2019 NBCA 76, 2019 NBCA 76

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 68-18-CA MARISSA SHEPHARD APPELLANT MARISSA SHEPHARD APPELANTE - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Shephard v. R., 2019 NBCA 76 Shephard c.

R., 2019 NBCA 76 CORAM: The Honourable Chief Justice Richard The Honourable Justice Drapeau The Honourable Justice Larlee CORAM : l’honorable juge en chef Richard l’honorable juge Drapeau l’honorable juge Larlee Appeal from a decision of the Court of Queen’s Bench: May 8, 2018 (conviction) Appel d’une décision de la Cour du Banc de la Reine : le 8 mai 2018 (déclaration de culpabilité) History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: June 19 and August 14, 2019 Appel entendu : le 19 juin et le 14 août 2019 Judgment rendered: October 24, 2019 Jugement rendu : le 24 octobre 2019

Counsel at hearing: For the appellant: Margaret Gallagher, Q.C. For the respondent: Kathryn Gregory, Q.C. Avocats à l’audience : Pour l’appelante : Margaret Gallagher, c.r. Pour l’intimée : Kathryn Gregory, c.r. THE COURT ons, T he trial judge committed various errors of law in his charge to the jury and in allowing the jury to hear and consider inadmissible and highly prejudicial evidence. He likewise erred in law in failing to appropriately deal with Crown counsel’s improper submission to the jury that Ms. Shephard had “in her own words [on direct examination] included herself in the killing of Baylee Wylie”.

This error, by itself, commands reversal because it denied Ms. Shephard’s right to a fair trial, a wrong that can only be remedied by setting aside the convictions for first degree murder and arson, and ordering a new trial. LA COUR Le juge du procès a commis diverses erreurs de droit en donnant ses directives au jury et en permettant au jury d’entendre une preuve inadmissible et hautement préjudiciable et d’en tenir compte dans ses délibérations.

Il a commis une erreur de droit aussi en négligeant de traiter comme il se devait de le faire une observation inappropriée faite au jury par la substitut du procureur général selon laquelle M me Shephard [TRADUCTION] « en ses propres mots [en interrogatoire principal] [s’était] incluse comme participante au meurtre de Baylee Wylie ».

Cette erreur, à elle seule, nous oblige à intervenir car elle a eu pour effet de nier le droit de M me Shephard à un procès équitable, atteinte à laquelle il ne peut être remédié qu’en annulant les déclarations de culpabilité pour meurtre au premier degré et incendie criminel et en ordonnant la tenue d’un nouveau procès. The following is the judgment delivered by THE COURT I. Introduction and Overview [ 1 ] In mid-December 2015, Tyler Noel, Devin Morningstar, Baylee Wylie and the appellant, Marissa Shephard, gathered at her home for some drug-fueled excitement.

Unfortunately, as is often the case with the consumption of hard drugs, evil was at the rendezvous in search of lives to ruin. In time, friendly interaction ceded the stage to paranoia, violence, cruelty and, ultimately, murder and arson. In the months that followed, Mr. Noel, Mr. Morningstar and Ms. Shephard were charged with the first degree murder of Baylee Wylie and setting fire to the premises with disregard for human life. [ 2 ] Mr. Noel pled guilty to second degree murder and arson, and was sentenced for the murder to life imprisonment, with no possibility of parole for 16 years. Mr.

Morningstar pled not guilty, but was found guilty by a jury of first degree murder and arson. He was sentenced for the murder to life imprisonment with no possibility of parole for 25 years. There is evidence each had a motive to kill Baylee Wylie. [ 3 ] Following Ms. Shephard’s plea of not guilty, she was tried, found guilty and convicted on both charges by a court composed of a judge and jury. For the murder, she was sentenced, as required by law, to life imprisonment with no

possibility of parole for 25 years. Baylee Wylie was 18 when he died; Marissa Shephard was 20. [4] As is well known, mere presence at the scene does not suffice to establish criminal liability.Nor does failure to provide assistance to the victim of an assault, no matter how serious it might be. The issue at trial was not whetherMs. Shephard was a good person, but whether she participated in the murder of Baylee Wylie and the arson.

The pool of incriminatingphysical, forensic and circumstantial evidence is somewhat shallow and, in our view, it is debatable whether the prosecution would havesucceeded in resisting a non-suit motion at the close of its case but for Mr. Morningstar’s out-of-court account of the events surroundingthe offences charged in the Indictment. [5] That account was provided through two “formal” statements to the police, the first shortly afterMr.

Morningstar’s arrest on December 20, 2015, and the second on December 22, 2015, the latter under oath and commonly identifiedby the parties as the KGB statement (so named after R. v. B. (K.G.), (SCC), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22(QL)). Both statements were audiotaped and videotaped. In each statement, Mr. Morningstar identified Mr. Noel as the main aggressorand the one who struck the final deadly blows, but he also acknowledged participating episodically, albeit under pressure, in the assaulton Baylee Wylie, which extended over several hours.

More pertinently for our present purposes, parts of the formal statements implicateMs. Shephard in the offences; they also contain inadmissible and highly prejudicial evidence with little, if any, probative value. [6] Mr. Morningstar refused to testify at Ms. Shephard’s trial. Following a voir dire, the judgeapplied the framework adopted by the majority in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, and found the prosecution hadestablished the prerequisites for admissibility of his formal statements for the truth of their contents.

However, he determined thoseconditions precedent had not been met for the statements Mr. Morningstar made, while in custody, in a conversation with an undercoverpolice officer posing as a detainee awaiting appearance in court to answer criminal charges. The judge admitted that conversation inevidence solely for use by the defence in highlighting inconsistencies with the formal statements, a component of its case against theirreliability. [7] Ms.

Shephard did not testify in the voir dire, but she did before the jury, conceding on directexamination she was present, but too afraid to intervene, for some of the assaults on Baylee Wylie, and when he was killed. She deniedhaving any reason to harm Baylee Wylie, someone she had known since childhood and for whom she had affection. She disputed eachand every allegation in Mr. Morningstar’s formal statements attributing to her acts and remarks in furtherance of the offences. Crowncounsel abstained from cross-examining Ms.

Shephard on most features of her testimony, including three topics she referenced in herclosing address to impugn Ms. Shephard’s credibility. [8] Numerous items of physical and documentary evidence were placed before the jury for itsconsideration, including expert reports and lengthy transcripts of Mr. Morningstar’s formal statements. It also heard evidence over thebetter part of two weeks, including: (1) expert testimony on a wide range of subjects (DNA, blood spatter, the extent and number of thewounds to Baylee Wylie and the cause of his death);

(2) Mr. Morningstar’s formal statements (6 hours on CDs); and

(3) Ms. Shephard’stestimony, which took up more than a full day of court time. The jury also heard the addresses of counsel and the judge’s comprehensiveand lengthy charge, which ended late in the evening of May 7, 2018. [9] The jury deliberated the next morning and returned after lunch with a verdict of guilty ascharged. [10] Some of the evidence tendered by the parties, mostly by Crown counsel, was inadmissiblebecause its prejudicial impact on trial fairness vastly exceeded any potential probative value. Moreover, in her closing address, Crowncounsel invited the jury to convict on the basis that Ms.

Shephard had, in her direct examination, “included herself in the killing ofBaylee Wylie”. That potentially outcome-sealing submission was contextually unjustified and very unfair. Yet, it eluded both defencecounsel and the judge, and neither dealt with it, on the spot or later. Clearly, defence counsel’s silence cannot be justified on “tactical” or“strategic” grounds: the Ostrich approach to problematic issues has no place in litigation. [11] As will be seen and explained, the trial judge committed errors of law in his charge and inallowing the jury to hear and consider inadmissible and prejudicial evidence.

