2016 NBCA 58, 2016 NBCA 58

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 2-16-CA DENNIS JAMES OLAND APPELLANT DENNIS JAMES OLAND APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Oland v. R., 2016 NBCA 58 Oland c.

R., 2016 NBCA 58 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Larlee The Honourable Justice Quigg CORAM : l’honorable juge en chef Drapeau l’honorable juge Larlee l’honorable juge Quigg Appeal from conviction in the Court of Queen’s Bench: December 19, 2015 Appel d’une déclaration de culpabilité prononcée par la Cour du Banc de la Reine : le 19 décembre 2015 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : inédite

Preliminary or incidental proceedings: Supreme Court of Canada: [2016] S.C.C.A. No. 188 Court of Appeal: (NB CA), [2016] N.B.J. No. 25 2016 NBCA 15 Court of Queen’s Bench: [2013] N.B.J. No. 457 2015 NBQB 242 2015 NBQB 243 2015 NBQB 244 2015 NBQB 245 2015 NBQB 246 2015 NBQB 247 2015 NBQB 248 2015 NBQB 257 2016 NBQB 43 Provincial Court: [2014] N.B.J.

No. 360 Procédures préliminaires ou accessoires : Cour suprême du Canada : [2016] C.S.C.R. no 188 Cour d’appel : (NB CA), [2016] A.N.-B. no 25 2016 NBCA 15 Cour du Banc de la Reine : [2013] A.N.-B. no 457 2015 NBBR 242 2015 NBBR 243 2015 NBQB 244 , 2015 NBBR 244 2015 NBBR 245 2015 NBQB 246 , 2015 NBBR 246 2015 NBQB 247 , 2015 NBBR 247 2015 NBQB 248 , 2015 NBBR 248 2015 NBQB 257 , 2015 NBBR 257 2016 NBQB 43 , 2016 NBBR 43 Cour provinciale : [2014] A.N.-B. no 360 Appeal heard: October 18, 19 and 20, 2016 Appel entendu : les 18, 19 et 20 octobre 2016 Judgment rendered: October 24, 2016 Jugement rendu : le 24 octobre 2016 Reasons delivered: January 12, 2017 Motifs déposés : le 12 janvier 2017 Reasons for judgment by: The Honourable Chief Justice Drapeau Motifs de jugement : l’honorable juge en chef Drapeau Concurred in by: The Honourable Justice Larlee The Honourable Justice Quigg Souscrivent aux motifs : l’honorable juge Larlee l’honorable juge Quigg

Counsel at hearing: For the appellant: Gary A. Miller, Q.C., Alan D. Gold and James R. McConnell For the respondent: Kathryn A. Gregory and Derek Weaver Avocats à l’audience : Pour l’appelant : Gary A. Miller, c.r., Allan D. Gold et James R. McConnell Pour l’intimée : Kathryn A. Gregory et Derek Weaver THE COURT On October 24, 2016, the Court determined the appellant failed to make the case for a finding of verdict unreasonableness and there was, therefore, no basis for his acquittal pursuant to s. 686(1) (a)(

i) of the Criminal Code on the charge of second degree murder of his father . However, the Court ruled the conviction must be quashed and a new trial ordered on the grounds of misdirection in the judge’s instructions with respect to post-offence conduct evidence, specifically the appellant’s inaccurate statement to the police regarding the jacket he took to his father’s office on the day of the murder. The Court’s reasons for judgment are fleshed out in the text that follows.

LA COUR Le 24 octobre 2016, la Cour a jugé que l’appelant n’avait pas réussi à prouver que le verdict était déraisonnable et il n’y avait, par conséquent, aucun fondement justifiant son acquittement sous le régime du ss-al. 686(1) a)(

i) du Code criminel relativement à l’accusation de meurtre au deuxième degré de son père . Toutefois, notre Cour a conclu qu’elle devait annuler la déclaration de culpabilité et ordonner la tenue d’un nouveau procès en raison de directives erronées données au jury par le juge du procès en ce qui concerne la preuve relative au comportement postérieur à l’infraction, plus précisément la déclaration inexacte de l’appelant à la police au sujet du veston qu’il portait lorsqu’il s’est rendu au bureau de son père le jour du meurtre. Les motifs de jugement de la Cour sont exposés dans le détail dans le texte qui suit.

The reasons for the Court’s judgment were delivered by DRAPEAU, C.J.N.B. I. Introduction [ 1 ] On October 24, 2016, the Court rejected the appellant’s plea for an acquittal pursuant to s. 686(1) (a)(

i) of the Criminal Code , but granted his request for a new trial. At that time, the Court provided a

summary of its reasons for decision. That

summary bears repeating, if only for introductory purposes. [ 2 ] The appellant contests his conviction for the second degree murder of his father, a disposition entered following a lengthy trial at which the appellant testified and the jury returned a verdict of guilty as charged. The victim, who was 69 years of age, was bludgeoned to death in his uptown Saint John office in the early evening of July 6, 2011. [ 3 ] The only issue at trial was the identity of the killer. The jurors unanimously concluded it was the appellant.

They did so after benefiting from a comprehensive review of the evidence by the judge and error-free instructions on the presumption of innocence, the requirement of proof beyond a reasonable doubt, their role as the judges of the facts and the difference between impermissible speculation and permissible inference. As well, their verdict followed: (1) addresses by counsel for both sides that left no stone unturned in setting out their respective take on the evidence or lack thereof, and their conflicting theories of the case; and (2) deliberations lasting some 30 hours.

[ 4 ] The appellant contends the jury’s verdict is “unreasonable” within the meaning of s. 686(1)(a) (

i) and argues this Court should set it aside on that basis, and acquit him of the charge. We respectfully disagree. Our reasons, in abridged form, are as follows. [ 5 ] Admittedly, the jury’s verdict is based on circumstantial evidence. There is, to use the vernacular, no “smoking gun”. As with most, if not all, convictions without direct proof of guilt, there are gaps in the evidential puzzle. Those gaps were forcefully emphasized by defence counsel in their address to the jury and highlighted by the judge in his charge.

The jury was keenly aware of those gaps when it engaged in its review of the evidence and deliberated with respect to whether the appellant’s guilt was established beyond any reasonable doubt. This process was not rushed; as mentioned, the jury was out for 30 hours. In our respectful view, once it assembled the pieces of the evidential puzzle provided by the admissions, the evidence, and the inferences that it could properly draw from that evidence, the jury could reasonably conclude a sufficiently revealing portion of the portrait of one killer emerged: that of the appellant.

This conclusion is not at odds with our judicial experience. [ 6 ] The appellant’s fallback submission is that a new trial should be ordered on the basis of erroneous evidential rulings, specifically in respect of the “call detail records”, the evidence derived from forensic testing of the freshly dry-cleaned brown Hugo Boss jacket seized from his residence and “communications” with his wife.

In our view, the trial judge’s rulings were correct, and there is, therefore, no merit to the grounds of appeal on point. [ 7 ] Finally, the appellant contends a new trial is necessary because of critical misdirection in the charge to the jury, notably in connection with a post-offence statement the appellant made to the police in respect of the jacket he was wearing while at his father’s office in the early evening of July 6, 2011. The accused told the police he was wearing a navy blazer, but video evidence showed conclusively and the appellant admitted at trial he was wearing the brown Hugo Boss jacket.

Forensic testing subsequently confirmed the presence of the victim’s blood and DNA on that jacket. It was the Crown’s contention at trial that this admittedly erroneous statement was a lie designed to divert suspicion away from the appellant, and as such was circumstantial evidence the jury could take into account in finding the appellant was the killer, beyond any reasonable doubt. [ 8 ] The trial judge told the jurors the issue was whether the appellant’s inaccurate description of the jacket was an honest mistake or an “intentional lie” that was related to the commission of the offence charged.

If it was the latter, the jurors were instructed they were entitled to consider the lie, together with the other evidence in the case, in reaching a verdict of guilty. The trial judge made those observations after advising the jurors that an “intentionally false statement […] will, in some circumstances, be evidence from which it can be inferred that the [author] is attempting to mislead the police and deflect suspicion away […] because [he or she] actually committed the offence”.

Significantly, the trial judge did not explain to the jurors that, even if they found the appellant’s erroneous statement was a lie, it had no probative value unless they concluded, on the basis of other evidence independent of that finding, that the lie was fabricated or concocted to conceal his involvement in the murder of his father. [ 9 ] Conduct by the accused in the aftermath of an offence may assist in establishing guilt.

