Her Majesty the Queen v. Hall
[Indexed as: R. v. Hall]
2018 ONCA 185
Court of Appeal for Ontario, K.N. Feldman, Tulloch and Benotto JJ.A.
February 26, 2018
Criminal law — Evidence — After-the-fact conduct — Crown alleging
that accused killed M in L’s presence and that both men incinerated
M’s body — L key witness in accused’s trial for murdering M four years
after alleged offence — Vetrovec witness H testifying that accused plotted to kill L two years after M’s murder because L knew “things” that
could “put him away for long time” — Trial judge erring in admitting
H’s evidence on basis that it was powerful probative evidence of
accused’s consciousness of guilt — H’s evidence not probative as nothing in his testimony connected plot to kill L to M’s murder and
as jury was required to engage in circular reasoning.
The accused was convicted of the first degree murder of M. His co-accused, L,
plead guilty to accessory after the fact and became the chief Crown witness.
L testified that he and the accused abducted M in 2006 and drove him to a field
where the accused shot and killed him, and that he and the accused later incinerated the body at the accused’s farm. M’s body was never found. L, H and
accused had committed many criminal offences together over years, including
home invasions, weapons offences, robberies and drug deals. H, an unsavoury
Vetrovec witness with mental health problems, testified that the accused plotted
to kill L in 2008 because L “knew too much” and “knew something that could put
him away for a long time”. The trial judge ruled that H’s evidence was admissible, holding that it was powerful probative evidence of the accused’s consciousness of guilt and that its probative value outweighed its prejudicial effect. The
Held, the appeal should be allowed.
The trial judge erred in admitting H’s evidence. That evidence was only marginally relevant and was not probative. For the evidence of the plot to kill L to
have relevance, two assumptions would have to be made: that M had been murdered; and that the accused did it. The alleged plot to kill L was developed two
years after M’s disappearance. There was no triggering event linking the plan to
kill L to M’s murder, such as evidence that L had threatened to go to the police
about it. H’s evidence did not mention M’s murder nor L’s involvement in it.
The accused and L had committed many serious crimes together, and there was
evidence that the accused had other reasons to eliminate L. H said that he
understood that the accused believed that L posed a threat to his family and he
told H that, while he was in custody, L had gone to his home and scared his wife
and children. The jury was required to engage in circular reasoning, as the
probative value of the plot depended upon the assumption that it related to
M’s murder. Moreover, while the trial judge gave the jury the standard instructions relating to after the fact conduct, there was no instruction connecting the
law to the evidence, particularly with respect to the fact that H did not connect
the plot to M’s murder; the timing of the plot as opposed to the timing of M’s disappearance; the lack of triggering event for the plot; the frailties of H’s evidence
apart from the criminal conduct referred to in the Vetrovec warning; and the other
reasons the accused might have for wanting L dead. A new trial was ordered.