CITATION: R. v. Luciano, 2011
      ONCA 89

DATE:  20110201

DOCKET: C43989

COURT OF APPEAL FOR ONTARIO

Feldman, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Luciano

Appellant

DOCKET: C42706

AND BETWEEN

Her Majesty the Queen

Respondent

and

Michael Luciano

Appellant

James K. Stewart, for Her Majesty the Queen

Michael Dineen, for Michael Luciano

Heard: May 18, 2010

On appeal from a conviction of
          first degree murder, entered by the Honourable Justice Alfred J. Stong of the
          Superior Court of Justice, sitting with a jury, on May 22, 2003, and from an
          acquittal of second degree murder, entered by the Honourable Justice Bruce A.
          Glass of the Superior Court of Justice, sitting with a jury, on November 2,
          2004.

Watt J.A.:

[1]

On a cold weekend in late January 2000, the
    lengthy but brittle relationship among Michael Luciano, Colleen
    Richardson-Luciano and James Cooper ended. Abruptly and violently. First, in
    Woodbridge. Then, in Egmondville. Two deaths.

[2]

Colleen Richardson-Luciano died first. In
    Woodbridge. Stabbed to death.

[3]

A day later, James Cooper died in Egmondville.
    By asphyxia from strangulation.

[4]

Michael Luciano either killed or witnessed the
    killing of his estranged wife, Colleen Richardson-Luciano. Then Michael Luciano
    killed his friend, James Cooper.

[5]

Michael Luciano was charged with two counts of
    murder: the second degree murder of Colleen Richardson-Luciano and the first
    degree murder of James Cooper. Both counts were originally included in a single
    indictment.

[6]

When Michael Luciano appeared for trial, the
    presiding judge decided that the counts should be severed and separate trials
    held.
[1]

[7]

The trial of the first degree murder count
    involving the death of James Cooper proceeded first before the trial judge who
    had ordered severance. The jury heard evidence about both killings and
    convicted Luciano of first degree murder.

[8]

The trial of the second degree murder count
    proceeded several months later before a different judge. The jury heard
    evidence about the killing of Colleen Richardson-Luciano, but not about
    Coopers death or why Cooper didnt testify at trial. They found Luciano not
    guilty.

[9]

In each case an appeal has been taken. Luciano
    appeals his conviction of first degree murder. He alleges that the trial judge
    made a number of mistakes in his final instructions to the jury. The Attorney
    General appeals Lucianos acquittal of second degree murder and argues that the
    trial judge was wrong in failing to admit evidence of the killing of Cooper, or
    at least evidence that Cooper was dead when the second trial occurred. Both
    appellants seek a new trial.

THE BACKGROUND FACTS

[10]

The circumstances that underlie the prosecution
    of Michael Luciano (Luciano) provide the context necessary for an evaluation of
    the claims of error made in connection with both trials.

The Principals

[11]

James Cooper was a 38-year-old career recidivist
    whose prior convictions included several robberies and other offences against
    the person. He had been deported to Scotland in 1998 on his release from
    penitentiary, but returned to Canada illegally a few months before his death.

[12]

Colleen Richardson-Luciano was an exotic dancer
    addicted to alcohol and cocaine. She had two children, a son, 14, and a
    daughter, 6. She pursued a somewhat nomadic lifestyle after her separation from
    Michael Luciano, the father of her children.

[13]

Like Cooper, Michael Luciano was a 38-year-old
    with a lengthy criminal record. Unlike Cooper, however, Luciano had a full-time
    job. His last criminal conviction occurred in 1992.

The Relationship Among the
    Principals

[14]

James Cooper introduced [then] Colleen
    Richardson to Michael Luciano. The couple lived together for two years, then
    married. Their relationship was turbulent, punctuated by verbal and physical
    abuse. Despite an earlier separation, Ms. Richardson-Luciano returned from time
    to time to the basement apartment in Woodbridge where her husband and children
    lived.

[15]

Prior to mid-January 2000 neither Michael
    Luciano nor his estranged wife had had any contact with James Cooper for
    several years.

The Arrival of James Cooper

[16]

On January 14, 2000, James Cooper arrived
    unbidden at Lucianos apartment in Woodbridge. Michael Luciano was at work.
    Colleen had been staying at her estranged husbands apartment for about a month
    prior to Coopers arrival. She and Cooper drank. Ms. Richardson-Luciano left
    the apartment and did not return for two days. Luciano blamed Cooper for her
    absence.

[17]

The Lucianos argued often. Their arguments increased
    in frequency and volume after Coopers arrival. Cooper also argued with Ms.
    Richardson-Luciano.

The Early Evening of January
    21, 2000

[18]

When Luciano returned home from work on Friday,
    January 21, 2000, Cooper and Colleen were in the apartment. Luciano and Colleen
    drove to a nearby liquor store to pick up some alcohol for the evening. Cooper,
    who had a walking cast on one leg, remained at the apartment with the couples
    young daughter.

[19]

Throughout the evening of January 21, 2000,
    Cooper and the Lucianos listened to loud music, yelled and cursed. Lucianos
    14-year-old son returned home by 11:00 p.m. and went to bed. He complained
    about the noise, but noticed nothing untoward between his parents or his
    parents and Cooper. The upstairs neighbours confirmed the din from the basement
    apartment.

The Fatal Assault

[20]

The upstairs neighbours heard the sound of a
    loud thump from the Luciano apartment around midnight or an hour later. Silence
    followed.

[21]

Michael Luciano is the only living witness to
    the killing of his wife. He claimed that Colleen and Cooper argued over a
    substantial debt Cooper owed to Colleen. The debt had been outstanding for a long
    time. Cooper assured Colleen that he would never repay her. Colleen insulted
    Cooper and threatened retaliation if Cooper persisted in his refusal to pay.
    Cooper remained calm. Luciano told both combatants to keep it down. Colleen
    called Cooper a fucking goof. Cooper got up and stabbed Colleen. She
    collapsed on the floor.

[22]

Deprived of a competing eyewitness version of
    events at the trial for Colleens murder, the prosecutor relied upon expert
    evidence about findings at the scene to contradict Lucianos version of events.
    Luciano also adduced evidence that portrayed Cooper as a person with a
    propensity or disposition for violence and one likely to respond violently to
    the descriptive goof.

The Clean-Up

[23]

Luciano and Cooper cleaned up the apartment and
    immediate area to rid it of any signs that Colleen had been killed there. The
    kitchen and stairwell were scrubbed and blood rinsed from the cleaning
    materials. They wrapped Colleens body in a rug, carried it to Lucianos car
    and put it in the trunk. Luciano bumped into a neighbours car while turning
    his vehicle around to remove Colleens body from the area. He drove 12 kilometres
    from his home and deposited her body in a dumpster.

[24]

Luciano acknowledged his participation in the
    clean-up and disposal of the body, but claimed he did so only out of fear of
    Cooper who had threatened his life and the lives of his children.

The Morning After

[25]

On Saturday morning, Lucianos daughter awakened
    him. She wanted breakfast. After breakfast, she watched television. Later,
    Lucianos upstairs neighbour came into the apartment to speak to Luciano about
    repairing the damage to his [the neighbours] car. The neighbour noticed Cooper
    in the apartment. Cooper was calm and relaxed. Luciano looked like a zombie.

[26]

The neighbour returned to Lucianos apartment
    later in the day to pursue his claim for car repairs. Luciano wanted to resolve
    the neighbours claim without involving the police. Either Luciano or Cooper
    suggested that the neighbour tell any investigators that the incident had
    occurred two days earlier.

The Trip to Egmondville

[27]

Egmondville is not far from Goderich. Luciano
    has several relatives in the area, including his sister and a niece, Elvina
    Wells. After a series of telephone calls from Elvina, Luciano, his daughter and
    Cooper left Woodbridge on Saturday afternoon to drive to Egmondville to visit
    Elvina Wells. They stopped twice along the way and arrived in Egmondville in
    the early evening.

Collecting Supplies

[28]

Shortly after the group arrived in Elvinas home
    in Egmondville, Luciano and Elvina drove over to the homes of some of their
    relatives to collect some liquor and beer for the evening. The beer and liquor
    stores were closed. Elvina and Luciano returned to Elvinas place with a bottle
    of rum and a dozen beers to supplement Elvinas supplies. They began drinking
    around 8:30 p.m. Lucianos daughter was in another room of the house. No one
    said anything about what had happened on Friday night at Lucianos apartment.

The Discussions

[29]

Cooper lay down shortly after midnight. After
    some teasing about his endurance, Cooper got up and continued to drink and to
    talk with the others. He lay down again about an hour later.

[30]

Elvina and Luciano remained at the kitchen
    table. Luciano was drunk. Elvina had polished off two magnums of wine. Luciano
    told Elvina that Cooper had killed Colleen on Friday night. Luciano was an
    accessory. Later, Luciano described Cooper as a witness. He told Elvina
    that he (Luciano) was going to do Cooper that evening before Cooper did
    him.

[31]

Elvina became very upset when Luciano told her
    about what had happened the night before and what he planned to do later. She
    telephoned her parents and asked them to come over, pick her up and take her to
    their place. Her parents arrived a few minutes later and took Elvina to their
    home. After she told them about what Luciano had said, Elvina called the
    police.

[32]

Expert evidence based on Lucianos report of his
    alcohol consumption estimated his blood alcohol concentration at between 300
    and 330 milligrams of alcohol in 100 millilitres of  blood at 2:30 a.m. on
    Sunday, January 23, 2000.

The Killing of James Cooper

[33]

According to Luciano, after Elvina had left, he
    and Cooper got into a physical confrontation. Cooper took a swing at Luciano,
    but missed. Luciano punched Cooper. They wrestled. Luciano was terrified and
    angry. Somehow, Cooper died of asphyxia, which required the application of
    pressure for at least 30 seconds to stop his breathing. The pressure could have
    been applied by an arm around his throat from the rear.

[34]

Lucianos daughter woke up during the
    altercation with Cooper. She saw her father on top of Cooper, with his hands
    in front of him, but couldnt see where her fathers hands were or what he was
    doing with them.

[35]

James Coopers death from asphyxia was
    consistent with manual strangulation.

The Removal of the Body

[36]

Luciano carried Coopers body out of Elvinas home
    and put it in the back seat of his car parked outside the house.

The Arrival of the Police

[37]

Elvina Wells had called the police from her
    parents home. She asked the police to go to her house to remove two men who
    were there and whom she feared were about to get into a fight. Two officers
    accompanied Elvina back to her home.

[38]

When the police arrived, they were met by
    Luciano. Judging by the odour of alcohol on Lucianos breath, his speech and
    his appearance, the officers concluded that Luciano was drunk. In answer to
    their query, Luciano told the police that Cooper was gone. The police took
    from this that Cooper had left on foot. The officers left to find Cooper,
    thinking that they may have seen him earlier in the evening walking along the
    road.

Lucianos Reaction

[39]

Luciano was angry at Elvina for calling the
    police. He told her that he had kicked Coopers guts in good and left him in
    the back of his car. Luciano had a knife and explained to Elvina that he was
    going to gut Cooper in a nearby field as Cooper had done to Colleen the night
    before.

The Return of the Police

[40]

The police returned to Elvina Wells home. They
    checked Lucianos motor vehicle parked outside the house and noticed Cooper in
    the rear seat. Luciano suggested that Cooper be left there to sleep it off
    and offered to turn on the ignition to activate the heater. The officers told
    Luciano that his suggestion was unacceptable. Luciano walked outside, went
    immediately to the rear door on the drivers side of his vehicle and shook
    Cooper. He received no response.

[41]

Luciano told the police that he and Cooper had
    had a fight. Luciano kicked Cooper out. Luciano had no visible injuries. But
    when the officers checked Cooper closely, they confirmed that he was dead.

Lucianos Statement

[42]

Police officers provided Luciano with a
    statement form and asked him to complete his statement about the evenings
    events. Luciano fell asleep in the back of the police cruiser, and remained
    there sitting upright, with a pen in his hand and the statement form on his
    knee, for several hours.

THE APPEAL FROM CONVICTION (THE MURDER OF JAMES COOPER)

[43]

Michael Luciano appeals his conviction of first
    degree murder of James Cooper. Luciano says that the trial judge made several mistakes
    in his final instructions to the jury. Sometimes, the trial judge said the
    wrong things. At other times, the trial judge left out things he should have said.
    When the errors and omissions are added together, Luciano argues, the sum takes
    the case beyond salvage under s. 686(1)(b)(iii) and requires a new trial to set
    it right.

Ground #1: The Instructions on Intoxication

[44]

This ground accumulates several discrete but
    related complaints. Presentation of the relevant evidence in a manner that
    effectively removed intoxication, a viable defence on the evidence, from the
    jurys consideration. Interpretation of the expert evidence about intoxication
    in a way that was prejudicial to the defence. Failure to distinguish between
    the levels of intoxication that could negate the mental element necessary to
    make an unlawful killing murder from the degree that would negate the
    deliberation requirement of planned and deliberate first degree murder. And the
    failure to leave second degree murder as an available verdict for the jury to
    return.

