R v Woods, 2019 SKCA 84

Court of Appeal for Saskatchewan Docket: CACR2445 Citation: R v Woods , 2019 SKCA 84 Date: 2019-08-30 Between: David Neil Woods Appellant And Her Majesty the Queen Respondent Before: Richards C.J.S., Whitmore and Schwann JJ.A. Disposition: Application denied, appeal dismissed Written reasons by: The Honourable Mr.

Justice Whitmore In concurrence: The Honourable Chief Justice Richards The Honourable Madam Justice Schwann On Appeal From: QBJ 4 of 2013, Saskatoon Appeal Heard: October 2, 2018 Counsel: James Streeton for the Appellant Dean Sinclair, Q.C., for the Respondent Alan McIntyre, Q.C., for the fresh evidence application (Michael Nolin) Whitmore J.A. I. Introduction [ 1 ] David Neil Woods appeals his conviction after trial by a judge and jury on the charge of first degree murder contrary to s. 235 of the Criminal Code . For the reasons that follow, I would dismiss the appeal. II.

Facts And Background Disclosed at Trial [ 2 ] The appellant and the victim, Dorothy Woods, were married and lived together with their two children until Dorothy went missing on November 11, 2011. At the time of her disappearance, the couple were having difficulties in their relationship. Shortly prior to her disappearance, Dorothy had entered into several casual sexual relationships with other men, and the appellant had engaged the services of prostitutes. [ 3 ] Dorothy met P.N. at a nightclub near the end of August of 2011.

They had a brief sexual encounter outside the nightclub and exchanged emails, text messages, and telephone calls over the next few months. [ 4 ] Dorothy met W.L. on an online dating site in August of 2011. They met for a casual sexual encounter in September of 2011, and met for one last sexual encounter in October, when they had sexual intercourse in her truck.

W.L. testified at the trial that, after the sexual encounter, he could not find the wrapper for the condom he had used. [ 5 ] The next day the appellant found a condom wrapper in Dorothy’s truck, and became aware Dorothy was probably having a sexual relationship with someone. He searched Dorothy’s cellphone to find out with whom she might be having an affair, and in the early morning of October 22, 2011, using Dorothy’s cellphone, he called W.L. and left an abusive message.

A few minutes later, he sent two text messages from his own cellphone to W.L., saying he had just found out W.L. was not the only man Dorothy had been having an affair with. [ 6 ] The appellant used his own cellphone to send several more angry and threatening text messages to W.L. on October 22. The appellant then called W.L.’s wife the next day and told her that W.L. was sleeping with another woman. I will refer to these messages as the October Messages. [ 7 ] Dorothy was also acquainted with D.B.

On November 9, 2011, they met each other at a lounge, talked for several hours, embraced and exchanged phone numbers. [ 8 ] Dorothy left the lounge that evening to pick up her daughter and take her to the hospital. When they got home from the hospital around midnight, Dorothy sent several text messages to D.B. and continued to text him the next day. [ 9 ] At about 1:45 a.m. on November 10, Dorothy sent a text message to D.B., who invited her to come over to his apartment to talk. After Dorothy arrived, she told him her husband was upset, and that he had told their children they were getting a divorce.

They talked for several hours about the state of her marriage. Dorothy left his apartment around 5:30 a.m., and at about 7:00 a.m., went to her friend’s home and told her friend, S.W., that her marriage was over and she had been kicked out of the house. Dorothy left when S.W. left for work.

[ 10 ] On November 10, 2011, P.N. texted Dorothy advising her he was going to be in town that night, and they made arrangements to meet. That evening, Dorothy told the appellant she was going to see a doctor because she was not feeling well. Around 8:00 p.m. that evening, she sent a text message to the appellant, telling him she was going to visit someone. At that time, she was in a lounge waiting for P.N. to arrive. [ 11 ] The appellant testified that he got upset when Dorothy did not come home from the doctor’s office on November 10. He admitted telling their children that their mother was seeing other men.

He said that he and the children went looking for her. They drove around for a couple of hours but did not find her. He also admitted calling the police that night to complain that Dorothy was driving while impaired. [ 12 ] In the meantime, Dorothy and P.N. had met and had rented a hotel room for a sexual encounter. When she left, Dorothy told P.N. she was going home. [ 13 ] The appellant testified he let Dorothy back into their house at about 8:30 a.m. that morning. They argued about her staying out all night.

Later that afternoon, he took the children to his mother’s house for supper and testified he knew Dorothy was going to buy groceries. He testified they planned to watch movies with the children that evening. [ 14 ] At approximately 4:00 p.m. on November 11th, Dorothy sent a text message to P.N. She then went to a grocery store and purchased several hundred dollars of groceries using her debit card. [ 15 ] When Dorothy arrived home with the groceries, the appellant and their children were not at home. She and her friend, S.L., met at a lounge around 7:00 p.m.

Dorothy told S.L. about the appellant kicking her out of the house the night before and said she wanted to move out but did not have enough money to do so. Dorothy said she had to be home that night by 10:00 p.m., but she was going to see D.B. before she did so. S.L. testified Dorothy left the lounge at about 9:30 p.m. [ 16 ] D.B. testified that he saw Dorothy earlier that day when she came to see him at his place of work. She told him she been locked out of the house. He testified he saw her again that evening shortly after 9:00 p.m. when she came to his apartment.

They talked for an hour and she left shortly after 10:00 p.m. [ 17 ] The appellant testified Dorothy got home at about 10:30 p.m. He and the children were watching a movie and Dorothy sat down and started watching the movie with them. The appellant said he went upstairs to work out and when he came back downstairs the children were ready to watch a second movie. He testified he went to the garage to have a cigarette and then went to bed. According to the appellant, Dorothy and the children were watching a movie when he went upstairs. [ 18 ] Their daughter testified on behalf of the appellant.

She confirmed she and her brother had watched a movie with their mother for less than an hour before they went to bed. She testified she went upstairs, had a shower, and was in bed when she heard a door closing downstairs. She looked out the window, but did not see anyone, and she went downstairs but did not see her mother. She noticed her mother’s truck was in the garage when she went back to bed. She testified her father was sleeping at the time. [ 19 ] The appellant testified he woke up in the middle of the night and went to the garage to have a cigarette.

According to the appellant, Dorothy was not in the house at the time nor when he woke up the next morning. He testified he sent a text message to her, attempting to find out where she was. He assumed she had left home to be with another man. [ 20 ] Dorothy went missing on November 11, 2011. According to the testimony at trial, the last people to see her alive were her children. [ 21 ] When Dorothy failed to return any cellphone calls, friends and family became concerned for her well-being. Dorothy’s brother first became aware that his sister was missing on Sunday, November 13th.

He testified the appellant had phoned him and told him Dorothy was gone and that he had not seen her for two days. During the call, the appellant also told him that Dorothy’s daycare business was finished and he was not going to file a missing person report with the police. He testified the appellant told him Dorothy’s truck was still at the house and that he had found some condoms and a blister pack containing a morning-after pill in her truck.

Dorothy’s brother urged the appellant to file a missing person report. [ 22 ] The appellant did not report Dorothy missing until November 15th, when he told the police by telephone that she had left. He told the police she had taken her makeup bag with her. [ 23 ] On November 15th, D.B. received a threatening and obscene text message from Dorothy’s cellphone number. D.B. replied, which prompted the sender to send another threatening text message. Later that evening, W.L. also received two threatening text messages from Dorothy’s cellphone number.

I will refer to these text messages as the November Messages. [ 24 ] D.B. complained to the police on November 15th about the threatening messages he had received from Dorothy’s cellphone number. The next day, three police officers went to the appellant’s residence, but found nothing of interest. [ 25 ] On November 17th, the appellant was requested to attend the police station to provide additional information about Dorothy and a statement that was to be videotaped. The appellant confirmed Dorothy had taken her makeup bag when she had left and said her cellphone had been taken as well.

He told the police a man named D. might be having an affair with Dorothy, that her wallet, identification, and credit cards were missing, and that she was wearing a black starfish ring the last time he saw her. [ 26 ] When the interview was completed, the appellant was arrested and questioned about sending threatening and abusive text messages to D.B. and W.L.