However, because the significance of certain types of post-offence conduct, such as the articulation of false alibis or lies, can be easily exaggerated and their occurrence misapplied, particularly by non-jurists, the law has developed rules that seek to safeguard against the risk of any prejudicial impact on trial fairness.

Those rules may be summarized as follows: (1) a false alibi or a lie, without more, is not evidence that can assist the prosecution in establishing guilt; (2) a false alibi or a lie may constitute incriminating evidence if and only if, in addition to being an intentional falsehood, it was fabricated or concocted by the accused for the purpose of concealing his or her involvement or participation in the offence charged.

A fabricated or concocted lie is one that is made up after giving it some thought; as such, it is distinguishable from a spontaneous unreflected or unconsidered lie; (3) in this context, a finding of fabrication or concoction cannot be made simply because the accused lied; there must be other evidence, independent of that finding upon which the trier of fact can find fabrication or concoction; and (4) instructions reflecting the foregoing are essential and they must be accompanied by a reference to the independent evidence from which the jury might reasonably infer fabrication or concoction. [ 10 ] Regrettably, the trial judge did not apply this framework and, in the result, his instructions on a key piece of the evidential puzzle are fundamentally flawed.

The jurors might well have found the appellant lied about the jacket he was wearing and, in the closing moments of their deliberations, distilled from that bare finding the clinching element for their verdict. [ 11 ] In our view, the respondent has not made the case for the application of s. 686(1)(b)(iii), the curative proviso, and we are therefore compelled to quash the conviction and order a new trial. [ 12 ] We would expect that any new trial would be considerably shorter than the first one, given the work done as well as the experience and knowledge acquired by the police, counsel and the judiciary, and bearing in mind this Court’s unqualified endorsement of the trial judge’s evidential rulings that were contested on appeal.

[ 13 ] We indicated at the time of the delivery of the foregoing

summary that more detailed reasons would be filed, in both official languages, at the first reasonable opportunity. Here are those reasons. II. The Issues A. Verdict unreasonableness [ 14 ] The challenge to the verdict on grounds of unreasonableness, if substantiated, would entail an outright acquittal and, thus, preclude a new trial. In other words, all proceedings against the appellant on the charge of murder would be at an end. It logically follows that this issue must be addressed, despite the Court’s order for a new trial. [ 15 ] Section 686(1)(a)(

i) states: 686

(1) On the hearing of an appeal against a conviction [...] the court of appeal (

a) may allow the appeal where it is of the opinion that (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence [.] 686

(1) Lors de l’audition d’un appel d’une déclaration de culpabilité […] la cour d’appel :

a) peut admettre l’appel, si elle est d’avis, selon le cas : (

i) que le verdict devrait être rejeté pour le motif qu’il est déraisonnable ou ne peut pas s’appuyer sur la preuve [.]

(1) The appellant’s position [ 16 ] The appellant emphasizes the case at hand does not feature “direct evidence or a situation where acceptance of a particular witness’s evidence could reasonably produce a conviction”. Rather, the case is “a mystery based upon many different kinds of circumstantial evidence”, one that the sentencing judge described as “factually complicated and convoluted”.

The appellant also underscores this is not a circumstantial evidence case buttressed by a failure to testify; he testified and categorically denied guilt. [ 17 ] The appellant argues the evidential record, viewed through the lens of judicial experience , leads inexorably to the conclusion that the jury verdict is unreasonable, and therefore unsustainable. [ 18 ] The appellant’s arguments against conviction are marshalled in his written submission at paragraphs 186-193.

(2) The respondent’s position [ 19 ] While acknowledging s. 686(1)(a)(

i) ordains a full review of the evidential record, the respondent underscores that, at the end of the required evidential re-examination and re-weighing, it is the probative effect of the totality of the evidence that is determinative. In this regard, t he respondent argues the appellant’s take on the application of s. 686(1)(a)(

i) invites the Court to engage in an inappropriate analytical methodology: critiquing the probative value of individual pieces of evidence in isolation from the context, rather than focusing on the probative value of the evidence as a whole. As the Supreme Court emphasized in R. v. W. H. , 2013 SCC 22 , [2013] 2 S.C.R. 180, an appellate court must not attempt “on the basis only of the written record […] to fashion an explanation for the jury’s decision” (para. 40). Just as importantly, the court must not substitute its opinion for that of the jury simply because different conclusions are reached following the requisite re-examination and re-weighing of the evidence.

[20] In exercising the jurisdiction conferred by s. 686(1)(a)(

i) in relation to jury verdicts, thefollowing must always be borne in mind: (1) the jurors saw and heard the witnesses, an advantage not afforded to the reviewing court; (2)the jury’s reasons for accepting or rejecting evidence “may well be tied directly to factors flowing from that advantage”; (3) “it is oftendifficult if not impossible to articulate with precision the various factors that influence an ultimate judgment about a witness’scredibility”; and (4) “the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult toverbalize” (see R. v. W.H. at paras. 39-40).

I note parenthetically these observations are particularly relevant to the disposition of theappellant’s suggestion that the jury acted unreasonably in rejecting the alibi provided by Anthony Shaw’s time estimate for the noisesassociated with the murderous assault. [21] Moreover, the respondent readily accepts s. 686(1)(a)(

i) requires the reviewing court to gobeyond simply satisfying itself there is evidence to support the verdict, and that it must also determine whether the jury’s conclusion“[conflicts] with the bulk of judicial experience”: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 40. The respondent submits,however, that the application of “judicial experience” to the review exercise does not empower the court to reassess the testimony of theaccused on the basis that his or her denial of culpability is plausible and nothing in the written record would appear to be disharmoniouswith that denial (see R. v.

W.H., at para. 47). Going from the general to the specific, the respondent points out the obvious: the innocentspin the appellant puts on the seemingly incriminating pieces of the evidential puzzle, whether individually or collectively, occupiedcenter stage in the court below, and the jury rejected it. [22] The respondent’s case against a finding of verdict unreasonableness is detailed in its writtensubmission, at paragraphs 301-347. B.

Allegations of legal error [23] It is the appellant’s alternative submission that a new trial should be ordered because the trialjudge committed reversible errors of law in admitting into the record key items of evidence: (1) “call detail records” relating, inparticular, to the cell tower the victim’s iPhone 4 used at 6:44 p.m. on July 6, 2011. The appellant argues the data in those records wereinadmissible hearsay whose prejudicial effect outweighed any probative value; (2) the results from forensic testing of the brown HugoBoss jacket.

The appellant submits the testing was not permitted under the search warrant authorizing the seizure of the jacket and, as aresult, his Charter right against unreasonable search or seizure was violated. It would follow, so goes the argument, that all testing-derived evidence should have been excluded pursuant to s. 24(2) of the Charter; and (3) communications with his wife.

The appellantsubmits those communications were covered by “spousal privilege” and, therefore, inadmissible. [24] The appellant also contends a new trial is warranted on the basis of reversible errors of law thetrial judge made in instructing the jury.

Those errors would have occurred when the judge: (1) wrongly suggested to the jury that thevictim’s cell phone inactivity was “inconsistent” with the evidence of Anthony Shaw on the issue of the time of death, which evidence, ifaccepted, would have excluded the appellant as the murderer; (2) failed to caution the jury that some of Crown counsel’s closingarguments were speculative and, in any event, bereft of merit given his failure to put the underpinning allegations to the appellant duringcross-examination. It is argued this failure breached the rule in Browne v.

Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.); (3)left with the jury as potential post-offence conduct evidence the appellant’s false statement he was wearing a navy blazer at his father’soffice the day of the murder and the fact that the jacket he was actually wearing, the brown Hugo Boss jacket, was dry-cleaned after theappellant was told by the police of the impending search of his home; and (4) misdirected the jurors regarding the findings they had tomake before that post-offence conduct could be used as inculpatory evidence.

