COURT OF APPEAL FOR ONTARIO
Weiler, MacFarland and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Emmanuel Chretien
Appellant
Gregory Lafontaine and Sam Scratch, for the appellant
Alison Wheeler, for the respondent
Heard: November 6, 2013
On appeal from the conviction entered by Justice C.D. Aitken of the Superior Court of Justice, sitting with a jury, on February 25, 2009.
1L.H. was a drug dealer. His place of business was his home, a second floor apartment over a store in the east end of Ottawa. Local police were very familiar with L.H. and with his business.
2Early one November morning, police officers found L.H. dead in the bedroom of his apartment. He had been beaten.
3Within hours of L.H.’s death, police arrested Emmanuel Chretien and Mathieu Goyette and charged them jointly with second degree murder and some other offences.
4At their joint trial, Chretien and Goyette acknowledged their involvement in unlawfully entering L.H.’s apartment, robbing him and causing his death. Each, through his counsel, sought a verdict of not guilty of second degree murder, but guilty of manslaughter. Goyette succeeded and was found guilty of manslaughter. Chretien failed and was found guilty of second degree murder.
5Chretien (the appellant) appeals his conviction of second degree murder. He raises one issue concerning the admissibility of an alleged hearsay statement and, if the evidence was properly admitted, submits that the trial judge erred in his charge to the jury concerning the use they could make of that evidence. The other two grounds of appeal also relate to the charge to the jury. The appellant submits that the trial judge failed to instruct the jury correctly on the effect of evidence of intoxication in relation to proof of the state of mind required to make an unlawful killing murder under s. 229(a)(ii) of the Criminal Code, R.S.C. 1985, c. C-46. In determining the level of the appellant’s liability for the unlawful killing of L.H., the instruction to the jury on the use they could make of evidence of post-offence conduct is also challenged.
6As I will explain, I would not give effect to any claim of error advanced on Chretien’s behalf and would dismiss his appeal from conviction.
THE BACKGROUND FACTS
7The death of the deceased and the arrest of those alleged to be responsible for it occurred a few hours apart on November 11, 2006.
Looking for L.H.
8Local police knew L.H.’s apartment as a “crack house”. Officers had watched known drug users visit and leave the apartment. Visitors often used an exterior stairway at the rear of the building as a method of entry and exit. Sometimes, visitors would leave by hopping over a railing onto an adjoining roof then jumping down to the ground.
9In the days immediately before L.H. was killed, officers frequently knocked on L.H.’s apartment door. They had a warrant for his arrest and wanted to execute it. Their knocks went unanswered.
10The evidence adduced at trial revealed that Goyette bore some animus towards L.H. because L.H. had previously hit Goyette with a tire iron or baseball bat. In contrast, the evidence did not reveal any existing relationship between Chretien and L.H.
The Preliminary Events
11Around 1:30 a.m. on November 11, 2006 police officers spoke to Mathieu Goyette in the parking area behind L.H.’s apartment. Goyette was impaired. He told the officer that he hated L.H. because L.H. had beaten him on a previous occasion. Goyette told the officer that he (Goyette) wished he could steal all L.H.’s crack. The officer did not take Goyette seriously. Another long-haired man that the officer had not seen before was with Goyette.
The Discovery of L.H.
12Around 2:30 a.m., a police officer saw Goyette coming down from the stairs from L.H.’s apartment. Goyette was carrying a plastic bag. Goyette admitted to the officer that the bag contained L.H.’s “stuff”. Goyette reiterated his hatred of L.H. and told the officer that he (Goyette) had taught him (L.H.) a lesson. Goyette was alone at this time. The bag contained a camera and some drug paraphernalia.
13Another police officer noticed that the door to L.H.’s apartment was damaged. The officer entered the apartment and found L.H. dead in the bedroom. L.H. had a deep cut on his forehead. The officers came down the steps from L.H.’s apartment to look for Goyette but he had left the area.
The Findings at the Scene
14Police found L.H. with his hips and legs on the mattress and his feet pointing towards the head of the bed. His head and upper body were lying across the floor at the foot of the bed. L.H.’s blood had pooled at the top of the bed. Projected blood spatter was visible on a television stand nearby. The pattern was indicative of a body that had been low to the ground when the blows producing the spatter had been inflicted.
15In the room the police found a large “Mag” flashlight with a broken bulb and lens. Biological material – skin cells – with L.H.’s DNA profile were detected on the flashlight but no blood was found. The surface of the flashlight was consistent with the pattern observed on a laceration on L.H.’s head.
16The door to L.H.’s apartment had been cracked open. The deadbolt remained in the locked position. Wood splinters were on the floor. Police found a two-by-four on top of some clothes inside the apartment.
The Cause of Death
17L.H. had suffered one or two blows to his head, inflicted with at least moderate force. The blows had been struck with a “heavy” object, like a baseball bat, a two-by-four, or a large flashlight. L.H. had suffered a hairline skull fracture that caused bleeding into both his brain and his heart. The doctor noticed no defensive injuries on L.H.’s body.
The Return Home
18Chretien lived with his former girlfriend, Nancy Villeneuve, and her 21 year-old son, Jason, in an apartment building a few blocks away from L.H.’s apartment. Chretien’s relationship with Nancy Villeneuve was problematic because of Chretien’s drug use. Chretien and Jason Villeneuve had a close relationship.
19Chretien returned to the Villeneuve apartment about 3:30 or 4:00 a.m., a short time after a police officer spoke to Goyette in the presence of an unidentified man. Jason was up and Nancy was awakened by Chretien’s return.
