The Defence Toolkit – October 11, 2025: The Right to Full Cross-Examination

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After the Fact Conduct | Demeanour Evidence | Fundamental Concepts | Jury Charge - Relating Law to Evidence | The Right to Cross-Examination | Vetrovec Witnesses

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Posted On 11 October 2025

This week’s top three summaries: R v IMB, 2025 ONCA 678: #cross & #demeanour, R v Daignault, 2025 ABCA 328: #cross & Vetrovec, R v Penner, 2025 YKCA 14: 271 #relating to evidence

R. v. I.M.B., 2025 ONCA 678

[October 1, 2025] Reliance on Evidence when Curtailed Cross-Examination; Demeanour of the Accused [C.W. Hourigan, P.J. Monahan, and J. Dawe JJ.A.]

AUTHOR’S NOTE: Limits on Curtailing Cross-Examination and the Use of Demeanour in Assessing Credibility

This case is a strong reminder of the fundamental nature of cross-examination as part of the right to make full answer and defence under s.7 and s.11(d) of the Charter.

1. Curtailing Cross-Examination

In sexual offence trials, it is common for complainants to become emotional or require breaks to compose themselves. However, in this case, a break during cross-examination evolved into an application by the Crown—supported only by a police officer’s affidavit relaying hearsay from the complainant—that continuing cross-examination risked her pregnancy. The trial judge accepted this evidence and terminated the cross-examination.

The Court of Appeal held that this ruling deprived the accused of a fair trial. The decision rested on inadmissible hearsay and improperly accepted the truth of the complainant’s claim without medical or direct evidence. More importantly, it cut off the accused’s right to test the credibility and reliability of the central witness. The Court reaffirmed that cross-examination is an indispensable element of trial fairness and cannot be restricted on the basis of untested or speculative evidence.

2. Demeanour Evidence and Credibility

The appeal also addressed the trial judge’s reliance on the accused’s demeanour in disbelieving his testimony. While demeanour can be one factor in assessing credibility, it must be treated with extreme caution. The Court reiterated that:

Demeanour is inherently unreliable, particularly under the pressure and stress of criminal proceedings.
A trial judge should only rely on demeanour where there is a clear, objective, and articulated basis connecting observed behaviour to credibility.
Superficial observations—such as “unusual terminology” or asking for a question to be repeated—cannot reasonably sustain a finding of disbelief.

Where a trial judge acknowledges that an accused “testified well overall,” yet disbelieves the evidence based on subjective impressions of demeanour, the reasoning is not likely to withstand appellate scrutiny.

Takeaway

This decision reinforces two critical points for trial defence work:

Cross-examination cannot be curtailed without compelling, reliable, and properly admissible evidence justifying the restriction.
Demeanour-based findings must be anchored in logic and evidence, not speculation or instinct.

Together, these principles safeguard the integrity of the truth-seeking process in criminal trials.

A. INTRODUCTION

[1] The appellant, a Young Person, was found guilty of sexual assault, sexual touching, and invitation to sexual touching of his stepsister O.C. He was sentenced to eight months’ incarceration followed by probation.

[2] The appellant raises multiple grounds of appeal. However, it is only necessary to consider two of his submissions. The first submission is that the trial judge erred in granting the Crown’s application to discontinue the crossexamination of a witness, R.C., and later relying on R.C.’s evidence, which rendered his trial unfair. The second submission is that the trial judge erred in rejecting the appellant’s evidence because of his demeanour. At the conclusion of oral arguments, we allowed the appeal with reasons to follow. These are our reasons.

B. FACTS

[3]….Only counts 4, 5, and 6 concerning O.C. remained to be decided at the end of the trial. Those charges arose from allegations that when O.C. was in grades one through three, the appellant would put his penis in her anus and engage in other sexual touching after they would wrestle in the evenings.

[4] The trial began in January 2023. R.C. was the second complainant to testify. She completed testifying in chief and had completed one hour of crossexamination when court ended for the day. The next day, she told the Crown and the officer in charge that she had contemplated suicide the previous evening and that she had been physically ill and was concerned for the health of her unborn child. The officer in charge swore an affidavit on January 13, 2023, detailing these discussions. In the interim, the trial continued with the testimony of the third complainant.

[5] On March 9, 2023, the Crown brought an application to discontinue the cross-examination of R.C. The appellant opposed the application on the basis that there was an insufficient evidentiary basis to make the order and that he would be deprived of the opportunity to cross-examine R.C. about collusion among the complainants. The trial judge granted the Crown’s application. He found that R.C.’s claims (inability to keep food down, sleeplessness, concern for her pregnancy and mental wellbeing) were serious. He also accepted that she was pregnant and found there was a risk to her pregnancy if she continued to testify.

C. ANALYSIS

i. Cross-examination

[8] The right of an accused to cross-examine prosecution witnesses without significant and unwarranted constraint is an essential component of the constitutional right to make full answer and defence. It is fundamental to providing a fair trial to the accused: R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at paras. 41-44; R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 608; R. v. Osolinr, [1993] 4 S.C.R. 595, at p. 663.

[9] Notwithstanding the importance of this right, it is not limitless. Trial judges have discretion to decide whether the case against an accused may proceed following an incomplete cross-examination: R. v. Cameron (2006), 208 C.C.C. (3d) 481 (Ont. C.A.), at para. 22. The discretion should be exercised with a view to ensuring fairness to the accused, the Crown, and the pursuit of truth: Cameron, at para. 22, citing R. v. Hart, 1999 NSCA 45, 174 N.S.R. (2d) 165, leave to appeal refused, [2000] S.C.C.A. No. 109. These determinations will require courts to consider many elements, but the three broad factors that guide courts are: (1) the reasons for the witness’s unresponsiveness, (2) the impact of the witness’s unresponsiveness, and (3) possible ameliorative action: Hart, at paras. 95-112.[Emphasis by PJM]

[11] First, the trial judge erred in finding that R.C. was unable to continue testifying. His finding rested on a medical judgment he made without a sufficient evidentiary basis. Despite acknowledging that there was no medical evidence supporting R.C.’s claims, the trial judge found that there was a risk to her pregnancy. The evidence of these concerns came from dated hearsay, as it was only tendered through the affidavit of the officer in charge. The trial judge assumed the concerns continued from January 2023 into March 2023, when the application was decided, and merely directed the Crown to confirm that this was correct after he had made his ruling. This was not a sufficient evidentiary basis on which to make a finding that a complainant was medically unable to continue being crossexamined.[Emphasis by PJM]

[12] Second, and more importantly, the trial judge relied on R.C.’s testimony to bolster the Crown’s case in his analysis, despite the discontinued crossexamination. Specifically, he cited R.C.’s evidence respecting her instruction to O.C. not to tell a social worker about sexual abuse she had suffered. He found this corroborated O.C.’s testimony that this instruction from R.C. motivated her to be untruthful to the social worker.[Emphasis by PJM]

[13] In all the circumstances, we find the appellant was deprived of his right to a fair trial because the trial judge relied on the evidence of a witness whose crossexamination was improperly terminated.

ii. Demeanour

[14]….the trial judge found that there were two areas that undermined the appellant’s credibility as a witness.

[15] The trial judge’s first concern was that the appellant had previously admitted to a social worker that he had touched I.C.’s thigh but did not mention that he pulled her hand toward his groin. However, at trial, the appellant admitted pulling I.C.’s hand toward his groin. In other words, the trial judge was concerned that the appellant was more candid at trial than he had been during an investigation of the incident by a social worker. It is doubtful that an accused should be found to be less credible based on his increased candour at trial. Regardless, the trial judge did not place much emphasis on this evidence.

[16] The trial judge’s other concern with the appellant’s testimony, which he described as “[t]he more significant area” of concern, arose during the appellant’s cross-examination regarding whether he told his parents in 2020 that he would wrestle naked with O.C.:

Q: And that’s where you, you know, suggest to your parents that, well, we have — we would wrestle often?

A: A lot.

Q: And searching for things that might confuse — isn’t it true that you also went further and acknowledged that you and [O.C.] would wrestle naked sometimes?

A: Not naked.

