COURT OF APPEAL FOR ONTARIO
MacFarland, LaForme and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Melvin Roberto Flores
Appellant
Brian H. Greenspan and Robin K. McKechney, for the appellant
Benita Wassenaar, for the respondent
Heard: August 31, 2010
On appeal from the conviction entered by Justice P. Hockin of the Superior Court of Justice, sitting with a jury, on November 6, 2007, and from the sentence imposed by Justice Hockin on November 30, 2007.
1They met in a bar in London. Melvin Flores and Cindy MacDonald. Soon, they became lovers. Then, Cindy got pregnant. Melvin was excited about the prospect of fatherhood. He wanted to get married. Cindy did not share her lover’s excitement. She had an abortion.
2Cindy made it clear to Melvin that their relationship was over. But Melvin continued his pursuit. He enlisted the assistance of some of Cindy’s relatives to convince her to marry him.
3Early one morning in June 2006, Melvin Flores closed the book on his relationship with Cindy MacDonald. With a butcher knife left embedded in Cindy’s back. Fifty-three blunt force injuries.
4Melvin Flores admitted that he killed Cindy MacDonald. He said that he was provoked, drunk, and didn’t mean to kill her. His crime was manslaughter, not murder. The jury at his trial thought otherwise. They convicted him of the offence with which he was charged, second degree murder.
5Melvin Flores appeals his conviction and the period of parole ineligibility fixed by the trial judge. He says that he was convicted because the trial judge made a lot of mistakes in his final instructions to the jury. And the period of parole ineligibility was too long.
6For the reasons that follow, I would allow the appeal from conviction, set aside the conviction and order a new trial on the charge of second degree murder. In the circumstances, I do not reach the appeal from the period of parole ineligibility.
THE BACKGROUND FACTS
7An assessment of the adequacy of jury instructions in a criminal case is no abstract exercise. In each case we test the adequacy of the instructions to fulfill their purpose in the concrete reality furnished by the evidence admitted at trial. We consider whether in this case these instructions adequately equipped this jury to make an informed decision.
8And so it is of no minor importance that some features of the evidence be gathered up to put things in their proper setting.
The Principals
9Melvin Flores (the appellant) emigrated to Canada from El Salvador when he was 19. In Canada, he learned to speak English and, after a few years, obtained his high school diploma. He lived alone in a one-bedroom apartment.
10The appellant worked steadily and was a regular drinker. His drinking regimen included one to three bottles of beer each weekday and a case of 24 on the weekend. When he killed Cindy MacDonald on June 3, 2006, the appellant was 39 years old.
11Cindy MacDonald (the deceased) was ten years younger than the appellant. She lived in a house in London with her father, a long-haul trucker. The deceased was a regular user of, if not addicted to, crack cocaine.
The Beginning
12The appellant and deceased met in a London bar in September, 2005. They began to date almost immediately. The deceased introduced the appellant to several of her relatives who regarded the appellant as a positive influence on the deceased, if somewhat possessive of her.
13In December 2005, the appellant and deceased argued about her drug problem. The relationship soured, but the couple reconciled the following month.
The Pregnancy
14The reconciliation of the appellant and deceased in January, 2006, coincided with the deceased’s disclosure to the appellant of her pregnancy. The appellant was elated at the prospect of fatherhood and repeatedly urged the deceased to move into his apartment. The deceased demurred. She did not share the appellant’s desire to marry.
15The couple argued about their living arrangements, then did not speak for a couple of weeks in the early part of 2006. Towards the end of February, the deceased called the appellant and told him that she had “lost the baby” because she did not eat. The truth of it was that, with the help of her aunt, the deceased had had an abortion.
16By the end of February, 2006, the appellant had bought the deceased an engagement ring. The deceased had chosen a June date for their wedding.
The Downturn
17About the time of the couple’s discussions about marriage, a friend of the deceased moved into the house the deceased shared with her father. Shortly, the relationship between the appellant and deceased began to unravel amid exchanges of vituperative voicemail messages.
18In one voicemail message, the appellant described the deceased as a “bitch” and a “crack head”. He threatened to kill her and accused her of having killed “his blood” or “his baby”. The appellant later denied any knowledge of the deceased’s abortion when he left this message.
19The deceased’s friend, Renée, left a voicemail for the appellant. It included insults about the appellant’s origins. Renée also vowed to find “a new man” for the deceased.
The Non-Contact Order
20In the spring of 2006, a court order prohibited the appellant from contacting the deceased. Despite the order, contact continued, sometimes initiated by the deceased, at other times by the appellant. From time to time, the deceased would threaten to report the appellant’s breach of the order and then would ask him for money in return for silence. The appellant thought that the deceased wanted the money to buy crack.
21The appellant called the “welfare people” about the deceased. The apparent purpose of these calls was to persuade the authorities to terminate payments to the deceased.
The Preliminary Events
22The appellant returned to his apartment after work on June 2, 2006. He drank more than a dozen beers, then went to a local bar where he had five double rum and cokes. When he returned home after closing time, the appellant drank another beer or two.
23At about 3:00 a.m. on June 3, 2006, the appellant telephoned Ontario Works in another attempt to convince them to cut off the deceased’s welfare payments. The deceased telephoned the appellant at 3:30 a.m. and invited him over to her place (despite the non-communication order). The deceased asked the appellant to bring some beer with him.
24The appellant packed some beer bottles in a backpack and called a cab to take him to the deceased’s home. When the cab driver asked the appellant his destination, the appellant could not remember the deceased’s address. The appellant telephoned the deceased from the cab and had the deceased provide the driver with her address. The cab driver recalled the conversation between the couple as “pleasant”. At the deceased’s request, the cab driver stopped at a convenience store to pick up some cigarettes for her. He described the appellant as walking “straight” when he entered and returned from the convenience store with the cigarettes.
The Arrival
25When the appellant arrived at the deceased’s home at about 4:30 a.m. on June 3, 2006, the deceased came out to greet him. At first, the appellant backed away from the deceased’s embrace. In the end, however, the couple embraced. His fears of confrontation assuaged, the cab driver drove away.
The Reunion
26The appellant and deceased entered the deceased’s house. The appellant is the only witness of what occurred inside the home.
27The appellant and deceased began to drink beer. The deceased said she wanted to go to a nearby Shoppers Drug Mart to buy a douche, but she did not or would not explain her reasons until after they had returned to her place. The couple walked to the drug store, returned and sat down on the couch.
28The appellant noticed a knife under the coffee table in the living room. In response to his inquiry, the deceased said that the knife was there in case the appellant wanted to “do something” to her. The appellant assured the deceased that he harboured no intention to harm her.
29The appellant got up from the couch and went to the washroom. When he returned, he noticed that the knife he had seen under the coffee table was now beside the couch. He said nothing. The couple drank some more beer. The deceased asked the appellant to have sex with her. The appellant rejected the offer because the deceased smelled.