The Background Facts

[45]

The availability of intoxication as a factor for
    the jury to consider in deciding whether an unlawful killing was murder and, if
    murder, whether it was planned and deliberate first degree murder, was not
    controversial at trial.

[46]

The common currency among Elvina Wells, James
    Cooper and Michael Luciano on the evening of January 21, 2000, and into the
    early hours of the following morning was alcohol. For Elvina Wells, it was wine
     two magnums and a start on a third. James Cooper drank beer. Micheal Luciano
    had the lions share of a bottle of rum, then converted to peach schnapps.

[47]

Expert testimony augmented the evidence of alcohol
    consumption. Based on the assumed truth of Lucianos evidence of consumption, an
    expert calculated the blood-alcohol concentration of a person of Lucianos
    proportions at between 300 and 330 milligrams of alcohol per 100 millilitres of
    blood at around the time Luciano caused Coopers death. Another expert
    explained the effect of such a blood-alcohol concentration on a persons
    thought processes, including the ability to undertake goal-directed purposeful
    behavior and to recall various events.

[48]

To some extent at least the accounts of alcohol
    consumption provided by Luciano and Elvina Wells were confirmed by the detritus
    observed by investigators in Wells home. The police officers who responded to
    Wells 911 call also confirmed Lucianos drunken state.

The Positions at Trial

[49]

James Cooper died of asphyxia. The cause of his
    death is consistent with manual strangulation, the application of pressure for
    at least 30 seconds.

[50]

Michael Luciano admitted that his conduct caused
    Coopers death. But, according to Luciano, his conduct did not attract criminal
    liability because it occurred by accident during a consensual, thus, lawful
    activity, wrestling, or in lawful self-defence against an assault by Cooper.
    Luciano also relied on evidence of intoxication to confine his criminal
    liability to the crime of manslaughter.

[51]

The prosecutor and Lucianos trial counsel both
    agreed that the trial judge should
not
leave the included offence of
    second degree murder to the jury.

The Instructions of the Trial
    Judge

[52]

To establish Lucianos guilt of first degree
    murder as the sole principal, the prosecutor relied on the definition of murder
    in s. 229(a) of the
Criminal Code
. To establish that the murder was
    first degree murder, the prosecutor invoked s. 231(2) of the
Criminal Code
:
    the murder was planned and deliberate.

[53]

In cases like this, of planned and deliberate
    first degree murder, in this province and in others, judges instruct jurors
    about the essential elements of first degree murder in a series of steps. These
    step directions include instructions about the mental or fault element required
    to make an unlawful killing murder, and about the added requirement that the
    murder be planned and deliberate to amount to first degree murder; evidence of
    intoxication is a relevant consideration at both steps.

[54]

In this case, the trial judge wandered off the
    conventional path of step-directions. He combined, in a single instruction
    about the state of mind required for first degree murder, brief mention of
    the intent to kill and parts of the specimen charge on planned and deliberate
    first degree murder. The trial judge did not provide jurors with the specimen
    or any instruction about the mental or fault element in murder as defined in s.
    229(a)(ii).

[55]

In his instructions about planning and deliberation,
    the trial judge listed several factors for the jurors to consider. Included in
    the list were Lucianos condition, state of mind, and the degree of his
    intoxication. The trial judge continued:

All these
    things and the circumstances in which they happened, including the evidence
    about how much alcohol he drank and over how long, the opinion of the experts,
    Drs. LeBlanc and Ervin who testified about Mr. Lucianos state of mind as
    affected by the consumption of alcohol, the acute stress disorder, the exhaustion
    from being deprived of sleep, may shed light on his state of mind at the time
    he allegedly committed the offence charged.

All this
    evidence may help you decide what he meant or didnt mean to do and whether he
    planned and deliberated or did not plan and deliberate. Along with this
    evidence consider the evidence of those to whom he spoke after the death of Mr.
    Cooper and what he said to them about the death.

In considering
    all of the evidence, use your good common sense.

[56]

The trial judge gave jurors specific
    instructions about intoxication. He referred to the common sense inference of
    intention from conduct as a means by which state of mind could be proven and
    explained that, in deciding whether to draw the inference, the jury was
    required to take into account the evidence of Lucianos alcohol consumption and
    its effects. He related intoxication to part of the fault element in murder and
    to a planned and deliberate killing in these terms:

Drunkenness becomes a defence for first degree
    murder if it precludes a finding beyond a reasonable doubt of the specific
    intent to kill and the planning and deliberation required for first degree
    murder at the time of the act of asphyxiation, or if it raises a reasonable
    doubt about it.

If you find that Mr. Luciano had consumed alcohol,
    you may consider the effect of that consumption upon him along with the other
    facts bearing on his intent to kill and on his planning and deliberation in
    determining whether he had the requisite state of mind for first degree murder.

[57]

The instructions on intoxication followed the
    two-step approach of
R. v. MacKinlay
(1986), 28 C.C.C. (3d) 306 (Ont.
    C.A.), rather than the one-step format of
R. v. Canute
(1993), 80 C.C.C.
    (3d) 403 (B.C. C.A.), but emphasized that what the jury had to decide was
    Lucianos
actual
intent at the time of the killing. The trial judge also
    gave the jurors the rolled-up instruction on the issue of the state of mind
    required for first degree murder.

[58]

The trial judge left three verdicts for the
    jurors to consider:

·

not guilty

·

guilty of first degree murder

·

not guilty of first degree murder, but guilty of
      manslaughter.

The listed verdicts did not
    include not guilty of first degree murder, but guilty of second degree
    murder. Nor did the instructions distinguish, in express terms, between the
    level of intoxication that may raise a reasonable doubt about the fault element
    required in murder under s. 229(a), on the one hand, and the degree of
    intoxication that may negate the deliberation component of planned and deliberate
    first degree murder on the other.

The Positions of the Parties on Appeal

[59]

For Luciano, Mr. Dineen says that the
    instructions on intoxication contained several errors that, in combination,
    command our intervention.

[60]

First, Mr. Dineen contends that the trial
    judges review of the expert evidence about alcohol consumption and its effects
    was freighted with negative characterizations about what it did
not
prove, automatistic behaviour, rather than about what it did and how it related
    to the factual findings the jury was required to make.

[61]

Second, Mr. Dineen urges, the trial judge
    denigrated and interpreted the expert evidence for the jury, rather than
    reviewing it objectively for the jurors, leaving its effect on the adequacy of
    the prosecutors proof of the critical mental elements for the jurors to
    decide. In his instructions, the trial judge posited that Luciano had an
    operating mind, a state belied by the expert evidence.

[62]

Third, Mr. Dineen continues, the trial judge was
    wrong in failing to leave second degree murder as an available verdict. The
    trial judge made no mention of second degree murder in his final instructions.
    The verdict was reasonably available on the evidence, despite the joint
    position of Lucianos experienced trial counsel and the prosecutor that the
    verdict should not be left. If the jurors had a reasonable doubt that the
    murder of James Cooper was deliberate, for example because of the effects of
    intoxication, the proper verdict would have been not guilty of first degree
    murder but guilty of second degree murder. Part of the problem was that the
    trial judge never told the jurors that a lesser degree of intoxication could
    negate deliberation than might raise a reasonable doubt about the fault element
    in murder.

[63]

For the respondent, Mr. Stewart characterizes
    the instructions on intoxication as fair and balanced, thorough and effective.
    He points out that the trial judges instructions on intoxication were directed
    at two discrete issues, thus served two different purposes. The first had to do
    with Lucianos claim that the conduct that caused Coopers death was not
    unlawful because it was either accidental or occurred in lawful self-defence.
    And the second required the judge to relate intoxication as a stand alone
    defence to the essential elements of first degree murder.

[64]

Mr. Stewart says that it was not wrong for the
    trial judge to clear away any suggestion of automatistic behaviour that may
    have emerged from the expert evidence. Automatism was not and could not be
    advanced as a defence in this case. By clearing it out of the way, the trial
    judge could and did focus on the relevance of intoxication to the issues of
    this case. Any interpretive references the trial judge made to the expert
    evidence were for the purpose of confining it to its legitimate purposes.

[65]

According to Mr. Stewart, the instructions on
    the substantive defence of intoxication expressly related it to accident,
    self-defence, intent to kill, planning and deliberation and even to
    manslaughter. Nothing was said that was wrong. The two-step charge was
    appropriate because of the manner in which the experts expressed their opinions
    and the degree of intoxication advanced. In any event, the instructions made it
    clear that the issue the jury was to determine was Lucianos
actual
intent, not his capacity to form intent.

[66]

Mr. Stewart contends that the failure to
    instruct on second degree murder does not constitute error
.
The trial
    judge simply gave effect to the express agreement of experienced counsel about
    the available verdicts. At all events, the evidence at trial afforded no air of
    reality to a verdict of second degree murder. The blood-alcohol concentration
    advanced was not such that it would raise a reasonable doubt about the
    deliberate character of the killing, but not about the underlying intention to
    kill. But what is more is that the exclusion of second degree murder as an
    available verdict was advantageous to Luciano: a reasonable doubt about first
    degree murder would have resulted in a verdict of manslaughter, even if the
    reasonable doubt related only to the requirement of deliberation.

[67]

Mr. Stewart also denies the obligation to
    provide an express instruction that a lesser level of intoxication may raise a
    reasonable doubt about deliberation than is required to create a reasonable doubt
    about proof of the fault or mental element in murder. In every event, this
    common sense conclusion would not be lost on the jury on the basis of the trial
    judges final instructions in this case.

The Governing Principles

[68]

The assertions of error advanced require
    consideration of several underlying principles.

The Review of Jury
    Instructions

[69]

Worthy of reminder at the outset is the
    overarching principle that the parties in a criminal case are entitled to
    properly, not perfectly instructed juries:
R. v. Daley
, [2007] 3 S.C.R.
    523, at para. 31;
R. v. Jacquard
, [1997] 1 S.C.R. 314, at paras. 2 and
    32. What matters is the substance of the instructions, not their adherence to
    or departure from some prescriptive formula. The language used and sequence
    followed fall within the firmly embedded discretion of the trial judge, to be
    exercised in accordance with the demands of justice in each case:
Daley
at para. 30.

[70]

Failure to tell jurors everything they might
    have been told is not misdirection. Misdirection occurs when the judge tells
    the jury something that is wrong, or tells them something that would make wrong
    what the judge has left the jury to understand. Non-direction, without more, is
    not misdirection:
R. v. Demeter
(1975), 25 C.C.C. (2d) 417 (Ont. C.A.),
    at pp. 436-37, affd [1978] 1 S.C.R. 538;
Abrath v. North Eastern Ry. Co.
(1883),
    11 Q.B.D. 440, at p. 453.

[71]

Appellate courts are to read jury instructions
    as a whole. We are not forensic pathologists dissecting the
corpus
of a
    charge in search of a disease process, much less to assay its effect on the
    survival of the body. Our task is to administer justice, to deal with valid
    objections and to determine whether those claims have led to a miscarriage of
    justice:
R. v. Cohen and Bateman
(1909), 2 Cr.App.R. 197 (C.C.A.), at p.
    207.

The Evidentiary Review

[72]

A trial judge is under a duty to review the
substantial
parts of the evidence adduced at trial and to relate that evidence to the
    issues that are for the jury to decide, thereby to ensure that the jurors
    appreciate the value and effect of the evidence:
Azoulay v. The Queen,
[1952] 2 S.C.R. 495, at p. 497. A trial judge is under no obligation, however,
    to review
all
the evidence. Indeed, a colourless rendition of all the
    evidence, culled from the trial judges bench book, is more apt to numb jurors
    into catatonia than to help them do their job.

[73]

Nor do we impose upon a trial judge the
    obligation to say twice what he or she has said correctly once, in a review of
    the substantial parts of the evidence, when that same evidence may relate to
    the jurors decision on more than one issue at trial:
Jaquard
at paras.
    13-14. In a prosecution for first degree murder based on planning and
    deliberation, for example, the same evidence may exert influence on the jurors
    decisions about whether an unlawful killing is murder and whether a murder is
    planned and deliberate.

Included Offences and Second
    Degree Murder

[74]

A general principle of our criminal law holds
    that counts are divisible. Where the commission of an offence charged in an indictment,
    as described in the offence-creating section, or as a result of these two
    factors in combination, includes the commission of another offence, an accused
    may be convicted of an included offence that has been proven, even though the
    full offence charged has not been proven:
Criminal Code
, s. 662(1). And
    so it is that an accused charged with first degree murder may be found not
    guilty of first degree murder, but guilty of second degree murder:
Criminal
    Code
, s. 662(2).

[75]

The obligation of a trial judge to instruct
    jurors about the availability of a verdict of an included offence is
not
absolute, rather is conditioned upon an air of reality in the evidence adduced
    at trial to permit a reasonable jury, properly instructed, to conclude that the
    essential elements of the included offence have been established: see,
    generally,
R. v. Cinous,
[2002] 2 S.C.R. 3, at paras.
50-55;
R. v. Chalmers
(2009), 243 C.C.C. (3d) 338 (Ont.
    C.A.), at para. 51;
R. v. Sarrazin
(2010), 259 C.C.C. (3d) 293 (Ont.
    C.A.), at para.
62; and
R. v. Aalders
, [1993] 2
    S.C.R. 482.