Q: So just to be clear, you deny saying in that phone call that you would wrestle naked with [O.C.]?

A: Yes.

Q: And just to get — so I get it on point here, saying that what [the appellant’s mother M.S.] said yesterday was wrong, that she overheard you say that you would sometimes wrestle naked with [O.C.]?

A: I believe that’s true.

Q: You believe that’s wrong?

A: Sorry?

Q: Sorry, you believe that [M.S.] was wrong when she says…

A: Sorry, yes, I believe….

Q: Okay.

A: …she’s wrong.

[17] The trial judge quoted this passage and then stated:

What the transcript does not capture is the Young Person’s physical presentation during this part of his evidence. He was clearly agitated, his posture became rigid and he suddenly became sweaty. I have contrasted this demeanor evidence with his demeanor generally while testifying. I had not seen the Young Person agitated at any other part of the trial. Even when admitting things that were harmful to his character (for instance, testifying that he had withheld telling the social worker about trying to pull I.C.’s hand toward his penis to avoid more trouble), the Young Person maintained a calm, relaxed appearance that was consonant with his evidence.

[18] The trial judge cautioned himself about the dangers of relying too heavily on demeanour evidence. He then made the following findings:

When I consider the Young Person’s demeanor at this part along with his unusual phraseology (“Not naked.” and “I believe that’s true” — referring to his belief that M.S.’ evidence is wrong), and the need to have the question repeated for no apparent reason (“Sorry?”), I am convinced that the Young Person was completely untruthful during this testimony. This is not insignificant in terms of assessing the reliability of the Young Person’s evidence. It completely undermines the veracity of the Young Person’s denials of wrong-doing in respect of O.C.

[Italics in original; underlining added.]

As a result, as it concerns the material aspects of the allegations made by O.C., I completely reject the Young Person’s testimony as untruthful. I find that the Young Person attempted to mislead the court by his untruthful testimony in order to avoid liability for the alleged offences.

[19] Consideration of a witness’s demeanour by a trial judge is permissible but will become problematic when it is overemphasized or if undue weight is placed on it: R. v. J.M., 2023 ONCA 472, at para. 3. As the trial judge recognized, reliance on demeanour is an area fraught with problems because demeanour can be affected by many factors unrelated to the honesty of the witness: R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362, at para. 85. Crown counsel at trial candidly acknowledged in his closing submissions that the appellant “did testify well”, and did not suggest that there had been anything about his demeanour that would justify rejecting his evidence.[Emphasis by PJM]

[20] The trial judge attempted to bolster his observations of demeanour with reference to “unusual phraseology” and the fact that the appellant asked for a question to be repeated. But there was nothing unusual in the phrases “[n]ot naked” and “I believe that’s true.” The trial judge’s reliance on the appellant’s request to have a question repeated was similarly unwarranted. On any objective review of the relevant exchange, the Crown’s question was confusing. Indeed, the Crown implicitly acknowledged this by apologizing on the record about the question. The appellant did what witnesses are supposed to do when asked an unclear question: he sought clarification. We note as well that there was no attempt by the trial judge to link the request to have the question repeated to any change in the witness’s demeanour. For example, there was no finding that the request for the question to be repeated was coupled with demeanour evidence that suggested the appellant was avoiding answering the question.

[21] The trial judge made clear in his reasons that his observations of demeanour were the most significant basis for finding the appellant’s evidence was not true and that the appellant attempted to mislead the court. In our view, the trial judge erred in placing undue weight on the appellant’s demeanour to reject his evidence as untruthful.[Emphasis by PJM]

D. DISPOSITION

[22] For these reasons, we allow the appeal, quash the convictions on counts 5 and 6, lift the conditional stay of proceedings entered on count 4, and order a new trial on those counts.

R v Daignault, 2025 ABCA 328

[September 29, 2025] Corroboration of Vetrovec Witnesses, The Right to Meaningful Cross-Examination, and After the Fact Conduct as Evidence of a Particular Offence [Jolaine Antonio, Kevin Feehan, and April Grosse JJ.A.]

AUTHOR’S NOTE: Vetrovec Corroboration, Unresponsive Witnesses, and the Perils of After-the-Fact Conduct

This Alberta Court of Appeal decision is a valuable reminder of three interrelated trial issues: the limits of Vetrovec corroboration, the treatment of unresponsive witnesses, and the dangers of relying on after-the-fact conduct as evidence of guilt.

1. Vetrovec Witness Corroboration

Vetrovec witnesses are those recognized to be untrustworthy due to their criminal history or self-interest in the case (such as facing related charges). Their evidence cannot be safely relied upon unless there is independent confirmation that restores the trier of fact’s faith in their truthfulness.

The Alberta Court of Appeal clarified that while corroboration need not confirm the material aspects of their testimony, it must still restore confidence in the truthfulness of the relevant portions of their account—the parts implicating the accused. The practical effect of this formulation is that the corroboration must still touch, in some meaningful way, the material evidence on which guilt depends.

In this case, the trial judge relied on the consistency between two Vetrovec witnesses as corroboration. However, both had access to disclosure and were aware of each other’s police statements before testifying. The Court found this undermined the reliability of the supposed corroboration. Moreover, the trial judge’s reasons did not adequately explain how or why this evidence restored her faith in the material aspects of their testimony.

2. Unresponsive Witnesses and the Right to Cross-Examination

The decision also addresses the treatment of a Crown witness who essentially refused to participate in cross-examination—answering “sure” to every question and explaining that the word meant “whatever the questioner wanted it to mean.” The Court suggests that this was no different than refusing to answer questions at all.

Trial judges must explicitly engage with the implications of such unresponsiveness, applying a structured analysis that considers:

Reasons for unresponsiveness (if it is deliberate, it weighs heavily against the witness);
Impact on the fairness of the trial (particularly the importance of the evidence); and
Possible amelioration, including striking the evidence, issuing a limiting instruction, or declaring a mistrial.

The trial judge’s failure to engage in this analysis before proceeding was a significant error.

3. After-the-Fact Conduct

Finally, the Court emphasized the danger of relying on after-the-fact conduct as indicative of guilt. While post-offence behaviour may sometimes be relevant, it must be treated with extreme caution. The trial judge here relied on such conduct—finding it “completely out of proportion” to mere possession of stolen property—as evidence of a guilty conscience.

The problem is that after-the-fact conduct is ambiguous and susceptible to multiple reasonable interpretations. The Villaroman framework requires consideration of all reasonable alternatives, and courts must avoid drawing conclusive inferences from inherently equivocal behaviour. The trial judge’s reasoning here was precisely the kind of conclusive treatment appellate courts have repeatedly warned against.

4. Outcome

Given the cumulative errors—misapplied Vetrovec corroboration, failure to deal properly with an unresponsive witness, and improper reliance on after-the-fact conduct—the conviction was set aside and a new trial ordered.

I. Introduction

[1] The appellant, Robert Gordon Daignault, was convicted of manslaughter in relation to the death of Kasif Hirani. The appellant appeals that conviction, arguing the trial judge improperly relied on speculation and the testimony of two Vetrovec witnesses. One of the witnesses effectively refused to respond to cross-examination. Both witnesses gave evidence the trial judge acknowledged was unreliable. The appellant submits that neither witness’ account was meaningfully corroborated.

