paramedic partner, Amy Wagner, and expressed concern that she had gone too far.
    When Roberts went to work on the night of October 5, she called the appellants
    brother, Wayne Tremble, at 7:54 p.m. and told him the appellant had been
    charged with assault and the marriage was over. She also said that Alvin needed
    to be relocated. Wayne told her he and his family would give it their immediate
    attention. He arranged for his sister, Marjorie Porter, to come and get their
    father the next day.

[10]

Shortly before 9 p.m., the appellant called his friend Ralph
    Schmidt who had a farm next to the appellants farm. The appellant then came
    over to speak to Schmidt from approximately 11 p.m. until about 1 a.m. on the
    morning of October 6. Schmidt testified that the appellant planned to find a
    lawyer the next morning and was worried about not being able to see his son
    again. The appellant explained that he could not return to the Arthur home and
    had to move to his farm. Schmidt said that the appellant was emotional when
    they spoke but seemed normal when he left. The appellant said he was going to
    his fathers farm.

[11]

At trial, the position of the Crown was that the appellant killed
    Roberts because he was angry about: (1) the breakup of his marriage; (2) Roberts
    refusal to let him see Caleb; and (3) being charged with assault. The position
    of the defence was that the appellant had no motive to kill Roberts. He was sad
    and hurt, but not angry with Roberts. He never spoke ill of Roberts; he
    respected her. He loved his son.

(2)

Evidence of Opportunity/Identity

[12]

At 2:12 a.m. on October 6, surveillance cameras recorded a red
    pick-up truck entering the parking lot of the Musashi Auto Parts plant. The
    surveillance cameras were plainly visible as were the signs indicating their
    presence. At 2:17 a.m. the appellant exited the truck and walked towards the
    nearest street. He did not appear to be carrying anything. Detective Ballantyne
    testified that the appellant had the opportunity to kill Roberts, noting that the
    distance from the parking lot to the Arthur home was about a twenty minute
    walk.

[13]

After finishing her overnight shift at 6 a.m. on October 6,
    Roberts told Wagner, she planned to pick up Caleb and meet with the appellants
    family to discuss his care. Roberts picked up Caleb and told the babysitter she
    was going home to get some things before returning to her fathers house.

[14]

A neighbour, Carrie Lawlor saw Roberts jeep stop at the mailbox,
    at about 9 a.m., and then continue to the Arthur home. Follings had arrived at
    the Arthur home around 8 a.m. to look after Alvin. This was to be Follings
    last day on the job and she testified that, after Roberts changed Caleb, she
    and Roberts talked for a bit before she left shortly after 9 a.m. Roberts jeep
    was in the driveway when she left the house.

[15]

In the meantime, at about 8:45 a.m. Richard Ahrens, the
    appellants manager at work, called him on his cell phone; there was no answer.

[16]

There was computer activity on Roberts computer downstairs in
    the room where she stayed with Caleb between 10:03 a.m. and 10:37 a.m. and no
    activity after that. At 10:23 a.m., there was a call from her cell phone to her
    lawyer which lasted five seconds. At 10:27 a.m., she logged in to her personal
    email and opened an email from her lawyer. At 10:37 a.m., she was logged out.
    At 10:38 a.m., there is a two-second call from Roberts cell phone to her
    lawyer and that is the last of the activity on the phone.

[17]

Eighteen minutes later, at 10:56 a.m. the appellant drove
    Roberts jeep into the same parking lot in which he had left his truck and
    parked it beside his truck. He got out of the jeep and got into his truck,
    driving away at 10:58 a.m.

[18]

At 1:38 p.m. the appellant called Ahrens, to ask about working the
    following day. There was nothing unusual about his tone or demeanor.

[19]

At around 2:30 p.m. the appellant drove to his fathers farm and
    met with his brother Wayne. They discussed picking up their father Alvin from
    the Arthur home. When Wayne asked about directions to the home, the appellant
    told him to call Alvin. The appellant seemed distracted. The appellant left
    about fifteen minutes later and went to Schmidts farm where he worked until
    around 7 p.m. Schmidt testified that the appellant told him he had lined up a
    lawyer to deal with the assault charge and seemed normal.

[20]

At about 4:30 p.m. Marjorie told Wayne she would pick up their
    father that afternoon. She called Roberts cell phone and, when the call went
    unanswered, left a message. She then called the landline for the house. Her
    father answered and said he was alone.

[21]

At 6:10 p.m. Marjorie arrived at the Arthur home. The front door
    was unlocked. She entered and called out for Alvin. He came out of the kitchen
    using his walker and seemed anxious to get his belongings. Marjorie asked Alvin
    whether Roberts was there and he said that he heard the baby downstairs. She
    went to the basement and heard Caleb crying. In the bedroom she saw Roberts
    lying face down on the floor with a brown comforter over her head. Roberts had
    no pulse. Marjorie picked up Caleb who was lying unharmed by the foot of the
    bed with no blood on him. Upstairs, she told Alvin what she had found and
    called 911 at 6:14 p.m. She testified Calebs diaper was wet, but not
    saturated. It was consistent with two wettings. She changed and fed the baby
    and he settled down.

[22]

A paramedic, who attended at 6:34 p.m., noticed early signs of
    rigor mortis in the right arm and jaw. Roberts was barefoot, wore a black shirt
    and pajama pants, which were pulled down to her hips, exposing her buttocks.
    Her shirt was wet and smelled like urine. Her hair was matted with blood and
    there was blood spatter around the body.

[23]

At 8 p.m., the appellant went to Marjories house and asked his
    brother-in-law Barry where his sister was. Barry lied and said that Marjorie
    was either at work or at a friends house. The appellant left after a few
    minutes. According to Barry, he looked like he had been crying because he was
    rubbing his eyes and they were red.

[24]

At 10:14 p.m., Detective Ballantyne called the appellant and
    asked him to attend the Mount Forest OPP station. The appellant arrived, at
    10:37 p.m., and, at 11:30 p.m., was advised his wife was dead. The next morning,
    at 2:55 a.m., the appellant was arrested for her murder. There were minor cuts
    and abrasions and light bruises on his wrists and hands.