[76]

Sometimes, like here, counsel may not want a
    particular included offence, or a defence, justification or excuse, which may
    lead to an intermediate verdict, left with the jury. The reasons vary, but are
    often laced with tactical and practical considerations. Incompatibility with a
    primary defence. Presumed risk of a compromise verdict. An unpalatable
    alternative in the circumstances disclosed by the evidence.

[77]

To determine whether failure to instruct on an
    included offence reflects error, appellate courts take into account the
    position of counsel at trial, especially defence counsel:
R. v. Murray
(1994),
    20 O.R. (3d) 156 (C.A.), at p. 171. See also,
R. v. Squire
, [1977] 2
    S.C.R. 13, at p. 19;
R. v. Chambers,
[1990] 2 S.C.R. 1293, at pp. 1319-320.
    After all, an accused has a constitutional right, not without limits, to
    control his or her own defence:
R. v. MacDonald
(2008), 236 C.C.C. (3d)
    269 (Ont. C.A.), at paras. 35-36;
Chalmers
at para. 51. See also,
R.
    v. Lomage
(1991), 2 O.R. (3d) 621 (C.A.), at pp. 629-30; and
R. v.
    Levert
, [1994] 76 O.A.C. 307 (C.A.), at para. 7. No different principle
    applies where the included offence at issue is second degree murder.

Instructions on Intoxication

[78]

In this case, the trial judge was dealing with
    advanced intoxication, in other words, intoxication to a degree that impairs
    an accuseds specific intent or foresight of the consequences of his or her
    conduct that are essential to liability:
Daley
at para. 41. In some
    cases, those in which the death of the deceased is an obvious consequence of an
    accuseds conduct, evidence of a particularly advanced state of intoxication
    may be essential if a claim of intoxication reducing murder to manslaughter is
    to succeed:
Daley
at para. 42.

[79]

In prosecutions for murder, it is commonplace
    for the prosecutor to rely on the common sense inference of intention from
    conduct. The inference is relied upon to aid in the prosecutors proof of an
    intention to kill under s. 229(a)(i), and the knowledge and foresight
    constituents of s. 229(a)(ii):
Daley
at para. 53;
MacKinlay
at p.
    322. Where the prosecutor relies on the common sense inference and evidence of
    advanced intoxication is adduced, we require jury instructions expressly to
    link the evidence of intoxication to the common sense inference. The jury must
    be told to take into account the evidence of alcohol or drug consumption, along
    with the rest of the evidence relevant to the intent or foresight requirement,
    in determining whether to draw the common sense inference in all the
    circumstances:
Daley
at para. 50;
R. v. Seymour
, [1996] 2 S.C.R.
    252, at paras. 19, 21 and 23.

[80]

Where expert evidence is introduced to support a
    claim of intoxication, a trial judge should avoid drawing inferences from or
    interpreting the evidence for jurors in final instructions. Any review of
    expert testimony, and the relation of it to relevant issues, should not
    expressly or impliedly remove the determination of the critical facts from the
    jurys consideration:
Daley
at para. 62;
Cooper v. The Queen
,
    [1980] 1 S.C.R. 1149, at p. 1171.

Intoxication and Planning
    and Deliberation

[81]

Evidence of intoxication is relevant to proof of
    the requirement of deliberation in prosecutions for planned and deliberate
    first degree murder:
R. v. Mitchell
, [1964] S.C.R. 471, at pp. 475-76;
R.
    v. Wallen
, [1990] 1 S.C.R. 827, at pp. 831-32 and 844. Evidence of
    intoxication that falls short of what may be required to negate the intention
    and foresight requirements in the definition of murder in s. 229(a) may raise a
    reasonable doubt about whether a murder was planned and deliberate on the part
    of the person charged:
R. v. Reynolds
(1978), 44 C.C.C. (2d) 129 (Ont.
    C.A.), at p. 138:
R. v. Howard
(1986), 29 C.C.C. (3d) 544 (Ont. C.A.),
    at p. 557, affd on other grounds, [1989] 1 S.C.R. 1337.

[82]

Despite the decisions in
Reynolds
and
Howard
,
    which require an express instruction that planning and deliberation may be
    negatived by a degree of intoxication less than that required to negate the
    intent requirement of s. 229(a)(i) and the knowledge and foresight components
    of s. 229(a)(ii), a majority of the Supreme Court of Canada held in
Wallen
that no such express instruction need be given:
Wallen
at pp. 836 and
    844-45.

The Principles Applied

[83]

This ground of appeal does not warrant our
    intervention on any basis upon which the convictions are impeached as wrong
    through error or omission.

[84]

To take first the complaint about the trial
    judges interpretation or denigration of the expert evidence, rather than a
    simple review of its substantive features and its relation to the issues ripe
    for the jurys decision.

[85]

The trial judge explained the influence of
    intoxication on the jurys decision on two issues:

i.

the unlawful character of the killing; and

ii.

the legal character of the offence committed.

Evidence of intoxication
    required consideration on both these issues. As the judge explained, evidence
    of intoxication was relevant to the jurys assessment of the claims of accident
    and self-defence advanced on Lucianos behalf to raise a reasonable doubt about
    the unlawfulness of his conduct that caused Coopers death. And the same
    evidence, as the judge instructed, required consideration in the jurys
    decision about the adequacy of the prosecutors proof of the mental or fault
    element in first degree murder.

[86]

In his review of the expert evidence, the trial
    judge pointed out that the evidence did not suggest that Lucianos conduct was
    automatistic. This observation was correct: defence counsel was not advancing,
    nor would the law tolerate in the circumstances of this case, a defence of
    non-mental disorder automatism.

[87]

The excursion into automatistic conduct and a
    level of intoxication that was not in issue could easily have been omitted from
    the judges final instructions but, sometimes at least, clearing away the
    underbrush of what is not at issue sharpens the focus of what is to be decided.
    The detritus aside, the trial judge then focused on the influence of evidence
    of intoxication on the controverted issues in the case: the
actual
state
    of mind of Michael Luciano.

[88]

The complaint about the negative aspect of the
    instructions on intoxication lacks substance. What was said here is no
    different than what appears in the opening paragraph of the one-step charge in
Canute
affirmed by the Supreme Court of Canada in
Daley
:
Canute
at p.
    419;
Daley
at para. 48;
MacKinlay
at pp. 321-22; and
R. v.
    Robinson
, [1996] 1 S.C.R. 683, at para. 49. The purpose of the instruction
    is to ensure that jurors appreciate the nature and extent of intoxication
    required to warrant consideration, along with other relevant circumstances, on
    proof of the specific mental or fault element in the offence charged. The trial
    judge made it clear to the jury that, like the evidence of any witness, they
    were entitled to accept or reject the evidence of the experts in whole or in
    part.

[89]

Luciano contends that the trial judges failure
    to leave second degree murder as an available verdict prejudiced him in two
    ways. First, the failure to leave second degree murder effectively precluded a
    considered examination of the effect of the evidence of intoxication on the
    requirement of deliberation. Second, the failure to leave second degree murder
    predisposed the jury to convict of first degree murder.

[90]

I would not give effect to either aspect of this
    claim of error.

[91]

The trial judge did not follow the prevailing practice
    of dividing up the offence charged, first degree murder, into its essential
    elements:

i.

that Luciano caused Coopers death;

ii.

that Luciano caused Coopers death unlawfully;

iii.

that Luciano had a state of mind required for
      murder when he unlawfully killed Cooper; and

iv.

that Lucianos murder of Cooper was both planned
      and deliberate.

Had the trial judge followed
    these steps and instructed the jury on the legal requirements of each essential
    element, a reasonable doubt about element iii would have led to a conviction of
    manslaughter, and a reasonable doubt about element iv to a conviction of second
    degree murder.

[92]

The omission of second degree murder as an
    available verdict was at the specific joint request of counsel conducting the
    trial. The only basis upon which a finding of guilt of second degree murder
    could have been recorded was if the evidence of intoxication did not raise a
    reasonable doubt about the intent to kill (the only fault element in murder
    mentioned by the trial judge), but did raise a reasonable doubt that the
    intentional killing was deliberate. The incapacitating degree of intoxication
    advanced here, a blood-alcohol concentration of between 300 and 330 milligrams
    of alcohol per 100 millilitres of blood, if accepted, was incompatible with
    murder of either degree.

[93]

In this case the trial judge instructed the
    jurors that if they had a reasonable doubt that Luciano intended to kill Cooper
    and that he planned and deliberated the killing, they (the jurors) were to
    consider whether Luciano was guilty of manslaughter. A proper instruction would
    have left second degree murder as the verdict if the reasonable doubt related
    to deliberation, but
not
to the intent to kill. The verdict of the jury indicates
    that the jurors were satisfied beyond a reasonable doubt, not only that Luciano
    intended to kill Cooper, but also that he planned and deliberated the murder.

[94]

The final complaint about the instruction on
    intoxication has to do with the failure of the trial judge to instruct the
    jury, expressly, that the deliberation requirement essential for murder to be
    classified as first degree murder under s. 231(2) of the
Criminal Code
may be negated by a degree of intoxication less than what may negate the mental
    element in murder under s. 229(a).

[95]

In this case, the trial judge instructed the
    jurors that evidence of intoxication was one of the factors for them to
    consider in deciding whether the prosecution had proven the state of mind
    required for first degree murder. In the instructions, state of mind included
    both the intent to kill and planning and deliberation.

[96]

In at least two prior decisions,
Reynolds
and
Howard
, this Court has held that a judge should instruct the jury
    expressly that a lesser degree of intoxication than might be required to
    negative the intent to kill may negative planning and deliberation:
Reynolds
at p. 138;
Howard
at p. 557. In
Wallen
, however, a majority of
    the Supreme Court of Canada considered it the better course to include such an
    instruction, but not a fatal error to omit it:
Wallen
at pp. 836-37 and
    pp. 844-45.

[97]

As
Wallen
points out, in the final
    analysis, the influence of evidence of intoxication upon the issue of whether a
    murder was planned and deliberate is an issue of fact. And what is more, the
    issue is one with which jurors are quite capable of dealing when equipped with
    instructions about the essential elements of planned and deliberate first
    degree murder:
Wallen
at p. 845.

[98]

I would not accede to any ground of appeal relating
    to the adequacy of the final instructions on intoxication.

Ground #2: The Instructions on Propensity Evidence

[99]

The jurors heard evidence about the
    circumstances in which Colleen Richardson-Luciano was killed. Luciano and
    Cooper were there. Luciano said Cooper killed her after Colleen called Cooper a
    fucking goof. The jurors also heard evidence about what Luciano and Cooper
    did after Colleens death to dispose of her body and remove any traces of the
    killing from Lucianos basement apartment.

[100]

Counsel for Luciano at trial, an experienced
    criminal lawyer, offered no objection to the relevance, materiality or
    admissibility of evidence about the relationship between the Lucianos and the
    circumstances surrounding Colleens death. The complaint here is that the trial
    judge never properly curtailed the use the jurors could make of this evidence
    of extrinsic misconduct.

[101]

As with any ground of appeal, context is
    critical. A thumbnail sketch will do in this case.

The Background Facts

[102]

At Lucianos trial for the first degree murder
    of James Cooper, the jurors heard evidence about the circumstances leading up
    to, surrounding and following Colleen Richardson-Lucianos death. The evidence
    disclosed that Colleen and Michael Luciano argued often and loudly. The only direct
    evidence about Colleens death came from Michael Luciano who said Cooper did
    it. And Cooper was not there to deny liability because Michael Luciano had
    killed Cooper within about 24 hours of Colleens death.

[103]

To support his claim that it was James Cooper,
    not he, who had killed Colleen, Luciano adduced evidence of Coopers general
    propensity for violence, including Coopers substantial criminal record. In
    contrast, Luciano, whose last criminal conviction had occurred in 1992, was
    said to be a good father and a good, reliable and hard working employee.

The Jury Instructions

[104]

The prosecutor contended that Luciano killed his
    wife. Cooper was a witness to the killing. The motive for Luciano to kill
    Cooper, according to the prosecutor, was to eliminate Cooper as a witness who
    could incriminate Luciano in Colleens death. The trial judge instructed the jury
    about the use it could make of the evidence of motive and described the motive as
    the elimination of Cooper as a witness to the killing of Colleen.

[105]

The trial judge concluded his instructions on
    motive in these terms:

The purpose of allowing this evidence was to help
    prove the issue of motive which is directly relevant to the Crowns theory.
    That was the only purpose for admitting the evidence. You should disregard any
    evidence relating to the character or disposition of Mr. Luciano that showed he
    was involved in any illegal or immoral activity. More specifically, you must
    not infer from this evidence of character and disposition alone that he was
    such a person as to have likely committed the offence of first degree murder.

You heard Mr. Luciano testify in these proceedings.
    In these circumstances you may use the evidence concerning his past conduct and
    utterances to assess his credibility.