Although a few of these grounds are moot, none wasabandoned, and all were pressed at the hearing. In my view, some observations are warranted in relation to all. II. Analysis and Decision A. Verdict unreasonableness [25] In R. v. Yebes, (SCC), [1987] 2 S.C.R. 168, [1987] S.C.J. No. 51 (QL), theCourt held an appeal could be allowed and an acquittal entered pursuant to s. 686(1)(a)(

i) if, and only if twelve properly instructed jurors,acting judicially, could not reasonably have come to the verdict at issue. In a subsequent decision, R. v. Biniaris, the Supreme Courtclarified that standard by declaring it required appellate courts: (1) “to review, analyse and, within the limits of appellate disadvantage,weigh the evidence” (para. 36); and (2) to carry out this process “through the lens of judicial experience which serves as an additionalprotection against an unwarranted conviction” (para. 40). While the latter requirement confirms the test for appellate intervention unders. 686(1)(a)(

i) is “different than the one a trial judge must apply on a directed verdict application” (see R. v. R. (J.S.), 2012 ONCA 568,[2012] O.J. No. 4063 (QL), at para. 69), it does not follow that the defence’s considered decision to abstain from requesting a directed

verdict of acquittal is meaningless. I will return to this topic in short order. [26] More recently, in R. v. W.H., the Supreme Court provides further helpful insights into thereview process envisaged by s. 686(1)(a)(i): On the other hand, however, the review cannot be limited to assessing the sufficiency of the evidence. A positive answer to the questionof whether there is some evidence which, if believed, supports the conviction does not exhaust the role of the reviewing court.

Rather,the court is required “to review, analyse and, within the limits of appellate disadvantage, weigh the evidence” (Biniaris, at para. 36) andconsider through the lens of judicial experience, whether “judicial fact-finding precludes the conclusion reached by the jury”: para. 39.Thus, in deciding whether the verdict is one which a properly instructed jury acting judicially could reasonably have rendered, thereviewing court must ask not only whether there is evidence in the record to support the verdict, but also whether the jury’s conclusionconflicts with the bulk of judicial experience: Biniaris, at para. 40. [para. 28] [27] My understanding of the governing standard is summarized in Penney, Rondinelli andStribopoulos, Criminal Procedure in Canada (Markham, Ont.: LexisNexis Canada Inc., 2011) at pp. 744-745.

The test to be applied by the appellate court under section 686(1)(a)(

i) of the Code has been established by the Supreme Court of Canadaas whether “the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.” The test is equallyapplicable to a judge sitting at trial without a jury. Where the verdict rests primarily on circumstantial evidence, Justice Doherty noted inR. v.

Mars that “the question becomes: could a trier-of-fact acting judicially be satisfied that the accused’s guilt was the only reasonableconclusion available on the totality of the evidence?” In considering whether a verdict is unreasonable, an appellate court is required toanalyze and to some extent, reweigh the evidence adduced at trial. The court will do so through the “lens of judicial experience”, whichserves as an additional safeguard against unsafe convictions. The burden on the appellant in establishing an unreasonable verdict hasbeen described as “high” and “difficult”.

Practically speaking, “at the end of the day this is a judgment call [by the court] and not aprecise science. A subjective element is invariably involved in the global assessment of the case.” [para. 18.6] [28] As might be expected in light of the Supreme Court’s pronouncements, the parties aresubstantially ad idem on the applicable standard. However, they

part company over its application to the case at hand. [29] It is trite law that, in exercising the jurisdiction conferred by s. 686(1)(a)(i), the court must resistthe temptation of engaging in a process by which it: (1) assesses probative value one item of evidence at a time; and (2) discards eachitem that, on its own, fails to contribute to the case for the prosecution. Indeed, while the court must consider each item of evidence, itmust ultimately make a decision based upon the cumulative probative effect of all of the evidence (see R. v. Robinson, 2003 BCCA 353,[2003] B.C.J. No. 1380 (QL), para. 40, R. v.

Smith, 2003 ABCA 308, [2003] A.J. No. 1320 (QL), para. 14 and R. v. Shaoulle, 2015SKCA 101, [2015] S.J. No. 492 (QL), Jackson and Ottenbreit JJ.A., for the majority, affirmed 2016 SCC 16, [2016] S.C.J. No. 16 (QL)). [30] It is equally axiomatic that the appellant bears the burden of establishing verdictunreasonableness for s. 686(1)(a)(

i) purposes. In my respectful view, the appellant has not discharged that burden. I come to thatconclusion without factoring into the equation the defence’s considered decision to abstain from making a motion for a directed verdictof acquittal. I do, however, have in mind the presumption that jurors will follow legal instructions, and that “they can be trusted toproperly weigh the evidence” and abstain from drawing “irrational and speculative conclusions from relevant evidence” (see R. v. White,2011 SCC 13, [2011] 1 S.C.R. 433, at para. 56).

I am likewise alive to the wisdom of the views expressed by Dickson C.J.C. in R. v.Corbett, (SCC), [1988] 1 S.C.R. 670, [1988] S.C.J.

No. 40 (QL), that “[t]he very strength of the jury is that the ultimateissue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process ahealthy measure of common sense” (p. 692) (emphasis added). [31] But for our order of a new trial, I would now set out in detail the evidence and the inferencesthe jury, taking a commonsensical view of the record as a whole, might reasonably have relied upon in reaching its verdict.

As therespondent rightly points out, intermediate appellate courts are generally expected to provide reasons for their substantive decisions, theobjective being a record that provides the aggrieved party the means to launch an informed challenge and, ultimately, allows meaningfulreview by the Supreme Court of Canada. [32] However, in the present case, the appellant, the only party adversely affected by our rejection ofhis plea for an acquittal pursuant to s. 686(1)(a)(i), submits the Court should refrain from providing a detailed exposition of the evidenceand inferences the jury could have reasonably relied upon in reaching its verdict.

His stated reasons are two-fold: (1) a detailedexposition might well work against ensuring the largest number of potential jurors remain open minded for the re-trial; and (2) he is“satisfied with the brief reasons for dismissing the ground of unreasonable verdict provided in the Court’s oral reasons […] on October24”.

[33] The appellant draws to our attention several decisions in support of the view that appellatecourts will generally eschew an extensive review of the evidence where a new trial has been ordered. R. v. Jolicouer, [1981] O.J. No. 13(C.A.) (QL), R. v. R.W., [1993] O.J. No. 855 (C.A.) (QL), R. v. Katwaru, (ON CA), [2001] O.J. No. 209 (C.A.)(QL), and R. v. McIntyre, 2012 ONCA 356, [2012] O.J. No. 2375 (QL), are cited as examples of this approach.

The appellant argues thesame approach should be taken where, as here, the rejection of a complaint of verdict unreasonableness is accompanied by an order for anew trial based upon legal error (see R. v. Barbon, [1986] B.C.J. No. 2904 (C.A.) (QL), at para. 13, per Hutcheon J.A., R. v. Faulkner,[1997] O.J. No. 4613 (C.A.) (QL), at para. 13, per Goudge J.A., R. v. Michelin, 2002 NFCA 30, [2002] N.J. No. 140 (QL), at para. 1,per Cameron J.A., R. v. F., 2006 NSCA 42, [2006] N.S.J. No. 138 (QL), at paras. 99-101, per Cromwell J.A. (as he then was) and César-Nelson v. R., 2014 QCCA 1129, [2014] Q.J.

No. 5324 (QL), at paras. 110-112, per Rochon J.A.). I endorse the appellant’ssubmission, and offer only the following general observations on the issue of verdict reasonableness. [34] The jurors were not required to check their common sense at the courtroom door. Thus, the trialjudge quite properly instructed them they were entitled to come to common sense conclusions based on the evidence they accepted. Hereminded the jurors they were not limited to a consideration of the evidence referenced by him or the lawyers, but that they could “findthe facts only on the basis of evidence”.

Most importantly, the judge warned the jurors against reasoning based on speculation. Hespecifically instructed them not to speculate, guess or make up theories without supporting evidence and carefully explained thedifference between speculation and inference. [35] As noted in my introductory remarks, the jury’s verdict is based on circumstantial evidence and,as is typically the case with most, if not all, convictions untethered to direct proof of guilt, there are gaps in the evidential puzzle (see, forexample, R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1001).

Those gaps were identified and emphasized by defence counsel in theiraddress to the jury. They were also highlighted by the judge in his charge. In its written submission, the respondent acknowledges thecase for verdict reasonableness brings into play a myriad of elements, which, viewed individually, may appear at first blush to be devoidof probative value.

However, the respondent goes on to make the point that, once those elements are contextualized and their cumulativeimpact is appreciated, there arises a sufficiently compelling case for consideration by the jury, and for a sustainable verdict of guilty ascharged. I agree. [36] Indeed, the jury could reasonably reject the appellant’s innocent “explanation” for items ofpotentially incriminating evidence, as well as the defence’s take on the evidence and its theory of the case.