[25]

The cause of death was blunt force impact to the head. Her body
    sustained injuries associated with fractures of the back, sides and base of the
    skull as well as bruising of the brain. There was blood spatter in the room but
    not elsewhere in the house. The doctor testified the time of death could have
    occurred any time between 9 a.m., when Roberts was last seen alive, and at around
    6:10 p.m., when her body was found. There was no sign of a forced entry or
    struggle.

[26]

A gouge in the ceiling bulkhead, described as a tool mark, was
    discovered above Roberts body. Flecks of drywall from the bulkhead on the
    floor around the body suggested it had been made at the time of the murder. The
    instrument used to inflict the injuries was likely long, thin, and had a
    geometric profile with flat edges and corners. The weapon was never found.

[27]

Amylase, a compound of saliva, with the appellants DNA was found
    on Roberts T-shirt and pyjama pants. In particular, the appellants DNA was
    found on the back of the left sleeve of the t-shirt where both blood and saliva
    were present. The DNA could have been deposited at any time after her shirt was
    washed and the two DNA profiles may not have been deposited at the same time. A
    mixture of DNA profiles, including the appellants, was found in a large saliva
    stain on the front left leg of Roberts pants.

[28]

The appellants DNA was not found under Roberts fingernails. A
    two-centimetre long hair from a males scalp was found on the inside front area
    of Roberts pajama pants. The hair was in the active growing stage and some
    force would have been required to pluck it. The DNA profile did not match that
    of the appellant or anyone else involved in the investigation.

[29]

None of the appellants blood was found in the bedroom, but his
    blood was found in two small dry transfer stains on the front door of the
    house. It could not be determined how long his blood had been there. No blood
    or weapons were found in the appellants truck or Roberts jeep. There was no
    evidence of a cleanup in the house or in the appellants or Roberts vehicle.
    No blood was found on the clothing worn by the appellant upon his arrest,
    although his own blood was on his wallet and truck key.

[30]

With this background evidence in mind, I will now deal with the
    first issue.

C.

Did the trial judge err in dismissing the
OConnor
Application?

[31]

The appellant brought an application to obtain OPP records
    related to two other brutal attacks on two female victims, alleging that these attacks
    were strikingly similar to the Roberts murder and would assist the appellant in
    putting forward an alternative suspect defence. The application was brought in
    accordance with
R. v. OConnor,
[1995] 4 S.C.R. 411, which sets out a
    two-part test for disclosure. At the first stage of
OConnor
, the
    application judge determines whether the records sought are likely to be
    relevant. At the second stage of
OConnor
, the application judge
    decides whether to order production:
R. v. McNeil
, 2009 SCC 3, [2009]
    1 S.C.R. 66, at para. 7.

(a)

The Alleged Similar Attacks

[32]

Prior to Roberts murder, 42-year-old Sonia Varaschin was
    murdered in her townhouse in Orangeville, Ontario, sometime between August 30
    and September 7, 2010. Her killer was never caught. Subsequently, on December
    7, 2010, while the appellant was still in custody, 44-year-old Shelley Loder
    was brutally assaulted in her photography studio next to her home in Mono, a
    village northeast of Orangeville. She suffered serious head injuries. Police
    never apprehended the culprit. The OPP, who were investigating these attacks,
    refused to disclose the investigative files requested on the basis that disclosure
    to the appellant could compromise the integrity of the investigations.

[33]

In his ruling with respect to the first stage of the
OConnor
application, the application judge referred to the list of alleged similarities
    between the three cases, at para. 23 of his reasons:

a. All three victims resided geographically close to one
    another being, at most, within a 30-minute driving radius;

b. All three communities lie on Dufferin County Road
    109/Wellington Road 109;

c. All three crimes can be characterized as home invasions,
    with all three victims being attacked either in or near their residences;

d. All three crimes occurred in quiet, suburban areas;

e. It is likely that all three attacks occurred during waking
    hours of the day;

f. The attacker in each of the three cases likely knew the
    victims habits and routines;

g. At least two of the crime scenes (those of Varaschin and
    Roberts) were covered with blood (it was unknown to the applicant whether the
    crime scene from the attack of Loder was also covered in blood);

h. It is likely that a similar type of weapon was used in each
    of the three cases;

i. All three victims were female and were subjected to severe
    acts of brutality, involving personal and brutal violence;

j. All three victims were in the age range of mid-30s to
    mid-40s;

k. The Varaschin murder occurred in August 2010, the Roberts
    murder occurred in October 2010 and the Loder attack occurred in December 2010;
    all within a three month time radius;

j. All three victims had a close connection to the medical
    field; and

m. A link between the Varaschin murder and the Loder attack had
    already been considered by investigators.

[34]

In response to the appellants application, Detective Ballantyne
    swore an affidavit contending that several of the purported similarities were
    non-existent or overblown. In particular, he raised the following differences:

·

There
    was no evidence to support the suggestion that all three cases could be
    characterized as home invasion crimes;

·

Loders
    residence was in a rural location (not a suburban area);

·

The
    Varaschin murder occurred at night (not during waking hours);

·

Not
    all three victims had a close connection to the medical field. Loder had no
    involvement with the medical field. Varaschin was a nurse working for a
    pharmaceutical company;

·

After
    various consultations in accordance with an established protocol, the investigators
    had already concluded that there were no links or connections between the
    cases.

[35]

Defence counsel did not cross-examine Detective Ballantyne on his
    affidavit.

(b)

OConnor
Ruling Stage One

[36]

The original
OConnor
application, dated August 28,
    2012, was very broad. The Supplementary Notice dated September 21, 2012 was
    much more focused. At the hearing of the application, defence counsel further
    narrowed the request and advised the application judge that he was seeking
    specific material in the Varaschin and Loder cases related to the means used to
    carry out both attacks.

[37]

In the course of submissions, defence counsel said that the third
    party files in the Varaschin and Loder cases would be likely relevant if they
    showed similarities to the Roberts murder. He stated:

Your Honour I think I can focus pretty specifically in the
    circumstances of this case, what I am interested in is whether the
    circumstances attendant to the Roberts homicide are replicated in either
    Varaschin or Loder, and that is whether it is a blunt force trauma event with
    the use of an instrument.

