Decision ‘solidifies’ the limiting jury instruction required to avoid ‘legal error,’ counsel says

By Amanda Jerome

Last Updated: Wednesday, January 11, 2023 @ 3:23 PM

Law360 Canada (January 10, 2023, 12:03 PM EST) -- A new trial has been ordered for a woman convicted of first degree murder after the Court of Appeal for Ontario found that the trial judge “erred by failing to direct jurors” on a “partially inaudible” statement she made to her partner that was intercepted by police. The court noted that the jurors “could not treat” the statement as “an admission” of the appellant’s guilt “unless they could determine the meaning of the statement as a whole from its context.”

Chloe Boubalos, an associate with Daniel Brown Law LLP and counsel for the appellant, Melissa Merritt, with Mark Halfyard, said their client is “thrilled by the result as the presumption of her innocence has now been restored.”

“She looks forward to navigating the next steps of her defence if the Crown chooses to reprosecute,” she added.

Chloe Boubalos, Daniel Brown Law LLP

Chloe Boubalos, Daniel Brown Law LLP

Boubalos highlighted the “incomplete utterances that are akin to a confession” as one of the grounds of appeal.

“Shortly after our oral hearing, the Supreme Court of Canada released its decision in R v. Schneider, and we had the opportunity to weave new law into the mix with written submissions,” she explained, noting that the “key distinction between the admissibility and the use of incomplete utterances was articulated in Schneider and had direct application in our case.”

Boubalos emphasized that the “threshold for the admissibility of incomplete utterances is low, and it will be for the trier of fact to determine what was said and not said.”

“The battleground is the limiting instruction on use. Here, judges must tell the jury that if they cannot decipher the complete utterance then they must ignore the evidence. This was not an instruction given in our case despite being requested by trial counsel, and the prejudice was real given the Crown urged the jury to use the statement as a confession to murder,” she added, stressing that this case “solidifies the limiting instruction that is required to avoid falling into legal error.”

In R. v. Merritt, 2023 ONCA 3 the court heard that the appellants, Merritt and her common law spouse, Christopher Fattore, were convicted of first degree murder in the deaths of Merritt’s ex-husband, Caleb Harrison, and mother-in-law, Bridget Harrison.

According to court documents, Harrison and Merritt had been “engaged in an ongoing and bitter custody and access dispute” over their two children. The court noted that Harrison’s parents, Bill and Bridget, “had become embroiled in the custody dispute” and “also met untimely and sudden deaths in the same home where Caleb died, Bill on April 16, 2009, and Bridget on April 21, 2010.”

The court noted that “Compelling forensic evidence linked” Fattore to Harrison’s death, and he was “ultimately charged with first degree murder in all three deaths.” In the end, Fattore was acquitted in Bill’s death.

Merritt was tried jointly with her common law spouse “on the theory that she encouraged Mr. Fattore to murder them.” While the jury acquitted Merritt in “the death of Bridget,” they “found her guilty of first degree murder in the killing of Caleb.”

Both Fattore and Merritt appealed to the Court of Appeal. On his appeal, Fattore argued that the trial judge, Justice Fletcher Dawson of the Superior Court of Justice, “erred in admitting into evidence a police statement in which he confessed to the planned and deliberate killings of both Bridget and Caleb.”

On her appeal, Merritt argued that Justice Dawson “committed significant errors in his jury instruction relating to key evidence.”

“Specifically,” Merritt argued that Justice Dawson “misdirected the jury on the use it could make of an intercepted statement” she made (the “airport intercept statement”), that “had been transcribed as partially ‘unintelligible.’ ”

Merritt also argued that Justice Dawson “erred in his jury instruction relating to the use, as circumstantial evidence of her guilt, of her omission to mention in two police statements that on a family mall visit the evening before Caleb’s body was found, Mr. Fattore had gone to a Walmart store to purchase shoes (the ‘Walmart omissions’).

“Video evidence,” the court noted was “subsequently presented at trial showing Mr. Fattore, alone, purchasing the shoes at the Walmart, as well as forensic evidence linking those shoes to Caleb’s killing.”

While the court dismissed Fattore’s appeal, Merritt’s appeal was allowed, her conviction set aside, and a new trial ordered.