30The deceased told the appellant that, before he arrived at her house, she had had unprotected sex with another man, a man who had “a big dick”. She acknowledged for the first time that she had had an abortion to end her earlier pregnancy. The deceased told the appellant that she thought that she was pregnant again. She explained that she wanted to keep the baby this time because her lover had “a big dick”.
The Knife
31The appellant said that he “lost control”, or his mind “blacked out”, after the deceased told him about the abortion and her plans to keep the baby fathered by her new lover. The appellant walked into the kitchen and grabbed a knife. He did not realize that the deceased had followed him into the kitchen. When he saw her standing there, the appellant tried to hide the knife between his belt and his pants, but the deceased saw what he was doing.
The Fatal Altercation
32The deceased grabbed the knife in the appellant’s hand. The couple struggled. The deceased’s face was cut. The appellant wiped the blood off her face with his hat.
33The deceased told the appellant that the man with whom she had had sexual intercourse before the appellant arrived was coming back to her home because he wanted to “fuck her” again. She told the appellant to get out of the house or she would call the police. The appellant gave inconsistent accounts about whether he reacted to or was angered by the deceased’s remarks.
34The deceased ran towards the back door of the house. The appellant struck her “a few times” in the laundry room and followed her into the backyard where he continued the attack.
35Bloodstain pattern analysis confirmed the presence of blood in several areas of the home, including the carpet between the front entrance and kitchen, the hallway between the family and laundry room, where several blows appear to have been struck, and on the rear patio and adjacent grass.
36No projected blood stains were apparent on the patio area although some neighbours reported having seen a man on his knees making a hitting motion with a knife.
37One of the deceased’s neighbours entered the backyard and found the deceased on the ground. The deceased was wearing only her bra and underwear. Her pants were down to her thighs or knees. The neighbour also noticed a knife handle protruding from the deceased’s back.
The 911 Call and Arrest
38The appellant left the deceased’s house and walked to the Shoppers Drug Mart. At about 6:30 a.m. he called 911, identified himself and told the operator that he had killed someone, Cindy Lee MacDonald. The appellant said that the knife he used was still at the house. He wanted police to pick him up at the drug store and agreed to stay there until they arrived. He told the operator “I have to do it.”
39The police arrested the appellant while he was speaking with the 911 operator. The arresting officers could smell a strong odour of alcohol when they approached the appellant. His eyes were glassy. He had no trouble walking to the police cruiser and obeyed all the arresting officer’s directions.
Cause of Death
40The deceased suffered 53 blunt force injuries all over her body. Not all of these injuries were recent. Included were nine stab and five incised wounds. Six stab wounds and two incised wounds were located on the back of the deceased’s neck.
41A kitchen knife with a 12 centimetre handle and 20 centimetre blade remained buried in the deceased’s body. Only the handle was visible above the skin surface of her back. The skin on her chest had a tented appearance, but the tip of the blade had not broken through the skin.
42Knife wounds cut the jugular vein on both sides of the deceased’s neck, and penetrated her lung and trachea. Defensive wounds were visible on the palms of her hands.
43The pathologist found no evidence that the deceased was pregnant when she died. Her blood alcohol level at the time of her death was 34 mgms of alcohol in 100 mls of blood. Cocaine was also present in the deceased’s blood.
The Cell Plant Discussions
44The prosecutor adduced evidence of two discussions between the appellant and an undercover police officer confined to a holding cell adjacent to that occupied by the appellant. The conversations were not recorded on audio tape, rather noted in written form by the officer. In large measure, the appellant denied having made the remarks noted by the officer.
45In the first discussion which, according to the officer, occurred before the appellant was interviewed by investigators, the appellant admitted killing his girlfriend with a kitchen knife. The appellant described the deceased as a “crackhead” who, three months earlier, had aborted a foetus resulting from sexual intercourse with someone else. The appellant said that he thought the deceased was dead. He complained that she had beaten him up previously.
46According to the officer, he had a second conversation with the appellant after the appellant had been interviewed by investigators for the first time. The appellant said that the deceased had a knife but had not used it. The deceased made the appellant kill her because of her remarks about her lover with the “big dick”. The appellant said he wanted the death penalty imposed on him.
The Police Interviews
47The appellant was interviewed after his arrest. The interview was audio and videotaped. The interviewing officer noticed no odour of alcohol on the appellant’s breath.
48During the interview, the appellant asked whether the deceased was dead. He explained that he didn’t want her to die but that, in the end, he had let her die. He explained that the deceased had a knife by her in the living room. She told the appellant that the knife was there in case he [the appellant] want to “do something” [to her].
49The appellant told the police that he “went crazy” after the deceased told him that she had been having sexual intercourse with “this guy” who had got her pregnant. She wanted to keep this baby. He got a knife in the kitchen and tried to put it between his belt and pants: “then I just went boom”.
50The appellant told the officer that he was not drunk when he killed the deceased. The deceased threatened to call the police. She told the appellant that she didn’t want to keep his child but wanted to keep the child of the man with the “big dick”.
51In a second police interview, ten days later, the appellant said that after the deceased had yelled at him about the other man for about ten minutes “I got panic”. Once she threatened to call the police, who would put him in jail, “then I gave it to her. Boom”.
The Toxicological Evidence
52The appellant provided breath samples at 10:31 a.m. and at 11:37 a.m. on June 3, 2006. These samples, taken about four and five hours after the 911 call, produced readings of 119 and 90 mgms of alcohol in 100 mls of blood. They demonstrated that the appellant eliminated alcohol quickly after consumption. An expert calculated the appellant’s blood alcohol level at 6:10 a.m. on June 3, 2006, at about 245 mgms of alcohol in 100 mls of blood. A blood-alcohol concentration of 245 mgms percent would cause a person to have problems in speaking and moving around, affect memory, the ability to make judgments, pay attention and understand “what’s going on”.
The Appellant’s Testimony
53The appellant testified that he lost control and his mind was “blackout” after the deceased had told him about the earlier abortion and her current pregnancy by another man. It was then that he went to the kitchen to get a knife. The initial altercation ended when the deceased was cut on the face, but resumed when she told him of her new lover’s impending return. He denied taking the deceased’s threat to call the police seriously. He did not intend to kill the deceased, but felt he had no control over what he did. He acknowledged striking the deceased “a few times” in the laundry room, but did not prevent her from leaving the house or follow her into the backyard. Throughout the incident, the deceased screamed at him and kept up her barrage of insulting and hurtful comments and comparisons.
