Court File No.

C61775
COURT OF APPEAL FOR ONTARIO

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

-and-

ROBERT McGREGOR
Appellant

APPELLANT’S FACTUM

Richard Litkowski
HICKS ADAMS LLP
Barristers and Solicitors
238 King Street East
Toronto, Ontario
M5A 1K1

Tel: (416) 975-1700

Fax: (416) 925-8882

Counsel for the Appellant

 PART I
STATEMENT OF THE CASE

1. On April 21, 2015 the Appellant was convicted of first-degree murder by the

Honourable Justice Mullins sitting with a jury in the Superior Court of Justice in

Peterborough, Ontario. He was also convicted of a separate count of kidnapping, but the

Crown and the defence jointly submitted that the kidnapping should be stayed on the

basis of the Kienapple principle. The Appellant was sentenced to life imprisonment with a

25-year period of parole ineligibility.

PART II
SUMMARY OF THE FACTS
Overview

2. The Appellant, who was 25 years old at the time, admitted to fatally stabbing

Joanne McKenzie, the mother of his 5 year-old daughter McKenzie, a few hundred

meters behind his house on July 2, 2011. The Appellant maintained that in the middle of

a serious argument, the deceased grabbed her knife – which she was known to carry in

her purse – and came at him. He went down on his back. She was on top of him with

the knife. Notably, her cousin remembered her getting very upset on another occasion

and similarly tackling the Appellant to the ground and choking him. With respect to the

offence in question, the Appellant remembered getting the knife off of the deceased, but

did not remember anything thereafter. He stabbed her 15 times.

3. The Appellant initially denied any involvement. He gave multiple stories as to what

he was doing at the relevant time, but police debunked each of them quickly, such that he

was repeatedly forced to come up with new alibis. His stories quickly changed until he

1
 finally admitted he killed her. Thereafter, despite significant efforts by police, he

maintained the same general version of events throughout hours of rigorous questioning.

4. He was convicted of first-degree murder on the basis that he planned and

deliberated her murder, or on the basis that he committed murder in the course of

kidnapping. During the pre-charge conference the trial judge acknowledged that the

evidence by either route was “less obvious than in many cases”.

The Appellant’s relationship with the deceased

5. The Appellant and the deceased met and had a child together in high school. After

their daughter was born, they stayed together for a short period before breaking up.

Although the deceased’s family disliked the Appellant, the deceased and the Appellant

seemed to get along until the end. They spoke frequently and met to discuss child

issues, although the deceased felt compelled to lie to her family about their meetings. 1

6. On the other hand, the Appellant’s family had a good relationship with the deceased.

The Appellant lived with his biological mother Crystal Horden, her husband James Pacey,

and his mother’s sister Terry Whalen, who raised him. Mackenzie McGregor also had her

own room in the Appellant’s house. Their house was in the countryside outside the city of

Peterborough. The police officer who timed his trips from downtown Peterborough to

where the stabbing occurred, which was approximately 300 meters behind the house,

said it took him 17 minutes one time and 21 minutes the next.2

1
Evidence of Cynthia Taylor, Vol. 2 pp. 54-55; p.97, l.23-p.100, l.23; Evidence of Sherri Coppins, Vol.
2, p.125, l.25-p.126, l.19; Evidence of Hanlon, Vol. 3, pp.155-156
2
Evidence of Officer Hale, Vol. 7, p.23, l.27-p.25, l.8; Evidence of Pacey, Vol. 13, pp.7-11; Evidence
of Horden, Vol. 15, p.67, l.17-p.69, l.20; Map of the distances from house to significant locations,
Exhibit 26 in the Appeal Book

2
 7. There was only evidence of one previous violent incident between the Appellant and

the deceased. A few years prior to the fatal incident, the Appellant approached the

deceased and their daughter on a sidewalk. He wanted to take custody of Mackenzie.

According to the deceased’s cousin, the deceased was the one who aggressively ran at

the Appellant and jumped on him. She was choking him until a third party physically

removed her. As soon as the third party felt it was safe to let go of the deceased, the

deceased actually ran at the Appellant again and punched him multiple times, causing

him to fall back on the ground a second time. According to the cousin, the Appellant

retaliated by driving dangerously fast toward the deceased, but conceded under cross-

examination that the Appellant may have only been driving at 4 km/h.3

8. There was evidence to support a finding that in the months prior to the offence, the

Appellant was attempting to get back together with the deceased for the benefit of their

daughter. The deceased’s cousin believed he made attempts to get back together and

the Appellant’s mother testified that he had expressed interest in getting back together for

Mackenzie’s sake. However, he was not in love with the deceased. He was in love with

his girlfriend of over 4 years, Amanda Wells. In fact, the Appellant and Wells were

engaged not long prior to the offence.4

9. Although the Appellant and the deceased smoked marijuana, the Appellant was

adamant that no one could do any drugs in front of his daughter.5

3
Evidence of Michael Coppins, Vol. 3, pp.32-35; pp.105-118.
4
Evidence of Michael Coppins, Vol. 2, p.142, ll.9-28; Evidence of Wells, Vol. 11, p.149, l.25-p.152,
l.24; Vol. 12, pp.79-80; Evidence of Horden, Vol. 15, pp.115-117; Statement of the Appellant dated
July 5-6, 2011, Exhibit 20a in the Appeal Book, pp.152-154 of the statement; Statement of the
Appellant dated July 6, 2011, Exhibit 20a in the Appeal book p.9 of the statement
5
Evidence of Michael Coppins, Vol. 3, p.85, l.5-p.86, l.15; Evidence of Joe Williams, Vol. 11, p.67;
Evidence of Dennis Hannah, p.77

3
 The deceased’s knife
10. The deceased was known to carry a small folding knife in her purse. Her cousin

said that she “always” had her knife, which had a 2 to 3 inch blade, on her and in fact, her

mother saw a knife with a 2½ to 3 inch blade in the deceased’s purse the day before she

was killed. Her brother testified that he knew the deceased to “play” with knives,

including the knife that she carried. He said that the two of them would “sit there and toss

[the knives] up in the air and see how many times [they] could catch them”.6

Drew Jessup – the deceased’s boyfriend

11. The deceased began dating Drew Jessup sometime between April and June of

2011. Jessup was clearly heavily involved in the drug culture. Crown witnesses

confirmed that he was a drug dealer and involved in marijuana, and more serious drugs

such as hallucinogenics. Jessup’s Facebook page suggested he called himself, “a no-

good drug dealin’ woman usin’ piece of shit”.7

12. The Appellant knew Jessup from high school and was immediately concerned

about him being around his daughter. He voiced his general concerns to several friends

as well as to the deceased. Soon after the deceased started dating Jessup, the Appellant

got the deceased to agree that their daughter would never be around him.8 In order to

6
Evidence of Cynthia Taylor, Vol. 2, p.84, ll.10-30; Evidence of Joseph Hanlon, Vol. 3, p.135,
l.25-p.137, l.18; Evidence of Michael Coppins, Vol. 2, p.152, ll.11-30
7
Evidence of Cynthia Taylor, Vol. 2, p.69; Evidence of Michael Coppins, Vol. 2, p.135; Vol. 3,
pp.84, l.15-p.86, l.16; Evidence of Hanlon, Vol. 3, p.140, ll.1-.14; Evidence of Jessup, Vol. 4,
p.153, ll.15-23; Evidence of Irwin, Vol. 8, p.113; Evidence of Wells, Vol. 12, pp.99-100; Evidence
of Pacey, Vol. 13, p.54, ll.10-14
8
Evidence of Irwin, Vol. 8, p.124-126; Evidence of Watson, Vol. 11, p.9, 11-12; Evidence of
Hannah, Vol. 11, p.114, ll.1-25; Evidence of Wells, Vol. 91, ll.1-10; Evidence of Pacey, Vol 13,
p.54, ll.22-30; Extracts from Joanne Mackenzie’s Journals, Exhibit 8 in the Appeal book; Evidence
of Sherri Coppins, Vol. 2, p.123, l.29-p.124, l.5. Note that Wells – who was engaged to another
man by the time of trial - suggested that the Appellant got her to walk by the deceased’s home to

4
 put the Appellant’s concerns to rest, the deceased led him to believe that she had broken

up with Jessup. She went as far as insisting that she and Jessup “unfriend” each other

on Facebook to make it appear as though they were no longer together.9

The custody issue

13. Up until March 2011, three months prior to the stabbing, there was no formal

custody agreement, but the Appellant and the deceased got along well enough that they

could simply agree on custody and access issues. Mackenzie was living with the

deceased, but as of the second week of March they mutually agreed that Mackenzie

should live with the Appellant. It was unclear whether that agreement related to the fact

that the deceased may have been suffering from depression. The agreement was made

in writing. However, after a week, the deceased decided that she would rather maintain

custody of their daughter even though it meant their daughter would miss one to two

weeks of school and would have to switch schools. The Appellant was not in support of

that plan.10

14. The Appellant immediately filed paperwork in family court to maintain custody.

The deceased went to family court later the same day and similarly sought custody. The

Appellant and the deceased were able to agree on an interim custody plan.11

check up on whether the agreement was being lived up to. However, it was pointed out in cross-
examination, that Wells’ evidence – which was subject to a Vetrovec warning - had her spying on
the deceased at the wrong address (see vol. 12, p.105).
9
Evidence of Jessup, Vol. 4, p.119, l.15-p.121, l.25; p.128, l.15-p.130, l.17
10
Evidence of Sherri Coppins, Vol. 2, p.116, l.1-p.118, l.5; p.121, l.15-p.123,l .27; Evidence of
Cynthia Taylor, Vol. 2, p.97, l.5-p.98, l.27; Evidence of Joseph Hanlon, Vol. 3, p.127, l.17-l.20
Excerpts from Joanne Mackenzie’s journals, Exhibit 8
11
Evidence of Sherri Coppins, Vol. 2, p.116, l.1-p.118, l.5; p.124, l.10-p.125, l.22; Evidence of
Cynthia Taylor, Vol. 2, p.98, ll.10-22

5
 15. On June 22nd, 2011 the Appellant and the deceased went to mediation together.

They agreed on terms, which included that Jessup would not be around the child, that the

deceased would seek professional help regarding her possible depression and that the

Appellant would have primary custody until the end of the summer, at which point the

conditions would be revisited. The next scheduled court appearance was for July 12th,

2011. Nothing substantial was actually going to occur on that date, but the Appellant’s

mother believed, from what her son had told her, that both parties would sign the

mediation papers with the conditions agreed to at that time. Similar to the Appellant’s

mother, Wells was also of the opinion that the Appellant and the deceased were going to

simply agree on the terms of custody. Although Wells believed that it was going to be

done out of court.12

16. Crown counsel suggested in her closing that the Appellant was attempting to

contact the deceased almost incessantly after that meeting on June 22nd and that the

deceased was not responding to his texts and calls. However, the deceased actually

went with the Appellant to their daughter’s kindergarten graduation on June 29, 2011.13

Most of the Appellant’s texts simply showed that he was anxious to speak to the

deceased. It was only at the time of the following two exchanges that he suggested he

was specifically concerned about custody issues:

Text exchange with his mother on June 28

Appellant: I can’t do this any more im done fighting for mack my lawyer said everry thing I have I cant
use against her I can only hope she agrees to the agreement so im screwed

12
Evidence of Sherri Coppins, Vol. 2, p.125, l.14-p.126, l.5; Evidence of Cynthia Taylor, Vol. 2,
p.98, l.37-p.200, l.20; Evidence of Well, Vol. 12, p.93, ll.5-14; Evidence of Horden, Vol. 15, p.50,
l.18-p.54, l.5; Family Court Documents, Exhibit 1 in the Appeal Book
13
Evidence of Sherri Coppins, Vol. 2, p.125, l.14-p.126, l.5; Evidence of Cynthia Taylor, Vol. 2,
p.98, l.27-p.100, l.20

6
 Mom: It takes time rob when mack gets older she will see how hard u tried plus its never fast. U
think it was going to be easy?

Appellant: Its hard not easy

My lawyer said everry thing i have is not able to use I have nothing so she is going to win
anyway I look at it

Mom: Really give up! Then u won’t have even visitation. Ur choice 14

Text exchange with the deceased on June 30

Appellant: R we going to be able to talk today hopefully before noon so I can call my lawyer

The Deceased: No I haven’t talked to my lawyer yet.

Appellant: Ok do it before noon if u can cause I dont know about u but I don’t want to spend the next ten
years in court it not casting me anything but it will be a small fortune so plz lets stop this for
mack ok:-)

Can we at least talk just so I know we r still going to work on this and so I can tell my lawyer
not to file the things he wants to if u do ill make him wait till we make it in to the meadater plz

Ok ill give you ten min to get ahold of me then im fighting for full and not letting up sorry but
its for mack

Even if u just text we can stop this

Ok then when u do talk to your lawyer tell him I was ready to work things out to make u
happy but now I don’t and its all your fault for this one even he will say us should have at
least answered15

Canada Day Weekend

17. The Appellant was scheduled to have custody of Mackenzie for the Canada Day

weekend. Thus, as usual, his mother picked the child up from the deceased on Friday,

July 1st, 2011. The deceased made plans to spend that evening with friends including

Jessup. The group of friends smoked marijuana for a lengthy period of time, and she and

Jessup, along with a cousin of hers, also did hallucinogenics. They walked to a central

location in Peterborough to watch the fireworks. At some point they passed by Amanda

Wells. According to Wells, she felt Jessup was intentionally showing her that he was –

contrary to his Facebook page – actually in a relationship with the deceased. Not long

14
The Appellant’s text messages, p. 13 of Exhibit 41d in the Appeal Book
15
The Appellant’s text messages, p. 14 of Exhibit 41d in the Appeal Book

7
 after seeing Wells, the deceased and Jessup went back to his place and spent the

night.16

18. After a few short calls between Wells and the Appellant, a decision was made to

ask the Appellant’s cousin to beat up Jessup and the deceased. Wells initially told police

that it was her idea and that the Appellant was not involved in her request to his cousin.