Likewise, he committed an error of law in failing toappropriately deal with Crown counsel’s improper submission to the jury that Ms. Shephard “in her own words, included herself in thekilling of Baylee Wylie”. This error, by itself, warrants reversal. II. The Issues on Appeal

[ 12 ] In her Notice of Appeal, Ms. Shephard seeks a new trial, alleging the trial judge erred in law: (1) by misapplying Bradshaw in finding Mr. Morningstar’s formal statements qualified under the principled exception to the rule against the admissibility of hearsay evidence; and (2) in failing to properly direct the jury regarding the absence of any cross-examination of Mr. Morningstar and the effect under the rule in Browne v. Dunn , [1893] J.C.J. No. 5 (H.L. Eng.) (QL), of Crown counsel’s failure to cross- examine on subjects she invoked in her closing address to challenge Ms.

Shephard’s credibility. [ 13 ] At the hearing in June 2019, the Court indicated to counsel for the Attorney General that it did not need to hear from her regarding the second ground of appeal. The Court subsequently reconsidered its approach and issued a Memo to Counsel, seeking additional input on that ground and with respect to concerns pertaining to trial fairness that had percolated during the hearing. The parties filed supplementary submissions and the hearing resumed on August 14, 2019, at which time both sides confirmed compliance with the debate-defining guidelines articulated in R. v.

Mian , 2014 SCC 54 , [2014] 2 S.C.R. 689 , and joined in a fulsome and vigorous debate over all live issues, particularly those linked to trial fairness. [ 14 ] Those issues, which were fully fleshed out in the supplementary written and oral submissions, arise from: (1) the judge’s instruction to the jury equating Mr. Morningstar’s formal statements with sworn or solemnly affirmed testimony rendered at trial; (2) his instruction to the jury that it could consider the in-jail conversation between the undercover officer and Mr. Morningstar to determine what, if any, weight, credibility and reliance Mr.

Morningstar’s formal statements deserved;

(3) Crown counsel’s submission to the jury, which neither the judge nor defence counsel seem to have grasped, that Ms. Shephard admitted to participating in the murder during her direct examination, an “admission” Crown counsel did not give Ms. Shephard an opportunity to address on cross-examination; and (4) the jury hearing inadmissible prejudicial evidence regarding Ms. Shephard’s bad character, her violent mindset and her propensity to engage in violent acts, and the likelihood she would lie about her involvement.

We note parenthetically that, unlike Rule 62 of the Rules of Court (“Civil Appeals to the Court of Appeal”), Rule 63, which applies to criminal appeals like the present one, does not necessarily foreclose reliance on grounds that are not pleaded in the Notice of Appeal. This more liberal and forgiving approach is easily justified, having regard to the liberty interest at stake in criminal appeals. [ 15 ] Be that as it may, while the Attorney General concedes errors were made at trial, she contends they were harmless. Additionally, she submits there is no merit to Ms.

Shephard’s pleaded grounds of appeal and the concerns expressed in the Memo to Counsel do not reveal a breach of Ms. Shephard’s Charter right to a fair trial. As noted, we respectfully disagree. That said, we hasten to point out neither appellate counsel acted as counsel at trial. Accordingly, none of the Court’s critical comments regarding the conduct of the trial is directed at them. In fact, their contribution to the discussion on appeal has greatly enhanced our understanding of the important issues. III.

Context [ 16 ] We begin this Part with a caution: we make no findings of fact for criminal liability purposes, a task properly left to the trier of fact in a new trial. In these reasons, we seek only to provide a general context to facilitate an understanding of Mr. Morningstar’s statements, Ms. Shephard’s evidence, the charge and addresses to the jury, and our legal conclusions.

One last preliminary observation: this case presented difficult challenges for the trial judge and, too often, he had to wrestle with those challenges without the benefit of appropriate assistance from counsel; blame for the outcome on appeal must be shared by the solicitors of record in the court below. [ 17 ] At the time of the offences set out in the Indictment, Ms. Shephard was renting the middle unit in a triplex. Her unit had two floors above ground and a basement. The bedrooms were on the top floor, and the kitchen and living room were on the ground floor.

The civic address for her unit was 96 Sumac Street, Moncton, N.B. [ 18 ] Ms. Shephard has a young son. He was at 96 Sumac until Ms. Shephard’s mother picked him up on December 16, 2015, sometime before the assault on Baylee Wylie began. [ 19 ] Ms. Shephard was a sex worker. So was Baylee Wylie. Both were users of hard drugs, and there is evidence she was an addict. We pause to underscore an indisputable principle of law: Ms. Shephard’s chosen line of work and lifestyle did not disentitle her to a fair trial.

Nor did Baylee Wylie’s decision to join the sex trade and choice of lifestyle justify, in any way, his violent mistreatment, torture and killing. [ 20 ] Mr. Noel was in the business of drug trafficking, and he brought to 96 Sumac significant

quantities of hard drugs. He also brought a .22 caliber rifle. There is evidence it was not loaded and that Mr. Noel did not carry ammunition. While the rifle is mentioned in Mr. Morningstar’s formal statements and may have been used to strike Baylee Wylie, he did not sustain any gunshot wounds. [ 21 ] Ms. Shephard had met Mr. Noel several years earlier. She made the acquaintance of Mr. Morningstar only a few days before the murder of Baylee Wylie. [ 22 ] While at 96 Sumac, Baylee Wylie, Ms. Shephard, Mr. Noel and Mr. Morningstar consumed large quantities of various hard drugs.

This significant drug intake may explain, among other things, the difficulty Mr. Morningstar appears to have encountered in providing details of what happened at 96 Sumac before, during and after Baylee Wylie’s murder. [ 23 ] Ms. Shephard testified that, on December 16, 2015, Baylee Wylie showed her photos on his Blackberry of Mr. Noel and himself engaged in oral sex, which she deleted for fear that Mr. Noel might get violent if he saw them. Ms. Shephard testified Baylee Wylie subsequently got “sassy”, reminding Mr. Morningstar they had previously engaged in sex and repeatedly teasing Mr.

Noel with their sexual interaction the night before. According to Ms. Shephard, these suggestions infuriated both Mr. Noel and Mr. Morningstar and triggered a furious attack, mostly with fists, on Baylee Wylie. Ms. Shephard testified the assault, which took place in her bedroom, finally ceased when Baylee Wylie began bleeding from a cut to the forehead caused by a “bong” she had thrown from a distance in frustration with Messrs. Noel and Morningstar’s disregard of her protests. A bong is a device used to consume drugs. [ 24 ] Ms.

Shephard testified she left 96 Sumac twice during the evening of December 16, 2015, to have sex with paying customers, leaving Baylee Wylie and Messrs. Noel and Morningstar behind. When she returned from the first outing, they seemed to be getting along. However, when she came back from the second outing, the situation had dramatically changed; Baylee Wylie was badly injured. Ms. Shephard panicked, and ran upstairs to her bedroom where she stayed throughout the final stages of the relentless assault on Baylee Wylie.

By the time she went downstairs, he was dead. [ 25 ] There is evidence Baylee Wylie was assaulted in Ms. Shephard’s bedroom, on the ground floor and in the basement. He was punched, choked, kicked and struck with, among other weapons, a curtain rod and a bong. He was stabbed more than 100 times with a knife or knives, and a broken mirror piece. We pause to note none of the physical and forensic evidence linked Ms. Shephard to the commission of the crimes. Specifically, Ms. Shephard’s fingerprints and DNA were not on any of the weapons.

In fact, her DNA was located in only one place: the back porch area on the ground floor of 96 Sumac where Ms. Shephard testified she stepped on some broken glass and cut her foot. [ 26 ] The stabbings began and continued for quite some time in the basement. Despite the resulting severe injuries, Baylee Wylie managed to climb to the living room and may have tried to leave through the back door before collapsing on a couch where he was stabbed repeatedly by an apparently frenzied Mr. Noel. He died shortly before 4:00 a.m. on December 17, 2015. [ 27 ] Soon after, Ms.

Shephard’s unit, and a box spring that had been placed over Baylee Wylie’s body, were set on fire, and the unit was vacated. Ms. Shephard, Mr. Noel and Mr. Morningstar were picked up, at around 4:00 a.m., by the latter’s friend, Claude LeBlanc, and driven to Mr. Morningstar’s residence. [ 28 ] While there, Mr. Noel observed Mr. Morningstar in private conversation with Bailey Fillmore, and he became concerned the events at 96 Sumac had been discussed with her. Mr. Noel informed Ms. Shephard he was giving serious consideration to killing both Mr.