[2] We allow the appeal. The trial judge misapprehended and misapplied the principles from Vetrovec v The Queen, [1982] 1 SCR 811 [Vetrovec], erred in addressing the cross-examination issue, and drew inculpatory inferences without considering exculpatory ones. A new trial is ordered

B. Trial

[13] The appellant was tried by judge alone. Ms. Tinkler and Mr. Christal testified, providing the only direct evidence implicating the appellant in Mr. Hirani’s death. The appellant did not testify

[14] Mr. Christal testified that after he left the pub on the evening of December 28, Ms. Tinkler invited him to Ms. Ogle’s residence. He went there and found Ms. Tinkler in the back alley standing beside a vehicle. He got into the back of the vehicle. A man he did not know was seated in the back. The appellant was in the driver’s seat. Ms. Tinkler got into the front passenger seat, and the appellant drove the vehicle away. Mr. Christal testified he did not know what was going on until Ms. Tinkler and the appellant yelled at the man in the back seat, demanding his banking information. The man threatened to retaliate against Ms. Tinkler. The appellant then turned down a rural road, stopped, “ripped” the man out of the car and instructed Mr. Christal to also get out. Mr. Christal testified the appellant pulled out a knife and started repeatedly stabbing the man. The man was left laying in a ditch, not breathing, as Mr. Christal and the appellant got back into the vehicle and drove away

[15] Ms. Tinkler testified to two versions of events. Initially, she testified that when she and Mr. Hirani were at Ms. Ogle’s home, she got a text message from the appellant telling her to come outside. When she and Mr. Hirani went outside, the appellant and Mr. Christal were there. One of the men instructed them to get into Mr. Hirani’s car. They did, and the appellant drove all four of them away. During the drive, Mr. Hirani was forced to disclose his banking information. At some point, the appellant stopped the car, and Mr. Hirani and Mr. Christal got out. Ms. Tinkler was not sure if the appellant got out also. She testified she did not know what happened while they were stopped, saying she “didn’t look back” but she “possibly” heard screaming. Eventually, Mr. Christal got back into the car.

[16] When examination-in-chief continued after a weekend break, Ms. Tinkler’s evidence changed. She testified she was angry with Mr. Hirani and made plans to meet him and “teach him a lesson” by robbing him. She “probably” told both Mr. Christal and the appellant about her plans. When she and Mr. Hirani went outside at Ms. Ogle’s residence, Mr. Hirani was “robbed of his keys”. She and all three men got into his car, which Ms. Tinkler said was not part of the plan. After the appellant started driving, she testified the vehicle stopped a number of times. The first time, Mr. Hirani tried to escape, and Mr. Christal chased after him, bringing him back to the vehicle. The second time, Mr. Christal got out of the car and put Mr. Hirani in the trunk, “because he wouldn’t stop screaming”. The car stopped again when they could no longer hear Mr. Hirani in the trunk. Mr. Christal got out of the car. Ms. Tinkler could hear Mr. Hirani screaming again. She believed Mr. Christal was stabbing him. She thought the appellant also got out of the car for a couple of minutes “to help” Mr. Christal. Mr. Hirani did not return to the car.

[17] At the end of trial, the Crown amended its indictment to charge the appellant with manslaughter instead of murder. The Crown’s theory was that the appellant, Ms. Tinkler, and Mr. Christal set out to rob Mr. Hirani and Mr. Hirani was killed during the robbery.

C. Decision Below

[19] The trial judge found Mr. Christal and Ms. Tinkler were “inherently untrustworthy” witnesses: Trial Reasons at para 7.

[20] Mr. Christal had an apparent animus towards the appellant and was an accomplice with specific knowledge of the offence from which it would be easy to falsely implicate the appellant. He “told a litany of lies” in his statements to police, including regarding his whereabouts and involvement with Mr. Hirani’s death. His evidence at trial was inconsistent, with Mr. Christal shifting blame and downplaying his involvement. The trial judge wrote, “It is clear that I must approach Mr. Christal’s evidence with extreme caution”: Trial Reasons at paras 56-73.

[21] The trial judge found Ms. Tinkler’s evidence was “also laden with credibility concerns”. She had a lengthy criminal record that included crimes of dishonesty. She admitted to not liking the appellant and was also an accomplice with specific knowledge of the offence. Like Mr. Christal, Ms. Tinkler told “many lies” in her statements to police, including about whether she knew Mr. Hirani, her whereabouts on the night in question, and her involvement with Mr. Hirani’s death. Her testimony at Mr. Christal’s trial was different than her testimony before the trial judge. Even her testimony before the trial judge was inconsistent, with the “new version” of events emerging partway through examination-in-chief. Ms. Tinkler became angry and frustrated when confronted with some of her lies on cross-examination, later refusing to answer questions, and then simply answering “sure”. This conduct “rendered it impossible for the Defence to conduct a meaningful cross examination”. As a result, the trial judge decided to give no weight to the “new evidence” Ms. Tinkler gave after the weekend break. The trial judge wrote, “Like Mr. Christal’s, I must approach Ms. Tinkler’s evidence with extreme caution”. She had “little confidence” Ms. Tinkler was telling the truth: Trial Reasons at paras 74-96.

[22] In light of the nature of the direct evidence, the trial judge held that a “key issue” was to determine whether there was “other, independent, evidence, confirming the testimony of the Vetrovec witnesses”….

[23] The trial judge noted the testimony of Mr. Christal and Ms. Tinkler was consistent on certain points, including that the appellant was driving Mr. Hirani’s car when they left Ms. Ogle’s residence, was involved in the robbery, and continued to drive the car after Mr. Hirani was killed: Trial Reasons at para 97. She held that “[i]ndependent confirmatory evidence”, including video recordings, cell phone records, evidence from the scene, receipts, and other witness evidence, confirmed certain parts of the Vetrovec testimony unrelated to the appellant’s involvement: Trial Reasons at paras 99, 103, 106, 109, 118, 122, 126, 130.

[26] For her conclusion that the appellant was involved in executing the robbery, the trial judge found there was “sufficient independent evidence confirming” the evidence of Mr. Christal and Ms. Tinkler that the appellant was driving Mr. Hirani’s car throughout the period when Mr. Hirani was taken from Ms. Ogle’s residence to the remote area where he was killed. She found support in her inference that the appellant had been using one of Ms. Tinkler’s phones earlier in the evening, the fact that Ms. Tinkler ended up using that same phone at 4:00 AM, the “reasonable inference” that Ms. Tinkler and the appellant therefore were together during the intervening hours, the fact that the appellant was captured on video entering the driver’s side of Mr. Hirani’s vehicle at around 4:00 PM the day after Mr. Hirani was killed, and the lack of evidence suggesting anyone transferred the vehicle to the appellant after Mr. Hirani was killed. She held the only reasonable inference was that the appellant “took possession of that vehicle when Mr. Hirani was taken away from Ms. Ogle’s residence shortly after 1 a.m. on December 29” and remained in possession of it thereafter: Trial Reasons at paras 201-205.

[28] The trial judge went on to find the appellant guilty of manslaughter on two bases\

[29] First, the trial judge held leaving Mr. Hirani in a remote area, in the middle of winter, without his cell phone or bank cards, was an objectively dangerous act which the appellant knew or ought to have known subjected Mr. Hirani to danger of harm or injury: Trial Reasons at para 208.

[30] Second, the trial judge found the appellant “actively participated in the commission of this brutal murder” by, at the very least, holding “Mr. Hirani as he struggled against the prolonged attack, and then assist[ing] in discarding Mr. Hirani’s body in a ditch”. She came to this conclusion for a number of reasons. The significant injuries sustained by Mr. Hirani suggested there was a struggle, which meant it was reasonable to infer someone held Mr. Hirani to prevent his escape while someone else repeatedly stabbed him. The location of the blood on the roadway and the lack of evidence Mr. Hirani had been dragged meant it was reasonable to infer two people carried Mr. Hirani’s body across the road and placed it in the ditch. Testing revealed the presumptive presence of blood on both sides of the back seat of Mr. Hirani’s vehicle, consistent with two people transferring blood there. The trial judge also found the extent of the appellant’s post offence conduct in fleeing from police on December 30 and January 3 was “completely out of proportion to a level of culpability that one would expect from merely being in possession of a stolen vehicle and using stolen credit cards”. Instead, it was “consistent with that of a person guilty of something far more serious”: Trial Reasons at paras 210-230.

IV. Analysis

[32] The evidence before the trial judge fell into two categories: direct evidence from the two Vetrovec witnesses, and circumstantial evidence consisting primarily of the cell phone records, the video recordings, and evidence of the appellant’s actions after the offence was committed. The trial judge committed errors of law with respect to both categories of evidence. Those errors are fatal to the conviction. A new trial is ordered.

A. Direct evidence – Treatment of Vetrovec evidence

[33] There is no dispute that Mr. Christal and Ms. Tinkler were untrustworthy witnesses. Each had been convicted of manslaughter as accomplices to the death of Mr. Hirani and each had a history of repeatedly lying to police about their involvement. A cautious approach to their evidence was required, according to the principles set out in Vetrovec.