The appellant remained in custody until the next day, November 18th, when the police attended his home again with a search warrant. [ 27 ] The police search resulted in the discovery of Dorothy’s makeup bag in a garbage bag in one of the garbage bins in the appellant’s backyard. The police also found Dorothy’s blue purse in a cupboard above a workbench in the garage, and her wallet,

containing all of her identification, behind the purse. [ 28 ] The police obtained keys for the appellant’s property and unlocked a toolbox in the garage. Three bank cards and $1,000 in cash were found inside the toolbox; two of the bank cards were in Dorothy’s name and the other was in the appellant’s name. One of the debit cards in Dorothy’s wallet was the same card she had used to purchase groceries on November 11th. [ 29 ] The search included a metal garbage can inside the garage.

In that garbage can, the police found a receipt from a hardware store, a pair of blue jeans, two pairs of panties, an empty package that once contained rope, and a used roll of polyethylene. The jeans and panties were in a garbage bag at the bottom of the container, while the empty rope package was on top of that bag. The hardware store receipt was on top of the rope package.

The police also found two pieces of what appeared to be new nylon rope in the garage. [ 30 ] The jeans had a rhinestone pattern on the back-right pocket, which matched the pattern on the jeans Dorothy was wearing at the lounge (when she had met S.W.) and at the grocery store the night she disappeared. [ 31 ] The hardware store receipt was dated November 12, 2011. It reflected the purchase of a hacksaw, 50 feet of nylon rope, a roll of polyethylene, and a snow brush.

The police took pictures of an above-ground swimming pool in the backyard and noted that the tarp covering the pool was tied down with two types of nylon rope. One type was plain white in colour. The other was white with yellow and black strands threaded through it, which matched the new rope that was found in the garage. [ 32 ] The police went to the hardware store where they seized the original invoice and a video recording depicting the transaction.

The video recording revealed the appellant and his son were in the hardware store on the afternoon of November 12th and showed the appellant purchasing a hacksaw, 50 feet of nylon rope, a roll of polyethylene, and a snow brush. The police purchased an identical roll of polyethylene from the hardware store for comparison purposes. [ 33 ] The police also located a wall safe in the master bedroom of the appellant’s house that was hidden behind a picture of the appellant and Dorothy.

Inside the safe was a black starfish ring. [ 34 ] Later in November of 2011, the police obtained authorization to surreptitiously install a GPS tracking device on the appellant’s vehicles. [ 35 ] On January 2, 2012, the RCMP issued a media release stating that a woman’s body had been found outside of the city. About five hours later, the police noticed from the GPS tracking device that the appellant’s vehicle had left the city at about 4:02 p.m. and had driven south. The vehicle was tracked turning off the highway onto a sideroad.

After driving on the sideroad for some distance, the vehicle turned around and drove back towards the city. The appellant later acknowledged that he had been driving the vehicle at the time. [ 36 ] The next day, the police went to the place on the sideroad where the appellant had turned his vehicle around and, within 15 minutes of searching the area, discovered Dorothy’s body in a culvert. Her body was wrapped in a piece of polyethylene.

Green electrical tape had been used to secure the polyethylene around her body. [ 37 ] The police executed another search warrant for the appellant’s residence and seized a roll of green electrical tape from his garage. The appellant was arrested for murder on January 6, 2012. [ 38 ] Dr. Ladham, who was qualified as an expert in forensic pathology at the trial, examined the body. He testified a large sheet of polyethylene had been wrapped around the body five times. It was secured by several pieces of electrical tape. There was only one

article of clothing on the body, namely an unfastened black bra, with a broken clasp. Dorothy’s hands were tied with rope behind her back, and there was a rope ligature around her throat. Dorothy had been found face down in the culvert, but the condition of the body indicated Dorothy had been killed in another location before being moved into the culvert. The cause of death was recorded as ligature strangulation, with blunt force trauma to the head as a contributing factor. [ 39 ] Dr.

Ladham testified that ligature strangulation occurs when a person pulls on the ligature wrapped around another person’s throat with enough force to cut off the supply of blood and oxygen to the brain. The ligature in this case consisted of a piece of nylon rope that was wrapped tightly around Dorothy’s throat three times and tied in a knot. Dr. Ladham observed that the killer did not apply constant pressure when pulling on the rope. [ 40 ] The autopsy also revealed a rope wrapped several times around both of Dorothy’s wrists. Dr. Ladham saw two knots in this rope. The rope around her wrists was white.

The rope around her throat was white with black and yellow strands threaded through it. [ 41 ] Dr. Ladham observed two deep lacerations on Dorothy’s head that he believed were caused by the application of blunt force. One of the lacerations was on top of the head, and the other near the hairline. He also observed several small scratches and abrasions on the victim’s nose and chin. [ 42 ] Based on his examination, Dr.

Ladham testified that he believed that Dorothy was incapacitated by the application of blunt force trauma to her head, that her hands were tied behind her back and that she was then strangled to death by a person who wrapped the rope around her throat and pulled on it with enough force to cut off the supply of oxygen and blood to her brain. He believed she was either unconscious or had her hands tied behind her back when she was strangled to death. [ 43 ] The rope around Dorothy’s throat was identical to the rope found in the appellant’s garage on November 18th.

The rope around her wrists was identical to the white rope the police found on the swimming pool tarp in the appellant’s backyard. [ 44 ] The polyethylene wrapped around the body had a label that was identical to the label on the polyethylene the appellant had purchased from the hardware store on November 12, 2011. [ 45 ] A retired police officer was qualified as an expert in the examination, comparison, analysis, and

interpretation of paint and polymers, including tapes and adhesives, and the physical matching of materials. He testified that he examined the roll of green electrical

tape that was seized from the appellant’s garage on January 6, 2012, and compared it to the tape found on the polyethylene around the victim’s body. His examination compared the physical characteristics and the chemical composition of both exhibits. He found the characteristics of both exhibits to be identical. He also microscopically examined the ends of the tape from both exhibits to determine if the piece of tape on the polyethylene came from the roll of tape in the garage.

Based on the random microscopic characteristics observed on both ends of the tape, he concluded that one of the pieces of tape from the polyethylene wrapped abound Dorothy’s body originated from the roll of tape found in the appellant’s garage. [ 46 ] The appellant testified in his own defence and denied murdering Dorothy. He admitted he put Dorothy’s clothes in the garbage can in the garage, her makeup bag in the garbage can in the backyard, her wallet and purse in the cupboard in the garage and her bank cards in the toolbox in the garage.

He testified he retrieved those items from the victim’s truck after she disappeared, and he admitted he lied to the police about the state of their marriage and the articles that Dorothy had supposedly taken with her when she left. [ 47 ] The appellant testified he purchased the polyethylene to cover the pool skimmer.

Photographs showed there was no polyethylene on the skimmer. [ 48 ] The appellant admitted he found a package containing a morning-after pill in Dorothy’s truck around the time she disappeared. [ 49 ] The appellant testified that someone left a note on his windshield while he was at a restaurant on January 2, 2012, which said Dorothy was staying at an acreage south of the city. He testified that he thought the note was written by the police to trap him or set him up. He could not explain why he drove out of the city in response to a note that he considered to be part of a set-up.

He claimed he kept the note but could not say where the note was when he testified. The appellant did not say who put the black starfish ring into the safe. The appellant argued he was being set-up for the murder. [ 50 ] The Crown theorized that the appellant found the package containing the morning-after pill in the Dorothy’s truck after she got home the evening of November 11th when he went to the garage to have a cigarette.

The Crown further theorized that, after the children went to bed, the appellant confronted Dorothy, murdered her and hid the body under the pool stair structure in the backyard, until he could dispose of it elsewhere.

The Crown submitted the appellant used rope from the swimming pool to strangle her to death and bought rope the next day to replace it. [ 51 ] The Crown argued the murder was planned and deliberate; alternatively, it was committed in the course of unlawfully confining Dorothy. [ 52 ] When he made his closing submissions to the jury, the appellant’s counsel argued that the real killer planted the roll of electric tape, the empty roll of polyethylene, and the rope in the appellant’s garage after Dorothy was murdered somewhere else. [ 53 ] The appellant was convicted of first degree murder by the jury and he appeals that conviction.