Morningstar and Bailey Fillmore to prevent them from sharing with others what happened at 96 Sumac. In her direct examination, Ms. Shephard stated she argued against Mr. Noel’s murderous plan because she “did not want anyone else to die”. She recalled saying to Mr. Noel “no, like we’re not killing anybody else, Tyler” after he told her “you’re gonna have to help me now”. [ 29 ] Ms. Shephard testified she left Mr. Morningstar’s residence in the company of Mr. Noel, Mr. Morningstar and Bailey Fillmore. The four were later videotaped in a convenience store interacting in an apparently friendly fashion. Ms.

Shephard subsequently paired up with Mr. Noel and accompanied him to various locations where more drugs were consumed. It is also her evidence that, until her arrest on March 1, 2016, she was unable to turn herself in: she feared for her life if she tried to do so. As well, Ms. Shephard testified she was, for most of that period, held against her will and incommunicado: she was also drugged and raped by strangers in premises, likely outside the City of Moncton, with which she was wholly unfamiliar and that she did not situate with any precision in her testimony.

This evidence of confinement was not before the judge on the voir dire .

[ 30 ] Because of their centrality in the Crown’s case and in the appeal, Mr. Morningstar’s statements to the police warrant particular attention. His first statement (the “warned” statement) was taken over the course of more than 3.5 hours. It began at 6:21 p.m. on December 20, 2015, shortly after his arrest. He was interviewed by Corporal James MacPherson at the Codiac Regional RCMP detachment in Moncton. Mr. Morningstar had already exercised his right to counsel, and the statement was audiotaped and videotaped. No oath was administered, but Mr.

Morningstar was warned that anything he said could be used as evidence. The interview ended at 9:59 p.m. The transcript of this interview is 124 pages long. [ 31 ] Following the warned statement, Mr. Morningstar was escorted to his cell at the Codiac RCMP detachment where he was joined by an undercover police officer. Their conversation was audiotaped, and it lasted approximately one hour and fifteen minutes. Obviously, no oath or warning preceded this surreptitious recording. The transcript of the conversation is 21 pages long. Parts of the conversation implicate Ms. Shephard in facets of the murder and arson.

Some parts are arguably inconsistent with the formal statements. Recall the conversation with the undercover officer was not admitted in evidence for the truth of its contents, but for the limited purpose of assisting the defence in challenging the reliability of the formal statements. [ 32 ] Mr. Morningstar’s second formal statement to police (the “ KGB statement”) was given on December 22, 2015, at the Shediac Detention Centre. Corporal Laurent Lemieux, along with Corporal MacPherson, attended the Centre to interview Mr. Morningstar. At 3:15 p.m., Corporal Lemieux commenced the videotaped interview. Mr.

Morningstar was warned about the consequences of lying to police, including potential perjury, obstruction of justice and/or public mischief charges. He also swore an oath to be truthful. The interview lasted approximately 2.5 hours, ending at 5:45 p.m. The transcript of this interview is 80 pages long. [ 33 ] Parts of the warned and KGB statements implicate Ms. Shephard in some aspects of the assault on Baylee Wylie and the arson. However, there are inconsistencies within and between the statements.

There are also inconsistencies between the in-jail conversation with the undercover officer and the formal statements. In his final address to the jury, defence counsel highlighted a number of those inconsistencies. [ 34 ] It is also beyond debate that several of Mr. Morningstar’s observations in the formal statements were inadmissible by virtue of exclusionary rules of evidence other than those specifically applicable to hearsay. Some of the observations in question were inadmissible because they amount to opinion evidence, speculation and guesswork. Others were inadmissible as prejudicial attacks on Ms.

Shephard’s character and prejudicial suggestions of propensity on her part to be violent and to lie. All agree significant editing was required to remove those inadmissible and prejudicial observations. Unfortunately, there was no vetting and no editing before the recordings were played for the jury. In addition, the CDs (recording the original unedited formal statements) were handed to the jury for deliberation purposes. Despite some redactions, the transcripts provided to the jury continued to feature inadmissible and highly prejudicial observations. [ 35 ] Mr. Morningstar briefly testified at Mr.

Noel’s preliminary inquiry, but refused to provide any information regarding the killing of Baylee Wylie or the arson. The prosecution hoped, but was unsure he would be more cooperative at Ms. Shephard’s trial. Accordingly, a pre-trial voir dire was initiated to determine the admissibility of the two formal statements for the truth of their contents, just in case Mr. Morningstar refused to testify. The voir dire began in the fall of 2017 and, after a few days, it was adjourned until Mr. Morningstar’s appearance in court. [ 36 ] Mr.

Morningstar was called to testify for the prosecution on three occasions, and steadfastly refused to do so. After his third refusal, the judge directed the resumption of the voir dire . By this time, 30 witnesses had testified and numerous items of physical evidence had been received as exhibits in the trial proper.

With defence counsel’s consent, the trial evidence was admitted for voir dire purposes. [ 37 ] Under the principled approach to the admissibility of hearsay, a statement incriminating the accused made in his or her absence and tendered for its truth may only form part of the evidential record if the trial judge is satisfied the statement is sufficiently reliable and its admission is necessary. The judge found Mr. Morningstar’s refusal to testify sufficed to meet the necessity criterion, and no one has taken issue with that finding.

Accordingly, the voir dire rightly focused on the threshold issue of reliability, both procedural and substantive, which the judge approached and settled by applying the Bradshaw framework. As mentioned, Ms. Shephard did not testify at the voir dire . Nor did she call any witnesses. [ 38 ] In his ruling, the judge turns his mind first to the issue of procedural reliability. His observations on point include the opinion that, despite taking an oath to tell the truth, the average person typically provides testimony that reflects “what they feel will help their case”.

He then leaps from this general assessment to the conclusion that Mr. Morningstar’s oath to tell the truth would not provide any indication of inherent trustworthiness. In the result, the judge rules the prosecution failed to establish on a

balance of probabilities that the process culminating with the formal statements met the procedural reliability criterion. He then proceeds to assess substantive reliability. To that end, the judge references the four steps identified by the majority in Bradshaw as components of a proper consideration of extrinsic evidence in the substantive reliability inquiry. [ 39 ] First, the judge identifies the formal statements’ material aspects as Mr. Morningstar’s assertions that Ms. Shephard participated in the murder of Baylee Wylie and the arson. Second, the judge considers the specific danger in play: Mr.

Morningstar could be lying. He then finds there is no “real” evidence of any motive on the part of Mr. Morningstar to falsely incriminate Ms. Shephard. Third, in discussing possible explanations for the formal statements’ material aspects, other than their truth, the judge agrees with the prosecution that many of the observations in the formal statements were validated by the physical and testimonial evidence.

However, he emphasizes he must look for corroboration “not of the fact that Devin Morningstar knows what he’s talking about” but “of the fact that Marissa June Shephard was involved.” Lastly, in determining whether, in the circumstances of the case, corroborative evidence rules out “alternative explanations such that the only remaining likely explanation […] for the statement […] is the declarant’s truthfulness about, or the accuracy of, the material aspects”, the judge is careful not to determine ultimate reliability.

He acknowledges that, in assessing threshold reliability, the court’s preoccupation must be “whether, in-court, contemporaneous cross-examination of [the] hearsay declarant would add anything to the trial process” and that a finding of threshold substantive reliability is justified only if alternative explanations (other than truth) for the material aspects are rejected. [ 40 ] The important voir dire evidence pertaining to substantive reliability can be grouped into two categories: (1) evidence tending to identify Ms.

Shephard as the female who left 96 Sumac at 4:00 a.m. on December 17, 2015; and (2) evidence of her contemporaneous and post-event conduct, which was put forward as circumstantial evidence of guilt. [ 41 ] First, the judge found corroboration of Mr. Morningstar’s statements placing Ms. Shephard at 96 Sumac when the murder and the arson occurred. Claude LeBlanc testified he picked up and drove three people away from 96 Sumac at 4:00 a.m. on December 17, 2015. According to Mr. LeBlanc, the individuals were Mr. Morningstar, an unknown male who was later identified as Mr.

