Court of Appeal for Ontario

Date: July 5, 2017

Docket: C55940

Judges: MacPherson, Cronk and Watt JJ.A.

Between

Her Majesty the Queen

Respondent

and

Christopher David McDonald

Appellant

Counsel:

Philip Campbell, for the appellant

Grace Choi, for the respondent

Heard: October 31, 2016

On appeal from the conviction entered on May 23, 2012 by Justice John R. Belleghem of the Superior Court of Justice, sitting with a jury.

Watt J.A.:

Introduction

1One spring day in Guelph, several Grade 8 students were outdoors for their physical activity class. Nearby their school was a park. One of the students saw something lying on the ground in a wooded area of the park. He approached, then left to report his finding to a teacher who called the police.

2On the ground was the naked body of a woman. Her body placed in a sexually degrading position. Signs of injury visible. Subsequent examination would reveal a significant, and potentially fatal, concentration of cocaine and its metabolite in her blood.

3Forensic analysis of semen in and on the body of the deceased, and of a substance under one of her fingernails, linked Christopher McDonald to the body.

4A jury found Christopher McDonald guilty of first degree murder and aggravated sexual assault for his involvement in the injuries to and death of the deceased. The trial judge stayed the aggravated sexual assault conviction pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729.

5Christopher McDonald appeals his conviction of first degree murder on several grounds. These reasons explain why I am satisfied that his appeal must be allowed, the convictions set aside and a new trial ordered.

The Background Facts

6To begin, a brief narrative of relevant events will suffice, with greater detail awaiting consideration of the specific grounds of appeal advanced.

The Principals

7The deceased was 29 years old. In her late teens, she had been diagnosed with mental health problems for which she was prescribed medication. She was addicted to crack cocaine and, depending on its availability, would smoke it daily. She frequented a local crack house not far from where her body was found. To fund her drug purchases, she engaged in sex work.

8Until May 23, 2008, Christopher McDonald lived with his girlfriend in her apartment. That day, McDonald's girlfriend ended their relationship, packed up his belongings and left them for him to retrieve at the apartment building. She rejected his entreaties during the following days about reconciliation, leaving him homeless.

The Habits of the Deceased

9Some of the deceased's friends testified about her personal hygiene. She was a clean person from which they inferred she showered daily or every other day. Some of her clients who paid for various sexual services recounted her insistence on the use of condoms should they have sexual intercourse with her.

The Events of May 23-25, 2008

10On May 23, 2008, the day his girlfriend issued him his departure notice, or the following day, Christopher McDonald was to start a job with a construction company operated by Kris Turner. But McDonald failed to begin work as scheduled. He explained to Turner that his girlfriend had thrown him out of her apartment and that he also had a medical emergency.

11In need of workers, Turner agreed that McDonald could stay at his (Turner's) home for a couple of days. Shortly after McDonald moved in, on May 24 or May 25, 2008, he left Turner's home to go out. He returned about 4:00 p.m., visibly drunk, with his shirt torn and knuckles raw.

12Christopher McDonald explained to Kris Turner that he (McDonald) had become involved in a fight in a local Irish bar. He had intervened in a dispute between a man and his girlfriend about a dream catcher the girlfriend had made for McDonald. He showed Turner the dream catcher and a bra he claimed the woman had given to him. Shortly after their conversation, McDonald told Turner that the woman was waiting for him down the street. McDonald left Turner's house and returned later that same night.

13Julie Barnes, Kris Turner's wife, recalled that McDonald arrived at their home on May 25, 2008, a Sunday. McDonald dropped off his belongings and left the house. He returned around 11:00 p.m. Ms. Barnes noticed McDonald's knuckles were scraped and red, which McDonald attributed to construction work.

14Ms. Barnes acknowledged that she and Turner had created a calendar in October 2008 to clarify their memories about McDonald's arrival at their home. The calendar referred to "bloody knuckles, bra, dream catcher" not only on Saturday, May 24, but also on Sunday, May 25, 2008. She agreed that this reflected "the un-clarity" they had about the dates those events occurred when they prepared the calendar. At trial, she placed the date of McDonald's arrival as May 25, 2008.

The Last Sighting of the Deceased

15A taxi driver reported having seen the deceased at the taxi company's dispatch office around 5:00 a.m. on May 25, 2008. No one reported having seen her alive thereafter.

The Discovery of the Deceased

16The body of the deceased was found during the afternoon of May 27, 2008. Drag marks suggested that the body had been dragged to its resting place after death.

The DNA Findings

17Biological samples taken from the deceased's body were subjected to DNA analysis. Deposits of semen were found on her chest and in her vagina. They matched the DNA profile of Christopher McDonald, such that the possibility of generating a random match was one in 130 billion. Organic material from under one of the deceased's fingernails also conformed to McDonald's DNA profile, but at a much lesser frequency of random occurrence.

18A forensic biologist testified that semen can remain in the vagina of a living woman for up to seven days. No estimates were provided in connection with semen in the vagina of a deceased woman. The forensic biologist testified that the biological material under the deceased's fingernail and the semen on her chest could have been transferred there from her vagina.

The Time of Death

19Dr. Sherah VanLaerhoven, a forensic entomologist, examined insect larvae seized from the body of the deceased. The larvae were those of the common blowfly, an insect attracted to the remains of deceased humans or animals. Dr. VanLaerhoven was able to conclude that the eggs must have been deposited on the body by a certain time of day by examining the eggs found on the body to see the extent to which the larvae had developed, and considering the temperature over the time leading up to the discovery of the body and recovery of the eggs. She also took into account the fact that blowflies do not deposit eggs on deceased remains at night.

20In this case, Dr. VanLaerhoven concluded that the blowfly eggs were deposited on the body of the deceased not later than 3:00 p.m. on May 25, 2008.

The Toxicology Evidence

21A forensic toxicologist found cocaine and its metabolite in the deceased's blood. The witness testified that the concentration recorded fell within an area of tremendous overlap between levels associated with recreational use of the drug and those potentially fatal. Recreational use refers to consumption by recreational users without toxic effects.

The Cause of Death

22Dr. John Fernandes conducted the post-mortem on the body of the deceased.

23Dr. Fernandes saw some marks on the surface of the deceased's body which he considered to be drag marks associated with dragging the body of the deceased through the wooded area to its final resting place. He noted several blunt force injuries to the head, neck, torso, arms and legs of the deceased, all of which had been inflicted prior to or about the time of death.

24Dr. Fernandes testified that the deceased had suffered some facial injuries which could have resulted from a single blow to the face or a collision with a hard object. There were also some, albeit minimal, subdural and subarachanoid hemorrhages, but no skull fracture.

25Dr. Fernandes saw a red area on the front of the deceased's neck, but he found no bruising in the underlying neck muscles. Some petechial hemorrhages were visible in one of the deceased's eyes. These hemorrhages may originate from a variety of causes, including neck compression and cocaine ingestion, but are not indigenous to either. While he introduced the notion of manual strangulation as a cause of death, Dr. Fernandes could not confidently say that the deceased died from a lethal application of force to the neck.

26Dr. Fernandes certified the cause of the deceased's death as "unascertained". He did so because there was more than one possible explanation for why she died. She could have died from the application of force to her face and neck while under the influence of a significant concentration of cocaine. Or she could have died from cocaine poisoning, which causes an overstimulation of the heart.

27Dr. Fernandes testified that the indicia of assault that he saw on the body of the deceased were not of the sort likely to cause death, whether considered individually or cumulatively. The most significant injury – a subdural hematoma – would not typically be fatal, but could cause death or unconsciousness. The contributing role of the assault could not be ignored despite the potentially lethal cocaine concentration.

Christopher McDonald's Explanation

28Christopher McDonald did not testify at his trial. As part of her case-in-chief, the Crown introduced an interview of McDonald by investigators. The interview was audio and video recorded. McDonald was told that he was not under arrest or being charged with anything at that moment. He was given his Charter advice and told he could leave the interview at any time. In response to McDonald's question, the police confirmed that he was not a suspect.

29Investigators showed McDonald a photograph of the deceased and asked whether he knew her. At first, he said she looked familiar, although he did not know her name. He knew her from a local drop-in centre and acknowledged that they might have had sex and smoked drugs together. As the interview progressed, he admitted having had intercourse and both anal and oral sex with the deceased, including once at his girlfriend's apartment which he remembered specifically "because we almost got nailed".

30In response to questions about whether he had ever been in the bush area where the deceased's body was found, McDonald said it was possible that he had been there and had sex with the deceased there. He had been in a lot of parks. He used them for taking drugs and having sex. If he had been there and had had sex with the deceased there, McDonald said that this would have occurred prior to being hired by Kris Turner.

The Grounds of Appeal

31Christopher McDonald (the appellant) raises three grounds of appeal. As I would paraphrase them, he submits that:

i. the trial judge erred in admitting evidence of the "Barrie incident" and in instructing the jury on its use in determining whether the Crown had proven the appellant's guilt beyond a reasonable doubt;

ii. the verdict of the jury is unreasonable on the issues of causation and the fault element in murder; and

iii. the trial judge erred in his instructions to the jury on causation and on the fault element in murder.