At trial, the defence pointed out that not only was it plausible that Wells was the one that

made that request – because she was so involved in the situation that she was personally

upset with Jessup and the deceased - but that it was implausible that the Appellant

would not have asked his cousin himself if he wanted it done. Moreover, Wells

maintained throughout that the Appellant did not have a problem with the deceased, but

only an issue with Jessup. However, Wells testified at trial that she texted the Appellant’s

cousin at the Appellant’s direction.17

19. Wells sent the Appellant’s cousin several texts trying to convince him to physically

harm Jessup and the deceased. Specifically, she asked the cousin whether he would

“smash [them] out”, “knock [them] out”, and “do them in”. Although she was adamant that

it was the Appellant who directed her to make this request, she maintained that the

language used in the texts was hers alone. There was no suggestion that the Appellant

was trying to do more than harm the deceased and Jessup. The cousin knew Jessup

and was not interested in hurting him. However, after some coaxing from Wells, he

16
Evidence of Michael Coppins, Vol. 2, p.154, l.1-p.156, l.12; Vol. 3, p.85, l.10-p.86, l.17;
Evidence of Jessup, Vol. 4 of the Transcripts, p.136, l.10-p.137, l.10; Evidence of Wells, Vol. 12,
p.94, l.15-p.95, l.8; Evidence of Horden, Vol. 15, p.23, ll.1-26
17
Evidence of Wells, Vol. 12, p.89, l.25-p.91, l.1; p.94, l.26-p.97, l.15

8
 agreed to consider the request. Their text conversation ended with Wells directing the

cousin to call the Appellant. There was no further follow up to that discussion. 18

20. The Appellant was at home that night with his mother and daughter. As usual, his

mother gave his daughter a bath. During the bath his mother noted that Mackenzie

violently hit her vagina until it went blood red. She then noted that there was blood on the

child’s underwear. Although she intended to, she failed to mention these findings to the

Appellant that night. 19

Saturday Morning
21. Two witnesses testified about the Appellant’s actions before leaving the house on

that Saturday morning, James Pacey for the Crown and Crystal Horden for the defence.

They both had difficulty remembering details of that morning. Pacey testified that he got

up between 5:30 and 6 a.m. and that Mackenzie got up at “8 o’clock, something like that”.

He further suggested that the Appellant would have got up soon thereafter, if he had not

already been awake at that time. Pacey first saw the Appellant and Mackenzie making

breakfast together in the kitchen. Horden testified that she got up around 7 a.m. and at

that time Mackenzie and the Appellant were already making breakfast in the kitchen.

Soon thereafter the Appellant and Mackenzie sat down at the table, which was in the

living room. At that point, Mackenzie started hitting herself in the vagina again.

Mackenzie’s actions not only upset the Appellant, but also reminded Horden of what had

happened the night before. The Appellant took Mackenzie into the kitchen to talk to her.

18
Evidence of Wells, Vol. 12, p.16, ll.3-33; p.97, l.10-p.98, l.25; Summary of text messages
between Wells and Williams, Exhibit 44 in the Appeal Book
19
Evidence of Horden, Vol. 15, p.24, l.4-p.25, l.7; p.54, ll.5-22; The Appellant’s phone records,
Exhibit 11 in the Appeal book; Statement made by the Appellant on July 6, 2011, p.20

9
Horden walked by the Appellant and Mackenzie in the kitchen on the way to her

bedroom, while Pacey remained in the living room.20

22. According to the Appellant’s statement to police, when he asked Mackenzie why

she was touching herself, she responded with, “Drew [Jessup] touched my head”. Pacey

testified that he did not hear any of the exchange in the kitchen, but remembered that

immediately thereafter the Appellant became upset and said something to him about

Jessup touching Mackenzie’s head. Horden told the Court that she only heard the very

beginning of the conversation.21

23. Both Pacey and Horden remembered that the Appellant became very upset after a

short talk with Mackenzie. He paced back and forth in the hallway. He went into

Horden’s bedroom and Horden directed him to call the deceased, so the deceased could

talk to Mackenzie with him and they could take her to the hospital together. Horden said

she watched the Appellant call the deceased and overheard their conversation. He told

her he feared Drew had touched Mackenzie and that they should take Mackenzie to the

hospital. The phone records suggest that instead of him calling her, he texted her at 8:36

and she called him back a minute later. 22

24. The phone records actually revealed that the Appellant first texted the deceased at

7:50 that morning. He said, “Im not trying to bug but we need to talk asap its important

about your daughter soothing bad happened I think plz”. This was consistent with

Evidence of Pacey, Vol. 13, p.11, l.22-p.16, l.15; Evidence of Horden, Vol. 15, p.25, l.8-p.26,
l.20; p.34, ll.1-10

Evidence of Pacey, Vol. 13, p.15, ll.24-30; Evidence of Horden, Vol. 15, p.109, l.25-p.110,
l.20; Statement made by the Appellant on July 6, 2011 (final statement), Exhibit 20a in the
Appeal book, p.7; Statement made by the Appellant on July5-6, 2011 (first statement),
Exhibit 20a in the Appeal book, p.47.

Evidence of Pacey, Vol. 13, p.16, l.1-p.18, l.27; Evidence of Horden, Vol. 15, p.26, l.1-p.27,
l.30; p.34, l.1-p.35, l.3; p.38, ll.5-20; The Appellant’s phone records, Exhibit 11

10
 Horden’s timeline as to when the Appellant first would have suspected something.

According to Pacey’s rough memory of the timing, the Appellant was still asleep at that

point. At 8:19, the Appellant texted Wells, “Call when u can/if u don’t”. At 8:22 Wells

spoke to the Appellant for over 6 minutes. She testified that they spoke about the

Appellant’s concerns regarding Jessup touching the complainant. At 8:31, he texted the

deceased, “Look I need to talk to u before we go to the hospital asap”. At 8:32 he texted

his aunt Terry Whalen, “I need to talk to you I think someone touched mack”. At 8:36 he

texted the deceased, “Your daughter is hurt plz call asap”. At 8:37 the deceased called

him back and they spoke for almost 10 minutes.23

25. Not only did Horden hear the Appellant’s end of the phone conversation, but also

Jessup heard the deceased’s end of it. Jessup testified that the Appellant was upset and

aggressive on the phone with the deceased and that he alleged Jessup had touched

Mackenzie. Jessup added that the deceased knew the allegations were unfounded and

did not even mention them to Jessup. He further added that the deceased was hesitant

about being alone with the Appellant. However, she had been in the car voluntarily with

the Appellant on two occasions in just the 10 days prior to her death – specifically, he

drove her to mediation and to their daughter’s graduation. Notably, she specifically lied to

her mother about seeing him on both of those occasions. Jessup offered to accompany

her on July 2nd, but according to his evidence, she denied his offer because she wanted

to avoid a confrontation between the two men. Jessup was under the impression that

Mackenzie was going to be in the car.24

23
The Appellant’s phone records, Exhibit 11
24
Evidence of Sherri Coppins, Vol. 2, p.125, l.25-p.126, l.9; Evidence of Cynthia Taylor, Vol. 2,
p.98, l.25-p.99, l.19; Evidence of Jessup, Vol. 4, pp.180-182; p.139, l.7-p.142, l.30

11
 26. The Appellant left his house soon after that phone call ended at 8:46. When he

left, Mackenzie was playing outside with Pacey. The deceased called the Appellant a

second time at 8:55. He must have been on his way at that time. That call lasted 2

minutes and 47 seconds. In his statements to police he suggested that he spoke to the

deceased only once and implied that at least by the end of their conversation he was on

his way into town.25

27. At 9:05, just 3 minutes before he met the deceased, Wells texted him, “Can I call”.

He called her back immediately and they spoke for 2 minutes and 20 seconds. Her

evidence supported that throughout their conversation he was focused on his concern

about Mackenzie touching herself. Her testimony was supported by the fact that she

texted him a half hour later at 9:36 as follows, “U should make her an app with sat clinic

tell them they will b able to tell if there was anything even a lil bit of spit or something

along with the cops”. At 9:41 she texted him, “And call cas I guess there is an emergency

worker on weekends.” 26

28. The deceased arrived at their arranged meeting place, which was a busy Tim

Horton’s, at 9:08 that Saturday morning. Video surveillance showed her walking around

his truck and getting in the passenger side, while he sat behind the wheel. That truck had

a single bench seat and no back seat. The child’s car seat was secured to the end of the

bench seat right beside the passenger door. The truck then drove away in the direction of

the Appellant’s house. They ended up together on a rock pile in a non-inhabited area

25
Evidence of Pacey, Vol. 13, p.43, l.25-p.44, l.30; The Appellant’s phone records, Exhibit 11 in
the Appeal book; The Appellant’s statement to police (first statement), Exhibit 20a in the Appeal
book, p.79; The Appellant’s statement to police (second statement), Exhibit 20a in the Appeal
book, pp.23-27
26
Evidence of Wells, Vol. 12, p.32, l.30-p.34, l.25; p.38, l.25-p.39, l.11; p.109, l.17-p.111, l.15

12
 approximately 300 meters behind the Appellant’s home. They would have had to pass

quite close to his home on route to the rock pile. They would have arrived somewhere

between 9:23 and 9:29.27

29. The only evidence as to why they ended up 300 meters behind his house came

from the Appellant’s statement to police. According to the Appellant, they decided to go

smoke some marijuana before seeing their daughter. He told police that they often

smoked marijuana near the rock pile. The deceased’s brother Joseph Hanlon

corroborated the Appellant’s evidence that the deceased and the Appellant socialized

“every once in a while”. However, no one could corroborate the evidence that the

Appellant and the deceased had gone up the road to smoke previously, nor was there

evidence at the scene that the area was used for smoking pot.28 On the other hand, due

to the overgrown brush in the area, the “probability of detection of a small item” was

estimated at “depending on the ground cover, anywhere from 10 percent to 75 percent”.29

30. The toxicologist opined that the deceased had not consumed marijuana in the hour

before her death. However, his evidence was strenuously challenged. His opinion was

based on the proposition that the THC level would have increased after death, even

though he testified at the preliminary hearing that it could not have increased, but could

have decreased. He explained that his understanding of the science changed as a result

27
Evidence of Officer Hale, Vol. 7, p.23, l.27-p.25, l.8; Evidence of Horden, Vol. 15, p.67, l1.20-
27; Surveillance video of the deceased getting in the truck, Exhibit 14; Photographs of the inside
of the Appellant’s truck, Exhibit 30a in the Appeal Book; Map of the distances from house to
significant locations, Exhibit 26 in the Appeal Book
28
Evidence of Hanlon, Vol. 3, p.125, l.1-p.126, .12; Statement made by the Appellant on July 6,
2011 (statement #3), Exhibit 20a in the appeal book, pp.41-2; pp.49-50; Statement made by the
Appellant on July 6, 2011 (final statement), Exhibit 20a in the Appeal book, pp.3, 10-12, 25, 58-
59, 66; The deceased’s phone records, Exhibit 5 in the Appeal book
29
Evidence of Officer Collings, Vol. 8, p.21, ll.14-22

13
 of reading a single article after the preliminary hearing. There was no evidence as to

whether the study in the article was well accepted in the scientific community or whether

it was even statistically significant, since it only involved 19 subjects. 30 His trial evidence

on this point was inconsistent; at times he suggested that the THC level “would” increase

after death31, whereas at other times he suggested that the new study only said it “could”

increase after death.32 Due to the significant weaknesses with his evidence, defence

counsel asked the jury not to accept his opinion that the deceased had not smoked

immediately before her death.

The stabbing
31. The Appellant told police that after they got out of the truck, the two of them sat on

the rock pile and smoked a pipe of marijuana and a cigarette before they started arguing.