III. Issues [ 54 ] The appellant contends the trial judge made errors regarding the admission of evidence and in his charge to the jury. He also contends that his representation at trial was ineffective and his conviction was unreasonable. The issues may be stated as follows: (

i) Did the appellant suffer a miscarriage of justice because of ineffective trial counsel? (ii) Did the trial judge err in admitting certain text messages that suggested bad character on the part of the appellant? (iii) Did the trial judge err in his charge to the jury (

i) in respect of the bad character evidence instruction? (ii) in respect of the post-offence conduct instruction? (iii) in respect of the forceable confinement instruction? (iv) Was the jury’s verdict unreasonable (

i) in respect of the potential finding of planning and deliberation? (ii) in respect of the potential findings of constructive first degree murder? IV. Analysis A. Did the appellant suffer a miscarriage of justice because of ineffective counsel? 1. The law with respect to ineffective counsel [ 55 ] The test for assessing a claim of ineffective counsel was addressed by the Supreme Court in R v G.D.B. , 2000 SCC 22 , [2000] 1 SCR 520 [ G.D.B. ]:

[26] The approach to an ineffectiveness claim is explained in Strickland v. Washington , 466 U.S. 668 (1984), per O’Connor J. The reasons contain a performance component and a prejudice component. For an appeal to succeed, it must be established, first, that counsel’s acts or omissions constituted incompetence and second, that a miscarriage of justice resulted. [27] Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.

The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment. [28] Miscarriages of justice may take many forms in this context. In some instances, counsel’s performance may have resulted in procedural unfairness. In others, the reliability of the trial’s result may have been compromised. [29] In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis.

The object of an ineffectiveness claim is not to grade counsel’s performance or professional conduct. The latter is left to the profession’s self-governing body. If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow ( Strickland , supra , at p. 697). 2. Failure to introduce exculpatory evidence [ 56 ] The appellant submits there is exculpatory evidence that his trial counsel should have introduced but did not.

First, he says that a report prepared by John Van Tassel, a knot expert, establishes that the appellant did not tie the knots in the ropes found on Dorothy’s body. Second, the appellant submits that S.L., a friend of Dorothy, had been told that Dorothy was going out to meet with D.B. the night of November 11th and was, therefore, seen by others after she left the family home. The appellant says this evidence tends to show that he did not murder Dorothy and that his trial counsel had this information but chose not to introduce it.

Third, the appellant notes statements made by D.B. that he says undermine D.B.’s credibility. Finally, the appellant submits a report from Dr. Litzenberger, a forensic specialist, should have been tendered as evidence. The appellant says this report reflects that a positive screening test for semen was found on swabs taken from Dorothy’s body, which shows she had been intimate very shortly before her death. [ 57 ] Where an allegation of ineffective counsel is based on a failure to adduce evidence, a court should consider first whether the evidence was admissible under the rules of evidence.

If it would have been admissible, the court should then proceed as per G.D.B. , i.e., by considering whether failure to introduce the evidence caused a miscarriage of justice in the sense of compromising the result of the trial and, if necessary, considering whether the actions of counsel in not bringing the evidence forward reflected reasonable professional judgment. a.

The Van Tassel Affidavit [ 58 ] The appellant seeks to have the Court consider the affidavit of John Van Tassel sworn September 6, 2017 [First Van Tassel Affidavit] and his own affidavit to support his position that there was evidence demonstrating that he did not tie the knots in the ligature or the ropes around Dorothy’s wrists. [ 59 ] The Crown has submitted two affidavits in response to the appellant’s application in relation to this fresh evidence. The first is an affidavit from Mr. John Van Tassel sworn July 19, 2018 [Second Van Tassel Affidavit]. The other is an affidavit of Dr.

Litzenberger sworn May 29, 2018. The Crown also relies on an affidavit submitted by Mr. Michael Nolin, the appellant’s trial counsel, sworn August 23, 2018. No objection has been taken with respect to the admission of these response affidavits. [ 60 ] The Crown takes issue with the First Van Tassel Affidavit. It contends that affidavit, and an attached report, do not indicate what the appellant claims: that the person who tied the pool tarp knots was not the same person who tied the ligature or hand restraints found on Dorothy.

According to the Crown, the affidavit is, therefore, not relevant and should not be admitted. The Crown further submits that, since it has not been established that Mr. Van Tassel is qualified as an expert able to identify the person who tied the knots and the rope used as the ligature and hand restraints in Dorothy’s murder, his affidavit amounts to mere opinion evidence and is therefore inadmissible. [ 61 ] The Second Van Tassel Affidavit submitted by the Crown clarifies that the First Van Tassel Affidavit does not stand for the proposition advanced by the appellant. In it, Mr.

Van Tassel states: “I did not conclude that it was likely the same person tied the knots … I did not conclude it was likely a different person tied the knots …” (Second Van Tassel Affidavit at paras 6–7). [ 62 ] Given the content of the Second Van Tassel Affidavit, a miscarriage of justice could not have arisen from the appellant’s trial counsel’s failure to have Mr. Van Tassel qualified as a witness to speak to the contents of his forensic report. It is clear that he would not have offered an opinion that the appellant did not tie the knots in the ligature and the rope around Dorothy’s wrists. b.

Statements made by S.L. [ 63 ] The appellant also refers to out-of-court statements made by S.L. to the police in advance of the trial, which he claims indicate Dorothy was not at home but with D.B. during the time the appellant is said to have murdered her. The transcript of S.L.’s statements is attached to the appellant’s affidavit. [ 64 ] S.L. testified at trial that on the evening of November 11, 2017, she met with Dorothy at a bar, and that on Dorothy’s departure, she understood her to be going to D.B.’s and then home.

She said, “I know [Dorothy] went to [D.B.’s], I don’t know what happened after that, I have no idea, none whatsoever”. [ 65 ] In her statements to the police, S.L. said Dorothy went to D.B.’s, then went home, and then went back to D.B.’s. However, in all of the circumstances here, it is clear that in saying this, S.L. was doing no more than speculating about Dorothy returning to D.B.’s. No basis has been offered for her being able to know what Dorothy had actually done and S.L.’s testimony at trial was inconsistent even

with the notion that she had knowledge of an intention on Dorothy’s part to return to D.B.’s after going home. [ 66 ] At trial, the appellant’s counsel could have cross-examined S.L. using her statement to the police. However, given that there is no basis for this Court to believe the relevant aspect of the statement was anything more than mere speculation, it is not apparent how counsel’s decision not to cross-examine in this regard could have led to a miscarriage of justice.

In other words, on the basis of what has been presented to the Court, any such line of cross-examination would have been wholly ineffective. c. Statements made by D.B. [ 67 ] Paragraph 32 of the appellant’s affidavit avers D.B. made out-of-court statements in the form of a written police statement and two videotaped police statements that contained information inconsistent with his trial testimony. The appellant submits that, if they had been pointed out by trial counsel, these inconsistencies could have undermined D.B.’s credibility. [ 68 ] It is difficult to give credence to this argument.

The appellant does not identify the particular inconsistencies in issue or provide any specifics as to how they might have been used to undermine D.B.’s evidence or even what aspects of his evidence might have been undermined. Further, he does not explain how a cross-examination of D.B. using his statements to the police might have affected the course or outcome of the trial. As a result, I am not persuaded that there is any merit in this aspect of the appellant’s argument. d. Dr. Litzenberger’s Report [ 69 ] Paragraphs 41 to 44 of the appellant’s affidavit deal with the forensic report tendered by Dr.

Litzenberger. The appellant says it indicates Dorothy was sexually intimate with an unknown person immediately prior to her death. That report, based on swabs taken from Dorothy’s body, noted a positive screening for semen. However, a footnote in the report makes it clear that the actual presence of semen was not confirmed. The affidavit of Dr. Litzenberger, sworn May 29, 2018 (and submitted by the Crown), clarifies that “it is not scientifically possible to state semen was found in any of the samples”. [ 70 ] The evidence contained in Dr.