[38]

Later in his submissions, defence counsel reiterated that the
    objective of the application was to determine whether there are similarities
    between the methods employed in the Roberts homicide and the methods employed
    by the killer in Varaschin or the attacker in Loder.

[39]

In reply submissions he further stated:

I am seeking another similarity and that is the method
    employed in the infliction of harm in Varaschin and Loder. If it comes out that
    a long or a thin blunt edged instrument is used in blunt force trauma in
    Varaschin or Loder, I have another piece of my circumstantial case to bolster
    my third party application.

[40]

For clarity, the application judge recited back to defence
    counsel the specific materials being sought:

The Court: Varaschin crime scene photos, including of murder
    weapon if recovered, CFS reports, and pathologists report, right?

Defence counsel: Yes, your honour.

The Court: Loder, crime scene photos, including [of weapon] if
    recovered, CFS reports and thats it.

Defence counsel: Yes.

[41]

The application judge ruled, at para. 31, that the appellant met
    the first stage of the OConnor test because the records being sought were likely
    relevant to a significant trial issue, the identity of the perpetrator. He
    then stated, at para. 32, that this left the question of balancing societys
    interest in protecting the fruits of the investigation with the accuseds
    interest in making full answer and defence. After noting that the disclosure request
    was not for confidential, personal or potentially embarrassing information, he
    observed, at para. 36:

We are being asked to permit a judge hearing an application to
    receive certain information which would be specified to enable her or him to
    decide if it could or would be probative with respect to the question of the
    weapon used or not used in the other two crimes.

[42]

After concluding that the records sought were likely relevant and
    that the appellants right to make full answer and defence outweighed societys
    interest in refusing disclosure, the application judge allowed the application
    and ordered limited production:

(1)

The lead investigator in the
    Varaschin homicide investigation shall assemble and provide to me:

(a) any crime scene photographs which include a weapon or
    possible weapon;

(b) a description, and if they exist, photographs of any
    weapon recovered believed to have been used;

(c) any Centre of Forensic Science reports which might
    identify the type of weapon or weapons, if any used;

(d) the relevant portion of any pathologists report which
    might opine with respect to the nature of the injuries received and the weapon
    or weapons which might have been employed to cause them.

(2) The lead investigator in the Loder investigation shall
    assemble and provide to me the documents referred to in subparagraphs (a) (b)
    and (c) above
[1]
.

(c)

OConnor
Ruling
    Stage Two

[43]

On November 28, 2012, after
    reviewing the material provided by the OPP, the application judge dismissed the
OConnor
application.

The
    reasons for his decision were sealed, along with the materials produced for
    inspection, but he made a brief statement:

There is absolutely nothing in the material that I receivedto
    connect the murder weapon in the Roberts homicide with either of the other two
    investigations. Whatever evidence there may or may not be with respect to a
    murder weapon or weapons, if any, in the other two investigations, does not
    suggest to me at all that a long, thin, blunt object was involved in them, and
    indeed for reasons I have already included in the sealed envelope that I will
    shortly seal, suggests quite the contrary. Accordingly, there is nothing to
    disclose to either the Crown or the defence.

(d)

Discussion

[44]

At the outset, I note that the six principles for evaluating this
    ground of appeal were set out by Watt J.A. in
R. v. Bradey,
2015 ONCA
    738, 127 O.R. (3d) 721, at paras. 75-87. First, the
OConnor
procedure
    governs production of
any
records beyond the possession and control of
    the Crown, whether or not a reasonable expectation of privacy attaches. Second,
    the applicant must establish the existence of further logically probative material
    that may be useful to the applicant in making full answer and defence. Third,
    the applicant must demonstrate the likely relevance of the records sought to an
    issue in the proceedings. Fourth, while this burden is significant, it is not
    onerous; the applicant is not required to demonstrate the precise manner in
    which the documents will be used at trial. Fifth, relevance to an issue in the
    proceedings includes substantive issues, the credibility of the witness and the
    reliability of the other evidence in the case. Relevance also includes an issue
    related to the competence of a witness to testify. Where the record sought is
    confidential and contains statements made on issues relevant to credibility,
    the applicant must show the statements have some potential to provide
    additional information that either has some impeachment value or is not already
    available. Sixth, if the records are found to be likely relevant, the question then
    becomes whether production should be ordered. Production should be ordered only
    if the records sought have significant probative value that is not substantially
    outweighed by the danger of prejudice to the proper administration of justice
    or the harm to the privacy rights of any witness or to any claim to privilege. Furthermore,
    the opposing partys characterization of the records sought or their contents
    is not dispositive of the application.

[45]

The second stage of the analysis is more suited to determining
    questions of confidentiality and privacy, not the first or likely relevance
    threshold.

(e)

Did the Application Judge Err at the First Stage of the
OConnor
Process?

[46]

Turning to the merits of this ground of appeal, the appellant
    submits that the application judge erred by considering and balancing the
    public interest against the appellants right to make full answer and defence
    at the first stage of the
OConnor
process. He submits that this
    incorrect approach caused the application judge to apply a more stringent onus
    on the appellant and order unduly limited production of records for the courts
    review. He further submits that the application judge incorrectly relied on
    jurisprudence pertaining to a known third party suspect, as opposed to
    jurisprudence on an unknown third party suspect, with the result that the
    application judge focused on the similarity of the weapons used and discounted
    the similarity of the injuries sustained in the Roberts murder and the other
    two crimes. The application judge further erred by requiring the records to
    show the use of a similar weapon in all three crimes, when the existence of
    such a signature is not required for admitting defence-led similar act
    evidence. The use of different weapons ought not to have ruled out a nexus
    between, what the appellant says, were similar attacks. The application judge
    ought to have ordered all materials from the other investigations relating to
    the nature of the injuries, such as Loders medical records, so as to assess
    whether the cumulative effect of the similarities established a sufficient
    nexus between the attacks to warrant disclosure.

[47]

The short answer to these submissions is that, at the hearing of
    the application, defence counsel sought specific files that narrowed the
    information he was seeking and the application judge essentially ordered what
    was sought. Thus, any alleged errors on the part of the application judge have no
    bearing on the outcome of this appeal.

[48]

I agree with the appellant that the only question at the first
    stage of
OConnor
is likely relevance. The public interest in refusing
    disclosure is not to be weighed against the appellants right to make full
    answer and defence until the second stage of the analysis.