[34] A trier of fact can rely on the testimony of a Vetrovec witness if she finds their testimony is corroborated in ways that restore her trust in the witness: Vetrovec at 826-8. The necessary degree of corroboration is that which is “capable of restoring the trier’s faith in the relevant aspects of the witness’ account” [emphasis original]: R v Kehler, 2004 SCC 11 at para 12 [Kehler]; R v Bonnick, 2004 ABCA 133 at para 9. The trier of fact is entitled to believe the evidence of the disreputable witness, even on disputed facts that are not otherwise confirmed, if she is satisfied the witness is being truthful in that regard based on confirmation of other aspects of his evidence: Kehler at paras 22, 29.[Emphasis by PJM]

[35] In R v Khela, 2009 SCC 4 at para 46 [Khela], the Supreme Court emphasized, “the absence or presence of confirmatory evidence plays a key role in determining whether it is safe to rely on the testimony of an impugned witness.” It explained that Vetrovec “was not meant to imply that any and all evidence is capable of confirming the testimony of a potentially untrustworthy witness” (para 32). The trier of fact “should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused” (para 37). When “looked at in the context of the case as a whole, the items of confirmatory evidence should give comfort to the jury that the witness can be trusted in his or her assertion that the accused is the person who committed the offence” (para 42). The confirmatory evidence needs to “relate to an important and relevant aspect of the impugned testimony” (para) 52.[Emphasis by PJM]

[36] In R v Chau, 2010 ABCA 86 at para 28, this Court summarized the principles from Khela by saying:

…evidence capable of being confirmatory must deal with a relevant issue and must be capable of giving the trier of fact comfort that the impugned witness was telling the truth in regard to the disputed issue or issues in the case. The Court did not say that only evidence bearing directly on the disputed issue was capable of being confirmatory. All evidence called to prove an essential element of the offences charged is relevant and material, although some of it may not be disputed.

[37] As further addressed in R v Mela, 2021 ABCA 38 at para 37 [Mela], the confirmatory evidence must “be capable of restoring faith in the credibility of [the] witness on material facts even if the confirmatory evidence does not itself have to directly confirm those material facts”.[Emphasis by PJM]

[39] Her reasons do not indicate that she considered whether, or found that, her faith in the credibility of Mr. Christal or Ms. Tinkler on material facts was restored. To the contrary, she noted the parade of lies and inconsistencies in their evidence and concluded she must approach their evidence with extreme caution: Trial Reasons at paras 58-89, 96.

[40]…. There is no sense from the trial judge’s reasons that the points of confirmation she identified did any work in restoring her faith in Mr. Christal or Ms. Tinkler’s evidence about the appellant’s involvement. Elsewhere in her reasons, the trial judge noted details of the Vetrovec witnesses’ narratives that were contradicted by independent evidence: see, e.g., Trial Reasons at paras 71, 73, 196, 198. The trial judge rejected those details but did not address how or whether the points of contradiction affected her faith in the credibility of the Vetrovec witnesses on the appellant’s involvement or any other topic. Given the Vetrovec context, it was an error for the trial judge to accept corroborated points as true and accurate, but to fail to assess or to determine whether the combination of corroboration and contradiction could overcome the inherent untrustworthiness of the testimony on the core factual issue of the appellant’s involvement.

[41] This problem came to the fore when the trial judge used the two witnesses’ accounts to corroborate each other. She found “overlap” between their accounts on some important points: that the appellant “was driving Mr. Hirani’s car when they left Ms. Ogle’s residence”, “was involved in the robbery of Mr. Hirani”, and “continued to drive Mr. Hirani’s car after Mr. Hirani was killed and left on the side of the road”: Trial Reasons at para 97. Her analysis of the credibility of the overlapping points was the following: “There is no evidence to suggest Mr. Christal and Ms. Tinkler colluded in the aspects of their respective evidence that corroborate the other”: Trial Reasons at para 98. It is true there was no evidence of an active conspiracy between the two witnesses to align their evidence, but this observation is not fully responsive to the concerns inherent in using Vetrovec witnesses for mutual confirmation.[Emphasis by PJM]

[42]…. However, where the evidence of one Vetrovec witness is tainted because he had knowledge of the other witness’ evidence in advance, that taint is an important factor to consider when assessing whether the evidence can play any role in restoring the trier of fact’s faith in the veracity of the other witness’ evidence: Spence at paras 33, 35, 36, 47, 48.

[43] Here, it was in evidence that both witnesses were convicted in relation to the death of Mr. Hirani. It may be presumed that both witnesses received disclosure, such that each had access to the other’s statements, the entire contents of which were not in evidence. Ms. Tinkler testified at Mr. Christal’s trial; at minimum he was aware of that version of her narrative. The trial judge failed to consider the potential that each witness’ testimony was tainted in the way described in Spence and instead drew comfort from the absence of evidence of active collusion. In so doing, she erred in law.

B. Direct evidence – Remedy for lack of meaningful cross-examinationv

[44] The trial judge found that, during cross-examination, Ms. Tinkler “became noticeably angry and frustrated when confronted with some of the lies that she told police in her earlier statements” and she later “refused to answer any questions”. After speaking with her lawyer, and under the threat of being held in contempt, her participation in the cross-examination “mostly consisted of shrugging and answering ‘sure’ to most questions put to her”. When asked what “sure” meant, Ms. Tinkler answered, “whatever you want it to mean”. The trial judge held, “Ms. Tinkler’s refusal to answer questions, and her general non-responsiveness during cross examination, rendered it impossible for the Defence to conduct a meaningful cross examination”: Trial Reasons at paras 90-92.[Emphasis by PJM]

[45] The trial judge recognized the appellant’s fair trial rights were engaged and decided the appropriate remedy was to give no weight to certain aspects of Ms. Tinkler’s evidence….

[47] Where there has been incomplete cross-examination of a Crown witness, there is no dispositive test for determining whether an accused has been deprived of the right to make full answer and defence or whether the trial has become unfair. A trial judge must exercise discretion as to whether the trial may proceed or whether some other remedial action should be taken – including whether to exclude the witness’ evidence in chief – taking into account a number of factors grouped under three main headings (Duong at paras 23-36, citing R v Hart, 1999 NSCA 45, [1999] NSJ No 60 (QL) at paras 94-112 [Hart]; see also R v Goodstoney, 2007 ABCA 88 at para 93; R v JS, 2014 ONCA 541 at para 7; R v TH, 2017 ONCA 485 at para 37; R v Durocher, 2022 NWTCA 1 at paras 21, 22, 25-33 [Durocher]):

a) Reason for the unresponsiveness: The trial judge is required to consider the reason for the lack of response. If the Crown is responsible for the witness’s unresponsiveness or if the unresponsiveness can be attributed to the witness, that is a factor that weighs against admitting the evidence. On the other hand, if the lack of response to cross-examination is due to illness, age, disability, or to the conduct of the defence, and the other factors are satisfied, there is a tendency to admit the evidence.

b) Impact of the unresponsiveness: The central considerations for the trial judge under this heading are the importance of the evidence to the case and whether there is a satisfactory basis, notwithstanding the unresponsiveness, upon which the trier of fact can evaluate the evidence. The more important the evidence to the prosecution’s case, the more reluctant the trial judge should be to allow it to be given without full cross-examination.

c) Possibilities of ameliorative action: Before concluding that the trial has become unfair or whether there has been a denial of the right to full answer and defence, the trial judge should consider whether the limitation on cross-examination can be remedied or at least ameliorated. Consideration may be given to the utility of an instruction to the jury, striking the witness’s evidence or, if necessary, declaring a mistrial and proceeding afresh without the witness.[Emphasis by PJM]

48] Despite having been provided with the Hart and Durocher decisions, the trial judge did not advert to them or indicate whether or how any of the above considerations factored into her determination of the appropriate remedy. The trial judge observed that because there was no meaningful cross-examination, there was no way for the appellant to test Ms. Tinkler’s “newest version of events”. However, the same prejudice also existed with respect to Ms. Tinkler’s first version of events.[Emphasis by PJM]

[49]….This implies the trial judge may have given weight to Ms. Tinkler’s first testimonial version. But that version was equally untested by cross-examination.

