There was no evidence upon which the jury could accept
that the reason for the murder plot was because the appellant
had killed Mason. The probative value of the plot depends upon
the assumption that it relates to the murder of Mason.
Frailties of Huard’s evidence
 Huard was a Vetrovec witness, had a long criminal record
and suffered from schizophrenia and paranoia. He also heard
“voices”. Then there is the timing of the plot.
 Mason disappeared in 2006. The Crown’s position was
that the murder occurred on February 24, 2006. Mason’s body
was never found. Huard testified that the plot to kill Lusted
was hatched and aborted in the summer of 2008. The Crown
submits that Lusted’s release from prison in June 2008 was the
reason for the plot. However, Lusted had only been in jail for
18 months out of the 28 months between Mason’s disappearance and the plot to kill Lusted. Lusted did not discuss the
matter with the police until 2009. The appellant was arrested
in 2010. Huard spoke about the 2008 plot to the police in 2010,
after being promised immunity. These facts are difficult to
reconcile with the trial judge’s conclusion that the plot is part
of the continuing narrative.
 Since I have concluded that Huard’s evidence was not
probative, it is not necessary to consider the prejudicial effect.
Nonetheless, I do so to demonstrate the seriousness of the
admission of the evidence.
 Evidence that is otherwise admissible may be excluded
on the ground that its probative value is overborne by its
prejudicial effect. Watt J.A. said [David Watt, Manual of Crim-
inal Evidence (Toronto: Thomson Reuters Canada Ltd., 2013),
at pp. 45-46]:
“Prejudicial effect” does not refer to the probability of conviction in the event
the evidence is admitted. What is meant by “prejudice”, and what the
required balancing seeks to avoid, is improper jury use of the evidence.
In other words, it is not so much the result that is likely to follow upon
reception of the evidence, rather the manner of achieving it that the exclu-
sionary discretion seeks to avoid.
 Huard imported vast amounts of discreditable conduct by
the appellant into the evidence: home invasions, stealing vehicles,
chopping them apart and selling them, weapons, drugs and other
criminal activity. Significantly, the plot to kill Lusted was criminal
conduct which was a similar act to the crime charged.