They argued about Jessup and whether he had touched Mackenzie. The Appellant told

her that if he found out Jessup had touched their daughter, he would kill him. The

deceased said something to the effect that she was going to stay with Jessup and that

she did not care if he was a pedophile. At one point the Appellant said something that

“set her off”. Although he could not remember exactly what he said, he surmised that he

may have warned her that if she continued to date Jessup and it turned out that Jessup

had molested Mackenzie, she would never see Mackenzie again. In any event, the next

thing he knew was he turned towards her, and saw her coming at him with a knife. She

had “snapped”. She had “lost it”. He fell back. She was on top of him and he grabbed

30
Evidence of the toxicologist, Vol. 10, p.116, l.1-p.131, l.5; p.134, l.10-p.135, l.8
31
Evidence of the toxicologist, Vol. 10, p.119, ll.1-5; p.120, ll.10-12; Also see: p.113, ll.18-25
32
Evidence of the toxicologist, Vol. 10, p.121, l.10-15

14
 her hands. He “snapped”. He “lost it”. He could not explain why to the officer. He had

no memory of what happened thereafter.33

32. Part way through one of the statements to police he mimicked a stabbing motion.

He seemingly agreed with the officer that the stabbing may have occurred as he

mimicked it.34 He told police that his next memory was sitting 10 to 20 feet away from

the deceased with a bloody knife in his hand, not sure what had happened. Two pages

later in his statement he implied that his first memory after the attack was turning her

body over and recognizing immediately that she was dead. He reconciled those two

statements by explaining that when he found himself 10 to 20 feet away from the

deceased, he immediately went to her and turned her body over. The pathologist

confirmed that the deceased died quickly and that the Appellant would have been able to

see that the wounds were fatal. There were a total of 15 stab wounds, including a deep

slash to the throat. The pathologist could not rule out the possibility that the wounds were

inflicted very quickly. Most importantly, the pathologist could not rule out that the weapon

involved was a 2 to 3 inch knife, which is how the deceased’s mother and brother

described the knife she carried around with her. 35

33
Statement of the Appellant on July 6, 2011 (Statement #2), Exhibit 20a in the Appeal book,
pp.66, 75, 109, 151, 153-154, 162, 163-166; Statement of the Appellant on July 6, 2011
(Statement #3), Exhibit 20a in the Appeal book, pp.3, 6, 8, 9, 33, 42, 52, 70; Statement of the
Appellant on July 6, 2011(Statement #2 cont.), pp.170-171, 181, 198; Statement of the Appellant
on July 6, 2011 (final statement), Exhibit 20a of the Appeal book, pp.2-7, 10, 14, 16-19, 25-32, 40,
42-44
34
Statement of the Appellant on July 6, 2011 (final statement), Exhibit 20a of the Appeal book,
pp.44-45, 47
35
Statement of the Appellant on July 6, 2011 (final statement), Exhibit 20a of the Appeal book,
pp.42, 45-46, 211-213; Evidence of the pathologist, Vol. 5, p.166, l.25-p.167, l.5; p.217; p.222,
l.10-l.30

15
 33. The Appellant’s general version of events did not change despite hours of rigorous

questioning by police. The one thing that the Appellant was confused about when

speaking to police was the fact that there was some distance between where he was

sitting with the deceased smoking and where she ultimately was killed. He surmised that

he must have been walking away when she came at him with the knife. 36

Post Offence Conduct

34. The Appellant and the deceased would have arrived at their final destination

between 9:23 and 9:29 on July 2nd, 2011. At 9:49 a close friend of the Appellant’s Dennis

Hannah called him. The Appellant answered and at that point he was out of breath. The

Appellant told Hannah that the deceased was missing and that her family was upset with

him. He also told Hannah that 6 men had jumped him and there was blood on his shirt

and that he would have to burn his shirt.37 The Appellant had no injuries at that time.38

35. The Appellant told police that he had a change of clothes in the truck and that he

changed before going back to his house, although his memory on that point was unclear.

Pacey confirmed that there was often extra clothing in that vehicle and in fact there was a

set of coveralls behind the seat when the truck was seized by police. However, Horden’s

evidence was that the Appellant changed his clothes after he got back to the house. 39

36
Statement of the Appellant on July 6, 2011 (final statement), Exhibit 20a of the Appeal book,
p.16
37
Evidence of Dennis Hannah, Vol. 11, p.83, l.10-p.85, l.31; The Appellant’s phone records,
Exhibit 11.
38
The Appellant’s phone records, Exhibit 11 in the Appeal book
39
Statement of the Appellant on July 6, 2011 (Statement #3), Exhibit 20a in the Appeal book,
pp.38-39; Statement of the Appellant on July 6, 2011 (final statement), Exhibit 20a of the Appeal
book, pp.46; Evidence of Pacey, Vol. 13 of the Transcripts, p.37, ll.1-25; Evidence of Horden, Vol.
15 of the Transcripts, p.75, l.30-p.76, l.6; Evidence of Hale, Vol. 6, p.125; Evidence of Berry, Vol.
8, p.53

16
 36. Pacey testified that he saw the Appellant return to the house at approximately 9:45

a.m. and that Pacey was still playing with Mackenzie behind the house at that time.

Pacey testified that the Appellant went into the house for 5 minutes and then joined him

and Mackenzie out back. The Appellant told Pacey the same story he had told Hannah,

that 6 men had jumped him. Curiously, Pacey did not ask him anything about it, even

though he did not notice any fresh injuries. He remembered the Appellant playing with

his daughter thereafter. Horden similarly remembered the Appellant returning at around

10 a.m.. All she noted was that he had a blood smear on his cheek when he returned. In

furtherance of the Appellant’s false claim that he had been beaten up, he texted the

deceased at 11:34, “Your friends just beat me up and im not going to let u trick me into

that again ill just meet u in court”. 40

37. Wells arrived at the Appellant’s place just after 12 pm. By 3 pm the deceased’s

friends and family were starting to get concerned. The deceased’s mother and brother

came over to the Appellant’s house and spoke with him. He told the deceased’s brother

that he had planned to take Mackenzie to the hospital with the deceased, but that he had

got jumped instead.41

38. Soon thereafter the deceased’s cousin Michael Coppins contacted the Appellant

and the two of them exchanged quite a number of texts and phone calls over the

following 12 hours. The Appellant initially told Coppins that 6 people had jumped him

when he was on his way to meet the deceased. He said he had planned to talk to the

deceased about: 1) his concerns that Mackenzie may have been touched by an unnamed

40
Evidence of Pacey, Vol. 13, p.20, l.6-p.23, l.25; Evidence of Horden, Vol. 15, p.38, l.8-p.39,
l.15; The Appellant’s phone records, Exhibit 11 in the Appeal book
41
Evidence of Hanlon, Vol. 3 of the Transcripts, p.147

17
 abuser; and 2) the fact Mackenzie could not go to the washroom because she was in

pain. The Appellant made a significant slip in one of their lengthy conversations; he said,

“how do I tell a little girl that her mommy isn’t coming back”. Jessup also contacted the

Appellant the afternoon of the offence. Although Jessup spoke to the Appellant for over 7

minutes in 3 different phone calls, the only thing he remembered the Appellant saying

was that the sexual allegations were all a big misunderstanding.42

The Appellant’s return to the burial site

39. Police first came to the Appellant’s home at 9:35 pm that evening. At that point the

Appellant was not home. Police called him and he said that he was at “Curve Lake”

looking for the deceased. In particular, he reportedly went to speak to one of the

deceased’s drug dealers who lived there. Although Curve Lake was over 20 minutes

away from his house, he estimated he would be back in 5 minutes and that he would call

police when he returned. When they had not heard from him by 10 pm, they called the

Appellant again, only to find that he was at home. They arrived at his house at 10:05 pm.

In fact, the Appellant had not gone to Curve Lake. Instead, he had returned to the scene

of the stabbing. He had picked the deceased up and carried her in a fireman’s carry for

quite a distance, until he had hit soft soil. He had manually dug a hole and buried her

there and then he had used a partially full bottle of Pepsi from his truck to clean off his

hands. 43

42
Evidence of Michael Coppins, Vol. 3, pp.42-46; Evidence of Jessup, Vol. 4, pp.146-147; The
Appellant’s phone records, Exhibit 11 in the Appeal book
43
Statement of the Appellant on July 6, 2011 (Statement #3), Exhibit 20a in the Appeal book,
pp.33, 39-40, 51, 55; Map of the distances from house to significant locations, Exhibit 26 in the
Appeal Book

18
 40. When police arrived at his house, he told them that he had intended to meet the

deceased at 9:30 that morning to take their daughter to the hospital since their daughter

had stomach pains and “had inappropriately touched herself”. He did not accuse Jessup.

Rather, he offered that Jessup was a good man. He told police that his meeting with the

deceased never happened, as he was jumped by a group of men. When asked to

describe the attack, the Appellant said he had been “boot fucked” by 6 men for

approximately 5 minutes. When he was questioned about the lack of injuries, he quickly

suggested that the attack may have only lasted 5 seconds. Police were immediately

suspicious of his story. The police returned to the applicant’s place at 4:10 a.m. and

found the Appellant and Wells still awake. Upon seeing police the Appellant believed

they were there to arrest him. They spoke to the Appellant again and he again recounted

his story about being jumped.44

His Statements
41. Police found his story about being beaten up to be clearly a falsehood. It did not

take them long to find the video that confirmed he in fact did meet the deceased as

planned just after 9 a.m. in the Tim Horton’s parking lot. Police then arrested him for

obstructing justice on July 5, 2016, three days after the stabbing. Police made it clear

that at the time of his arrest they fully believed that she was dead and that he was at least

aware of how she had died. They interviewed him for 10 hours and the jury heard all 10

hours of interview. 45

42. The Appellant initially maintained that he had been beaten up. However, a few

hours into the interview he was shown the video of the deceased getting into his truck. At

44
Evidence of Officer Self, Vol. 4, pp. 43-49; Evidence of Officer Flindall, Vol. 5, pp.11-12; 19-20.
45
Statement of the Appellant on July 5- 6, 2011 (Statement #1), Exhibit 20a in the Appeal book,
pp.11-12; 88-110

19
 that point he admitted that he had lied, but would need to speak to his lawyer face to face

before telling the truth. He suggested to police that he knew where the deceased was,

that she was alive and that he had promised her not to tell anyone where she was going.

He maintained that story for a couple of hours before speaking to his lawyer. 46

43. After he spoke to his lawyer, he told police that he had picked up the deceased in

his truck, they had argued, she then got a phone call from someone offering to drive her

at that moment to Windsor and she just so happened to have a second phone and a wig

in her purse, and decided then and there to move to Windsor and leave behind everyone

she knew. His story also involved him giving her $200 cash, which he had on him. As

quickly pointed out to him by police, he was just scraping by. He would never have had

$200 cash on him. He abandoned this second story fairly quickly. 47

44. The Appellant then admitted that he killed her. As noted above, after he admitted

killing her, he maintained the same general version of events throughout the following

hours of thorough questioning by police.

Crown theories with respect to first-degree murder

45. The Crown left the jury with several routes to first-degree murder. The Crown

theorized that the Appellant either planned and deliberated murder, or committed murder

in the course of kidnapping. With respect to planning and deliberation, the Crown

apparently relied upon the following: 1) evidence that the Appellant fabricated his concern

about Jessup touching Mackenzie; 2) evidence that the Appellant came up with a cover

46
Statement of the Appellant on July 5-6, 2011 (Statement #1), Exhibit 20a in the Appeal book,
pp.110-170
47
Statement of the Appellant on July 6, 2011 (Statement #2), Exhibit 20a in the Appeal book,
pp.9-62

20
 story within minutes of the stabbing; and, 3) evidence that the Appellant had motive to kill

the deceased in order to get custody of their daughter.

46. The Crown presented the alternate theory that the Appellant kidnapped the

deceased with the intent to get her alone to talk to her and then committed an unplanned

murder once at the scene. With respect to the kidnapping, the Crown presented several

alternate theories, which included: 1) kidnapping by fraud by falsely suggesting he was

concerned Jessup touched Mackenzie; 2) kidnapping by fraud by falsely suggesting that

Mackenzie would be in the vehicle; and, 3) kidnapping by taking the deceased against

her will to the rock pile. With respect to kidnapping by force, the Appellant emphasized

that there was no sign of a struggle in the truck and that, on the Crown theory, the

Appellant and the deceased walked over 58 meters from the truck and went over a fence

before arriving at the spot of the initial struggle.48 Significantly, the jury unanimously found

the Appellant guilty of kidnapping.

Defence Position
47. The Appellant’s position was that he was provoked into killing the deceased and

was therefore not guilty of murder, but guilty of manslaughter. Counsel submitted that the

provoking act either made the Appellant act without the necessary intent or it supported

the partial statutory defence of provocation under s. 232 of the Criminal Code. Counsel

further suggested that even if he did have the necessary intent for murder, the provoking

act was relevant to whether the killing was planned and deliberate. 49

48
Map of the distances from house to significant locations, Exhibit 26 in the Appeal Book (Note
that the Crown theorized they initially went to where exhibits 1254 and 1255 are noted on the
map)
49
Closing submissions by defence counsel, Vol. 17, p.175, ll.17-33

21
 PART III

THE ISSUES AND THE LAW

48. The Appellant raises the following grounds of appeal:

1) The trial judge erred in failing to instruct the jury that for constructive first degree
murder there needed to be continuing domination;

2) The trial judge erred in providing contradictory directions on post offence conduct.
She both instructed the jury not to consider post offence conduct is assessing
planning and deliberation and invited them to rely upon a piece of post offence
conduct in assessing that issue;

3) The trial judge also explicitly invited the jury to rely upon post offence conduct in
assessing whether the Appellant was provoked, even though Crown counsel
conceded it was irrelevant to that issue;

4) The trial judge erred in refusing to include a separate box for provocation in the
decision tree; and,

5) The trial judge erred in failing to correct the Crown’s closing address, even after
finding that it went over the line.
Issue 1: Did the trial judge err in failing to instruct the jury about the
continuing domination element of constructive first-degree murder?

