At trial, the defence also tried to lead evidence pointing to
Ken Robertson and Geoff Harper as possible perpetrators of the
murder. Mr. Robertson, who was married, was having an affair
with Mrs. Short at the time of her death. They communicated on
a frequent basis. There was evidence that Mrs. Short sometimes
invited Mr. Robertson to her home when she knew the appellant
was going to be out. The day before her murder, Mrs. Short
had proposed that she and Mr. Robertson meet up on the night
of her death.
 There was also evidence that Mrs. Short and Mr. Robertson had discussed having anal intercourse. Forensic evidence
offered some support for the defence position that Mr. Robertson
and Mrs. Short may have had anal sex shortly before her death.
 Mr. Harper, a repeat offender with a history of violence,
lived a relatively short distance from the Shorts’ home. His prior
convictions included a conviction for gas theft. The defence also
relied on an anonymous Crime Stoppers tip from June 30, 2009,
identifying Harper as the perpetrator of the murder.
 The “third party suspect” evidence involving Mr. Robertson and Mr. Harper had been elicited at the first trial without
objection from the Crown. The Crown objected to the admissibility of the evidence on the second trial. The trial judge excluded
The Grounds of Appeal
A: Counsel’s application to be removed from the record
 Trial counsel had represented the appellant at his first
trial. He continued to represent the appellant in the pre-trial
motions leading up to the second trial. According to trial counsel,
despite assurances from the appellant, he was not paid for the
first trial or for the proceedings leading up to the second trial.
About six weeks before the second trial was to commence, trial
counsel brought an application to be removed from the record.
 Trial counsel’s assistant, a licensed paralegal, filed a brief
affidavit on the application. In the affidavit, she indicated that
trial counsel had not been paid and that it may be necessary for
him to sue the appellant for payment. She also indicated:
The relationship between the client and counsel has broken down. [Trial
counsel] cannot ethically represent Mr. Short.
Counsel took immediate steps following such a loss of confidence in the relationship to prepare and file the Notice of Application.