THE GROUNDS OF APPEAL
54On the appeal from conviction, the appellant alleges several deficiencies in the trial judge’s final instructions to the jury. Each shortcoming alleged is an omission, a failure to say something that the appellant says was essential to the jury’s understanding. As I would paraphrase them, the defaults are these:
i. failure to provide a “rolled-up” instruction about the intent required for murder under s. 229(a);
ii. failure to fairly review the evidence relating to the intent required for murder under s. 229(a);
iii. failure to fairly instruct the jury about how to assess the evidence and prior statements of the appellant; and
iv. failure to fairly review the evidence relevant to the defence of provocation.
55On the appeal from sentence, the appellant contends that the trial judge failed to accord sufficient weight to several mitigating factors in fixing the period of parole ineligibility at 15 years rather than at or near the statutory minimum of 10 years.
THE APPEAL FROM CONVICTION
Ground No. 1: The Rolled-Up Instruction
56The appellant admitted that he unlawfully killed Cindy MacDonald. His liability for murder depended upon the application of s. 229(a) of the Criminal Code. The trial judge instructed the jury on the stand-alone defences of intoxication and provocation. The appellant makes no complainant about the substance of the instructions on the essential elements of either defence.
57The nature of the appellant’s complaint here does not command any further catalogue of the evidence adduced at trial. That said, some reference to the instructions given and the positions of trial counsel will provide the foundation for an assessment of the legitimacy of the claim.
The Instructions of the Trial Judge
58The trial judge made it clear to the jury that the critical issue for them to decide was whether the appellant committed second degree murder or manslaughter when he unlawfully killed Cindy MacDonald. After posing the question, “Did Melvin Flores have the state of mind required for second degree murder?” the trial judge presaged his discussion of the mental state required for murder under s. 229(a) with these instructions:
Before I begin, I want to say three things to you. It is the Crown, which must prove the required intent for state of mind for murder to the criminal standard of proof beyond a reasonable doubt.
The evidence of the accused’s consumption of alcohol and his claimed behaviour by Cindy MacDonald may be taken into account in your determination of whether the Crown has proven beyond a reasonable doubt the intent for murder.
Even if the accused was under the influence of alcohol and was affected by the behaviour of the deceased, Cindy MacDonald, he is nonetheless guilty of murder if he acted with the required intention for murder. So an impaired state of mind may yet form the necessary intention for murder.
59The trial judge described the mental or fault element in each paragraph of s. 229(a), then explained to the jurors how to determine the appellant’s state of mind at the time of the killing:
Now to determine the accused’s state of mind is a question of fact for you to decide. There is in such cases seldom direct evidence of the intention of the accused. You may determine his intention by taking into account the circumstances, which surrounded the event and the words and demeanour of the accused at the time as reported by some of the witnesses. You will take into account what the accused said from the witness box in-chief and in cross-examination. You may include what he said to police. You may determine his intention by inference from other proven facts that is by circumstantial evidence.
All circumstances which bear upon the accused’s state of mind at the time of the assault should be carefully considered. So you may take into account what the accused did or did not do, how he did it and what he said before at the time of the event and after to determine what his intention was.
60The trial judge then described some of the evidence the jurors could consider in determining whether the prosecutor had proven either intent required to make the unlawful killing of Cindy MacDonald murder. Among the items of evidence to which the trial judge referred were these:
i. the number and nature of the wounds inflicted on the deceased;
ii. the nature, method and extent of the assault;
iii. the circumstances of the relationship between the appellant and deceased leading up to the events of June 3, 2006;
iv. the conduct of the deceased in having a knife at hand in the living room and her explanation for its presence;
v. the contents of the 911 calls;
vi. the appellant’s condition as affected by his consumption of alcohol and the expert evidence about the effects of alcohol consumption on a person’s state of mind; and
vii. the appellant’s accounts provided to the undercover police officer and lead investigator shortly after arrest.
61The trial judge concluded his instructions about proof of the state of mind required to make an unlawful killing murder in these terms:
So you will consider this evidence and other evidence, which bears on that issue of intention, that is state of mind. Evidence of what the accused said and did and how he did it. You may consider the number and the nature of the wounds and the method or extent of the assault and the circumstances of the relationship, and the events of the night and morning of June 3, 2006 and the evidence of alcohol to decide whether the accused, when he inflicted the wounds on Cindy MacDonald acted with either of the two intentions for murder. These are the two intentions to refresh your memories. Either he intended to kill her or he intended to cause her bodily harm that he knew was likely to cause her death, but went ahead anyway.
The Positions of Counsel at Trial
62Neither counsel at trial took any objection to the trial judge’s instructions about how the jurors were to determine whether the prosecutor had proven the fault element in murder under s. 229(a) beyond a reasonable doubt.
The Arguments on Appeal
63For the appellant, Mr. Greenspan submits that a complete “rolled-up” instruction was essential to ensure that the jury appreciated the significance of and took into account the cumulative effect of all the evidence in their determination of whether the prosecutor had proven beyond a reasonable doubt that the appellant had either mental state required to make the unlawful killing of Cindy MacDonald murder under s. 229(a). The evidence included, but was not limited to evidence of the effect on the appellant of intoxication and of the provoking words and conduct of the deceased.
64Mr. Greenspan says that the purpose of a “rolled-up” instruction is to ensure that the jury does not compartmentalize the evidence and limit its consideration to the discrete defences of intoxication and provocation. In this case, he continues, the instructions compartmentalized the evidence, never drawing it together in such a way that jurors could appreciate its cumulative impact on the state of mind issue.
65Mr. Greenspan points out that the language of the instruction lacked the precision required of a “rolled-up” instruction. Couched in vague generalities, the instruction fell short of what is required. Its deficiencies in content were exacerbated by omissions of essential evidentiary references including the appellant’s direct evidence about the triggering event and his reaction.
66For the respondent, Ms. Wassenaar reminds us that, on appellate review of jury instructions, the prevailing standard is adequacy, not perfection. That more could have been said, an almost universal truth, is not the test. In this case, enough was said. The authorities do not require a specific word formula for a “rolled-up” instruction in the absence of which the instruction is fatally flawed.
67Ms. Wassenaar points out that the trial judge specifically referred to the evidence about the effects of alcohol consumption and the alleged conduct of the deceased. The trial judge told the jury to consider all the circumstances and made specific reference to the nature of the relationship between the principals and the events preceding the killing. The absence of objection from experienced defence counsel affords cogent evidence of the adequacy of the legal instruction and the fairness of the evidentiary references.
The Governing Principles
68In prosecutions for second degree murder where there is no dispute that the accused unlawfully killed the deceased, the critical question for the trier of fact is whether the prosecutor has proven beyond a reasonable doubt the mental or fault element required to make the unlawful killing murder. In most cases, the prosecutor attempts to establish one of the fault elements described in s. 229(a) of the Criminal Code.