Conversely, the jury couldreasonably conclude the prosecution’s theory regarding the identity of the murderer had been established beyond any reasonable doubt.As posited, once it assembled the pieces of the evidential puzzle provided by the admissions, the evidence, and the inferences that couldproperly be drawn from that evidence, the jury could reasonably conclude a sufficiently revealing portion of the portrait of one, and onlyone, killer emerged, that of the appellant.

This conclusion is not foreclosed by “judicial experience”. [37] I have come to that view without placing on the scales the fact that the appellant chose toabstain from making a motion for a directed verdict of acquittal. That said, in truly borderline cases, such a decision may be helpful, atthe very least, in determining whether the verdict “conflicts with the bulk of judicial experience” (see R. v. W.H., at para. 28).

After all,counsel for the defence occupies a ring-side seat during the presentation of the evidence to the jury and, for that reason, he or she has anunparalleled awareness of the manner in which oral testimony both favorable and adverse to the accused is delivered, the impact of thattestimony in real time and whether the interplays of individual pieces of the evidential puzzle are likely perceived as connections or merecoincidences.

In the present case, defence counsel are experienced criminal litigators and their considered decision to forego a motion fora directed verdict of acquittal provides a measure of comfort for the conclusion I have independently reached on the application of“judicial experience” for s. 686(1)(a)(

i) purposes. [38] At the end of the day, respect for and compliance with the settled standard for the exercise ofappellate power under s. 686(1)(a)(

i) leads inexorably to the conclusion that the jury’s guilty verdict is neither unreasonable norunsupported by the evidence. That being so, an acquittal by this Court would be wholly inappropriate. I now turn to the grounds ofappeal that are put forward as bases for a new trial. B. Complaints of legal error at trial

(1) Admissibility of evidence [39] With respect to the grounds of appeal that take issue with the admissibility and admission ofcertain items of evidence, specifically the “call detail records”, the evidence derived from forensic testing of the brown Hugo Boss jacketand “communications” between the appellant and his wife, I am in agreement with the trial judge’s rulings and the supporting reasons he

has provided (see R. v. Oland, 2015 NBQB 245, [2015] N.B.J. No. 325 (QL) (Ruling No. 4: September 2, 2015), R. v. Oland, 2015NBQB 243, [2015] N.B.J. No. 312 (QL) (Ruling No. 2: June 10, 2015), R. v. Oland, 2015 NBQB 247, 446 N.B.R. (2d) 317 (Ruling No.6: September 10, 2015)). Nothing further need be said on point.

(2) Misdirection on what evidence might be inconsistent with Anthony Shaw’s timeframe estimate for the murder-related noises [40] The victim’s office was located on the second floor of an office building at 52 Canterbury Streetin Saint John. On the evening of July 6, 2011, Anthony Shaw and John Ainsworth were working in the premises of Printing Plus on theground floor, when they heard noises coming from the victim’s office.

It seems a fair assumption that the noises (an initial thump or loudcrash followed by numerous thumps for 10 seconds or so) were related to the murderous assault underlying the charge of second degreemurder. [41] The appellant left the office building at 52 Canterbury Street at approximately 6:30 p.m. Mr.Shaw testified he heard the noises between 7:30 and 8:00 p.m. at which time the appellant was shopping with his wife in Rothesay, a 15to 20 minute drive away. However, Mr. Ainsworth was not willing to confine the noises to the period between 7:30 and 8:00 p.m.

Hetestified they could have occurred at any time between 6:00 and 8:00 p.m. In other words, the noises could have taken place while theappellant was at his father’s office. [42] The trial judge concluded the appellant was entitled to an acquittal if Mr. Shaw’s timeframe forthe noises was accepted or if it left the jury with a reasonable doubt. He therefore gave the jury an adapted R. v. W.(D.) instruction (see (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26 (QL)) for Mr. Shaw’s testimony, in addition to the standard R. v.

W.(D.) instruction in connection with the appellant’s own evidence. [43] Correlatively, the trial judge invited the jurors to consider the extent to which Mr. Shaw’sevidence with respect to the time of the murder-related noises was consistent with or inconsistent with other evidence.

He then gave as anexample of possibly inconsistent evidence that the victim “for some reason or reasons, was not responding to text messages and phonecalls on and between 6:44 p.m. and 7:19 p.m. that evening, which is approximately 45 minutes to an hour before the time Anthony Shawsaid he heard the noises coming from [the victim’s] office”. The appellant contends the victim’s lack of response could not, on any viewof the evidence, be inconsistent with Mr. Shaw’s time-of-death testimony.

I respectfully disagree. [44] The trial judge rightly concluded there was some evidence from which the jury could infer thevictim’s lack of response was inconsistent with Mr. Shaw’s time-of-death testimony.

The evidence and available inferences included thefollowing: (1) it was the victim’s first full day back at the office following an extended fishing trip; (2) he worked all day until theappellant arrived; (3) the victim and his mistress were in the process of planning a holiday trip the very next day; (4) the victim had toldhis secretary to leave the air conditioner on as he was going to be “there for a while” (5) the victim’s apparent computer inactivity afterthe appellant arrived at the office; (6) the testimony of Mr.

Shaw’s companion, John Ainsworth, that the murder-related noises couldhave taken place before Mr. Shaw’s timeframe estimate for their occurrence; and (7) the presence of the victim’s iPhone 4 severalkilometers away from his office well before Mr. Shaw’s timeframe estimate for the noises in question. [45] At any rate, the trial judge instructed the jurors that it was their view and understanding of theevidence that mattered, not his. He also instructed them that credibility and reliability were issues within their exclusive domain asjudges of the facts. Obviously, the jury did not find Mr.

Shaw’s timeframe for the noises to be reliable.

(3) Prosecutorial speculation and the rule in Browne v. Dunn [46] The appellant also complains the trial judge failed to direct the jury that three features of theprosecution’s closing argument were “mere” speculation or unfair by reason of a related failure to abide by the rule in Browne v.

Dunn.The three features were: (1) the suggestion that the appellant’s motive to kill could have been the victim’s negative reaction to a plea forfinancial assistance and/or a reference to his extramarital affair; (2) the suggestion of fabrication for the appellant’s claim (one neveradvanced before his testimony at trial) that his purpose for returning to the office a second time (acknowledged for the very first time inhis testimony) was to retrieve a logbook he had forgotten; and (3) lying about his purpose for attending at Renforth Wharf after leavinghis father’s office, instead of going directly home as requested by his ailing wife.

The appellant testified he stopped at Renforth Wharf inthe hopes of seeing his children who, he alleged, might be swimming nearby. This evidence was, no doubt, offered to counter thesuspicion the jury might entertain that the stop was designed to dispose of incriminating evidence.

[47] The appellant did not take issue with Crown counsel’s address to the jury on any of these points,except for a surmised conversation between the appellant and the victim on the subject of financial relief. Be that as it may, I am of theview there was some evidence for Crown counsel’s arguments, none of which offended common sense, and the trial judge rightlyconcluded they did not stray from the field of appropriate advocacy. If they had, I have no doubt he would have intervened. [48] As for the alleged breach or breaches of the rule in Browne v.

Dunn, the trial judge dealt withthe issue in the exercise of undoubted discretionary powers. In that regard, I make mine the views expressed by Watt J.A. on behalf ofthe Court in R. v. Quansah, 2015 ONCA 237, [2015] O.J. No. 1774 (QL): Whether the rule in Browne v. Dunn is offended by failure to cross-examine on a specific matter in a particular case cannot bedetermined in the abstract. Each case is different. The rule is flexible, not rigid. It is rooted in fairness. Reasonable people may differabout on which side of the line a failure to cross-examine on a particular point falls.

A trial judge should be accorded considerabledeference on a decision about its application. A trial judge has a reserved seat at trial. We have a printed record. [para. 101] [49] Before testifying, the appellant was fully cognizant of the theory of the Crown and he wasaware of the evidence and inferences Crown counsel would likely underscore in his address to the jury. Plainly stated, the appellantknew what matters he needed to deal with in his direct examination (see R. v. Gillis, 2014 NBCA 58, 426 N.B.R. (2d) 1, at paras. 108-110, leave to appeal denied [2014] S.C.C.A. No. 496 (QL)).

I am satisfied the trial judge properly exercised his discretion and discern noground for principled appellate interference on the basis of this complaint. [50] At the hearing, it was also argued Crown counsel at trial (who, it bears recording, did notrepresent the respondent on the appeal) breached his prosecutorial duty by expressing a personal opinion regarding the circumstancessurrounding the commission of the offence.