Litzenberger’s report, therefore, does not stand for the point cited by the appellant and does not assist him with his claim of ineffective counsel on the same basis that I have determined that the First Van Tassel Affidavit does not advance his claim. [ 71 ] Thus, in

summary, while some of the evidence referred to by the appellant may have been admissible at trial, I am satisfied none of it—individually or collectively—could have affected the result of the trial. Even if it had been admitted, its persuasive value would have been entirely overwhelmed by the amount and quality of inculpatory evidence on the record. There is, therefore, no miscarriage of justice flowing from its absence at trial. 3. Failure to make an opening statement [ 72 ] The appellant submits his trial counsel’s decision not to make an opening statement amounted to incompetence.

The appellant cites no authority for this proposition and does not explain how trial counsel’s approach resulted in a miscarriage of justice. In the absence of authority and explanation it cannot be said that trial counsel’s decision not to make an opening statement prejudiced the appellant. 4. Failure to prepare the appellant for cross-examination [ 73 ] The appellant submits his trial counsel failed to make an effort to prepare him for examination and cross-examination at trial and, as a result, he fared poorly and lost credibility with the jury.

He relies on R v M.B. , 2009 ONCA 524 , 68 CR (6th) 55 [ M.B. ], saying this is a failure of professional judgment. [ 74 ] M.B. is a sexual assault case where a crucial issue was credibility. The accused was cross-examined on his statement made to police that was given some 16 months prior to trial. At trial, he struggled to answer questions and was, at times, compelled to say he had exaggerated or lied to police. The failure of trial counsel to review the record with the accused led the accused to appear lacking in credibility, which undermined his ability to defend himself.

The Ontario Court of Appeal held it was standard practice to combat fading memory by having an accused review his or her statements prior to examination. [ 75 ] Here, contrary to the appellant’s submissions, the affidavit of the appellant’s trial counsel indicates that he had, in fact, reviewed the record with the appellant prior to trial and that the appellant indicated he did not want to review the record again with trial counsel. These assertions are not contested by the appellant. Accordingly, there was no failure of professional judgment as alleged by the appellant and no miscarriage of justice.

This argument must fail. 5. Failure to challenge certain evidence of the Crown [ 76 ] The appellant alleges trial counsel was incompetent in allowing certain evidence to be introduced unopposed. He submits the text messages adduced by the Crown and alleged to have been sent by the appellant, which use derogatory language, and other evidence adduced by the Crown indicating the appellant frequented prostitutes, should not have been admitted.

The appellant relies on R v Michaud , 2011 NBCA 74 , 376 NBR (2d) 170 [ Michaud ], for the proposition that it is incompetent for trial counsel to fail to guard against bad character evidence. [ 77 ] Michaud does not stand for the proposition that a decision not to oppose the introduction of bad character evidence is necessarily and always an illustration of incompetence. The accused in Michaud was charged with incest and having sex with a minor.

The bad character evidence was a series of statements made by the accused to police respecting his attraction to young girls, his past violent behaviour, his infidelity, his excessive drinking, and past sexual intercourse with an underage girl. That is precisely the kind of

evidence that poses a risk of propensity reasoning when put to a jury, which competent counsel should try to guard against. [ 78 ] As the Crown points out, it was part of the defence strategy in this case to put evidence of the appellant’s relationship with prostitutes to the jury because it helped support the appellant’s contention that he and Dorothy were in an open marriage and he would, therefore, not have been motivated to harm or kill her when he discovered she was having extramarital relationships.

The decision not to object to the evidence in issue was therefore, a reasoned, tactical decision and not a failure of professional judgment. [ 79 ] In any event, it cannot be said that a miscarriage of justice arose from the failure to object to what the appellant characterizes as bad character evidence. The trial judge here admitted the text message evidence because it was highly probative. As I will discuss below, the October and November Messages were properly admitted. Trial counsel’s objections would have been inconsequential for this reason.

Thus, the appellant has not been able to demonstrate that a miscarriage of justice has occurred as a result of the admission of the text messages or the evidence of the appellant’s involvement with prostitutes. [ 80 ] The appellant’s second main argument about trial counsel’s approach to the Crown’s evidence focuses on disparate pieces of evidence he says his trial counsel should have challenged, even though doing so would have been inconsistent with the trial strategy. That strategy was, according to the appellant, to be very low-key about the case.

Although this was not explained in any detail, the defence theory was that someone else committed the murder, and therefore I take low-key to mean the defence would be rather passive because trial counsel, according to the appellant, was of the opinion the Crown had not proven its case. Notwithstanding the low-key approach, the appellant argues his trial counsel ought to have challenged the following evidence: (

i) hearsay statements of Dorothy made to D.B. and S.L.; (ii) opinion evidence respecting the identity of the sender of text messages sent from Dorothy’s cellphone number after her death; and (iii) hearsay evidence respecting cell tower coverage and the range and routing behaviours of transmitted messages. [ 81 ] The appellant relies on R v Zamrykut, 2017 MBCA 24 , 35 CR (7th) 447 [ Zamrykut ] , for the proposition that a low-key strategy of not raising every issue at trial is unreasonable and gives rise to a miscarriage of justice.

While there are circumstances where the facts may support such a proposition, this is not one of them. Zamrykut was a sexual assault case. The trial counsel in Zamrykut had essentially allowed the complainant to tell her story of the assault without cross-examining her. Credibility was a key issue at trial and the failure to cross-examine the complainant represented a failure to address that issue. [ 82 ] The appellant has not explained how his trial counsel’s decision not to challenge the above-noted evidence represented a failure of professional judgment like that present in Zamrykut .

He has only suggested that the evidence trial counsel ought to have challenged was relevant to live issues before the jury, that trial counsel had the opportunity to speak to those issues prior to the jury being instructed, and that the failure of trial counsel to do so led the trial judge into error in respect of the jury instructions ultimately given.

The specific impact that trial counsel’s objections to the above-noted evidence would have had on the jury instruction is not explained and, in my view, a “bald” suggestion of a potential impact on the case is not enough to show the decision not to challenge the evidence caused a miscarriage of justice. 6. Failure to cross-examine certain Crown witnesses [ 83 ] The appellant submits his trial counsel’s decision not to cross-examine certain Crown witnesses amounted to incompetence. These witnesses are as follows: (

i) R.A., an expert witness who linked the electrical tape found on the polyethylene wrapped around Dorothy’s body with the electrical tape found in the appellant’s garage; (ii) D.B., who the appellant suggests could have been cross-examined on inconsistencies between his testimony at trial and the statements he gave to police; and (iii) S.L., who the appellant suggests could have been cross-examined in respect of her speculation, discussed above, that Dorothy had returned to D.B.’s house late on the evening she disappeared. [ 84 ] The appellant also questions trial counsel’s decision to cross-examine certain witnesses or decisions he made during cross- examination.

The witnesses referred to by the appellant in this regard are as follows: (

i) L.C., who was cross-examined by trial counsel, and during which examination trial counsel suggested certain remarks attributed to the appellant were a recent fabrication, even though L.C.’s earlier statement to police had referenced those remarks in a police report; and (ii) Constable Hogan, who was cross-examined by trial counsel about his ability to identify the driver of the truck driven to the vicinity of Dorothy’s body, even though the appellant had already admitted he was the driver. The appellant also questions counsel’s decision to ask Cst.

Hogan about whether a body had been found, when one had been found. [ 85 ] In respect of the decisions made by trial counsel, and referred to in the preceding two paragraphs, the appellant makes an argument similar to the one discussed in the

section above, claiming his trial counsel’s low-key approach represented a failure of professional judgment and amounted to incompetence. The appellant cites no authority in support of this claim and, as I have explained above, the Zamrykut case relied on for similar arguments does not assist him.

[86] The appellant further argues that when trial counsel cross-examined witnesses on items already on the record, it gave theimpression he had no legitimate defence, and also that the appellant was actually prevented from using certain defences. [87] It is my view that these alleged errors of trial counsel could not have risen to the level of undermining the appellant’s defencein the eyes of the jury. More to the point, the appellant has failed to demonstrate how—to use the phrase from G.D.B.—the “reliability ofthe trial’s result may have been compromised” (at para 28).

In my view, in light of the substantial amount of inculpatory evidence in therecord, and weighing that evidence against the possible implications of the proposed errors, the alleged failures and decisions of trialcounsel did not cause a miscarriage of justice. [88] In view of the foregoing, I am of the opinion that the appellant’s contention that he suffered a miscarriage of justice becauseof ineffective trial counsel must fail. The actions and inactions of trial counsel did not prejudice the appellant.