32The appellant also seeks leave to introduce expert evidence from Dr. Sherah VanLaerhoven to clarify what may have been a misunderstanding about the evidence she gave at trial and from Dr. Christopher Milroy, a forensic pathologist, about the cause of the deceased's death, in particular, whether she could have died from neck compression.

Ground #1: The Admissibility and Use of Evidence of the Barrie Incident

33The first ground of appeal has two dimensions. The first has to do with admissibility. The second concerns the trial judge's instructions to the jury about the use of the evidence in reaching a conclusion about the appellant's guilt.

34A convenient point of departure for the discussion that follows is a description of the evidence that is the subject of the alleged errors.

The Barrie Incident

35The Barrie incident occurred on July 14, 2009, about 14 months after the death of the deceased. The appellant pleaded guilty to aggravated assault for his conduct on that occasion. At his trial for the murder of the deceased, proof of the Barrie incident was given by an Agreed Statement of Facts and filing the transcript of his guilty plea. No one gave viva voce testimony about the incident.

36The victim in the Barrie incident was a 44-year old developmentally-challenged woman who occasionally used street drugs and engaged in sex work. On the day the offence occurred, the appellant was under surveillance by officers of the police force that investigated the murder of the deceased.

37On July 14, 2009, while under surveillance, the appellant drank a lot of alcohol at various downtown Barrie bars. At different times and places, he was joined by others. The victim approached him at a downtown intersection. They joined hands and walked into a nearby alley. The surveillance team lost sight of them.

38About an hour later, a pedestrian walking by the area saw the appellant on top of the victim in some shrubbery in a residential area. The victim was making a "gurgling" sound, her face bloodied from blows struck by the appellant. The appellant, who was moving his body up and down in a pumping motion, gestured for the pedestrian to move on. The pedestrian went to a nearby house and proceeded to call the police. The homeowner looked outside and heard someone say "shut the fuck up and lay still".

39Local police responded to a 911 call. They observed the appellant as he stood up and pulled on his shorts. The appellant was apprehended shortly after. They noticed blood on his hands and feet. The victim's watch was recovered beside the appellant's shirt.

40The victim was breathing but initially unresponsive. She was naked below the waist. Her legs were spread apart, her T-shirt and bra pushed up to her shoulders. Although the victim survived the assault, she suffered significant facial injuries and bruising to her neck. These injuries were consistent with several blows to the head and face. She had also suffered lacerations to her external genitalia, indicative of the application of significant force.

The Positions Advanced at Trial

41Crown counsel at trial (not Ms. Choi) advanced evidence of the Barrie incident as evidence of subsequent discreditable conduct that established that the appellant had the specific propensity to do what he was alleged to have done. According to the trial Crown, the evidence was relevant to prove motive, which, in turn, was relevant to establish identity and intent, and to rebut a claim of innocent association. As more probative than prejudicial, the evidence was admissible.

42Trial counsel for the appellant (not Mr. Campbell) characterized the evidence of the Barrie incident as evidence of a general, not a specific, propensity. Evidence of general propensity is prima facie inadmissible. In addition, counsel contended, the circumstances of the Barrie incident did not display the enhanced degree of similarity required when such evidence, here of only a single incident, is tendered in proof of identity. Counsel went on to submit that the evidence was not relevant to the issue of innocent association. That the appellant assaulted another sex worker says nothing about his interactions with the deceased, unless the jury was being asked to draw the prohibited inference: because of his general character, his contact with the deceased was not innocent in nature. In the end, trial counsel concluded, the moral and reasoning prejudice associated with the Barrie incident outdistanced its minimal probative value and warranted its exclusion.

The Ruling of the Trial Judge

43The trial judge considered the decision in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 to be the authority that governed his decision on admissibility.

44The trial judge characterized the evidence about the Barrie incident as evidence that established a specific propensity on the part of the appellant to do what was alleged against him, namely to inflict a high degree of violence in the course of a sexual assault. The evidence was relevant to establish a motive for the killing and to rebut any claim of innocent association advanced on the appellant's behalf. While the similarities considered individually did not reveal a unique trademark, their cumulative effect lead to a different result. Viewed as a whole, the conduct disclosed by the Barrie incident was almost a "carbon copy" to that involved in the offence charged and therefore sufficiently similar to warrant its characterization as evidence of similar acts. Further, there was no doubt about the appellant's involvement in it.

45The trial judge relied on the following catalogue of similarities between the Barrie incident and the offence charged:

i. both victims are sex workers;

ii. both victims are street drug users;

iii. both victims have problems related to their mental health;

iv. both incidents occurred outdoors;

v. both incidents occurred in relatively public places;

vi. both incidents apparently occurred during daylight hours;

vii. both victims had violence inflicted about their head on both occasions during the course of what were apparent sexual assaults;

viii. in "The Barrie Incident" the victim's watch was found near the defendant's shirt some distance away from the victim and it appears as though he had taken it; while in the present case there is evidence from which the jury could infer that the brassiere produced by the defendant to his employer could be a similar "memento" as argued by the Crown;

ix. it appears that the defendant was intoxicated at the time of the Barrie incident and there is evidence that he may have been in the same condition around the time the deceased died;

x. in "The Barrie Incident" the defendant was clearly bloodied from the attack and appeared to his employer, in the present case, with bloodied knuckles around the time of the events in question;

xi. the context in which "The Barrie Incident" took place and the apparent context of the present case may be virtually identical (this distinguishes the present case from Handy as does any issue of collusion);

xii. the incidents here are fourteen months apart, rather than a number over a seven year period (the context above in the relatively short timeframe enhances the probity); and

xiii. the incidents take place in localities with relatively similar populations, i.e. mid-size rather than large cities or small towns.

46In assessing, then balancing probative value and prejudicial effect, the trial judge assessed the probative value as "very high". He characterized the prejudicial effect, both moral and reasoning prejudice, as limited, and admitted the evidence to establish motive and to rebut innocent association.

47In his charge to the jury, the trial judge instructed the jury that evidence of the Barrie incident could assist them in their determination whether the appellant caused the deceased's death, whether he caused the death unlawfully, whether he had the requisite mental element required for murder, and whether the murder occurred during the course of a sexual assault.

The Arguments on Appeal

48The parties took as their starting point on this ground of appeal the admissibility of the evidence of the Barrie incident, then turned their attention to the trial judge's instructions on the use the jury could make of that evidence. In summarizing their submissions, I will follow the same sequence.

49The appellant acknowledges that deference is the place at which appellate review of a trial judge's decision, which required a balancing of probative value and prejudicial effect of evidence tendered for admission, must begin. But deference gives way the appellant says, where, as here, the trial judge has erred in law in his analysis of both the probative value and prejudicial effect of the evidence.

50To take first, the assessment of probative value. The trial judge found that the evidence of the Barrie incident was relevant to establish motive for the killing of the deceased and to rebut any assertion of innocent association. But the evidence of the Barrie incident, the appellant claims, had nothing to do either with proof of motive or rebuttal of innocent association.

51The appellant says that there was no evidence that the Barrie incident was motivated by any unusual sexual appetite or desire for sexual gratification, as the trial judge himself seemed to realize prior to charging the jury. It could say nothing about any motive which may have prompted the offence charged 14 months earlier. Likewise, the Barrie incident could not be summoned to rebut a claim of innocent association. Indeed, in this case, there was no claim of innocent association, rather a complete denial. I was not there. I did not do it.

52As a result, the appellant continues, the trial judge evaluated probative value in connection with issues on which it was not logically probative (motive) and not raised at trial (innocent association). The trial judge should have evaluated the probative value of the evidence on the issue of identity. Had he done so, the trial judge could only have concluded that the evidence could not reach the degree of similarity required by the authorities. There was nothing unique about the Barrie incident and an accumulation of unremarkable general similarities equally falls short.

53In assessing prejudicial effect, the appellant says the trial judge mischaracterized the extent of moral prejudice associated with the Barrie incident. His conclusion on this issue was, in a word, unreasonable. The repugnant facts of the Barrie incident could easily lead to skewed fact-finding on the case at large.

54In the end, the appellant continues, a proper assessment of probative value and prejudicial effect, followed by a proper settling of the balance between them, required exclusion of the Barrie incident as evidence at the appellant's trial.

55In the alternative, assuming evidence of the Barrie incident was properly admitted at trial, the appellant submits that the trial judge's instructions about the use the jury could make of the evidence were defective. Although the trial judge admitted the evidence to establish a motive for the killing and to rebut any claim of innocent association, the instructions with which he provided the jury about its use of the evidence were seriously deficient.

