R. v. Merz

R. v. Merz Collection Decisions of the Court of Appeal Date 1999-11-17 Docket numbers C21665 Judges Doherty, David H.; Rosenberg, Marc; Feldman, Kathryn N. Subject Criminal Decision Content DATE: 19991117 DOCKET: C21665 COURT OF APPEAL FOR ONTARIO DOHERTY, ROSENBERG and FELDMAN JJ.A. BETWEEN: ) ) Gregory Lafontaine HER MAJESTY THE QUEEN ) for the appellant ) Respondent ) ) Kenneth L. Campbell and - and - ) Alexander Alvaro ) for the respondent HELMUTH JOHANNES MERZ ) ) Appellant ) ) Heard: October 28-29, 1999 ) On appeal from the judgment of the Honourable Mr. Justice Glithero dated April 10, 1995. DOHERTY J.A.: I [1] The appellant was convicted of the first degree murder of Brenda Murray. He appeals. [2] In his oral submissions, counsel limited the appeal to three grounds: did the trial judge err in refusing to permit the appellant to challenge for cause based on pre-trial publicity? did the trial judge err in admitting out-of-court statements made by the deceased? did the trial judge err in failing to caution the jury against the improper use of the evidence of threats made by the appellant against the deceased? [3] I would reject the first and third arguments made by the appellant. Although I agree with the appellant’s contention that the deceased’s out-of-court statements were inadmissible, I would apply the curative proviso and dismiss the appeal. II [4] The appellant and Ms. Murray had been in a common law relationship for about 12 years before they separated in January 1993. They had two children, John (aged 10) and Megan (aged 8). After the separation, which was at Ms. Murray’s instigation, the relationship between the appellant and Ms. Murray became very acrimonious. A bitter custody dispute developed. [5] The appellant was awarded interim custody of the two children in January 1993. Ms. Murray retained counsel to move to vary that order. Her initial efforts to do so failed, however, the court did appoint an independent lawyer for the children. In February 1993, the appellant caused Ms. Murray to be charged with threatening her son John. During her trial, Ms. Murray gave evidence that the appellant had threatened her on January 21, 1993 and again on February 5, 1993. This testimony was eventually admitted on the appellant’s trial. The bitter custody dispute was ongoing when Ms. Murray was killed on April 7, 1993. [6] On the evening of April 7, 1993, the appellant and his son from a previous marriage, Troy (aged 16), went to Ms. Murray’s residence. The appellant asked her to go to a local donut shop so that they could discuss their problems. Ms. Murray was reluctant to go because she was afraid of the appellant, but eventually decided that she would go to the donut shop as it was a public place. She took her daughter from a previous marriage Brianne (aged 12), with her. [7] The appellant and Ms. Murray sat at one table and the two children sat at another. There was considerable evidence of the comings and goings of Troy and the appellant. This evidence figured into the Crown’s allegation that the murder was planned and deliberate. After a long discussion, Ms. Murray, who was visibly upset, stood up indicating that she was going to leave. The appellant was heard to say “well fuck you then bitch.” Ms. Murray was then shot three times. The forensic evidence indicated that the first shot hit Ms. Murray in the neck, the second shot hit her in the back and the third shot hit her in the back of the head. The same evidence suggested that Ms. Murray was hit with the second shot before she had fallen to the ground after being struck with the first shot. All three shots were fired in rapid succession. [8] Immediately after the shots were fired, the appellant left the donut shop. He drove Troy back to their home and spent the night driving around by himself and sitting in a combine in a field on his farm. He surrendered to the police at about 2:00 p.m. the next day and gave them the gun used to kill Ms. Murray. [9] It was the Crown’s position that the appellant had decided to kill Ms. Murray to prevent her from getting custody of the children or any financial settlement as a result of the marriage breakdown. According to the Crown, the appellant was even prepared to go to jail for killing Ms. Murray but thought that he would be convicted of manslaughter and would be released from jail after several years. [10] The Crown contended that the appellant fired all three shots that struck Ms. Murray. The appellant, who testified, admitted that he fired the second and third shots. He claimed that his son Troy fired the first shot and that he then grabbed the gun from Troy, stood over Ms. Murray, and fired the second and third shots. He said that he did so to “protect Troy” in the belief that the other people in the donut shop did not see Troy fire the first shot but would see him fire the second and third shots. The appellant said that he had no idea that Troy had a gun or that he intended to shoot Ms. Murray. The appellant also testified that he “knew” that Ms. Murray was dead when he stood over her and fired the second and third shots into her. The appellant indicated on cross-examination that it only took “a split second” to grab the gun from Troy, approach Ms. Murray, determine that she was already dead, decide to fire the shots to protect Troy, and fire the shots. [11] There was very strong direct evidence that the appellant fired all three shots. Troy testified that