Following G.D.B., it istherefore not necessary or desirable to consider whether the performance of the trial counsel amounts to incompetence. There was nomiscarriage of justice. [89] I will now turn to the issues raised by the appellant concerning the Voir Dire Decision and the trial decision. B.

Did the trial judge err in allowing the October and November Messagesto be admitted into evidence and in how he instructed the jury as to how to handlethem? [90] The October and November Messages were admitted into evidence after a voir dire and were dealt with in a preliminaryruling of the trial judge dated April 16, 2014 [Voir Dire Decision]. He found the October Messages to be relevant to the state of themarriage between the appellant and Dorothy and relevant to whether the appellant had a motive to commit murder.

The NovemberMessages originated from Dorothy’s cellphone number after she had gone missing and were found by the trial judge to be relevant andmaterial to the central issue at trial—specifically, the identity of the murderer. [91] Whether a trial judge identifies the correct law and governing legal principles is a question of law to be assessed on thestandard of correctness.

If he or she did, the ultimate decision to admit the evidence—that is, the balancing of the probative value againstthe prejudicial effect—is to be assessed on a deferential standard (R v Jacobs, 2014 ABCA 172 at para 15, 312 CCC (3d) 45 [Jacobs]): [15] A trial judge’s decision to admit evidence may raise extricable questions of law for which the standard of review is correctness: R vSEV, 2009 ABCA 108 at para 3, 448 AR 35.

Balancing the probative value of expert evidence against the prejudicial effect that itsadmission might have involves, however, an exercise of discretion to which deference is owed in the absence of unreasonableness orpalpable and overriding error: R v Vuradin, 2011 ABCA 280 at para 9, 515 AR 25; The Honourable Roger P Kerans & Kim M Wiley,Standards of Review Employed by Appellate Courts, 2d ed., (Edmonton: Juriliber, 2006) at 134-5; R v B(CR), (SCC),[1990] 1 SCR 717 at 733-34, 55 CCC (3d) 1. [92] The appellant submits the trial judge erred in admitting the October Messages.

He says those messages, dated October 22,2011, and sent from Dorothy’s cellphone number and from the appellant’s cellphone number to W.L., are evidence of bad character andshould not have been admitted. Specifically, the appellant says the text messages (a) “portray [him] as an angry volatile person” likely tocommit a crime, (

b) indicate he has anger issues, and (

c) indicate he was more likely than an average person to do harm to Dorothy. Theappellant says the admission of the October Messages invited the jury to engage in propensity reasoning. He adds the probative value ofthe October Messages is outweighed by their prejudicial effect.

In the alternative, the appellant argues that if the October Messages wereto be admitted, the trial judge was required to provide the jury with instructions for dealing with them, which he did not do and thereforeerred. [93] As well, the appellant submits the trial judge erred in admitting the November Messages (those being messages sent fromDorothy’s cellphone number on November 15, 2011, to W.L. and to D.B.).

In keeping with his arguments respecting the OctoberMessages, the appellant says the November Messages constitute bad character evidence and makes particular note of the raciallyderogatory language used in them. He adds that the November Messages are highly prejudicial, and that their probative value isoutweighed by their prejudicial effect.

He further argues the trial judge erred by failing to recognize the November Messages werehearsay and therefore inadmissible, and makes the same alternative argument in respect of the November Messages, saying if themessages were to be admitted, the trial judge erred by failing to give the jury special instructions. [94] The Crown responds that the appellant did not object to the admissibility of the messages sent to W.L. from his owncellphone number. [95] In Hill, Tanovich and Strezos, eds, McWilliams’ Canadian Criminal Evidence, loose-leaf (Rel 3, 2018) 5th ed, vol 1 (Toronto:Thomson Reuters, 2017), the authors note “character evidence may take virtually any form and comprises prior acts, omissions, records,possessions, conduct, reputation in the community or opinion (lay or expert) that tells us how a person may conduct themselves in agiven situation or may shed light on their credibility” (at para 9:20.20, footnotes omitted). [96] Evidence of bad character may be understood as being virtually anything that tends to put someone’s character in a negativelight.

Justice Cory set out the governing principles with respect to bad character evidence in R v G.(S.G.), (SCC),[1997] 2 SCR 716 [G.(S.G.)]: [63] It is trite law that “character evidence which shows only that the accused is the type of person likely to have committed the offencein question is inadmissible” (emphasis in original): see for example Morris v. The Queen, (SCC), [1983] 2 S.C.R. 190, atpp. 201–2; R. v. B.(F.F.), (SCC), [1993] 1 S.C.R. 697, at p. 730.

However, there are three general exceptions underwhich evidence of bad character of the accused can be adduced: (1) where the evidence is relevant to an issue in the case: see, for example, Morris, supra, at p. 202; B.(F.F.), supra, at p. 731. See also R.

v. Lepage, (SCC), [1995] 1 S.C.R. 654, at pp. 672–74; R. v. Hinchey, (SCC), [1996] 3 S.C.R. 1128,at para. 135, per Cory J. (2) where the accused puts her character in issue: see, for example, R. v. McNamara (No. 1) (1981), (ON CA), 56C.C.C. (2d) 193 (Ont. C.A.), at p. 352, leave to appeal granted on other grounds (1981), (SCC), 56 C.C.C. (2d) 576(S.C.C.); (3) where the evidence is adduced incidentally to proper cross-examination of the accused on her credibility: see, for example, Lucas v.The Queen, (SCC), [1963] 1 C.C.C. 1 (S.C.C.); R. v. Chambers, (SCC), [1990] 2 S.C.R. 1293.

In my view, the evidence of bad character of the accused in the instant appeal was admissible as relevant to significant issues in the case,and it is therefore unnecessary to consider whether it might also have been properly admitted under the other two exceptions to theexclusionary rule. [64] Evidence which incidentally demonstrates bad character can also be directly relevant to a key element of the Crown’s theory of thecase, such as motive, opportunity or means: see R. v. Davison (1974), (ON CA), 20 C.C.C. (2d) 424 (Ont. C.A.);Hinchey, supra, at para. 135.

Evidence of motive, for example, is always relevant in that it makes it more likely that the accusedcommitted the crime, although it is not an essential element of criminal responsibility: Lewis v. The Queen, (SCC),[1979] 2 S.C.R. 821. [65] Evidence which is directly relevant to the Crown’s theory of the case is admissible even though it may also demonstrate the badcharacter of the accused, as long as its probative value outweighs its prejudicial effect: B.(F.F.), supra, at p. 731.

Even if evidence isadmissible under this exception, it is clear that it still cannot be used to determine guilt simply on the basis that the accused is the type ofperson to commit the crime: B.(F.F.), supra. The trial judge has a duty to charge the jury in this regard, and to warn them against theimproper use of the evidence. [97] In cases like the present one, where domestic homicide is involved, the probative value of bad character evidence may beespecially high.

In R v Moo, 2009 ONCA 645, 247 CCC (3d) 34 [Moo], leave to appeal refused, (SCC), Justice Wattexplained: [98] In prosecutions for domestic homicide, evidence is frequently admitted to elucidate the nature of the relationship between theaccused and the deceased. This evidence, which often discloses misconduct other than that charged, not only demonstrates the nature ofthe relationship between the parties, but also may afford evidence of motive and animus relevant to establish the identity of thedeceased’s killer and the state of mind with which the killing was done: R. v. Chapman (2006), 204 C.C.C. (3d) 449 (Ont.

C.A.), atpara. 27; R. v. Cudjoe, 2009 ONCA 543, at para. 64; R. v. Van Osselaer (2002), 2002 BCCA 464, 167 C.C.C. (3d) 225 (B.C. C.A.), atpara. 23, leave to appeal refused (2003), 313 N.R. 199 [note] (S.C.C.). [98] The October Messages used aggressive language and contained threats. One of these messages, sent from the appellant’scellphone number, identifies the sender as “Dot’s husband”. [99] As noted above, the appellant contends both the October and November Messages amounted to evidence of bad character inthat they: (

a) portrayed him as an angry, volatile person likely to commit a crime; (

b) indicated he has anger issues; and (

c) indicated hewas more likely than an average person to harm Dorothy. This, the appellant says, caused moral prejudice against him and invited thejury to engage in propensity reasoning. The appellant argues further that the probative value of the text messages was negligible becausethey were evidence only of Dorothy’s affairs, and that he knew about these affairs. 1.