Noel, and a female he identified in direct examination as Ms. Shephard, only to shy away from that identification on cross-examination. The judge was satisfied the following evidence established the female in question was probably Ms. Shephard:

(1) Bailey Fillmore testified she saw Ms. Shephard, Baylee Wylie, Mr. Morningstar and Mr. Noel, together, at 96 Sumac in the days leading up to the murder;

(2) Patricia Mandy, who lived at 98 Sumac, one of the adjacent triplex units, testified to hearing a female voice at approximately 6:30 p.m. on December 16, around the time the first assault on Baylee Wylie would have taken place; (3) the records of N.B. Housing, the landlord of 96 Sumac, showed the unit was rented to Ms. Shephard;

(4) Claude LeBlanc’s testimony that he understood from one or more of the departing occupants of 96 Sumac “they were running out on the rent”;

(5) Bailey Fillmore testified she went to Mr. Morningstar’s home on the afternoon of December 17 and Ms. Shephard, Mr. Morningstar and Mr. Noel were there; (6) later, their seemingly friendly interaction was captured on convenience-store surveillance footage. The judge concluded this evidence pointed “to the fact that, at the very least, Marissa June Shephard is the female that exited 96 Sumac with Devin Morningstar and Tyler Noel at 4:00 a.m.” [ 42 ] Second, the judge agreed Ms.

Shephard’s conduct after leaving 96 Sumac was circumstantial evidence that she was probably involved, to some extent, in the murder of Baylee Wylie and the arson. In the judge’s view, an innocent person who had just witnessed the murder of a friend and her home engulfed in flames would promptly reach out to the authorities (police and fire department) and report the damage to her landlord. Ms. Shephard did nothing of the sort. Instead, and as noted, Ms. Shephard was seen later that day on surveillance video, consorting with the killers and arsonists. Finally, the judge, who had yet to hear Ms.

Shephard’s evidence of confinement against her will and inability to communicate with the outside world, determined she had to be aware of the much-publicized warrant for her arrest, but chose to remain on the run and not turn herself in; rather, she altered her appearance, and when finally located and confronted by the police, she falsely identified herself.

In the judge’s view, this conduct is “exactly what you could expect from a person who was a culprit in the murder and the arson”. [ 43 ] In the end, the judge accepted the only likely explanation for the material aspects of the formal statements was their truthfulness. That finding underlies his ruling that the prosecution met the Bradshaw standard for admissibility. [ 44 ] Correlatively, in his final charge, the judge identifies Mr. Morningstar as an unsavoury witness. He then instructs the jurors they should be “hesitant or reluctant” to take Mr.

Morningstar “for his words” and they should look for “some form of exterior or extrinsic confirmation of these descriptions he has given to police”. The judge adds: Indeed, you should look at what other witnesses or other elements of evidence, namely the exhibits presented, that are sources other than Devin Morningstar, before you decide to rely upon what Devin Morningstar said to police […] in his two formal interviews. […] [K]eep in mind who gave these descriptions, being Devin Morningstar, and what he represents to you and the circumstances under which Devin Morningstar was talking to police.

The judge concludes with a non-exhaustive itemization of evidence the jury might consider in determining whether there was extrinsic confirmation of Mr. Morningstar’s description of the salient events. [ 45 ] More generally, in his final charge, the judge summarizes the evidence, quite fairly for each side, before repeating what he took from Crown and defence counsel’s respective addresses. Significantly, he does not mention, let alone comment on, Crown counsel’s submission to the jury that Ms. Shephard admitted on direct examination to participating in Baylee Wylie’s killing. After providing his own understanding of the submissions by counsel, the judge reads to the jury counsel’s

summary of their respective submissions. The alleged sworn admission by Ms. Shephard of participation in the killing of Baylee Wylie is not mentioned in Crown counsel’s

summary. [ 46 ] After deliberating for a relatively short time, the jury delivered verdicts of guilty as charged. IV. Analysis and Decision [ 47 ] In the text that follows, we delve into Ms. Shephard’s pleaded allegations of error before closing with a discussion focused on the jury instructions and on the crux of the appeal: trial fairness. A. The misapplication of Bradshaw (Ground of appeal #1) [ 48 ] Under the principled approach adopted in K.G.B. , hearsay is admissible for its truth if it meets the twin requirements of necessity and reliability.

That determination is based on “a flexible case-by-case examination”: R. v. Youvarajah , 2013 SCC 41 , [2013] 2 S.C.R. 720 , at para. 21 . While admissibility is a question of law that stands to be reviewed for correctness, deference is owed not only to the foundational findings of fact but also, absent an error in principle, to the determination of threshold reliability: Youvarajah , at para. 31 . [ 49 ] Ms. Shephard does not contend the trial judge made an error in identifying the governing principles.

Indeed, she acknowledges the judge correctly identified the Bradshaw standard for admissibility and the role it ascribes to corroborative evidence in judicially determining admissibility under the principled approach to hearsay. Moreover, she does not argue the adjudicative framework adopted in Bradshaw or, for that matter, any aspect of that decision is no longer good law. Nor does she submit her case against the admissibility of the formal statements has been strengthened by the recent decision in R. v. Larue , 2019 SCC 25 , [2019] S.C.J. No. 25 (QL) . Ms.

Shephard’s submission is simply that the judge’s ruling on admissibility rests on unsustainable findings of fact and evidence that does not meet the Bradshaw test for corroboration. This is the only objection to the admissibility of the formal statements as a whole that is before us. [ 50 ] The facts in Bradshaw may be usefully summarized as follows. The police investigation of two murders included a covert investigation procedure known as a Mr.

Big operation during which one of the suspects, Roy Thielen, admitted to an undercover officer his participation in one of the murders and implicated a second suspect, Robert Bradshaw, in the other. Following his arrest, Mr. Thielen initially denied any participation in the murders. However, once he was made aware of the Mr. Big operation, he folded and gave two recorded statements to the police, detailing the circumstances surrounding the murders and identifying Mr. Bradshaw as one of the murderers. As a result, Mr. Bradshaw was charged with two counts of first degree murder. [ 51 ] At trial, Mr.

Thielen refused to testify. As a result, the admissibility of his statements, particularly the parts incriminating Mr. Bradshaw, became a live issue. It was eventually resolved in favour of the prosecution and Mr. Bradshaw was found guilty on both counts. On appeal to the British Columbia Court of Appeal, the Court determined substantive reliability had not been established and that the statements were inadmissible. It set aside the convictions and ordered a new trial.

On further appeal to the Supreme Court of Canada, that outcome was confirmed. [ 52 ] In the course of the reasons she delivered for the majority, Justice Karakatsanis noted that, although hearsay is presumptively inadmissible given the dangers this kind of evidence presents, it may be admitted if threshold reliability is established.

Threshold reliability is informed by procedural and substantive considerations that are designed to assist in rationally determining whether the tendered evidence is sufficiently reliable to overcome dangers typically associated with hearsay, which include an inability to test and assess the declarant’s perception, memory, narration or sincerity: R. v. Khelawon , 2006 SCC 57 , [2006] 2 S.C.R. 787 , at para. 2 .

[ 53 ] Procedural reliability will be established where there are “adequate” substitutes for in-court cross-examination of the hearsay declarant. The following are commonly offered as substitutes in cases involving statements to police: truth-telling oaths, an inventory of the serious consequences of lying, cross-examination of the declarant in other settings and recordings of the proffered statements.

While some form of cross-examination is “usually required” ( see Bradshaw , at para. 28 ), its absence does not automatically ordain a finding adverse to procedural reliability. [ 54 ] In Bradshaw , the majority confirmed that evidence may be considered corroborative only if it goes to the truthfulness or accuracy of the material aspects of the hearsay statement (para. 45). Ms. Shephard submits this condition precedent can only be met by direct evidence establishing her participation in the commission of the offences charged. We respectfully disagree.

In our view, circumstantial evidence, viewed contextually and cumulatively, may provide the sought-after corroboration. However, the evidence in question will warrant reliance only “if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement” (para. 44) and that those material aspects “are unlikely to change under cross-examination” (para. 47).