[49]

However, the approach adopted by the application judge did not
    cause him to order unduly limited production of records for the courts review
    or to consider the evidence piecemeal. Although the defence initially sought
    crime scene photos in general, its focus was to know: (1) whether the two
    attacks were a blunt force trauma event with the use of an instrument; and
    (2) whether the method employed in the infliction of harm in the Varaschin
    murder and the Loder attack bore similarity to the Roberts murder. Defence
    counsel did not pursue the likely relevance of the entire investigative file
    for the Varaschin and Loder cases. Defence counsel also made a tactical
    decision not to pursue obtaining Loders medical record. The application
    judges order was designed to obtain the information requested by the defence
    at the application hearing.

[50]

The likely relevance of the entire medical files has not been
    shown on this appeal.

[51]

In the circumstances, the application judge did not err in the
    order he made.

(f)

Did the Application Judge Err at the Second Stage of the
OConnor
Process?

[52]

After reviewing the material that OPP provided, the application
    judge dismissed the
OConnor
application. His reasons for dismissal
    are sealed. This court has a discretion to review these materials and the
    application judges reasons in camera without the participation of the parties.
    It did so. After examining the materials, this court concluded that the
    application judge did not err in refusing to order production at stage two of
    the analysis.

D.

Did the Trial judge err in holding there was no air of reality to the alternate
    suspect defence?

[53]

At trial, the appellant applied for an order to advance an
    alternate suspect defence before the jury consisting of publicly accessible
    information about the Varaschin murder and the Loder attack through an agreed statement
    of facts. The agreed statement of facts essentially reiterated the similarities
    between the Roberts murder and the other two crimes that had been outlined in
    the
OConnor
application.

[54]

The Crown concedes that, despite the
OConnor
ruling,
    the appellant was entitled to make the application he did.

[55]

The trial judge dismissed the application. In his ruling, the
    trial judge first commented that evidence of a third party suspect may be
    admissible whether the suspect is known or unknown and that it is not necessary
    to specify who the alternate suspect is. He then assessed the evidence in
    context as follows, at paras. 14-16 of his decision:

Defence argues, first of all, that the location of all three
    crime scenes is significant.
[2]
I respectfully disagree. To suggest the perpetrator in the Roberts case is the
    same person as the perpetrator in either Loder or Varaschin simply based on the
    fact that all three cases occurred in the locations indicated is simply too
    tenuous to amount to a connection between the cases.

Defence counsel then argues that the fact that the victims are
    all women is relevant. Again, this is far too tenuous even when considered in
    concert with the geographic argument upon which to argue that there is some
    connection. Half the population is female.

There is nothing in the ages of the victims, or in their
    backgrounds, that suggest[s] any similarity or connection either alone or in
    conjunction with their sex or the locations of the crimes. Finally, the fact
    that three apparently isolated incidents occurred within a thirty mile radius,
    in a three month period, adds nothing to the suggestion that there is any air
    of reality that the crimes are sufficiently connected to argue that a properly
    instructed jury acting reasonably could find that the perpetrator in the
    Roberts case might have been the same as in either of the other two cases.

[56]

The trial judge then reviewed the case law. He referred to
R.
    v. McMillan
(1975), 7 O.R. (2d) 750 (C.A.), affd [1977] 2 S.C.R. 824, for
    the proposition that evidence directed to proving that the crime was committed
    by a third person rather than the accused must meet the test of relevancy and
    have sufficient probative value to justify its reception. He  considered
R.
    v. Grandinetti
, 2005 SCC 5

[2005] 1 S.C.R. 27,
for the
    requirement that there must be a sufficient connection between the third party
    and the crime itself. Next, he adopted and applied the jurisprudence set out by
    McKinnon J. in
R. v. Tehrankari
,

[2008] O.J. No. 5651, affd 2012 ONCA 718, 298 O.A.C. 252, leave to appeal
    refused, [2012] S.C.C.A. No. 547.

[57]

The trial judge ruled that there was no air of reality to the
    alternate suspect defence.

[58]

On appeal, the appellant submits that the trial judge dismissed
    the application because he erroneously applied the requirements  for a known
    third party suspect defence set out in
Grandinetti
,

instead of the requirements for an
    unknown third party suspect defence set out in
R. v. Grant,
2015 SCC
    9, [2015] 1 S.C.R. 475, which was released after his ruling. He relies in
    particular on the following passage from paragraph 26 of
Grant
:

There is no principled reason to require that the connection be
    established by evidence relating directly to the third party where that
    individual is unknown. Such an articulation of the test  designed for example,
    to capture the motive, propensity or opportunity of a known third party to
    commit the crime  would place an unrealistic burden on the accused.

[59]

He submits that there are the following links between the
    Roberts murders and the other two crimes: (1) the victims had similar
    backgrounds in terms of gender and age; (2) the crimes were similar in nature, took
    place in similar locations with similar communities, involved similar violence,
    and had geographic proximity; and (3) the investigations were linked by the
    fact that the police had previously considered the connections between the
    cases. He further points out that the attacks have temporal proximity in that
    they were only three months apart
.

Discussion

[60]

Grant
was a murder case in which the deceased, a 13-year-old
    school girl, was found hogtied with twine in an industrial yard. The bindings
    on the deceaseds wrists were tied by means of a Granny Knot and a Wrigleys
    blue gum wrapper was found in the immediate vicinity. The cause of death was
    hypothermia. At trial, the accused sought to adduce evidence of an unknown
    third party suspect. The evidence in the other crime was summarized by the
    Manitoba Court of Appeals decision in Grant, 2013 MBCA 95, 302 C.C.C. (3d)
    491, at para. 47, as follows:

The judge was provided with evidence that suggested thatat a
    time when the accused was in custody, an adolescent by the name of P.W. had
    been abducted from a Winnipeg street and then found with her hands and feet
    tied in an empty railway boxcar situated in an area 2.6 kilometers from where
    [the deceased] had been located[.] A Wrigleys blue gum wrapper was found at
    [the scene]. The bindings on [the deceaseds] wrists were tied with a Granny
    Knot and the bindings on P.W.s wrists were described as a Granny Knot.