Overview

49. The Appellant submits that the trial judge failed to instruct the jury that for

constructive first-degree murder the Appellant had to continue to dominate the deceased

from the time of the kidnapping until the time of the killing. In addition to finding that the

murder and the underlying offence must be in the same sequence of events, the jury

must also find that there is a continuing domination. In the case at bar, the Crown

theorized inter alia that the Appellant used lies to get the deceased alone to talk to her

and then committed an unplanned murder. The lies, if there were any, and the stabbing

22
 were clearly in the same series of events, but there was truly an issue as to whether the

Appellant was continuing to dominate her from the time he told those lies until the time of

the stabbing. In fact, the defence took the position that there was no evidence to support

a finding that there was a continuing domination.50 Thus, the failure to instruct the jury

that they had to find there was a continuing domination was non-direction amounting to

misdirection.

50. The jury was instructed that the Appellant was guilty of first degree murder if he

met the following criteria:

i. That Mr. McGregor caused the death of Joanne Mackenzie;

ii. That Mr. McGregor caused the death of Joanne Mackenzie unlawfully; and was not acting in self-
defence;
iii. That Mr. McGregor had the state of mind required for murder;
iv. That the murder was not provoked;
v. That Mr. McGregor had kidnapped Joanne Mackenzie;
vi. That the kidnapping and murder of Joanne Mackenzie were part of the same series of events. 51

The Appellant submits that the jury should have also been instructed about the additional

element of continuing domination, which may have been phrased as follows:

vii. That the Appellant continued to dominate Joanne Mackenzie from the time of the kidnapping until the
time of the murder, such that the murder was an exploitation of the position of dominance.

Constructive first-degree murder has an element of continuing domination

51. For constructive first-degree murder, the offender must commit murder “while

committing” one of the enumerated underlying offences. In Paré the Supreme Court of

Canada held that in order for the “while committing” element to be met, there must be a

continuing domination that connects the underlying offence to the murder. However,

50
Submission on whether constructive murder should be left with the jury at all, Vol. 16, p.147,
ll.14-l.20
51
Charge to the jury, Transcript Vol. 18, p.216, ll.16-32

23
prior to Paré Martin J.A. suggested in Stevens, infra that if the underlying offence and the

murder “form part of one continuous sequence of events forming a single transaction”

that may be sufficient for constructive first degree murder. Martin J.A. said:

129 Thus, it appears clear that where death is caused after the underlying offence is complete and
the act causing death is committed for the purpose of facilitating the flight of the offender, the murder is
not under s. 213 and 214 (5)(b) first degree murder.

130 I do not wish, however, to be taken as holding that where the act causing death and the acts
constituting the rape, attempted rape, indecent assault or an attempt to commit indecent assault, as
the case may be, all form part of one continuous sequence of events forming a single transaction, that
death would not be caused during the commission of the offence, even though the underlying offence
in s. 213 in a sense could be said to be then complete. [Emphasis added.]

R. v Pare, [1987] 2 S.C.R. 618

R. v. Stevens, 1984 CarswellOnt 1163 (Ont.C.A.) at paras. 129-130

52. In Paré Wilson J. did not adopt the test for “while committing” from Stevens, but

explicitly ‘refined’ it. In particular, she added an element of continuing domination. She

said:

All murders are serious crimes. Some murders, however, are so threatening to the public that
Parliament has chosen to impose exceptional penalties on the perpetrators. One such class of
murders is that found in s. 214(5), murders done while committing a hijacking, a kidnapping and
forcible confinement, a rape, or an indecent assault. An understanding of why this class of murder is
elevated to murder in the first degree is a helpful guide to the interpretation of the language.

…The offences listed in s. 214(5) are all offences involving the unlawful domination of people by other
people. Thus an organizing principle for s. 214(5) can be found. This principle is that, where a murder
is committed by someone already abusing his power by illegally dominating another, the murder
should be treated as an exceptionally serious crime. Parliament has chosen to treat these murders as
murders in the first degree.

Refining, then, the concept of the "single transaction" referred to by Martin J.A. in Stevens, supra, it is
the continuing illegal domination of the victim which gives continuity to the sequence of events
culminating in the murder. The murder represents an exploitation of the position of power created by
the underlying crime and makes the entire course of conduct a "single transaction". This approach, in
my view, best gives effect to the philosophy underlying s. 214(5). [Emphasis added.]

R. v. Paré, supra at p. 108

R. v. Francella, 1988 CarswellOnt 808 (Finlayson J.A. in his dissent at para.
36).

24
53. Thus, it is insufficient for the underlying offence and the murder to be in the same

sequence of events – there must also be a continuing domination, such that the murder is

an exploitation of the position of dominance.

54. The continuing domination element of constructive first-degree murder was relied

upon to find s.231(5) was constitutional. In Arkell, infra Lamer C.J. found that since all of

the enumerated underlying offences involved dominating the victim, the section was

neither arbitrary nor irrational:

In the case of the distinction between first and second degree murder, the difference is a maximum
extra fifteen years that must be served before one is eligible for parole. This distinction is neither
arbitrary nor irrational. The section is based on an organizing principle that treats murders committed
while the perpetrator is illegally dominating another person as more serious than other murders.
Further, the relationship between the classification and the moral blameworthiness of the offender
clearly exists. Section 214 only comes into play when murder has been proven beyond a reasonable
doubt. In light of Martineau, this means that the offender has been proven to have had subjective
foresight of death. Parliament's decision to treat more seriously murders that have been committed
while the offender is exploiting a position of power through illegal domination of the victim accords with
the principle that there must be a proportionality between a sentence and the moral blameworthiness
of the offender and other considerations such as deterrence and societal condemnation of the acts of
the offender. [Emphasis added]

R. v. Arkell (1990), 59 C.C.C. (3d) 65 (S.C.C.) at para. 11

R. v. Luxton, [1990] 2 S.C.R. 711
55. Thus, the constitutionality of the section depended upon it only capturing murders

committed when the murder was an exploitation of the position of dominance.

56. More recently the Supreme Court of Canada suggested in Pritchard, infra that, in

light of the decision in Paré, s. 231(5) should be interpreted to only capture situations

where the murder is an exploitation of the position of dominance associated with the

underlying offence. Binnie J. relied upon this principle to explain why there were different

outcomes in seemingly similar fact scenarios. He said:

In R. v. Sandhu, 2005 CarswellOnt 8306 (S.C.J.), on the other hand, a number of accused individuals
surrounded and killed the victim in a sudden attack, lasting between 30 and 45 seconds. The accused
brought a motion for a directed verdict of acquittal on the charge of first degree murder by virtue of the
unlawful confinement. The court agreed and granted the motion, holding that there was no evidence of
two discrete acts, only a killing "carried out in a rapid, efficient and collaborative manner" (para. 21).
Although the accused individuals did confine the victim, they did so only as an incident of the attack

25
which caused his death. The court's analysis is consistent with the rationale of s. 231(5) set out in Paré
and Kimberley. If no extra domination is involved in the act of confinement, then it cannot be said that
the accused confined the victim and then exploited that domination by an act of killing. Only one
episode of domination existed, created by the act of killing, which at the same time confined the victim.
In such a case, the rationale of s. 231(5) is absent. [Italics in original, underscore added.]

R. v. Pritchard, [2008] 3 S.C.R. 195 at para. 29

57. In summary, the murder must not only be closely linked temporally to the first

offence, but it must also be causally linked through domination. Further, the element of

continuing domination has been recognized as a constitutional requirement for

constructive first degree murder. As a result, an accused cannot be found guilty of first

degree murder under s. 231(5) unless the underlying offence and the murder are causally

linked through domination.

58. To be consistent with Paré, it would be insufficient to instruct the jury on the

“concept of the ‘single transaction’”. Paré suggests that juries should also be instructed

that there needs to be a “continuing illegal domination of the victim which gives continuity

to the sequence of events culminating in the murder” or that the murder must represent

“an exploitation of the position of power created by the underlying crime and makes the

entire course of conduct a ‘single transaction’”. It should be conveyed to the jury in some

form that the underlying offence must be causally connected to the murder through

domination.

In some cases it would be redundant to instruct the jury on the element of

continuing domination
59. Depending on the facts of the case, the failure to provide that additional instruction

may be redundant. This issue was addressed by this Court in Francella, infra. The

majority in Francella found there was no air of reality to the position that the Appellant

stopped forcibly confining the deceased before he murdered her and accordingly the jury

26
need not be instructed on the element of continuing domination: “[t]he facts of [that] case

made it unnecessary to further refine his instructions”. The Supreme Court of Canada

agreed with the majority’s reasons. However, Finlayson J.A. dissented on the basis that

the jury should have been instructed that for constructive first degree murder they had to

find the Appellant was continuing to dominate the victim at the time of the murder. He

said:

Accepting this statement [from Paré] as the law. It seems to me, with great respect, that it was incumbent
upon the trial judge in this case to put that proposition to the jury and ask them to find, as a question of fact,
whether there was a continuing domination of the victim and the others in the house by the Appellant or
whether the continuity of the confinement was broken prior to the murder.

R. v. Francella, 1988 CarswellOnt 808 (Ont.C.A.) at paras. 18 and 39

R. v. Francella, 1990 CarswellOnt 1018 (S.C.C.)

60. Thus, the Appellant submits that for the purposes of constructive first degree

murder, the jury should be instructed that in addition to being in the same series of

events, there must also be a continuing illegal domination from the time of the underlying

offence to the time of the homicide. However, the Appellant further recognizes that there

are situations, such as the facts in Francella and also the facts in Paré itself – which

render such an additional instruction redundant and thus, unnecessary. Thus, the issue

is whether the facts in the case at bar rendered the need for the proposed additional

instruction unnecessary.

On the facts of this case, the jury needed to be instructed on the element of
continuing domination
61. Simply stated, the issue is whether there is an air of reality to the position that the

Appellant kidnapped the deceased, but that the continuity of the domination over the

deceased was broken prior to the stabbing. The Appellant submits there is such an air of

27
 reality. In fact, the trial judge herself noted that there was not “an abundance of

evidence” that the deceased “died as part of the transactional event around the

kidnapping”. 52

62. With respect to constructive first degree murder the Crown theorized that the

Appellant kidnapped the deceased “under a fraud, perhaps with the intent to try to talk

her around, get her to agree with him. Change her mind about the mediation.”53

According to the Crown, the fraud or lie got…

..Joanne into his truck. It gets her travelling up to his home. Only they don’t stop there, they
continue 420 meters up Preston Road. Was it only those last 420 meters that Joanne
Mackenzie knew something was terribly wrong?

What exactly happened in that truck, and how they got to that spot we’ll never exactly know.
But consider this, did Robert McGregor placate Joanne with some more lies? Did he tall her
that she needed to smoke a bowl to calm down?54 [Emphasis added.]

The Crown’s theory does not account for how the Appellant and the deceased got to a

spot 58 meters from where the truck would have been parked. The Crown further asked

the jury to find that the deceased then ran back towards the road and, on route to the

road, the Appellant killed her, such that the killing was not planned and deliberate.55

63. Assuming that the evidence supported a finding that the Appellant lured the

deceased into the truck with lies, the Appellant submits there was no evidence to

conclude that the Appellant maintained the falsehoods after she got into the truck. The

Crown acknowledged that the jury would never know what happened in the truck and

how they ended up in their ultimate location. There was no evidence to refute the
52
Comments by the trial judge during pre-charge conference, Vol. 16, p.148, ll.19-25
53
Closing submissions by Crown counsel, Vol. 17, p.239, ll.4-10
54
Closing submissions of Crown counsel, Vol. 18, p.258, ll.15-30
55
Closing submissions of Crown counsel, Vol. 17, p.275, ll.5-25; p.280, l.8-p.281, l.6; p.287, l.23-
p.288, l.10; Map of the distances from house to significant locations, Exhibit 26 in the Appeal
Book. (Exhibits 1254 and 1255 on the map are the hair tie and the pieces of plastic referred to by
the Crown in her closing)

28
possibility that even if the deceased got into the truck under false pretenses, she willingly

went with the Appellant to the rock pile with full knowledge that he wanted to discuss the

mediation agreement.

64. The Appellant submits that in light of the following evidence it was at least

possible, if not likely that, assuming there was a kidnapping and a murder, the Appellant

did not dominate her from the time of the kidnapping to the time of the murder:

 There was a complete lack of evidence of struggle in the truck. Notably, he would
have been driving, she would have had her hands free and she had a knife on her;

 The Crown theorized that the initial struggle was 58 meters from the side of the
road and there was a wooden fence that they both would have had to go over to
get to that location. There was no evidence to suggest there was a struggle
getting from the truck to that location;

 The deceased would have had a knife on her;

 Pacey and Mackenzie were outside a few hundred meters away and thus,
arguably within earshot; and,

 There was evidence of a single prior violent occurrence between the two parties,
which involved – according to the deceased’s cousin – the deceased initiating a
physical attack on the Appellant, jumping on him and choking him, as well as
punching him to the ground.

65. In fact, it was the defence theory that there was no evidence to support the

position that the Appellant continued to dominate the deceased from the time the alleged

lies were told to the time of the stabbing. The defence made lengthy submissions as to

why constructive murder should not have been left with the jury at all as a result of that

gap in domination. His submissions began as follows:

So having regard to the requirements in Section 230 and, I mean it’s reviewed, the proposed instruction by
Justice Watt, it, a necessary ingredient of the offence is that the killing happened during the course of the
other crime of domination, in this case, a kidnapping.