20At trial, Jason claimed to have no memory of what Chretien had said. However, in his sworn videotaped statement admitted at trial, Jason told police that Chretien said that he (Chretien) had followed a guy who owed him money to a place behind a Burger King. Chretien broke down the door to the man’s place. A fight started. The man swung something. Chretien grabbed a piece of wood and threw it. Things degenerated after that. Chretien hit the man in the face a couple of times including once over his left eye. The man was badly beaten. There was blood all over. Chretien thought that the man could be dead. Before leaving the apartment, Chretien stole some things from the apartment.
21According to Jason Villeneuve’s statement, Chretien claimed that he jumped the balcony and landed in a parking lot by the Burger King where he left his grey jacket. Chretien was not wearing a coat when he talked to Jason Villeneuve.
22Nancy Villeneuve came into the living room during the conversation between her son and Chretien. She heard Chretien talking about being in a fight, a rough fight, but she had heard similar stories on many prior occasions. She did not recall Chretien saying anything about somebody being dead.
The Walk Around
23Sometime later, Nancy Villeneuve went outside to see whether any police were around. She told Chretien and Jason that she had seen only one police car down the street. A bit later, she and Chretien went out with Nancy’s dog. Chretien disappeared for a while when a police car drove by. When Chretien returned to the apartment he was wearing a grey jacket. He also had some jewellery – a chain and a cross – which he showed Nancy Villeneuve after they returned to the apartment. Police seized a chain and some rings in a bag found in a bedroom at the Villeneuve apartment.
The Arrest and Interview of Emmanuel Chretien
24Chretien was arrested later the same morning and charged with the second degree murder of L.H. During a videotaped interview conducted by the investigating officer, Chretien admitted taking drugs with “Frenchy”, but denied having gone to L.H.’s place. Confronted by the officer with evidence to the contrary, Chretien admitted going to L.H.’s place but denied having entered his apartment.
25During the interview, Chretien accused Goyette of trying “to put it on me there” and the Villeneuves of trying to set him up when they told the police about the jewellery Chretien had brought home. He admitted having been in the Burger King parking lot after he had returned home and having retrieved his grey coat there.
26Later in the interview, Chretien told the lead investigator that Goyette had a large flashlight – a “spotlight” – earlier in the day as he and Goyette wandered around the neighbourhood. Chretien denied killing L.H.
The Defence at Trial
27Neither Chretien nor Goyette testified or called any witnesses at trial.
THE GROUNDS OF APPEAL
28The appellant advances three grounds of appeal, which I would paraphrase as errors in
i. admitting and instructing the jury about their use of the videotaped interview of Jason Villeneuve;
ii. instructing the jury on intoxication and its effect on proof of the fault element in murder under s. 229(a)(ii) of the Criminal Code; and
iii. instructing the jury on their use of evidence of post-offence conduct in determining the level of appellant’s liability for the unlawful killing of L.H.
Ground #1: The Admissibility and Jury Use of Jason Villeneuve’s Statement
29The first ground of appeal has two aspects. The first relates to the admissibility of Jason Villeneuve’s out-of-court statement as substantive evidence in the Crown’s case-in-chief. And the second has to do with the instructions the trial judge gave to the jury about how they could use that statement in deciding whether the Crown had proven its case against the appellant beyond a reasonable doubt.
The Admissibility of the Statement
30I turn first to the issue of admissibility and begin with some added background to set up the discussion that follows.
The Statement
31Jason Villeneuve was interviewed by the investigating officer Sergeant Doyle from 4:12 p.m. to 5:17 p.m. on November 11, 2006, about twelve hours after he claimed the appellant told him about the fight in which he had participated. The interview was videotaped in its entirety, given under solemn affirmation and preceded by a warning about the consequences of lying under oath including a prosecution for perjury.
32The principal focus of the interview was Villeneuve’s recollection of what the appellant had told him about the fight a few hours earlier and the consequences of it for the victim.
The Trial Testimony
33Jason Villeneuve was a Crown witness at trial. He said that he did not remember what the appellant had told him when he returned to the apartment around 3:30 or 4:00 a.m. on November 11, 2006. He was provided with a copy of his videotaped statement to refresh his memory of the conversation and afforded ample time to watch, listen to, and read it. He said his review of the statement did not refresh his memory. Despite the video, Jason claimed he only recalled parts of the interview itself. After some further questions, Crown counsel asked that the jury be excluded and began a voir dire to determine whether the statement could be received.
The Ruling of the Trial Judge
34Trial counsel for the Crown (not Ms. Wheeler) invited the trial judge to admit Jason Villeneuve’s videotaped interview as substantive evidence on several different grounds. The trial judge rejected all but one alternative – the principled exception to the hearsay rule.
35The trial judge found that necessity had been established because Jason Villeneuve’s testimony about his conversation with the appellant on November 11, 2006 was unavailable at trial. Villeneuve claimed no memory of the conversation and never resiled from that claim.
36The trial judge found the statement of Jason Villeneuve satisfied the reliability requirement due to a combination of factors. The statement satisfied the requirement of R. v. B (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740. It was videotaped in its entirety. It was under solemn affirmation. Jason Villeneuve had been warned of the consequences of lying, including a prosecution for perjury. The jury was well-positioned to assess the reliability of the statement and the weight to assign to it.