[106]

In a later passage in his final instructions,
    the trial judge referred to the propensity or disposition for violence of both
    Cooper and Luciano and advised the jurors about its use:

In this case there is evidence from Mr. Luciano
    particularly that Mr. Cooper killed her. That evidence, along with the evidence
    of his prior convictions for robbery and arson, may leave a reasonable doubt in
    your mind whether it was Mr. Luciano who killed Colleen. It is for you to say.

With respect [to] the killing of Colleen where the
    determination of who was responsible is limited to two persons, you may be
    helped by considering who of the two had the greater propensity for violence.
    The significance of propensity for violence can be of assistance in identifying
    who between Cooper and Luciano is the killer of Colleen.

It is for you to determine who is more likely to
    have the disposition to kill Colleen, Cooper or Luciano, and then determine if
    disposition is of assistance.

[107]

The trial judge returned later to the subject of
    disposition evidence. He instructed the jurors in these terms:

It is open to you to contrast James Coopers
    disposition for violence with evidence concerning Michael Lucianos good
    character, including the Maruccis depiction of him as a good father who kept a
    neat and tidy home and the evidence of his employer that he is a good, reliable
    and hard working employee.

It is for you to determine on all of the evidence
    whether the nature of the stabbing death of Colleen was more akin to a rage
    killing with all the thrusts of the knife and, if so, whether that is in
    keeping with the violent disposition of Cooper.

It is for you to determine also whether Cooper was
    the type of person to kill a long time friend.

It is for you to determine as well whether the type
    of killing if it is akin to a rage killing, is more consistent with the history
    of the relationship between the Lucianos, taking into consideration Deborahs
    evidence that there was quarrels in the past and yelling and an animus for some
    physical violence as she remembered from the age of four on.

It is for you to determine on all of the evidence
    whether James Cooper had a disposition for violence and, if so, whether he was
    more likely the person who killed Colleen Richardson-Luciano.

The Positions of the Parties on Appeal

[108]

The nub of Mr. Dineens grievance resides in the
    failure of the trial judge to confine this evidence of extrinsic misconduct to
    its legitimate purpose. It was of service to the prosecutor as evidence of
    motive, but nothing more. Critical to its confinement are positive instructions
    about its permitted use and negative instructions about the use to which it
    cannot be put. The instructions should have included an injunction against its
    use as punishment for prior misconduct and a reminder not to be distracted and
    confused by it, thus to lose sight of the real issue in the case.

[109]

Mr. Dineen contends further that the trial
    judges instructions against propensity reasoning were contradicted later when
    he invited jurors to speculate about the psychological profile of Colleens killer
    and to consider whose profile, that of Luciano or that of Cooper, coincided
    with the nature of the killing. The error, Mr. Dineen submits, includes both
    speculation and prohibited reasoning.

[110]

For the respondent, Mr. Stewart characterizes
    the trial judges instructions as, at the same time, legally sufficient to
    enjoin prohibited reasoning and fair in the circumstances.

[111]

Mr. Stewart points out that the evidence was
    properly admitted as evidence of motive, and its use as evidence of motive was
    properly explained by the trial judge. The trial judges limiting instructions
    correctly and adequately warned the jurors against propensity reasoning,
    including inferring guilt from prior misconduct. This was the most likely and
    virulent strain of prejudice in the circumstances of this case.

[112]

Mr. Stewart resists any suggestion that the
    instructions about disposition or propensity evidence were self-contradictory.
    The instructions distinguished, as the law requires, between general and
    specific propensity, forbidding the former but permitting the latter.
    Instructions that expressly enjoin a conviction based on repayment for
    punishment previously avoided and warn against distraction or confusion from
    evidence about misconduct are
not
mandatory and were not warranted in these
    circumstances.

The Governing Principles

[113]

It is well established that, although motive is
    not an essential element of an offence, evidence of motive may assist in proof
    of an accuseds participation in an offence and of the state of mind with which
    the offence was committed:
Plomp v. The Queen
(1963) 110 C.L.R. 234
    (H.C.), at pp. 243 and 249-50;
R. v. Griffin
, [2009] 2 S.C.R. 42, at
    paras.
59-60;
R. v. Candir
(2009), 250 C.C.C.
    (3d) 139 (Ont. C.A.), at para.
51.

[114]

Sometimes, evidence of motive discloses the commission of other
    offences or other disreputable conduct. Where motive involves the commission of
    other offences or extrinsic disreputable conduct, the traditional limiting
    instructions associated with such misconduct may not be required:
R. v.
    Jackson
(1980), 57 C.C.C. (2d) 154 (Ont. C.A.), at pp. 168-69;
R. v.
    Krugel
(2000), 143 C.C.C. (3d) 367 (Ont. C.A.), at para.
85:
R. v. Holtam
(2002), 165 C.C.C. (3d) 502 (B.C. C.A.), at
    para. 45.

[115]

Where an accused advances a defence that a third
    party committed the offence with which the accused is charged and adduces
    evidence of the third partys disposition or propensity as circumstantial
    evidence of the third partys conduct, the prosecutor may be permitted to
    adduce responsive evidence of the accuseds disposition or propensity:
R. v.
    M.(W.)
(1996), 112 C.C.C. (3d) 117 (Ont. C.A.), at pp. 123-24, affd [1998]
    1 S.C.R. 977.

[116]

Typically, the prosecutors response to evidence
    adduced by the accused of the third partys propensity or disposition reveals
    extrinsic misconduct by the accused. Inherent in evidence of extrinsic
    misconduct are both moral and reasoning prejudice. The trier of fact may found
    the conviction on the basis that the accused is a bad person who is likely to
    have committed the offence charged. The trier of fact may tend to punish the
    accused for prior misconduct by finding him or her guilty of the offence
    charged. The trier of facts attention may be deflected from the main purpose
    of their deliberations, the offence charged, and, once having determined that the
    extrinsic misconduct took place, substitute their decision on it for their
    verdict on the offence charged:
R. v. D.(L.E.)
, [1989] 2 S.C.R. 111, at
    pp. 127-28. Jury instructions must guide the jury away from prohibited
    reasoning, but the actual language of which the instruction is composed may
    vary:
R. v. Thomas
(2004), 72 O.R. (3d) 401 (C.A.), at para. 43.

[117]

The law does not set its face against all
    propensity reasoning:
R. v. Handy
, [2002] 2 S.C.R. 908, at paras. 89-91;
R. v. Dooley
(2009), 249 C.C.C. (3d) 449 (Ont. C.A.), at para. 170. What
    is prohibited is general propensity reasoning. What is permitted is
    situation-specific propensity reasoning:
Dooley,
at para. 170.

The Principles Applied

[118]

I would give no effect to this ground of appeal.
    The instructions given were adequate in the circumstances of this case.

[119]

First, the evidence of the circumstances
    surrounding the death of Colleen Richardson-Luciano was introduced (at the
    trial for the murder of Cooper) as evidence of motive for Michael Luciano to
    kill James Cooper: to eliminate the sole surviving witness to the killing of
    Colleen. Motive is an item of evidence for jurors to consider, together with
    the rest of the evidence, in deciding whether an accused committed the offence
    charged and did so with the required state of mind:
Griffin
at paras.
    59-60;
Candir
at para. 51;
Plomp
at pp. 243 and 249-50.

[120]

Second, the trial judge did instruct the jury,
    in unqualified language, that they were
not
to infer that Luciano killed
    Cooper merely because they were satisfied that he (Luciano) had killed his
    wife. This instruction inoculated the jurors against the most virulent strain
    of prohibited reasoning, inferring guilt from general propensity. To some
    extent, this instruction enjoining general propensity reasoning takes in some
    of the ground covered by the more specific no punishment for past sins or he
    owes us one instructions.

[121]

Third, the failure of the trial judge to say
    everything that could properly be included in a jury instruction is not reversible
    error:
Dooley
at para. 176.

[122]

The complaint about non-direction here is that
    the trial judge failed to tell the jurors that they should not be confused or
    distracted by the evidence about the killing of Colleen Richardson-Luciano.
    This claim is rooted in the third form of prejudice identified by Sopinka J. in
D.(L.E.)
as inherent in evidence of similar acts extrinsic to the counts
    contained in an indictment. But it does not follow from the inherent
    prejudicial effect of evidence of similar acts that each of the ways identified
    by Sopinka J. must be converted into a mandatory jury instruction in
    prosecutions that include evidence of extrinsic misconduct. The specific
    warning required by
D.(L.E.)
is that jurors must
not
rely on the
    evidence of the extrinsic misconduct as proof that the accused is the sort of
    person who would commit the offences charged, and on that basis, infer his or
    her guilt of the offences charged:
D.(L.E.)
at pp. 127-28. To say that
    further instruction may be preferable does not make its omission legally wrong:
R. v. B.(C.)
(2003), 171 C.C.C. (3d) 159 (Ont. C.A.), at para. 35.

[123]

The trial judges instructions about the way in which jurors could
    use the evidence of the propensity or disposition of Luciano and Cooper, in
    particular his characterization of the type of homicide involved in the
    killing of Colleen Richardson-Luciano, were, at once, unhelpful and unfocused.
    That said, the complaint that the instructions are contradictory and invite
    speculation elevates them to a status that exceeds any reasonable construction.
    Their purpose was to invite jurors to use their common sense in determining
    whether Luciano or Cooper killed Colleen.

[124]

We should also not lose sight of the
    relationship of these instructions to the issues that require decision in this
    case. Michael Luciano admitted that his conduct caused the death of James
    Cooper. The issues for the jury to resolve were whether the prosecutor had
    proven beyond a reasonable doubt that Luciano
unlawfully
caused the
    death of Cooper and, if he did, whether he committed first degree murder.
    Whether it was Luciano or Cooper who killed Colleen was relevant only to a
    motive to kill Cooper, which was not an essential element of the offence with
    which Luciano was charged.

[125]

I would not give effect to any ground of appeal
    relating to the instructions on evidence of disposition.

Ground #3: The
Vetrovec
Instruction

[126]

The trial judge decided to give a
Vetrovec
or
Vetrovec-
like instruction to the jury about the testimony of three
    related prosecution witnesses: Elvina Wells, Marie Bieber and Larry Bieber. The
    principal reasons underlying the caution were the central position their
    evidence occupied in the prosecutions case and collusive conduct among the
    witnesses to provide a consistent account of various events.

[127]

The error advanced as fatal here has nothing to
    do with the language used in the warning itself. Luciano fixes upon the
    evidence the trial judge cited as potentially confirmatory of the testimony
    of the tainted witnesses. Once again, the setting is important.

The Background

[128]

Michael Luciano admitted that his conduct caused
    James Coopers death. But, according to Luciano his conduct was lawful, either
    accidental or in lawful self-defence. Alternatively, if his conduct was
    unlawful, it did not amount to planned and deliberate first degree murder.

[129]

None of the tainted witnesses saw Luciano kill
    Cooper. Their evidence, especially the testimony of Elvina Wells, reported what
    Luciano said or did before and after the killing that assisted in proof of its
    legal character and classification.

The Instructions of the Trial
    Judge

[130]

The passage in the final instructions to which
    Michael Luciano takes exception is this:

If you find that Mr. Luciano killed James Cooper
    because James Cooper witnessed Luciano killing Colleen and Luciano wanted to
    get rid of a witness to his deed, then that evidence is a source of evidence
    independent of Elvina Wells particularly and is capable of confirming her
    evidence.

However, if you do not find that Mr. Luciano killed
    James Cooper because Cooper witnessed Luciano killing Colleen and Luciano
    wanted to get rid of a witness to his deed, then that evidence of motive is not
    capable of confirming Elvina Wells testimony. The circumstances in which he
    testified might well make you wish that somebody or something else confirmed
    what she said.

The Positions of the Parties on Appeal

[131]

Mr. Dineens protest about the instructions on
    potentially confirmatory evidence is threefold. First, he submits the trial
    judge left a conclusion of fact as potential confirmation, rather than an item
    or items of evidence. Second, he contends, what was left was not independent of
    Elvina Wells testimony. And finally, he says, the effect of the instruction
    about potentially confirmatory evidence was to dilute the efficacy of an
    otherwise unexceptionable caution.

[132]

Mr. Stewart resists the submission of
    prejudicial error. He claims that the instructions were free of error. They
    emphasized the need for
independent evidence
of motive for the evidence
    to be confirmatory, not proof of guilt. The effect of the instruction was that,
    if the jury rejected the prosecutors claim of motive, then the other evidence
    of motive could not be considered as confirmatory of the evidence of Elvina
    Wells.

The Governing Principles

[133]

The purpose of a
Vetrovec
caution is to
    alert the jury to the danger of relying on the unsupported evidence of an
    unsavoury witness and to explain why special scrutiny of this evidence is
    required:
R. v. Khela
, [2009] 1 S.C.R. 104, at para. 11. The content of
    the caution is controlling, not the particular word formula followed:
Khela
at para. 13.