56The trial judge never instructed the jury that the evidence was relevant to prove motive and rebut innocent association. In advising the jury that they could consider the Barrie incident in determining whether the Crown had proven beyond a reasonable doubt that the appellant had caused the death of the deceased, had unlawfully killed the deceased, had committed murder and that the murder was first degree murder, the trial judge erred. Evidence of the Barrie incident, the appellant says, could not assist in proof of any of these issues upon which it lacked any relevance.

57The respondent begins with a reminder about deference. The trial judge's assessment of probative value, prejudicial effect and where the balance settled between them is entitled to a high degree of deference on appeal. In reaching his conclusion on each issue, thus in deciding evidence of the Barrie incident was admissible, the trial judge made no legal error, misapprehended none of the material evidence and did not reach an unreasonable conclusion. Deference has not been displaced. End of story.

58The respondent says that the trial judge properly assessed the probative value of the evidence of the Barrie incident. The appellant mischaracterizes the issue at trial as identity. A more accurate characterization of it is, as the trial judge had it, rebutting a claim of innocent association. The appellant was linked to the deceased by his own admission and his DNA. Reduced to its simplest terms, the appellant's defence was that he had had sexual contact with the deceased, but had nothing to do with her death. Evidence of the Barrie incident was relevant to this issue.

59According to the respondent, the circumstances of the Barrie incident satisfied the "similarity" threshold to warrant admission as evidence of similar acts. The high degree of similarity required where identity is in issue is not appropriate here. This evidence was not required to bear the entire burden of connecting the appellant with the offence charged where a standard of striking similarity like a signature is apt. The circumstances of the Barrie incident established the improbability of coincidence and, as a result, tended to establish the actus reus of the offence.

60Further, the respondent contends, the trial judge properly assessed the prejudicial effect of the evidence of the Barrie incident. As for moral prejudice, admittedly the evidence reveals "bad personhood". But what it shows is not a general propensity, rather a specific propensity to engage in the very conduct at issue here, namely violence to the head during a sexual encounter. The prospect of reasoning prejudice was not significant in this case. The evidence was of a single incident presented through a transcript and an Agreed Statement of Facts. It left no reasonable prospect that its introduction would divert the jury's attention from the single controverted issue at trial.

61The respondent rejects any suggestion of inadequacy or error in the trial judge's instructions about the use of this evidence. The instructions did not, expressly or by necessary implication, invite the jury to use propensity reasoning, or give them free rein to use the evidence to complete proof of any essential element of the offence.

62The respondent points out that trial counsel for the appellant did not object to the manner in which the trial judge left this evidence to the jury. Counsel on both sides did not want the trial judge to review the similarities and dissimilarities between the two incidents, rather they wanted to do so (and did so) themselves in their closing addresses. In the end, the instructions were even-handed and neutral and warned jurors not to engage in bad character reasoning.

The Governing Principles

63The principles that control resolution of this ground of appeal concern both the admissibility of evidence of extrinsic misconduct and its use by the trier of fact in determining whether the guilt of an accused has been proven beyond a reasonable doubt.

The Admissibility of Evidence of Extrinsic Misconduct

64Controversies about the admissibility of evidence at trial get settled by the application of basic principles to the unique circumstances of each case. It is no different when an appellate court is asked to review a decision on admissibility made at trial. And so it is that I consider some basic principles in resolving the claim of error advanced in this case.

65Relevance is a bedrock concept in the law of evidence. But it is not an inherent characteristic of any item of evidence. Attaching a label to an item of evidence, in this case"extrinsic misconduct", does not establish its relevance. For relevance is relative. It exists as a relation between an item of evidence and a proposition of fact that the proponent of the evidence seeks to establish by its introduction. See R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 204.

66Relevance is a matter of everyday experience and common sense. An item of evidence is relevant if it renders the fact that it seeks to establish slightly more or less probable than that fact would be without the evidence, through the application of everyday experience and common sense: Luciano, at para. 204.

67It follows that, to be relevant, an item of evidence need not conclusively establish the proposition of fact for which it is offered, or even make that proposition of fact more probable than not. All that is required is that the item of evidence reasonably show, by the application of everyday experience and common sense, that the fact is slightly more probable with the evidence than it would be without it: Luciano, at para. 206; R. v. Arp, [1998] 3 S.C.R. 339, at para. 38.

68A final point about relevance. We assess relevance in the context of the entire case and the positions of counsel. Relevance does not exist in the abstract or in the air: R. v. Cloutier, [1979] 2 S.C.R. 709, at pp. 730-33; Arp, at para. 38. Hence the importance that the proponent identify the issue(s) to which the evidence is relevant: R. v. Handy, at paras. 73-75.

69The trial judge admitted evidence of the Barrie incident for two purposes at trial: to establish motive and to rebut a claim of innocent association. Each requires brief examination.

70Motive is not an essential element in murder or in its classification as first degree murder. But evidence of motive is relevant, material and admissible in prosecutions for murder, especially where the case for the Crown is wholly or largely circumstantial: Luciano, at para. 164; R. v. Lewis, [1979] 2 S.C.R. 821, at pp. 833-38.

71Evidence of motive is material because it helps to establish two critical components of the case for the Crown: the identity and state of mind of the person who is alleged to have committed the offence: Luciano, at para. 165; Plomp v. The Queen (1963), 110 C.L.R. 234 (H.C.), at pp. 243, and 249-50; R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at paras. 59-60; R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at paras. 51 and 72.

72Evidence of motive is a species of circumstantial evidence used to prove, or to assist in proving, a human act. By nature, evidence of motive is prospectant: because a person had a motive to do an act X, that person probably did the act X alleged: Peter Tillers, ed., Wigmore on Evidence, vol. 1A (Toronto: Little, Brown and Company, 1983) § 51, pp. 1144-1146; see also R. v. Yumnu, 2010 ONCA 637, 260 C.C.C. (3d) 421, at para. 273, affirmed on other grounds, 2012 SCC 73, [2012] 3 S.C.R. 777.

73Motive may be evidenced by a person's words, conduct or some combination of each. On occasion, the conduct said to establish motive may involve the commission of offences other than those charged or other extrinsic misconduct: Luciano, at para. 114. The evidence of extrinsic misconduct must be relevant to prove the alleged motive and properly admissible under the rules of evidence.

74The term "innocent association" lacks precise definition. However, at bottom, it is a label that reflects denial of an essential element of the Crown's proof: Handy, at para. 72. It usually refers to non-culpable presence, a denial of participation in the conduct requirement, or actus reus of the offence: "I was there, but I didn't do it."

75Whether the descriptor is "evidence of extrinsic misconduct" or "evidence of similar acts", the general rule of admissibility and the test to be met to engage the exception remain the same.

76Evidence of extrinsic misconduct or similar acts is prima facie inadmissible. The rule generally prohibits character evidence from being used circumstantially to prove conduct. This prohibits an inference from the extrinsic misconduct or similar acts to propensity or disposition (character) to do the acts charged, and a second inference from propensity or disposition (character) to guilt of the offence charged: Handy, at para. 31; Arp, at para. 40.

77The policy basis for the exclusionary rule is well-established. Despite the relevance of propensity inferred from extrinsic misconduct or similar acts, this evidence may also capture the attention of the trier of fact, especially a jury, to an unwarranted degree. Its potential for prejudice, distraction and time-consumption is considerable and nearly always outdistances its probative value. And so it is that, generally at least, evidence of extrinsic misconduct or similar acts supportive of an inference of propensity or disposition is excluded from the case an accused has to answer: Handy, at para. 37.

78However, evidence of extrinsic misconduct or similar acts is not shown the exit door on every occasion on which it is tendered for reception. Sometimes, an issue may arise in a trial on which evidence of extrinsic misconduct or similar acts may be so highly relevant and cogent that its probative value in the search for the truth outweighs its potential for misuse by the trier of fact. In these cases, it falls to the Crown to establish, on a balance of probabilities, that the probative value of the evidence exceeds its prejudicial effect: R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 18. See also Handy, at para. 41. The policy basis for the exceptional admission of this evidence is that the deficit of probative value weighed against prejudicial effect on which the prophylactic approach is predicated is reversed. Probative value exceeds prejudicial effect, because the force of similar circumstances defies coincidence or other innocent explanation: Handy, at para. 47; Perrier, at paras. 19-20.

79Where evidence of extrinsic misconduct or similar acts is tendered to prove identity, that is to say, that it was the accused who committed the offence(s) charged, a high degree of similarity between the extrinsic misconduct or similar acts and the offence(s) charged is required before the evidence will be admitted. The similarity may be a unique feature, akin to a signature, or an accumulation of significant similarities: Arp, at paras. 43, 45, and 48-50. Where the evidence is adduced to establish identity, the jury is asked to infer from the degree of distinctiveness or uniqueness that exists between the crime charged and the evidence of extrinsic misconduct or similar acts that the accused is the very person who committed the offence(s) charged. This inference becomes available only if the high degree of similarity between the acts renders the likelihood of coincidence objectively improbable: Arp, at para. 43.