37The trial judge concluded that a combination of factors surrounding the making of the statement established its threshold reliability and reduced the hearsay dangers of perception, memory, narration and sincerity. Chretien and Villeneuve were close friends rendering it more likely that Villeneuve would pay close attention to what Chretien said. The men were alone, not distracted by the presence of other persons or events. The conversation took place within hours, if not minutes of the relevant events. Neither had a motive to fabricate. Villeneuve had slept before the police interview. He was not subjected to coercive or leading questioning, simply left to tell his story. As I indicate later in these reasons, his account was confirmed in several respects by independent evidence.
The Arguments on Appeal
38For the appellant, Mr. Lafontaine takes issue with the trial judge’s finding that the reliability requirement had been met, thus permitting reception of Jason Villeneuve’s out-of-court statement under the principled exception to the hearsay rule as evidence of the truth of its contents.
39Mr. Lafontaine says that to determine whether the reliability requirement had been met, the trial judge was required to consider not only the circumstances in which the hearsay statement was made, but also the importance of the hearsay statement to proof of the contested issues at trial. In this case, where there could be no effective cross-examination of the hearsay recipient at trial because he claimed no memory of the statement, the trial judge was required to consider that the statement was critical to proof of the case for the Crown. She failed to do so. If believed, the statement established the appellant’s presence and participation in an unlawful killing, and assisted in proof of that unlawful killing as murder. The confirmatory evidence exacerbated the harm caused by the absence of any contemporaneous cross-examination at trial.
40For the respondent, Ms. Wheeler contends that the reliability requirement may be established on either of two bases: procedural reliability or substantive reliability. These bases are not mutually exclusive. Nor is there any rule that requires greater scrutiny of hearsay where the statement relates to a central issue at trial. Satisfaction of the twin requirements of necessity and reliability removes the exclusionary effect of the hearsay rule as a barrier to admissibility – regardless of the issue on which the evidence is offered.
41Ms. Wheeler says that the trial judge found that the Crown had established reliability by proving that adequate substitutes were in place for testing the truth and accuracy of the statement (procedural reliability). But the judge did not admit the statement on this basis because Villeneuve’s asserted memory deficit rendered cross-examination at trial an ineffectual means of testing the evidence. The trial judge admitted the prior statement on the basis of its substantive reliability, in other words, because there were sufficient circumstantial guarantees of reliability or an inherent trustworthiness in the statement. Her finding is entitled to deference absent an error in principle or a finding that it is unreasonable.
42Ms. Wheeler contends that the appellant has not pointed to any error in principle the trial judge made in her reliability analysis. The judge relied on several factors in her analysis: the nature of the relationship between the parties; Villeneuve’s understanding of the seriousness of the discussion and of the need to be accurate and truthful; the relative contemporaneity of the conversation and interview; the absence of any outside influence or other contaminants. Confirmation of the contents of the discussion by other evidence.
The Governing Principles
43Two preliminary points should be made in connection with the admissibility of hearsay under the principled approach.
44The first concerns appellate deference. The factual findings that ground a trial judge’s admissibility determination are entitled to deference from appellate courts. Trial judges are well placed to assess the hearsay dangers in individual cases and the effectiveness of any safeguards to assist in overcoming those specific dangers. Absent an error in principle, a trial judge’s determination of threshold reliability is entitled to deference on appeal: R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 31; and R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 81.
45The second point involves judicial discretion. Even if the proponent of otherwise inadmissible hearsay satisfies the requirements of necessity and reliability on a balance of probabilities, the trial judge retains a discretion to exclude the evidence because its prejudicial effect exceeds its probative value: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 3; R. v. Devine, 2008 SCC 36, [2008] 2 S.C.R. 283, at para. 30; Youvarajah, at para. 23; and R. v. Taylor, 2012 ONCA 809, 294 C.C.C. (3d) 483, at para. 25. Appellate deference also extends to the exercise of this discretion.
46The admissibility issue in this case is whether an out-of-court statement by a person called as a witness at trial satisfied the reliability requirement of the principled exception to the hearsay rule. Necessity was not an issue because the witness claimed no memory of the relevant conversation when he testified at trial. The evidence was not otherwise available because the original declarant could not be compelled to testify about it.
47Several principles exert an influence in an assessment of the trial judge’s decision to admit the statement.
48First, hearsay evidence is presumptively inadmissible because the dangers associated with it may undermine the truth-seeking function of a criminal trial or the fairness of that trial: Youvarajah, at para.18; Khelawon, at para. 2. The hearsay dangers include an inability to test and assess a declarant’s perception, memory, narration and sincerity:Youvarajah, at para. 18; Khelawon, at para.2.
49Second, when invited to admit hearsay under the principled approach, a judge should adopt a functional approach that focusses on the particular hearsay evidence tendered for admission, as well as on those attributes or circumstances relied upon by the proponent of the hearsay to overcome those dangers: Youvarajah, at para. 21; Khelawon, at para. 93.
50Third, in the principled approach to the admissibility of hearsay, the reliability requirement refers to threshold, not ultimate reliability. Were it otherwise, we would fail to maintain the distinction between admissibility and weight or reliance, breaching the divide between the role assigned to the trier of law, on the one hand, and the trier of fact, on the other: Khelawon, at paras. 2 and 50. Threshold reliability involves a determination of whether the evidence is worth receiving for assessment by the trier of fact: Youvarajah, at para. 24.
51Fourth, a prior inconsistent statement of a non-accused witness may be admitted as proof of the truth of its contents if the proponent establishes the reliability indicia described in B (K.G.):
i. the statement is made under oath or solemn affirmation after a warning about the consequences of an untruthful account;
ii. the statement is videotaped in its entirety; and
iii. the opposite party has a full opportunity to cross-examine the witness on the statement.