The “change” in question is not one that might result from perjured testimony, but an error-correcting or falsehood-revising change. Otherwise, it would always be the case that the material aspects could change under cross-examination. [ 55 ] Be that as it may, the majority went on to set out the steps judges are to follow in considering whether evidence extrinsic to the hearsay statement is corroborative of its reliability:

(1) Identify the material aspects of the hearsay statement that are tendered for their truth;

(2) Identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;

(3) Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and

(4) Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement. (para. 57) In the case at hand, the judge referenced and followed this script. He found the only likely explanation for the material aspects of the formal statements was Mr. Morningstar’s truthfulness and their accuracy. In her first written submission, Ms.

Shephard contends the judge failed “to consider whether the Bradshaw standard had been met”. There is, evidently, no merit to this complaint. [ 56 ] Ms. Shephard also submits the trial judge made findings of fact that were not supported by evidence. Her primary target is the finding that Mr. Morningstar had no motive to lie in incriminating her. She contends such a motive arose from the fact Mr. Morningstar “was upset because she had left him”. The judge’s finding regarding motive is a finding of fact, which must stand in the absence of a palpable and overriding error in the assessment of the relevant evidence.

Ms. Shephard has failed to establish any such error. Indeed, there is evidence to support the trial judge’s finding. [ 57 ] Ms. Shephard contends, as well, the judge considered evidence that was not relevant to the threshold inquiry. [ 58 ] Ms. Shephard’s first submission on point is that the judge erred in considering as corroborative evidence, Mr. Morningstar’s self-incrimination in the formal statements, his conviction of first degree murder and arson, and Mr. Noel’s plea of guilty to second degree murder and arson.

The short answer is that, although he adverted to those matters, the judge emphasized they had no place in the Bradshaw analysis he was conducting. It is therefore unnecessary to decide whether those considerations might properly be in the mix under the umbrella of the “circumstances of the case”. [ 59 ] Ms. Shephard’s second submission on this topic is that the judge fell into error in finding the material aspects of the formal statements were consistent and, alternatively, in considering that circumstance as corroborative of their description of Ms. Shephard’s role in the commission of the offences.

It was undoubtedly open to the judge, and indeed the jury, to find inconsistencies within and between the formal statements. However, the issue is whether the judge’s finding of consistency is the product of a palpable and overriding error. We conclude it is not.

[ 60 ] Indeed, differences within the formal statements are arguably insignificant in light of Mr. Morningstar’s apparent decision to cease shielding Ms. Shephard and himself against criminal liability and to provide an accurate account of the crime-related events at 96 Sumac. As for differences between the formal statements, they are arguably confined to peripheral details, and not the core description of Ms. Shephard’s role in the crimes.

Accordingly, it was open to the trial judge to find the material aspects of the statements were consistent. [ 61 ] Moreover, we are not persuaded the statements’ core consistency, as described hereinabove, could not weigh in the balance in the particular circumstances of this case. After all, few would quibble with the proposition that it is unlikely Mr. Morningstar, a 20-year-old first offender pressed by experienced police interrogators to come clean in a pressure-packed setting, had the wherewithal to falsely describe, in fairly consistent fashion, the core features of Ms.

Shephard’s role in the crimes committed at 96 Sumac. Had he lied in incriminating Ms. Shephard, one would have expected inconsistency, not the opposite. We wrap up the discussion on the issue of statement consistency by underscoring that the arguably peripheral inconsistencies raised by Ms. Shephard on the voir dire , at trial and on appeal were highlighted in the judge’s charge and defence counsel’s address as grounds to reject as unreliable the incriminating parts of the formal statements. [ 62 ] Ms.

Shephard’s third submission on the issue of corroboration is that the trial judge erred in law in considering Ms. Shephard’s pre- and post-event association with Messrs. Noel and Morningstar, her failure to turn herself in for more than two months, despite a much-publicized warrant for her arrest, and her false self-identification upon arrest. In her submission, these events were irrelevant to the determination of threshold reliability. Once again, we respectfully disagree.

Weighed cumulatively and contextually, the acts and omissions described above could be viewed by the trial judge as circumstantial evidence of Ms. Shephard’s involvement in the crimes committed at 96 Sumac. It follows we are not persuaded the trial judge committed reversible error in bringing those acts and omissions to bear in determining threshold reliability. [ 63 ] Nonetheless, we agree with the Attorney General’s submission that the trial judge erred in law in completely discounting Mr. Morningstar’s oath to tell the truth in his KGB statement.

This is so because there is no evidence to support the judge’s conclusion the oath taken by Mr. Morningstar meant nothing to him. Absent evidence to that effect, Mr. Morningstar’s oath had to weigh in the balance in the threshold reliability inquiry. [ 64 ] In our view, despite the lack of testing by cross-examination of the formal statements’ material aspects, either at trial or in other proceedings, the process associated with the taking of the formal statements features elements that militate in favour of threshold reliability. Chief among those are Mr.

Morningstar’s truth-telling oath in connection with the KGB statement, the audiotaping and videotaping of the entirety of the formal statements and the adumbration of the consequences flowing from lying. While those elements may not suffice to establish procedural reliability in this case, they “may work in tandem” with substantive considerations in assessing whether the requisite threshold reliability has been established: Bradshaw , at para. 32 . [ 65 ] As noted in Fredericks v. R. , 2018 NBCA 56 , [2018] N.B.J.

No. 211 (QL) , elements of both the procedural and substantive reliability lines of inquiry “can combine to overcome the specific hearsay dangers a statement might present, even in a situation where neither procedural nor substantive reliability would have sufficed on its own” (para. 77). The trial judge’s finding of substantive reliability based on corroborative evidence is buttressed by the elements of procedural reliability mentioned above. [ 66 ] All things considered, including the applicable standard of review, the trial judge’s admissibility ruling must stand.

Needless to say, this ruling did not open the evidential door to observations by Mr. Morningstar that were inadmissible by virtue of other exclusionary rules of evidence. As mentioned, significant editing of the statements was required. We will return to this topic in assessing trial fairness. B. The failure to properly instruct the jury on the importance of the fact that Mr. Morningstar was never cross-examined (Ground of appeal #2) [ 67 ] In the mid-trial instructions, the judge explained to the jury that, “most importantly”, witnesses who testify in court “are available for cross-examination”.

In his final charge, the judge instructed the jury to consider Mr. Morningstar’s behaviour during the audiotaped and videotaped statements, bearing in mind it was denied the opportunity to examine his behaviour in court, and taking into account “that, unlike the other oral evidence given at trial, Devin Morningstar could not be cross-examined by defence counsel”. In summarizing the defence’s position, the judge adds:

Defence counsel concludes in reminding you that contrary to Devin Morningstar, the person on whose version the Crown would wantyou to render verdicts, defence has put the accused Marissa Shephard on the stand. Therefore, making her available to Crown to becross-examined and tested as much as Crown wanted, and the Crown let pass that opportunity. Yet, now, the Crown asks that you acceptthe version of Devin Morningstar and reject the version of Marissa June Shephard.

As yet another reminder of my numerous remindersand repeats, you shall always keep in mind that it is for Crown to prove beyond a reasonable doubt that Marissa June Shephard took partin the crimes that she is charged with. [68] Those instructions were adequate and fair. There is no merit to this ground of appeal. C. Crown counsel’s failure to afford Ms.

Shephard an opportunity to address on cross-examination features of her directexamination Crown counsel subsequently relied on to impugn her credibility (Ground of appeal #2) [69] The Appellant’s Submission identifies three topics Crown counsel should not have raised in herclosing address to impugn Ms.

Shephard’s credibility, having failed to afford her an opportunity on cross-examination to address them:(1) her DNA in the blood found in the back porch area; (2) the paucity of verifiable details in her account of outings with “customers”while some of the assaults on Baylee Wylie occurred; and (3) her professed ignorance of the warrant for her arrest. Ms. Shephardsubmits the rule in Browne v. Dunn precluded Crown counsel’s challenge to her credibility. [70] The Attorney General’s first submission in response is that the rule in Browne v.