29
 So, our position can be simply stated, and it’s simply this: is that the trans-act, that crime was complete
upon her exit from the vehicle; bearing in mind that to get where they eventually got they had to cross over
a fence; it was within eyeshot and earshot from the McGregor residence; and she had a phone with her… 56

66. Since it was open on the Crown theory of kidnapping to find that the Appellant

committed the underlying offence if he used lies to get the deceased into the truck, it had

to be clarified that he was not guilty of first degree murder if the Appellant did not

continue to illegally dominate her from the time of the kidnapping until the time of the

murder, such that the murder was an exploitation of the kidnapping. In the circumstances

it was insufficient for the trial judge to simply instruct the jury that the two offences

needed to be in the same series of events, such that they formed one transaction. In

other words, this was not a situation such as the one in Francella or Paré where the

additional instruction on the element of continuing domination was unnecessary.

The failure to instruct on the element of continuing domination was a reversible

error
67. The jury unanimously found that the Appellant kidnapped the deceased. The

Appellant concedes that the jury would have found that the kidnapping was in the same

series of events as the stabbing, because if he did kidnap her, the kidnapping and the

stabbing were less than an hour apart and the Appellant and the deceased were alone

and together throughout that time period. However, since the Appellant did not

necessarily continue to dominate the deceased from the kidnapping to the stabbing, the

verdict would not necessarily have been the same had the jury been properly instructed.

The conviction must be quashed.

Issue 2: Did the trial judge err in instructing on post offence conduct?

56
Submissions by defence counsel, Vol. 16, p.147, ll.13-30

30
68. The trial judge erred in providing contradictory directions on the use of post

offence conduct. Post offence conduct is generally susceptible to being misused by

juries and accordingly clear instructions are needed on how the evidence may, as well as

may not, be used. In this case, the trial judge instructed the jury that the post offence

conduct could only be used in assessing whether the Appellant was guilty of

manslaughter, and could not be considered in assessing the issues of 2nd degree murder,

1st degree murder or kidnapping. However, she also invited the jury to rely upon the fact

that the Appellant came up with a cover-up story very quickly after the offence in

assessing whether the Appellant had formed a plan. As a result of the contradiction in

her instructions, the jury could not have understood that caution needed to be taken in

relying upon the pivotal piece of post offence conduct in this trial.

69. One of the key issues in the pre-charge conference was whether the post offence

conduct was relevant to any issue aside from whether the Appellant acted in self-

defence. As noted in the following passage of Angelis, infra post offence conduct is

relevant to whether an offence was committed, but generally not relevant to the level of

culpability. Laskin J.A. said:

…evidence of post-offence conduct may be susceptible to jury misuse, especially when, as in this
case, the accused has admitted to committing the actus reus of an offence and the Crown is relying on
the post-offence conduct to demonstrate a specific level of intent. Although this evidence will often be
prejudicial to the accused, it will rarely have any significant probative value going to the accused’s
state of mind during the commission of the criminal act. That people will generally behave one way
after they kill someone purposefully and another way after they kill someone accidentally is often a
dubious assumption.

Therefore, in a long line of cases, both the Supreme Court of Canada and various courts of appeal,
including this court, have held that an accused’s post-offence conduct may be probative of an
accused’s culpability, but not of the level of that culpability. These courts have so held because the
accused’s post-offence conduct is as consistent with an inference that the accused committed
manslaughter as it is with an inference that the accused had the intent for murder. Where self-defence
is raised as a defence, an accused’s post-offence conduct is circumstantial evidence from which a jury
can infer that the accused committed a culpable act, and thus did not act in self-defence. But,
ordinarily, trial judges have been obliged to instruct juries that post-offence conduct evidence cannot
be used to infer that the accused committed murder rather than manslaughter.

31
 R. v. Angelis, 2013 ONCA 70 at paras. 52-53
70. There are times when the post offence conduct is relevant to the level of culpability

and planning and deliberation in particular. In those cases, it is imperative that the trial

judge provide a limiting instruction not only with respect to the use of post offence

conduct generally, but with respect to using it to assess the level of culpability. All three

of the Supreme Court Justices who wrote reasons in the 2011 case of White, infra, noted

that it has been through extensive judicial experience that courts have learned that triers

must be cautious in relying upon post offence conduct to assess level of culpability.

R. v. White, [2011] 1 S.C.R. 433 at paras. 23, 33, 44, 55-60, 104-107, 138, 141,
185

71. To emphasize the need for such an instruction, all three judges who wrote

reasons in White individually compared the potential misuse of post offence conduct

evidence to the potential misuse of eye-witness identification evidence in identification

cases. Accordingly, it is not an area of law that a jury, without judicial experience, can

properly assess without an instruction. Rothstein J. suggested that even if a “no

probative value” instruction is not warranted, the jury should at a minimum be warned

about the risks of relying upon post offence conduct to assess level of culpability.

R. v. White, supra at paras. 23, 33, 59, 106, 138 and 185
R. v. Bennett (2003), 67 O.R. (3d) 257 at para. 147
R. v. Angelis, supra at para. 46
R. v. Rodgerson, 2015 SCC 38
R. v. Chambers, 2016 ONCA 684
David M. Paciocco, “Simply Complex: Applying the Law of ‘Post-Offence
Conduct’ Evidence” (2016) 63 C.L.Q. 275, at p. 277

32
72. In the pre-charge conference in the case at bar there was a 54-page discussion on

whether post offence conduct could be relevant to anything beyond guilt of manslaughter.

Throughout that discussion the Crown made it very clear57 that her focus was on whether

the speed of coming up with a cover-up story was relevant to whether it was a planned

murder. She explained as follows:

[The Appellant] is on the phone with a friend at nine-forty-nine that morning. And, according to the friend,
their first call that day, at nine-forty nine, is Mr. McGregor telling him that Miss Mackenzie is missing, that he
has been beaten up. He talks about his clothes having blood on them. And it’s not as though Mr.
McGregor is confronted by somebody surprisingly, or, the police. He elects to answer a phone call at nine-
forty-nine because he’s ready with a story, some approximate ten minutes after Miss Mackenzie has met
her death.58
…
Moreover, well, specifically, Your Honour, with respect to the post-offence conduct the Crown wishes to rely
upon about the story being prepared, part of that is based upon, in fairness, the advancement of the Crown
that this is how a normal person would react….So, it relies upon a presumption that a, a normal person
caught in the circumstances of an unexpected surprise death, would take some time to absorb, and would
not have a story prepared to that detail, and that extent, and pick up the call, the phone and give it. 59
[Emphasis added.]

73. Both the trial judge and defence counsel were aware that the Crown wanted the

jury to consider the timing of the cover-up story as evidence of a plan. In response,

defence counsel submitted that none of the post offence conduct had any relevance

beyond manslaughter. The trial judge implicitly agreed with defence counsel and decided

to instruct the jury that the post offence conduct could not be used to assess any issue

beyond guilt of manslaughter. When counsel were advised with respect to the trial

judge’s decision on this issue, Crown counsel again asked whether she would be able to

rely upon the one piece of post offence conduct as evidence of first degree murder,

despite the trial judge’s decision. The discussion was as follows:

Crown: I read this paragraph [of the charge], Your Honour, that you say, “You must not
consider any post –offence conduct as evidence of either first or second degree murder.” And I

57
Submissions by Crown counsel, Vol. 16, pp.78-89, l04-5, 116, 117, 118, 120
58
Submissions by Crown counsel, Vol. 16, p.78, ll.10-20
59
Submissions by Crown counsel, Vol. 16, p.82, l.28-p.83, l.10

33
 just want to clarify, Your Honour’s – that we’re – that Your Honour’s position is we’re rejecting and
(sic) sort of Rodgerson approach to the second degree murder? All right. You Honour has said,
“With regard to not considering it as first degree murder.” Obviously in my close to the jury, I’ve
referred to the phone call with Dennis Hannah, that’s in my submission, within 20 minutes of his
arrival to that field with Joanne MacKenzie in which he has the story ready. I just want to seek
clarification from this court that Your Honour’s instruction being one thing. The Crown certainly
wants to assert that that phone call and that story was a prepared one, and I just need
clarification. I understand what Your Honour’s instruction to the jury is going to be, but I don’t
want, again, the horse to be out of the barn.

The Court: Well, I expect if you say that to the jury that Mr. Smith will ask for correcting
instruction, but I’m going to have to, I suppose, leave it to you as to what you risk and leave it to
Mr. Smith as to whether or not he wants to address that. I struggled with this instruction on post-
offence conduct long and hard, and I came to the conclusion I did.

Crown: No, I understand Your Honour’s conclusion. Obviously the Crown has a strong
position and wants to rely on that as a piece of circumstantial evidence in this case, that that was
a story that had to have been laid down much earlier in Mr. McGregor’s mind.

The Court: It’s post –offence conduct, isn’t it?

Crown: It’s a piece of circumstantial evidence upon which the jury could draw an inference
that he couldn’t have had that story to mind that morning.

The Court: Well, I suppose it’s borderline because I suppose you could say that although it
happened post-offence, when you look at the proximity of time, the thinking had to have occurred
before the offence.

Crown: And that’s all I want to say. It’s not like I’m suggesting flight from a scene or
anything like that. That’s all I want to say with respect to that evidence.

The Court: I don’t think I am troubled by that.60

74. Thus, the trial judge changed her conclusion. Her decision at the end of the pre-

charge conference to instruct the jury that the post offence conduct was irrelevant to

planning and deliberation necessarily included a consideration of the possible relevance

of the speed of the cover-up story. Yet, after making that decision, she in the above

exchange, agreed that the Crown could invite the jury to find that that piece of post

offence conduct was relevant to forming a plan.

75. The Crown proceeded to invite the jury to rely upon the timing of the delivery of the

cover-up story as evidence of first degree murder. She said:

And what happened after that killing? Robert McGregor has a story ready. He has a story read that he
tells not 20 minutes after his arrival at that field with Joanne Mackenzie. A story he tells Dennis Hannah at

60
Submissions during pre-charge conference, Vol. 17, p.41, l.29-p.43, l.14

34
9:49 that morning. That’s when that call is. Dennis Hannah says, their first call, “He tells me this. He tells
me he’s jump[ed] by a bunch of guys. Joanne never sowed up. She’s missing. He might have blood on
his clothes, he might have to burn them.” A story he’s telling Dennis Hannah while he’s still out of breath.
When he elects to answer that phone.

Mr. Smith says well that’s a sign of panic. That’s a sign that he didn’t know what he was doing. It’s also a
sign of somebody who wants to get that story out there immediately; covering themselves, alibi. That’s a
story he repeats over the course of days to everyone. It’s a story that inevitably varies. Mackenzie was
with me. Five guys, six guys, eight guys. Mackenzie wasn’t there.

Couldn’t tell you anything about the guys, didn’t see any of them. One of them had skinny arms. One of
them looked a lot like one of the first police officers. Can’t remember detail, he embellishes. “You can’t see
my injuries because I used to break-dance a lot”. My Smith says, well it’s a bad story. It’s highly
suspicious, no police officer believed it.”

Robert McGregor isn’t a great liar, but he isn’t a terrible one either. That story had alibi, it had Joanne
missing, it explained things if Robert happened to be disheveled. It explained a bit of delay before he could
get back home. When he concocted that story, it was when he was putting together this plan. He may
have expected to come away with injuries. As it happened, he was able to deal with 105—108 pound
Joanne Mackenzie and sustain very little, if no injury. But he kept to the story that was part of his plan that
he prepared. And once more, what’s the location in his story, what’s his alibi spot? The Rehill parking lot.
A parking lot he tells Detective Coburn, “Doesn’t have any cameras to my knowledge ‘cause if it did, my
friends would have been caught for stuff there.” He picks a location and he’s ready to tell people about it
right away.

So consider all of that, when you consider whether that story was thought out, deliberate, considered.
Think about all of the basis that that story covered. Maybe it’s not a great story, but make no mistake it was
part of the plan to tell it. 61 [Emphasis added.]

76. The trial judge also implicitly invited the jury to rely upon the delivery of the cover-

up story in the course of summarizing the Crown’s position. The following passage was

near the end of the Charge:

Robert McGregor, says the Crown, put a plan into place. He had his daughter that weekend of July 2 nd. He
created a lie about her well-being in order to get Joanne alone with him. He would transport Joanne while
she held the belief that she was going to see her daughter. Instead, Robert McGregor was going to get her
out into a remote field just beyond his home in Lakefield. He would stab her, clean up, hide evidence,
change his clothes and return home swiftly before anyone was the wiser. He had an alibi already, a story
about being jumped by six men. It would cover off his delay, any injuries that might result in his
confrontation with Joanne, and explain that Joanne had never met with him and had simply disappeared.
He would cover up with texts to Joanne’s phone, inserting his alibi story, explaining he was worried about
her, imploring her to call after he had killed her. 62 [Emphasis added.]

61
Closing address by Crown counsel, Vol. 17, p.288, l.10-p.290, l.5
62
Charge to the jury, Vol. 18, p.224, ll.1-22

35
77. Inconsistent with that invitation, the trial judge also instructed the jury that none of

the post offence conduct could be considered in assessing the first degree murder issue.