See, B (K.G.), at pp. 795-796; andYouvarajah, at para. 29.
52But the B (K.G.) indicia are not the only means of establishing threshold reliability in connection with prior inconsistent statements. Threshold reliability may also be established by:
i. the presence of adequate substitutes for testing truth and accuracy (procedural reliability); and
ii. sufficient circumstantial guarantees of reliability or an inherent trustworthiness (substantive reliability).
These principal methods of establishing threshold reliability are not mutually exclusive: Youvarajah, at para. 30; Khelawon, at paras. 49 and 61-63; and Devine, at para. 22.
53The most important factors supporting the admissibility of a prior inconsistent statement of a non-accused witness for the truth of its contents is the availability of the non-accused witness for cross-examination. This factor alone goes a long way towards satisfaction of the requirement for adequate substitutes for testing the evidence: Youvarajah, at para. 35; Couture, at paras. 92 and 95. Any limitations on the opportunity to cross-examine the non-accused witness at trial, for example because of the assertion by the witness of a privilege, a claim of lack of memory or a refusal to answer questions may render the opportunity more illusory than real: Youvarajah, at para. 36; Devine, at para. 37; R. v. James, 2011 ONCA 839, 283 C.C.C. (3d) 212, at paras. 41-44; and R. v. U (F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764, at para. 46.
54Where a proponent attempts to establish reliability based on the circumstances surrounding the making of a statement (substantive reliability), the trial judge may also consider the presence of corroborating (or conflicting) evidence: Khelawon, at para. 93; and Taylor, at para. 30.
55The principled approach to the admissibility of hearsay requires a flexible case-by-case examination to determine whether the requirements of necessity and reliability are met. This approach eschews categories of exceptions within the necessity/reliability analysis: Khelawon, at para. 45. Although the nature of the evidence can have a bearing on the reliability analysis, there is no warrant for a discrete subdivision of reliability based on the centrality of the hearsay to the proof of the Crown’s case.
The Principles Applied
56As I will explain, I would not give effect to this aspect of the first ground of appeal. Jason Villeneuve’s out-of-court statement was properly admitted under the principled exception to the hearsay rule.
57First, I start from a position of deference. Absent an error in principle, the trial judge’s finding on a balance of probabilities that the reliability requirement had been met is entitled to deference absent a demonstrated error in principle: Youvarajah, at para. 31; and Couture, at para. 81.
58Second, the trial judge considered first procedural reliability, that is whether there were adequate substitutes for testing the truth and accuracy of the statement: Youvarajah, at para. 30. She recognized that the B (K.G.) reliability indicia were met except that the appellant could not take optimal advantage of a full opportunity to cross-examine Jason Villeneuve because of Villeneuve’s claimed lack of memory. She declined to find reliability established on this basis, although she might well have found otherwise. After all, it may be open to question whether the inability to effect a complete cross-examination due to a witness’ asserted failure of memory is a reason to bar admission of the statement or is a factor for consideration on the issue of weight: R. v. Biscette, 1996 CanLII 142 (SCC), [1996] 3 S.C.R. 599, at pp. 599-600.
59Third, the trial judge’s finding of substantive reliability reflects no error in principle. The statement was made within hours of the conversation Jason Villeneuve reported. He was speaking to a police officer investigating an unlawful killing. He solemnly affirmed to tell the truth. He was warned about the consequences of lying, including a prosecution for perjury. He was sober, had slept for a few hours before the interview, and had no motive to make up a story. Quite the contrary, he and the appellant were close friends. The questions asked were not leading or otherwise improper. Significant parts of his narrative were confirmed by other evidence.
60Fourth, the principal argument advanced by the appellant, that because the statement related to a central issue in the Crown’s case that it should have been subjected to greater scrutiny in the reliability analysis, is at once unsupported by authority and fundamentally inconsistent with the principled approach to the admissibility of hearsay. An analogous argument was rejected in Taylor, at para. 24. This argument tends to blur the distinction between threshold and ultimate reliability, confuses the roles of the trier of law and the trier of fact, and invites a return to a categorical approach based on degrees or gradations of reliability or importance in proof of the case for the Crown.
61Finally, this was not a case that involved multiple hearsay dangers. There was little reason to doubt Jason Villeneuve’s perception, memory, narration or sincerity. He was reporting on a conversation a few hours old in which a close friend told him about a fight and its consequences for the victim.
Jury Instructions on the Evidence of Jason Villeneuve
62The appellant advances an alternative argument in connection with the out-of-court statement of Jason Villeneuve admitted as substantive evidence. He says that the trial judge did not adequately caution jurors about their use of this evidence in assessing the adequacy of the Crown’s case against the appellant.
63It is helpful to begin with a brief reference to the trial judge’s final instructions to the jury before describing the positions advanced in argument on appeal and the relevant principles that apply.
The Jury Instructions
64In addition to standard instructions about:
i. the assessment of evidence;
ii. the evidentiary value of out-of-court statements of both the appellant and co-accused; and
iii. the evidentiary value of out-of-court statements of non-accused witnesses,
the trial judge gave the jurors specific instructions about their assessment and use of Jason Villeneuve’s out-of-court statement to Sergeant Doyle. She said:
Next, in regard to Jason Villeneuve’s statement to Sergeant Doyle. As I indicated a moment ago, you may consider the videotaped statement that Jason Villeneuve gave to Sergeant Doyle, and that has been made Exhibit 11 I believe, as evidence that what it said happened actually took place. It is for you to say how much or how little you will believe of and rely upon Mr. Villeneuve’s statement in deciding the case. There are several factors that you should consider in deciding how much or how little you will believe of and rely upon the statement as evidence of what happened in the case. Take into account what happened before Jason Villeneuve made the statement. Consider what was discussed during the interview. Consider the circumstances of the interview at which the statement was made. Did the questions that were asked let Mr. Villeneuve provide the answers, or did the words used in the questions suggest to Mr. Villeneuve the answers Sergeant Doyle expected or wanted? Did Sergeant Doyle let Jason Villeneuve tell his story? Were any words put in Mr. Villeneuve’s mouth?