The breach would have occurred when Crown counsel advised the jury he would deal with“what we believe actually happened” when the appellant was left alone with his father. [51] Crown counsel must avoid expressing personal opinions regarding the evidence and, perforce,the guilt of the accused. The law on point is set out in R. v. Michaud (F.) (1995), (NB CA), 161 N.B.R. (2d) 215,[1995] N.B.J. No. 207 (C.A.) (QL), at paras. 37-46 and R. v. Hahn, (BC CA), [1995] B.C.J. No. 1472 (C.A.) (QL), atpara. 26.

However, given the overall context, I am satisfied the jury would have understood from the expression “we believe” thatCrown counsel was simply making a submission. While the expression in question may have been infelicitous, it bears no resemblanceto the reprehensible conduct of Crown counsel in the cases cited by the appellant, R. v. Michaud and R. v. Romeo, (SCC), [1991] 1 S.C.R. 86, [1991] S.C.J. No. 6 (QL). In my view, there is absolutely no merit to the complaints of inappropriate conductby Crown counsel at trial.

(4) The instructions on post-offence conduct evidence [52] What was traditionally called “post-offence conduct” evidence is now commonly identified as“after-the-fact conduct” or “after-the-event conduct” evidence. However, the concerns that gave rise to the new descriptors are not inplay here.

There is no doubt that an offence was committed when the appellant’s father was killed in his office on July 6, 2011, hence theuse of the traditional expression “post-offence” in these reasons. [53] I begin the substantive discussion of this topic by rejecting the appellant’s complaint that thetrial judge erred in finding his false statement regarding the navy jacket as well as the dry-cleaning of the brown Hugo Boss jacket wereevents capable in law of amounting to inculpatory post-offence conduct evidence.

Contrary to the appellant’s contention, the jury couldreasonably conclude his false statement regarding the navy blazer was a lie and not an honest mistake as he alleged. Moreover, there wasevidence from which the jury could infer the appellant was involved in the delivery of the jacket to the dry cleaners. And finally, giventhe totality of the evidence, both events were relevant and could justifiably be made available for consideration by the jury in accordancewith proper instructions. [54] It is the appellant’s alternative submission that a new trial is necessary because properinstructions were not provided.

He contends the charge to the jury features a critical misdirection in connection with his false statementto the police that he was wearing a navy blazer. Video evidence showed conclusively and the appellant admitted at trial he was wearinga brown Hugo Boss jacket when he attended at 52 Canterbury Street. Forensic testing subsequently confirmed the presence of thevictim’s blood and DNA on that jacket.

[ 55 ] There is no gainsaying this contradiction’s importance in the prosecution’s arsenal at trial. Indeed, the suggestion that the appellant lied about the jacket he took to his father’s office figured prominently in Crown counsel’s opening and closing statements. [ 56 ] Crown counsel’s opening statement features these observations on point: When the accused was asked what he was wearing when he visited Richard Oland’s office on July 6 th , 2011 he told the Saint John Police Officer conducting the interview he was wearing a navy blazer.

You will hear from Maureen Adamson that the accused was not wearing a navy blazer when he arrived at Richard Oland’s office on July 6 th , 2011. But was in fact wearing a brown sports coat or brown sports jacket. You will also see this as the accused was captured by security cameras earlier in the [day] wearing a brown sports coat. You might ask so what, why does this matter? During the course of the accused July 7, 2011 interview he was informed that search warrants would be executed. After the interview the accused left the police station at approximately 11:00 p.m. on July 7, 2011.

The very next morning Friday, July 8 th , 2011 at 9:08 a.m. a number of items of clothing were dropped off at VIP Dry Cleaners in Rothesay, New Brunswick under the account of Lisa Oland the accused’s spouse. Specifically 2 sports coats, 1 pair of pants were dropped off for dry cleaning and 16 dress shirts to be laundered. A pick up date for the very next day Saturday, July 9 th , 2011 was arranged. On July 14, 2011 a search warrant was executed at 58 Gondola Point Road in Rothesay the home of the accused.

Located in the men’s closet of the master bedroom during that search was a brown sports jacket, the only brown sports jacket seized at the residence. This brown sports jacket still had attached to it a dry cleaning tag with details linking it back to the order taking into VIP Dry Cleaners in Rothesay on July 8 th , 2011 on the account name of Lisa Oland. There were many items both from the scene at 52 Canterbury Street in Saint John and from the accused home in Rothesay, New Brunswick which were forensive(ph) – forensically analyzed and tested.

Chief among those was the brown sports jacket seized at the accused residence on July 14, 2011. On that brown sports jacket with the dry cleaning tag still attached, four areas of blood were found. You will hear that DNA reporting scientists who then tested those four areas of DNA – for DNA, excuse me. They will testify that at – at each of those four locations a DNA profile was found. That DNA profile matched that of Richard Oland. [ 57 ] The issue was raised once again in Crown counsel’s closing address: In his statement to police the accused indicated three times he was wearing a navy blazer.

The evidence is clear that he was in fact wearing a brown sports jacket. He didn’t hesitate when he provided his response. There was no [hesitation] in his response, there was no confusion, no ambiguity in the accused’s response. The accused testified that he was simply mistaken when asked as to the color of his jacket he wore on July 6 th , 2011. He explained that he had just made a general assumption that because he was wearing khaki pants that he would have been wearing a blue blazer.

This explanation lacks any foundation when you take into account that he wore khaki pants on July 6 th with a brown sports jacket, not a blue blazer. If you wish to look for it you will notice that that answer is at 7:43:33 [of the video-taped statement]. We suggest that the accused is aware that he may have been seen on security cameras. He was aware that there was a chance that the police would be looking for the clothing he wore on July 6 th , 2011.

We suggest that his response of wearing a navy blazer was an attempt to mislead the police in their investigation and provide him the opportunity to destroy any evidence that may be found on his brown sports jacket . [Emphasis added.] [ 58 ] Crown counsel’s final set of statements to the jury included a reference to the appellant’s false statement to the police that he was wearing a navy blazer. Crown counsel segued with a reminder that the victim’s blood and DNA were found on the brown Hugo Boss jacket the appellant “now” admitted to wearing.

The final summation was then punctuated with this submission: Ladies and Gentlemen of the jury, we submit that the only logical conclusion, inescapable conclusion is that Dennis Oland killed his father and he should be found guilty for what he did. [ 59 ] Clearly, the debate over this ground of appeal is not about some inconsequential piece of evidence. [ 60 ] It is common ground that no accused is entitled to a perfectly instructed jury. However, the appellant, like all who elect to be tried by judge and jury, had the right to a properly instructed jury.

The approach that informs appellate review of a judge’s charge to determine if the jury has been properly instructed is well known; it is context-driven, functional and focused on substance, not form (see R. v. O ’ Brien , 2003 NBCA 28 , 257 N.B.R. (2d) 243, at paras. 25-26 , where the authorities are collected).

[61] Recall the only live issue at trial was the identity of the murderer. Intent and included offenceswere not in the mix. There were only two verdicts under consideration: guilty or not guilty of second degree murder. The prosecution wasasking the jury to infer from the appellant’s “lie” about the jacket and other circumstantial evidence that he was the murderer. [62] Post-offence conduct evidence encompasses acts of the accused, both physical and verbal, thatare relevant to a live issue at trial.

Evidence of this nature is typically tendered by the prosecution as circumstantial evidence the trier offact may rely upon, along with other incriminating evidence, to conclude the case for conviction has been established beyond areasonable doubt. In R. v. Bradey, 2015 ONCA 738, [2015] O.J.

No. 5713 (QL), Watt J.A. captures the distinctiveness of post-offenceconduct evidence with a memorable turn of phrase: it is “circumstantial evidence that looks backward from what happened later tosomething that occurred before” (para. 165). [63] It has long been recognized that post-offence conduct evidence carries “an elevated risk ofspeculative and prejudicial reasoning” (see David M. Paciocco, “Simply Complex: Applying the Law of ‘Post-Offence Conduct’Evidence” (2016), 63 Criminal Law Quarterly 275, at p. 281).

In that thoughtful article, Justice Paciocco, delves at length on thedangers posed by post-offence conduct evidence: Those dangers arise, in part, because in many “post-offence conduct” cases, including the evasion cases and demeanour cases, thedecision-maker is invited to take what the accused person has done or failed to do, to infer from that what is in the mind of the accused,and to then draw significance from this inference in resolving an event that happened in the past. To be sure, there is nothing unusual about decision-makers reasoning their way into the mind of the accused.