[134]

Where a
Vetrovec
caution has been given,
    a trial judge, in appropriate cases, should also direct the jurors attention
    to evidence capable of supporting or confirming material parts of the suspect
    witnesss evidence:
Khela
at para. 11. Potentially confirmatory evidence
    has two essential qualities: it must be capable of restoring the faith of the
    trier of fact in relevant aspects of the suspect witnesss account and it must
    be independent, in other words, come from some source other than the suspect
    witness:
Khela
at paras. 39 and 43. An item of evidence need
not
implicate the accused to be confirmatory:
Khela
, at para. 41.

[135]

Jury instructions about potentially confirmatory
    evidence must make clear the type of evidence capable of offering support.
    Although the items of potentially confirmatory evidence are to be illustrative
    and
not
exhaustive, a trial judge must not simply turn the jury loose to
    rummage about the evidence adduced at trial in search of whatever it feels confirms
    the truth of a witnesss testimony, without any instructions about the
    essential qualities of confirmatory evidence.

The Principles Applied

[136]

I would not give effect to this ground of
    appeal.

[137]

The
Vetrovec
caution in this case related
    to the evidence of three of Lucianos relatives who are alleged to have
    stitched together an account inculpatory of Luciano from threads of
    conversation and conduct contemporaneous with the death of James Cooper. The
    caution recited at length myriad contaminants that nourished the need for
    caution in the jurors approach to this evidence. They were told alternatively
    that it was very dangerous or extremely dangerous to act on this evidence
    on its own, but reminded that they could do so if they were satisfied that the
    witnesss account was truthful.

[138]

The effect of the challenged portion of the
    instruction is that the jurors were told that, if they found that Luciano
    killed Cooper to eliminate a witness to Lucianos killing of his wife, they
    could use that evidence as confirmation of Elvina Wells account. Failure to
    make the finding left her evidence unconfirmed. The judge concluded his
    instructions in these terms:

You may believe Elvina Wells, Marie Bieber and
    Larry Bieber if you find their testimony to be trustworthy, even if no one or
    nothing else confirms it. When you consider it, however, keep in mind how they
    gave the evidence and the circumstances under which they testified.

It is for you to determine, having regard for the
    opportunity for comparison, collaboration and discussion among themselves,
    whether the evidence has been tainted and, if so, to what degree, if any, it
    has been rendered unreliable. Evidence which you find to be unreliable can
    attract very little weight and it would be very dangerous to form a basis for
    conviction.

[139]

Despite Lucianos denial of participation in the
    killing of his wife, the evidence adduced at trial about what occurred in the
    apartment contemporaneously with the killing, including the clean-up and
    disposal of the body, could support a conclusion that it was Luciano who killed
    his wife. And from that, together with the fact that the killing occurred in
    the presence of one eyewitness, Cooper, it would scarcely strain credulity to
    infer that Luciano had a motive to kill Cooper. And independently of anything
    Elvina Wells said about Lucianos admissions. Evidence of motive may provide
    confirmatory evidence:
R. v. Chenier
(2006), 205 C.C.C. (3d) 333 (Ont.
    C.A.), at para. 35.

[140]

The instructions on motive as potentially
    confirmatory of Elvina Wells evidence were muddled, but not so confusing to
    warrant our intervention. Indeed, their insistence on an actual finding of
    motive in order to be confirmatory was unduly favourable to Luciano: it is
evidence
that confirms, not findings of fact, especially those that, on their own, would
    render a conviction almost inevitable.

Ground #4: The Honest Witness Instruction

[141]

An assessment of this ground of appeal involves
    an additional reference to the evidence adduced at trial. A brief sketch of
    related subjects included in the final instructions provides the essential
    context.

The Instructions of the Trial
    Judge

[142]

The trial judge included several instructions
    about the assessment of evidence in his charge to the jury. He told the jurors
    to use their collective wisdom and common experience in gauging the credibility
    of witnesses and the reliability of their evidence. He explained that it was
    the exclusive responsibility of the jurors to evaluate the evidence and make
    their findings of fact based on that evidence and reasonable inferences drawn
    from it. The trial judge devoted several pages of his charge to instructions
    about the assessment of evidence and the factors jurors could take into account
    in making their assessment.

[143]

The honest witness instruction followed hard
    on the heels of several pages of
Vetrovec
or
Vetrovec-
like cautions
    about the evidence of Elvina Wells, Marie Bieber and Larry Bieber. The
    specifics of the honest witness instruction are these:

There is a presumption in law that a witness comes to
    court to tell his or her honest recollections, and statements are used to
    refresh their memories. However, while honest witnesses may make mistakes, you
    must beware of the witness you find has lied to you in one area. Because while
    he or she may be telling the truth in other areas, you have a right to be
    suspicious and treat the evidence with the greatest of caution. Again, you may
    believe all, part or none of what a witness says.

The Positions of the Parties on Appeal

[144]

For Luciano, Mr. Dineen contends that the
    honest witness instruction is both wrong in law and prejudicial in its
    effect. The law recognizes no such presumption. The prejudice resides in the
    requirement that jurors must cast about for evidence to rebut the presumption
    that each witness is telling the truth. Absent any rebuttal, the instruction
    required jurors to accept the account as the truth. Further, in this case, the
    instruction detracted from the
Vetrovec
or
Vetrovec-
like caution
    provided about the evidence of Elvina Wells and Marie and Larry Bieber.

[145]

On behalf of the respondent, Mr. Stewart
    acknowledged that the honest witness instruction was wrong. But, he says, it
    was harmless error when looked at through the prism of the charge as a whole.

[146]

Mr. Stewart points out that the instruction
    relates to
credibility
only, not to both the credibility of a witness
    and the reliability of his or her evidence. Besides, the instruction must not
    be stripped of its surroundings. Those environs included instructions about the
    assessment of evidence, including its reliability and the credibility of the
    witnesses who gave it. Jurors were told repeatedly of their right to believe
    some, none or all of the testimony of any witness who gave evidence of fact or
    of opinion. The
Vetrovec
or
Vetrovec-
like instructions in
    connection with the evidence of Elvina Wells and the Biebers urged a cautious
    approach to their testimony. In the end, the instructions, as a whole, more
    than made up for the erroneous reference to the phantom presumption.

The Governing Principles

[147]

The law recognizes no presumption of honesty
    among witnesses summoned to testify in a criminal trial:
R. v. Thain
(2009),
    243 C.C.C. (3d) 230 (Ont. C.A.), at para. 32.

The Principles Applied

[148]

Despite the error in the reference to a
    presumption that is unsupported by any authority, I would not order a new trial
    on this ground. My reasons are several.

[149]

First, critical to a proper evaluation of the
    impact of an admitted error is a functional approach to the instructions as a
    whole, especially other instructions about the credibility of witnesses and the
    reliability of their evidence.

[150]

The error appears in the first sentence of a
    paragraph that refers not only to honest witnesses but also to witnesses that
    the jury conclude have lied to them. The passage ends with one of several
    reminders to jurors of their authority to believe all, part or none of the
    evidence of any witness. The trial judge had already given several pages of
    instructions on the exclusive authority of the jurors to determine the facts,
    including their obligation to ignore any judicial opinions about those facts,
    and the use by the jurors of their collective wisdom and common sense in their
    assessment of the evidence. The evidence of several witnesses had been the
    subject of a
Vetrovec
caution because of evidence of collusion.

[151]

Second, as a witness on his own behalf, Michael
    Luciano was the gratuitous beneficiary of the erroneous instruction. Rebuttal
    of the presumption would have the effect of adding to the prosecutors burden
    of proof.

[152]

Third, it is by no means clear that the decision
    Luciano invokes to support his claim of fatal error,
Thain
, supports the
    conclusion he advances.
Thain
was a trial by judge alone. The trier of
    fact made three errors of which the honest witness presumption was one. Two
    related expressly to the evidence of the appellant. One shifted the burden of
    proof. The respondent offered a strained and generous reading of the honest
    witness reference as an antidote to the prejudice caused by the other errors.
    The argument failed. Sharpe J.A. concluded that the errors committed in the
    credibility assessment were fatal. Put simply, that is not this case.

Ground #5: The New Theory of Liability

[153]

The final allegation of error is anchored in a
    brief passage in the charge to the jury about the identity of Colleen
    Richardson-Lucianos killer. To assess the validity of this claim, a brief
    reference to the positions of the parties at trial is necessary.

The Positions of the Parties at
    Trial

[154]

Michael Luciano and James Cooper were in
    Lucianos basement apartment when Colleen Richardson-Luciano was stabbed to
    death.

[155]

The prosecutor contended that Michael Luciano
    stabbed his wife to death, then strangled Cooper to death about a day later to
    eliminate him as a potential witness against Luciano for killing his wife.

[156]

Michael Luciano said that James Cooper killed
    Colleen Richardson-Luciano after she called him a fucking goof during an
    argument over repayment of a debt. Luciano acknowledged that he had caused Coopers
    death but said that the killing was not unlawful or, if unlawful, was not first
    degree murder.

[157]

Neither party at trial suggested that the
    killing of Colleen Richardson-Luciano was a joint venture with Luciano and
    Cooper as joint or co-principals. Luciano is the only survivor of both
    killings.

[158]

Elvina Wells testified that, in a conversation
    that occurred before Cooper was killed, Michael Luciano described himself as an
    accessory to the killing of Colleen by Cooper.

The Instructions of the Trial
    Judge

[159]

During his instructions about motive, the trial
    judge referred to the motive advanced by the prosecutor for the killing of
    Cooper (to eliminate a witness to Lucianos killing of his wife), then
    continued:

You may reach a verdict based on the theory advanced
    by Crown counsel or on a theory of motive different from that. For example, it
    is open for you to find on the evidence that it was Jimmy Cooper who killed
    Colleen Richardson Luciano on the basis of his antecedents and his propensity
    for violence and to conclude that Mr. Luciano planned and deliberated his
    murder to avenge her death. It is likewise open to you to find on the evidence
    that both Michael Luciano and Jimmy Cooper murdered Colleen together and Mr.
    Luciano planned and deliberated Coopers murder to rid himself of a witness.

Even though Crown counsel submits to you that his
    theory is the most likely, other factual avenues are open to you. You need not
    all of you arrive at your verdict by the same route. You need not agree on all
    the underlying factors. You need only find that all of the essential elements
    have been proven beyond a reasonable doubt, and motive is not one of them.
    Motive is not an essential element of the offence of first degree murder.

It is for you to decide whether Mr. Luciano had a
    motive such as that theorized by Crown counsel or any motive at all, and how
    much or little you will rely on it to help you decide this case.

The Positions of the Parties on Appeal

[160]

For Luciano, Mr. Dineen points out that the
    prosecutor never advanced the position at trial that Luciano and Cooper were
    co-principals or joint principals in the killing of Colleen Richardson-Luciano.
    The reference by the trial judge to a joint venture involving the two men
    amounted to the introduction of a new theory or basis of liability without
    notice to Michael Luciano. In the result, Mr. Dineen says, the trial was unfair
    because counsel was unable to respond to this sudden shift in the basis of
    liability.

[161]

For the respondent, Mr. Stewart submits that the
    reference to which exception is taken was neither erroneous nor unfair. The
    evidence about the circumstances surrounding the death of Colleen
    Richardson-Luciano and what happened afterwards could support an inference of a
    joint venture that resulted in her death. Said in another way, there was
    evidentiary support for a joint principals instruction.

[162]

Mr. Stewart also reminds that a jury is not
    bound to decide a case in accordance with a theory advanced by the
    prosecutor, rather must consider whether the evidence proves the essential
    elements of the offence beyond a reasonable doubt. Likewise, the trial judge is
    not bound to instruct the jury only in accordance with the positions advanced
    by the parties. The obligation to instruct derives from the capacity of the
    evidence advanced to establish an air of reality for the instruction.

[163]

Mr. Stewart acknowledges, as indeed he must,
    that instructions on a new theory of liability late in the trial may be
    foreclosed because its introduction would be unfair or would interfere with an
    acccuseds right to control his or her own defence. But no scent of unfairness
    drifted into these proceedings. This instruction was about motive and the
    motive didnt change with the reference to joint principals.

The Governing Principles

[164]

Motive is not part of the definition of murder
    nor an essential element of its classification as first degree murder under s.
    231(2). Evidence of motive is relevant, material and admissible in prosecutions
    for murder, especially where the prosecutors case consists of circumstantial
    evidence:
R. v. Lewis
, [1979] 2 S.C.R. 821, at pp. 837-38.

[165]

Evidence of motive is material because it helps
    to establish two essential elements of the prosecutions proof  identity and
    state of mind:
Plomp
at pp. 243 and 249-50;
Griffin
at para. 60;
R.
    v. Cloutier
, [1940] S.C.R. 131, at p. 135; and
Candir
at para. 72.

The Principles Applied

[166]

This ground of appeal is unavailing.

[167]

To begin, Michael Luciano does not and could not
    suggest that there was no evidence to justify instruction on joint participation
    in the death of Colleen Richardson-Luciano. Both Luciano and Cooper had
    equivalent opportunity to cause her death. Nothing in the circumstances of her
    death pointed more to one of them than to the other, or indicated that her
    death could only have been caused by a single assailant. What occurred
    thereafter, the clean-up and disposal of her body, was a joint venture. Both
    had argued with her earlier on Friday evening.