Examine to the extent that you can do the behaviour of Mr. Villeneuve during the interview. Bear in mind that you do not have the same chance to consider Mr. Villeneuve’s behaviour when he made the statement that you would have had if he had made the statement in court. Take into account that Mr. Villeneuve did not make the statement in your presence, and, unlike the evidence given at trial, he was not cross-examined when he made the statement. Keep in mind any reason or chance that Mr. Villeneuve had or may have had for not giving the whole account or telling the whole truth in giving the statement or in giving evidence here.
The Arguments on Appeal
65For the appellant, Mr. Lafontaine says that the trial judge’s final instructions on the manner in which the jury were to assess the out-of-court statement of Jason Villeneuve were fatally flawed. The evidence was critical to a demonstration of the extent of the appellant’s liability for unlawfully killing L.H. The trial judge should have cautioned the jury to be especially careful in their assessment of this evidence. The caution should have expressly reminded the jury about the possibility that Villeneuve was honestly mistaken about what the appellant said about the fight and what had happened to the victim. The failure of the trial judge to give such a caution, Mr. Lafontaine says, is a fatal error.
66For the respondent, Ms. Wheeler submits that the instructions given adequately equipped the jury to evaluate the out-of-court statement as evidence and to assign to it appropriate weight in reaching their ultimate conclusion. No standard word formula is mandatory. Each case is unique. The instruction here was sufficient in the circumstances. It invited the jurors to determine first whether a conversation had occurred and, only if it had occurred, to decide what was said. The instruction counselled a careful evaluation of the evidence and consideration of it along with and in the context of the rest of the evidence. What was said conveyed adequately what was necessary.
The Governing Principles
67At the outset, it should be kept in mind that when assessing the adequacy of final jury instructions, we are to adopt a functional approach, testing those instructions against their purpose – to equip the decision maker to make an informed decision. We do not measure the extent of their compliance with or departure from some sacred formula. For there is no sacred formula, no one-size-fits-all or exclusive prescription to which adherence is mandatory: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 32; R. v. Almarales, 2008 ONCA 692, 237 C.C.C. (3d) 148, at para. 61. Juries must be properly instructed, but they need not be perfectly instructed: Jacquard, at para. 2 and Almarales, at para. 61.
68An assessment of the adequacy of a jury instruction involves a consideration of myriad factors, among them whether trial counsel for an accused objected to the instructions on a ground later asserted as error. Failure to object is not determinative of whether the curative provision of s. 686(1)(b)(iii) of the Criminal Code may be applied to preserve the verdict despite an error or omission. But it is a relevant consideration on appeal: Jacquard, at paras. 35-38. It is all the more so when counsel receive a draft of the proposed instructions in advance of their delivery and express no objection.
69Where hearsay is admitted by exception in a criminal jury trial, several concerns arise when the declarant does not testify. The first has to do with the reliability of the evidence of the recipient who testifies about the making and contents of the statement. The second relates to the absence of traditional means of providing for and testing the reliability of the statement itself. And the third concerns the features found in the rest of the evidence that may have bearing on the reliability of the statement: R. v. A.(S.) (1992), 1992 CanLII 7517 (ON CA), 76 C.C.C. (3d) 522 (Ont. CA), at pp. 526-527. Each concern exists in varying degrees in most if not all cases in which hearsay is admitted. Each should be brought to the jury’s attention by judicial instructions: A.(S.), at p. 527.
70No standard formula exists for jury instructions in connection with admissible hearsay. Each case is different. The trial judge must tailor the instructions to the circumstances of the case: A.(S.), at p. 527. That said, in some manner or other, the instructions should address each concern mentioned earlier.
71At the outset, the jury should be told that they should first determine whether the declarant made the statement alleged and, if so, what the declarant said. To decide this issue the jury should be directed to consider, among other things:
i. the credibility of the recipient who testifies at trial;
ii. the reliability of the recipient/witness’ account about the making of the statement;
iii. the positions of the parties on this issue; and
iv. the evidence relied upon by the parties in support of their positions.
It should be made clear to the jury that if, after a careful consideration of all the relevant evidence, they are not satisfied that the statement was made, they cannot rely upon the contents of the statement in determining whether the Crown has proven the guilt of the accused beyond a reasonable doubt: A.(S.), at p. 527.
72The content of any caution or instruction about how jurors should evaluate evidence of an out-of-court statement is informed by several factors including the form in which the evidence of the statement has been introduced. What is appropriate in the case of an unrecorded oral remark of a child declarant who does not testify may be quite different than what is apt for a recanting or amnestic witness who does testify and whose out-of-court statement is under oath or its equivalent, videotaped in its entirety, and preceded by a warning about the consequences of lying.