Dunn has norelevance to the case at hand because it applies only where the cross-examining party intends to impeach a witness’ credibility “by thecalling of contradictory evidence” (emphasis added). In support of that narrow appreciation of the rule, the Attorney General reliesnotably on R. v. Verney, (ON CA), [1993] O.J. No. 2632 (C.A.) (QL), per Finlayson, J.A. In the Attorney General’sview, the rule in Browne v. Dunn requires the cross-examining party give the witness an opportunity to state his or her position withrespect to later evidence that contradicts the witness on an essential matter.

With respect, that narrow understanding is irreconcilable withthe House of Lords’ formulation of the rule in the case of Browne v. Dunn. Its salient facts were as follows. [71] Mr. Browne brought against Cecil W. Dunn, a solicitor, an action for libel. Mr. Brownecontended the libel was expressed in the retainer Mr. Dunn prepared and got his “clients” to sign. On its face, the retainer authorized Mr.Dunn to take proceedings against Mr. Browne for various specified wrongs. Mr. Browne’s theory at trial was that the retainer was asham and that its purpose was none other than to defame him.

The jury found in his favour and awarded damages. However, the verdictwas set aside by the Court of Appeal, and Mr. Browne appealed to the House of Lords. It, too, dismissed his appeal. [72] One of the signatories to the retainer, E. Cooke, gave evidence at trial for Mr. Browne. Shetestified to signing the retainer without reading it. The other signatories, except for one who did not testify, gave evidence for Mr. Dunn.They testified Mr. Browne had wronged them and that, as a result, they consulted and gave instructions to Mr. Dunn on the subject,which entailed the preparation and execution of the retainer.

Counsel for Mr. Browne did not cross-examine any of the signatories whosetestimony purported to substantiate the bona fides of the retainer. Significantly, there is no suggestion in their Lordships’ recital of thefacts that Mr. Browne indicated he intended to call evidence to contradict the signatories who testified on behalf of Mr. Dunn. At anyrate, Mr. Browne did not call contradicting witnesses. [73] Manifestly, Browne v. Dunn was not concerned with contradiction by means of “later”evidence. Mr.

Browne simply asked the jury, in his counsel’s address, to disbelieve the signatories who testified the retainer waslegitimate. In the view of Lord Herschell, the Lord Chancellor, the confrontational rule, as it is sometimes called in the jurisprudence,applies “where it is intended to suggest that a witness is not speaking the truth on a particular point” (para. 2). The rule is engagedwhenever it is intended “to impeach a witness”, a general formula used by the Lord Chancellor without any intimation that itencompassed only impeachment by means of “later” contradicting testimony.

He went on to state that “it was not open to the learnedcounsel [for Mr. Browne] to ask the jury to disbelieve” the signatories who testified for the defence (para. 4).

Lord Halsbury, like theother Lords, agreed, stating “to my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidencewhich they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often todefend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said,although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to” (para. 16)(emphasis added). [74] In addition to its inconsistency with Browne v.

Dunn, the restricted view taken in Verney woulddeny the rule’s protection to accused persons in virtually all cases. Indeed, if the rule only applies to the Crown where it intends toadduce contradicting evidence, it would only be triggered in the rare instances where rebuttal evidence is allowed. Thus, if the rule does

not apply to the Crown in the absence of an intention to call contradictory evidence, the Crown could, in virtually all cases, engage withimpunity in the very conduct the rule was designed to prevent. That is an unacceptable result. [75] In R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, the Supreme Court defined the rule,admittedly in dicta, as enjoining the cross-examining party to give notice to witnesses whose testimony he or she intends to impeach(para. 64). To be clear, the Court did not limit the impeachment in question to “later” contradictory evidence: […] The rule in Browne v.

Dunn requires counsel to give notice to those witnesses whom the cross-examiner intends later to impeach.The rationale for the rule was explained by Lord Herschell, at pp. 70-71: Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intendedto suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogetherunchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been putto him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witnessunworthy of credit.

My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, togive him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professionalpractice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.

Sometimes reflections have been made uponexcessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of awitness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards tosuggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full noticebeforehand that there is an intention to impeach the credibility of the story which he is telling.

The rule, although designed to provide fairness to witnesses and the parties, is not fixed. The extent of its application is within thediscretion of the trial judge after taking into account all the circumstances of the case. See Palmer v. The Queen, (SCC),[1980] 1 S.C.R. 759, at pp. 781-82; J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at pp.954-57. In any event, the foregoing rule in Browne v.

Dunn remains a sound principle of general application, though irrelevant to theissue before the trial judge in this case. [paras. 64-65] [Emphasis added.] [76] In McWilliams’ Canadian Criminal Evidence, 5th ed. (Toronto: Thomson Reuters, 2019) thescope of application of the rule in Browne v. Dunn is broadly delineated: A party who intends to challenge the credibility of a witness, whether by calling contradictory evidence or simply as part of closingsubmissions to the fact finder, should generally provide the witness with an opportunity to address or explain the point upon whichcredibility is attacked.

Simply put, the witness should be confronted in cross-examination with any material point on which his or hercredibility is to be challenged. A failure to do so may detract from the strength of the party’s case or entitle the party who called thewitness to a remedy. [p. 21-109] [Emphasis added.] This formulation accords with our understanding of the rule. [77] There is no doubt the rule in Browne v. Dunn applies to cases where the cross-examining partyintends to call contradictory evidence. But, in our respectful view, its ambit extends beyond that situation.

The rule’s rationale isavoidance of unfairness to the witness, to the adverse party and, some argue, to the trier of fact. It is engaged in any situation where thecross-examining party intends to ask the trier of fact to disbelieve witnesses on a point upon which they have not been challenged and inrespect of which the party who called them could not reasonably predict might be relied upon to impeach their credibility (see Gillis v. R.,2014 NBCA 58, 426 N.B.R. (2d) 1, at paras. 92-96, leave to appeal denied [2014] S.C.C.A. No. 496 (QL); Crowley v. R., 2015 NBCA61, 441 N.B.R. (2d) 146; Mockler v.

New Brunswick et al., 2019 NBCA 50, [2019] N.B.J. No. 170 (QL), at para. 76; and R. v. Hart(1932), 23 Cr. App. R. 202 (C.A.), at p. 207). As explained in Lyttle, the trial judge has a broad discretion in assessing fairness anddetermining whether the rule is engaged and, if so, the appropriate remedy for any infringement. [78] The Attorney General’s alternative objection to the application of the rule in Browne v. Dunn isthat the rule is not engaged where, as here, the examining party (on direct) knows the adverse party contests the witness’ credibility and

the examining party is or ought to be aware of the grounds upon which that contest might be substantiated. The Attorney General points out that, in Browne v. Dunn , the Lord Chancellor was careful to exclude the need for confrontation in situations where it is “otherwise perfectly clear that [the witness] has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling.

Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached is so manifest, that it is not necessary to waste time in putting a question to him upon it” (para. 2). See, as well, Gillis ; Crowley ; Mockler ; and R. v. I.I ., 2013 ABCA 2 , [2013] A.J. No. 2 (QL) , at para. 10 . We accept this submission. [ 79 ] The rule in Browne v. Dunn was not in play with respect to the three topics identified in the Appellant’s Submission: Ms.

Shephard’s DNA in the back porch area, the failure to provide verifiable particulars in her explanation for being with “customers” when parts of the assault on Baylee Wylie occurred and her claimed ignorance of the warrant for her arrest. Ms. Shephard knew or ought to have known the prosecution would raise these issues to impeach her credibility and it was incumbent upon her to deal with them fulsomely in her direct examination. D. Equating Mr.

Morningstar’s formal statements with sworn or solemnly affirmed testimony in court for purposes of probative value and reliability and attributing corroborative value to the statements made by Mr. Morningstar in his jail cell conversation with the undercover police officer [ 80 ] In his final instructions, the judge advised the jury they were “allowed to refer to Devin Morningstar’s words and declarations as they appeared in the two formal interviews in the same way and with the same reasons and objective as if you had heard these words directly from him had he taken the stand at trial ” (emphasis added).

In the mid-trial instructions, the judge told the jury they were allowed to refer to these formal interviews “to look for answers as to what happened on December the 16th or the 17th, 2015 the same as you’d be looking at all the witnesses that you heard so far that came to give evidence about what happened ” (emphasis added).