[168]

Second, the instruction to which objection is
    taken is
not
one that expands the basis upon which Luciano could be
    found guilty of the offence charged: the first degree murder of James Cooper.
    In other words, this is not a case, like
Ranger
, where an alternative
    basis of liability was left to the jury in the charge that was incompatible
    with the manner in which the case had been conducted. The instruction in this
    case related to motive: Lucianos motive to kill Cooper. That motive was to
    eliminate a witness, the only surviving witness, beyond Luciano himself, to the
    killing of his estranged wife. Whether Luciano killed his wife in the presence
    of or with the assistance of Cooper did not alter his motive to kill Cooper.
    The motive to kill Cooper was the same whether Cooper was simply a witness or a
    fellow killer who was also a potential witness.

[169]

Third, unlike in
Ranger
where the
    controversial instruction expanded the basis of Rangers liability, the
    instruction here was not concerned with the basis of liability. Luciano
    admitted that his conduct caused Coopers death. The issues for the trier of
    fact were whether Luciano had caused Coopers death unlawfully and, if so,
    whether Luciano had committed first degree murder. Evidence of motive was
    relevant to each issue, but it was but a single item of evidence for the jury
    to consider.

[170]

Finally, the brief reference to which exception
    is taken caused no unfairness to Luciano. This was not a game-changer, a
    paradigm shift in the basis of liability that swept away the defence advanced
    at trial or took control of it out of Lucianos hands. No harm, no foul.

Conclusion

[171]

I would dismiss the appeal from conviction.

THE APPEAL FROM ACQUITTAL (THE
    MURDER OF COLLEEN

RICHARDSON-LUCIANO)

[172]

In early November 2004, about seventeen months
    after a jury had convicted him of the first degree murder of James Cooper,
    another jury found Michael Luciano not guilty of the second degree murder of
    his estranged wife.

[173]

The Attorney General seeks a new trial on the
    charge of second degree murder. The single error alleged in the conduct of the
    second trial is an admissibility ruling made by the trial judge prior to jury
    selection. The ruling excluded any evidence that Michael Luciano killed James
    Cooper, as well as evidence that Cooper was dead.

[174]

Some brief background is necessary to appreciate
    the allegation of error.

The Background Facts

[175]

James Cooper and Michael Luciano were the only
    adults in the basement apartment when Colleen Richardson-Luciano was stabbed to
    death there.

[176]

Michael Luciano denied killing his wife. Luciano
    said that Cooper killed her after she insulted Cooper during an ongoing
    squabble over repayment of a debt.

[177]

Michael Luciano admitted that he helped Cooper
    clean up the apartment and surrounding area and dispose of Colleens body in a
    dumpster twelve kilometres from the apartment. According to Luciano, he helped
    Cooper because Cooper threatened to kill both Luciano and his children.

[178]

The knife used to kill Colleen
    Richardson-Luciano was never found.

The
    Evidence of James Coopers Disposition

[179]

To support his account that James Cooper stabbed
    Colleen Richardson-Luciano to death, Michael Luciano adduced evidence that
    tended to show Cooper had a disposition for violence. Coopers criminal record,
    which included convictions for robbery, was filed as an exhibit. The jurors
    heard evidence that, a few months earlier, Cooper had pulled a knife on a man
    who had hugged him (Cooper). Investigators found a shiv in Coopers bag
    likely honed from cutlery in a jail. Expert opinion evidence was adduced about
    Coopers disposition for violence.

[180]

In the end, Michael Lucianos account that
    implicated James Cooper as Colleens killer was supported by evidence of
    Coopers disposition or propensity for violence. Said somewhat differently,
    evidence of Coopers disposition or propensity for violence was introduced as
    circumstantial evidence of his conduct to support the defence that he, Cooper,
    not Michael Luciano, killed Colleen.

The
    Pre-Trial Application

[181]

Before jury selection began, the prosecutor
    applied to introduce evidence that Luciano killed Cooper about 24 hours after
    Colleens death. When the application was made, another jury had already
    convicted Luciano of first degree murder arising out of Coopers death.

[182]

The prosecutors application proceeded on the
    basis of an agreed statement of facts that included reference to both killings and
    observations made by two O.P.P. officers who were summoned to the home in which
    Cooper had been killed.

[183]

The agreed statement of facts included reference
    to a comment Elvina Wells attributed to Luciano that he (Luciano) was going to
    do Cooper before Cooper did him. The statement also contained the
    observations Lucianos daughter made of her father over Cooper with his hands
    in front of him.

[184]

The agreed statement of facts recited two
    remarks attributed to Luciano by Elvina Wells after she returned home from her
    parents. Luciano told her, according to Ms. Wells, that he had kicked Coopers
    guts in good and was going to gut Cooper, just as Cooper had done to
    Colleen.

The
    Positions of Counsel at Trial

[185]

At trial, the prosecutor (who was not Mr.
    Stewart) offered the evidence of the Cooper killing as evidence of
    after-the-fact conduct. He suggested that the evidence could be admitted for
    any one or more of five purposes:

i.

to establish the identity of Colleens killer (because only her killer
      would need to dispatch a witness to his crime);

ii.

to rebut any claim that Luciano might advance that he was only an
      innocent bystander when Cooper killed Colleen;

iii.

to complete the narrative of what was, despite the order for severance,
      a single transaction;

iv.

to avoid jury speculation about the whereabouts of James Cooper; or

v.

to rebut the inference that only Cooper was capable of the violence
      necessary to kill Colleen.

According to the prosecutor, the probative
    value of this evidence on any of the issues to which it was relevant, exceeded
    its prejudicial effect, thus mandated its admission.

[186]

Trial counsel for Luciano did not oppose the
    introduction of what Luciano and Cooper did after Colleen had been stabbed to
    death, but drew the line at the introduction of any evidence about the fact and
    circumstances of Coopers death. Counsel contended that evidence that pointed
    to Luciano as Coopers killer was equally consistent with Luciano killing
    Cooper to avenge Colleens death as it was to eliminate a witness. This
    ambiguity or ambivalence rendered its probative value minimal and significantly
    outweighed by its prejudicial effect. Further, to permit admission of the
    evidence would allow the introduction of evidence of a more serious crime to
    prove a less serious one.

[187]

Counsel for Luciano at trial decried the
    prosecutors submission that the evidence was necessary to complete the
    narrative or stifle speculation about Coopers absence from the proceedings.
    The narrative that required completion could be quite nicely accomplished
    without reception of the most damning prejudice, evidence of another murder.

The
    Ruling of the Trial Judge

[188]

The trial judge characterized the evidence as
    evidence of after-the-fact or post-offence conduct. He concluded that, because
    the explanations Luciano gave to Elvina revealed a variety of degrees of
    culpability, the proposed evidence failed to meet the standard required by
R.
    v. Arcangioli,
[1994] 1 S.C.R. 129, thus was inadmissible.

[189]

The trial judge then considered admissibility on
    the assumption that the requirements of
Arcangioli
had been met. He
    concluded that because the evidence revealed discreditable conduct on Lucianos
    part, the admissibility decision came down to a balancing of probative value
    and prejudicial effect. He concluded that, in this analysis, prejudicial effect
    prevailed and the evidence should be excluded.

[190]

The following passage represents the essence of
    the trial judges reasoning:

[35]     My concern is that the introduction of
    this evidence will not lead to a level playing field for both sides in this
    trial.  Rather, it will distort the trial so that the jury will become fixated
    on the death of Jimmy Cooper.  If Michael Luciano is the killer there, with Mr.
    Cooper having been present when Colleen was killed, the jury will not be likely
    to distance themselves  from that evidence in an objective way regardless of
    any instructions given by the trial judge during the trial or at the conclusion
    of the trial.  The Crowns case can be established by the evidence that it has
    without presenting the evidence about the death of Mr. Cooper.  To add that
    evidence will only go to talking up the Crowns case in a manner that takes
    away a fair trial.  Im advised that there will be evidence indicating that Mr.
    Luciano indicated that he was going to kill Mr. Cooper because he killed
    Colleen and at  another time he made a statement that Cooper was a witness.
    That will carry an inference that Michael Luciano killed Colleen
    Richardson-Luciano.  Im not persuaded that the introduction of the evidence
    regarding the death of Mr. Cooper will be assessed objectively by  the jury.
    Also the jury could become fixated on the killing of Mr. Cooper as proof that
    Mr. Luciano killed Colleen.  It may be said that there are two positions for
    consideration by the jury.  One is that Mr. Luciano killed his wife and then
    killed the witness to that killing.  The other is that Mr. Luciano killed his
    wifes killer.  Although that presentation is available to the jury, I am
    persuaded that there is such a high prejudicial impact by this evidence that
    the jury will look at it feeling that they have to choose between one of two
    considerations.  They are more apt to consider Mr. Luciano a bad person who
    killed another. The jury will be sent off on the issues of who killed Mr.
    Cooper when that is not the central issue of this trial.  That being the case,
    this evidence cannot be presented.

[36]      I find that the discreditable conduct of
    killing Jimmy Cooper carries a greater prejudicial impact on the trial than any
    probative value. It forces the jury into moral and reasoning prejudice. I am
    concerned that regardless of any instruction from me both during the trial and
    at the end of the trial, the jury will be enmeshed in thinking that if Michael
    Luciano killed Jimmy Cooper then he is the type of person who would kill his
    wife and further that he must have been the Colleens [
sic
] killer. That
    removes a level playing field because the jury will be preoccupied with the
    death of Jimmy Cooper. When a jury goes off on a tangent as I am concerned that
    they will, they are likely to make the decision on the after-the-fact conduct
    evidence mainly rather than on all of the evidence.

Conclusion If the Evidence Passes the Principles
    of
Arcangioli

[37]      On the second consideration of the
    after-the-fact conduct should its introduction not be inadmissible by the
    principles of Arcangioli, the evidence is  too prejudicial to be tendered. Its
    probative value is that it helps to determine the identity of the killer of
    Colleen Richardson-Luciano, but it does so marginally. Its greatest impact is
    that it waives [
sic
] a red flag at the jury so that they will be prone
    to think of Michael Luciano as a bad person who would likely kill Colleen
    Richardson-Luciano if he was a killer of Jimmy Cooper. The jury will travel
    down that road like a locomotive unable to draw themselves away from being
    consumed with that information. That removes a level playing field. No amount
    of instructions from the trial judge not to do so will succeed.

The Arguments on Appeal

[191]

The parties advanced their positions with
    admirable clarity and commendable brevity. Any inaccuracy in my paraphrase or
    prolixity in their statement is my fault, not theirs.

[192]

For the appellant, Mr. Stewart denies a place
    here for the principles in
Arcangioli
and its followers. The issue here
    was not the level or degree of Lucianos culpability, rather the identity of
    Colleens killer. Evidence of what happened later can support an inference of
    participation in what occurred earlier. Whether the jurors would draw that inference
    was for them to decide. But they were wrongly denied the chance to do so.

[193]

Mr. Stewart contends that the evidence was also
    admissible to balance or level the playing field at trial where evidence of
    Coopers disposition was to be admitted. The jury was entitled to know that
    there were
two
persons with a violent disposition with equivalent
    opportunity to kill Colleen Richardson-Luciano, not just one. The evidence also
    tended to blunt Lucianos explanation for his participation in the clean-up and
    body disposal activities and his fear of Cooper.

[194]

Mr. Stewart says that the trial judge erred
    further in his assessment of the probative value and prejudicial effect of the
    evidence and his determination that, in the balance, prejudicial effect
    predominated. The trial judge undervalued the probative potential of the
    evidence and overvalued its prejudicial effect. He was unreasonably dismissive
    of the efficacy of limiting instructions. This evidence, given by witnesses who
    would be testifying in any event would neither confuse issues nor distract the
    jurors from the task assigned them at trial. No deference is due his
    assessment.

[195]

Mr. Stewart advances an alternative argument. He
    submits that, at the very least, the prosecutor should have been permitted to
    adduce evidence that Cooper was dead. Coopers absence was the elephant in the
    courtroom at trial. The undertaking of defence counsel to say nothing about
    Coopers absence at trial was inadequate in light of the trial judges
    instruction that a reasonable doubt could arise from the absence of evidence.

[196]

Mr. Dineen heads quickly to the bottom line. In
    the end, he submits, the ruling involved the exercise of judicial discretion.
    In determining probative value. In assessing prejudicial effect. In deciding
    where the balance fell. The trial judge did all of this, considered the proper
    factors and reached a conclusion that is entitled to substantial deference.

[197]

Mr. Dineen submits that the evidence about the
    killing of James Cooper had little probative value in helping to establish
    Lucianos guilt of the murder of his estranged wife. Several explanations may
    underpin the killing of Cooper, thus diminish the probative value of the
    evidence. The trial judge was entitled to reach this conclusion.