The October Messages [100] Dealing first with the October Messages, the appellant’s position ignores the crucial importance of the text messages at trial: theOctober Messages and the November Messages, viewed together, supported an inference that the appellant was the author of both sets ofmessages. The November Messages indicated that he had Dorothy’s cellphone following her disappearance. Additionally, the OctoberMessages tended to show the appellant had a motive for murder. [101] It is clear that the October Messages have significant probative value.

They tended to prove motive on the part of the appellantand helped to establish the identity of the author of the November Messages. The messages are directly relevant to the Crown’s theory ofthe case. [102] In view of the highly probative nature of the October Messages, the prejudicial effect of their admittance would also have to behigh for them to be excluded. The cost of admitting them would have to outweigh their benefit: R v Mohan, (SCC),[1994] 2 SCR 9 at 20–21. [103] It is fair to say that the October Messages are somewhat prejudicial.

They are messages likely sent by the appellant after hediscovered Dorothy was having an affair and had chosen to lash out at the other man. The most ominous part of the messages is thesuggestion that the author would actively look for and do violence to the recipient. However, taken all together, it is obvious to me thatthe probative value of the October Messages outweighed any moral or reasoning prejudice they might have created.

Given thisconclusion, and considering the deferential standard of review, I cannot say that the trial judge erred in admitting the October Messages. [104] The next issue with respect to the October Messages is whether the trial judge erred in instructing the jury on how they mightbe used. In his factum, the appellant argues the trial judge “did not instruct the jury on the limits of their use of the October textmessages”. In the next breath though, the appellant concedes the trial judge did in fact so instruct the jury in his mid-trial instruction: 29.

The appellant acknowledges that the learned trial judge did instruct the jury on the proper use of threatening text messages in a mid-trial instruction on April 30, 2014. … The jury heard evidence for eleven days after this instruction … . They were not instructed on theuse of this evidence in the trial judge’s charge to the jury … .

[105] The trial judge instructed the jury on the use of bad character evidence following the testimony of D.B. (By way of reminder,D.B. was involved only in the November Messages.) The October messages involved W.L., who did not testify until late in the trial and,as the appellant points out, sometime after the trial judge gave his mid-trial instruction.

That notwithstanding, in R v James, 2013 BCCA11, 331 BCAC 292 (leave to appeal refused, (SCC)), the British Columbia Court of Appeal held a jury will beproperly instructed where, in all the circumstances, the correct treatment of bad character evidence was discussed, and the jury could beexpected to apply that instruction to similar evidence adduced at trial. See also R v Owen, 2015 ONCA 462 at paras 22–24, 336 OAC 95,and R v Thrasher, 2008 ONCA 777 at paras 9–11, 242 OAC 237. [106] In any event, it does not appear to me that any jury instruction was required in respect of the use of the October Messages.

InMoo, Watt J.A. said the following: [99] Evidence of extrinsic misconduct comes with baggage – moral prejudice (the potential stigma of “bad personhood”) and reasoningprejudice (including potential confusion and distraction of the jury from the actual crime charged): Handy [2002 SCC 56], at para. 100. [100] Where evidence of extrinsic misconduct is admitted, one antidote to ensure that prejudice does not substitute for proof are mid-trialand final cautions that educate jurors about the permitted and prohibited use of the evidence.

This general rule does not apply, however,where the extrinsic misconduct evidence is offered to demonstrate motive or animus towards the victim in a prosecution for unlawfulhomicide: R. v. Jackson (1980), (ON CA), 57 C.C.C. (2d) 154 (Ont. C.A.), at pp. 168-169; R. v. Merz (1999), (ON CA), 140 C.C.C. (3d) 259 (Ont. C.A.), at para. 59; R. v. Pasqualino (2008), 2008 ONCA 554, 233 C.C.C. (3d) 319(Ont.

C.A.), at paras. 65–68. (Emphasis added) [107] In R v Bhullar, 2011 BCCA 395, 280 CCC (3d) 527, the British Columbia Court of Appeal set out a number of examples ofsituations where bad character evidence was admitted to show motive, without the need for special jury instructions: [18] In the case before us, the appellant does not contend the evidence capable of showing bad character should have been excluded. Itwas relevant to the Crown’s theory of the case, and its prejudicial effect did not outweigh its probative value.

Nor does he contend thatthe jury was precluded from using the evidence to assess the credibility of the testimony given by the appellant. He says, however, that alimiting instruction ought to have been given, consistent with cases such as G.(S.G.) [ (SCC), [1997] 2 SCR 716] and R.v. B.(F.F.), (SCC), [1993] 1 S.C.R. 697. [19] The Crown cites R. v. Holtam, 2002 BCCA 339, 165 C.C.C.(3d) 502, R. v.

Dupras, 2003 BCCA 124, 173 C.C.C. (3d) 55, and R. v.Walizadah, 2007 ONCA 528, 223 C.C.C.(3d) 28, for the proposition that a limiting instruction on the use of bad character evidence isnot needed where the evidence in question goes to motive. In my view, the proposition established by those cases is not as broad as theCrown suggests. [20] In Holtam, the Crown led evidence showing that the accused had entered into an intense love affair shortly before his wife anddaughter were murdered. The Crown relied on the affair as the motive for the murder.

On appeal, the accused argued that there was adanger that the jury had used this as evidence of the accused’s bad character, and that a limiting instruction ought therefore to have beengiven. This Court disagreed, finding that a limiting instruction in these circumstances was unnecessary, and would have been potentiallyconfusing. [21] In Dupras, the accused was charged with the murder of his estranged wife and her boyfriend by running them down with his truck.Evidence was led that, some days before the deaths, the accused had had a heated telephone conversation with his wife.

Following thatconversation, two people heard the accused say that he was going to kill her. On appeal, the accused argued that the trial judge shouldhave instructed the jury that it could not use the evidence of those threats as showing that the accused had a general criminal propensity.This Court rejected that argument. [22] In Walizadah, the accused was tried for the murder of the husband of a woman with whom he was having an affair. At trial, therewas an issue with respect to the admissibility of intercepted conversations between the accused and his children.

The conversationsoccurred six months after the homicide, after the accused had left his wife and children and moved into an apartment. In the course of theconversations, the accused’s children begged him to return home, but he refused. The conversations were held by the trial judge to berelevant to show the depth of the accused’s passion for the victim’s wife. [23] The Ontario Court of Appeal upheld the trial judge’s decision to admit the evidence.

It also held that no limiting instruction wasnecessary, because the evidence was not evidence of disreputable conduct, and, in any event, was so closely linked to the issue of motiveas to make a limiting instruction unnecessary. [24] In all three cases, the alleged disreputable conduct – an extramarital affair in Holtam and Walizadah and the making of threatsagainst the victim’s life in Dupras – was so closely tied to motive that it would have been nonsensical for a judge to instruct a jury that itcould not use the evidence to show propensity to commit the crime in question.

The evidence went to the likelihood that the accusedcommitted the crime, not because it was general evidence of propensity, but because it demonstrated a specific motive for committingthe very crime with which the accused was charged. [108] As the October Messages were introduced to show motive, and given the whole of the circumstances here, no special juryinstruction was required. (See also: R v Skeete, 2017 ONCA 926 at paras 76–84, 357 CCC (3d) 159.) 2. The November Messages [109] Turning now to the November Messages, as observed above, the appellant makes two arguments.

First, he argues that they, likethe October Messages, were bad character evidence and should not have been admitted. Second, he argues those messages ought to havebeen excluded because they were hearsay.

[ 110 ] The November Messages, like their October counterparts, contain abusive and threatening language. The November Messages have a particularly high probative value because some of them were sent from Dorothy’s cellphone number after she had disappeared, strongly indicating the sender was the killer. The parallels between the content of the November Messages and the October Messages are also important because they support an inference that it was the appellant who sent the November Messages.

