COURT OF APPEAL FOR ONTARIO
Winkler C.J.O., Sharpe and Karakatsanis JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Troy Palmer
Applicant/Appellant
Brian Snell, for the appellant
Robert Gattrell, for the respondent
Heard: November 23, 2010
On appeal from the conviction and sentence imposed by Justice T. Dunnet of the Superior Court of Justice dated February 1, 2007 and June 29, 2007.
1The appellant was convicted of second degree murder and sentenced to life imprisonment with a parole ineligibility period of 15 years. He raises two grounds of appeal against conviction and seeks leave to appeal the 15 year parole ineligibility period.
2The victim was fatally shot in a park following a dispute over a cigarette and a small quantity of marijuana. The appellant asked the victim for a cigarette. The victim refused and the appellant took some marijuana from a park table at which the victim was seated. The victim demanded the return of the marijuana. A physical fight ensued during which the appellant took a gun from his waistband. At this point, a different version of events was put forth by both the Crown and the accused at trial. The Crown’s theory, supported by the evidence of three of the victim’s friends, was that the appellant’s associate said “shoot him” and the appellant pointed the gun at the victim and fired it with the intent to kill him. The defence position was that the appellant brandished his gun in self-defence, that the victim had grabbed the gun and that during the struggle, the appellant stumbled and the gun went off accidentally.
3The Crown led a significant body of post-offence conduct evidence as to the appellant’s activities following the shooting, including disposing of the gun and items of clothing, shaving his head to conceal his identity, and sleeping in stairwells to avoid detection.
Conviction appeal
(1) Cross-examination of the appellant
4The first ground of appeal is that the trial judge erred in failing to instruct the jury that they could not rely on the Crown’s unproven suggestions in cross-examination that the accused’s father had given a statement to police that contradicted the appellant’s evidence. The questions did not relate to the events at the park but rather to whether the appellant telephoned his father and whether his father drove him out of the city after the incident in the park.
5We agree that the Crown was not entitled to put the fact of the father’s statement to the accused in cross-examination without calling the father (or otherwise proving the statement) and that the exchange may have coloured the quite proper questions that followed. However, we do not accept that it had the effect of adversely affecting the appearance of the fairness of the trial in the circumstances of this case.
6The trial judge considered the cross-examination and the Crown’s failure to call the father and, upon being advised that the Crown was going to “leave it alone”, determined that she would not give a specific instruction. She noted that it would “draw it to the jury’s attention unnecessarily”. The trial judge understood that the appellant’s credibility was key to the defence. She was in the best position to determine whether a specific instruction was necessary or appropriate and she exercised her discretion not to do so. Furthermore, while the defence objected initially to the Crown’s line of questioning and re-iterated its concerns on two further occasions (to bolster its request for an instruction that is not the subject of this appeal), the defence did not consider it necessary to ask for a correcting instruction.
7For these reasons, we are satisfied that the trial judge did not err in failing to give a correcting instruction. Accordingly, we would not give effect to this ground of appeal.
(2) Post-offence conduct
8The appellant submits that the trial judge erred in her instructions to the jury relating to post-offence conduct.
9The trial judge refused the defence’s request for a “no probative value” instruction. No issue is taken with that ruling on this appeal. However, the appellant submits that while the appellant’s post-offence conduct could be considered when deciding whether the homicide was culpable or non-culpable by reason of self-defence, the jury should have been instructed that if it rejected self-defence, the post-offence conduct evidence could not be used to determine whether the appellant should be convicted of manslaughter or murder. Particular issue is taken with the following sentence from the jury instructions: “You should look at Palmer’s words and conduct before, at the time and after the unlawful act that caused Molina’s death” when deciding whether the appellant had intended to kill the victim. [Emphasis added.]
10In our view, this passage cannot be read in isolation. Earlier in the charge, when she addressed the issue of post-offence conduct more fully, the trial judge did instruct the jury that there could be alternative explanations for the accused’s post-offence conduct unconnected with culpable homicide. She reminded the jury that the appellant had testified that he did the things he had done following the shooting because he knew the police were looking for him and he was afraid.
11The difficult issue of the treatment of post-offence conduct in cases where such evidence is relevant to one issue and not relevant to another arises with some frequency. It has been held that there is “no prefabricated rule [that] stamps certain kinds of after-the-fact conduct as always or never relevant to a particular fact in issue” and that in many cases, a nuanced instruction along the lines sought here may introduce a level of complexity that a trial judge may wish to avoid: see R. v. Cudjoe (2009), 2009 ONCA 543, 251 O.A.C. 163 (C.A.), at paras. 78-79, 90.
12In this case, we agree that the trial judge should not have told the jury that they could look at the appellant’s conduct after the shooting when considering whether he should be convicted of murder or manslaughter. It also would have been preferable had she specifically instructed the jury that the post-offence conduct evidence could have a bearing on:
- Whether the Crown had proved that the appellant had committed a culpable homicide and did not act in self-defence;
but that it had no probative value as to:
- The appellant’s consciousness of having committed second degree murder, as opposed to manslaughter.
See R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 34 O.R. (3d) 620 (C.A.) at pp. 631-32; R. v. Stiers 2010 ONCA 382 at paras. 59-61.
13However, we are not persuaded that any error that did occur was the cause of any substantial wrong or miscarriage of justice within the meaning of s. 686(1)(b)(iii) of the Criminal Code. The Crown presented an overwhelming case against the appellant. Three witnesses testified that the shooting was deliberate and in the face of that evidence and in the light of all the circumstances of the shooting, the appellant’s evidence of self-defence or accident was not credible. The theory of an accidental shooting that could lead to a manslaughter verdict was closely bound up and barely distinguishable from the theory of self-defence that the jury plainly rejected. In the end, we are persuaded that even if the trial judge had given the jury instruction now sought with respect to post-offence conduct, the jury’s verdict would have been the same.
14Accordingly, we would not give effect to this ground of appeal. Therefore, the appeal from conviction is dismissed.
Sentence Appeal
15We see no error in the trial judge’s careful reasons for imposing a 15 year period of parole ineligibility. Accordingly, leave to appeal sentence is granted but the sentence appeal is dismissed.
RELEASED: November 29, 2010 “WKW”
“Winkler C.J.O.”
“Robert J. Sharpe J.A.”
“Karakatsanis J.A.”
