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Improper jury instruction over partially inaudible police recording leads to retrial

Wednesday, March 01, 2023 @ 10:24 AM | By John L. Hill

Last Updated: Friday, March 03, 2023 @ 2:49 PM

John L. Hill %>
John L. Hill
Melissa Merritt and Christopher Fattore stood charged with first-degree murder after the deaths of Merritt’s estranged husband, Caleb Harrison and Caleb’s parents, Bill and Bridget Harrison. There was an acrimonious custody battle for the two Harrison children.

After Caleb was jailed for impaired driving, the children resided with their paternal grandparents while Merritt and her new common law spouse Fattore and their children lived elsewhere. The animosity over custody rights was ongoing when Bill Harrison was found dead at his home without apparent cause. A year, later, in 2010, Bridget Harrison was found dead, presumably from falling down a flight of stairs but with compression marks on her neck. Finally, in 2013 Caleb Harrison was discovered dead in his bed with compression marks on his neck and lacerations on his arm.

This time police had DNA evidence linking Fattore with skin extracted from Caleb’s fingernails, blood on a pair of running shoes Caleb had purchased from Walmart (as shown by store surveillance video), a DNA match of a beard hair likely from Fattore on the dead man’s chest and a dog hair that linked the accused and the victim.

Fattore was brought in for questioning and after 17 hours of intense interrogation admitted killing Caleb. He later claimed the admission was to clear Melissa Merritt of wrongdoing. He pleaded guilty to manslaughter, but the Crown rejected the plea and ultimately Fattore was convicted of first-degree murders of Caleb and Bridget. Merritt was found guilty of killing Caleb. Both parties appealed.

Fattore faulted police and claimed his lengthy interrogation resulted in a coerced confession. Nonetheless, the Ontario Court of Appeal in R. v. Merritt and Fattore 2023 ONCA 3 dismissed the Fattore matter but allowed the appeal of Merritt and ordered a new trial for her involvement.

Merritt had argued that the jury had been misdirected in that the trial judge had not properly instructed the jury on the use it could make of a partially inaudible statement clandestinely recorded by police while Merritt and Fattore were at an airport. (The statement as transcribed by police was: “[unintelligible] the audio tapes would’ve f****d us anyways.”) The Appeal Court held that the trial judge should have told jurors that if, after having taken into account that a statement is only a partial statement, they cannot determine the meaning of what the accused said, they must disregard that partial statement.

The Ontario decision explains the use that can be made of partially inaudible statements now that the Supreme Court has commented on the situation in R. v. Schneider 2022 SCC 34. Context means everything. Unless the partial statement can be easily interpreted in the context in which it was uttered it should not be left to the jury to consider.

The court also held the trial judge erred on the instructions regarding after-the-fact conduct. After-the-fact conduct evidence is evidence of conduct by the accused that “is consistent with the conduct of a guilty person and inconsistent with an innocent person:” R. v. White [1998] 2 S.C.R. 72.

Jurors must be told that before using after-the-fact conduct as evidence of guilt, they must carefully consider and reject any innocent explanations for such conduct. Trial judges should assist jurors by reviewing possible innocent explanations. Here the Crown alleged that Merritt was aware that Fattore had purchased running shoes at Walmart but did not volunteer that knowledge when questioned about it. The video showed only Fattore involved in the purchase. Again, the Appeal Court held there could be an innocent explanation for her silence on the issue.

The Crown submitted the errors are “trivial and insignificant” and should be dismissed pursuant to s. 686(1)(b)(iii) of the Criminal Code. The court disagreed.

This is not a case where the evidence is “so overwhelming that a reasonable and properly instructed jury would inevitably have convicted:” R. v. Van 2009 SCC 22; R. v. Sekhon 2014 SCC 15. The Crown had no direct evidence implicating Merritt. A properly instructed jury could be left with a reasonable doubt on the circumstantial evidence as to whether Merritt was an accessory after the fact to Caleb’s murder, rather than a party to the killing.  

With police using ever-intrusive methods of intercepting conversations and video surveillance, this decision is instructive of the proper use this evidence can provide and how a trial judge should instruct on its use when the evidence can be interpreted in different ways.

(Editor's note: This story has been updated to correct an inaccuracy.)
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author
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