Further, the racially derogatory language contained in the November Messages is consistent with the racist attitudes attributed to the appellant throughout the trial. [ 111 ] On the other hand, their derogatory language makes these messages more morally prejudicial than the October Messages. Of course, they are only prejudicial to the appellant if he was the author, which he says he is not. [ 112 ] Following a similar analysis to that conducted with respect to the October Messages, it is clear the text messages were rightly admitted by the trial judge.

They were relevant to the issue of motive and their probative value outweighed their prejudicial effect. [ 113 ] For these reasons, it is my view that the trial judge made no error in law when he admitted the November Messages into evidence, as far as the bad character issue is concerned. [ 114 ] Turning to whether the November Messages can be characterized as hearsay, the appellant submits that, as hearsay, they are inadmissible and their admission into evidence by the trial judge was an error: see R v Khelawon , 2006 SCC 57 at para 34 , [2006] 2 SCR 787, and R v Nataucappo , 2015 SKCA 28 at para 30 , 322 CCC (3d) 69 [ Nataucappo ].

Such an error would weigh in favour of a new trial ( Nataucappo at paras 71–72 ). [ 115 ] The trial judge dealt with these messages, as well as the October Messages, in the Voir Dire Decision . The trial judge ruled all of the text messages were admissible, and specifically found that none of them qualified as hearsay: [25] The Crown seeks to introduce evidence at the trial of text messages sent from the cellphone of the accused to [W.L.], as well as text messages sent from the cellphone of the deceased to [W.L.] and [D.B.].

The text messages sent from the deceased’s phone were sent after the deceased had been reported missing by the accused. The text messages contain what can only be described as threats and were made to two men who allegedly had been acquaintances of the deceased.

The Crown’s theory is that it was the accused that sent the messages and that they are relevant and material because they provide reliable evidence to the trier of fact regarding: • the animus of the author towards the recipients, both of whom were lovers of the deceased in the months leading up to her disappearance; • the deteriorating marital relationship between the accused and the deceased; • the author’s knowledge of the deceased’s extramarital affairs; and • the author’s anger and hostility regarding the affairs, particularly as it might have related to a perceived pregnancy. … [30] During the voir dire the defence conceded that the text messages that came from the accused’s cellphone were admissible, but maintained that the text messages that were sent from the deceased’s phone after she had gone missing ought not be admitted because the evidence that the text messages were sent by the accused is only circumstantial, would constitute hearsay evidence (that would not fall into an exception to the hearsay rule) and would be highly prejudicial such that the prejudicial effects would exceed the probative value. … [33] Secondly, the evidence is not hearsay.

It is physical evidence of a fact, similar to that of a document. Again, who wrote the text, and what to make of it, is a matter of argument and ultimately up to the trier of fact to determine in accordance with the principles that apply to all criminal cases. (Emphasis added) [ 116 ] In R v Munroe , 2016 NSCA 16 , 371 NSR (2d) 1 [ Munroe ], the Nova Scotia Court of Appeal considered whether certain text messages were admissible evidence.

In its analysis, that court noted the hearsay and non-hearsay purposes of the evidence and found the evidence was admissible without reference to the hearsay rules because that evidence had value for supporting a number of important inferences and was not tendered as proof of its content. [ 117 ] The reasoning in Munroe is similar to the reasoning employed by the trial judge in the matter before the Court. In both instances, the triers of fact understood the text messages were a basis for inferring the sender’s identity, not proof of their content.

Following this reasoning, the trial judge committed no error in relation to the hearsay rule when he admitted the November Messages. [ 118 ] The trial judge identified the November Messages as potentially prejudicial in his mid-trial instruction and explained to the jury the uses to which the messages could be put. Those instructions were given after D.B. testified. He was one of the recipients of the November Messages. This was before W.L. gave his testimony about the November Messages that he had received. Therefore, specific instructions were given after testimony regarding the November Messages sent to D.B.

The jury would reasonably have seen those instructions as applying to W.L.’s evidence as well. In any event, as explained above in the analysis of the October Messages, I do not see this as a situation where special instructions were required. [ 119 ] In

summary, I am not persuaded by this ground of appeal. The October and November Messages were properly admitted into evidence and the trial judge did not err in his instructions concerning the Messages. C. In his charge, did the trial judge improperly instruct the jury?

1. Post-offence conduct and instruction [120] The appellant says the jury charge was faulty because it invited the jury to draw an inference of guilt based on post-offenceconduct. The effect of this, says the appellant, is that it placed too much weight on the post-offence conduct. The following post-offenceconduct was in issue at trial: (

i) the November Messages; (ii) the appellant did not immediately report his wife missing; (iii) the appellant told the police his wife took her purse, makeup bag, and bank cards with her; and (iv) the appellant drove out of town to the location where the body was later found. [121] The Supreme Court in R v White, 2011 SCC 13, [2011] 1 SCR 433 [White], explained the danger in connection with evidence ofpost-offence conduct: [23] That being said, though the use of such evidence has an extensive history in our criminal jurisprudence, it has also long beenrecognized that the introduction of post-offence conduct for the purpose of establishing the accused’s “consciousness of guilt” carrieswith it a substantial risk of jury error (Gudmondson v.

The King (1933), (SCC), 60 C.C.C. 332 (S.C.C.)). Jurors may betempted to “jump too quickly from evidence of post-offence conduct to an inference of guilt” (White (1998), [ (SCC),[1998] 2 SCR 72] at para. 57) without giving proper consideration to alternate explanations for the conduct in question.

White was recently affirmed in R v Calnen, 2019 SCC 6 at para 25, 430 DLR (4th) 471. [122] In the matter under appeal, the trial judge said the following in his charge to the jury concerning post-offence conduct: Evidence of what a person did or said after an offence was committed, may help you decide whether it was that person who committedthe offence. It may help, it may not.

What a person said or did after an offence was committed, may indicate that he acted or spoke in away, which according to human experience and logic, is consistent with the conduct of a person who committed the offences, andinconsistent with the conduct of a person who did not. On the other hand, there may be another explanation for what David Woods saidor did afterwards, something unconnected with participation in the offences charged. You’ve heard the evidence that after the offencescharged were committed, that Mr. Woods did not report his wife missing.

Told the police that his wife took her purse, make-up bag andcredit cards with her. Drove out to the Blackstrap Valley, as a result of a note left on his windshield. The Crown has a completelydifferent theory as to why this trip took place. They say it occurred because he was curious to see if the body had been discovered. You may find it helpful to approach this evidence of what David Woods is alleged to have said or done afterwards in two steps. The firststep requires you to decide whether David Woods actually did or said what is alleged to have been said or done after the offence wascommitted.

In most cases, this ought not be too difficult for you to determine, because Mr. Woods has formally admitted that he drove tothe Blackstrap Valley in early January of 2011. And you have video recordings and audio recordings of much of the other things that hesaid to the police. If you find that David Woods did not do or say what he is alleged to have done or said after the offence wascommitted, you must not consider this evidence in reaching or helping you reach your verdict.

On the other hand, if you find that DavidWoods actually did or said what he is alleged to have done or said, after the offence was committed, you must go on to consider nextwhether this was because David Woods was conscious of having committed the offence charged, or whether it was for some otherreason. If you find that David Woods actually did or said what is alleged to have done or said, after the offence was committed, you mustbe careful not to immediately conclude that he did or said so, because he was conscious of having committed the offence charged.

To decide the reason for what David Woods did or said afterwards, you should consider all of the evidence. Of particular importance isevidence that offers other explanations for his conduct or the statements. Did he make a mistake when speaking to the police aboutDorothy’s purse, make-up bag, credit cards? Was a note put on his window at the 8th Street Boston Pizza, even though he did not keepthat note, nor did he report it to the police?

You must not use this evidence about David Woods did or said afterwards, unless deciding orhelping you decide did David Woods commit this offence, unless you reject any other explanation for it. If you do not or cannot find thatDavid Woods did or said these things because he was conscious of having done what is alleged against him, you must not use thisevidence in deciding or helping you to decide that David Woods committed the offence charged.

On the other hand, if you find that whatDavid Woods did or said afterwards, was because he was conscious of having done what is alleged against him, you may consider thisevidence, together with all the evidence, in reaching your verdict. [123] As well, the trial judge instructed the jury that the October and November Messages were relevant to certain issues, includingthe question of who authored them, a motive for the crime, and the identity of the person who murdered Dorothy.