80Essential to a determination of probative value, thus to settling the probative value-prejudicial effect balance, is the need to identify the issue to which the evidence of extrinsic misconduct or similar acts relates. Probative value, like relevance, cannot be assessed, much less determined in the abstract. The issues that arise in any given case derive from or are a function of the allegations contained in the indictment and the defences advanced by the person charged: Handy, at paras. 73-75. We reject a category approach to admissibility in favour of a general principle that assesses, then balances, probative value and prejudicial effect: R. v. B. (C.R.), [1990] 1 S.C.R. 717, at pp. 732-733.

81The initial assessment of the similarity between the extrinsic misconduct or similar acts and the offence(s) charged must be based on the acts themselves and not on evidence of the accused's involvement in those acts: Perrier, at paras. 21-22. See also R. v. Woodcock (2003), 177 C.C.C. (3d) 346 (Ont. C.A.), at paras. 79-81.

82Turning now to the prejudice associated with the introduction of evidence of extrinsic misconduct or similar acts. There are two general kinds.

83Moral prejudice refers to the stigma of "bad personhood", a verdict based on prejudice, rather than proof. This involves a forbidden chain of reasoning where guilt of the offence charged is inferred from the general disposition or propensity established by the extrinsic misconduct or similar acts: Handy, at paras. 31, 71, 100 and 139. A related concern is that the jury may also tend to punish an accused for the other misconduct by finding him guilty of the offence(s) charged through the application of a less demanding standard of proof: R. v. D. (L.E.), [1989] 2 S.C.R. 111, at pp. 127-128.

84Reasoning prejudice refers to the distraction of jurors from their proper focus on the offence(s) alleged by the introduction of evidence of extrinsic misconduct: Handy, at paras. 100 and 144. Jurors might become confused as they concentrate on resolving whether the accused actually committed the similar acts or engaged in the extrinsic misconduct. Their attention may be deflected from the main purpose of their deliberations, the allegations contained in the indictment: D. (L.E.), at pp. 127-128. This distraction is aggravated by the consumption of time required for the introduction of this evidence: Handy, at para. 144.

85Decisions of trial judges admitting or rejecting evidence of extrinsic misconduct or similar acts are entitled to a high degree of deference on review by appellate courts: Arp, at para. 42; B. (C.R.), at p. 739; Handy, at para. 153. Deference will give way, however, in the face of legal error, a misapprehension of material evidence or an unreasonable result: Luciano, at para. 234.

86A final note concerns the use of evidence of extrinsic misconduct or similar acts. Evidence of extrinsic misconduct or similar acts is evidence of limited admissibility with inherent prejudice. As a result, limiting instructions are required to explain its permitted use and to inoculate jurors against its prohibited use: Luciano, at para. 116; D. (L.E.), at pp. 127-128.

The Principles Applied

87As I will explain, I would give effect to both aspects of this ground of appeal. In my respectful view, the trial judge erred in admitting the evidence of the Barrie incident and in instructing the jury about its use in determining whether the Crown had proven its case against the appellant beyond a reasonable doubt.

88To begin, I find it helpful to situate the admissibility issue in the case as presented at trial.

89The deceased was found naked in a wooded area. The position and condition of her body suggested that:

i. some kind of sexual activity had occurred prior to or contemporaneous with her death;

ii. she had suffered some injuries; and

iii. she had not died in the place where her body was found.

In combination, these circumstances were capable of supporting an inference that someone had killed the deceased.

90The Crown alleged that the appellant killed the deceased in circumstances amounting to murder under s. 229 (a)(ii) of the Criminal Code and that the murder was first degree murder pursuant to s. 231(5) of the Criminal Code because it occurred while the appellant was committing the predicate offence of sexual assault or aggravated sexual assault on the deceased.

91The case for the Crown was entirely circumstantial. The evidence adduced, in particular the evidence of the examining pathologist, left open an issue of causation and, as a result, a question whether the deceased was unlawfully killed. The pathologist who conducted the post-mortem could not say positively how the deceased had died. He could and did say she had a significant concentration of cocaine and its metabolite in her blood. She had suffered injuries that would not usually be fatal, but could be so in light of the cocaine she had on board.

92Subsequent investigation revealed a link between the appellant and the deceased. The appellant acknowledged that he had had sexual intercourse with the deceased, perhaps in the park where her body was found, sometime before he began working for Kris Turner. And the appellant's semen was found in the deceased's vagina and on her chest. But when the deceased died could not be established with any certainty, although it was obviously after a cab driver had seen her early in the morning of May 25 and before her body was found in the afternoon of May 27, 2008. The time of death was further narrowed by the evidence from the forensic entomologist who concluded that the deceased was dead no later than 3:00 pm on May 25, 2008.

93A principal issue at trial concerned how the deceased died, whether from the toxic effects of cocaine, or by some human agency, and if the latter, whether that human agency was the appellant. These issues framed the inquiry into the admissibility of the evidence of the Barrie incident.

94With this background, I turn to the admissibility issue raised by the appellant.

95Evidence of the Barrie incident was proffered and admitted as evidence of a similar act to establish a motive for the killing of the deceased and to rebut a claim of innocent association. It is the correctness of that determination that is at issue here.

96In responding to this claim of error, I begin, as I must, from a posture of significant deference to the conclusion reached by the trial judge in assessing, then balancing, the probative value of the evidence and its prejudicial effect. However, in this case, I am satisfied that the deference which is the trial judge's due, must give way in light of several errors, the cumulative effect of which leads to the conclusion that this evidence should not have been admitted at trial. Not to establish motive. Not to rebut innocent association. And not on any other ground.

97First, motive.

98Evidence of motive is circumstantial evidence. It involves prospectant reasoning: because a person had a motive to do an act X, therefore he probably did the act X alleged against him. The inference is forward-looking. The motive precedes the doing of the act. It is not backward-looking.

99As with any item of circumstantial evidence, its utility rests entirely on the validity of the inference the proponent seeks to have the trier of fact draw from it. The inference sought need not be the only inference, or even the most probable inference, but it must be among the field of available inferences, not mere speculation. And that is where the evidence of the Barrie incident misses the mark here. It does not rise above mere speculation.

100No bright line rules can be created to foreclose words and conduct after an offence as evidence of an actor's state of mind at the time the offence was committed. Proximity in time and place are relevant factors that warrant consideration in determining admissibility. However, in this case I am simply not satisfied that evidence of the Barrie incident, as a matter of logic and common sense, is capable of providing evidence of motive for the commission of the offence with which we are concerned.

101Second, innocent association.

102Evidence of the Barrie incident was not admissible to rebut a claim of innocent association. No such claim was in play at trial. The defence advanced was a straightforward denial. Not me. Wrong guy.

103The label of rebutting a claim of innocent association, at least as it seems to me, does not fairly characterize the true basis on which this evidence was advanced. That basis was to establish the appellant's identity as the person who killed the deceased. To do so, the Crown was required to show, if it could, a high degree of similarity between the acts involved in the Barrie incident and those involved in the offences charged. The degree of similarity must be such to render the likelihood of coincidence objectively improbable. A unique trademark or signature common to both. Or a number of significant similarities, considered together, and beyond the generic or mundane.

104An examination of the acts involved in each incident reveals no conduct that could fairly be characterized as a unique signature, calling card or trademark. In a similar way, the accumulation of similarities relied upon by the trial judge do not transcend the generic or commonplace.

105Recall that the incidents took place 14 months apart, in different places some distance removed from one another. The allegedly similar act was a single occurrence. The Barrie incident involved a sexual assault on a person who engaged in sex work. It was accompanied by significant violence to the face and head, apparently to subdue the victim. It took place in a residential neighbourhood. In contrast, in the offence charged, the time and place of the occurrence was unclear, the existence of the sexual assault disputed and the violence to the head of the deceased markedly less severe.

106In the end, what occurred here was that evidence of a subsequent event that lacked the degree of similarity necessary when tendered to establish identity and accompanied by significant moral prejudice, including a conviction for aggravated assault, an essential element in one of the offences with which the appellant was charged, was admitted at trial when it should have been excluded.

107It follows from the wrongful admission of the evidence of the Barrie incident that the jury was not entitled to consider that evidence in reaching their verdict. But in his final instructions, the trial judge told the jury that they could consider the evidence of the Barrie incident in determining:

i. whether the appellant was implicated in the deceased's death;

ii. whether the appellant caused the deceased's death;

iii. whether the appellant caused the deceased's death unlawfully;

iv. the appellant's mental state at the time of the deceased's death;

v. whether the appellant actively participated in the actual killing of the deceased;

vi. whether the appellant sexually assaulted the deceased; and

vii. whether the killing of the deceased occurred while the appellant was committing a sexual assault;

These uses far exceeded the basis upon which the evidence had been admitted and far exceeded its capacity as probative material.

108The wrongful admission of the evidence of the Barrie incident, coupled with instructions that permitted its use beyond what would have been authorized had it been admissible on the issue of identity, tainted the verdicts reached at trial to such an extent that a new trial is required.

