R. v. Merritt, 2023 ONCA 3

WHAT YOU NEED TO KNOW

- Given the serious risk of misuse of “confession-like admissions”, where there is a partial or incomplete statement being tendered as a party admission, trial judge must instruct the jury that if they cannot determine the meaning of a partial or incomplete statement from context, they cannot use it as an admission and must disregard it.

BACKGROUND

The appellant, Melissa Merritt, and her common-law spouse (her co-appellant), Christopher Fattore, were charged with the murders of Caleb (Melissa’s former husband), Bill and Bridget Harrison (Caleb’s parents).* They were tried together on the theory that Ms. Merritt encouraged Mr. Fattore to murder them (as a result of a bitter custody dispute between Ms. Merritt and Caleb). Ultimately, the jury acquitted Ms. Merritt in relation to the death of Bridge but found her guilty of 1st degree murder in the killing.

Both Ms. Merritt and Mr. Fattore appeal their convictions. This summary focuses solely on Ms. Merritt’s appeal.

*Melissa Merritt was only charged with the murder of Caleb and Bridget. Mr. Fattore was charged with the murder of all three.

PARTIAL/INCOMPLETE STATEMENTS & JURY INSTRUCTIONS

At trial, the Crown introduced an intercepted statement made by Ms. Merritt to Mr. Fattore while they waited at the airport to be transported to Ontario. The intercepted statements were difficult to hear and largely marked as “unintelligble” by the transcriptionist. During this conversation, Mr. Fattore admits he confessed to kiling both Bridget and Caleb so Ms. Merritt would get less of the blame as an “accessory after the fact”. Ms. Merritt is then heard saying “the audio tapes would’ve fucked us anyways”. At trial, the Crown’s position was that this statement was an admission of guilt by Ms. Merritt for Caleb’s murder.

Ms. Merritt does not dispute the admissibility of the statement but rather argues that the trial judge erred in failing to direct jurors that if they found this statement to be partially inaudible, they could not treat it as an admission of Ms. Merrit’s guilty unless they could determine the meaning of the statement as whole from its context.

The Court of Appeal agrees. In R. v. Schneider, 2022 SCC 34, at para. 81, the Supreme Court noted “juries are likely to give significant weight to confession-like evidence”, there is therefore “significant potential prejudicial use of confessions” or admissions akin to confessions.

Partial or incomplete statements are inadmissible as party admissions unless there is sufficient context to enable the trier of fact to giver the statement meaning. In jury cases, if the jury determines that there is insufficient context to determine the meaning of the partial or incomplete statement, the jury cannot rely on the statement. As a result, jurors must be provided with a direction that if they cannot determine the meaning of a partial or incomplete statement, they cannot use it as an admission and must disregard it.

On appeal, the Crown invited the Court to apply the curative proviso (i.e. dismiss the appeal, even in light of any errors, as those errors are “trivial and insignificant). The Court declined to invoke the proviso concluding that the errors were sufficiently serious and that this was not a case where the evidence was so overwhelming that a conviction was inevitable.

Disposition - Fattore appeal is dismissed; Merritt appeal is allowed, conviction set aside and new trial ordered.

For more information on incomplete or partial “confession like admissions” check out Emond’s “Modern Criminal Evidence”, chapters 2, 6 and 10.

Read the full decision here.