Justice David Paciocco, writing for the Court of Appeal, was “persuaded” by Merritt’s argument that “the trial judge erred by failing to direct jurors that if they found” the intercepted airport statement to “be partially inaudible, they could not treat it as an admission of Ms. Merritt’s guilt unless they could determine the meaning of the statement as a whole from its context.”

In a decision released Jan. 5, Justice Paciocco described the error as a “serious” one, noting the Crown was “inviting the jury, in an otherwise problematic case, to treat the airport intercept statement as an admission by Ms. Merritt of her guilt in Caleb’s killing.”

“As Rowe J. noted in R. v. Schneider, 2022 SCC 34, at para. 81, ‘juries are likely to give significant weight to confession-like evidence’ and he noted that there is therefore ‘significant potential for prejudicial use of confessions’ or party admissions ‘akin to a confession,’ ” Justice Paciocco wrote, stressing that the “risk of jury misuse of the airport intercept statement was real, and the consequences of misuse would have been devastating.”

The judge noted that Schneider is the “leading relevant authority, although it is not a jury direction case and did not involve a partially inaudible audio recorded statement,” as the Merritt case did.

Schneider, he explained, “nonetheless illustrates and identifies relevant principles relating to the admission and use of incomplete statements.”

“Even independently of Schneider, it is settled law, binding on this court, that incomplete statements are inadmissible as admissions where there is not sufficient context to enable meaning to be given,” he added, noting that “no juror can properly decide a case based on irrelevant, non-probative information, and it is the responsibility of the trial judge to prevent this from occurring.”

“It follows from this that jurors must be told that if they cannot determine the meaning of the partial statement, they cannot use it as an admission,” he stressed, allowing this ground of appeal.

Justice Paciocco was also persuaded that Justice Dawson “misdirected the jury relating to the reasoning process it should engage in when determining whether the Walmart omissions constituted after-the-fact conduct by Ms. Merritt indicative of her guilt.” He accepted Merritt’s submission that the direction the trial judge gave “incorrectly imposed a burden on her to provide affirmative evidence to the contrary.”

The judge noted that Justice Dawson “appropriately instructed the jury to consider the possibility of Ms. Merritt’s innocent, accessory after the fact explanation. However, he went on to instruct the jury that rejection of this explanation ‘could result from … rejection of the submission that there was other evidence which shows that Ms. Merritt was not involved in the crime charged but was merely acting as an accessory after the fact.’ ”

“This is incorrect,” Justice Paciocco explained, noting that “Even if there was no affirmative evidence showing that Ms. Merritt was merely acting as an accessory after the fact, if jurors were left unpersuaded because of the absence of evidence that she had lied to hide her own guilt in Caleb’s murder rather than to protect Mr. Fattore, they could not properly reject her innocent explanation.”

Justice Paciocco, with Justices James MacPherson and Julie Thorburn in agreement, rejected the Crown’s submission that the “appeal should be dismissed pursuant to s. 686(1)(b)(iii) of the Criminal Code” because the errors are “trivial and insignificant’ in the context of the ample incriminating evidence against” Merritt.

“This is not a case where the evidence is ‘so overwhelming that a reasonable and properly instructed jury would inevitably have convicted,’ ” the judge concluded, noting that the Crown had “no direct evidence implicating Ms. Merritt.”

In his view, a “properly instructed jury could be left with a reasonable doubt on the circumstantial evidence as to whether Ms. Merritt was an accessory after the fact to Caleb’s murder, rather than a party to the killing.”

Paula Rochman, counsel for Fattore, noted that her client’s ground of appeal was “based upon a statement which he had made to the police” and was quite narrow.

She also noted that the Supreme Court of Canada, “about 20 years ago ... rewrote and minimized the concerns that courts now have with respect to statements that accused’s make to persons in authority. It can’t be overwritten because it’s from the Supreme Court of Canada, but it has greatly diminished legitimate concerns that accused people have with respect to statements made to persons in authority.”

The Ministry of the Attorney General, on behalf of the Crown, declined to comment on the decision.

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Amanda Jerome at or 416-524-2152.

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