Ground #2: Unreasonable Verdict

109The appellant contests the reasonableness of the jury's verdict finding him guilty of first degree murder in two respects:

i. that he unlawfully caused the death of the deceased [causation]; and

ii. that he had the state of mind necessary to make the unlawful killing murder [the fault element].

110In connection with this ground of appeal, the appellant also seeks leave to introduce further evidence from Dr. VanLaerhoven, to clarify what she considers a misunderstanding of her trial testimony, and from Dr. Christopher Milroy, a forensic pathologist who was not a witness at trial, about the cause of the deceased's death.

111Brief mention of some features of the evidence adduced at trial will provide a suitable framework for an outline of the proposed fresh evidence and the discussion that follows.

The Evidence at Trial

112The evidence adduced at trial and what is proposed for admission as fresh evidence focuses upon two issues: time and cause of death.

The Time of Death

113Three pieces of evidence adduced at trial assisted in establishing when the deceased died. She was last seen alive by a taxi driver near the company's dispatch office around 5:00 a.m. on May 25, 2008. Her body was found during the afternoon of May 27, 2008. Blowfly larvae harvested from the deceased's body developed from eggs laid on the deceased's remains not later than 3:00 p.m. on May 25, 2008.

The Cause of Death

114Dr. John Fernandes, who performed the post-mortem on the deceased, certified the cause of her death as "unascertained". He explained that he could not eliminate cocaine intoxication as the sole cause of death. But he also saw signs of trauma on the body, not likely to cause death, but equally not something that could be eliminated from having done so. He saw some marks on the surface of the deceased's neck and petechial hemorrhages in the eye suggestive of neck compression. But he found no evidence of neck compression in the tissue beneath the skin, something that he would expect to find had significant force been applied to the deceased's neck. Despite these findings, Dr. Fernandes raised the possibility that strangulation or manual strangulation could be the cause of the deceased's death.

The Proposed Fresh Evidence

The Evidence of Dr. Sherah VanLaerhoven

115The appellant proffers the evidence of Dr. VanLaerhoven to clarify what is said to be a misunderstanding of the effect of her testimony at trial. What she seeks to make plain is that she cannot establish, and should not be taken as having established, by her examination of the larvae harvested from the body of the deceased, the precise time at which the deceased died.

116Dr. VanLaerhoven reiterated that blowflies do not lay eggs at night, only during hours of daylight. What she is able to determine from the state of larval development, coupled with information about air temperature, is that the eggs must have been deposited on the body a certain number of hours before they were harvested. In this case, the eggs were deposited on the deceased's body not later than 3:00 p.m. on May 25, 2008. In other words, her opinion refers to the latest time at which the eggs could have been deposited on the body of the deceased, not to the time at which the deceased died.

The Evidence of Dr. Christopher Milroy

117The appellant tenders the opinion of Dr. Christopher Milroy as fresh evidence about the cause of death. Dr. Milroy, a well-respected forensic pathologist, would not have certified the cause of the deceased's death as "unascertained". In his view, the deceased died of a head injury in the presence of cocaine toxicity. Dr. Milroy described the head injuries, attributable to a significant blow, as not likely or expected to cause death. However, he acknowledged that they could have done so in conjunction with the cocaine the deceased had taken on board. In these circumstances, the deceased's death would be due to arrhythmia of the heart.

118Dr. Milroy rejected as speculative that neck compression caused the deceased's death. He pointed out that the presence of petechiae is non-specific. It is not a valid indicator of neck compression. The only inference available from the presence of petechiae is that, at some time around the time of death, the pressure in the veins returning blood to the deceased's heart increased causing those veins to burst. The bruises observed on the deceased's neck were not typical of the marks associated with neck compression. They were also indistinguishable from similar injuries to the deceased's face and head which were clearly unrelated to neck compression.

The Evidence of Dr. John Fernandes

119In response to the evidence of Dr. Milroy about the cause of death, counsel for the respondent tendered the testimony of Dr. John Fernandes, the pathologist who had conducted the post-mortem on the deceased. Dr. Fernandes maintained his original opinion that the cause of the deceased's death was properly described as "unascertained".

120Dr. Fernandes agreed that the skin abrasion on the deceased's neck was not typical of those associated with manual strangulation. In cross-examination he agreed the injuries to the neck were similar in appearance to abrasions on the face and head of the deceased. These injuries could have been caused by an altercation between the deceased and her assailant in some shrubbery near where her body was found. He agreed that at trial he did not point out the similarities in appearance between the abrasions on the neck, face and head of the deceased. Nor did he describe at trial the non-specific nature of petechial hemorrhages, or offer examples of other potential causes for them. Further, he did not explain the several features of the deceased's neck injuries that distinguished them from those usually seen in cases where death has been caused by neck compression. He simply answered the questions he was asked. He did say, however, that fatal neck compression can occur, but leave no visible signs on post-mortem examination.

The Evidence of Trial Counsel

121Counsel for the appellant at trial was a certified specialist in criminal law who had been practising for about nine years when she appeared on the appellant's behalf at trial.

122Trial counsel considered the evidence of Dr. VanLaerhoven pivotal because it provided support for the testimony of Kris Turner, whom she considered an untrustworthy witness. Counsel took Dr. VanLaerhoven's evidence to establish that the deceased had died during the afternoon of May 25, 2008, not during the night of May 24-25, 2008. She saw no basis upon which she could challenge the testimony of Dr. VanLaerhoven as she understood it at trial.

123Trial counsel explained that had she been aware of the fresh evidence of Dr. VanLaerhoven at the time of trial, she would have utilized it to expand the period during which the deceased might have died and thereby diminish the force of Kris Turner's evidence about the appellant's injuries, possession of a bra and remarks about being in a fight.

124Trial counsel did not call a forensic pathologist to contradict the evidence of Dr. Fernandes about the cause of death. She considered Dr. Fernandes' testimony would not allow the jury to conclude that the deceased died as a result of manual strangulation. She believed that the jury would find the deceased died from a combination of cocaine toxicity and a blow to the head or from cocaine toxicity alone. Trial counsel did not see any serious risk that the appellant would be convicted of murder on the basis of the opinion of a pathologist who was uncertain about what caused the death of the deceased.

The Arguments on Appeal

125The appellant says that the jury's finding that he was guilty of first degree murder is unreasonable in two respects. The Crown could not prove and did not establish beyond a reasonable doubt how the deceased died, in particular, that she did not die from a cocaine overdose. And if the Crown could establish beyond a reasonable doubt that the deceased died from a combination of the consumption of cocaine and an assault, a finding that the assault was accompanied by the state of mind necessary to make the unlawful killing murder was unreasonable.

126The appellant invites us to recall what is involved in an assessment of the reasonableness of a verdict rendered by a jury. We are to re-examine and, to some extent, within the limits of appellate disadvantage, to re-weigh the evidence adduced at trial. We are to bring to our examination of the evidence the lens of judicial experience, including a familiarity with errors that have caused miscarriages of justice in the past. Our analysis must take into account the burden and standard of proof imposed on the Crown, and not permit speculation or guesswork to support a conclusion in place of reasonable inferences. Should we determine that the verdict is unreasonable, we should be able to articulate what aspects of the case have led to that conclusion.

127Taking first the issue of causation, the appellant argues that this essential element of the case for the Crown could not be established on the evidence adduced at trial. None of the injuries to the deceased, considered individually or in combination, were likely to have caused her death. Even if there had been an assault, the consumption of cocaine could still be the sole cause of her death. In these circumstances, to conclude that an assault constituted a substantial contribution to the death of the deceased would be purely speculative, thus an unreasonable finding.

128The appellant contends that even if the finding that he unlawfully caused the death of the deceased was not unreasonable, the jury's conclusion that the unlawful killing was murder is unreasonable. To establish that the unlawful killing was murder, the Crown relied on the definition of murder in s. 229 (a)(ii) of the Criminal Code. That definition requires, among other things, knowledge that the bodily harm inflicted will likely kill the victim. But no such inference can be drawn in this case. The medical evidence, both at trial and tendered as fresh evidence on appeal, makes it clear that none of the injuries, or their combination, were likely to cause the deceased's death. With this objective reality, a finding that an assailant would know that the victim would probably die from the assault is unreasonable.

129As the respondent would portray it, both findings challenged here are reasonable, firmly rooted in the inferences available from the evidence adduced at trial and not dislodged by the proposed fresh evidence.

130In prosecutions for unlawful homicide, the respondent says, causation has both a factual and legal component. The first is concerned with how the victim died, the second with the assignment of criminal responsibility for the victim's death. A pathologist need not be able to identify a sure or virtually certain cause or mechanism of death. After all, it is the jury's responsibility to make that decision based on the evidence as a whole. It was open to and reasonable for the jury to accept the evidence of Dr. Fernandes that the trauma suffered by the deceased contributed to her death. Further, it defies common sense that she died fortuitously from the effects of cocaine consumption alone, which was within a recreational use range, while being assaulted. In addition, other aspects of the evidence, such as the movement and positioning of the body, the injuries to the appellant, the discovery of the appellant's semen on the body, as well as the Barrie incident support a conclusion of an unlawful killing.