his father fired all the shots. According to him, he and his father had formulated a plan earlier that evening to kill Ms. Murray. The appellant said that he would give Troy a signal (a request for cigarettes) after which Troy was to go to the farm and retrieve the appellant’s handgun. Troy testified that he received that signal from his father, left the donut shop, drove to the farm, got the gun, drove back to the donut shop and went inside leaving the gun in the truck. A short time later, the appellant then went out to the truck. There was evidence from other customers in the donut shop confirming Troy’s evidence that he left the donut shop and that his father went out to the truck shortly after his return. [12] Troy denied firing any of the shots, although on his evidence he was in the immediate vicinity when the shots were fired. Troy’s initial statements to the police denied any plan to kill Ms. Murray. He insisted that the murder was justified because she had threatened the children. Troy said he was afraid when he made these statements. The trial judge gave a “Vetrovec” warning concerning Troy’s evidence. [13] Brianne Murray who was sitting with Troy confirmed that Troy left the donut shop and drove away. She also confirmed that after he returned, the appellant went out to the truck and then returned to the donut shop. She testified that she saw the appellant shoot her mother. On her version, Troy was near the door of the donut shop when the shots were fired. [14] John Klunder, a college student, was in the donut shop with a friend. He was an independent witness with no connection to any of the parties. He said that about 11:30 p.m. Ms. Murray got up to leave. He heard the appellant say “well fuck you then bitch”, saw him pull a gun from his jacket, aim and fire. Ms. Murray fell to the ground. Mr. Klunder was looking at Ms. Murray when she fell and he was about 5 or 6 feet from the appellant. Mr. Klunder looked away and heard two more shots. There was about a second between each shot. The appellant looked at Mr. Klunder and walked out of the donut shop. Troy was already at the truck. [15] Robert Dietrich, Mr. Klunder’s friend, was sitting with him in the donut shop. He heard the appellant and Ms. Murray arguing over custody matters. He saw the appellant leave the donut shop briefly and then return. The appellant was angry. Mr. Dietrich heard Ms. Murray indicate that she was leaving. As Ms. Murray got up, Mr. Dietrich heard a loud bang. Ms. Murray fell to the ground. Mr. Dietrich saw the appellant holding the gun, saw a flash and heard two more shots. According to Mr. Dietrich, Troy was not in the immediate vicinity when the shots were fired. [16] In addition to the strong direct evidence identifying the appellant as the person who fired all three shots, the Crown relied on a substantial body of circumstantial evidence to confirm the appellant’s identity as the shooter, establish that he intended to kill Ms. Murray, and establish that the murder was planned and deliberate. [17] The Crown led evidence that after their separation the appellant had made numerous statements to various persons to the effect that he wanted Ms. Murray dead and would kill her even if he had to go to jail for some time. No less than eight witnesses gave evidence of threats made by the appellant. These included a friend, employees, a business associate, three of the appellant’s children and his former wife, Sharon Merz. The appellant admitted making comments suggesting that he would not care if Ms. Murray was killed, but indicated that he was simply blowing off steam and did not mean the comments. He denied making most of the threats attributed to him. [18] Troy, John, and a third son by a previous marriage, Konrad testified that their father made threats against Ms. Murray in the course of suggesting that he and the children should devise a plan to kill Ms. Murray. According to Troy, the appellant discussed many plans to kill Ms. Murray in the presence of Troy and Konrad. One involved driving Ms. Murray’s car off the road. Konrad recalled a conversation in which his father planned to kill Ms. Murray while dressed in a Halloween costume so no one would recognize him. John testified that his father told Troy, Konrad and him that Ms. Murray was planning to kill their sister Megan and John. The appellant said he wanted to kill Ms. Murray and discussed with the children the possibility of cutting off her car and killing her. He told his children to come up with plans to kill Ms. Murray. [19] The Crown also led evidence of two specific death threats which Ms. Murray had said were made against her by the appellant. The first occurred on January 31, 1993 and the second on February 5th of that year. The evidence of these two threats came from two sources. First, the Crown led evidence of testimony given by Ms. Murray in her own defence to the threatening charge brought against her. During cross-examination, Ms. Murray testified that she was threatened on January 31st and February 5th by the appellant. The Crown also led evidence from a friend of Ms. Murray and from Ms. Murray’s lawyer of conversations they had with Ms. Murray in which she indicated she had been threatened on those two days by the appellant. At trial, counsel for the appellant objected to the admissibility of Ms. Murray’s prior testimony and the evidence of her friend and her lawyer. The trial judge admitted the evidence for the