69Whether either fault element in s. 229(a) has been established with the required degree of certainty is a question of fact for the trier of fact to decide. This decision must be based on evidence that is relevant to this material issue and properly admissible in its proof. To reach its conclusion, the trier of fact must assess the cumulative effect of individual items of evidence, not subject each item of evidence to the standard of proof required of the evidence as a whole: R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at pp. 361-362; R. v. Ménard, 1998 CanLII 790 (SCC), [1998] 2 S.C.R. 109, at para. 23.
70Evidence of an accused’s words and conduct before, at the time and after an unlawful killing inform the decision about his or her state of mind. Judges routinely instruct jurors to consider the cumulative effect of this evidence in determining whether either of the required fault elements has been established: R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 25.
71An unlawful killing may be manslaughter in either of two senses:
i. voluntary manslaughter; or
ii. involuntary manslaughter
Voluntary manslaughter is murder mitigated by the statutory partial defence of provocation. The effect of s. 232(1) of the Criminal Code is to reduce murder committed under provocation to the lesser crime of manslaughter: R. v. Tennant and Naccarato (1975), 1975 CanLII 605 (ON CA), 7 O.R. (2d) 687 (C.A.), at p. 705; and R. v. Leblanc (1985), 1985 CanLII 3547 (ON CA), 22 C.C.C. (3d) 126 (Ont. C.A.), at pp. 127-128. Involuntary manslaughter is an unlawful killing not proven to have been murder because of a deficit in proof of the fault element required for murder.
72Evidence relevant to the statutory partial defence of provocation may also be relevant to proof of the fault element in murder under s. 229(a), although the statutory defence in s. 232 only becomes engaged upon proof of murder: R. v. Parent, 2001 SCC 30, [2001] 1 S.C.R. 761, at para. 14; and R. v. Gilling (1997), 1997 CanLII 837 (ON CA), 117 C.C.C. (3d) 444 (Ont. C.A.), at para. 22.
73As a prophylactic against a compartmentalized approach to the evidence, we require trial judges to remind jurors, in cases like this, that they should consider the cumulative effect of all relevant evidence in determining whether the prosecution has proven beyond a reasonable doubt either of the fault elements required to make an unlawful killing murder: R. v. Cudjoe (2009), 2009 ONCA 543, 251 O.A.C. 163, at para. 104; and R. v. Fraser (2001), 2001 CanLII 8611 (ON CA), 56 O.R. (3d) 161 (C.A.), at para. 25, leave to appeal to S.C.C. refused, [2002] S.C.C.A. No. 11. Although jurors may reject each discrete defence, justification or excuse, they may have a reasonable doubt about the state of mind required for murder on the basis of the cumulative effect of the whole of the evidence: Fraser at para. 25.
74We do not mandate a specific combination of words1 to bring home to jurors their obligation to consider the cumulative effect of the whole of the evidence in determining the adequacy of the prosecutor’s proof of the fault element and murder, despite their rejection of the discrete defences, justifications or excuses to which the same evidence may also be relevant.
75In the end, whether by express words or otherwise, what jurors must understand is that, in deciding whether the prosecutor has proven either state of mind essential for an unlawful killing to be murder, they must consider all the evidence that sheds light on the accused’s state of mind at the time of the killing, even if they have rejected the specific defence, justification or excuse to which that evidence is also relevant: Cudjoe at para. 109.
76An integral part of any “rolled-up” instruction is a description, whether by content or specific detail, of the evidence to which the instruction relates. Often, a description by subject-matter will be sufficient: Cudjoe at para. 112. A complete reiteration of evidence earlier rehearsed in connection with a discrete defence is not necessary, and probably unhelpful: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 14.
The Principles Applied
77Adopting, as I must, a functional approach to test the adequacy of these instructions, and considering them as a whole, I am satisfied that the “rolled-up” instructions in this case were not adequate to the task set for them: to bring home to the jury their obligation to consider the cumulative effect of the evidence, with a legitimate bearing on the prosecutor’s proof of the fault element in murder, despite their rejection of any discrete defence to which that same evidence was relevant.
78The circumstances are important.
79The appellant acknowledged (though did not expressly admit) that he unlawfully killed the deceased. Thus, the crucial issue for the jurors was whether the unlawful killing was murder or manslaughter. To determine the legal character of the appellant’s crime, murder or manslaughter, the jurors had to decide first whether the prosecutor had proved either fault element required by s. 229(a) to make the appellant’s crime murder. To make this decision, the jurors were required to consider the discrete defence of intoxication, as well as all the other evidence that related to the appellant’s mental state.
80In his instructions to the jury, the trial judge referred to several aspects of the evidence in connection with proof of the fault element in murder. The appellant’s consumption of alcohol. The number, nature and location of the wounds inflicted on the deceased. The nature, method and extent of the assault. The testimony and statements of the appellant. The relationship between the appellant and the deceased. The 911 call. The expert evidence about the effects of alcohol consumption on a person’s awareness and ability to make decisions.
81To achieve its purpose, which is to ensure that jurors do not take a compartmentalized approach to the evidence, confining their use of it to a discrete defence, a “rolled-up” instruction must remind jurors that they must consider the cumulative effect of all the evidence relevant to an accused’s state of mind in deciding whether the prosecutor has proven that state of mind beyond a reasonable doubt. The “rolled-up” instruction states a legal principle that informs the jurors’ decision on an issue of fact that constitutes an essential element of the offence charged. The jurors are also entitled to the trial judge’s assistance on the essential aspects of the evidence adduced at trial that is relevant to their decision on this issue, proof of the fault element required by s. 229(a) of the Criminal Code.
82To ensure that jurors understand the evidence that will inform their decision on this issue, the trial judge does not have to repeat, in exquisite detail, earlier references to the same evidence. Judicial shorthand, such as evidence of
alcohol consumption
anger
fear
excitement
instinctive reaction
mental disturbance
may be adequate to the task of reminding jurors of the substance of the evidence that bears on their decision. Rote repetition of evidentiary minutiae is not essential to ensure the jurors’ appreciation of the value and effect of the evidence on proof of the essential fault element.
83In this case, the deficiency in the “rolled-up” instruction was twofold. The first relates to the substance of the instruction. The second has to do with the trial judge’s discussion of the evidence that the jurors could consider in reaching their conclusion about the adequacy of the prosecutor’s proof of the fault element described in s. 229(a).
84The “rolled-up” instruction in this case omits any reference to the allegedly provocative words and conduct of the deceased and the appellant’s reaction to them as a factor for the jurors to consider in deciding whether the prosecutor had proven the fault element in s. 229(a) beyond a reasonable doubt. While the term “provocation” need not be used (and may be misleading where it is used) in the instruction, some reference should be made to its siblings like anger, excitement, instinctive reaction and the like: Cudjoe at paras. 114-115.