131Turning to the jury's finding that the unlawful killing was accompanied by the state of mind necessary to constitute murder, the respondent contends that, in combination, several pieces of evidence render the conclusion reasonable. The positioning of the deceased's body is strongly indicative of a state of mind not taken by surprise, alarmed or shocked about the victim's death. Similarly, the post-killing possession and display of a women's bra that the jury could infer belonged to the deceased. The respondent also points out that a medical opinion about the likelihood of an assault causing a person to die is not a proxy for the knowledge an assailant has of the probable consequences of that same blow.

The Governing Principles

132Several different principles have a say in a decision on this ground of appeal. Some define the standard to be applied in deciding whether a verdict or finding made by a jury is unreasonable. Others set the standard of causation in prosecutions for unlawful homicide and elucidate the fault element required by s. 229 (a)(ii). Still others impose several conditions precedent to the reception of fresh evidence on appeal.

Unreasonable Verdict

133The statutory test that controls this decision, expressed in s. 686(1) (a)(i) of the Criminal Code, includes both objective and subjective elements. The section requires us to determine what verdict a reasonable jury, properly instructed, could judicially have reached. In making that decision, we are to review, analyze and, within the limits of appellate disadvantage, weigh the evidence. The weighing process involves a subjective exercise, which requires us to examine the weight, not the bare sufficiency of the evidence adduced at trial: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36; R. v. Yebes, [1987] 2 S.C.R. 168, at p. 186.

134To the extent that the statutory standard includes a subjective component, it is the subjective component of an assessor with judicial training and experience that must be brought to bear on the exercise of reviewing the evidence upon which an allegedly unreasonable conviction rests. In turn, this requires the reviewing judges to import their knowledge of the law and the expertise of the courts gained through the judicial process, not simply their own personal experience and insight. Judicial appreciation of the evidence is governed by rules that mandate what is required in a charge to the jury: Biniaris, at paras. 39 and 42.

135To set aside a verdict as unreasonable, it is not enough that we take a different view of the evidence than the original trier of fact. Nor that we refer to or harbour a vague unease, a lingering or lurking doubt based on our own review of the evidence: Biniaris, at para. 38. What is required of us is not merely that we ask whether twelve properly instructed jurors, acting judicially, could reasonably have reached the same result, but that we do so through the lens of judicial experience which serves as an additional protection against an unwarranted conviction: Biniaris, at para. 40.

136A final point concerns assessment of the reasonableness of a verdict in a case where the evidence on which the Crown relies to establish guilt is principally or wholly circumstantial. The review for reasonableness must pay attention to the burden and standard of proof. Thus, where the case for the Crown depends on inferences drawn from primary facts, the issue becomes whether a trier of fact, acting judicially, could be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence, including any potentially exculpatory evidence: R. v. Dhillon, 2001 BCCA 555, 158 C.C.C. (3d) 353, at para. 102; R. v. Mars (2006), 205 C.C.C. (3d) 376 (Ont. C.A.), at para. 4.

Causation in Homicide

137A single standard of causation applies to all homicide cases. Expressed in positive terms, one person (D) causes the death of another (V) if what D does (or fails to do if under a legal duty) is a significant contributing cause of V's death: R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at paras. 46 and 71; R. v. Manasseri, 2016 ONCA 703, 344 C.C.C. (3d) 281, at para. 190.

138Despite this single standard, causation has two components. One is factual, the other legal. The factual component involves an inquiry about how the victim came to die – in a medical, mechanical or physical sense – and with the contribution of an accused to that result: Nette, at para. 44. This is a "but for" test or inquiry which is inclusive in scope: R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30, at para. 15. The legal component is a narrowing concept. It filters a wider range of factual causes into a residuum of those sufficiently connected with the harm caused – the death of another person – to warrant assignment of criminal responsibility for having caused that death: Nette, at paras. 45 and 83; Maybin, at para.16.

139Factual causation is not limited to the direct and immediate cause or even the most significant cause of death. For there may be several contributing causes of death: Maybin, at paras. 14 and 20. The thin-skulled rule, a long-standing principle of tort law which provides that a wrongdoer must take their victim as they find them, applies in prosecutions for the crimes of unlawful homicide when evaluating causation: Nette, at para. 79; R. v. Creighton, [1993] 3 S.C.R. 3, at p. 52. A contributing cause can be something that exacerbates a fatal condition, thereby accelerating death: R. v. Talbot, 2007 ONCA 81, 217 C.C.C. (3d) 415, at para. 81; R. v. Munro and Munro (1983), 8 C.C.C. (3d) 260 (Ont. C.A.), at pp. 290-291. See also Criminal Code, s. 226.

140In a jury trial for an offence of culpable homicide, jurors do not and are not instructed to engage in a two-part analysis of causation. Instead, they are asked and required to decide on the basis of all the evidence, not simply the testimony of medical experts, not what or who caused the death of the deceased, but whether the Crown has proven beyond a reasonable doubt that it was the accused who caused the death of the deceased: Nette, at para. 77; R. v. Smithers, [1978] 1 S.C.R. 506, at pp. 515-519; R. v. Pocock, 2015 ONCA 212, 19 C.R. (7th) 60, at para. 15.

The Fault Element in Murder under Section 229(a)(ii)

141In her attempt to establish that the unlawful killing of the deceased was murder, the trial Crown invoked the definition in s. 229 (a)(ii) of the Criminal Code. The fault element for which the subparagraph provides includes:

i. intention (to cause bodily harm);

ii. knowledge (that the bodily harm will probably be fatal); and

iii. recklessness (to whether death ensues from the bodily harm).

See R. v. Moo (2009), 2009 ONCA 645 , 247 C.C.C. (3d) 34 (Ont. C.A.), at para. 45.

142The knowledge component in s. 229(a)(ii) is only established where the Crown proves beyond a reasonable doubt actual knowledge on the part of the assailant of the likelihood that death will ensue from the bodily harm the assailant has inflicted. The issue is not the objective likelihood of resultant death, but rather the assailant's knowledge of that likelihood.

143As between the mental states required by the two definitions of murder in s. 229(a), there is only a "slight relaxation" in the fault element required under s. 229(a)(ii), as compared to that of s. 229(a)(i). Unlike under s. 229(a)(i), the Crown need not prove that the accused intended to caused death under s. 229(a)(ii), rather that he was reckless whether death ensued or not: R. v. Cooper, [1993] 1 S.C.R. 146, at p. 155; R. v. Nygaard, [1989] 2 S.C.R. 1074, at pp. 1088-89.

The Admissibility of Fresh Evidence

144The principles that inform the statutory authority of a court of appeal to obtain, receive and rely upon evidence that forms no part of the trial record are well-settled and in no need of restatement. They are expressed in the "interests of justice" standard contained in s. 683(1) of the Criminal Code and elucidated by the decision in R. v. Palmer, [1980] 1 S.C.R. 759, at p. 775.

145The Palmer criteria may be recast as three questions:

i. Is the evidence admissible under the operative rules of evidence? [admissibility]

ii. Is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict rendered at trial? [cogency]

iii. What explanation is offered for the failure to adduce the evidence at trial and should that explanation affect the admissibility of the evidence? [due diligence].

See Reference re: Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92.

146Sometimes, the proposed fresh evidence challenges a factual finding essential to the verdict rendered at trial. When this is so, as for example when the evidence challenges a causation finding in a prosecution for a crime of unlawful homicide, the admissibility of the evidence will turn on the responses to these three inquiries: R. v. Hartman, 2015 ONCA 498, 326 C.C.C. (3d) 263, at para. 18.

147The cogency requirement, in its turn, asks three questions:

i. Is the evidence relevant in that it bears upon a decisive or potentially decisive issue at trial?

ii. Is the evidence credible in that it is reasonably capable of belief?

iii. Is the evidence sufficiently probative that it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result?

See Truscott, at para. 99.

148A final point concerns due diligence. In a criminal case, the exercise of due diligence is not a condition precedent to the admissibility of fresh evidence on appeal: Truscott, at para. 93. However, due diligence occupies a prominent place in determining whether the proposed fresh evidence may be admitted: Truscott, at paras. 101-102. Where the proposed fresh evidence was available at trial, but not adduced because of tactical reasons thought justifiable by competent trial counsel, an additional degree of cogency is necessary before the proposed evidence can be received on appeal: Manasseri, at paras. 218-219 and 222; R. v. Dooley, 2009 ONCA 910, 249 C.C.C. (3d) 449, at paras. 106-109.