She said:

Members of the jury, evidence of what a person said or did after offences were committed may help you
decide whether the person committed them, or it may not. What a person said or did after offense were
committed is a type of circumstantial evidence, it is for you to say what inferences should be drawn from
this evidence. You may use this evidence, along with all of the other evidence, in deciding whether the
Crown has proven Mr. McGregor’s guilt beyond a reasonable doubt, within the limits of this instruction.

As circumstantial evidence, evidence of after-the-fact conduct has only an indirect bearing on the issue of
Mr. McGregor’s guilt, because you may only consider this evidence in relation to whether he acted in self-
defence or whether he was provoked in the circumstances in which Joanne Mackenzie died. You may not
infer that he is guilty of murder or kidnapping on the basis of his after-the-fact conduct, because there may
be other explanations for his conduct.
…

Remember that you must not consider any of the words of conduct of Mr. McGregor that occurred after the
offence with which he is charged as evidence of any intention or planning to commit murder or kidnapping.
You must not therefore, consider any of his post-offence conduct as evidence of either first or second
degree murder, or kidnapping. His post offence words and conduct have no probative value as to whether
there was an intention, or whether there was planning or deliberations to murder or kidnap Joanne
Mackenzie. Remember to consider all of the evidence. 63 [Emphasis added.]

78. The only possibly conclusion that the jury could have come to was that the speed

of the cover-up did not fall under the rubric of “post offence conduct”. In other words, the

jury would not have understood that they needed to approach that piece of post-offence

conduct – being the most significant piece of post offence conduct - with the caution

necessary in dealing with post offence conduct generally. Notably, in her summary of the

post offence conduct that needed to be approached with caution, she listed the other

times that the Appellant gave that same cover-up story but notably excluded the evidence

that he also gave that story at 9:49 the morning of the stabbing. The relevant portion of

the post offence conduct instruction was as follows:

He told friends and family members that he had had not seen Joanne Mackenzie that morning of July 2 nd,
2011, and that he had been jumped and beaten by a number of unidentified assailants. He gave this
account of having been jumped, and not having seen Ms. Mackenzie to the police who came to his home
on the evening of July 2nd, and again in the early morning of July 3rd. He sent an accusatory text to Joanne

63
Charge to the jury, Vol. 18, p.165, l.1-p.169, l.20

36
Mackenzie’s phone about having been jumped. He told police on July 5 th and 6th that he had not seen
Joanne. 64

79. The Appellant submits that this crucial piece of post offence conduct was exactly

the type of equivocal evidence that the jury needed to be cautioned about. To clarify, the

Appellant maintains the position of trial counsel that the speed of the cover-up story could

not in fact be evidence of a plan. His cover-up story was terrible. It included the

Appellant suggesting that the deceased was missing well before anyone else would have

noticed she was gone and his story was so implausible that police immediately suspected

it was untrue. There was no independent evidence that it was concocted before the

stabbing.65 The Crown conceded that the plan was not a good one.66 Accordingly, the

Appellant submits that the trial judge erred in inviting the jury to rely upon the timing of the

cover-up story as evidence of a plan.

80. More importantly, even if the evidence was relevant to first degree murder, it was

imperative that the trial judge provide a limiting instruction that would have related to this

piece of evidence in particular. The evidence was equivocal. The trial judge herself

clearly grappled with whether it had any relevance to planning.

81. The trial Crown conceded that a limiting instruction or warning would be required

with respect to this piece of post offence conduct. As she pointed out, the relevance of

the evidence was dependent on whether the offender would have been in shock for 10

minutes after a non-planned murder, such that he could not formulate a plan. She

64
Charge to the jury, Vol. 18, p.166
65
For example, if he had concocted in advance the story that he was beaten up by 6 men
and never saw the deceased, he may have asked to meet the deceased in a place where he
could have been beaten up – in case anyone saw in his truck- and may have not chosen to
meet the deceased in a Tim Horton’s parking lot on a busy Saturday morning.
66
Submissions by Crown counsel, Vol. 16, p.81, ll.20-30

37
compared the relevance of this piece of post offence conduct to the relevance of the lack

of hesitation in White (2011), supra. Although there were differing opinions in White with

respect to whether the evidence was relevant, the justices were in agreement that, if it

was relevant, the jury had to be cautioned about relying upon such equivocal evidence.

Speaking for the majority on this issue, Binnie J. implied that a caution is particularly

necessary when the relevance of the evidence depends on what a normal person would

do in the circumstances:

Attempting to ascertain an accused's state of mind from second-hand accounts of his or her
demeanour after a traumatic event may well turn too much on subjective factors such as the accused's
particular personality, his level of awareness of the circumstances and the cultural background of both
the observer and the observed. One commentator cited with approval in the Kaufman Report makes
the point as follows:

... while departure from the stereotype might legitimately arouse the suspicions of investigators,
an inference of guilt can not be safely drawn from it.... The most that can be said is that the
accused's emotional responses to the event appeared to be unusual. Guilt would, of course, be
one explanation for the apparently unusual nature of the accused's responses; but another
equally plausible one would be that the accused's general emotional responses or levels of
expressiveness differed from the norm. Without recourse to a battery of psychological testing, or
the admission of a host of evidence about how the accused had responded in other,
comparable, situations (if indeed any could be found), it is difficult to see how the jury could ever
eliminate this possible explanation.

(A. Palmer, "Guilt and the Consciousness of Guilt: The Use of Lies, Flight and other 'Guilty
Behaviour' in the Investigation and Prosecution of Crime" (1997), 21 Melbourne U. L. Review
95, at p. 142
(underlining added by Binnie J.))

In support of his position to leave it all to the jury's good sense, Rothstein J., at para. 56, cites Corbett,
but of course in Corbett it was held by Dickson C.J. that the use the Crown could make of an
accused's criminal record should be limited by a "clear instruction":

In my view, the best way to balance and alleviate these risks is to give the jury all the
information, but at the same time give a clear direction as to the limited use they are to make of
such information. Rules which put blinders over the eyes of the trier of fact should be avoided
except as a last resort. It is preferable to trust the good sense of the jury and to give the jury all
relevant information, so long as it is accompanied by a clear instruction in law from the trial
judge regarding the extent of its probative value. [Underlining added by Binnie J]

R. v. White, supra at paras. 183-184

82. This error was in itself significant. As noted above, the trial judge initially

concluded that the timing of the cover-up story was not relevant to whether there was a

38
plan. This conclusion came at the end of a lengthy discussion, in which defence counsel

strenuously submitted that none of the post offence conduct was relevant to first degree

murder. The trial judge was thereafter persuaded that it was relevant, and in that process

she acknowledged that it fit within the “post offence conduct” category. She allowed the

Crown to invite the jury to rely upon it and she implicitly invited the jury to do the same in

her summary of the Crown position. She therefore had to ensure that the jury did not

misuse that evidence and should have tied that evidence to the limitations on post

offence conduct. Instead, in the course of cautioning the jury against post offence

conduct, she confused the issue entirely by suggesting that the post offence conduct

could not relate to planning at all. The jury could not have understood that the caution

applied to the evidence that they were invited to rely upon to find there was a plan. The

jury was left with no caution against relying upon the key piece of post offence conduct,

which was, absent the proper instruction, susceptible to jury misuse. It simply cannot be

said that the verdict would have been the same had the jury been properly cautioned in

relation to the speed of the cover-up story. Accordingly, the verdict must be quashed and

a new trial ordered.

Issue 3: Did the trial judge err in instructing the jury that they could use the post
offence conduct to assess provocation?

83. The Appellant submits that the trial judge further erred in instructing the jury that

the post offence conduct was relevant to “provocation”. Crown counsel conceded it had

no such relevance. Not only was it an error to instruct them it was relevant, but it was

error that went to the heart of the defence since the defence centered on provocation.

84. The trial judge instructed the jury as follows:

As circumstantial evidence, evidence of after-the-fact conduct has only an indirect bearing on the issue of
Mr. McGregor’s guilt, because you may only consider this evidence in relation to whether he acted in self-

39
defence or whether he was provoked in the circumstances in which Joanne Mackenzie died. You may not
infer that he is guilty of murder or kidnapping on the basis of his after-the-fact conduct, because there may
be other explanations for his conduct.67 [Emphasis added.]

85. Importantly, it was defence counsel’s position that it was mostly, if not entirely due

to provocation, that the Appellant should be convicted of manslaughter and not murder.

According to the defence, the Appellant either met the statutory definition of “provocation”

or he was “provoked” into an unintentional killing. The defence also suggested that the

evidence of provocation was relevant to the planning issue. The defence theory was

summarized in the following passages:

…the evidence points to an argument, the getting in the field, ending rapidly a provoked killing in the heat of
passion. Bear in mind the evidence of the pathologist, that those wounds were rapidly inflicted, and
resulted in death very quickly.68 [Emphasis added.]

…Joanne’s death was not planned, it was not intentional, it was a sudden reaction born out of anger and
provocation. Joanne, according to Mr. McGregor, was frustrated by him, by her [sic] interference in her
private life. She finally had a new boyfriend, Robert insulted him and the new relationship. And we say that
you should find that she lost control that morning. As he walked away, she pulled out the knife and she ran
at him, and she attacked him and knocked him to the ground, just like she did in Apsley some years before.
Robert responded quickly and violently. He was provoked, there are elements of self-defence involved,
that this is manslaughter at its highest. 69 [Emphasis added.]

The evidence we have, is that the wounds were inflicted in rapid succession. That they were wounds – that
the wound to the neck that severed the corroded artery, bled profusely and fast. That the onset of shock
and then unconsciousness, and finally death, all would have happened with great speed. All of a sudden it
was over, he had not time to calm before the act was done, he had not time to think it though. Rather, he
as provoked by her sudden wrongful act, the knife attack. He lost self-control. An ordinary person with Mr.
McGregor’s characteristics, and full knowledge of everything that had transpired before with Ms.
MacKenzie, would’ve lost control too. And that is why it’s a manslaughter case. It was an act of passion
and anger, provoked by Ms. MacKenzie. 70 [Emphasis added.]

Now the law provides for circumstances like this, where an average person confronted with a situation and
loses control. This is a defence at law to murder, it reduces what would otherwise be murder to
manslaughter. That defence is called “Provocation,” and that’s what happened here. This defence is
evolved over time, to recognize that sometimes, often times within a domestic relationship, certain acts or
insults can produce a sudden rage, an onset of anger, and a loss of control based on that anger. 71
[Emphasis added.]

67
Charge to the jury, Vol. 18, p.165, l.1-p.169, l.20
68
Closing submissions by defence counsel, Vol. 17, p.167, l.30-p.168, l.3
69
Closing submissions by defence counsel, Vol. 17, p.175, ll.17-33
70
Closing submissions by defence counsel, Vol. 17, p.203, l.20-p.204, l.5
71
Closing submissions by defence counsel, Vol. 17, p.205, ll.9-20

40
86. Thus provocation was the focus of the defence. Accordingly, the trial judge’s

instruction that all of the post offence conduct was relevant to assessing whether he was

in fact provoked, was essentially an instruction that the post offence conduct was relevant

in assessing whether they should accept the defence theory.

87. The Appellant submits that the post offence conduct cannot be both irrelevant to

whether he was guilty of murder and relevant to provocation. These conclusions by the

trial judge were irreconcilable and the trial judge erred in giving these two contradictory

instructions. Instead, as was argued by defence counsel, the jury should have been

instructed that the post offence conduct was only relevant to whether or not he acted in

self defence. Not only did defence counsel take that position before the trial judge

drafted a charge, but he specifically objected to the trial judge suggesting the post

offence conduct was relevant to provocation after she drafted the charge. He said:

…I just don’t want it to be taken because I don’t mention it here to be passively not objecting to that part of
the charge. In other words, I take it that Your Honour given the charge, was ruled against us when we had
advocated that post-offence conduct is only relevant here to the issue of self-defence because you’ve left it
with respect to provocation, and therefore, manslaughter as well. So I just didn’t want that to go without
comment from the defence.72

88. When Crown counsel was invited to respond, she conceded that the post offence

conduct was not relevant to provocation. In particular, she took the position that the post

offence conduct was not “relevant to the level of culpability, apart form the planning and

deliberation”.73 Thus, Crown and defence both agreed that the post offence conduct was

irrelevant to provocation. After hearing those submissions, there was the following

exchange, in which there was apparently a significant miscommunication:

72
Pre-charge conference, Vol. 17, p.109, l.30-p.110, l.10
73
Pre-charge conference, Vol. 17, p.111, ll.1-13

41
 The Court: So, Mr. Smith, given my rulings it would make sense to me that the instruction be
amended, as you suggest, to make it clear that the post-offence conduct may be considered
with respect to self-defence and provocation, but not with respect to manslaughter, or the
planning deliberation, or intention to kill?

Mr. Smith: Yes, Your Honour.74 [Emphasis added.]

89. After that ruling, both the defence and the Crown were seemingly of the opinion

that the trial judge had agreed that the post offence conduct was irrelevant to

provocation. Defence counsel made submissions premised on that position, which were

not corrected by the trial judge.75 Crown counsel was explicit in her understanding of the

outcome of that discussion. She said:

The Court: I think my ruling was, post –offence conduct would not be received as evidence of
intention or planning and deliberation.