We do so regularly whenwe circumstantially resolve mens rea issues. The material difference, however, is that “post-offence conduct” is not temporally linked tothe planning and execution of the crime. It can therefore lack the context that enables confident inferences to be drawn. Effectively, post-offence conduct evidence tends to invite decision-makers to pose as psychologists by using after-the-fact conduct to read the mind of theaccused, and then use the fruits of that psychological excavation to write the history of that prior event. Each of these processes invites the risk of error.

First, the psychological excavation is predicated upon generalizations or evenstereotypes about how normal people would react, creating the risk of wrongful convictions for someone who does not comport to theperceived “norm”. Second, the re-creation of events from the implied mental state thought to be discovered enhances the risk that illogical or speculativeinferences will be drawn, given that the significance of “post-offence conduct” is often ambiguous. In evasion cases these risks are enhanced. The reasoning that evasion evidence typically invites, involves inferring guilt to drawconclusions about guilt.

As indicated, either the decision-maker is being asked to reason that the accused is acting the way a guiltyperson would act and must therefore be guilty, or that the accused is betraying knowledge of their guilt through their action, and musttherefore be guilty. Either way, when evidence of evasive “post-offence conduct” is offered the decision-maker is usually being invitedto join the Crown in forming an opinion about the ultimate issue of guilt. The law has long-recognized the risk of short-circuiting properreasoning by presenting ultimate issue evidence.

True to form, judicial experience has shown that this kind of evidence is seductive, anddangerous. “[T]here is a risk that jurors [and I would add, judges] might jump too quickly from post-offence conduct to an inference ofguilt. [pp. 282-283] [Emphasis added.] Lies by an accused with potentially inculpatory value are considered acts of “evasion” just as much as, for example, assuming a falsename, changing one’s appearance, hiding or disposing of evidence (see R. v. Ruddick, (ON CA), [1980] O.J. No. 1534(C.A.) (QL) and R. v. White, (SCC), [1998] 2 S.C.R. 72, [1998] S.C.J. No. 57 (QL), at para. 19). [64] In R. v.

Laliberté, 2016 SCC 17, [2016] S.C.J. No. 17 (QL), Wagner J., writing for the Court,confirms juries must be instructed that only a fabricated alibi can support “an inference of consciousness of guilt” (para. 3). Citing,among other leading decisions, R. v. O’Connor, (ON CA), [2002] O.J. No. 4410 (C.A.) (QL), Justice Wagner addsthere must be evidence aside from the finding of falsity itself for a jury to conclude fabrication occurred.

[65] Evidence of lies by an accused in the aftermath of and in relation to the offence charged that areproffered by the Crown as circumstantial evidence in support of its case stands to be treated like false alibi evidence. The conditionprecedent to probative value is precisely the one articulated in R. v. Laliberté: fabrication or concoction. [66] R. v. Coutts, (ON CA), [1998] O.J. No. 2555 (C.A.) (QL), leave to appealdenied [1999] 1 S.C.R. xii, is one of the leading cases on this subject. It involved an appeal by Coutts and Middleton against theirconviction for arson.

The case for the prosecution was circumstantial resting on evidence that a fire was deliberately set inside anapartment, that Middleton had motive (his poor relations with the landlord), and that both Middleton and Coutts gave false statements tothe police from which consciousness of guilt could be inferred. Both appellants submitted the verdict was unreasonable and that theyshould be acquitted. They also argued in favour of a new trial, taking issue with the trial judge’s instructions on the consciousness ofguilt arguably arising from their statements. Both appeals were allowed.

A new trial was directed for Middleton, and a verdict ofacquittal was entered for Coutts. The Court held the trial judge erred in his instructions regarding consciousness of guilt.

In this regard,Doherty J.A., writing for the Court, drew a distinction between out-of-court statements by the accused that are disbelieved and rejectedfor that reason, and out-of-court statements by the accused which are concocted to avoid culpability: This court has repeatedly drawn a distinction between statements made by an accused (or the testimony of an accused), which aredisbelieved and, therefore, rejected and those statements or testimony which can be found to be concocted in an effort to avoidculpability.

The former have no evidentiary value; the latter can constitute circumstantial evidence of guilt: R. v. Davidson, DeRosie andMacArthur (1974), (ON CA), 20 C.C.C. (2d) 424-428 (Ont. C.A.), leave to appeal to S.C.C. refused, [1974] S.C.R.viii; R. v. Mahoney (1979), (ON CA), 50 C.C.C. (2d) 380 at 389 (Ont. C.A.), aff’d without reference to this point(1982), (SCC), 67 C.C.C. (2d) 197 (S.C.C.); R. v. Sandhu (1989), (ON CA), 50 C.C.C. (3d) 492 at499-501 (Ont. C.A.); R. v. Levy (1991), (ON CA), 62 C.C.C. (3d) 97 at 100-103 (Ont. C.A.); R. v. Witter (1996), (ON CA), 105 C.C.C. (3d) 44 at 52-53 (Ont. C.A.).

In an oft quoted passage from Mahoney, supra, Brooke J.A. said, at p.389: If the jury accepted the evidence of the Crown witnesses that the appellant was the killer, disbelief of the appellant’s denial wasinevitable, but that disbelief could not be treated as an additional item of circumstantial evidence to prove guilt.

In my view, the juryought not, routinely, to be instructed with respect to the inferences that may be drawn from the fabrication of a false alibi in the absenceof a proper basis for that instruction, as for example, where there is extrinsic evidence of fabrication, or where the appellant has givendifferent versions as to his whereabouts, one of which must be concocted. The words of Brooke J.A. apply with equal force to statements made by an accused which are not in nature of an alibi, e.g. see R. v. Levy,supra; R. v. Sandhu, supra.

This distinction between statements which are disbelieved and, therefore, rejected and those which can be found to be concocted andcapable of providing circumstantial evidence of guilt cannot be justified as a pure matter of logic. In many, if not most cases, theinference of concoction flows logically from the disbelief of an accused’s statements or testimony. The distinction made in Mahoney is,however, fully justified and, indeed, essential to ensure that the trier of fact properly applies the burden of proof in cases wherestatements of an accused are tendered or an accused testifies.

If triers of fact were routinely told that they could infer concoction fromdisbelief and use that finding of concoction as evidence of guilt, it would be far too easy to equate disbelief of an accused’s version ofevents with guilt and to proceed automatically from disbelief of an accused to a guilty verdict. That line of reasoning ignores the Crown’sobligation to prove an accused’s guilt beyond reasonable doubt.

By limiting resort to concoction as a separate piece of circumstantialevidence to situations where there is evidence of concoction apart from evidence which contradicts or discredits the version of eventsadvanced by the accused, the law seeks to avoid convictions founded ultimately on the disbelief of the accused’s version of events: R. v.Tessier (1997), (BC CA), 113 C.C.C. (3d) 538, per Ryan J.A. at 556, per Southin J.A. at 561; R. v. Pleich (1980), (ON CA), 55 C.C.C. (2d) 13 (Ont. C.A.). [paras. 13-15] [67] A few years later, in R. v. Blazeiko, (ON CA), [2000] O.J.

No. 1819 (C.A.)(QL), the Court noted a false statement, even if deliberate, cannot, without independent evidence of concoction or fabrication, providecircumstantial evidence of guilt. The jury must be told that it cannot rely on a deliberately false statement as a piece of circumstantialevidence on the Crown’s side of the scales unless there is independent evidence that the statement was concocted. Moreover, the jurymust be directed to any item of independent evidence from which it might infer concoction. [68] The most referenced case in this area of the law, R. v. O’Connor, followed suit in 2002.

Itinvolved an appeal from conviction for second degree murder. The victim died after being shot in the head and chest with a shotgun. Inthe ensuing investigation, the police found blood and another material on the appellant’s truck that matched the victim’s DNA. Onseveral occasions, the appellant told the police he had been at a club at the time of the offence and had then driven across the border toBuffalo. There was substantial evidence contradicting those statements.