truth of its contents. Counsel for the appellant renews his objection to the admissibility of that evidence on this appeal. [20] Sharon Merz, the appellant’s former wife, testified that the appellant called her at about 3:00 p.m. on the day of the shooting. He asked her to take care of the young children in the event that anything happened to him and said he wanted to get rid of Ms. Murray. Sharon Merz said that she received a second phone call about 10:30 that evening in which the appellant again asked her to take care of the children and said he was “thinking of doing it.” Ms. Merz did not disclose this information to the police when first questioned. The appellant acknowledged that he spoke to his former wife on the day of the homicide, but said that he spoke to her only about a G.S.T. return. [21] Troy Merz gave direct evidence of the plan leading to the death of Ms. Murray. It was his evidence that earlier on the same day, the appellant told him that they would get Ms. Murray to go out for a coffee with them. Once in the coffee shop, the appellant would ask Troy to get him some cigarettes. This was to be the signal that Troy should leave the restaurant, go to the farm and retrieve the appellant’s handgun. Troy was to return to the restaurant, leaving the hand gun in the truck. Troy indicated that he did not believe that the appellant was serious about this plan. The appellant had discussed many other plans to kill Ms. Murray with Troy and had taken no action on any of those plans. As far as Troy knew, there was no plan to see Ms. Murray that evening. [22] Things turned out differently than Troy had expected. He and his father did see Ms. Murray that evening and, according to Troy, the appellant set the plan in motion by giving Troy the signal when the appellant and Ms. Murray were in the donut shop. Troy followed the plan, got the gun and left it in the truck. The appellant then retrieved the gun, returned to the coffee shop and shot Ms. Murray just as he had planned earlier that day. [23] The Crown also relied on evidence that the appellant tried to hire someone to kill his son Troy while the appellant was in custody awaiting trial. Mr. B.* met the appellant while both were in custody at the Waterloo Detention Centre. According to Mr. B., the appellant told him at some point that his son was going to testify against him on his murder trial. The appellant said that without the son’s testimony, he would be convicted of manslaughter at worst. The appellant inquired as to whether there might be some way to “eliminate” his son. Mr. B. and the appellant discussed the cost of “eliminating” Troy ($20,000.00). Mr. B. decided that the appellant was serious about getting rid of the son and contacted the police, according to him, because of his concern for Troy’s safety. [24] The police had Mr. B. arrange a meeting between the appellant and a “hitman.” The hitman was in fact an undercover police officer. When the undercover officer and the appellant met their conversation was recorded. The recording was before the jury and it was open to the interpretation that the appellant was prepared to pay $20,000.00 to have his son murdered so that he could not testify against him. [25] The appellant acknowledged the conversation with the undercover police officer. He said, however, that he knew that he was being “set up and wanted to expose the police and their dishonest tactics.” About two days after the conversation with the undercover officer, the appellant went to the authorities in the jail and reported that Mr. B. had approached him with the idea of killing his son. The appellant also said that a “hitman” had been sent to see him by Mr. B., but that he had told that man that he was not interested in having his son killed. The undercover police officer was sent back to the jail some two or three days after their first conversation, but the appellant refused to see him. [26] Mr. B. had an extensive criminal record and there was reason to believe that he stood to gain from testimony implicating the appellant. The trial judge gave a very strong “Vetrovec” warning in respect of his evidence. III Did the trial judge err in refusing to permit a challenge for cause based on pre-trial publicity? [27] The homicide occurred on April 7, 1993. The trial commenced in early February 1995, almost two years later. The appellant sought to challenge for cause on two grounds. First he contended that the pre-trial publicity created a realistic potential for prejudice and, second, he argued that the nature of the allegation, murder in the context of a domestic dispute, raised a realistic possibility of prejudice. The trial judge rejected both submissions. On appeal, the appellant relies only on the contention that the pre-trial publicity warranted a challenge for cause. [28] The evidence of the pre-trial publicity consisted of 12 articles in a newspaper called the New Hamburg Independent, 14 articles from the Kitchener-Waterloo Record and a very brief television news clip shown on the local television station on the night of April 10, 1993. The television news clip was of no consequence and was not relied on by the appellant in his submissions in this court. [29] The appellant led no evidence of the circulation of either newspaper in the area from which the jury pool was selected. While I think the court can take judicial notice that the Kitchener-Waterloo Record is widely distributed in that Judicial