In their supplementary written submissions and at the August 14, 2019 hearing, the parties addressed the following questions: Do these instructions amount to misdirection in equating the probative value and reliability of the two out-of-court formal statements with the probative value and reliability of sworn or solemnly affirmed testimony at trial?

If yes, is the misdirection harmless having regard to other parts of the charge? [ 81 ] Neither the Court nor the two counsel on appeal have been able to locate any authoritative acceptance of this equivalence, whether in standard model instructions or in the jurisprudence. As noted in the Memo to Counsel, unlike the other Crown witnesses and Ms. Shephard, Mr. Morningstar did not swear the witness’ oath or make a solemn affirmation and he did not testify before the jury, with all eyes on him in the formal forum provided by a public trial.

Moreover, while the jury saw the warned and KGB statements on a screen, they did not have the benefit of Mr. Morningstar’s testimony directly in front of them, and as a result, they did not see him tested on cross-examination. Nor did they have an opportunity to put questions to him through the trial judge. In addition, the warned statement was not made under oath and some of Mr.

Morningstar’s answers were provided in response to leading questions, which would not have been allowed in a trial setting. [ 82 ] These important differences between the two scenarios (out-of-court statements and in-person testimony before the jury) demonstrate they are not the same at all. The probative value and reliability of in-court testimony are indisputably greater. The judge’s instruction amounts to misdirection, and its significance is undeniable since it concerns the very foundation for the Crown’s case, namely the reliability of Mr. Morningstar’s out-of-court incrimination of Ms. Shephard.

That said, if this were the judge’s sole error, we would not be inclined to reverse, given other parts of the final charge that highlight some of the differences between the circumstances attendant upon the presentation of Mr. Morningstar’s formal statements and testimony before the jury. In this regard, recall the judge’s description as “most important” of the fact that Mr. Morningstar’s statements had not been tested by cross-examination. We now turn to the instruction regarding the permissible use of the in-jail recording of the conversation between Mr.

Morningstar and an undercover police officer. [ 83 ] In his mid-trial instructions, the judge advised the jurors they could use the “recording when he [Mr. Morningstar] was with the undercover agent to assist you in deciding […] what if anything you will believe in these two formal interviews”.

In his final instructions, the judge told the jury they could resort to the jail cell recording “as a means of assistance to help you determine what, if any, weight, credibility or reliance you find are worth being given to Devin Morningstar’s words as they appear in the two formal statements”. [ 84 ] Weight, credibility and reliance relate to probative value. Although the instructions on the permissible use of the undercover officer/Mr. Morningstar exchange do not explicitly mention corroboration, they effectively clothe the exchange with potential corroborative value.

That is the effect of telling the jury the exchange could be used for the purposes identified by the trial judge.

[85] The jail cell recording could not be used for those essentially corroborative purposes because ithad not been admitted in evidence for the truth of its contents; its sole permissible use pursuant to the judge’s admissibility ruling was asa means by which the defence could contradict the formal statements with a view to undermining their reliability.

It should go withoutsaying there is a fundamental difference between: (1) telling the jury, as was expected given the ruling on admissibility, that they shoulddetermine whether information in the undercover officer/Morningstar recording contradicted the formal statements and, if so, whetherthose contradictions were significant enough to deny probative value to the formal statements; and (2) telling the jury, as the trial judgedid, that the recording could be used “in deciding what, if anything, they believed in the formal interviews” and to help them decide“what, if any, weight, credibility or reliance” should be given to “Devin Morningstar’s words as they appear in the two formalstatements”.

These instructions are wrong in law and relate to the crux of the Crown’s case. [86] The Attorney General argues these errors are inconsequential, given other parts of the finalcharge. That may or may not be the case (see R. v. LeBlanc, 2018 NBCA 65, [2018] N.B.J. No. 237 (QL), at paras. 50-53 and LeBlanc v.R., 2019 NBCA 65, [2019] N.B.J. No. 238 (QL), at paras. 75-78). Our conclusion of trial unfairness arising from Crown counsel’simproper submission to the jury obviates the need to decide this thorny question. E. Trial fairness [87] In our universally acclaimed system of justice, we try cases, not people.

Rich or poor, good orbad, every accused is entitled to a fair trial. Before a jury, the presiding judge, Crown counsel and defence counsel each have a criticalrole to play in ensuring process fairness. [88] In all cases, Crown counsel is duty bound to be accurate, fair and dispassionate not only inaddressing the jury but, as well and more generally, in conducting the prosecution: Boucher v. The Queen, (SCC), [1955]S.C.R. 16, [1954] S.C.J. No. 54 (QL) and Pisani v. R., (SCC), [1971] S.C.R. 738, [1970] S.C.J. No. 99 (QL).

In R. v.Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239, the Supreme Court quoted with approval the following “warning” by Justice Rand inBoucher: It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what theCrown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proofof the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly.

The role ofprosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be nonecharged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness andthe justness of judicial proceedings. The Court added: Crown counsel are expected to present, fully and diligently, all the material facts that have evidentiary value, as well as all the properinferences that may reasonably be drawn from those facts.

However, it is not the Crown’s function “to persuade a jury to convict otherthan by reason”: R. v. Proctor (1992), (MB CA), 11 C.R. (4th) 200 (Man. C.A.), at para. 59.

Rhetorical techniquesthat distort the fact-finding process, and misleading and highly prejudicial statements, have no place in a criminal prosecution. [para. 79] [89] Crown counsel’s duty to be fair in conducting the prosecution obliges them to carefully andthoroughly review the evidence gathered and proffered by the police for prosecution purposes and to refrain from putting before the trierof fact evidence they know or ought to know entails prejudicial impact on the decision-making process that is out of proportion with itsprobative value. Moreover, in the address to the jury, Crown counsel must eschew

interpretations of the evidence that are inaccurate orunfair. If competently discharged, those obligations in no way impede compliance by Crown counsel with their well-established duty tobe forceful in prosecuting cases: G.S. v. R., 2009 NBCA 82, 351 N.B.R. (2d) 279 (para. 75). [90] The framework for dealing with improper comments by Crown counsel is accurately describedin R. v. A.T., 2015 ONCA 65, [2015] O.J. No. 455 (QL): When improper comments by Crown counsel are sufficiently prejudicial, a trial judge has a duty to intervene, and a failure to do so willconstitute an error of law: R. v.

Romeo, (SCC), [1991] 1 S.C.R. 86, at p. 95; R. v. Michaud, (SCC),[1996] 2 S.C.R. 458, at para. 2. The Supreme Court affirmed in Rose, at para. 127, that “where the trial judge fails to redress properly the

harm caused by a clearly inflammatory, unfair or significantly inaccurate jury address, a new trial could well be ordered” […]. A failure by defence counsel to object to improper remarks by Crown counsel is not a bar to a successful appeal: R. v. Ferguson (2000), (ON CA), 142 C.C.C. (3d) 353 (Ont. C.A.) at paras. 38, 92, reversed on other grounds, 2001 SCC 6, [2001] 1 S.C.R.281; R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 61; R. v. Chambers, (SCC), [1990] 2 S.C.R. 1293, atpp. 1308-1309.

As Doherty J.A. explained, “[a] legal error remains a legal error even if counsel does not object or even supports theerroneous instruction”: R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, at para. 97, leave to appeal refused [2010] S.C.C.A. No.263. It does not automatically follow, however, that a new trial will be ordered when the Crown makes improper comments during a closingaddress, even where the remarks are not corrected. The question is whether, in the context of the entire trial, the remarks and the trialjudge’s response or failure to respond caused a substantial wrong or miscarriage of justice: R. v.

Romeo, (SCC), [1991]1 S.C.R. 86, at p. 95. [paras. 29-31] [91] As for defence counsel, they are duty bound to provide effective representation. Wheneverdefence counsel fails in this regard, trial fairness suffers and s. 7 of the Charter is brought into the frame (see R. v. G.D.B., 2000 SCC22, [2000] 1 S.C.R. 520, per Major J.).