85The omission of provoking words and conduct from the “rolled-up” instruction, either in terms or by reference to its constituents, may have been exacerbated by the instructions on the statutory partial defence of provocation under s. 232. In the circumstances, the jurors may well have concluded that provocation, and the appellant’s reaction to the deceased’s provoking words and conduct, were only relevant after the jurors had found the appellant had committed murder.
86In this case, the trial judge failed to include in the “rolled-up” instruction reference to the provoking words and conduct of the deceased, the nature of the appellant’s reaction and the consistency of the injuries suffered by the deceased with a quick frenzied attack. Further, the trial judge also failed to review the evidence on each of these issues and relate that evidence to proof of the essential mental element so that the jurors could appreciate the value and effect of that evidence.
87The consequences of these errors can await an assessment of the other grounds of appeal each of which also asserts errors and omissions in the final instructions.
Ground No. 2: The Evidence on the Mental Element in Murder
88This ground of appeal alleges several deficiencies in the final instructions on the mental element in murder as defined in s. 229(a) of the Criminal Code.
The Arguments on Appeal
89Mr. Greenspan acknowledges, as he begins his submissions, that the trial judge reviewed much of the circumstantial evidence that was relevant to the jury’s determination of the appellant’s state of mind at the time he unlawfully killed Cindy MacDonald. But what was missing, he submits, was any similar reference to the appellant’s direct evidence about his state of mind. The appellant denied any intention to kill the deceased. The result of the omission, according to Mr. Greenspan, left the jurors with an incomplete and unbalanced picture of the evidence relevant to their determination of the central issue at trial.
90Ms. Wassenaar sees it differently. She submits that the trial judge left the jury with a sufficient understanding of the evidence relevant to this issue about the adequacy of the prosecutor’s proof of this essential element. The substance of the appellant’s evidence, much of it duplicative of his police statements that were filed as exhibits at trial, was adequately reviewed. The trial judge told the jury to consider the appellant’s testimony and mentioned its essential features. He was under no obligation to do more, especially in the absence of any objection from the senior and experienced counsel who represented the appellant at trial.
The Governing Principles
91The principles that govern this complaint are well-established. A brief statement of them is sufficient for our purposes.
92The parties in a criminal prosecution are entitled to properly, not perfectly instructed jurors: Jacquard at para. 2. To determine the adequacy of final instructions, we apply a functional approach, consider them as a whole and in the larger context of the trial in which they were given: Jacquard at para. 41.
93Apart from exceptional cases where it would be needless to do so, a trial judge must also review the substantial parts of the evidence adduced at trial, and give the jury the position of the defence, so that the jury may appreciate the value and the effect of the evidence, and how they are to apply the law to their findings of fact: Jacquard at para. 14; and Azoulay v. The Queen, 1952 CanLII 4 (SCC), [1952] 2 S.C.R. 495, at pp. 497-498. Where the same evidence relates to more than one issue, it is unnecessary to repeat the substance of it in relation to every other issue: Jacquard at para. 14. See also, R. v. John, 1970 CanLII 199 (SCC), [1971] S.C.R. 781. What is critical is that an appellate court, considering the instructions as a whole, be satisfied that the jury was left with an adequate understanding of the facts as they related to the relevant issues in the trial: Cluett v. The Queen, 1985 CanLII 52 (SCC), [1985] 2 S.C.R. 216, at p. 231; and Jacquard at para. 14.
94Consistent with the principle that a trial judge is under no obligation to review, in final instructions, every tidbit of evidence introduced at trial, failure to refer to an item of evidence is not, without more, misdirection that requires a new trial. Non-direction on an item of evidence may amount to misdirection and require a new trial where the item of evidence is the foundation of an accused’s defence: R. v. Demeter (1975), 1975 CanLII 685 (ON CA), 10 O.R. (2d) 321 (C.A.), at pp. 340 - 341, affirmed, 1977 CanLII 25 (SCC), [1978] 1 S.C.R. 538.
95The preparation of jury instructions, including final instructions, is the responsibility of the trial judge. Nonetheless, a trial judge is entitled to the assistance of counsel in the composition of final instructions, including the identification of the items of evidence upon which reliance will be placed to advance a defence: Jacquard at para. 38; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58; R. v. Royz, 2009 SCC 13, [2009] 1 S.C.R. 423, at para. 3; and Cudjoe at para. 155. Failure to object may be indicative of the seriousness of what is later said to be error and a factor in appellate review: Jacquard at para. 38; Daley at para. 58; and Royz at para. 3.
The Principles Applied
96For several reasons, I would not give effect to this ground of appeal.
97To begin with the obvious, the trial judge was under no obligation to review all the evidence introduced at trial in his final jury instructions.
98Second, we adjudge the adequacy of the trial judge’s evidentiary review not by asking whether the trial judge could have said more about the evidence adduced at trial. That more could have been said about the evidence approaches a near universal truth about jury instructions. But that is not the test by which adequacy is to be determined. What we must consider is whether what was said was sufficient to ensure that the jury understood the essential features of the evidence that was relevant to the issues that they had to decide. In this case, the references were adequate by that standard.
99Third, we cannot lose sight of the reality of the trial in assessing the force of this complaint. For all practical purposes, this case was reduced to a single issue – the appellant’s state of mind when he unlawfully killed the deceased. The trial proceedings were brief, the evidence uncomplicated. The appellant was the second last witness to testify. Counsel reviewed the evidence thoroughly in their addresses. The appellant’s testimony constituted the only evidence in support of his claim that the unlawful killing was manslaughter and not murder.
100Finally, the appellant was represented at trial by senior, capable and very experienced counsel who made no complaint about any inadequacy or unfairness in the evidentiary references included in the final instructions. Although not decisive, failure of counsel to object is a factor to be taken into account on appellate review. A failure to object about the content, fairness or adequacy of the evidentiary review says something not only about the overall completeness of the evidentiary references, but also about the seriousness of any omissions.
Ground No. 3: Instructions of the Assessment of the Appellant’s Evidence and Prior Statements
101This ground combines several discrete complaints about how the jurors were instructed to assess the evidence of the appellant. They require no additional references to the evidence itself.
The Arguments on Appeal
102For the appellant, Mr. McKechney identifies several errors that he says, in combination, misdirected the jury about how they were to assess the appellant’s evidence in reaching their verdict.
103First, Mr. McKechney contends that the trial judge’s W. (D.) instruction was inadequate: W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. The jury was never told that if the appellant’s evidence raised a reasonable doubt about his intent or whether the killing took place under provocation, he was entitled to be found not guilty of murder but guilty of manslaughter.
104Second, Mr. McKechney submits that the trial judge failed to review the several utterances of the appellant and place them in their proper context. In the result, he submits, the instructions had the effect of bolstering the credibility of the deceased’s aunt, Valerie MacDonald, and the cell plant, Constable Paquette, two witnesses whose evidence conflicted with that of the appellant.