District, I do not think that judicial notice can be taken of the circulation of the New Hamburg Independent. New Hamburg is apparently a small hamlet within the judicial district. In my view, it cannot be assumed that any of the prospective jurors came from that hamlet or that any of them were exposed to the New Hamburg Independent. [30] All but three of the 26 newspaper articles relied on by the appellant were published more than a year before the trial. Only one appeared in the six months prior to trial. That article appeared in the Kitchener-Waterloo Record on January 7, 1995. It was a brief factual report of the refusal of a defence request for an adjournment of the trial. The article also indicated that the appellant was charged with the murder and had been in custody since April 7, 1993. [31] In reviewing a trial judge’s decision refusing to permit a challenge for cause, this court does not simply decide whether it would have permitted the challenge. Rather, the court must determine whether the trial judge’s decision demonstrates an error in principle or otherwise resulted in a miscarriage of justice: R. v. Parks (1993), 15 O.R. (3d) 324 at 335-36 (C.A.), leave to appeal refused [1994] 1 S.C.R. x; R. v. Barnes, released September 13, 1999 at para. 30 (Ont. C.A.). [32] The trial judge provided careful and thorough reasons for his decision. Those reasons reveal a full appreciation of the relevant principles. The trial judge acknowledged the presumption that jurors will obey their oath of impartiality and then said: … To displace that presumption the applicant must satisfy the burden of showing there is an air of reality to the application or a realistic potential for existence of partiality. [33] The trial judge accurately identified R. v. Sherratt, [1991] 1 S.C.R. 509 as the pertinent governing authority. In Sherratt at pp. 535-37 L’Heureux-Dubé J., for the majority, described the threshold question as whether the publicity could potentially have the effect of destroying the prospective jurors’ indifference between the Crown and the accused. In addressing that threshold question, L’Heureux-Dubé J. indicated that the extent, age and content of the pre-trial publicity were relevant considerations. She observed that media coverage which misrepresented the facts, referred to prejudicial facts which would not or could not be adduced into evidence at trial or advanced opinions as to the accused’s guilt were potentially more prejudicial than coverage which did not display any of these features. [34] The trial judge considered the factors identified in R. v. Sherratt, supra. He observed that the extent of the newspaper coverage was not unusual and that almost all of it had appeared more than a year before the trial date. I agree with both observations. The articles which appeared in the year prior to the trial were basically factual reports of the court proceedings relating to the charges. One article which appeared in August 1994 did refer to the fact that the appellant had been charged with counselling the murder of his son and did refer briefly to the facts underlying the murder charge. I think it is farfetched to suggest that prospective jurors would remember, much less be prejudiced by the contents of these articles. [35] In his submissions, counsel for the appellant took issue with the trial judge’s characterization of the newspaper reports as “mostly factual.” There is some merit to this submission as it relates to some of the articles which appeared in the days immediately following the homicide. These articles did refer to the long and troubled relationship between the appellant and Ms. Murray. An article appearing on April 10, 1993 in the Kitchener- Waterloo Record canvassed in some detail the allegations that the appellant and Ms. Murray had made against each other in the court documents filed in connection with the custody dispute. These allegations referred to acts of violence by the appellant, threats by him against Ms. Murray, and disreputable conduct by him towards his children. The articles also made reference to allegations against Ms. Murray that cast her in a very bad light. [36] This April 10, 1993 article referred to potentially prejudicial material which could not be placed in evidence at the appellant’s trial. As such, it was the kind of pre-trial publicity which L’Heureux-Dubé J. cautioned against in R. v. Sherratt. That article provides the only real cause for concern in this case. The long passage of time between its publication and the trial (almost two years), however, provided an adequate antidote against any realistic possibility of prejudice to the appellant flowing from the publication of the article. Standing alone, as I think it did here, the article did not require that the appellant be allowed to challenge for cause. It was open to the trial judge to conclude on the entirety of the evidence placed before him that as of the date of trial, there was no realistic possibility that prospective jurors would be prejudiced by the pre-trial publicity. [37] Counsel for the appellant also argued that the newspaper coverage implied that the appellant was guilty of murdering his former wife. Certainly, none of the articles advanced that opinion expressly, nor do I think it was implied in any of the articles. The articles identified the appellant as the deceased’s husband and they also repeatedly referred to the case as one involving domestic violence. It