Section 7 grants everyone “the right to life, liberty and security of the person and the right not tobe deprived thereof except in accordance with the principles of fundamental justice”. Effective representation requires defence counsel tobe vigilant and forceful in the overall representation of their clients. In particular, they must forcefully oppose prosecutorial misconductand pursue remedies appropriate to the effective protection of the accused’s right to a fair trial. Needless to say, effective representationexcludes conduct that jeopardizes the fairness of the trial for the accused.

Asking questions on direct examination of the accused that aredesigned to elicit answers the judge has ruled too prejudicial to be heard by the jury falls in the category of prohibited conduct. [92] However, getting it right is the trial judge’s burden. He or she must take all appropriate steps topromote trial fairness. Notably, it is incumbent upon trial judges to do their utmost: (1) to prevent unacceptably prejudicial evidence withlittle, if any, probative value from reaching the jury; (2) to understand the parties’ submissions to the jury; and (3) to appropriately dealwith improper submissions.

In most cases, a timely and sharply worded rebuke accompanied by a correcting instruction to the jury willsuffice. A mistrial is a solution of last resort. [93] In the case at hand, the trial judge committed errors of law in connection with the presentationof Mr. Morningstar’s formal statements to the jury. First, he allowed the recordings of the statements to be heard by the jury withoutdeleting inadmissible and highly prejudicial observations by Mr. Morningstar, which included or pertained to the following: (1) the daybefore the murder, Ms.

Shephard’s use of a broomstick to intimidate and violently strike Bailey Fillmore across the face because she wassuspected of trying to steal her phone (“broomstick incident”); (2) speculation that Ms. Shephard’s call to her mother to take her son awayfrom 96 Sumac was made because she and Mr. Noel had previously settled on a secret plan to assault Baylee Wylie, and set the premiseson fire; (3) his opinion that Ms.

Shephard liked “bad boys” and that “she’s always dating people like that”; (4) the related observationthat “all her ex-boyfriends are in jail right now”; (5) the suggestion her father was a member of the Hell’s Angels; and (6) his opinion thatMs. Shephard would probably lie about her involvement. While defence counsel did not object to the jury viewing the CDs laced withthose highly prejudicial observations, there is simply no way his silence can be tagged with the label “strategic” or “tactical”.

It is simplyunacceptable. [94] Second, the judge erred in law in providing the jury with transcripts of the formal statementsthat, despite some redactions, continued to feature inadmissible and prejudicial observations, including a description of the broomstickincident and most of the other prejudicial observations listed above. Inexplicably, defence counsel did not object. Once again, his silencecannot be rationalized on strategic or tactical grounds.

Finally, the judge erred in law in allowing the jurors to take to their deliberatingroom CDs of the statements that included all of the inadmissible and prejudicial observations, including the ones redacted from thetranscripts. [95] Immediately after the judge ruled the formal statements met the Bradshaw standard foradmissibility, defence counsel had requested they be pruned of all otherwise inadmissible observations. The judge readily agreed editingwas necessary but decided to defer the process to a later date.

Unfortunately, and inexplicably, defence counsel failed to renew hisrequest for an appropriate vetting and editing of the formal statements and Crown counsel, contrary to her fairness obligations, forgedahead with the playing of the unedited CDs before the jury. It was only after most of the recordings had been played that the lack ofvetting and editing was raised as a problem. [96] Both defence counsel and the trial judge appear to have realized the gravity of the situation and,quite possibly, their respective mistakes in its genesis.

Defence counsel reminded the judge of his previous request to vet and edit theformal statements. The judge responded by pointing out defence counsel had not pursued the request before the unedited recorded

contents were shared with the jury. [ 97 ] The option of a mistrial did not find favour, assuming it was considered. Instead, the trial judge tried to repair the damage with instructions to the jury to forget the prejudicial evidence they had heard. In giving those instructions, the judge identified and underscored for the jury not only the observations in the formal statements that were inadmissible because they were no more than speculation, opinion or guesswork, but also those that were inadmissible because of their intolerably high prejudicial impact on the jury’s decision-making.

The judge explained the broomstick incident fell into the latter category. The jury was told it was too complicated to remove the objectionable observations from the CDs and that transcripts of the formal statements, with appropriate redactions, would be provided to them. The judge instructed the jury to forget the redacted parts and that, if the CDs were viewed in the course of their deliberations, they should follow along with the transcripts and skip over the CD parts corresponding to the blackened sections.

Try as we might, we are unable to imagine how this process could unfold without the prejudicial observations being front and centre in the jury’s consideration of the case. [ 98 ] As noted, the jury was told they could view the CDs with the aid of the unredacted parts of the transcripts. However, those unredacted parts actually featured the following highly prejudicial and inadmissible observations: (1) a description of the broomstick incident; while all references to this incident were removed from the warned statement, that is not the case for the transcript of the KGB statement;

(2) Ms. Shephard would probably lie about her involvement;

(3) Ms. Shephard liked “bad boys”, “she’s always dating people like that” and “all her ex-boyfriends are in jail right now”; and (4) speculation about some nefarious reason for her son’s removal from 96 Sumac.

As indicated, the trial judge erred in law in providing the jury with redacted transcripts that continued to feature these inadmissible and highly prejudicial observations. [ 99 ] In our judgment, the Attorney General has failed to demonstrate these errors by the trial judge are inconsequential by reason of his direction to the jury to disregard the parts of the CDs that were redacted in the transcripts. [ 100 ] Additional highly prejudicial evidence was heard by the jury when a Crown witness testified regarding statements she claimed to have overheard Ms.

Shephard make in the spring of 2017 while they were both in jail. Defence counsel had been provided a will-say statement; its tenor is unknown. Crown counsel did not request a voir dire to determine the admissibility of this witness’ testimony and defence counsel did not object. The trial judge had no forewarning of the testimony’s prejudicial nature.

In our view, given the manifestly prejudicial nature of some features of this testimony, Crown counsel fell short of her fairness obligations by failing to seek a voir dire into the admissibility of this witness’ testimony. [ 101 ] The witness in question informed the jury that, in April or May 2017, while watching television with some friends, she heard Ms. Shephard tell other inmates: “I should have cut his cock and shoved it up his ass”. Obviously, this statement was irrelevant to the issue at hand and highly prejudicial given its description of a violent mindset.

Inexplicably, defence counsel did not object to its admissibility; he only objected when Crown counsel asked Ms. Shephard’s former fellow inmate to explain why the statement disgusted her to the point of prompting a violent response on her part. The jury was excluded from the hearing while the objection was debated. [ 102 ] After hearing the parties, the judge overruled the defence objection and recalled the jury. The witness returned to the stand and testified briefly before the trial judge intervened and excluded the jury once again.

He challenged counsel for both sides regarding the admissibility of the witness’ entire testimony because: the overheard statement had not been properly contextualized, it was irrelevant to the issue of Ms. Shephard’s participation in the offences charged and was highly prejudicial character evidence lacking in probative value. After hearing counsel, the judge struck out the entire testimony. Once again, the trial judge was thrust into the position of having to instruct the jury to disregard highly prejudicial prosecution evidence. [ 103 ] As mentioned, Ms. Shephard testified.

The conduct of her direct examination was entrusted to a colleague of lead counsel for the defence. We must assume she was not made aware of the trial judge’s ruling that references to the broomstick incident were inadmissible, in part, because of their prejudicial impact on trial fairness. As astonishing as it may seem, in the course of the direct examination, counsel posed questions that required Ms. Shephard to provide evidence regarding the broomstick incident. The trial judge should have brought to a halt counsel’s disregard of his ruling and her prejudicial examination of Ms. Shephard.

We are left to wonder what the jury understood it was entitled to do with the broomstick incident after these unchallenged questions and answers. The trial judge erred in law in failing to intervene. [ 104 ] Throughout her day-long direct examination, Ms. Shephard used informal English to deliver her testimony. At one point, she testified Mr. Noel approached her at Mr. Morningstar’s residence to advise he was thinking of killing Mr. Morningstar and Bailey Fillmore. Ms. Shephard testified she “ didn’t want anyone else to die ”, so she tried to convince Mr. Noel to abandon his plan.

[…]