105Third, Mr. McKechney says the trial judge failed to properly assess the inconsistencies in the evidence and to review the consistencies between the appellant’s statements and his testimony. The evidentiary review was unbalanced: inculpatory inconsistencies were repeated but exculpatory consistencies ignored.
106Finally, Mr. McKechney urges, the trial judge failed to instruct the jury, expressly, to take into account the appellant’s lack of facility in English in assigning meaning and weight to his utterances and his testimony.
107Ms. Wassenaar joins issue with the appellant on each discrete complaint and contends that, in combination, they neither misdirected the jury nor prejudiced the jury's assessment of the appellant’s credibility or the viability of his defence.
108Ms. Wassenaar contends that the trial judge’s instructions on reasonable doubt, including those that linked reasonable doubt to the appellant’s evidence, were thorough, fair and accurate. The instructions made it clear that reasonable doubt related to the essential elements of the prosecutor’s case and explained the verdict consequences of a reasonable doubt on the fault element and provocation. Strict adherence to the regimen of W. (D.) is not mandatory, providing its essentials make their way into final instructions in some way or other. And that they did.
109Ms. Wassenaar says that the trial judge’s instructions about the manner in which jurors should assess the appellant’s utterances, including his voicemail message and the in-custody exchange with Constable Paquette, were adequate in the circumstances. The appellant admitted that he left the voicemail message for the deceased blaming her for killing his baby. The appellant denied that the reference to baby killing referred to the deceased’s abortion, about which the appellant claimed to know nothing when he left the voicemail message. The trial judge’s characterization of the cell block conversation was accurate – the appellant denied that the conversation Constable Paquette reported ever took place.
110Ms. Wassenaar submits that the trial judge’s instructions about the evidentiary use jurors could make of the appellant’s prior statements were adequate. The trial judge explained that the jurors could use these statements to help them decide the case. The judge was not obliged to say more, in particular to line up the consistencies and inconsistencies among the statements and between the statements and the appellant’s evidence at trial. Nor was the trial judge under any obligation to make specific reference to the appellant’s lack of facility in English, since the deficiency was obvious from the appellant’s testimony and had already been pointed out earlier in the final instructions.
The Governing Principles
111The submissions advanced in support of this ground of appeal requires consideration of several principles relating to the manner in which judges should instruct jurors about the testimony of the accused and their use of evidence of any prior statements of the accused as admitted at trial.
112The principles articulated in R. v. W. (D.), occupy a reserved seat in our criminal law. In cases in which credibility is a central issue and the accused testifies, final instructions should include directions that ensure that the focus of the jury, as the trier of fact, remains on reasonable doubt. The suggested instruction in W. (D.) at p. 758, is this:
First, if you believe the evidence of the accused, obviously you must acquit.
Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
113The failure of a trial judge to recite the precise language of W. (D.) is not fatal to the correctness of final instructions, provided that, when the final instructions are viewed as a whole, the jurors are not left under any misapprehension about the governing burden and standard of proof: W. (D.) at p. 758; R. v. Y. (C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 7-9; and R. v. S. (W. D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, at p. 533.
114The purpose of a W. (D.) instruction is to ensure that the jury does not regard its decision as involving an either/or choice, rather understands that it must determine whether, on the whole of the evidence, it is left with a reasonable doubt about the guilt of the accused: Y. (C.L.) at para. 6; R. v. Minuskin (2003), 2003 CanLII 11604 (ON CA), 68 O.R. (3d) 577 (C.A.), at para. 22; and R. v. S. (M.) (2008), 2008 ONCA 616, 237 C.C.C. (3d) 85 (Ont. C.A.), at para. 53.
115Instructions about jury use of evidence of out-of-court remarks or statements of or attributed to an accused should apprise jurors of both their substantive and impeachment value.
116Jury instructions should make it plain that these out-of-court remarks or statements are evidence of the truth of what is said and evidence both for and against their maker: R. v. Polimac (2010), 2010 ONCA 346, 254 C.C.C. (3d) 359 (Ont. C.A.), at para. 85, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 263; R. v. Spence (2004), 2004 CanLII 34919 (ON CA), 73 O.R. (3d) 81 (C.A.), at para. 76, reversed on other grounds, 2005 SCC 71, [2005] 3 S.C.R. 458. A trial judge should say or imply nothing that leaves the impression with jurors that they should apply a different level of scrutiny to the exculpatory portions of anything said by an accused than they apply to the inculpatory parts: R. v. Humphrey (2003), 2003 CanLII 6855 (ON CA), 172 C.C.C. (3d) 332 (Ont. C.A.), at paras. 18-19.
117Jury instructions about an accused’s out-of-court remarks or statements should also point out that, as with an ordinary witness, these statements may be used as prior inconsistent statements to impeach the credibility of the accused as a witness and to challenge the reliability of his or her testimony.
The Principles Applied
118I would not give effect to any complaint of legal error in the trial judge’s final instructions about jury use of the appellant’s evidence and out-of-court statements. On the other hand, the trial judge’s review of the essential features of the appellant’s evidence and prior statements although not fatally flawed, was incomplete and, in some respects at least, unbalanced.
119Towards the conclusion of his instructions about the legal principles that governed the jury’s deliberations and decision, the trial judge gave this direction:
In this case, the Crown and the defence urge different versions of what occurred at the home of Cindy Lee MacDonald on June 3, 2006. Issues of credibility and the proper inferences to be drawn arise between the Crown and the accused. In arriving at your verdict, you should know that your obligation does not include having to make the stark choice of accepting the Crown evidence or the defence evidence. The reason for that is this. An either or approach might exclude the possibility that you may not accept as true the defence evidence, but from that evidence be left nonetheless with a reasonable doubt. And the either/or approach may exclude the legitimate possibility that the events of June 3, 2006 occurred in a different way than has been suggested by the Crown or by the defence. The issue is not which version is true, but whether on all the evidence including the defence evidence has the Crown proved beyond a reasonable doubt the offence charge[d].
120In this excerpt from the final instructions, the trial judge made it clear that the issue for the jury to decide was not which of two competing versions of the unlawful killing was true, but whether, on all the evidence, including evidence adduced on the appellant’s behalf, the prosecution had proven the guilt of the accused beyond a reasonable doubt. Although the instructions were not an exact duplicate of the W. (D.) mantra, the mischief avoided by W. (D.) was adequately conveyed to the jury. Any defect in form did not compromise the substance of the instruction. Read as a whole, the instructions focussed the trier of fact on the crucial issue, namely, whether, on the whole of the evidence, the jury were left with a reasonable doubt about the appellant’s guilt: L. (C.Y.) at para. 6; and S.(M.) at para. 53.