73In B.(K.G.) where the statements of the recanting witnesses were videotaped but not made under oath or its equivalent and were not preceded by a warning about the consequences of lying, Lamer C.J. offered the following suggestion at p. 804:
For example, where appropriate the trial judge might make specific reference to the significance of the demeanour of the witness at all relevant times (which could include when making the statement, when recanting at trial, and/or when presenting conflicting testimony at trial), the reasons offered by the witness for his or her recantation, any motivation and/or opportunity the witness had to fabricate his or her evidence when making the previous statement or when testifying at trial, the events leading up to the making of the first statement and the nature of the interview at which the statement was made (including the use of leading questions, and the existence of pre-statement interviews or coaching), corroboration of the facts in the statement by other evidence, and the extent to which the nature of the witness’s recantation limits the effectiveness of cross-examination on the previous statement. There may be other factors the trier of fact should consider, and the trial judge should impress upon the trier of fact the importance of carefully assessing all such matters in determining the weight to be afforded prior inconsistent statements as substantive evidence.
74A judge should also remind the jury that the out-of-court statement admitted as proof of the truth of its contents is simply one item of evidence adduced at trial. The statement should be considered together with and in light of the rest of the evidence. Its weight will be affected by the other evidence which may support or undermine the reliability of the statement: A.(S.), at pp. 528-529; R. v. Blackman (2006), 2006 CanLII 42356 (ON CA), 215 C.C.C. (3d) 524 (Ont. CA), at paras. 80-85, affirmed, 2008 SCC 37, [2008] 2 S.C.R. 298; and R. v. Pasqualino, 2008 ONCA 554, 233 C.C.C. (3d) 319, at para. 62.
The Principles Applied
75For reasons that I will develop, I would not give effect to this ground of appeal.
76First, absent some error in principle revealed by what is said, or left unsaid, substantial deference is owed to the trial judge’s word choice and manner of instruction.
77Second, the instructions should be tailored to the circumstances of the case. In this case, trial counsel for the appellant addressed reliability only in a very limited way and did not advance either mistake or unreliability as a basis to reject Jason Villeneuve’s out-of-court statement. Indeed, the defence position was that the statement was indicative of an unlawful killing that was not murder but manslaughter. The instructions were responsive to and reflective of these concerns.
78Third, the trial judge’s instructions to the jury included:
i. general instructions on the assessment of evidence;
ii. instructions on evidence of out-of-court statements made by the appellant and co-accused, including an express instruction that the jury should first decide whether anything was said and, if so, what was said;
iii. specific instructions about assessment and use of Jason Villeneuve’s out-of-court statement; and
iv. a W. (D.) instruction about those portions of Villeneuve’s out-of-court statement indicative of the absence of an intent to commit murder.
Trial counsel for the appellant did not object to the charge either before or after it was delivered.
79The instruction on Jason Villeneuve’s out-of-court statement directed the jurors that it was for them to decide how much or little to believe of and rely upon the out-of-court statement. The trial judge enumerated several factors surrounding the making of the statement for the jurors to consider in evaluating its reliability, then reminded jurors to examine Villeneuve’s behaviour during the interview and take into account the fact that they did not have the same chance to consider it there as if he had said the same things in the courtroom. Further, the trial judge cautioned the jurors that Villeneuve was not cross-examined when he gave the statement as he was when he testified at trial. The trial judge invited jurors to consider whether Villeneuve had or may have had any reason not to give the whole account or to tell the whole truth when he made his statement. Jurors received a similar specific instruction when the statement was admitted as evidence at trial.
80Considered as a whole and in light of the positions advanced at trial, these instructions adequately equipped the jurors to evaluate Jason Villeneuve’s out-of-court statement.
Ground #2: The Jury Instruction on Intoxication
81The second ground of appeal alleges error in the trial judge’s instructions to the jury on effect of evidence of intoxication on proof of the mental element in murder as defined in s. 229(a)(ii) of the Criminal Code. Reduced to its essence, the complaint is that the trial judge’s references to “capacity” and “ability” to form the essential intent left the jury with the erroneous impression that proof of capacity to form intent, not actual intent, was sufficient to establish the appellant’s guilt of murder.
82The complaint arises in a case in which there was no issue at trial that there was an air of reality to warrant submission of intoxication to the jury and where the only definition of murder advanced by the Crown was s. 229(a)(ii).
The Arguments on Appeal
83For the appellant, Mr. Lafontaine submits that the issue for the jury to decide in this case was whether the Crown had proven that the appellant had the intent required by s. 229(a)(ii) of the Criminal Code to make the unlawful killing murder. Evidence of intoxication was relevant for the jury to consider, along with the rest of the evidence, in deciding this issue relating the appellant’s actual state of mind.
84Mr. Lafontaine says that the governing authorities establish a clear preference for a single stage instruction on intoxication, one that focusses on actual intent, not capacity to form intent. Mr. Lafontaine acknowledges that a two-stage instruction, which contains a reference to capacity to form intent as well as actual intent, remains permissible. But such an instruction was neither necessary nor helpful here where no issue of capacity arose. The charge, he says, framed the general issue as capacity, and, as a result, failed to leave the jury with a proper understanding that the critical issue was actual intent.
85For the respondent, Ms. Wheeler accepts that a charge that directs the jury to consider capacity only would be wrong. An accused with the capacity to form intent may not form the required intent and it is an accused’s actual state of mind that must be proven.
86Ms. Wheeler says that, read as a whole and despite infrequent mention of “ability to form intent”, the jury could not have been left in any doubt that the issue that they were required to decide was whether the Crown had proven beyond a reasonable doubt that the appellant had the actual state of mind required to make the unlawful killing murder and that evidence of the appellant’s intoxication was relevant to their decision on that issue.