must, however, be borne in mind that it was everyone’s position at trial that this was a case of domestic violence in the sense that Ms. Murray’s death was directly linked to her ongoing custody dispute with the appellant. Any jury was selected to hear this case was going to hear much about the domestic background to this homicide. I cannot accept that prospective jurors would be prejudiced against the appellant by dated newspaper reports which referred to the domestic nature of the homicide. Even if those reports lived on in some part of a prospective juror’s distant memory, it is unrealistic to suggest that a juror hearing the evidence to be adduced in this case would harken back to those reports and be prejudiced by them in determining his or her verdict. [38] The trial judge did not err in refusing to allow counsel to challenge for cause on the basis of pre-trial publicity. The admissibility of statements made by the deceased [39] The trial judge was asked to rule on the admissibility of evidence of several statements made by the deceased. The Crown argued that some were admissible as evidence of the deceased’s state of mind, which was in turn admissible as circumstantial evidence of facts in issue. The Crown also argued that some of the deceased’s statements were admissible for the truth of their contents under the principled exception to the hearsay rule developed in cases like R. v. Smith (1992), 75 C.C.C. (3d) 257 (S.C.C.). As with his ruling on the challenge for cause issue, the trial judge delivered careful and thoughtful reasons on the admissibility of the evidence tendered by the Crown. He admitted some of the statements allegedly made by the deceased and excluded others. [40] On appeal, counsel does not challenge the admissibility of the statements that the trial judge held were admissible as evidence of the deceased’s state of mind. I will not, therefore, summarize that evidence. The appellant does submit, however, that the trial judge erred in admitting statements made by the deceased for their truth as exceptions to the rule against hearsay evidence. It is the appellant’s submission that the statements did not have sufficient indicia of reliability to warrant their admissibility. [41] The contested statements came from three sources: The deceased’s testimony at her trial on a charge of threatening her son John in May 1993. In cross-examination, the deceased testified that she was threatened by the appellant at a donut shop on January 31, 1993 and again outside a drug store on February 5, 1993. The trial judge allowed the Crown to read the relevant parts of Ms. Murray’s prior testimony to the jury. A friend of the deceased testified that the deceased told her on January 31, 1993 about the threat at the donut shop. According to this witness, the deceased said that she believed that the threat was genuine. The deceased’s lawyer in the family law proceedings testified that she spoke with the deceased on February 5, 1993 and the deceased told her about the February 5th threat. [42] The argument in this court centered on the admissibility of the deceased’s testimony at her previous trial. In that testimony, the deceased indicated that she met with the appellant at a donut shop on January 31st to discuss custody matters. She said that he had appeared conciliatory in arranging the meeting, but when the meeting occurred he had a totally different attitude and that he “threatened to kill me.” In her testimony, the deceased also described a chance meeting of the appellant outside a pharmacy on February 5, 1993. He asked her if she was going to try to get custody of the children and she said that she was going to do so but would do so through the courts. She then testified: He [the appellant] grabbed Johnny by the scruff of his neck with his coat, and he held him up to me and he said, tell your mother what you think of her, and he said, if you get custody of these kids, you’ll be dead. [43] The principled approach to hearsay evidence has been the subject of several decisions of the Supreme Court of Canada. In R. v. Hawkins (1996), 111 C.C.C. (3d) 129 at 155, the court said: Under this reformed framework, a hearsay statement will be admissible for the truth of its contents if it meets the separate requirements of “necessity” and “reliability.” These two requirements serve to minimize the evidentiary dangers normally associated with the evidence of an out-of-court declarant, namely the absence of an oath or affirmation, the inability of the trier of fact to assess the demeanour of the declarant, and the lack of contemporaneous cross-examination. [44] After pointing out that necessity and reliability must be assessed in the context of the circumstances of each case, the court went on to describe the reliability inquiry in these terms, at p. 157: The criterion of reliability is concerned with threshold reliability, not ultimate reliability. The function of the trial judge is limited to determining whether the particular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement. More specifically, the judge must identify the specific hearsay dangers raised by the statement and then determine whether the facts surrounding the utterance of the statement offer sufficient circumstantial guarantees of trustworthiness to compensate for those dangers. The ultimate reliability of the statement, and the weight to be attached to it, remain determinations for the trier of fact. [45] In