[50] The trial judge erred in law in her approach to remedying the lack of a meaningful crossexamination.

C. Circumstantial evidence

[51] Given the inherent frailty of the direct evidence offered by Mr. Christal and Ms. Tinkler, the circumstantial evidence took on particular significance in this case. Aware of the problems with the direct evidence, the trial judge drew heavily on the circumstantial evidence for making factual findings. Though she cited the applicable law, she erred in applying it.

[53] Where proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, the trier of fact should exercise caution not to fill in any “blanks” in the Crown’s evidence by too quickly overlooking reasonable alternative inferences. A common way of expressing this caution is to instruct the trier of fact that “an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits”: Villaroman at para 30.

[55] First, at paragraph 200, the trial judge concluded that the appellant, Mr. Christal and Ms. Tinkler “were discussing their plan to convene at Ms. Ogle’s home, and to rob Mr. Hirani, while Ms. Tinkler and Mr. Christal were still at the [pub]” and that “they all came together at Ms. Ogle’s home to carry out that plan”. She based this conclusion on the “phone communications, the movement of the phones, and the events that followed”.

[56] The “phone communications” evidence showed the times of incoming and outgoing messages and the associated phone numbers. The cell tower evidence provided a general idea of the locations of the phones. The cell phone evidence contains no record of the contents of any of these communications. While the evidence can support an inference that the three individuals communicated during this period, it alone cannot support an inference about the contents of those communications….

[57] To infer the contents of the communications, the trial judge seems to have relied, at least in part, on “the events that followed”. We are troubled by the implication that the trial judge used the fact Mr. Hirani was robbed to ground a conclusion that the appellant had planned to rob him….

[58] Even if the fact of the subsequent robbery combined with the cell phone-related evidence could support an inference that the group, including the appellant, were communicating about a plan to rob Mr. Hirani, that would hardly be the only reasonable inference. The trial judge did not address the alternate inferences that the communications were entirely unrelated to the robbery, and that the robbery was not planned, or not planned by the appellant.

[65] The trial judge concluded, without analysis, that the appellant’s post-offence conduct was “completely out of proportion to a level of culpability that one would expect from merely being in possession of a stolen vehicle and using stolen credit cards. Instead, Mr. Daignault’s conduct is consistent with that of a person guilty of something far more serious.” Here, the post-offence conduct evidence was used as circumstantial evidence suggesting consciousness of guilt. Volumes have been written on the dangers associated with reasoning from conduct to consciousness of guilt, to guilt, to guilt of a more serious offence rather than a less serious one: see, e.g., R v Arcangioli, [1994] 1 SCR 129; R v White, [1998] 2 SCR 72; R v White</em,>, 2011 SCC 13; R v Calnen, 2019 SCC 6 [Calnen]; R v Downey, 2021 ABCA 142.[Emphasis by PJM]

[66] There is no prohibition on this chain of reasoning, but to answer concerns about ambiguous inferences and the potential for error, jurors “must be told to take into account alternative explanations for the accused’s behaviour. In this way, jurors are instructed to avoid a mistaken leap from such evidence to a conclusion of guilt when the conduct may be motivated by and attributable to panic, embarrassment, fear of a false accusation, or some other innocent explanation”: Calnen at para 117 per Martin J (dissenting in part, but not on this point). These concerns apply equally to judge alone trials: R v Tubic, 2024 ONCA 833 at para 65.[Emphasis by PJM]

[67] Here, the trial judge overtly used post-offence conduct evidence to distinguish between degrees of culpability – its most fraught use. As noted, she also used his conduct after 4:00 PM to place him at the wheel before 4:00 AM. Given the trial time occupied by this evidence and the weight placed on it in the trial judge’s reasons, conclusory treatment was inadequate to ensure reasoning dangers were avoided.

[68] In short, at various points in the trial judge’s reasons, reasonable alternative explanations should have been considered but were not. The trial judge committed errors of law in handling the circumstantial evidence.

V. Conclusion

78] This was a difficult trial, with problematic evidence. The reasons indicate the trial judge misapprehended and misapplied Vetrovec; erred in remedying Ms. Tinkler’s refusal to participate meaningfully in cross-examination; and drew inculpatory inferences without considering exculpatory alternatives. These errors require a remedy.

R. v. Penner, 2025 YKCA 14

[September 29, 2025] Jury Instructions Must Relate the Law to the Evidence at Trial [Reasons by DeWitt-Van Oosten J.A., with Grauer and Donegan JJ.A. concurring]

AUTHOR’S NOTE: Failure to Relate Evidence to Law on Planning and Deliberation

For every offence and variation before the court, a trial judge must connect the relevant evidence to the applicable legal framework in the jury charge. In this case, while the trial judge properly related the evidence to the law for all other counts (including second-degree murder), they failed to do so for first-degree murder through planning and deliberation.

Providing the correct legal test is not enough — jurors must be instructed how the evidence might bear on each essential element, including the specific acts or circumstances that could support (or undermine) findings of planning and deliberation. Without that evidentiary linkage, the instruction is legally deficient and risks a miscarriage of justice.

Introduction

[1] In September 2019, a jury found Edward James Penner (the appellant) guilty of first degree murder in the shooting death of Adam Cormack. Mr. Cormack died from a single gunshot wound to the head.

[2] The offence occurred outside of Whitehorse in June 2017. At trial, there were three main issues for the jury to decide: the identity of the shooter; whether the Crown proved the intent for murder; and whether the murder was planned and deliberate.

[5] I would allow the appeal from conviction and order a new trial. The judge erred in law in his final instructions by failing to relate the evidence at trial to the essential elements of planning and deliberation. The prejudice flowing from that error was then compounded by a problematic response to the jury’s questions about planning and deliberation and a second failure to relate the evidence.

Factual Background

[8] Mr. Cormack’s body was found on June 28, 2017, near a gravel pit sometimes used as an informal shooting range. He was fully dressed and had a bullet wound to his head.

[9] The body was discovered by a civilian who then called 911. This witness (Jonathan Olsen) testified that while driving on the road leading to the gravel pit, he saw a stopped vehicle. There was a man standing at the back of the car and the trunk was open. Someone was lying on the ground behind the car (Mr. Cormack). The driver of that vehicle got back in and took off.

[10] The police eventually located the driver (Cyril Golar). Unfortunately, he passed away before trial. A statement he provided to the police was admitted into evidence under the principled exception to the rule against hearsay. After an admissibility voir dire, the judge found that the statement met the test for threshold reliability (both procedurally and substantively). Mr. Golar’s statement did not implicate the appellant in the shooting. However, it did assist in establishing the likely date of Mr. Cormack’s death.

[11] In his statement, Mr. Golar said he was in the area collecting abandoned items and saw the body. Initially, he thought it was a mannequin. The body was “lifeless” and there was a “dark spot on the head”. He did not touch Mr. Cormack’s body because he did not want to “muck things up”. He told police he left the scene shortly after seeing Mr. Olsen’s vehicle drive up. He denied having anything to do with Mr. Cormack’s death. He said he had been in the same area around 6:00 pm the day before and did not see a body.

[12] A Crown witness (Clarence Haryett) testified that he drove the appellant, Mr. Cormack, and another individual to a location outside of Whitehorse. It was nighttime. The appellant and Mr. Cormack got out of the vehicle and walked up a road or trail out of sight. Mr. Haryett heard a gunshot. The appellant returned alone, carrying a black “rifle-size” gun. He was in a rush. He told Mr. Haryett they had to leave and admitted to shooting Mr. Cormack.

[13] In direct examination, Mr. Haryett was asked whether there was conversation in the vehicle about what was going to happen when the group got outside of Whitehorse. He said the plan was “… just to go smoke a joint”. He was asked if people were angry in the vehicle or harsh words were exchanged. He said no:

“[e]verything was normal, like, friendly”. In cross-examination, Mr. Haryett repeated that the group just “went for a ride … to go and smoke a joint somewhere around the highway”. He acknowledged the place they drove to was known as a “casual shooting range”.