87Ms. Wheeler submits that, considered as a whole, the charge emphasized the critical issue of actual intent, never once saying or leaving the impression that capacity to form intent was the issue jurors had to decide. The decision tree and the question posed during the instructions reflected the need for proof of actual state of mind: “Did Emmanuel Chretien have a state of mind required for murder?”. The instructions on the common sense inference and the effect of evidence of intoxication referred to actual intent. Trial counsel for the appellant did not object to the instructions on intoxication either before or after they were given.
The Governing Principles
88Several principles inform whether the instructions of the trial judge reflect error.
89First, it is wrong to instruct a jury on intoxication only in the language of capacity. The issue is actual state of mind, not the capacity to form a particular state of mind: R. v. Robinson, 1996 CanLII 233 (SCC), [1996] 1 S.C.R. 683, at paras. 48 and 54.
90Second, it is preferable that a jury be instructed to consider evidence of intoxication, along with the rest of the evidence, in deciding whether an accused had the specific intent required to commit the offence: Robinson, at paras. 49-51 and 54. That said, a reference to “capacity” as part of a two-stage instruction may be appropriate in some cases and not be fatally defective at least where the ultimate issue is not left in terms of “capacity”:Robinson, at paras. 52-54; R. v. Seymour, 1996 CanLII 201 (SCC), [1996] 2 S.C.R. 252, at paras. 25-28; and R. v. Juanetty (2005), 2005 CanLII 23215 (ON CA), 200 C.C.C. (3d) 116 (Ont. CA), at paras. 7-9.
91Third, evidence of intoxication is relevant for a jury to consider in determining whether the Crown has proven the essential elements of murder – intention, foresight and recklessness – in s. 229(a)(ii): Robinson, at para. 48; R. v. Daley 2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 51 and 53. When an instruction is given about the common sense inference of intention from conduct, the instructions should make it clear that the jurors are to take into account evidence of intoxication, along with all the other evidence, in deciding whether it is appropriate to draw the permissible inference: Seymour, at paras. 21 and 23.
92Fourth, where a two-stage charge has been given, which includes “capacity” and “capability”, an appellate court is required to determine whether there is a reasonable possibility that the jury may have been misled into believing that a determination of the accused’s capacity for intent is the only relevant inquiry: Robinson, at para. 54.
The Principles Applied
93Several reasons persuade me that this ground of appeal fails.
94First, instructions on intoxication in this case cannot be fairly characterized as a two-stage charge. Indeed, the terms “capacity to form intent” and “capable of forming intent” nowhere appear.
95Second, the instructions on the mental element in murder in the decision tree both ask whether “the accused whom you are considering” or “Chretien” had a state of mind required for murder.
96Third, although the instructions contain minimal references to “ability” to form intent, these references are preceded, followed, or both preceded and followed by instructions that leave no doubt that the critical issue for the jury to determine is the appellant’s actual state of mind. It is curious that the term “ability” is used in paras. 51 and 53 of Daley where the majority makes it clear that no particular form of words is required in the instruction on s. 229(a)(ii).
97Fourth, trial counsel for the appellant did not object to the instruction on intoxication (which was also included in the charge on aiding and abetting) either before or after it was given. No expert evidence was adduced on intoxication and the intoxication evidence itself was not extensive.
Ground #3: Jury Instructions on Post-offence Conduct
98The final ground of appeal challenges the correctness of jury instructions about the use jurors could make of what is said to be evidence of post-offence conduct in determining the level of the appellant’s culpability. The evidence emerged when the out-of-court statement of Jason Villeneuve was admitted under the principled hearsay exception. The focus of that evidence was what the appellant said he did after leaving the apartment where the fight had occurred.
The Instructions of the Trial Judge
99The charge contained several references to evidence about what the appellant said and did, or did not say or do, before, at the time, and after the altercation with L.H. This evidence was said to be relevant to the appellant’s participation in the unlawful killing, to his state of mind and to the intoxication defence he advanced at trial.
100The specific passage on which the appellant focusses his complaint is this:
There is the evidence in Jason Villeneuve’s statement that at least around 4 a.m. Mr. Chrétien was worried that he may have killed [L.H]. This is circumstantial evidence as to Mr. Chrétien’s state of mind when he was in [L.H.’s] bedroom, though of course a lot can happen in a couple of hours in terms of a person’s knowledge or state of mind.
There is further circumstantial evidence provided in Jason Villeneuve’s statement to Sergeant Doyle that Mr. Chrétien told him that he had jumped down from the second storey and over a fence into the Burger King property, which, coupled with the evidence of Constables Velho and Lord about their being in the vicinity of Emond Street and Montreal Road at the time, might lead you to infer that Mr. Chrétien had the wherewithal to avoid the police after leaving [L.H.’s] apartment. That might be some evidence as to how his mind was working at the time. There is the further circumstantial evidence provided in Jason Villeneuve’s statement to Sergeant Doyle that Mr. Chrétien told him that he had ditched his grey jacket with [L.H.’s] jewellery in its pockets, so that he could get away. Again, this is some evidence to show how his mind may have been working at the time.
The Arguments on Appeal
101For the appellant, Mr. Lafontaine says that the trial judge’s specific focus on the appellant’s post-offence conduct, which she told the jury was relevant to show how the appellant’s mind was working at the time of the killing, amounted to an instruction that the evidence was relevant to the level of the appellant’s culpability. Such an instruction, he says, was wrong. The appellant acknowledged that he was guilty of manslaughter. The evidence of post-offence conduct pointed no more to murder than it did to manslaughter, thus had no probative value on the level of the appellant’s culpability. The instruction was especially prejudicial to the appellant since the only issue the jury had to decide was the level of his culpability.