[61]

The Court of Appeal concluded that this evidence, which it
    considered to be defence led similar-fact evidence, was admissible so long as its
    probative value outweighed its prejudicial effect. The evidence was also
    relevant in assessing the defence DNA expert evidence that excluded Grant as a
    suspect.

[62]

On appeal to the Supreme Court of Canada, Karakatsanis J. set out
    the criteria for admitting defence evidence led for the purposes of establishing
    an unknown third party suspect defence. First, the applicability of the
    presumption of innocence means that defence-led evidence can only be excluded
    if the prejudice occasioned by its admission substantially outweighs its
    probative value. Second, in order for the trial judge to put the defence to the
    jury, the accused must point to evidence on the record that gives the defence
    an air of reality. Third, these principles are distinct but interrelated.
    Karakatsanis J. stated, at para. 21:

For example, while the degree of similarity may be logically
    relevant to whether the same person committed the offence, it will not relate
    to a fact in issue at trial unless the defence has an air of reality.
In this case, the unknown third party suspect defence will not have
    an air of reality
unless there is evidence that the accused could not
    have committed the other offence.

[63]

Fourth, an accused must prove that there is a connection between
    the unknown third party suspect and the crime for which the accused is charged.
    Unlike in the test for admitting evidence of a known third party suspect, an
    accused can establish this connection without adducing evidence that the
    alleged unknown third person suspect had the motive, the means, or the
    propensity to commit the crime charged. Fifth, the sufficient connection
    generally arises from similarities between the crime charged and another crime
    that the accused could not possibly have committed. The focus on similarities
    is to ensure that the evidence tendered is logically relevant. Sixth, once the relevancy
    threshold is met, in the sense that a sufficient connection between the crimes
    exists, the trial judge must still be satisfied that the probative value of the
    evidence adduced outweighs its prejudicial effect. Karakatsanis J. stated, at
    paras. 42, 48:

The value of the evidence must be balanced against the risks
    posed to the integrity of the trial when a party seeks to expand the ambit of
    the trial to individuals or events not directly related to the crime indicted.

The same is true of the some evidence threshold in the air of
    reality test when used in conjunction with the requirement for a sufficient
    connection between the crimes, respects the requirements of [the jurisprudence]
    and properly balances the integrity of the trial process with the accuseds
    right to make full answer and defence.

[64]

Karakatsanis J. then summarized, at para. 54, the points above as
    follows:

Thus, defence evidence is admissible where (1) the evidence is
    relevant to a fact in issue; and (2) the probative value of the evidence is not
    substantially outweighed by its prejudicial effects. Where the connection
    between the evidence and a fact in issue at trial is not obvious, the air of
    reality test may help a trial judge in determining if the evidence tends to
    prove a defence that may become available. Relevant evidence concerning an
    unknown third party suspect will only be excluded where its prejudicial effects
    substantially outweigh its probative value.

[65]

Applying the criteria set out in
Grant
to this case, I would
    hold that the trial judge did not err in dismissing the alternate suspect
    application. The Varaschin murder was committed sometime between August 30 and
    September 7, 2010. At that time, the appellant was not yet in custody as the Roberts
    murder occurred later on October 6, 2010. The appellant was in custody when the
    Loder attack took place, which was on December 7, 2010 so he could not have committed
    that crime. It is mere speculation on the part of the defence that the same
    individual could have committed the Varaschin and Loder crimes. Furthermore, no
    nexus between these crimes and the Roberts murder has been shown. Unlike in
Grant,
where the investigators concluded that the crimes at issue were likely
    committed by the same individual, the OPP in this case concluded that there was
    no connection between the Roberts murder and the other two crimes. That
    conclusion is also supported by the
OConnor
ruling, which this court upheld.

[66]

For these reasons, there was no air of reality to the appellants
    alternate suspect defence. Accordingly, I would hold that the trial judge did
    not err in refusing to allow the alternate suspect defence to be put to the
    jury.

E.

Was the jurys verdict of first degree murder unreasonable?

[67]

The appellant argues that the verdict of first degree murder was
    unreasonable. It is his position that there was insufficient evidence to
    support a finding that the murder of Roberts was planned and deliberate. He
    submits that the Crown relied on the lack of forensic evidence to establish
    planning and deliberation. In this respect, his complaint primarily concerns
    the Crowns closing submissions at trial, which he argues unfairly invited the
    jury to speculate on the reasons why evidence of blood outside the crime scene
    was absent. He further argues that the trial judge should have corrected this
    overreach by the Crown.

[68]

The appellant concedes that it was open to the jury to draw the
    inference that he went to 116 Schmidt Drive after leaving the Musahi lot,
    concealed himself and, during the ensuing eight-hour period until Roberts last
    phone call, he would have had time to deliberate. He argues, however, that a
    more likely reason for him to conceal his presence at the Arthur home would
    have been the fact that his bail conditions prohibited him from being there.

[69]

He submits that as the Crowns case was circumstantial, and a
    planned and deliberate murder was not the only reasonable inference to be drawn
    from the evidence of concealment or the opportunity to deliberate, the first
    degree murder verdict was unreasonable. He requests that this court substitute
    the verdict of second degree murder.

[70]

The Crown responds that the verdict of first degree murder was
    reasonable, based on the history of the relationship between the appellant and
    the deceased and the totality of the circumstantial evidence, including the
    state of the scene after the murder which, the Crown argued, is consistent with
    an inference that the murder was planned and deliberate.

(a)

Standard of Review

[71]

I begin with the standard of review. In R. v.
Yebes
,
    [1987] 2 S.C.R. 168 at p. 185, the Supreme Court of Canada noted:

[T]he test is whether the verdict is one that a properly
    instructed jury acting judicially, could reasonably have rendered

[72]

The test requires an appellate court to consider the whole of the
    evidence and determine, through the lens of judicial experience, whether the
    verdict was reasonable:
Yebes
,

at p. 186. In
R v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R.
    381, at para. 39, the Supreme Court of Canada provided the following guidance
    to appellate courts reviewing the reasonableness of a verdict:

The totality of the evidence and the peculiar factual
    circumstances of a given case will lead an experienced jurist to conclude that
    the fact-finding exercise applied at trial was flawed in light of the
    unreasonable result that it produced.