[14] Mr. Cormack was shot once through the head. The bullet entered the right side of his head and exited the neck, showing a downward trajectory. There were no other signs of injury or trauma to his body.

[15] An expert forensic witness testified that the bullet was likely shot from within three feet of Mr. Cormack. Neither the bullet nor any cartridge remained in Mr. Cormack’s body. No murder weapon was found; however, a green-tipped bullet and a cartridge were recovered proximate to Mr. Cormack’s body and were consistent with having been fired from an AR-15 style gun.

[16] Multiple photographs and/or Facebook posts were admitted into evidence showing the appellant with what appeared to be an automatic rifle (AR-15 style) and green-tipped bullets prior to the date of the murder. Facebook messages between the appellant and other individuals were included, depicting the appellant’s involvement in drug dealing. These messages included an exchange dated June 25, 2017 (two or three days before the murder), that accompanied an image of the appellant holding a gun and describing it as a “[f]ull auto AR15 …”. In the June 25 exchange, he said: “[y]eh bro well go shoot sum shit dog” followed by “[h]uman huntin”.

[20] Two Pepsi cans were recovered approximately 80 metres from Mr. Cormack’s body. One of those cans contained the appellant’s fingerprints and DNA.

[21] In addition to Mr. Haryett, other Crown witnesses testified that the appellant told them he shot Mr. Cormack or said things from which his identity as the shooter could be inferred.

[22] One Crown witness (Juanita Johnson) said the appellant described Mr. Cormack as lying face down naked with a bullet in his head. Mr. Cormack was not naked when his body was discovered.

[23] Another witness (Alain Bernier) said that in the days before Mr. Cormack’s death, the appellant was in Whitehorse and told him Mr. Cormack had stolen a gun from someone and sold it. He said Mr. Cormack “was going to deal with some consequences” because of those actions and the consequences would be delivered by the appellant. Mr. Bernier testified that one or two days before the murder, he saw the appellant with an AR-15—a “very intimidating piece of machinery … an assault rifle … about two and a half feet long”. Mr. Bernier was shown one or more photographs of the appellant with a gun. He identified the gun as the AR-15 he saw in the appellant’s possession.

[24] Mr. Bernier said the appellant admitted to shooting Mr. Cormack. Among other things, Mr. Bernier overheard the appellant telling someone else that “[t]hey went out to shoot some guns, and just went out to a back road to share a bottle of booze and shoot some guns”. They were “passing the bottle back and forth, taking drinks”. The appellant shot Mr. Cormack “in the neck, shot him in the head, and he went down to the ground and [he] kicked him in the head”.

[25] In cross-examination, Mr. Bernier admitted to having told the police the appellant said he “blew [Mr. Cormack’s] head off” and shot him in the head and face more than once. He also told the police the appellant said: “We went out to the bush … to shoot some guns. I just looked over at him and fucking shot him”. Multiple shots to the head were inconsistent with the forensic evidence about the state of Mr. Cormack’s body when located….

Jury Charge

[26] The judge left three possible verdicts with the jury: (1) not guilty of any offence; (2) not guilty of first degree murder but guilty of second degree murder (a lesser and included offence); or (3) guilty of first degree murder.

[27]….At trial, the appellant acknowledged there was no air of reality to manslaughter….

[31] The judge instructed the jury on what it could do with evidence that reflected badly on the appellant’s character, such as the Facebook material. In this instruction, the judge warned the jury three times against using evidence of bad character to engage in propensity reasoning:

[32] As noted, some witnesses testified the appellant spoke to them about the shooting. The judge highlighted these conversations in his charge:

[109] In this case, there is no direct evidence from anyone who actually saw [the appellant] shoot Mr. Cormack. You do have evidence from Mr. Clarence Haryett that he drove [the appellant], Mr. Cormack and Bubbles out to the area where Mr. Cormack’s body was ultimately discovered, that [the appellant] and Mr. Cormack walked down the trail, he heard a shot, [the appellant] alone returned to the car carrying a rifle size gun, and that [the appellant] said he had shot Mr. Cormack. There is also evidence from Alain Bernier who testified that he heard [the appellant] say that he had shot Mr. Cormack on a back road after they had been driven out there by Mr. Haryett and Bubbles. And there is some evidence from Juanita Johnson who testified that [the appellant] threatened her saying that she would end up like Adam and when she asked him what he had done to Adam he responded that Adam was lying face down, naked on a dirt road with a bullet in his head.

[Emphasis added.]

[34] The judge provided the jury with an overall review of the evidence. This included the evidence of Alain Bernier, who said the appellant told him he shot Mr. Cormack. The judge reminded the jury of Mr. Bernier’s “[extensive] crossexamin[ation]” and the fact that his credibility was at issue:

[149] … You will recall that Mr. Bernier was extensively cross-examined by defence counsel and challenged on his evidence. Mr. Bernier admitted on cross-examination that he had given three versions of what he said [the appellant] had told him: that he had shot him in the head, that he had shot him in the head multiple times and that he had kicked Mr. Cormack when he was down. Mr. Bernier also admitted that he was consuming drugs at this time.

[36] The judge instructed the jury on the essential elements of first degree murder. He told the jurors that to find the appellant guilty of the charged offence, they had to be satisfied beyond a reasonable doubt that: a) he was the shooter; b) the shooting was unlawful; c) the shooting caused Mr. Cormack’s death; d) when he shot Mr. Cormack, the appellant had the intent for murder; and e) the murder was both planned and deliberate.

[37] After identifying these elements, the judge went through them individually. For all but planning and deliberation, he highlighted material parts of the evidence the jury should consider in deciding whether the Crown proved each element beyond a reasonable doubt.[Emphasis by PJM]

[42] Also specific to intent, the judge drew the jury’s attention to the evidence of the expert forensic witness who opined the gun would have been two to three feet away from Mr. Cormack when fired….

[43] After addressing the Crown’s burden to prove intent, the judge turned to the last two elements of first degree murder: planning and deliberation. He explained the meaning of these terms:

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

[130] It is the murder itself that must be both planned and deliberate, not something else that [the appellant] did.

[131] The words “planned” and “deliberate” do not mean the same thing.

[132] “Planned” means a calculated scheme or design that has been carefully thought out, the nature and consequences of which have been considered and weighed.

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

[134] “Deliberate” means “considered, not impulsive”, “slow in deciding”.

[135] It is for you to say whether the murder of Mr. Cormack was both planned and deliberate. To decide this issue, you must consider all of the evidence and anything said or done in the circumstances.

[45] Unlike his approach to the other elements of the charged offence, the judge did not refer the jury to any evidence he considered germane to planning and deliberation.[Emphasis by PJM]

Questions From the Jury

[49] After the judge delivered his final instructions, the jury returned with two questions, both of which related to planning and deliberation:

Does ‘weighing the consequences’ mean considering the outcome (i.e. death of another person) or possible punishment, or both?

Could you please provide an example?

Could you please elaborate on ‘deliberate’? Please provide an example.

[50] The judge answered the questions this way:

I take it from the questions that you are relating it to that portion of my charge dealing with, “Was [the appellant’s] murder of Mr. Cormack both planned and deliberate?” That’s the area that you’re interested in.

You’re all nodding vigorously.

What I’m going to do is re-read those few paragraphs and then give you the response to your question so that everything is taken together.

Starting at paragraph 128:

With respect to your note — can I have the note back, please?

I’m going to answer the questions in reverse order.

Could you please elaborate on ‘deliberate’? Please provide an example. (as read)

Deliberate means considered, not impulsive, carefully thought out, not hasty or rash. A deliberate act is one that you have taken time to weigh the advantages and disadvantages of before you do it.

You’ve asked me to provide an example, and here’s one.

Suppose someone insults you in a bar and you react immediately, impulsively by punching him. Compare that to a situation where someone insults you in a bar and your response is to challenge him to come outside the park — into the parking lot where then you immediately punch him.

The first example would not be a deliberate act. It was impulsive. The second example was a deliberate act. You have taken some time to consider your action. It was not impulsive.

Does that assist? You’re nodding in the affirmativeDoes that assist? You’re nodding in the affirmative.