121This was not a typical W. (D.) case. The trier of fact was not confronted with two competing versions of the same incident from witnesses with equivalent opportunities to observe. The appellant was the only survivor, his version, the only direct evidence of the fatal confrontation. The task for the jury involved drawing inferences from the whole of the evidence, including the findings at the scene, the experts’ opinions, the appellant’s account and the observations made by various neighbours. The instructions, as a whole, correctly described the nature of the jury’s task and adequately equipped them to carry it out.
122Nor are the instructions about the use jurors could make of evidence of the appellant’s out-of-court statements seriously flawed. The instructions directed the jurors to determine first whether the appellant made the remarks attributed to him. In making this determination, the jurors were told to take into account all the evidence, including the testimony of the appellant.
123The trial judge explained to the jury that any statement they found the appellant made to others was part of the evidence upon which the jurors could rely in reaching their conclusion. The statements were evidence both for and against the appellant. Nothing more was required to bring home to the jurors the use they could make of evidence of the appellant’s out-of-court statements: Polimac at paras. 85-86.
124The appellant’s complaint about the trial judge’s failure to expressly instruct the jury to take into account the appellant’s lack of facility in the English language when considering the weight to assign to his out-of-court statements and trial testimony, falls on barren ground.
125The trial judge made specific reference to the appellant’s language difficulties twice during final instructions. The first had to do with the 911 call and the second with the evidence of Constable Paquette about the cell block conversations. The jurors had heard the 911 call played in open court. Likewise, the appellant’s first police interview which was videotaped, was played for the jurors. Both tapes were filed as exhibits at trial, available for replay in the jury room. The appellant testified. No further instruction was required to draw the jury’s attention to the self-evident.
126The appellant’s complaint about the adequacy of the trial judge’s review of the appellant’s testimony and his out-of-court statements has some merit. The evidentiary review could have been fuller and more focused on the essential features of the evidence and out-of-court statements. That said, the extent of the review required to ensure that the jury appreciates the critical features of the evidence and its relationship to the essential issues to be determined depends on the circumstances of each case.
127Appellate review of jury charges, especially in response to complaints of inadequate or unbalanced references to the evidence, must take into account the realities of the criminal jury trial. Jury charges do not take place in isolation, rather are an integral part of the trial as a whole. They follow the addresses of counsel where, as here, each marshalls the salient features of the evidence in support of the position she or he advances. The test, one of fairness, was met here.
Ground No. 4: Review of the Evidence on Provocation
128In his final complaint of inadequacy in the concluding instructions of the trial judge, the appellant advances an argument that echoes an earlier submission – failure to adequately review the evidence in support of a defence. This time, the focus is on the statutory partial defence of provocation.
The Instructions of the Trial Judge
129The trial judge instructed the jury on provocation after he had completed his instructions on the fault elements in murder. As he explained, the jury was only required to consider provocation if they were satisfied that the appellant had committed murder.
130In his instructions on provocation under s. 232 of the Criminal Code, the trial judge listed the essential elements of the defence, converted each to a question, explained the legal principles governing the jury’s answer to the question, reviewed some features of the evidence relevant to the question and left the issue framed by the question for the jurors to decide with an explanation of the consequences of their decision for further deliberations or verdict.
131During their deliberations the jurors asked two questions about provocation. They first sought repetition of the “four steps for provoking” and later asked for “the more detailed process for provocation”. The trial judge answered both questions without objection.
The Arguments on Appeal
132For the appellant, Mr. McKechney says that the trial judge failed to meet his obligation to identify the relevant evidence on the defence of provocation and relate it to that defence so that the jury could appreciate the value and effect of the evidence on the defence.
133Mr. McKechney acknowledges that the trial judge reviewed some of the relevant evidence, but says that his references were at once incomplete and unbalanced. Of particular concern was a balanced instruction about the appellant’s knowledge of the deceased’s abortion, a matter of no little importance to the jury’s decision about whether the disclosure was “sudden”.
134Ms. Wassenaar takes the position that the evidentiary references were adequate. Indicative of their adequacy and fairness was the lack of objection from trial counsel for the appellant. In the context of the trial and the then recent addresses of counsel, the abortion reference required no further elaboration.
The Governing Principles
135Nothing further need be said about a trial judge’s obligation to review the substantial features of the evidence and to relate it to a defence for which there is an air of reality. The statutory partial defence attracts the same obligation as other defences, justifications or excuses, whether specifically raised or viable on the evidence.
136Three aspects of the defence of provocation warrant brief mention in connection with this ground of appeal.
137The first has to do with the requirement of suddenness. Under s. 232, suddenness must characterize not only the onset of the provocation, whether a wrongful act or insult, but also the accused’s retaliation. The wrongful act or insult must strike a mind unprepared for it and prompt an immediate response: R. v. Tripodi, 1955 CanLII 10 (SCC), [1955] S.C.R. 438, at pp. 443 and 446. A person who takes and maintains the initiative in the series of events that culminates in the death of another is disentitled to rely on provocation: R. v. Salamon, 1959 CanLII 5 (SCC), [1959] S.C.R. 404, at p. 410.
138The second concerns the impact of prior knowledge of something later claimed to amount to provocation. Prior knowledge of something, for example previous disclosure of spousal adultery, may negate the requirement that the wrongful act or insult be sudden. But the subsequent disclosure may form part of a series of events that constitute cumulative provocation: R. v. Nahar (2004), 2004 BCCA 77, 181 C.C.C. (3d) 449 (B.C. C.A.), at para. 46. See also, R. v. Haight (1976), 1976 CanLII 1311 (ON CA), 30 C.C.C. (2d) 168 (Ont. C.A.).
139The third relates to the effect of a finding by the trier of fact that an accused killed under provocation, or a reasonable doubt that the accused did so. Despite the permissive “may” in the introductory words of s. 232(1), the consequence of such a finding is mandatory – a conviction of manslaughter, not of murder: R. v. Leblanc (1985), 1985 CanLII 3547 (ON CA), 22 C.C.C. (3d) 126 (Ont. C.A.), at p. 127; and R. v. Tennant and Naccarato (1975), 1975 CanLII 605 (ON CA), 7 O.R. (2d) 687 (C.A.), at p. 705.
The Principles Applied
140I would not give effect to this ground of appeal.
141Before turning to the precise complaint made about the instructions on provocation, it is appropriate to sound a note of caution about the content of the trial judge’s introductory remarks to the jury about provocation under s. 232 of the Criminal Code.
142The trial judge told the jurors several times that provocation may reduce murder to manslaughter. This language may suggest to jurors that it is up to them to determine whether they should return a manslaughter verdict if they find or have a reasonable doubt that the accused committed murder under provocation. As we have seen, whether a manslaughter verdict is returned in these circumstances is not something about which jurors have a choice: a manslaughter verdict is mandatory. Language that suggests otherwise should not seep into final instructions.