[73]

More recently, the Supreme Court of Canada addressed the test to
    determine whether a jury verdict is unreasonable in
R. v. W.H.
,
2013 SCC 22
, [2013] 2 S.C.R. 180
.
    After reiterating the test for an

unreasonable verdict in
Yebes
and
Biniaris
,

Cromwell J.
    stated,

at paras. 27-28:

Appellate review of a jury's verdict of guilt must be conducted
    within two well-established boundaries. On one hand, the reviewing court must
    give due weight to the advantages of the jury as the trier of fact who was
    present throughout the trial and saw and heard the evidence as it unfolded. The
    reviewing court must not act as a 13th juror or simply give effect to vague
    unease or lurking doubt based on its own review of the written record or find
    that a verdict is unreasonable simply because the reviewing court has a
    reasonable doubt based on its review of the record.

On the other hand, however, the review cannot be limited to
    assessing the sufficiency of the evidence. A positive answer to the question of
    whether there is some evidence which, if believed, supports the conviction does
    not exhaust the role of the reviewing court. Rather, the court is required to
    review, analyse and, within the limits of appellate disadvantage, weigh the
    evidence and consider through the lens of judicial experience, whether judicial
    fact-finding
precludes
the conclusion reached by the jury. Thus, in deciding whether the verdict is
    one which a properly instructed jury acting judicially could reasonably have
    rendered, the reviewing court must ask 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. [Citations omitted].

[74]

In
R. v. Wills,
2014 ONCA 178, 318 O.A.C. 99, affd 2014
    SCC 73, [2014] 3 S.C.R. 612, Doherty J.A. stated, at paras. 30-31:

The lens of judicial experience refers to the appellate courts
    examination of the cogency of the evidence as informed by the courts awareness
    of the risk of wrongful convictions associated with certain kinds of cases and
    certain kinds of evidence. The court, as an institutional participant in the
    criminal justice system, has an appreciation of those risks that a jury in a
    specific case cannot have.

Section 686(1)(a)(i) requires the appellate court to
    independently weigh the totality of the evidence. The court weighs the
    evidence, however, not with a view to making its own assessment as to the
    appropriate verdict, but for the more limited purpose of determining whether
    the verdict is beyond the reasonableness limit. In making that assessment, the
    court must give due weight to the advantage a jury gains from actually seeing
    the witnesses and hearing the narrative unfold. [Citations omitted].

(b)

Proof of Planning and Deliberation

[75]

In this case, the trial judge properly instructed the jury that
    it had to first be satisfied that the appellant was guilty of murder beyond a
    reasonable doubt, that is, of his identity as the perpetrator of the murder and
    his intention to kill Roberts. Only then could the jury go on to consider
    whether the murder was planned and deliberate.

[76]

To establish planning and deliberation based on circumstantial
    evidence, the jury must be directed to consider all the circumstances that inform
    the question of the accuseds mental state. Such circumstances will seldom, if
    ever, be wholly consistent with only one conclusion as to an accuseds mental
    state. As Spence J. stated in
R. v. Mitchell,
[1964] S.C.R. 471,
at pp. 478-479:

What [the jury] is now called upon to decide is not whether the
    accused committed the act, but whether the murder, of which he is guilty, was
    planned and deliberate on his part. The pattern of evidence which it must now
    consider is not a series of facts, which, in order to establish guilt, must
    lead to a single conclusion. The jury is now concerned with the mental
    processes of a person who has committed a crime. In relation to that crime it
    has to consider his actions, his conduct, his statements, and his capacity and
    ability to plan and deliberate. It must consider the whole of the evidence in
    relation to the issue of planning and deliberation. In nearly every case some
    of this evidence may indicate planning and deliberation and some may indicate
    the contrary. The jury must weigh all of this evidence and arrive at a
    conclusion.

[77]

Similarly, in
R. v. MacKay
(1992), 16 C.R. (4th) 351
(B.C.C.A.),
    leave to appeal to refused, [1992] S.C.C.A. No. 522, the British Columbia Court
    of Appeal stated, at para. 91, that:

[A]lternatives other than that the appellants murder of the
    deceased was planned and deliberate will not lead automatically to a verdict of
    second degree murder. A verdict of first degree murder could still be supported
    if the jury could reasonably infer first degree murder, i.e., a planned and
    deliberate killing, from proven facts which support such a conclusion.

[78]

As Laskin J.A. stated in
R. v. Smith,
2014 ONCA 324, at
    para. 27, two points guide the analysis of whether a jurys verdict of first
    degree murder is reasonable:

[] First, the reasonableness of the verdict has to be assessed
    on the evidence as a whole. And, second, though the appellant can point to
    innocent explanations for individual pieces of evidence, he cannot succeed on
    this ground of appeal if competing explanations are available from which one
    can reasonably infer planning and deliberation [].

[79]

These passages underscore that, on the issue of planning and
    deliberation, a jury is entitled to reject other possible inferences as not
    raising a reasonable doubt and a verdict of first degree murder is not
    unreasonable simply because it does so.  What matters is whether planning and
    deliberation can reasonably be inferred in all the circumstances.

(c)

The Crowns Submissions to the Jury on Planning and Deliberation

[80]

In his submissions, Crown counsel told the jury that, once it was
    satisfied that the appellant was the one who had killed Roberts, and that he
    intended to kill her, it should consider whether it was satisfied beyond a
    reasonable doubt that the murder was planned and deliberate. In support of that
    position, Crown counsel pointed to the fact that the appellant arrived at the
    Musashi lot at 2:12 in the morning. He submitted that it was likely the
    appellant was in the house shortly thereafter. If the appellant was there to
    speak to Roberts, Crown counsel asked why the appellant did not make himself
    known to Follings. Crown counsel also submitted that it did not make sense the
    appellant went there to speak to Roberts given that he had been charged with
    assault the day before and that he wasnt supposed to be there. Was it
    reasonable to think the appellant could have a conversation with Roberts
    knowing that all she had to do was to pick up the phone and he would be charged
    with breaching his bail conditions? If he was there to talk to her why wouldnt
    he just be waiting in the main part of the house when Follings arrived instead
    of hiding from her? Because the appellant did not resurface at Musashi until
    10:56 a.m., the appellant had over eight hours to think about what he was going
    to do.