Hawkins, the court ultimately concluded that evidence given by a witness at a preliminary inquiry into the very charges faced by the accused at trial was sufficiently reliable to warrant its admission under the principled exception to the hearsay rule. The court specifically declined to determine whether testimony given at a prior proceeding other than a preliminary inquiry into the charges could meet the reliability criterion (pp.160-61). [46] Ms. Murray was obviously not available to testify at the appellant’s trial. Consequently, her previous testimony concerning the threats made against her by the appellant met the necessity criterion. [47] In holding that the evidence also met the reliability requirement, the trial judge referred to the following: the evidence was given under oath; an accurate record of her evidence was available; the evidence was tested by cross-examination in the presence of the accused albeit not by counsel for the accused; some of the assertions in the deceased’s testimony could be “confirmed by other evidence”; and while the issues on the previous proceeding were not identical to those on the appellant’s murder trial, the events that were the subject of the deceased’s evidence were the same events that were relevant in the murder proceeding. [48] In deciding to admit Ms. Murray’s prior testimony, the trial judge referred to Ms. Murray’s motives to testify falsely. He decided, however, that those motives were not such as to render the evidence unreliable for the purposes of determining its admissibility under the principled of exception to the rule against hearsay. [49] In reviewing a trial judge’s decision to admit evidence under the principled exception to the hearsay rule, this court, absent manifest error, must accept the findings of fact made by the trial judge on which the ruling is predicated. The court must, however, apply a correctness standard to the ultimate question of whether the trial judge properly applied the criteria relevant to the admissibility of the evidence to the facts as found by the trial judge: R. v. Hawkins, supra, at 160. [50] With respect to the trial judge, whose reasons demonstrate a careful consideration of the admissibility of Ms. Murray’s prior testimony, I cannot agree with his ruling. I think he erred in using confirmatory evidence from other witnesses to bolster the reliability of Ms. Murray’s prior testimony. While there is some authority to support that approach, eg. R. v. Khan (1990), 59 C.C.C. (3d) 92 at 106 (S.C.C.), more recent authority is to the contrary: R. v. Hawkins, supra, at 160; R. v. Smith, supra, at 270; R. v. Conway (1997), 121 C.C.C. (3d) 397 at 414 (Ont. C.A.); R. v. Tat (1997), 117 C.C.C. (3d) 481 at 509-510 (Ont. C.A.). [51] The reliability inquiry, when made in the context of determining the admissibility of a hearsay statement, looks to those factors surrounding the making of the statement which tend to diminish the risks associated with the admission of out-of- court statements. Evidence from other witnesses which is consistent with the substance of an out-of-court statement is not a circumstance surrounding the making of that statement and cannot generally be seen as diminishing the risks associated with the admission of hearsay evidence.1 If, however, the circumstances of the taking of the statement provide sufficient indicia of reliability to admit the statement, then the evidence from the other witnesses can certainly be considered by the trier of fact in determining the ultimate reliability of the out-of- court statement. [52] Even if the trial judge had not looked to the evidence of other witnesses in considering the admissibility of Ms. Murray’s prior testimony, I would still hold that it should not have been admitted. Her testimony was not subject to cross-examination by the appellant or his counsel. I do not think that cross- examination by Crown counsel provides an adequate substitute for cross-examination by the appellant. This is particularly so where the cross-examination by Crown counsel occurs in the context of a trial involving an entirely different allegation. The Crown’s concerns in prosecuting Ms. Murray on the charge of threatening her son would be very different from the appellant’s concerns were he to have had the opportunity to cross-examine her on the threats allegedly made by him. Furthermore, Ms. Murray’s evidence of the threats the appellant made against her was collateral to the main issue in her trial. It does not appear that she was even questioned on these threats during her examination-in-chief. She gave the evidence for the first time during cross-examination. [53] Ms. Murray’s motives to testify falsely at her trial should also have been given more weight in determining the admissibility of her prior testimony. The absence of any motive to fabricate can buttress the reliability of an out-of-court statement: R. v. Khan, supra, at 106; R. v. Tat, supra, at 512. Similarly, the existence of a strong motive to testify falsely can undermine the reliability of an out-of-court statement. Ms. Murray had two motives to testify falsely about threats made by the appellant. Firstly, she was attempting to secure an acquittal on the threatening charge and it was in her interest to throw blame on her accuser. Secondly, and I think more importantly, she was engaged in a bitter custody dispute with the appellant. It would serve her purposes in that dispute to paint