want Lusted dead. For example, there was the fear that Lusted
would harm the appellant’s family. These facts bring this situation outside the reasoning in White.
 More importantly, to accept the Crown’s submission
would be to force the jury to engage in circular reasoning.
 I recognize that the argument that circular reasoning
is improper in connection with after the fact conduct has been
rejected by the Supreme Court: see White, at p. 100 S.C.R. However, the circumstances here are different. This is not a case
where the appellant is asking for a separate reasonable doubt
analysis on circumstantial evidence.
 The issue here is the assumptions the jury would have to
make in order to draw inferences from the evidence. First, the
jury would have to accept that Mason had been murdered; second, that the appellant did it; and third, that the appellant was
referring to the murder when he said that Lusted knew “things”.
It is this last assumption that is the most problematic since
there was no evidence from which that inference could be drawn.
Huard did not testify about the murder of Mason or about the
appellant’s involvement in it.
 One would have to assume that the reason the plot to
kill Lusted was hatched was because the appellant had killed
Mason. There is no link between the plot to kill Lusted and the
killing of Mason unless the jury makes the unsupported
assumption that the appellant wanted Lusted dead because he
was a witness to the murder of Mason. With no evidentiary link
between the plot to kill Lusted and the murder of Mason — the
inference is only available if the jury first accepts Lusted’s evidence and finds that the appellant killed Mason. One would
have to draw the inference that the appellant hatched the plot
because he killed Mason and then use that same plot to conclude
that he did kill Mason. Hence the circular reasoning.
 The probative analysis here is similar to that in R. v. Portillo,  O.J. No. 3030, 176 C.C.C. (3d) 467 (C.A.). That case
involved circumstantial evidence presented by the Crown to
prove that Portillo had participated in a murder. An expert compared impressions taken of the treads of running shoes found
near Portillo’s home with impressions of the footprints found at
the scene. The Crown argued that it was open to the jury to find
that the partial footprint at the scene of the murder was Portillo’s, and that inference provided cogent evidence of Portillo’s
involvement in the killing.