[81]

The Crown then told the jury:

There has been a lot of discussion about the crime scene
    itself, the crime scene proper, her bedroom, and then the bigger crime scene,
    the house, and how there is blood spatter almost in a 360 degree circle around
    her body. And yet not a single or I should say this, police dont find a trace
    of her blood outside of that room. Now it is indisputable that somebody killed
    Adrienne Roberts, so whoever it was, they got out of that room and didnt leave
    her blood. That fact doesnt help us deciding who it was; it helps us
    understand how they did it and it was very well executed.

If you find that it was Terry Tremble that killed her, and that
    he killed her at around 10:38 because of the blood on her phone, think about
    10:38 to 10:56, eighteen minutes. How precise, how efficient do you have to be
    to kill somebody, get out without leaving any of her blood anywhere, get rid of
    the evidence, get into her vehicle, drive all the way over to Musahi in 18
    minutes. There is no margin for error. If this was a spontaneous murder that
    hadnt been planned, is it possible that you could get into such a rage that
    you did this and not leave something of her evidence outside [of the room in which
    she was killed]? It doesnt make sense. This had to be planned.

And just as an aside, you may be wondering well how is it
    possible for anybody to get out of that room and not leave some of her blood
    around and when the officers were  identification officers were talking about
    Locards Principle of how you leave something behind when you move around in a
    crime scene area and remember the police officers are just as vulnerable to do
    that as anybody would. If they move around the house they could be tracking
    evidence all over the place. What do they do to prevent that? They wear shoes.
    They cover up, thats how you dont leave trace evidence around. And again,
    what does that tell us? Its a well-planned murder. He went there prepared and
    ready to kill her and get out. It was almost the perfectly planned murder, but
    for Musashi.

[82]

The middle paragraph reproduced above is what the appellant
    submits is an invitation to the jury to speculate. The appellant submits that
    the Crowns submissions to the jury went too far because the submissions
    invited the jury to speculate from the absence of evidence outside the room
    where the murder took place the reasons why evidence was absent.

(d)

Did the Crowns submissions require the judge to give a special
    instruction to the Jury?

[83]

The appellant argues that the Crowns overreach in its closing
    submissions should have been corrected by the trial judge. However, when this
    paragraph is placed in context, I disagree that the Crown overreached, or that
    the submissions required correction by the trial judge.

[84]

The circumstantial nature of this case required the jury to draw
    inferences. Inferences must be reasonably and logically drawn from facts
    established by the evidence. Inferences that do not flow reasonably and
    logically from established facts are condemned as conjecture and speculation:
R. v. Morrissey

(1995), 22 O.R. (3d) 514
(C.A.).

[85]

The Crown had already made cogent submissions as to why it was
    unlikely that the appellant went to the house merely to talk to Roberts. The
    Crown reminded the jury of the amount of blood in the room and the evidence of
    the identification officers that to prevent tracking evidence outside the room,
    they cover up.

[86]

Given the evidence as to the amount of blood in the room and the
    evidence as to the necessity to take precautions to prevent evidence from being
    tracked outside the room, it was reasonable and logical to ask the jury to draw
    the inference that the appellant had taken precautions to prevent tracking
    evidence around the Arthur home and that this was an indication he planned the
    murder.

[87]

Once the jury was satisfied beyond a reasonable doubt that the
    appellant had committed the murder, in deciding whether the appellant planned
    the murder, the Crown was entitled to ask the jury to take into consideration
    the evidence referred to above and to draw an inference from it. The Crowns
    submission was not unfair; it did not ask the jury to engage in speculation on
    the absence of evidence. It asked them to draw an available inference from the
    evidence.

[88]

Moreover, the error urged now attracted no objection at trial,
    either before or after the charge was delivered. This is not determinative, of
    course, but it reinforces my conclusion and is indicative that, at trial, the
    basis for using the impugned submission as evidence of planning and
    deliberation was obvious.

[89]

The trial judges reference to this aspect of the Crowns
    submissions in his charge to the jury was as follows:

No trace evidence linking the defendant to the scene, other
    than some saliva on her clothing and the blood near the front door. Does this
    mean that he planned ahead and was therefore able to ensure that no trace was
    left as the Crown argues, or is this simply how matters unfolded.

[90]

Nothing further needed to be said by the trial judge. First, as
    the passage reflects, the trial judge presented a balanced question for the
    jurys consideration, highlighting that the evidence as to the state of the
    scene could be relevant to the issue of planning and deliberation, but it might
    not be.

[91]

Second, the passage must be read in the context of the charge as
    a whole, including the trial judges instruction to the jury that what was said
    by counsel was not evidence, his instructions on circumstantial evidence and
    drawing reasonable inferences, and his overall instructions on planning and
    deliberation.

[92]

I see no error in the manner in which the trial judge reviewed
    the evidence relevant to the question of whether the murder was planned and
    deliberate.

(e)

Does the Evidence Support a Finding of Planning and Deliberation?

[93]

The appellants counsel lists a number of considerations in
    support of his submission that first degree murder was a most improbable
    verdict. That is not the test. Many of the same considerations raised by the
    appellant were mentioned by the trial judge in his fair and balanced charge to
    the jury. The trial judge instructed the jury as follows:

To prove first degree murder, the Crown must prove beyond a
    reasonable doubt, not only that Mr. Tremble had the intent required for murder,
    but also that the murder was both planned and deliberate. Planning and
    deliberation are not the same as intention. For example, a murder committed
    intentionally, but on a sudden impulse or without prior consideration is not
    planned and deliberate.

It is the murder itself that must be both planned and
    deliberate, not something else that Mr. Tremble did, for example, the assault.

The words planned and deliberate do not mean the same
    thing. Planned means a calculated scheme or design that has been carefully
    thought out, the nature and consequences of which have been considered and
    weighed.

The plan does not have to be complicated. It may be very
    simple. Consider the time it took to develop the plan, not how much or little
    time it took between developing it and carrying it out. One person may prepare
    a plan and carry it out immediately. Another person may prepare a plan and wait
    a while, even quite a while, to carry it out.

Deliberate means considered, not impulsive, slow in
    deciding.