[198]

In a similar way, Mr. Dineen says, the trial
    judge was entitled to consider the prejudicial effect of this evidence
    extremely high. The moral prejudice of the evidence is difficult to overstate.
    The evidence, offered at a trial where the issue is the identity of the killer,
    demonstrates that Luciano killed the only other adult present at the first
    killing about 24 hours later. Reasoning prejudice was also substantial. The
    evidence about the killing of Cooper would be lengthy, dominate the trial and
    distract the jurors from their task.

[199]

Mr. Dineen resists the submission that evidence
    about the Cooper killing should have been admitted to respond to the evidence
    about Coopers disposition, thus to level the playing field. The prosecutor at
    trial did not take the position that Luciano had put his character in issue,
    thus this line of argument should not be paid any heed here. In every event,
    the final analysis comes down to balancing probative value and prejudicial
    effect with no different result than that recorded by the trial judge.

[200]

In response to the alternative ground raised by
    Mr. Stewart, that the prosecutor should have been permitted to adduce evidence
    that Cooper was dead, Mr. Dineen points out that the jurors were not told that
    they could draw any adverse inference from Coopers absence. The instruction
    given about a reasonable doubt arising from an absence of evidence is legally
    correct under
R. v. Lifchus
, [1997] 3 S.C.R. 320. And even if the
    evidence had been admitted, the verdict would not have changed.

The Governing Principles

[201]

The only ground of appeal advanced against the
    acquittal has to do with the exclusion of the evidence of the killing of James
    Cooper 24 hours after the killing of Colleen Richardson-Luciano for which
    Luciano was being tried.

[202]

The effect of the trial judges ruling was that
    the jury, before whom Cooper was put forward as the real killer of Colleen
    Richardson-Luciano, learned nothing about what had happened to Cooper after he
    arrived with the others at Egmondville on the night after Colleen was killed.

[203]

The issue raised can be determined by the
    application of general principles of the law of evidence, not the pigeon-hole
    approach that seems favoured any time the evidence discloses conduct of a party
    after an offence has been committed.

Relevance

[204]

Relevance is not an inherent characteristic of
    any item of evidence. Relevance exists as a relation between an item of
    evidence proposed for admission and a proposition of fact that the proponent
    seeks to establish by its introduction. Relevance is a matter of everyday
    experience and common sense. Attaching a label like evidence of after-the-fact
    conduct or post-offence conduct to an item of evidence does not establish
    its relevance. An item of evidence is relevant if it renders the fact it seeks
    to establish slightly more or less probable than it (the fact) would be without
    the evidence, through the application of everyday experience and common sense.

[205]

We assess the relevance of items of evidence in
    the context of the entire case and the positions of counsel. Relevance does not
    exist in the abstract or in the air:
R. v. Cloutier
, [1979] 2 S.C.R.
    709, at pp. 730-32. An item of evidence does not cease to be relevant or become
    irrelevant because it can support more than one inference:
R. v. Underwood
(2002),
    170 C.C.C. (3d) 500 (Alta. C.A.), at para. 25.

[206]

To be relevant, an item of evidence need not
    prove conclusively the proposition of fact for which it is offered, or even
    make that proposition of fact more probable than not. What is essential is that
    the item of evidence must reasonably show, by the application of everyday
    experience and common sense that the fact is slightly more probable with the
    evidence than it would be without it: 1
McCormick on Evidence
(6
th
ed.), para. 185, at p. 733.

Materiality

[207]

To make its way into a criminal trial, an item
    of evidence must also be material. Evidence is material if what it is offered
    to prove or disprove is a fact in issue. What is in issue is determined by and
    a function of the allegations contained in the indictment and the governing procedural
    and substantive law. If the fact the evidence is offered to prove is not in
    issue, for example because of an admission, the evidence is immaterial:
Candir
at para. 49.

[208]

In a prosecution for unlawful homicide charged
    as murder, evidence that tended to show the identity of the killer and the
    killers state of mind contemporaneous with the killing would be material.

Admissibility

[209]

Admissibility is a legal concept. Its rules,
    which are negative and exclusionary, are rooted in policy considerations we regard
    as of sufficient importance to justify the exclusion of relevant and material
    evidence. No single policy underlies every admissibility rule. Sometimes, an
    admissibility rule is animated by concerns about the reliability of evidence.
    In other instances, a rule may attempt to curb a prohibited chain of reasoning.

[210]

Admissibility rules are not unyielding. They
    give ground, admitting evidence by exception. What justifies exceptional
    admission varies from one admissibility rule to another, but is generally linked
    to the policy that underpins the rule of exclusion.

[211]

In this case, as in most, several admissibility
    rules have a say in an assessment of the correctness of the trial judges
    ruling excluding evidence about the killing of James Cooper.

Evidence
    of Third Party Participation

[212]

The principal issue at trial was the identity of
    the person who killed Colleen Richardson-Luciano. The suspects were two, both
    of whom had equivalent opportunity to do so. Michael Luciano was one. James
    Cooper was the other. Luciano said it was Cooper. And Cooper could not deny it
    because Luciano killed him about a day after Colleen had been stabbed to death.

[213]

A person charged with the murder of another is
    entitled to adduce evidence in response to the charge that shows or tends to
    show that another person committed the murder:
R. v. McMillan
(1975), 7
    O.R. (2d) 750 (C.A.), at p. 757, affd [1977] 2 S.C.R. 824; IA
Wigmore on
    Evidence
(Tillers Rev.) at para. 139, pp. 1723-724.

[214]

But not every item of evidence offered in
    support of a claim that someone else killed the deceased will be admitted. To
    permit the introduction of evidence supportive of a claim of third party
    authorship, we insist upon a sufficient connection between the third party and
    the offence charged:
McMillan
at p. 757;
Wigmore
at para. 139, p.
    1724;
R. v. Grandinetti
, [2005] 1 S.C.R. 27, at para. 47. The evidence
    connecting the third party to the crime charged may be direct or
    circumstantial:
McMillan
at p. 758.

[215]

An accused who has met the threshold to permit
    the introduction of evidence of the (alleged) involvement of a third party may
    proffer evidence of the third partys disposition (to commit the offence
    charged):
Grandinetti
at para. 49;
McMillan
at p. 758. The
    tendency or disposition of a person to do something is relevant to indicate the
    probability that she or he did it, and may be admissible to prove it. In other
    words, evidence of disposition or propensity is offered as circumstantial
    evidence of conduct in accordance with the disposition:
McMillan
at p.
    758;
Grandinetti
at para. 49.

[216]

An accused who fortifies his assertion of third
    party involvement with evidence of the third partys disposition risks a
    response in kind from the prosecutor, lest the trier of fact be left with an
    entirely distorted picture of those with an equivalent opportunity to kill the
    deceased:
McMillan
at pp. 767-68;
M.(W.)
at pp. 123-24, affd
    [1998] 1 S.C.R. 977;
R. v. Parsons
(1993), 84 C.C.C. (3d) 226 (Ont.
    C.A.), at p. 238;
R. v. Corbett
, [1988] 1 S.C.R. 670, at p. 690.

Evidence
    of Extrinsic Misconduct

[217]

Evidence of extrinsic misconduct by the person
    charged may be relevant and material in a criminal prosecution. This evidence
    may demonstrate a motive on the part of the accused to commit the offence, or
    his possession of the instruments used to commit the crime. Thus, evidence of
    extrinsic misconduct may help to establish an accuseds participation in an
    offence, as well as his or her state of mind when committing it. Sometimes,
    evidence of extrinsic misconduct completes the narrative of or provides context
    for relevant events.

[218]

Evidence of extrinsic misconduct includes
    conduct that occurs before, at the same time or after the conduct that forms
    the subject-matter of the charge. The reasoning process involved in the inquiry
    into relevance or materiality may be different depending on when the extrinsic
    misconduct occurred in relation to the crime charged.

[219]

But evidence of extrinsic misconduct brings baggage
    to the trial. Prejudice. Of two kinds.
Moral
prejudice  the risk of an
    unfocused trial and a wrongful conviction. The trier of fact may follow a chain
    of reasoning the law forbids  inferring of guilt from general disposition or
    propensity. The verdict may be based on prejudice, rather than proof and the
    accused convicted because of what he is, rather than what he did:
Handy
at para. 139.

[220]

Evidence of extrinsic misconduct generates
reasoning
prejudice. Introduction of this evidence distracts jurors from their proper
    focus on the charge particularized in the indictment and lengthens the trial
    process:
Handy
at paras. 144-46.

[221]

Relevant and material evidence of extrinsic
    misconduct is generally inadmissible when tendered by the prosecutor:
R. v.

Robertson
, [1987] 1 S.C.R. 918, at p. 941;
Handy
at paras. 31 and
    36. The exclusionary rule generally prohibits prosecutorial use of character
    evidence, and evidence of extrinsic misconduct to establish character, as
    circumstantial proof of conduct:
Handy
at para. 31. See also,
Morris
    v. The Queen
, [1983] 2 S.C.R. 190, at pp. 201-02;
R. v. Morin
,
    [1988] 2 S.C.R. 345, at p. 370; and
R. v. B(C.R.)
, [1990] 1 S.C.R. 717,
    at pp. 731-32.

[222]

Like other admissibility rules, the rule that
    generally excludes evidence of extrinsic misconduct tendered by the prosecutor
    allows its introduction by exception. The exception becomes engaged when the
    probative value of the evidence exceeds its prejudicial effect:
Handy
at
    paras. 41 and 49.

Evidence
    of After-The-Fact Conduct

[223]

Evidence of extrinsic misconduct is
    circumstantial evidence.  It includes, but is not limited to things said and done
    after an offence has been committed.  We often label this as evidence of
    post-offence conduct or after-the-fact conduct.  Unfortunately, our
    fondness for labelling obscures the true character of this evidence, assigns it
    an undeserved place of prominence in final instructions, invites appellate
    fission and inhibits a clear-eyed and principled evaluation of its role in
    proof of the prosecutions case.

[224]

Evidence that falls within the descriptives
    post-offence or after-the-fact conduct has no mythical or magical quality
    inherent in it or about it:
R. v. Peavoy
(1997), 34 O.R. (3d) 620 (C.A.),
    at para. 24.  It is neither more nor less than an item of circumstantial
    evidence, a link in the chain of the prosecutors proof, that involves
    retrospectant reasoning to connect an accused to an offence:
R. v. Figueroa
(2008), 232 C.C.C. (3d) 51 (Ont. C.A.), at para. 33.

[225]

When evidence of what an accused said or did
    after an offence was committed discloses extrinsic misconduct, the evidence
    bumps up against the general rule of exclusion discussed earlier.  But the
    evidence may gain entry by exception if its probative value exceeds its
    prejudicial effect.

The
    Probative Value/Prejudicial Effect Balance

[226]

To invoke the exception to the general rule that
    excludes evidence of extrinsic misconduct, a prosecutor must establish,  on the
    balance of probabilities, that the probative value of the proposed evidence
    exceeds its prejudicial effect:
Handy
at paras. 41, 49 and 55.

[227]

When evidence of extrinsic misconduct is
    tendered for admission, courts sometimes proceed directly to the probative
    value/prejudicial effect analysis upon which admissibility depends.  But there
    are other questions that require response before the crucial balancing need be
    undertaken:

·

Is the conduct that of the accused?

·

Is the evidence relevant?

·

Is the evidence material?

·

Is the conduct discreditable to the accused?

[228]

An affirmative response to each question is
    essential before it becomes necessary to undertake the probative
    value/prejudicial effect analysis:
R. v. B.(L.)
;
R. v. G.(M.A.)
(1997), 35 O.R. (3d) 35 (C.A.), at para. 10.

[229]

The balancing process begins with an assessment
    of the probative value of the proposed evidence.

[230]

To determine probative value, the judge should
    first determine the issue to which the proposed evidence relates.  After all,
    probative value does not exist in the abstract.  Like relevance, probative
    value is a relative concept to be determined in the context of the case being
    tried:
Handy
at para. 99;
B.(L.)
;
G.(M.A.)
, at para. 23.
    An assessment of probative value requires consideration of several factors
    including the strength of the proposed evidence, the extent to which the
    proposed evidence supports the inference the prosecutor seeks to have drawn
    from it and the extent to which what the evidence tends to establish is at
    issue at trial:
B.(L.)
;
G.(M.A.)
at para. 23;
Robertson
at
    p. 943.

[231]

The second step in the balancing process
    involves an assessment of the prejudicial effect of the proposed evidence.

[232]

The term prejudice does not refer to the risk
    of conviction, rather has to do with the risk of an unfocussed trial and a
    wrongful conviction through an impermissible chain of reasoning  to infer
    guilt from general disposition or propensity:
Handy
at para. 139.
    Propensity reasoning uses evidence of character or disposition as
    circumstantial evidence of conduct.  An accused is convicted because of what he
    is, rather than because of what he has done.  Prejudice is a surrogate for
    proof, character for conduct.