143The appellant did not raise these passages as reflective of legal error. Later parts of the final instructions make the mandatory nature of the conclusion clear. I am satisfied that the appellant was not prejudiced by these misstatements.
144The nub of the appellant’s criticisms of the final instructions on provocation is that the trial judge failed adequately to review the substantial features of the evidence supportive of the defence of provocation and to relate it to the issues so that the jury would appreciate the value and effect of the evidence on their decision about the defence.
145My reasons for rejecting this ground are several.
146First, the trial judge separated out the essential elements of the statutory defence and converted each into a question for the jurors to answer. For each question, the trial judge instructed the jury about the governing legal principles, provided a brief summary of the substantial parts of the relevant evidence and left the issue for the jurors to decide with directions about the legal effect of the findings open to them. As with most cases, the evidence references could have included more detail, but I cannot say that any omissions rendered the instructions so deficient, incomplete or unbalanced that the jury would not appreciate the substance of the evidence, or its value and effect, on their decision.
147Second, a more detailed rehearsal of the relevant evidence would not necessarily have helped the appellant. Indeed, his own testimony tended to negate the requirement of suddenness in his retaliatory response.
148Third, the final instructions closely follow the closing addresses of counsel in which the evidence was parsed to buttress the positions advanced. The evidence was uncomplicated, its relevance self-evident.
149Fourth, experienced trial counsel took no objection to the charge. While not dispositive, the absence of objection about the admission of evidentiary references tends to negate any complaint about incompleteness, unfairness or lack of balance in the references. Further, it affords some indication that counsel conducting the trial considered the references sufficient to permit a just determination of the issue by the jury.
CONCLUSION
150What remains is an assessment of the impact of any errors on the integrity of the verdict rendered at trial. Each ground raised by the appellant challenged the content of the trial judge’s final instruction to the jury. Thus it becomes necessary to consider whether the cumulative impact of the errors is forgiven by, or beyond the reach of, the proviso in s. 686(1)(b)(iii) of the Criminal Code.
151The proviso may save from appellate reversal two kinds of legal error. The first is an error that is so harmless or insignificant that it could not have affected the verdict of the jury. The second is an error that is serious but that did not result in a substantial wrong or miscarriage of justice because the case against the appellant was so overwhelming that a conviction would have been inevitable even without the error: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 26; R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239, at para. 81; and Jaw at para. 42.
152To put a legal error in its proper perspective, context is critical.
153The critical issue in this case was the legal character of the appellant’s crime, a determination that depended on the jury’s findings of fact. The appellant made no express admission that he caused the deceased’s death or that he did so unlawfully. Yet, he contested neither issue before the jury. And so it was that the legal character of the appellant’s crime depended on how the jury decided at least one and possibly two issues:
• Did the appellant have either state of mind necessary to make his unlawful killing of the deceased’s murder?
• If the appellant committed murder, was he acting under provocation when he did so?
154The “rolled-up” instruction relates to the first issue the jurors had to decide: whether the appellant committed murder.
155The error in this case related to the content of the “rolled-up” instruction about the appellant’s state of mind when he unlawfully killed the deceased. In other words, the error related to a critical issue in the trial. The pre-charge discussion made it clear that the trial judge considered a “rolled-up” instruction was an essential part of his charge.
156The purpose of a “rolled-up” instruction is to ensure that jurors do not compartmentalize evidence that may be relevant to more than one issue. Here, the same evidence was relevant to the “stand-alone” defences of intoxication and provocation, as well, through the mechanism of the “rolled-up” instruction, to proof of the mental element required to make an unlawful killing murder. The “rolled-up” instruction brings together and invites jurors to consider the cumulative impact of several items of evidence in their decision about the accused’s state of mind: Fraser at para. 25; Cudjoe at para. 109.
157Consistent with general principle, no word formula is mandatory for a “rolled-up” instruction. Substance prevails, not form. Essential features of a “rolled-up” instruction should include
• an identification of the relevant factors;
• a description of the relevant evidence; and,
• an instruction to consider the cumulative effect of the evidence on the state of mind issue without regard to any decision about any other issue to which the evidence may also be relevant.
158To repeat the “rolled-up” instruction here:
The evidence of the accused’s consumption of alcohol and his claimed behaviour by Cindy MacDonald may be taken into account in your determination of whether the Crown has proven beyond a reasonable doubt the intent for murder.
Even if the accused was under the influence of alcohol and was affected by the behaviour of the deceased, Cindy MacDonald, he is nonetheless guilty of murder if he acted with the required intention for murder. So an impaired state of mind may yet form the necessary intention for murder.
159The excerpt refers to evidence of the appellant’s consumption of alcohol, the “claimed behaviour by Cindy MacDonald” and “the behaviour of the deceased”. After anxious consideration, I am satisfied that this “rolled-up” instruction, and the evidentiary references that follow it, failed to provide the jury with the assistance they required to make an informed decision about the adequacy of the prosecutor’s proof of the fault element in murder.
160To begin, the instruction failed to draw together the relevant factors, such as the provoking words and conduct of the deceased, the nature and extent of the appellant’s reaction, anger and the excessive force revealed by the number of wounds inflicted. Further, the instruction failed to advise the jurors to consider the cumulative effect of this evidence and the need to consider it apart from any determination they might make about the effect of intoxication alone or of provocation. See, by comparison, R. v. Gould (2008), 2008 ONCA 855, 244 O.A.C. 176, at paras. 19-20.
161Second, the trial judge’s review of the evidence associated with this instruction did not remedy any omission nor invite the jury to consider the cumulative effect of all the evidence.
162Third, the appellant’s state of mind at the time he unlawfully killed the deceased was a critical issue at trial, and for all practical purposes, the determination of this issue decided the legal character of the unlawful killing.
163Fourth, the jurors sought further assistance on “two steps for state of mind” during their deliberations and twice sought further instructions about provocation. It is a reasonable inference that at least some jurors were struggling with their decision about the legal character of the appellant’s crime.
164On the other hand, it is fairly said that no objection was taken to the judge’s instruction and the appellant’s own testimony cast doubt on the suddenness of his response to what he claimed were the provoking words and conduct of the deceased.
165In the end, however, I am not satisfied that the errors in the final instructions are overcome by the overwhelming nature of the prosecutor’s proof.
166For these reasons, I would allow the appeal, set aside the conviction and order a new trial on the indictment for second degree murder. In these circumstances, I do not reach the appeal from the period of parole ineligibility fixed by the trial judge.
RELEASED: FEB 28 2011 (“H.S.L.”)
“David Watt J.A.”
“I agree. J. MacFarland J.A.”
“I agree. H. S. LaForme J.A.”