It is for you to say whether the murder of Ms. Roberts was both
    planned and deliberate. To decide this issue, you must consider all of the
    evidence, including anything said or done in the circumstances.

If the defendant is, as it appears to be, the person in the red
    pick-up truck, who parks it at 2:12 in the morning, and returns to it in Ms.
    Roberts Jeep at 10:56, if he had walked to the house then he may have been in
    the house, possibly the basement, for a long time, to formulate a plan.
    Alternatively, given their history of discord and reconciliation, his efforts
    at reconciliation and his apparent condition, according to Mr. Schmidt the
    night before, could he have simply gone and waited patiently all night in order
    to talk with her, and things rapidly escalated and he lost it, without taking
    any time to plan and deliberate.

No weapon was found. Does this suggest that a weapon was taken
    and perhaps concealed in order to commit the murder and then the weapon was
    taken away. On the other hand, given that there were tools in the basement, in
    the home where he was at least ostensibly living most of the time, he could
    easily have picked up a tool while he was there, rather than bringing one with
    a set plan in mind, which was then taken away.

Consider the nature of the weapon used, if it was long thin and
    heavy, may it have been readily concealed or was it too big to be concealed and
    more likely therefore, to have been something in the vicinity of where an
    argument broke out when Ms. Roberts would not talk reconciliation, so that the
    murder was not planned and deliberate, but rather on the sudden.

No trace evidence linking the defendant to the scene, other
    than some saliva on her clothing and the blood near the front door. Does this
    mean that he planned ahead and was therefore able to ensure that no trace was
    left as the Crown argues, or is this simply how matters unfolded.

If he had planned her murder in advance, would one have
    expected that he would have had a better plan for leaving, knowing that she
    would be getting home right after her shift, rather than using her vehicle to
    drive away from her house to leave it parked in the lot where it was ultimately
    found.

Is the saliva simply evidence of a heated discussion or does it
    have some other meaning.

There is evidence that he may have had access to long guns and
    if he had planned the murder would this have been his weapon of choice.

Unless you are satisfied beyond a reasonable doubt that the
    murder of Ms. Roberts was both planned and deliberate, you must find Mr. Tremble
    not guilty of first degree murder, but guilty of second degree murder.

If you are satisfied beyond a reasonable doubt that the murder
    of Ms. Roberts was both planned and deliberate, you must find Mr. Tremble
    guilty of first degree murder.

[94]

It is important to keep in mind that when dealing with
    circumstantial evidence, the Crown and defence will argue "competing
    inferences". Resolving them is ultimately for the trier of fact based on
    all the evidence.

[95]

One example is the appellants decision to park his truck and
    then Roberts Jeep in the Musashi lot that openly advertised video
    surveillance. The appellant says that if the murder was deliberate, that makes
    no sense. But the reasoning process behind an accuseds deliberations need not
    be objectively sensible. The word deliberate does not import a requirement
    that the decision be the result of reasonable or rational thinking:
R. v.
    Kirkby
,

[1985] 21 C.C.C.
    (3d) 31 (Ont. C.A.), at p. 67.

[96]

Moreover, the reasonableness of the inferences must be assessed
    in the context of the facts of the case and, in particular, the deteriorating
    relationship and mounting tension between the appellant and Roberts. A few
    weeks before the murder, Roberts advised the appellant that she wanted a
    divorce, which upset the appellant. His journal entries and text messages demonstrate
    that he perceived Roberts to be avoiding him after that, and taking steps to
    actively keep their son away from him. He writes on an almost daily basis
    between September 21
st
and October 5
th
about Roberts
    unresponsiveness to his communications and his inability to see their son. By
    October 5
th
, Roberts was sufficiently concerned for her safety and
    the safety of her son that she went to the police. As a result of information
    she provided at that time, the appellant was arrested for assaulting their son
    and placed on a restrictive bail that essentially prevented him from seeing his
    son. This context informs what inferences were reasonably available to the jury
    as to what the appellant was doing during the hours leading up to the murder.

[97]

Considering the whole of the evidence and its context, the
    jury, acting judicially, could reasonably conclude that the murder was planned
    and deliberate and reject any other inference as not raising a reasonable
    doubt.

[98]

Finally, I note that, in the face of a formidable
    circumstantial case for the Crown, the appellant did not testify. It is
    appropriate for an appellate court to take that into account in assessing whether
    the verdict is unreasonable:
R. v. Noble,
[1997] 1 S.C.R. 874, at
    para. 101.

[99]

For the reasons given, I would dismiss the appeal.

K.M. Weiler J.A.

I agree K. Feldman
    J.A.

I agree Grant Huscroft
    J.A.

Released: August 28, 2017

[1]
The application judge did not order a pathologists report with respect to the
    Loder attack, Since Loder survived the attack, there was no pathologists
    report.

[2]

In the agreed statement of facts, it was alleged that the fact
    that all three victims resided geographically close to one another was
    significant.


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Wilby, 2017 ONCA 662

DATE: 20170818

DOCKET: C62329

Doherty, Blair and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Wilby

Applicant (Appellant)

Frank Addario and Andrew Burgess, for the appellant

Roger Shallow, for the respondent

Heard:  August 18, 2017

On appeal from the order of Justice Gary Tranmer of the
    Superior Court of Justice, sitting as a summary conviction appeal court judge,
    dated June 13, 2016, dismissing an appeal from the conviction entered by
    Justice Elaine Deluzio of the Ontario Court of Justice on February 27, 2015.

APPEAL BOOK ENDORSEMENT

[1]

Leave to appeal is refused.

[2]

The first proposed ground of appeal
    challenges the trial judges rejection of the defence experts uncontested
    evidence about reaction time.  This submission cannot clear the merits
    threshold required for leave.  The trial judge rejected, as she was entitled
    to, the evidence upon which the relevant part of the experts evidence was
    based.   More significantly, the experts evidence about reaction time was
    irrelevant in light of the facts as found by the trial judge.

[3]

The second proposed ground of appeal challenges
    the reasonableness of the verdict.  This ground also fails on the merits
    test.  We also do not agree that it provides an opportunity for this court to
    opine on the application of the law of dangerous driving to police and other
    first responders in general.  Each case turns on its own facts and the law of
    dangerous driving is well-settled.

[4]

Leave to appeal is refused.