He also instructed thejury that they were not to use those messages as propensity evidence or to “conclude that just because an accused has engaged in priorbad behaviour or is of bad character that he is the kind of person who could have or would have committed the crime with which he isnow charged”. [124] It follows that, in my view, the appellant does not accurately characterize the instructions. The trial judge did advise the jury notto use the text messages for the purpose of establishing that the appellant was the kind of person who might commit murder.

Further, atthe conclusion of the trial, the trial judge stated that “the mere fact that somebody is angry, does not necessarily add up to the conclusionthat the husband murdered the wife”. [125] As to the remainder of the post-offence conduct, the appellant admitted he drove to the general location of where Dorothy’sbody was found. The fact that the appellant told the police Dorothy had taken her purse, bank cards, and makeup bag, and this wasproven to be untrue, are all probative of the charge.

I will deal with the trial judge’s further instructions on post-offence conduct in thenext section. [126] In reviewing the transcript as a whole, there was no error leading the jury to place undue weight on post-offence conduct.

2. Limiting instruction on the use of post-offence conduct relating to the issue of whether themurder was planned and deliberate [127] The appellant submits that, in the unique facts of this case, the trial judge should have instructed the jury that the evidence ofpost-offence conduct could not be used to determine if Dorothy’s murder was planned and deliberate. [128] The appellant says that the question of whether the murder was planned and deliberate was very much in issue at trial. The onlyevidence bearing on this question, contends the appellant, was the evidence of an unhappy marriage and Dr.

Ladham’s opinion thatDorothy was incapacitated prior to being strangled.

The appellant says the learned trial judge improperly instructed the jury that it coulduse all of the evidence to determine if the murder was planned and deliberate, and this instruction did not properly provide a limitinginstruction on the use of post-offence conduct to determine if the murder was planned and deliberate. [129] In the case of R v Robinson, 2017 ONCA 645, 352 CCC (3d) 503, the Court stated the following: [63] The trial judge did not expressly tell the jury that they could not use the appellant’s after-the-fact conduct as evidence of intentionunder s. 229(a), or as evidence of planning and deliberation.

It is not always necessary for a trial judge to tell a jury both the permissibleand impermissible uses of evidence. However, in this case, the after-the-fact conduct was a dominant feature of the evidence. It was thekind of evidence that, absent a proper instruction, could be used by a jury to infer guilt without distinguishing among the levels of guiltavailable on a proper application of the law to the evidence. An instruction explaining the prohibited uses of the after-the-fact conductevidence was required.

On cautionary instructions to the jury, see also R v Hall, 2010 ONCA 724 at paras 136–137, 263 CCC (3d) 5 (leave to appeal refused, (SCC)). [130] In cases where a caution is provided, jurors should be instructed as follows: (

i) to consider consciousness of guilt in deciding guilt or innocence; (ii) to consider possible innocent explanations for such conduct; and (iii) to reserve their final judgment about the meaning of the accused’s conduct until all the evidence has been considered in thenormal course of their deliberations. [131] In my view, the trial judge did exactly what was required of him. He instructed the jury that it could consider evidence of whatthe appellant said or did after Dorothy disappeared in determining guilt or innocence.

He then instructed the jurors to consider possibleinnocent explanations when they reviewed the evidence. Finally, he instructed the jurors to consider all of the evidence when deciding ifthe conduct in question proved the appellant was conscious of having committed the offense or whether it was for some other reason.

Heinstructed the jurors to base their verdict on a consideration of the evidence in its totality (repeated here for clarity): On the other hand, if you find that David Woods actually did or said what he is alleged to have done or said, after the offence wascommitted, you must go on to consider next whether this was because David Woods was conscious of having committed the offencecharged, or whether it was for some other reason.

If you find that David Woods actually did or said what is alleged to have done or said,after the offence was committed, you must be careful not to immediately conclude that he did or said so, because he was conscious ofhaving committed the offence charged. … Of particular importance is evidence that offers other explanations for his conduct or the statements. Did he make a mistake whenspeaking to the police about Dorothy’s purse, make-up bag, credit cards? Was a note put on his window at the 8th Street Boston Pizza,even though he did not keep that note, nor did he report it to the police?

You must not use this evidence about David Woods did or saidafterwards, unless deciding or helping you decide did David Woods commit this offence, unless you reject any other explanation for it. Ifyou do not or cannot find that David Woods did or said these things because he was conscious of having done what is alleged againsthim, you must not use this evidence in deciding or helping you to decide that David Woods committed the offence charged.

On the otherhand, if you find that what David Woods did or said afterwards, was because he was conscious of having done what is alleged againsthim, you may consider this evidence, together with all the evidence, in reaching your verdict. [132] I am not persuaded by this ground of appeal. When considered together with his instructions about the meaning of “planned anddeliberate” killing, the trial judge’s instructions on post-offence conduct were adequate. 3.

Instruction on whether there was forcible confinement distinct from the act of murder [133] As stated earlier, the Crown theorized that one route to first degree murder available to the jury was that the appellant hadmurdered Dorothy while she was confined, which amounts to first degree murder pursuant to s. 231(5) of the Criminal Code.

In essence,a person can be found guilty of murder in the first degree if the confinement occurs separate and distinct from the act of murder. [134] In R v Pritchard, 2008 SCC 59, [2008] 3 SCR 195 [Pritchard], the Supreme Court clarified when unlawful confinementelevates second degree murder to first degree murder: [27] Even a confinement which satisfies s. 279(2) will not trigger s. 231(5)(

e) if it is consumed in the very act of killing. In order totrigger s. 231(5)(e), the confinement and the murder must constitute distinct criminal acts: R. v. Kimberley (2001), (ON CA), 157 C.C.C. (3d) 129 (Ont. C.A.), per Doherty J.A., at para. 108. Thus, the issue under s. 231(5)(

e) is not whether there wasconfinement independent of the act of robbery but whether there was unlawful confinement distinct and independent from the act ofkilling. If, as counsel for the appellant aptly put it, “the murder and the confinement are coextensive, then you cannot convict of firstdegree” (transcript, at p. 22). His submission invoked Kimberley where it was said (at para. 108) that if “the act of confinement and theact of killing are one and the same” there is no basis on which the appellant could be convicted of first degree murder under s. 231(5)(e).

For example, an incompetent murderer could take a significant amount of time to kill the victim by strangulation, but the time would beinextricably tied up with the act of killing. However, where the jury is satisfied that there was confinement not limited to what was“integral to” the particular act of killing disclosed by the evidence, the Crown has established a distinct criminal act under s. 279(2). Ifthe jury is satisfied that the murder was committed in the course of that confinement such that the series of events may be characterizedas a “single transaction” the requirements of s. 231(5)(

e) are met. See R. v. Kirkness, (SCC), [1990] 3 S.C.R. 74, at p. 86. … [29] In R. v. Sandhu, 2005 CarswellOnt 8306 (S.C.J.), on the other hand, a number of accused individuals surrounded and killed thevictim in a sudden attack, lasting between 30 and 45 seconds. The accused brought a motion for a directed verdict of acquittal on thecharge of first degree murder by virtue of the unlawful confinement. The court agreed and granted the motion, holding that there was noevidence of two discrete acts, only a killing “carried out in a rapid, efficient and collaborative manner” (para. 21).

Although the accusedindividuals did confine the victim, they did so only as an incident of the attack which caused his death. The court’s analysis is consistentwith the rationale of s. 231(5) set out in Paré [ (SCC), [1987] 2 SCR 618] and Kimberley. If no extra domination isinvolved in the act of confinement, then it cannot be said that the accused confined the victim and then exploited that domination by anact of killing. Only one episode of domination existed, created by the act of killing, which at the same time confined the victim.

In such acase, the rationale of s. 231(5) is absent. (Italic emphasis in original; underline emphasis added) [135] The appellant submits that the trial judge erred in his instructions to the jury as he gave no instruction that the act of forcibleconfinement must be distinct from the act of murder. [136] However, the trial judge did exactly that. He clearly instructed that the element of forcible confinement must be proven beyonda reasonable doubt and that the appellant caused Dorothy’s death: Was David Woods’ murder of Dorothy Woods committed while committing orattempting

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