The Principles Applied

149As I will explain, I would not set aside as unreasonable the jury's finding that the appellant unlawfully caused the death of the deceased, a finding that was essential for them to make in concluding that the appellant was guilty of first degree murder. Nor can I conclude, on the basis of the evidence adduced at trial, that the jury's finding that the unlawful killing was murder and, in the circumstances, first degree murder, is unreasonable and should be set aside.

150To take first what counsel have characterized as the "causation" issue.

151Causation is an essential element in homicide. It is established when a person directly or indirectly, by any means, causes the death of another human being. For a killing to be blameworthy, thus culpable homicide, the Crown, as here, attempts to establish that the person charged caused the death of the deceased by an unlawful act. In such cases, the issue is not what or who caused the death of the deceased, but whether the Crown has proven beyond a reasonable doubt that it was the accused who did so.

152In assessing this claim of unreasonableness, sight must not be lost of the fact that merely because other factors, conditions or circumstances may have contributed to the death of a deceased, they are not always legally significant in establishing the guilt of a person charged with some crime of culpable homicide. It is only significant, and exculpatory, if independent factors, occurring before or after an accused's conduct, legally sever the link that ties the accused to the prohibited result. To prove guilt, what must be established, but nothing more, is that the accused's conduct was a significant contributing cause to the death of the deceased. Not the only cause. Or even the most probable cause. But a significant contributing cause.

153In deciding this issue, it is also important to keep in mind that anyone accused of a crime of culpable homicide must take the victim as they find them. And so it was that in Smithers, the fact that the deceased had a malfunctioning epiglottis and that the blow struck would not have caused the death of a person without that condition, did not relieve Smithers of liability for having caused the death of the deceased. A significant contributing cause can be one that accelerates death by exacerbating an existing fatal or potentially fatal condition.

154Further, in evaluating this complaint, we must not require a level of medical certainty or equate absence of medical certainty with want of proof of causation. Medical opinion is neither dispositive nor essential.

155In this case, the concentration of cocaine in the blood of the deceased fell within an area of overlap between recreational use and toxicity. There was also evidence of a blow or blows sufficient to cause subdural and subarachanoid hemorrhages. Death could have been caused by the consumption of cocaine on its own, or the combined effect of the assault and cocaine ingestion. The blow itself was not necessarily, but could have been, fatal. In this case, the causation threshold was met on the evidence adduced at trial.

156Even if it were admitted, the proposed fresh evidence would not render unreasonable a finding to the contrary on the causation issue.

157Dr. VanLaerhoven's evidence has nothing to say about causation. Nor does it alter the fact that a witness said he saw the deceased alive around 5:00 a.m. on May 25, 2008. To extend the timeframe for death to have been caused to the evening of May 24, 2008, in the face of evidence that she was alive the following morning is of no avail to the appellant.

158The evidence of Dr. Milroy would certify the cause of death as "head injury in the presence of cocaine toxicity". He described the blow to the head as "significant". Admission of this evidence on appeal would confirm the reasonableness of the finding on causation, not refute it.

159In this case, I would not admit the evidence of Dr. Milroy as fresh evidence on this issue for two reasons.

160First, expert evidence about cause of death was available at trial had counsel for the appellant chosen to adduce it. Satisfied that the uncertainty expressed by Dr. Fernandes about the cause of death – he certified the cause of death as "unascertained" – was favourable to her client, and left it open to her to argue, as she did, that the Crown had not proven that the appellant unlawfully caused the death of the deceased, trial counsel made a tactical choice not to adduce expert opinion about the cause of death. An additional degree of cogency is therefore required.

161Second, I am not satisfied that the proposed evidence is sufficiently probative that, when taken with the other evidence adduced at trial, it could reasonably be expected to have affected the issue of causation. Granted, the opinion of Dr. Milroy rejects manual strangulation as a cause of death. But Dr. Fernandes did not observe any internal damage indicative of manual strangulation, although his evidence about manual strangulation and the non-specific nature of petechial hemorrhages could have been more fulsome. At bottom, Dr. Milroy would certify the cause of death as "head injury in the presence of cocaine toxicity". He described the force of the blow that caused the head injury as "significant". Admission of this evidence would not have affected the causation finding at trial.

162Turning to the submission that the jury's finding that the appellant committed murder is unreasonable, I reach the same conclusion. I am satisfied that this finding is not unreasonable.

163I begin with a reminder about the test or standard a reviewing court is to apply in responding to a claim that a jury verdict is unreasonable. We are required to determine what verdict a reasonable jury, properly instructed, could reach, acting judicially, and, in doing so, to review, analyze and, within the limits of appellate disadvantage, weigh the evidence. We are to examine the weight, not the bare sufficiency of the evidence. Our examination is to be conducted through the lens of judicial experience.

164In this case, the reasonableness of the conclusion that the appellant committed murder reduces to the reasonableness of the jury finding that he had the mens rea necessary to make his unlawful killing of the deceased murder under s. 229(a)(ii). Among other things, s. 229(a)(ii) requires the Crown to prove that the appellant actually knew that the bodily harm he inflicted would likely kill the deceased. Actual knowledge of the probability of death. And we also know that the fault element in s. 229(a)(ii) involves only a "slight relaxation" in the fault element required by s. 229(a)(i). Section 229(a)(ii) requires the Crown to prove that the appellant intended to cause bodily harm of such a grave and serious nature that the appellant knew that it was likely to result in the death of the deceased, and was reckless as to whether death ensued.

165Testing a verdict for unreasonableness, in this case a finding critical to a conclusion that the appellant committed murder, assumes that the jury is properly instructed. In this case, that means that the jury would not be permitted to consider the evidence of the Barrie incident in reaching their conclusion on this issue. Further, since the evidence on the issue is wholly circumstantial, the jury would be instructed and required to find that the evidence, considered as whole, was consistent only with the existence of the required fault element and inconsistent with any other reasonable conclusion.

166In this case, the expert opinion evidence of the examining pathologist describes, from a medical point of view, the objective probability of death following from the blow or blows inflicted by the assailant. But that is not the question a trier of fact is to resolve in determining whether an unlawful killing amounted to murder.

167To determine whether an unlawful killing amounted to murder, a trier of fact takes into account all the circumstances surrounding the killing and decides whether the Crown has proven beyond a reasonable doubt that the killer had a state of mind required to make that unlawful killing murder. The appellant's argument on this branch of the unreasonable verdict ground treats the pathological evidence of the unlikelihood of death as dispositive of the proof of the fault element required to make an unlawful killing murder. Although the expert evidence may be of some assistance on the issue, it is not dispositive of it. The objective likelihood of death from a blow is at best a factor for jurors to consider in determining the state of mind of the killer. It does not, indeed cannot, render a conclusion drawn by the trier of fact from all the evidence that the Crown has proven the state of mind necessary to make an unlawful killing murder, unreasonable as the appellant argues.

168For these reasons, I am satisfied that the jury's verdict cannot be set aside as unreasonable.

Ground #3: Jury Instructions on Causation and the Fault Element in Murder under Section 229(a)(ii)

169The final ground of appeal alleges inadequacy in the jury instructions on causation and the fault or mental element s. 229(a)(ii) requires to make an unlawful killing murder.

170As I have already explained, I would order a new trial as a result of the admission of the evidence of the Barrie incident. It follows, if that decision is correct, that it is unnecessary to decide whether the trial judge's final instructions to the jury on causation and the fault element in murder were correct. But another court may see it differently. And so it is that I take up a discussion about the final ground of appeal.

171A helpful starting point for this discussion is a brief reminder of the positions advanced at trial.

The Positions of the Parties at Trial

172In his police statement, the appellant admitted having had sexual contact with the deceased, a working sex worker. At trial, it was his position that she died sometime after 5:00 a.m. on May 25, 2008 from an overdose of cocaine. He was not involved in her death.

173The Crown contended that the deceased died from the combined effect of the injuries inflicted on her by the appellant and her consumption of cocaine. The injuries were a significant contributing cause of her death. The killing was unlawful; murder within s. 229 (a)(ii) of the Criminal Code; and first degree murder because it occurred while the appellant was sexually assaulting, more specifically, committing an aggravated sexual assault, upon the deceased.

The Charge to the Jury

174In his final instructions to the jury, the trial judge divided first degree murder into its essential elements and converted each essential element into a question for the jury to answer. For each question, the trial judge explained what the Crown must prove to meet its burden of proof in connection with that element. He then summarized those portions of the evidence that the jurors could consider in deciding the issue framed by the question. At the end of his review of the evidence, the trial judge left the issue for the jury to decide with an explanation of the consequences of the available decisions to their further deliberations and their ultimate verdict.

175The trial judge explained the issue of causation in this way:

For an act or omission to cause someone's death, it must be at least a contributing cause, one that is beyond something that is trifling or minor in nature.

There must not be anything that somebody else does later that results in Mr. McDonald's act or omission no longer being a contributing cause of [the deceased's] death.

It is of no concern to you that proper medical treatment might have saved [the deceased's] life. It also does not matter that what Mr. McDonald did only speeded up [the deceased's] death from some existing disease or condition.