The Ontario Court of Appeal allowed the appeal, and ordered anew trial, inter alia, on the grounds that the trial judge erred in his instruction to the jury with respect to the appellant’s statements to thepolice. Specifically, the trial judge committed reversible error in failing to mention that the requirement for independent evidence offabrication could not be met by evidence showing the statements to be false. The trial judge also erred in failing to clearly direct the juryas to what evidence could constitute evidence of fabrication and in suggesting that the evidence led to contradict the appellant’s

statements was capable of establishing fabrication. O’Connor A.C.J.O., writing for the Court, made the following insightful remarks: Many of the cases address the need for evidence of fabrication in situations where it is an accused’s alibi that is disbelieved; some cases,however, refer to the requirement applying to disbelieved exculpatory statements generally. I see no reason to distinguish the approachtaken to disbelieved statements that constitute alibis and those that are otherwise exculpatory.

In my view, the requirement for evidenceof fabrication before any adverse inference may arise applies equally to both kinds of statements. In analyzing the evidentiary value of adisbelieved statement that is not an alibi, however, the court will need to have regard to the content of what it is that is disbelieved andthe connection of the disbelieved statement to the offence charged.

The distinction between mere disbelief and a finding of fabrication has regard to the fundamental principle that the onus of proof remainson the Crown throughout a criminal trial and helps ensure that the trier of fact properly applies the burden of proof in cases wherestatements of an accused are tendered or an accused testifies. The distinction reduces the risk that a trier of fact may blur the need for theCrown to prove the offence charged beyond a reasonable doubt with the failure of the accused to provide a credible defence.

Thedistinction also recognizes the danger that a trier of fact may attach undue weight to the rejection of an accused’s explanation and maymove too readily from mere disbelief to a finding of guilt. As was pointed out by Gibbs J. in Steinberg v. Com’r of Taxation(Cwth.) (1875), 134 C.L.R. 640 at p. 695, cited in R. v.

Tessier (1997), (BC CA), 113 C.C.C. (3d) 538 (B.C.C.A.) atp. 553: “The fact that a witness [even the accused] is disbelieved does not prove the opposite of what he asserted.” In Coutts, supra, Doherty J.A. explained the rationale underlying the rule as follows at pp. 551-52: If triers of fact were routinely told that they could infer concoction from disbelief and use that finding of concoction as evidence of guilt,it would be far too easy to equate disbelief of an accused’s version of events with guilt and to proceed automatically from disbelief of anaccused to a guilty verdict.

That line of reasoning ignores the Crown’s obligation to prove an accused’s guilt beyond a reasonable doubt.By limiting resort to concoction as a separate piece of circumstantial evidence to situations where there is evidence of concoction apartfrom evidence which contradicts or discredits the version of events advanced by the accused, the law seeks to avoid convictions foundedultimately on the disbelief of the accused’s version of events.

Despite the fact that in many cases an inference of fabrication will flow logically from disbelief of an accused’s statement, the policyunderlying the distinction between disbelief and the finding of fabrication militates against using disbelief to infer fabrication. The courtshave, therefore, attached the requirement that a finding of fabrication must be founded on evidence that is independent from the evidencewhich contradicts or discredits the accused’s version of events: R. v. Hibbert, supra, at p. 151; R. v. Coutts, supra, at p. 552; and R. v.Tessier, supra, at p. 556.

The need for independent evidence of fabrication applies both to the testimony of an accused at trial which is disbelieved as well as to anout-of-court statement which is found to be untrue: R. v. Coutts, supra, at pp. 550-52. However, in my view, there is an importantdifference in what is capable of constituting independent evidence of fabrication in the two different circumstances.

The cases make it clear that when it is an accused’s testimony which is disbelieved, the circumstance in which the accused gave thedisbelieved version of events – as part of the trial process itself – is not considered to be independent evidence of fabrication permittingan adverse inference against the accused: R. v. Parrington (1985), (ON CA), 20 C.C.C. (3d) 184 at p. 187 (Ont. C.A.);and R. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.).

Before an adverse inference may be drawn, there must beevidence capable of showing fabrication apart from both the evidence contradicting the accused’s testimony and the fact that the accusedis found to have testified falsely at the trial. On the other hand, I am satisfied that it is open to a trier of fact to consider evidence of the circumstances in which an accused made anout-of-court statement which is disbelieved as independent evidence to show that the accused fabricated the statement.

The difference inapproach to disbelieved testimony and disbelieved out-of-court statements turns both on the policy reasons underlying the requirementfor independent evidence of fabrication as well as on the potential evidentiary value of the circumstances in which the two types ofstatements are made.

When an out-of-court statement of an accused is introduced into evidence it does not have the same immediate connection to the trialitself as an accused’s testimony and for that reason, even if shown to be false, it does not present the same threat that the trier of fact willconfuse mere disbelief with affirmative evidence of guilt and improperly lessen the burden on the Crown.

In addition, the circumstances in which an accused, or a person who eventually becomes an accused, makes an out-of-court statement which is found to be untrue may have an evidentiary value that is not present in the circumstance where an accused testifies and is disbelieved.

False exculpatory statements made by a person upon being informed that a crime has been committed will in some circumstances be consistent with that person being conscious of having committed the crime and may point to guilt in the same way that other after-the-fact conduct such as flight, a threat to a witness, or concealment of evidence can be probative of guilt. The circumstances in which a false statement is made may show an intent to mislead the police or others or an intent to deflect suspicion and may be evidence of a conscious mind that he or she has committed an offence.

When a court is addressing the admissibility of evidence contradicting an accused’s out-of-court statement, it will be required to determine if there is independent evidence of fabrication, but in doing so, the court may consider the circumstances in which the allegedly false statement was made. If those circumstances tend to support a conclusion that the accused made a false statement because he or she was conscious of having committed the offence, then those circumstances may be used as independent evidence of fabrication.

I recognize that the practical effect of permitting the circumstances in which an accused’s allegedly false out-of-court statement is made to be used as evidence of fabrication will in most cases result in treating such statements in the same manner as other after-the-fact conduct, i.e. if the fact that the accused told a false version of events is probative of guilt then it is admissible. Because of that, I considered whether there is any need to extend the independent evidence of fabrication requirement to out-of-court statements of an accused. I have concluded that there is for two reasons.

First, the case law to this point in time does not draw a distinction between disbelieved out-of-court statements and disbelieved testimony. Second, and perhaps more importantly, I think that the court should proceed with great care in considering the use that may be made of disbelieved statements of an accused whenever they are made. Although the dangers that triers of fact may misuse an accused’s disbelieved statement is less when the statement is made out-of-court than it is when the accused’s version of events is given in evidence, there nonetheless remains a danger.

The requirement that the court always approach the disbelieved out-of-court statement within the analytical paradigm of requiring independent evidence of fabrication provides a prudent and desirable safeguard that disbelieved out-of-court statements will not assume a more prominent evidentiary role than is warranted . [paras. 18-27] [Emphasis added.] [ 69 ] In R. v. Hibbert , 2002 SCC 39 , [2002] 2 S.C.R. 445, at paragraph 67 , the majority offers a helpful

summary of the principles that come into play where the defence of alibi is rejected. As postulated, those principles also apply to evidence of post-offence lies by the accused, which is tendered in support of the case for conviction. I reproduce the parts of that

summary that are pertinent to the issue at hand: (1) in the absence of evidence of concoction a statement by the accused that is disbelieved has no evidentiary value; (2) a disbelieved statement is insufficient to support an inference of concoction; (3) there must be other evidence from which a jury, acting reasonably, could conclude the statement was concocted; (4) where there is evidence that a statement was concocted, that evidence may be used by the jury to support an inference of consciousness of guilt; (5) where that inference is available to the jury, it may, but need not be drawn; and (6) a concocted statement is not conclusive evidence of guilt.

It should go without saying that jury instructions harmonious with those principles would have passed muster in the case at bar. [ 70 ] I conclude this Cook’s tour of the salient jurisprudence with R. v. Tanasichuk , 2007 NBCA 76 , 321 N.B.R. (2d) 44, leave to appeal denied [2009] S.C.C.A. No. 18 (QL). In that case, the appellant challenged his conviction for the first degree murder of his wife, who was last seen alive on January 15, 2003. Eleven days later, the appellant reported her missing to the police. In the meantime, he told family and acquaintances she had gone to visit friends in Saint John.

Approximately five months later, his wife’s decomposed body was found in a wooded area. She had been shot in the head three times. The case against the appellant at trial rested upon circumstantial evidence, and Crown counsel contended the appellant’s post-offence statements were lies he concocted to avoid culpability and, as such, betrayed a consciousness of guilt that gave rise to inculpatory circumstantial evidence.