[233]

No closed list of factors occupies the field in
    the inquiry into prejudicial effect.  Both moral prejudice, the risk of an unfocussed
    trial and wrongful conviction, and reasoning prejudice, distraction of the
    trier of fact from the focus of the trial by the introduction of evidence of
    extrinsic misconduct and the time taken to introduce that evidence, have a
    place in the assessment:
Handy
at paras. 139-145. Important
    considerations include the extent of the discreditability disclosed by the
    conduct, the extent to which the conduct may support an inference of guilt
    based exclusively on bad character, the extent to which the evidence may
    confuse rather than help to decide issues and the ability of the accused to
    respond to the evidence:
B.(L.)
;
M.(A.H.)
at para. 24.

[234]

The final step in the decision about
    admissibility requires the judge to balance probative value and prejudicial
    effect and to determine where the balance falls:
Handy
at para. 149.
    In the absence of a legal error, a misapprehension of material evidence or an
    unreasonable result, a trial judges decision on where the balance falls
    between probative value and prejudicial effect attracts substantial deference
    on appeal:
R. v. J. (B.T.)
(2006), 84 O.R. (3d) 227 (C.A.), at para. 33;
Handy
at para. 153;
B.(C.R.)
at pp. 23-24;
B.(L.)
;
M.(A.H.)
at para. 51;
R. v. Shearing
, [2002] 3 S.C.R. 33, at para. 73.

[235]

In the assessment of the prejudicial effect of evidence
    of extrinsic misconduct, further, in the determination of where the balance
    falls between probative value and prejudicial effect, a trial judge must keep
    in mind that evidence of limited admissibility requires jury instructions that
    explain both the permitted and prohibited use of the evidence.  And what is
    more, the difficulty encountered by a trial judge in composing limiting
    instructions does not yield a commensurate deficit in adherence to and
    application of them by jurors.  To make too much of the risk of jury misuse of
    evidence of limited admissibility, for that matter to assume jurors will not
    adhere to their oath, is legally wrong:
Corbett
at p. 695;
R. v.
    Sauvé
(2004), 182 C.C.C. (3d) 321 (Ont. C.A.), at paras. 88-89; and
Griffin
at paras. 71-74. See also,
R. v. Emms
, 2010 ONCA 817, at para. 26.

The Principles Applied

[236]

To determine whether the trial judge erred in
    law in excluding the evidence that Luciano killed Cooper requires close
    examination of what was proposed for introduction, the grounds upon which the
    case for reception was advanced, and whether the trial judges decision
    coincides with or departs from the governing principles.

The Proposed Evidence

[237]

The prosecutor proposed to adduce evidence that
    tended to show that Luciano killed Cooper within about 24 hours after Colleen
    Richardson-Luciano had been stabbed to death in Lucianos apartment.  The
    proposed evidence, as summarized in the agreed statement of facts filed on the
    admissibility inquiry, was largely, if not entirely, circumstantial.

[238]

The agreed statement of facts contained no
    reference to the defence position at trial, for example that the defence would
    adduce evidence about Coopers propensity or disposition for violence in
    support of a claim that Cooper, not Luciano, killed Colleen.  That said, the
    reasons of the trial judge acknowledge at least the prospect that evidence of
    Coopers disposition or propensity would be tendered as circumstantial evidence
    of his conduct, thus pointing the finger at Cooper as Colleens killer.

[239]

The trial judge made his ruling on admissibility
    at the outset of the trial, before jury selection.  He excluded the proposed
    evidence.  The prosecutor did not renew his application to introduce the
    evidence later in the trial as the evidence supportive of the claim that Cooper
    killed Colleen began to emerge.

Relevance

[240]

The excluded evidence supports an inference that
    Luciano killed Cooper.  Evidence of a single violent incident occurring
    contemporaneously with another can support an inference that a person has a
    propensity or disposition for violence:
R. v. Yaeck
(1991), 68 C.C.C.
    (3d) 545 (Ont. C.A.), at p. 564.

[241]

In paragraph 20 of his reasons, the trial judge
    appears to have concluded that, because the proposed evidence could support
    more than one inference, it had no probative value.  To the extent that this
    finding could be characterized as one involving relevance, it is wrong.

[242]

Individual items of circumstantial evidence
    often give rise to competing or different inferences.  That they do so is at
    once the very essence of circumstantial evidence and does not mean that they
    are or can be written off as irrelevant.  To require that the inference for
    which the evidence is offered be the only inference available from the evidence
    would pose a standard of conclusiveness that very few items of circumstantial
    evidence could meet.  Such a requirement confuses weight with relevance.
    Provided the inference advanced is one that is reasonably available on the
    evidence, the proponent has established that the evidence is relevant.

[243]

Further, the trial judge characterized the
    proposed evidence as evidence of after-the-fact conduct and applied the principles
    discussed in
Arcangioli.
Characterization of the proposed evidence as
    evidence of after-the-fact conduct tends to obscure the analysis, risking the
    substitution of category for principle.

[244]

The proposed evidence satisfied the minimal
    standard required for relevance.

Materiality

[245]

A critical issue at trial was the identity of
    the person who killed Colleen Richardson-Luciano.  Two people had equivalent
    opportunity to do so: Michael Luciano and James Cooper.

[246]

The trial judge seems to have invoked
Arcangioli
to support his conclusion that the proposed evidence did not possess probative
    value of something that needs to be proven in the trial of the murder of
    Colleen Richardson-Luciano.  The materiality of the evidence that Luciano
    killed Cooper at Lucianos trial for the murder of Colleen is not governed by
Arcangioli
.
    The material issue here is the identity of Colleens killer, not the legal
    character of the crime he committed.

Admissibility

[247]

The trial judge rested his decision to exclude
    the evidence on a second ground that involved an assessment and balancing of
    the probative value and prejudicial effect of the evidence.

[248]

The trial judge concluded that the introduction
    of the evidence that Luciano killed Cooper would distort the trial by causing
    the jurors to become fixated on the death of Jamie Cooper.  Limiting
    instructions would not deflect the jurors from propensity reasoning.  Evidence
    of Lucianos disposition for violence would not level the playing field,
    instead prompt jurors to travel down that road [propensity reasoning] like a
    locomotive.

[249]

The trial judges assessment of the probative
    value and prejudicial effect of the proposed evidence, as well as his
    determination of where the balance between them fell, is entitled to deference
    in the absence of a legal error in the assessment process.

[250]

Critical to a proper assessment of the probative
    value of the evidence that Luciano killed Cooper is an approach to it that is rooted
    in principle.

[251]

The evidence proposed for introduction was circumstantial
    evidence.  Its probative value was to be determined in the context of the other
    evidence in the case, the positions of the parties, and the issues that were
    ripe for the jury to decide.  The central issue in the case was the identity of
    the killer of Colleen Richardson-Luciano.  The prosecutor said it was Luciano.
    Luciano said it was Cooper.

[252]

To support his claim that Cooper killed Colleen,
    Luciano gave evidence at trial that directly established that Cooper was the
    killer.  He also adduced evidence at trial of Coopers propensity or
    disposition for violence.  The purpose of this propensity evidence was to
    invite the jury to have a reasonable doubt about Lucianos guilt because
    Coopers violent tendencies rendered him more likely to be Colleens killer
    than Luciano, her estranged husband.

[253]

The probative value of the proposed evidence
    rested in its capacity to demonstrate Lucianos disposition or propensity to
    violence, thus to show that there were two people, not just one, of similar
    disposition with equivalent opportunity to kill Colleen:
McMillan
at p. 767.
    It was evidence of a single incident of significant and contemporaneous
    violence offered to establish propensity.

[254]

The trial judge was invited by the prosecutor to
    rule on the admissibility of the proposed evidence before the jury was
    selected. The governing admissibility rule required the trial judge to assess
    the probative value of the evidence. The trial judge considered the apparent
    strength of the evidence and its ability to support the inference advanced
    (that Luciano also had a disposition for violence), as well as whether what it tended
    to show was at issue at trial.  The Crown has not demonstrated any legal error
    in this assessment.

[255]

Evidence that Luciano killed Cooper is
    inherently prejudicial. The conduct is discreditable of Luciano, perhaps even
    more so than the killing charged because of evidence that the killing of Cooper
    was planned and deliberate. The evidence invokes propensity reasoning and may
    enhance the risk of an unfocused trial by diverting the jurors attention from
    the crucial issue of the identity of Colleens killer.

[256]

Introduction of evidence about the killing of
    James Cooper may also generate reasoning prejudice. Jurors may become
    distracted from their proper focus on the charge itself, aggravated by the time
    consumed in adducing the evidence of the Cooper killing in divergent
    circumstances.

[257]

In his assessment of the prejudicial effect of
    permitting introduction of evidence about the killing of Cooper, as well as in
    deciding where the balance between probative value and prejudicial effect fell,
    the trial judge was required to consider the effect of limiting instructions in
    curbing both moral and reasoning prejudice. The reasons of the trial judge make
    it clear that he considered limiting instructions
incapable
of
    curtailing the prejudicial effect of the evidence.

[258]

The reasons of the trial judge are open to the
    interpretation that he may have reasoned from a premise of presumptive evidentiary
    misuse despite limiting instructions. To reason in this way is to turn the
    presumptive efficacy of limiting instructions and jury adherence to those
    instructions on its head:
Corbett
at pp. 695-696;
Sauvé
at paras.
    88-89; and
Griffin
at paras. 71-74. An error in the assessment of the prejudicial
    effect of evidence also has implications on the decision about where the
    balance falls between probative value and prejudicial effect.

[259]

On an appeal from acquittal, the Attorney
    General cannot succeed simply by demonstrating a legal error in the conduct of
    the trial, for example, in a ruling about the admissibility of evidence.  Nor
    can the Attorney General succeed on an appeal from an acquittal on the basis of
    some abstract or purely hypothetical possibility that an accused would have
    been convicted were it not for the error of law.  Something more is required.
    And that something more is to satisfy the appellate court that the error might
    reasonably be thought, in the concrete reality of the case, to have had a
    material bearing on the acquittal:
R. v. Graveline
, [2006] 1 S.C.R. 609,
    at para. 14.

[260]

It is worth reminder that the appeal of the
    Attorney General is from the
acquittal
, not the admissibility ruling
    that is said to constitute an error in law.  What is required is a
    demonstration of a legal error (in the admissibility ruling) and a nexus
    between the legal error and the verdict rendered (an acquittal).  The
    authorities teach that acquittals are not to be overturned lightly.  The
    Attorney General must establish that the verdict would not necessarily have
    been the same had the error not been made:
Graveline
at para. 16;
R.
    v. Sutton
, [2000] 2 S.C.R. 595, at para. 2; and
R. v. Vezeau
, [1977]
    2 S.C.R. 277, at pp. 291-292.

[261]

In this case, counsel for the Attorney General
    has failed to satisfy this heavy onus.  I say so for several reasons.

[262]

First, whether the trial judge erred in his
    determination of the prejudicial effect of the proposed evidence, thus in his
    decision about whether the balance of probative value and prejudicial effect
    favored admission or exclusion, is not entirely clear. If, in his assessment of
    prejudicial effect, the trial judge proceeded from the premise that jurors were
incapable
of following complex legal instructions involving evidence of
    limited admissibility, he was wrong.  The presumption is to the contrary.  But
    it was open to the trial judge to conclude, notwithstanding the presumption,
    that the limiting instructions required
in this case
, in light of the
    evidence to be adduced, would not be adequate to overcome the prejudicial
    effect of the evidence so that probative value would predominate.  Said in
    another way, it is far from clear that this admissibility ruling, made in an
    evidentiary desert before jury selection, would have been different had the
    trial judge started with the presumption that jurors follow limiting
    instructions.

[263]

Second, the principal basis of admissibility
    advanced on appeal, that the evidence was admissible to respond to the evidence
    of Coopers disposition for violence, was not the basis upon which the case for
    admissibility was advanced at trial.  The prosecutor at trial considered that
    the evidence was likely inadmissible on the primary ground now advanced, thus
    did not seek its admission on this ground.  New theories of admissibility
    advanced by the Crown should garner no more appellate approval than new
    theories of liability.

[264]

Third, the prosecutor never renewed the
    application made at the outset of the trial to have the evidence of Lucianos
    disposition admitted after the full extent of the Cooper as killer evidence
    unfolded. Although the pre-trial ruling was based on the premise that evidence
    of Coopers disposition for violence
would
be adduced at trial, it was
    open to the prosecutor to renew the application when the full extent of the
    evidence was revealed.  See, by analogy,
R. v. Underwood
, [1998] 1
    S.C.R. 77, at para. 11.

[265]

Finally, admissibility in this case depended
    upon an assessment of probative value, prejudicial effect, and of where the
    balance fell between them.  These assessments are notoriously fact-specific.
    Absent clear error, these decisions should rest with their primary constituency
     the trial judge:
Shearing
at para. 73.

DISPOSITION

[266]

For these reasons, I would dismiss both appeals.

RELEASED:  February 1, 2011 KF

David
    Watt J.A.

I
    agree K. Feldman J.A.

I
    agree Paul Rouleau J.A.

[1]
In this court neither party challenged the correctness of this ruling. Lack of
    any further reference to it in these reasons does not indicate either agreement
    with the reasons of Stong J. or affirmation of the correctness of the result.