To answer this question, you must consider all the evidence. Do not limit your consideration only to the opinions of experts about what caused [the deceased's] death. Take into account, as well, the testimony of any witness who described the events that took place around the time that [the deceased] was hurt and died. Use your good common sense.

What I am going to say now may sound like a repeat of what I just instructed you on a little while ago. However, it should serve to highlight the importance attached to it. The question of whether Mr. McDonald "caused" the death of [the deceased] really requires consideration of two distinct issues; the first is whether Mr. McDonald is implicated at all in the death of [the deceased]; the second is whether, if he did anything that relates to her at the relevant time, whether in doing so, he caused her death.

176After this discussion of causation, the trial judge summarized various items of evidence that he considered might assist the jurors on the issue. This summary included a very lengthy review of Dr. Fernandes' report and testimony about his observations on the post-mortem and his opinion about cause of death. In addition, the trial judge made reference to Kris Turner's evidence and the evidence of the Barrie incident.

177The second essential element on which the trial judge instructed the jury was the unlawful act requirement in s. 222(5) (a) of the Criminal Code. He described the unlawful act as an assault and reviewed for the jury the essential elements of assault, and made passing reference to the evidence.

178Turning his attention to what makes an unlawful killing murder, the trial judge explained:

The crime of murder requires proof of a particular state of mind. For an unlawful killing to be murder, Crown counsel must prove that Mr. McDonald meant either to kill [the deceased] or meant to cause [the deceased] bodily harm that Mr. McDonald knew was likely to kill [the deceased] and was reckless whether [the deceased] died or not. The Crown does not have to prove both, one is enough. All of you do not have to agree on the same state of mind, as long as all of you are sure that one of the required states of mind has been proven beyond a reasonable doubt.

If Mr. McDonald did not mean to do either, Mr. McDonald committed manslaughter.

To determine Mr. McDonald's state of mind, what he meant to do, 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 should look at Mr. McDonald's words and conduct before, at the time and after the unlawful act that caused [the deceased's] death. All these things, and the circumstances in which they happened, may shed light on Mr. McDonald's state of mind at the time. They may help you decide what he meant or didn't mean to do. In considering all the evidence, use your good common sense.

Alcohol has an intoxicating effect on those who drink it. Intoxication that causes a person to cast off restraint and to act in a manner in which he would not act if sober, is no excuse for committing an offence if he had the state of mind required to commit the offence. An intoxicated state of mind is nonetheless a state of mind.

Murder is not committed if Mr. McDonald lacked the intent either to kill [the deceased] or meant to cause [the deceased] bodily harm that Mr. McDonald knew was likely to kill [the deceased] and was reckless whether [the deceased] died or not.

179The trial judge charged the jury on both paragraphs of s. 229 (a) of the Criminal Code. [1] He also told the jury that in determining whether the Crown had proven the fault element required to make an unlawful killing murder, they could rely on the common sense inference of intention, as well as evidence of the positioning of the deceased's body, of the injuries as described by Dr. Fernandes, and of the Barrie incident. At the request of trial counsel for the appellant, the judge also charged the jury on the issue of intoxication including the "rolled-up" instruction.

180This instruction on the required mental state was repeated in response to a question from the jury.

181Trial counsel did not object to the final instructions on any ground now said to have been erroneous.

The Arguments on Appeal

182The appellant complains that the trial judge's final instructions on causation and the fault element in murder were incomplete and failed adequately to equip the jury to decide either issue correctly. Among the omissions, the appellant submits the trial judged failed:

i. to point out several uncertainties surrounding the death of the deceased and to relate these uncertainties to the issues of causation and the fault element in murder under s. 229(a)(ii);

ii. to expressly point out the improbability of the required state of mind in light of the nature and extent of the injuries to the deceased and the unlikelihood that they would cause death; and

iii. to expand upon the standard instructions on causation and the fault element in light of the evidence adduced at trial.

183In connection with causation, the appellant says that the trial judge should have added to the standard instruction a direction that the jury was required to find the appellant not guilty if the Crown failed to prove beyond a reasonable doubt that cocaine toxicity was not the sole cause of the deceased's death, or if the jury could not determine, or had a reasonable doubt about, the cause of death. Further, the trial judge should have made it clear that the fact that the deceased's cocaine consumption did not explain her various injuries imposed no obligation on the appellant to establish how those injuries occurred.

184Turning to the instruction on the fault element in murder under s. 229 (a)(ii), the appellant submits that the trial judge should have linked the unlikelihood that the deceased's injuries would cause her death to the fault element, in particular, the requirement of actual knowledge of the likelihood of death. The appellant says that the charge on intoxication, as well as the "rolled-up" instruction, while relevant, were also distracting, especially when combined with the direction on the common sense inference. The jury's question about the fault element indicated the importance and necessity for a more nuanced instruction, something with which the jury was never provided.

185The respondent rejects any suggestion of inadequacy in the instructions on either issue. Read as a whole and assessed functionally, the respondent says, the charge equipped the jury to perform its task and that is all that matters.

186The respondent argues that the instructions on causation, read as whole, left no doubt that to prove that the appellant caused the death of the deceased, the Crown had to prove beyond a reasonable doubt that the appellant's assault on the deceased was a significant contributing cause of her death. Such a requirement of necessity demanded disproof of cocaine consumption as the sole cause of death. Nothing said or left unsaid by the trial judge shifted the onus of proof on any issue to the appellant. Trial counsel made no complaints about the adequacy of the charge.

187As for the instructions on the fault element in murder under s. 229 (a)(ii), the respondent contends that the jury was repeatedly told what the Crown had to prove to establish this element. The consequences of a reasonable doubt on this issue were carefully explained. The "rolled-up" instruction and the charge on intoxication were not only free of error, they were also included at the express request of trial counsel for the appellant, despite their tenuous evidentiary foothold. Trial counsel did not object to the charge on this issue and expressly agreed that the trial judge answer the jury's question by repeating his charge on the issue.

The Governing Principles

188It is unnecessary to repeat what I have already said about what is required to establish causation in prosecutions for unlawful homicide and the fault element in murder under s. 229 (a)(ii). There are, however, two principles, one of more general application than the other, that merit brief mention.

189The first concerns the standard to be applied on appellate review of jury instructions.

190An accused on trial for allegations of crime is entitled to a properly instructed jury, not a perfectly instructed jury: R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 31; R. v. Jacquard, [1997] 1 S.C.R. 314, at paras. 2 and 32. It would seem logically to follow that failure to tell jurors everything that they might have been told is not misdirection. In other words, non-direction, on its own, is not misdirection. It is misdirection only when the judge tells jurors something that is wrong, or tells them something that would make wrong what the judge has left the jury to understand: Luciano, at para. 70.

191On review of alleged inadequacies in instructions to a jury, an appellate court is to look at the charge in its totality and take a functional approach to determine whether the instructions fulfill their purpose: to educate the decision-maker to make an informed decision: Jacquard, at para. 32.

192A final point about the common sense inference of intention. Its inclusion in a jury charge serves a useful purpose. It provides the jury with a marker against which to measure the rather amorphous concept of intent. But a proper instruction also sounds a cautionary warning against presumptive use. And the need to carefully consider the evidence that points away from it, before invoking its permissive nature: R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438, at para. 63. A jury may resort to the common sense inference in finding the fault element established where there is no evidence that would realistically impact on whether the accused had the necessary mental state at the time of the offence, or if the evidence does not raise a reasonable doubt for the jury about that mental state: Walle, at para. 67.

The Principles Applied

193As I will briefly explain, I would not give effect to this ground of appeal in connection with the instructions on causation. But I would do so for the instructions on the fault element in murder under s. 229 (a)(ii), although I would not order a new trial on this ground standing alone.

194The appellant's claim of error on the issue of causation is one of non-direction: what the trial judge said was correct, but not enough attention was paid to the evidence adduced at trial.

195The trial judge made it clear that the relevant conduct that had to satisfy the causation requirement to establish the killing was unlawful was an assault. What was said was enough to bring home to the jury that a reasonable doubt on this issue, whether because the deceased died only from cocaine ingestion or uncertainty about what caused her death, would require a verdict of not guilty.

196The instructions on the fault element in murder under s. 229(a)(ii) are deficient in one respect.

197The trial judge failed to point out the particular evidence of Dr. Fernandes that, although the head injuries could have caused death, it was unlikely they had done so. This was significant evidence in light of the predicate assumption upon which the common sense inference is built.

Conclusion

198For these reasons, I would allow the appeal, set aside the convictions and order a new trial. I would also lift the stay imposed by the trial judge on the conviction for aggravated sexual assault.

Released: July 5, 2017

"David Watt J.A."

"I agree. J.C. MacPherson J.A."

"I agree. E.A. Cronk J.A."

1So far as I can determine, the Crown does not appear to have relied upon s. 229 (a)(i).