The second — or actually, your first question, which I’m answering second, is weighing the consequences. You have asked about the meaning of the phrase ‘weighing the consequences’.

Weighing the consequences means that the consequences of one’s actions have been thought over, considered and sized up prior to acting. In the case of murder, the consequences would include that by one’s actions you are taking a human life, that you might be caught and that you might be punished for your actions. You do not have to know or consider what your punishment might be.

You’ve asked for an example, and I will give you one.

Remember, this is weighing the consequences.

You are terminally ill and in great pain. You have a pill which, if you take it, will end your life. The decision is yours. You must weigh the consequences of taking the pill. If you take it, your pain will be over, as will your life. If you don’t take it, your life will go on for some period, but so will your pain. So you weigh the consequences as to whether you take the pill or not.

Does that help? Everybody’s nodding vigorously.

All right. Thank you, then. I invite you to return to your room to consider the case.

[51] After receiving these answers, the jury continued to deliberate. It had no further questions for the judge and returned a verdict of guilty for first degree murder.

Discussion

[58] The Alberta Court of Appeal recently considered the legal test for a “planned” murder in R. v. Underwood, 2024 ABCA 267, aff’d 2025 SCC 14:

[63] The essential question posed by section 231(2) is whether the murder was planned and deliberate. To answer that question, all evidence of planning and deliberation leading up to the murder must be examined. Of course, advance planning and deliberation is essential … The timing of the formation of the plan relative to the murder can be relevant, but the law has not established any minimum temporal cut-off. Planning and deliberation can be brief … “The important element … so far as time is concerned, is the time involved in developing the plan, not the time between the development of the plan and the doing of the act” …

[66] The rationale behind section 231(2) is that “there is an added moral culpability to a murder that is planned and deliberate which justifies a harsher sentence”. To constitute first degree murder, the planning and deliberation must relate to “the intention to take a human life”. The added culpability is found in “the planning and deliberation with relation to the taking of a human life” … It is the process of planning to take a life that attracts enhanced culpability for first degree murder.

[68] It is the objective of the planning and deliberation, rather than the exact performance of details of the original plan, that must be examined. “It is, for example, untenable to find that if a person plans to kill another with a gun, but finds that the gun malfunctions and consequently strangles his victim, the killing is not planned and deliberate” …

[69] While the jurisprudence and standard jury instruction models explain a plan as a “design” or “scheme”, we are aware of no authority holding that a plan to kill must, as a matter of law, include finalized details as to the method of killing – in the trial judge’s words, the “how, when or where”. A plan need not be complicated; it may be very simple … The existence of a finalized plan or scheme may be valuable evidence of the process of planning or scheming, but it is not the only way to establish the accused planned to take a life.

[Italics in the original; internal references omitted.]

[59] As to the meaning of “deliberate”, the Supreme Court of Canada accepted the following definition of the term as a “classic instruction” in R. v. Nygaard, [1989] 2 S.C.R. 1074 at 1084, 1989 CanLII 6:

As far as the word “deliberate” … the Code means that it should also carry its natural meaning of “considered,” “not impulsive,” “slow in deciding,” “cautious,” implying that the accused must take time to weigh the advantages and disadvantages of his intended action.

[60] In R. v. McColeman (1991), 5 B.C.A.C. 128 at para. 52, 1991 CanLII 338, the Court of Appeal for British Columbia approved of this instruction:

The word deliberate, on the other hand, means well laid or considered, not impulsive, carefully thought out, not rash or hasty. From that definition you will see that the word deliberate connotes a studied decision to kill reached after a reflection for an appropriate time, a time sufficient to eliminate a sudden decision produced by impulse, passion, or emotion. The time need not be long, what is required must obviously [depend] upon all the circumstances. But before convicting of first degree murder, you must be satisfied beyond a reasonable doubt that the killing was done after careful thought, and not on the spur of the moment, suddenly or impulsively, under the influence of some sudden emotion or passion …

[Italics in the original, underlining added.]

[61] The appellant does not take issue with the instructions provided on the meaning of planned and deliberate. The legal concepts addressed in Underwood, Nygaard, and McColeman were adequately conveyed to the jury. However, he says the judge erred in law by not relating the evidence to those concepts.[Emphasis by PJM]

[62] In support of this alleged error, the appellant points to R. v. Seymour, 1999 BCCA 87 at paras. 7–9, a case in which the British Columbia Court of Appeal overturned a jury verdict for first degree murder because the judge failed to highlight all evidence germane to planning and deliberation and, in their closing submissions, the Crown and defence counsel did not fill that gap. See also R. v. Newton, 2017 ONCA 496 at paras. 9–25 and R. v. Frisbeen (1989), 48 C.C.C. (3d) 386 at 427–430, 1989 CanLII 2849 (B.C.C.A.), leave to appeal to S.C.C. ref’d, [1989] S.C.C.A. No. 232.

Legal principles

[64] In R. v. Daley, 2007 SCC 53 at para. 29, the Supreme Court of Canada held that jury instructions should:

a) instruct on the relevant legal issues, including the charges faced by the accused;

b) explain the theories of each side;

c) review the salient facts that support the theories and case of each side;

d) review the evidence relating to the law;

e) inform the jurors they are the masters of the facts and that it is for them to make the factual determinations;

f) instruct about the burden of proof and presumption of innocence;

g) identify the possible verdicts open to the jury; and

h) make clear the requirement of unanimity for reaching a verdict.

[Citing B. Q. H. Der, in The Jury — A Handbook of Law and Procedure (loose-leaf), at p. 14.1].[Emphasis by PJM]

[66] There is no mandated formula or structure to follow when crafting jury instructions. “The particular words used, or the sequence followed, is a matter within [the judge’s] discretion … and will depend on the particular circumstances of the case”: Daley at para. 30. Further, “long and detailed instructions” can be “more confusing than helpful”. As such, judges are encouraged to simplify their charges to make them “more accessible to the jury”: R. v. Ménard, [1998] 2 S.C.R. 109 at para. 27, 1998 CanLII 790; Jacquard at para. 13. They have considerable latitude in doing this, including in the manner and extent to which they review the evidence and relate that evidence to the live issues at trial.

Application of principles

[69] In the context of this case, the appellant has persuaded me the judge erred in not relating the evidence to the elements of planning and deliberation, even though much of that evidence was also relevant to the issue of intent and canvassed elsewhere in the charge.

[70] Commendably, the judge kept his final instructions relatively brief, simple, and to the point. The parties agree the judge adequately explained the meaning of planning and deliberation. However, he did not direct the jury’s attention to evidence that was germane to deciding whether those elements had been proved beyond a reasonable doubt. He did not single out evidence that uniquely supported (or potentially undercut) findings of planning and deliberation. He did not refer the jury to evidence already reviewed in relation to another element of the offence (such as intent), indicate that it also had the capacity to support (or potentially undercut) findings of planning and deliberation, and explain how. In contrast to the approach taken to other essential elements of the charged offence, the judge simply said: “To decide this issue, you must consider all of the evidence and anything said or done in the circumstances”. That is, of course, correct. The jury was obliged to consider the whole of the evidence. However, in the circumstances of this case, I am of the view the judge was required to do more than remind the jury it had to consider all the evidence before finding the appellant guilty.

[71]…. To the extent the judge did substantively address this evidence, it was either in relation to proof of intent or as part of his overall review of the record.

[73]…. I agree with Justice Doherty in R. v. Maciel that where the difference between first and second degree murder is a live issue at trial, it is “essential that the trial judge draw the jury’s attention to the evidence that could assist them in distinguishing” between the offences: 2007 ONCA 196 at para. 96, leave to appeal to the S.C.C. ref’d, [2007] S.C.C.A. No. 258, 2007 CanLII 37213, emphasis added; see also R. v. McPherson, 2014 ONCA 223 at para 34. This is the case even when doing so means there will be repetition in the charge: The Queen v. Mitchell, [1964] S.C.R. 471 at 475, 1964 CanLII 42.