102For the respondent, Ms. Wheeler takes the position that, with the possible exception of the appellant’s failure to call 911, the evidence of his post-offence conduct was relevant to the defence of intoxication he advanced as a basis upon which he should be found guilty of manslaughter only. Evidence of post-offence conduct is relevant to rebut a defence advanced by an accused. Rebuttal of any defence that relates to the mental element of necessity relates to the level of an accused’s culpability. At all events, even if the instruction were erroneous, it did not cause the appellant any substantial wrong or miscarriage of justice.
The Governing Principles
103Issues of fact in a criminal case may be proved by direct evidence, by circumstantial evidence, or by a combination of direct evidence and circumstantial evidence. The mental or fault element in a crime, like murder, is an issue of fact the Crown must prove beyond a reasonable doubt. Proof of this issue is almost always made by circumstantial evidence.
104Evidence of post-offence conduct is circumstantial evidence that invokes retrospectant reasoning: the subsequent occurrence of an act, state of mind or state of affairs is offered to support an inference that an act was done or a state of affairs or of mind existed at a prior time. To be admitted, the evidence of post-offence conduct must be relevant, material and not contravene an admissibility rule: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 22. The relevance and probative value of this evidence is assessed on a case-by-case basis: White, at para. 22.
105Evidence of post-offence conduct may be relevant to discredit a defence that relates to an accused’s state of mind, and thus be relevant to the accused’s ability to form the requisite intent, such as intoxication: R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 40; R. v. Pharr, 2007 ONCA 551, 227 O.A.C. 112, at paras. 8-15; R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 34 O.R. (3d) 620 (CA), at pp. 630-631; and R. v. Stiers, 2010 ONCA 382, 255 C.C.C. (3d) 99, at para. 56.
106No bright line rule classifies certain kinds of post-offence conduct as always relevant or never relevant to a particular fact in issue: Stiers, at para. 56. Each case depends on and is determined by reference to its own facts: White, at para. 38.
The Principles Applied
107I would reject this ground of appeal for several reasons.
108Before explaining why I consider the claim of error to fall on barren ground, it is helpful to recall the context in which this issue arises.
109Trial counsel for the appellant acknowledged that the appellant was guilty of manslaughter and invited the jury to find the appellant not guilty of second degree murder but guilty of manslaughter. Trial counsel contended that the Crown had not proven that the appellant committed murder under s. 229(a)(ii), in part because the injuries suffered by the deceased did not support the required proof, but principally because the appellant was intoxicated as a result of drug ingestion, and thus did not have the specific intent required to commit murder. No expert evidence was adduced in support of the defence and the evidence of actual drug ingestion was vague at best.
110In her final instructions on second degree murder, the trial judge separated out the essential elements of the offence and converted each into a question for the jurors to answer. The language of each question was duplicated in the decision tree provided to the jurors for their use during their deliberations. In connection with each question, the trial judge explained what must be proven to establish guilt, summarized the salient features of the evidence on the issue, reviewed the positions of counsel, and left the issue for the jurors to decide.
111The trial judge reminded the jury of the out-of-court statement of Jason Villeneuve received as substantive evidence under the principled exception to the hearsay rule. Among other things, Villeneuve recounted what he said the appellant told him about the fight, his view of its consequences for the victim and how he left the apartment. The conversation took place very shortly after the beating of the deceased.
112The trial judge’s instructions on the state of mind requirement for murder contained two references to things said or done after the beating.
113The first instruction advised jurors:
To determine the accused’s state of mind, what he meant to do or what he knew, you should consider all the evidence. You should consider what he did or did not do, how he did or did not do it, and what he said or did not say. You would look at the accused’s words and conduct before, at the time of and after the assault of [L.H.]. All these things, and the circumstances in which they happened, including any evidence about how much crack, alcohol or other drugs the accused used and over how long, along with any evidence about what effect, if any, these substances had on either accused at the material time, that may shed light on the accused’s state of mind at the time he allegedly committed the murder. All of this evidence may help you decide what the accused meant or didn’t mean to do. In considering all of that evidence, use your good common sense.
114The excerpted instruction does not reflect error. It is simply a general guideline that encourages the jurors to consider the words and actions of an accused in their totality, not a specific direction about evidence of post-offence conduct: Jaw, at para. 25.
115The second instruction is more specific in its reference to the appellant’s account to Jason Villeneuve about the manner in which he left the apartment. The trial judge told the jury, again in the context of an evidentiary review of the state of mind requirement for murder, that the evidence might support an inference about how the appellant’s mind was working at the time.
116It was open to the trial judge to instruct the jury that this circumstantial evidence was relevant for them to consider in assessing the appellant’s claim that he was so intoxicated that he did not foresee that L.H. would likely die from the blows he inflicted: Peavoy, at pp. 630-631; Pharr, at paras. 8-15; and Jaw, at para. 40. Evidence of post-offence conduct that discredits a defence relating to an accused’s state of mind inevitably and permissibly speaks to an accused’s level of culpability: Stiers, at paras. 56 and 61.
117Neither instruction attracted any objection from trial counsel for the appellant. These instructions apprised jurors about their use of evidence adduced at trial. They were followed by a clear and correct statement of the position of the appellant. The lack of objection is telling.
CONCLUSION
118It is for these reasons that I would dismiss the appeal.
Released: May 16, 2014 (“K.M.W.”)
“David Watt J.A.”
“I agree. K.M. Weiler J.A.”
“I agree. J. MacFarland J.A.”