Crown: Right.

The Court: But it was relevant to provocation and self-defence.

Crown: I thought….I thought we had cleared up the other day, we said it was not to
provocation, and we had agreed with that. My friend had asked—said that was actually
against what they wanted, we had corrected it. And we said that’s fine, it was only to self-
defence.

The Court: Well whatever. 76 [Emphasis added.]

90. Despite counsel agreeing that the post offence conduct was not relevant to

provocation, the trial judge invited the jury to find it was. Considering that juries are

susceptible to overemphasizing the importance of post offence conduct and considering

that the jury was given a copy of the charge, it can be assumed that the jury relied upon

this erroneous instruction in finding that the Appellant was not provoked. The

significance of the jury having a copy of the charge with the inaccuracy was highlighted in

the following passage of Poitras, infra:

74
Pre-charge conference, Vol. 17, p.111, ll.14-20
75
Pre-charge conference, Vol. 17, p.135, l1.10-25
76
Pre-charge conference, Vol. 17, p.324, l.33-p.325, l.15

42
R. v. Menard, [infra] does, however, make the point that care must be taken as to the content of any
written material given to the jury, its format and the manner in which that material is presented to the
jury. If a jury is given written material to assist in recalling and applying the oral instructions, it is only
sensible to assume that that written material will be relied on by the jury during its deliberations. Any
inaccuracy or inadequacy in the written material, or any confusion or unfairness created by that
material is likely to have a serious impact on the validity of any verdict returned by the jury. The high
premium placed on ensuring that written material is accurate and fair should not discourage the use of
written material but should encourage careful preparation of any written material that is given to the
jury. [Emphasis added]

R. v. Poitras (2002), 1 C.R. (6th) 366 (Ont.C.A.) at para. 48

R. v. Menard (1996), 108 C.C.C. (3d) 424 (Ont.C.A.) at 431 aff’d., (1998), 125
C.C.C. (3d) 416 (S.C.C.) at 430

R. v. Edelenbos (2004), 187 C.C.C. (3d) 465 (Ont.C.A.) at paras. 21, 23

91. Notably, the post offence conduct had minimal value in this case since the defence

invited the jury to convict of manslaughter in his closing address. The limiting instruction

on post offence conduct should have been very strong and unequivocal. Instead, the

trial judge made two significant errors in instructing on this issue. She failed to give the

jury any caution with respect to the most significant piece relied upon by the Crown and

she invited the jury to rely upon the post offence conduct in essentially assessing the

entire defence position. As a result, the jury was not properly cautioned about the

significant dangers associated with post offence conduct and accordingly, it cannot be

said that the verdict would necessarily have been the same had the errors not been

made.

Issue 4: Did the trial judge err in not including a separate box on the decision tree
for provocation?

92. The Appellant submits that the trial judge erred in refusing to add a separate box

on the decision tree for provocation as defined in s.232 of the Criminal Code. The

Appellant submits that a separate box was needed to ensure the jury understood that the

issue of whether he was “provoked” was a completely separate issue from whether he

43
had the mens rea for murder. The refusal to add a separate box added to the unfairness

of the trial.

93. The defence explicitly requested that the decision tree include a separate box for

the issue of the partial defence of provocation, that should follow the box asking whether

the Appellant formed the mens rea for murder. In the following exchange, he explained

that he wanted to ensure the jury understood that even if they found the Appellant had

the mens rea for murder, he should still be convicted of manslaughter if the statutory

definition of provocation was met:

Defence: I would still suggest that there must be an independent box there, was the murder
provoked; answer yes, final verdict manslaughter; no – then back down to where we are, but I
don’t take issue with my friend’s comments about….

The Court: So you say, there should be another box saying, yes or no, to whether he was
provoked?

Defence: Yes, because it’s only once they have come to the conclusion, in box three, that he
did have the required mental state, only then does provocation come into play. So it’s a
separate consideration, it’s worthy of a separate box for them to consider that. So yes, we
found that he had the mental state required for murder. Do we believe that he was provoked,
if yes, then final verdict; manslaughter. If no, then they continue on down the tree? 77

R. v. Gilling, 1997 CarswellOnt 2353 (Ont. C.A.) at para. 22

94. There was no basis to refuse this request. The refusal seems to flow from a

misunderstanding of the legal principles on the part of the Crown and the trial judge. The

following submissions by Crown counsel suggest she erroneously believed that the

statutory partial defence of provocation was a part of the intent issue:

Crown: Your Honour, I think they’re the same thing, they’re the same question. Asking
whether Mr. McGregor has the state of mind required for murder, if they answer yes, they have
decided that provocation did not reduce his level of intent, or provocation did not affect us
being able to prove his level of intent. So it’s the same question. And I agree, I don’t have an
issue with it being brought to the jury’s attention within that box. But that is the provocation,
whether or not they find it exists is what the jury is considering when they decide yes or o;
state of mind required for murder.

77
Pre-charge conference, Vol. 17, p.145, ll.1-20

44
 The Court: What’s the harm of putting in a separate box dealing with provocation?

Crown: More boxes, more there are is more confusing. And I think it’s wrong. You don’t
say he has the state of mind required for murder, and then he doesn’t. You ask yourself, does
provocation not allow us to get there or does provocation reduce that? Once they’ve
answered he has the state of mind required for murder they’ve answered it. 78

95. After defence counsel made further submissions to the effect that provocation was

only a live issue if the jury found that the Appellant did in fact have the mens rea for

murder, the trial judge summarized her position in the following statement:

Well, in that light, wouldn’t it be better to simply say, did Mr. McGregor have a state of mind required for
murder; period? And that requires the full analysis of provocation. 79

96. The Appellant submits that the fact both the trial Crown and the trial judge

seemingly misunderstood the law in this area, such that they seemingly believed that

provocation was only relevant to the extent it impacted whether the Appellant formed the

mens rea for murder, reveals that the jury may very well have been similarly confused.

There was no basis to refuse the Appellant’s request for a separate box and the decision

to do so further impacted the fairness of the trial.

Issue 5: Did the trial judge err in failing to provide a correcting instruction
regarding the Crown’s closing address?

97. The Appellant submits that the trial judge should have provided a correcting

instruction in relation to the Crown’s closing address after requested to do so by defence

counsel. In particular, the Crown’s closing was improper in that it invited the jury to

speculate, it included evidence not before the jury, it invited the jury to rely upon a prior

consistent statement to bolster a witnesses’ reliability, and, as recognized by the trial

judge, was inflammatory. Considering the trial judge herself seemed to agree that

Pre-charge conference, Vol. 17, p.145, l.22-p.146, l.13. Also see: Vol. 17, p.315, l.25-p.316,
l.5
79
Pre-charge conference, Vol. 17, p.146, ll.28-32

45
portions of the Crown counsel’s closing were inappropriate, there should have been a

correcting instruction.

R. v. Mallory, 2007 ONCA 46 at paras. 338-340

R. v. A.T., 2015 ONCA at paras. 26-31
98. The Supreme Court of Canada recognized the significance of closing addresses in

Rose, infra. The Court acknowledged “the powerful persuasive force which well-crafted

and skillfully presented submissions may have in a jury trial”. In assessing the prejudice

to the Appellant’s fair trial rights, it must be kept in mind that the Crown was required to

not only avoid impairing the Appellant’s right to a fair trial, but in fact had the duty to

ensure he had a fair trial. The role of the Crown in criminal prosecutions is of special

import, with duties and obligations which transcend the mere function of ‘counsel’ in an

adversarial process. Accordingly, the Court should be wary of any inappropriate

language in the Crown’s closing.

R. v. Rose (1998), 129 C.C.C. (3d) 449 (S.C.C.) at paras. 23, 104 and 108
R. v. Ferguson (2000), 142 C.C.C. (3d) 353 (Ont.C.A.) at para. 41

Crown counsel invited the jury to speculate

99. In her closing address, Crown counsel introduced a very specific theory as to what

happened. The Appellant submits that the theory necessarily relied upon speculation and

accordingly, the Crown invited the jury to rely upon speculation. The Appellant points to

the following portions of the Crown theory as problematic:

i) The Appellant must have had her phone, because she did not respond to text
messages
Crown counsel submitted that because the deceased did not respond to the texts she
received from Jessup between 9:29 and the time of death - which on the Crown theory

46
was approximately 9:3980 - that was evidence that the Appellant must have had her
phone during that time period. She said:
And when you’re asked to consider, did Robert McGregor have Joanne under control when the
vehicle stops, even when they get out of that vehicle? Consider this, you now her phone wasn’t
found with her. You know she always had it. You know she was talking to Robert McGregor that
morning on it. You know she always returned her messages and her calls. She didn’t return the last
texts into her phone. Those texts that came at 9:29 through to 9:32 from Drew Jessup. We know
those were her last received texts because you heard from the phone company representative. Her
records were produced on subpoena. But who else knew that Drew was the last person to text her?
Robert McGregor did… So how did he know? I submit to you the answer is obvious, because he had
her phone. He also said to police that after his last call with Joanne at 8:55, she must have shut off
her phone almost immediately. Why does he say this? Because he did. He had her phone in his
hands. And if her phone is in his hands, she’s under his control. It’s that simple.81 [Emphasis
added.]

The Appellant submits that the jury could not have relied upon the fact that she did not
respond to Jessup’s texts immediately as evidence the Appellant had her phone for the
following reasons:
 Jessup did not say how quickly the deceased typically responded to his text
messages, only that she always responded. The only viva voce evidence
regarding how fast she would respond to text messages generally came from
her cousin, who suggested she responded within 20 minutes, and her brother,
who suggested she responded within seconds; 82

 Jessup did not remember sending her text messages on July 2, 2011. He was
not concerned about her lack of response and in fact went back to sleep when
she did not respond; 83

 There was no evidence regarding the content of the text messages and
therefore whether they even prompted a response; 84 and,

 The phone records revealed there were several times when Jessup had in fact
texted her and got no response for well over 10 minutes. For example, on June
30, Jessup texted her at 22:06:38, 22:08:17 and 22:27:55, and got no text in
80
Pre-charge conference, Vol. 16, p.78
81
It was obvious that he had her phone and disposed of it after the offence, so the only issue
was whether he had the phone while she was still alive or whether he retrieved it after he
killed her. The only evidence the Crown pointed to that would assist with that issue was the
fact she did not respond to her texts. See: Crown counsel’s closing address, Vol. 17, p.258,
l.1-p.259, l.10

Evidence of M. Coppins, Vol. 2, p.144, ll.17-21; Evidence of Hanlon, Vol. 3 p.130, ll.1-10;
Jessup’s only evidence was that she always would get back to him (vol. 4, pp.118-ll.7-15)
83
Evidence of Jessup, p.144, ll.8-17; pp.169-170
84
The deceased’s phone records, Exhibit 5 in the Appeal book

47
 response until 22:41:30; and on July 1, he texted her at 14:38:44 and 14:59:09
and got no text in response until 15:56:55; and finally later on July 1, he texted
her at 18:26:09 and 18:30:23 and then called her at 20:37:45. These examples
are from only the two days before her death.85

The Appellant submits a finding that the Appellant had her phone as of 9:29 was not a
reasonable inference on the evidence.86 Crown counsel was inviting the jury to
speculate.

ii) The deceased would have insisted on seeing Mackenzie immediately

Crown counsel asked the jury to conclude that the deceased would not have agreed
to go to the rock pile, because she would have insisted on seeing Mackenzie
immediately. After acknowledging that the jury “will never know” what the Appellant
and the deceased discussed in the truck87, Crown counsel said:
So what you do know is Joanne MacKenzie would have been hell-bent on seeing her little girl.
After being told she was in pain, needed to go to the hospital, making allegations of being
touched, you know she would have needed and wanted to see her. So that any diversion was
not the choice of Joanne.88

Notably, according to Jessup the deceased knew before she left his place that
morning that the Appellant was alleging Jessup touched their daughter
inappropriately and she was so confident that no such thing had happened, that she
did not even question Jessup. 89

Thus, if she heard in the truck that the Appellant’s only real concern was with
whether Jessup had touched Mackenzie, and knew that Mackenzie was at home
happily playing, she may or may not have felt a need to see her daughter. Instead,
her concern may have been with convincing the Appellant that Jessup was not such
a bad man. It would have been pure speculation to conclude that she would have
insisted on seeing her daughter immediately in the circumstances.

85
The deceased’s phone records, Exhibit 5 in the Appeal Book
86
Objections by defence counsel, Vol. 17, p.301, ll.8-25
87
Closing submissions of Crown counsel, Transcript Vol. 18, p.258, ll.15-30
88
Crow counsel’s closing address, Vol. 17, p.259, ll.15-22
89
Evidence of Jessup, Vol. 4, p.140, ll.26-28; p.142, ll.25-30

48
 iii) After the initial struggle, the Appellant pursued the deceased until he caught up
with her and killed her
Crown counsel invited the jury to find a very specific series of events occurred near
the rock pile after the initial struggle, which was not founded on the evidence. She
said:
This is not self-defence. This is not manslaughter. There’s a plan to kill her in these trees.
Joanne Mackenzie gets this far to where the blue tarp is. She was pursued. He caught up to
her before she got back to that roadway, to that truck before she got away. That’s where it
started, that’s where it ended. 90
…
This was not Robert McGregor losing self-control due to a provocative act. This was an
attack, over a distance, from one spot to another. A distance that nearly brought Joanne
MacKenzie back to the road, nearly out of that field, nearly to safety. She met her death at
that blue tarp. I submit to you, that on this evidence you could find she ran, she was caught up
with, she was on the ground. And she was stabbed over, and over, and over, and over, and
over, and over. And I still haven’t gotten there. Over, and over, and over, and over, and over,
and over, and over, and over; 15 times.91 [Emphasis added.]

