back of the appellant’s truck. Ms. Werendowicz then went on her
way, presumably headed for home. The defence argued that
Ms. Werendowicz must have been attacked, sexually assaulted
and murdered by an unknown assailant a very short time after
she had consensual sexual intercourse with the appellant,
a complete stranger.
[ 13] The defence also led evidence pointing to a person named
Brian Miller as the potential perpetrator of the homicide. Mr.
Miller, a sexual predator, lived in Ms. Werendowicz’s apartment
building. There was other evidence potentially connecting him to
the homicide. I need not detail that evidence. The trial judge gave
the jury a “third party suspect” instruction. There is no objection
to that part of the charge.
[ 14] The defence also challenged the voice identification
evidence. Nine witnesses testified that the voice on the 911 call
was not the appellant. Two witnesses identified the caller as
The Grounds of Appeal
[ 15] Most of the grounds of appeal arise out of the trial judge’s
instructions to the jury. In oral argument, counsel focused on the
instructions relating to the evidence tracing the 911 call. In these
reasons, I will also focus on the grounds of appeal arising out of
those instructions. I will refer briefly to the other grounds of
[ 16] Before addressing the specific arguments raised in respect
of the instructions on the tracing evidence, I will briefly reiterate
the approach that appeal courts take in assessing the adequacy of
[ 17] Appellate review of the adequacy of a jury instruction
requires a functional assessment. The court asks whether the
charge, read as a whole in the context of the specific case, properly
equipped the jury to decide the case based on the application of the
applicable legal principles to the evidence: see R. v. Calnen, 
S.C.J. No. 6, 2019 SCC 6, at paras. 5-9.
[ 18] The context of the case includes the evidence, the positions
of the parties, the closing arguments, the submissions of counsel
in advance of the charge and any objections taken to the charge.
In this case, counsel made detailed submissions in response to a
draft charge prepared by the trial judge. The trial judge made
modifications to the charge in response to those comments. The
trial judge’s modifications included the insertion of certain
instructions that tracked very closely a draft prepared by defence