The Court allowed the appeal and ordered a new trial on the grounds, among others, that the trial judge’s instructions failed: (1) to clearly delineate the difference between evidence leading only to disbelief of the appellant’s post-offence statements and independent evidence of concoction; (2) to make plain that mere disbelief of the appellant’s statements did not constitute evidence from which guilt might be inferred; (3) to warn the jurors those statements could not be used as circumstantial evidence supportive of the Crown’s case unless they found they were concocted on the basis of evidence independent of the evidence showing the statements to be false; and (4) to outline what evidence was capable of constituting independent evidence of concoction.

In delivering the Court’s reasons, Richard J.A. made observations that bear repeating, given their pertinence to the appellant’s complaint of misdirection: It is now a well-established principle of law that, before any adverse inference may arise from an accused’s exculpatory statement that is disbelieved, there is a requirement that the statement be shown to have been concocted. […] In a jury trial, this rule of evidence requires a trial judge to make a threshold determination that there is independent evidence upon which a jury could find the exculpatory statement to have been concocted before the jury can be invited to draw an inference of consciousness of guilt.

If the admissibility issue is resolved in favour of the Crown, it becomes incumbent on the trial judge to properly instruct the jury on the use that can be made of the evidence.

[…] Once the statements were admitted, the Crown was allowed to invite the jury to infer consciousness of guilt based on the submission that these had been concocted. It became incumbent on the trial judge to clearly instruct the jury on the manner in which this evidence could be used. Here again, I turn to O’Connor A.C.J.O.’s analysis in O’Connor .

In cases where fabrication is alleged and a jury will be invited to infer consciousness of guilt, the trial judge should instruct the jurors “that it is open to them to find that the accused fabricated the exculpatory version of events because he or she was conscious of having done what is alleged and that they may use that finding, together with other evidence, in determining if the Crown has proven the case beyond a reasonable doubt” [para. 37 ] .

Moreover, it is essential that a trial judge clearly set out the difference between evidence leading only to disbelief and independent evidence of fabrication and that the judge “carefully outline what evidence is capable of constituting independent evidence of fabrication” [para. 38]. […] With respect, these instructions do not meet the requirement for a clear instruction to enable the jury to grasp the difficult concept that is the difference between evidence leading only to disbelief and independent evidence of fabrication.

My conclusion in this regard results primarily from the judge’s failure to clearly set out the difference between the two types of evidence. Granted, the jury was told that it was for them to decide whether Mr. Tanasichuk fabricated the statements to avoid suspicion. However, nowhere is the jury clearly told that mere disbelief of Mr. Tanasichuk’s out-of-court statements does not constitute evidence from which guilt may be inferred.

Nor did the judge explain that before these statements can be used as circumstantial evidence to be weighed with other evidence in determining whether the Crown has proven its case against Mr. Tanasichuk, the jury was required to find evidence of fabrication independent of the evidence showing the statements to be false. Without this critical instruction, the trial judge’s charge to the jury could only have served to confuse the issue. […] It is because of the extremely powerful effect of a finding of fabrication that a clear instruction is of critical importance.

With respect, I cannot hold that the instruction given in this case meets that requirement. Because the trial judge neither explained the need for independent evidence of fabrication nor pointed out that this requirement means evidence apart from the evidence showing the statements to be false, the jury was deprived of a crucial element that should have formed part of the analytical framework pursuant to which this potentially “extremely powerful” evidence was to be assessed . [paras. 61, 63, 66, 68 and 70] [Emphasis added.] The respondent did not invite the Court to re-visit and overrule its decision in R. v.

Tanasichuk . At any rate, it is in line with the principles affirmed in the cases cited hereinabove, most significantly R. v. Laliberté , and numerous other decisions, including R. v. Pomeroy , 2008 ONCA 521 , [2008] O.J. No. 2550 (QL), R. v. Paul , 2009 ONCA 443 , [2009] O.J. 2184 (QL), R. v. Hazel, 2009 ONCA 389 , [2009] O.J. No. 1818 (QL), Delisle v. R. , 2013 QCCA 952 , [2013] Q.J. No. 3433 (QL), at para. 74 , R. v. Bradey , at paras. 165-174 , and R. v. Shafia , 2016 ONCA 812 , [2016] O.J.

No. 5627 (QL) at para. 285 . [ 71 ] In sum, courts have developed rules to deal with evidence of false alibis and out-of-court lies by the accused in the aftermath of and in relation to the offence charged. They have done so because of the risk of prejudicial impact on trial fairness associated with that kind of evidence. [ 72 ] There is nothing “special” about these rules.

They were fashioned in the time-honored judicial tradition of providing guidelines designed to encourage verdicts that are the end point of a chain of reasoning informed by logic and relevant evidence, as well as the presumption of innocence and the proper application of the burden of proof. Experience teaches us that not all lies are rational or thought through. Some are simply foolish. As the Supreme Court of Canada has acknowledged, an accused may lie “for an entirely innocent reason such as panic, embarrassment or fear of false accusation”: R. v.

White (1998), at para. 22. [ 73 ] If the jury found the appellant’s statement regarding the jacket he took to his father’s office was a lie, and not merely an honest mistake as he claimed, the following rules came into play: (1) the lie, without more, was not evidence that could assist the prosecution in establishing guilt; (2) the lie could be used by the jury to support an inference of consciousness of guilt if, and only if, it was concocted by the appellant for the purpose of concealing his participation in the offence of second degree murder of his father.

In this context, concoction connotes contrivance; a concocted lie is one that is made up after giving the matter some thought and, as such, it is distinguishable from an unconsidered, albeit intentional, falsehood; (3) a finding of concoction could not be made by the jury simply because the appellant lied; it could be made only if it was established by evidence independent of the evidence proving

he lied; (4) if the inference of consciousness of guilt was available to the jury, it may, but need not be drawn; (5) a concocted lie is not conclusive evidence of guilt; and (6) the judge’s charge should, through its general or specific instructions, or a combination of both, substantially reflect the foregoing and include an adumbration of the requisite independent evidence upon which the jury may, but need not, draw an inference of concoction. [ 74 ] In my respectful view, the charge to the jury misses the mark on this important issue: indeed, it gave the judge’s imprimatur to a consideration by the jurors of the appellant’s “lie” as inculpatory evidence without impressing upon them that this was permissible only if they found, on the basis of independent evidence, that the “lie” was concocted.

Here are the problematic instructions: […] evidence of what a person said or did after an offence was committed may help you decide whether it was that person who committed it. It may help or it may not.

For example, an intentionally false or misleading statement made by a person after a crime has been committed or conduct that involves attempting to destroy or hide potential evidence after a crime has been committed will, in some circumstances, be evidence from which it can be inferred that the person is attempting to mislead the police and deflect suspicion away from himself or herself because the person actually committed the offence . What a person said or did after an offence was committed is a type of circumstantial evidence.

Like any circumstantial evidence, it is for you to say what inference should be drawn from the after the fact conduct evidence. You may use this evidence, along with all the other evidence in the case, in deciding whether crown counsel has proven guilt beyond a reasonable doubt. But you must not infer guilt from this evidence unless, when you consider it together with the rest of the evidence, you are satisfied beyond a reasonable doubt that guilt is the only rational inference that can be drawn from all the evidence.

As circumstantial evidence, evidence of after the fact statements or conduct has only an indirect bearing on the issue of guilt. You must be careful about inferring guilt on the basis of evidence of after the fact statements or conduct because there might be other explanations for that statement or conduct, something innocent, unconnected with participation in the offence charged.

You may use evidence of after the fact statements or conduct along with other evidence to support an inference of guilt only if you have rejected any other explanation [for] any such statements or conduct. […] The two pieces of evidence that the Crown referred to as after the fact evidence from which they ask you to draw an inference against Dennis Oland are as follows.

Number one, the direct evidence that during his interview he told the police he was wearing a navy blazer when in fact he was wearing a brown one, and number two, the circumstantial evidence that the brown jacket was dropped off the very next morning following that interview after he had been told that the police suspected him in the crime and were intending to get search warrants against him and that blood and his father’s DNA was later found on that jacket. You should consider the issue in steps.

As for what he told the police, you must first consider whether what Dennis said was related to the commission of the offence charged or to something else. You must be careful not to immediately conclude that what he said was related to the commission of the offence charged rather than to something else. To decide the reason why Dennis said he was wearing a navy blazer, you should consider all of the evidence. Of particular importance is any evidence that offers other explanations for what Dennis said. In his testimony he acknowledged that he was mistaken.

He explained to the effect that he was under the stress of th

[…]