There was no evidence to support such a specific series of events. There was no

evidence that the deceased left the rock pile before the Appellant. There was no

evidence that he was pursuing her over a distance. There was no evidence to support a

finding that the deceased was attempting to get away from the Appellant between the

rock pile and the spot with the blue tarp. The only positive evidence of what happened

was the Appellant’s surmise that he must have been walking back towards the truck

when she came at him with a knife.92 The jury was entitled to reject the Appellant’s

version, but the jury could not then make a positive finding of what happened exactly, as

the Crown requested them to do.

100. Defence counsel made lengthy objections to the Crown’s closing address with

specific references to her inviting the jury to speculate.93 The trial judge had a duty to

90
Submissions by crown counsel, Vol. 17, p.281, ll.2-8
91
Submissions by crown counsel, Vol. 17, p.287, l.29-p.288, l.10
Statement of the Appellant on July 6, 2011 (final statement), Exhibit 20a of the Appeal book,
p.16
93
Objections by defence counsel, Vol. 17 of the Transcript, pp.299, 301, 302, 303, 304

49
ensure that the jury understood the difference between a reasonable inference and

speculation and therefore was required to ensure the jury understood they could not

make the positive findings suggested by the Crown. Her refusal to give such an

instruction was a serious error.

Crown counsel overstated the evidence

101. Crown counsel’s closing was further problematic in that it overstated a significant

piece of evidence. Crown counsel implied in both the opening and closing addresses that

the Appellant expected to lose custody of his daughter on July 12, 2011, which suggested

he had a motive to kill her immediately. The Appellant submits that there was a lack of

evidence to support that assertion. Defence counsel strenuously objected.94 Considering

the importance of this evidence and the objections by defence counsel, the trial judge

should have at least reviewed the weaknesses with the evidence supporting the Crown’s

assertion in the charge to the jury.

R. v. J.S., 2018 ONCA 39

102. In the opening, Crown counsel said:

The July long weekend was the last weekend Robert McGregor had the care of his daughter before her
custody was going to be determined by a family court on July 12 th, and in texts sent to his aunt shortly
before this weekend, Mr. McGregor stated that he believed that he’s going to lose his family court case for
the custody of Mackenzie.95 [Emphasis added.]

103. After the opening, defence objected.96 Further, after the evidence was closed the

defence asked the trial judge to include a correcting instruction in the charge to the jury

regarding the Crown’s suggestion in the opening address.97 Not only did the trial judge

94
Objections by defence counsel, Vol. 2, p.31, ll.1-8; p.33, ll.5-15; Vol. 16, p. 159, ll.20-30
95
Crown’s opening address, Vol. 2, p.19, l.25-p.20, l.2
96
Objections by defence counsel, Vol. 2, p.31, ll.1-8; p.33, ll.5-15
97
Objections by defence counsel, Vol. 16, p.159, ll.20-30

50
not provide a correcting instruction in relation to the opening address, but after defence

counsel’s request for the correction, Crown counsel suggested again that the Appellant

believed he was going to lose custody on July 12. She said in her closing address to the

jury:

If this was an unexpected tragedy, what a remarkable coincidence that it was mid-custody battle. She
won’t agree to mediation. Ten days from now is court, he thinks he’s going to lose.98 [Emphasis added.]

104. There was no evidence to support a finding that anything was going to be decided

on July 12. There was evidence that the Appellant believed something was going to

happen on that date, but that evidence came from the Appellant’s mother alone and she

testified that the Appellant believed that he was going to gain custody on that date. Thus,

there was a lack of evidence that he believed he was going to lose custody of his children

on July 12. The Appellant sent text messages expressing concern about the custody

issue, but none of them referenced the July 12 court date. Thus, the Crown’s proposition

that the Appellant believed he would lose custody on July 12 was premised on an

acceptance of the Appellant’s mother’s evidence that he expected something to happen

on July 12, and a rejection of her evidence that he believed it would be decided in his

favour, and an acceptance that the text messages revealed he believed it would be

decided against him. Considering the weaknesses of this evidence of motive, the trial

judge should have at least alerted the jury to the evidence the Crown was relying upon to

make that assertion.

Crown counsel gave evidence and invited the jury to rely upon a prior consistent
statement
105. Crown counsel gave evidence to the effect that Drew Jessup made a prior

consistent statement and implicitly asked the jury to rely upon that prior statement to

98
Closing address by Crown counsel, Vol. 17, p.272, ll.28-33

51
bolster Jessup’s reliability. Both of those acts were inappropriate. There was evidence

before the jury that Jessup made a statement 2 days after the offence99, but the content

of that statement was not before the jury. The jury would not have known whether the

prior statement was consistent or inconsistent with his trial evidence. Yet the Crown

implied to the jury that it was a consistent statement. She said:

And Drew Jessup; Mr. Smith spent some time on Drew Jessup. Yes, he figured prominently into the lives
of these people. Yes he had some memory issues, as did every witness. Was anything Drew Jessup said
really controversial? He’s confirmed on almost everything he tells you folks.

My friend pointed out while these people are telling you about things that happened years ago, one can
expect them to have bad memories. But you know, and these people were asked about giving statements
to the police right around the time these events are happening. So don’t let anyone tell you that the first
time they had to reach back into their memory was when they stood before you. You know that they had an
opportunity to get a recorded version of their story right around the time that these events were happening
and to rely on that.100 [Emphasis added.]

106. Crown counsel was implicitly inviting the jury to rely upon the fact that there was a

prior consistent statement to bolster the witness’ evidence. There is generally no

probative value in the fact that a witness gave the same evidence twice. After defence

counsel objected to this portion of the closing,101 Crown counsel submitted that she

“certainly” did not make reference to “prior consistent statements, nor did [she] suggest

that anyone had a prior consistent statement”.102 Although it was not explicit, the

Appellant submits she clearly implied that the prior statement was consistent.

R. v. Divitaris (2004), 188 C.C.C. (3d) 390 (Ont.C.A.) at para. 28

99
Evidence of Jessup, Vol. 4, pp.176-180
100
Crown’s closing address, Vol. 17, p.233, ll.5-17
101
Defence counsel’s objections, Vol. 17, p.300, ll.5-12
102
Crown counsel’s submissions, Vol. 17, p.307, ll.1-20

52
Crown counsel used emotive language
107. Finally, the Appellant submits that some of the Crown’s language unnecessarily
conjured up sympathy for the deceased. For example, at the tail end of her closing she
said:
Robert McGregor was distressed about the consequences. He didn’t want to be in jail for the rest of his life.
He wanted to see his little girl grow up, graduate. He wanted to be at her wedding. Well so did Joanne
MacKenzie. But her life was cut brutally short on July 2 nd by Robert McGregor, in a cold, calculated,
planned and deliberate way.103

The trial judge herself recognized that the Crown’s language was unnecessary and

appealed to the sympathy of the jurors. She said:

It’s not in the best tradition of advocacy. Mr. Smith, and I think you can readily recognize the difference that
Mr. Smith, when he made the characterizations he did, was recognizing the reality that what happened to
Ms. MacKenzie is “Sickening”. And that’s not the same thing as suggesting to the jury, as you did, that
appealing to their sympathy “That she was cheated out of her life.” “That her life was cut short”. 104

Trial judge’s response to defence counsel’s objections

108. The trial judge seemingly accepted defence counsel’s position that the Crown’s

closing was inappropriate. In reference to the Crown’s closing, she used the following

phrases, “I will tell you what bothered me….”105; “I am not saying I am going to give a

correcting instruction on it, but it is not unfair for [defence counsel] to be concerned about

the manner in which you chose to respond to that in your submission” 106; “Ms.

Wannamaker, this is not a discussion, this not an argument, this is my ruling, that I think

your friend’s concern was well founded” 107; “So I think you were off-side, mildly, on that”

; “It’s not in the best tradition of advocacy…”109; What the defence did was “not the
108

103
Crown counsel’s closing address, Vol. 17, p.297, ll.2-10
104
Trial Judge’s comments, Vol. 17, p.317, ll.1-12
105
Trial Judge’s comments, Vol. 17, p.307, ll.22-25
106
Trial Judge’s comments, Vol. 17, p.309, ll.11-16
107
Trial Judge’s comments, Vol. 17, p.309, ll.20-26
108
Trial Judge’s comments, Vol. 17, p.309, ll.30-31
109
Trial Judge’s comments, Vol. 17, p.313, l.30-p.314, l.1; p.317, ll.1-2

53
same thing as suggesting to the jury, as you did, that appealing to their sympathy” 110; “If

only that had been put to the witness, I’d be so much more comfortable with [you leaving

that inference with the jury]”111; and, “It’s a pretty loaded fact you’ve left with the jury,

when it was left as a series of unconnected dots, that’s his concern” 112.

109. In light of the concerns of the trial judge, a correcting instruction should have been

given. Indeed, as noted by the Supreme Court of Canada in Rose, supra, trial judges

should not hesitate to make a correcting instruction if a closing address was

inappropriate. That principle was highlighted in the following passage of Tuck, infra:

In R. v. Rose, [1998] 3 S.C.R. 262 (S.C.C.) at para 126-127, the Supreme Court of Canada held that "[i]t is
not only appropriate for a trial judge, in a charge to the jury, to undertake to remedy any improper address
by counsel, but it is the duty of the trial judge to do so when it is required." The Court also stated, "The
judge should not hesitate to correct errors of counsel in order to preserve the fairness of the trial process.
Taking this step will ensure fairness in the vast majority of cases." We would add that a limiting instruction
could have been made without "throwing mud" on defence counsel, as the trial judge feared.

R. v. Tuck, 2007 ONCA 556 at para. 46

110. In the case at bar, the trial judge refused to correct any of the improprieties on the

basis that it may result in an unbalanced charge.113 Considering, as was pointed out in

the above passage of Tuck, that a well crafted charge need not throw mud at either party,

the trial judge should have provided a correcting instruction. In light of the potential

impact a closing may have on the jury, the failure to provide such a correction was yet

another serious error.

110
Trial Judge’s comments, Vol. 17, p.317, ll.5-10
111
Trial Judge’s comments, Vol. 17, p.320, ll.5-9
112
Trial Judge’s comments, Vol. 17, p.321, ll.15-17
113
Ruling, Vol. 18, p.3, ll.15-20

54
 PART IV
ORDER REQUESTED

111. The Appellant respectfully requests that the conviction for first degree murder be

quashed and that a new trial should be ordered.

The Appellant estimates that he will need 3 hours for oral argument.

Dated this 1st day of February, 2018

Richard Litkowski
Hicks Adams LLP
Barristers & Solicitors
238 King Street East
Toronto, Ontario
M5A 1K1

Tel: (416) 975-1700

Fax: (416) 925-8882

55
 SCHEDULE A

AUTHORITIES CITED

1. R. v Pare, [1987] 2 S.C.R. 618

2. R. v. Stevens, 1984 CarswellOnt 1163 (Ont.C.A.)

3. R. v. Francella, 1988 CarswellOnt 808

4. R. v. Francella, 1990 CarswellOnt 1018 (S.C.C.)

5. R. v. Arkell (1990), 59 C.C.C. (3d) 65 (S.C.C.)

6. R. v. Luxton, [1990] 2 S.C.R. 711

7. R. v. Pritchard, [2008] 3 S.C.R. 195

8. R. v. White, [2011] 1 S.C.R. 433

9. R. v. Angelis, 2013 ONCA 70

10. R. v. Bennett (2003), 67 O.R. (3d) 257

11. R. v. Rodgerson, 2015 SCC 38

12. R. v. Chambers, 2016 ONCA 684

13. R. v. Poitras (2002), 1 C.R. (6th) 366 (Ont.C.A.)

14. R. v. Menard (1996), 108 C.C.C. (3d) 424 (Ont.C.A.) at 431 aff’d., (1998), 125
C.C.C. (3d) 416 (S.C.C.)

15. R. v. Edelenbos (2004), 187 C.C.C. (3d) 465 (Ont.C.A.)

16. R. v. Gilling, 1997 CarswellOnt 2353 (Ont. C.A.)

17. R. v. Mallory, 2007 ONCA 46

18. R. v. A.T., 2015 ONCA

19. R. v. Rose (1998), 129 C.C.C. (3d) 449 (S.C.C.)

20. R. v. Ferguson (2000), 142 C.C.C. (3d) 353 (Ont.C.A.)

21. R. v. J.S., 2018 ONCA 39

56
22. R. v. Divitaris (2004), 188 C.C.C. (3d) 390 (Ont.C.A.)

23. R. v. Tuck, 2007 ONCA 556

24. David M. Paciocco, “Simply Complex: Applying the Law of ‘Post-Offence

Conduct’ Evidence” (2016) 63 C.L.Q. 275

57
 SCHEDULE B

LEGISLATION

None

58
59