Court of Appeal deals with admissibility of partial statements used as evidence of guilt

Finding that the trial judge had incorrectly instructed the jury in two key aspects of the case, the Ontario Court of Appeal has ordered a new trial for a woman convicted of first-degree murder in the killing of her ex-husband.

R. v. Merritt dealt with the admissibility of intercepted statements, which appear to be admissions of guilt but are partly unintelligible. Justices James MacPherson, David Paciocco, and Julie Thorburn found that the judge’s instructions did not adequately advise the jury that if they could not determine the meaning of the statement as a whole, given its context, the statement could not be used as an admission of guilt. The court also found that the trial judge “misdirected” the jury on the reasoning process it should use to decide whether omissions in the accused’s police interview constituted after-the-fact conduct indicating her guilt.

The justices declined to apply the curative proviso to dismiss the appeal despite the trial judge’s errors.

“The important point in this case, particularly after Schneider was released from the Supreme Court, is that anytime the jury is dealing with an incomplete statement, it’s very important that they be properly instructed that if they can’t determine the meaning of the statement, because there are inaudible portions, they can’t treat that statement akin to a confession or an admission of guilt,” says Mark Halfyard, a senior appellate lawyer at Daniel Brown Law, who acted for Melissa Merritt.

“Confessions are a type of evidence that is deceptively persuasive to jurors,” he says. “Anytime the Crown can stand up there and say, ‘The person admitted in a statement that they committed the crime,’ juries are going to give that significant weight. So, trial judges have to be very careful to make sure that jurors are equipped with the right tools to not over-rely on something that may not, in fact, be a confession… Misuse of confessions are one of the leading causes of wrongful convictions.”

In R. v. Merritt, 2023 ONCA 3, Caleb Harrison and Melissa Merritt were tangled in a bitter custody dispute when, in 2013, Harrison was found strangled to death in his bed. DNA and other evidence linked Christopher Fattore, Merritt’s common-law spouse, to the murder.

Harrison’s parents, Bill and Bridget, died in 2009 and 2010. The parents were also involved in the custody dispute, having taken over their son’s parenting time while he was incarcerated between 2009 and 2010.

The cause of Bill’s death was undetermined. He was found dead in his home in a locked bathroom with a broken sternum. But there were no other signs of physical trauma, and “violence was cast into doubt as a cause of his death because there were no associated injuries, as one might expect if the injury to the sternum had occurred at the time of his death,” said Justice Paciocco, who wrote the reasons for the Court of Appeal’s panel. Merritt abducted the children she shared with Caleb the day Bill died and left the province with Fattore.

The following year Bridget was found dead in the same house at the bottom of a staircase. Her death was the result of a neck injury. At trial, three of the four expert witnesses testified the injury was caused by “neck compression,” while the other said she likely died from falling down the stairs. Bridget’s death came 11 days after she had reported Merritt to the police for breaching bail release conditions, which were imposed after her child abduction charge.

When Caleb was found dead, he had sole custody of the children. At the time, Merritt had an outstanding application seeking joint custody, which claimed Caleb was obstructing her access.

Police arrested Merritt and Fattore for the murders of Bridget and Caleb in January 2014. They were tried jointly on the theory that Merritt was complicit in the murders. The jury acquitted her in Bridget’s murder, but she was convicted of Caleb’s first-degree murder. The jury convicted Fattore in both.

The Court of Appeal dismissed Fattore’s appeal, based on the admissibility of his confession during police interrogation that he had planned and deliberately carried out both murders.

On appeal, Merritt argued the trial judge had erred in his jury instructions concerning a statement the police had recorded her making to Fattore as the two awaited their flight back to Ontario after their arrest in Nova Scotia. The partially inaudible statement was: “[unintelligible] the audio tapes would’ve fucked us anyways.” The Crown argued at trial that this was an admission of guilt for Caleb’s murder.

In R. v. Schneider, 2022 SCC 34, said Justice Paciocco, Supreme Court of Canada Justice Malcolm Rowe “explained that if a jury can give meaning to the statement the accused made in a manner that is non‑speculative in light of all of the evidence, testimony about that statement is relevant and admissible unless excluded as a matter of discretion because its probative value is outweighed by the risk of prejudice it presents.”

The court allowed both Merritt’s grounds of appeal and ordered a new trial.

The Crown had also submitted that the court should dismiss Merritt’s appeal, despite the judge’s errors, because the errors are “trivial and insignificant” compared with the incriminating evidence. But the court found that this proviso, from s. 686(1)(b)(iii) of the Criminal Code was not applicable because there was no direct evidence implicating Merritt, and a “properly instructed jury” could be left with a reasonable doubt. This was not a case where the evidence was “so overwhelming that a reasonable and properly instructed jury would inevitably have convicted,” said Justice Paciocco.