as black a picture as she could of the appellant. Given those motives, I would think that it would be very hard for a trier of fact to make any kind of informed assessment of the truth of Ms. Murray’s allegations absent any cross-examination of her by the target of those allegations. [54] The unavailability of Ms. Murray for cross-examination was also an important factor which weighed against the admissibility of her statement. In Hawkins, supra, the court put some emphasis on the fact that the witness who made the out-of-court statement was available to testify if the accused chose to call her as a witness. The appellant, of course, had no such option in this case. [55] When the factors relevant to the reliability of Ms. Murray’s previous testimony are assessed, there is little other than the fact that the testimony was given under oath to support its inherent reliability. There are several factors, however, which undermine the reliability of that testimony. The evidence of Ms. Murray’s prior testimony should not have been admitted. [56] The admissibility of the testimony of Ms. Murray’s friend and her lawyer that Ms. Murray had told them about the threats made by the appellant stands on weaker ground than Ms. Murray’s testimony. There were virtually no indicia of reliability to be found in the circumstances surrounding the making of those statements. Indeed, I do not understand the Crown to argue that the statements of the friend or the lawyer should have been admitted if the prior testimony of Ms. Murray was excluded. I think that the evidence of the friend and the lawyer should have been excluded. I will consider the effect of this error on the verdict after I address the third ground of appeal advanced on behalf of the appellant. The trial judge’s failure to give a limiting instruction as to the evidence of the threats made by the appellant against Ms. Murray. [57] Counsel for the appellant submits that the evidence of the threats made by the appellant against Ms. Murray amounted to evidence of bad character. He submits that the trial judge should have told the jury that they could not infer from that evidence that the appellant was a violent person and, therefore, had murdered Ms. Murray. The appellant submits that the usual limiting instruction given when evidence of prior bad acts is adduced was necessary even though the prior bad acts constituted threats against the deceased. [58] In oral argument, counsel for the appellant, very much to his credit, drew the court’s attention to R. v. Jackson (1980), 57 C.C.C. (2d) 154 (Ont. C.A.). Jackson is directly against the appellant. In Jackson, the accused was charged with murdering his wife. The Crown led evidence from the deceased’s mother of two occasions on which Jackson had threatened to kill the deceased. Martin J.A., for the court, held that the evidence was properly admitted as evidence of motive. He further held, at p. 168: We are also of the view that where evidence of threats against the victim [emphasis in the original] are admissible on the issue of motive, there is no requirement that the trial judge should direct the jury that they are not to infer from the threats that the accused is a person who, from his criminal character or conduct, is likely to have committed the crime with which he is charged. Evidence of motive is a circumstance to be considered along with all the other circumstances. [59] I agree with the view expressed in Jackson. The evidence of the threats made by the appellant was evidence of motive which, in turn, constituted circumstantial evidence of identity and intent. I see no reason to warn the jury against using the evidence to infer propensity and hence to infer that the accused committed the crime when the more direct and powerful inference to be drawn from that evidence is that the accused had a motive to kill Ms. Murray. The trial judge properly instructed the jury as to how they could use evidence of motive. The limiting instruction normally given when evidence of prior bad acts by the accused is placed before the jury would make no sense in the context of evidence of motive. An instruction like that called for by the appellant could only serve to confuse the jury. The application of the proviso [60] Having concluded that the trial judge erred in law in admitting the prior testimony of the deceased and her statements to her friend and her lawyer, I must determine whether the Crown has established that those errors did not result in a substantial wrong or miscarriage of justice. The harmless error standard set by s. 686(1)(b)(iii) is a high one. The Crown must show that there is no reasonable possibility that the verdict would have been different had the error in law not been made: R. v. Bevan (1993), 82 C.C.C. (3d) 310 at 328-330 (S.C.C.); R. v. S.