[74] Second, deciding whether the Crown has proved planning and deliberation requires that a jury consider the entirety of the evidence, including the accused’s actions, statements, and their “capacity and ability to plan and deliberate”: Mitchell at 479. However, that consideration must be “aided by [a judge’s] instruction as to that evidence which is indicative of planning and deliberation and that [evidence], including circumstances and conditions affecting the capacity and ability to plan and deliberate, which indicates the contrary”: Mitchell at 479, emphasis added. See also R. v. Stiers, 2010 ONCA 382 at para. 73.

[77] For example, the judge himself noted during the trial that the Facebook message about “Human huntin” (relied upon by the Crown), could be interpreted as something that was “clearly meant in jest” (emphasis added). Mr. Haryett testified that the reason for driving along a back road in the middle of the night with Mr. Cormack was to go for a ride and smoke a joint (arguably inconsistent with a plan to kill). Mr. Bernier said the appellant told him the group travelled to the remote area to shoot guns (again arguably inconsistent with a plan to kill), and there was evidence the area was used as a casual shooting range. Mr. Bernier gave different versions of how the appellant described the shooting, including a version that allowed for the possibility of an intentional but spontaneous shot occurring while the two men were drinking near one another and passing a bottle back and forth. Ms. Johnson testified that in late June 2017, she saw the appellant and Mr. Cormack playing with a “little machine gun”. Mr. Cormack appeared happy and was laughing. This evidence could support a finding of lack of animus towards Mr. Cormack, contrary to the Crown’s theory.

[81] The judge told the jury there “was no evidence that Mr. Cormack owed any money to [the appellant] or that he had stolen any property belonging to [the appellant]”. He reminded the jurors of Ms. Johnson’s evidence of the two men playing with a “little machine gun” and Mr. Cormack laughing.

[82] However, these cautions, evidentiary references, and the judge’s identification of frailties, occurred during his instruction on proof of intent or as part of his general overview of the evidence. The judge did not direct the jury to assess this evidence, to weigh it, and importantly, to ask whether it raised a reasonable doubt specific to planning or deliberation, which requires a different assessment than does the element of intent. In my view, this was an error.

[89] The judge’s summary of the parties’ theories also did not fill the gap. He laid out the Crown’s suggested pathway to first degree murder and highlighted the evidence it relied upon to get there. He reiterated the defence position that the circumstantial evidence was “severely compromised by issues of both credibility and reliability”. However, nowhere in this summary did the judge identify the evidence germane to an assessment of planning and deliberation, and importantly, provide guidance on how to assess that evidence in deciding these elements of the offence, as distinct from the element of intent.

[90] Having reviewed the final instructions as a whole and in the context of the record, I have concluded there is a reasonable potential the judge’s failure to relate the evidence to planning and deliberation impacted the jury’s characterization of the murder as first degree and amounts to reversible non-direction. The Crown has taken the position that if we find error, we should apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code. Because of the conclusion I have reached on the next ground of appeal, I would not do so.

Answers to jury questions

Standard of review

[93] The standard of review governing this type of an error was recently affirmed in R. v. Crossley, 2025 BCCA 224:

[28] To obtain a new trial based on an error in jury instructions, an appellant must persuade this Court that the instructions did not properly equip the jurors to decide the case according to the law and the evidence. In assessing whether that burden has been met, we are obliged to consider the impugned parts of the instructions in the context of the trial as a whole. Moreover, jury instructions are not measured against a standard of perfection. Consequently, one ambiguous or problematic statement will not warrant appellate interference if the charge as a whole properly equipped the jury to decide the case: Abdullahi at paras. 35–37, 41–42; R. v. P.A., 2024 BCCA 93 at paras. 20–23.

[30] … It is well-established that a response to a question from the jury must be answered “clearly, correctly and comprehensively”, even where the original instruction was free of error: R. v. S. (W.D.), [1994] 3 S.C.R. 521 at 530, 1994 CanLII 76. However, once again, in assessing the impact of an impugned answer, what was said by the judge must be considered in the context of the trial as a whole.

[Emphasis added.]

Analysis

[100] I consider the way the judge answered the jury’s questions to be problematic and, importantly, to have exacerbated the prejudice that flowed from his failure to relate the evidence to planning and deliberation in his final instructions. The combined effect rules out the availability of the curative proviso as it cannot reasonably be described as harmless or negligible.

[101] In my view, the judge’s response to the jury’s questions was prejudicial for at least two reasons. First, I agree with the appellant that the example used to support the meaning of “deliberate” allowed for the possibility of an “immediate” (and thereby impulsive) punch to be equated with a deliberated act. Second, and more critically in the context of this case, the jury’s questions revealed that it was having trouble understanding and applying the legal concepts of planning and deliberation to the evidence. That struggle may well have arisen from the fact that the final instructions did not assist the jury in understanding what evidence was germane to planning and deliberation and what it had to look for in deciding whether the Crown met its burden of proof on those elements of the offence, as opposed to the element of intent. Rather than use the jurors’ questions as an opportunity to bring them back to the evidence and explain how they should assess proof of planning and deliberation in that context, the judge directed them to hypothetical factual scenarios.

[102] Specific to the first of these issues, the Crown had to prove beyond a reasonable doubt that Mr. Cormack’s killing was a deliberated act, not steps taken before then. In the example of deliberation provided to the jury, the judge did not make it clear that inflicting physical force on the victim in the parking lot was the action that was considered, thought out, and weighed by the perpetrator while still in the bar, as opposed to getting the victim outside for the purpose of confrontation. For ease of reference, I will repeat the example here:

Suppose someone insults you in a bar and you react immediately, impulsively by punching him. Compare that to a situation where someone insults you in a bar and your response is to challenge him to come outside the park – into the parking lot where then you immediately punch him.

The first example would not be a deliberate act. It was impulsive. The second example was a deliberate act. You have taken some time to consider your action. It was not impulsive.[Emphasis by PJM]

[Emphasis added.]

[103] The appellant says this example did not rule out the reasonable possibility that the punch in the parking lot was delivered suddenly and without forethought. Had the judge said: “your response is to challenge him to meet you in the parking lot so you can punch him out once you are both there, and that’s what happens”, the same concern might not arise. The example would have included advance consideration of an unlawful act. Instead, the example chosen by the judge left the door open to the concept of deliberation attaching solely to the “response [of challenging the victim] to come outside … into the parking lot”, and the unlawful act of punching occurring impulsively and on the spur of the moment once there.[Emphasis by PJM]

[105] More importantly, in my view, rather than have the jury work its way through planning and deliberation with reference to two hypothetical factual scenarios that were unconnected to the case, the judge should have directed the jury’s attention to the evidence the Crown relied upon to prove planning and deliberation and relate that evidence to the legal tests the jury was bound to apply….

In the result, the curative proviso is not available

[107] As noted, the Crown asks that we treat any errors found in the case as harmless or negligible and apply the curative proviso. As explained in R. v. Samaniego, 2022 SCC 9:

[65] The curative proviso set out in s. 686(1)(b)(iii) of the Criminal Code allows a court of appeal to dismiss an appeal from conviction where “no substantial wrong or miscarriage of justice has occurred”. The Crown may rely on the curative proviso where the error is harmless or trivial or where the evidence is so overwhelming that a conviction was inevitable (R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 53) …

[Emphasis added.]

An error is harmless or trivial when there is no reasonable possibility the verdict would have been different had it not been made: Samaniego at para. 65, citing R. v. R.V., 2019 SCC 41 at para. 85; R. v. Khan, 2001 SCC 86 at para. 28.

[108] I cannot say with confidence this test has been met. As emphasized, planning and deliberation is what distinguished first degree murder from second degree murder. It was a live issue at trial. In deciding whether the Crown proved a planned and deliberate murder, it was critical the jury be adequately equipped to assess and weigh the evidence germane to those elements of the charged offence. That did not occur, even after the jury posed questions that revealed it was struggling with its understanding and application of the concepts….

[110] ….In my view, given the nature of the errors in this case and their centrality, the failure to object carries minimal significance. Consequently, I am satisfied the curative proviso is not available.

[111] Given this conclusion, it is not necessary to assess the merits of the other errors of law alleged specific to the final instructions.

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Pawel is a partner at Sitar & Milczarek. When he’s not litigating he writes the Defence Toolkit blog.

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