(P.L.) (1991), 64 C.C.C. (3d) 193 at 200 (S.C.C.). In determining whether the Crown has met that standard, it is appropriate to consider facts found by the jury as long as those facts were not tainted by the legal errors made at trial: R. v. Haughton (1994), 93 C.C.C. (3d) 99 at 107 (S.C.C.). [61] The appellant argues that the admission of the threats made to Ms. Murray was a serious prejudicial error. Counsel points out that there was no other evidence of any direct threats passing between the appellant and the deceased, although he acknowledges there was an abundance of evidence of threats against Ms. Murray made by the appellant to third parties. He submits that in admitting the evidence, the trial judge recognized its significant probative value. He argues that the Crown cannot now successfully suggest that the evidence did not have the probative value which the Crown relied on in urging its admissibility upon the trial judge. [62] The evidence supporting the Crown’s contention that the appellant fired all three shots that struck Ms. Murray was quite simply overwhelming. The only evidence to the contrary came from the appellant. His version of the events is incredible. It defies belief that the appellant could in the “split second” between the first and second shots take the gun from Troy, decide that Ms. Murray was dead, decide to protect his son by firing two more shots into Ms. Murray and then fire those shots. This evidence is made even more incredible in light of the appellant’s assertion that he had no idea that Troy had a gun and no expectation that Troy would shoot Ms. Murray as she was leaving the donut shop. [63] No jury, acting reasonably on this evidence, could have any doubt that the appellant fired all three fatal shots. Once the jury reached that conclusion, as I think it inevitably would have, there could be no doubt in the circumstances of this case that the appellant intended the obvious and inevitable result of his actions – the death of Ms. Murray. Leaving aside the improperly admitted evidence of threats made to Ms. Murray, I have no doubt that on any reasonable view of the evidence, a jury would have concluded that Ms. Murray was murdered and the appellant was the murderer. [64] The evidence in support of the Crown’s case that the murder was a planned and deliberate one was also formidable. The trial judge instructed the jury that they could consider the following evidence on the question of planning and deliberation: Troy’s evidence of the formulation of the plan and its execution; Sharon Merz’s evidence of the conversations with her former husband and in particular the conversation at around 10:30 p.m. that night in which he indicated he was “thinking of doing it”; threats made against Ms. Murray by the appellant to Mr. Brunet, a farm hand, a few days before April 7th; the evidence of the children as to other plans formulated by the appellant to kill Ms. Murray; and the appellant’s attendance at Ms. Murray’s home on the afternoon of the day of the murder. [65] In the course of reviewing the evidence of planning and deliberation, the trial judge also reviewed the appellant’s evidence and his position with respect to the evidence relied on by the Crown in support of its contention that the murder was planned and deliberate. The trial judge’s instructions on this evidence were extensive and well balanced. [66] In reviewing the evidence which was relevant to the issues of planning and deliberation, the trial judge did not direct the jury to the evidence of Ms. Murray’s prior testimony or the threats allegedly made on January 31st and April 5, 1993. He did, however, review the evidence of those threats in some detail in his instructions. After doing so, he told the jury: If you find that some or all of those remarks were made, I want you to understand the limited use that can be made of them. They are not evidence of planning and deliberation. They are not direct evidence of intention to kill on the night of April 7, 1993. They may be of assistance to you only in determining whether it is more likely that the accused had the required intent on April 7, 1993. You may be of the view that they show a consistency of hostile attitude towards Brenda such that it assists you in determining whether he had the required intent on the night in question. As I say, they may have that use. It is for you to say. They may only be used, even in that limited way, if you are satisfied that that is the only reasonable inference to be drawn from those remarks, if indeed you find they were made. [67] As I read the instructions, the trial judge did not tell the jury that Ms. Murray’s prior testimony was admissible on the question of whether the appellant had planned and deliberated the murder. Instead, he told the jury that the evidence could be considered only on the question of the appellant’s intent. [68] The improper admission of Ms. Murray’s prior testimony had no impact on the jury’s determination that the murder was planned and deliberate. As indicated above, I am satisfied that entirely apart from the evidence of threats to Ms. Murray on January 31st and February 5, 1993, a reasonable jury would inevitably have concluded that the appellant shot and killed Ms. Murray and that he intended to do so. Consequently, I am satisfied that the admission of Ms. Murray’s prior testimony and the evidence of her friend and her lawyer caused no substantial wrong or miscarriage of justice. V. [69] I would dismiss the appeal. Released: November 17, 1999 _______________________________ * A non-publication order has been made with respect to the identity of this person. 1 R. v. U.(F.J.) (1995), 101 C.C.C. (3d) 97 (S.C.C.) provides an exception to this general rule. In that case, the court held that the striking similarities between an accused’s confession and the out-of-court statement of a witness could enhance the reliability of that out-of-court statement. In R. v. U. (F.J.), the out-of-court statement was made by the complainant who had recanted her evidence at trial. She was available for cross- examination.