Court of Appeal for Ontario
Judges: Doherty, MacFarland and Paciocco JJ.A.
Between
Her Majesty the Queen Respondent
and
John Douglas Robinson Appellant
Counsel:
- James Lockyer and Jack Gemmell, for the appellant
- Christine Bartlett-Hughes, for the respondent
Heard: May 11 and 12, 2017
On appeal from the conviction entered on June 14, 2012 by Justice Kelly A. Gorman of the Superior Court of Justice, sitting with a jury.
I
Introduction
1The appellant was convicted by a jury of first degree murder. [1] He appeals from that conviction. For the reasons that follow, I would allow the appeal. The conviction on the charge of first degree murder is unreasonable and I would enter an acquittal on that charge. There are errors in the jury instruction that require a new trial on the charge of second degree murder.
II
The Evidence
The Night of the Homicide
2The appellant and Amy Gilbert lived together in an apartment in Woodstock, Ontario. Both were alcoholics and suffered from significant mental illness. They loved each other, but their relationship was a turbulent one. They often argued and the appellant had abused Ms. Gilbert, including an assault that led to his conviction in 2007.
3The appellant and Ms. Gilbert drank together almost every day. On September 27, 2008, the appellant arrived home from work around 5:00 p.m. Following their usual practice, the appellant and Ms. Gilbert started drinking beer.
4The deceased, Mr. Clifford Fair, showed up unexpectedly at the apartment around 9:00 p.m. He was a casual friend of Ms. Gilbert and he knew the appellant. The appellant believed that Mr. Fair and Ms. Gilbert had a sexual relationship before he and Ms. Gilbert became a couple. Mr. Fair, who appeared to have been drinking when he arrived, was also an alcoholic.
5The three drank beer together for an hour or two. According to the appellant, he had consumed six beers before Mr. Fair arrived, and had another six with Mr. Fair. The appellant was also taking anti-depressant medication. Mr. Fair had five or six beers after he arrived.
6At first, everyone got along. However, as the evening wore on, the tone changed. The appellant became concerned that Mr. Fair was drinking a great deal of the beer that he and Ms. Gilbert had intended would last the evening. Mr. Fair began making demeaning comments about the appellant's size and his job. The appellant also sensed that Ms. Gilbert was becoming angry with Mr. Fair. He apparently owed her some money. Ms. Gilbert recalled asking Mr. Fair about a $20 debt, but denied that she was ever angry with him.
7The appellant testified that he eventually decided Mr. Fair should leave. He worried that Ms. Gilbert would start a fight with Mr. Fair over the debt and that both would become violent. The appellant suggested to Mr. Fair that he should leave so that the appellant and Ms. Gilbert could be alone together. He also told Mr. Fair that he wanted to go to bed as he had to go to work the next day. Finally, the appellant told Mr. Fair that he must leave the apartment when he finished the beer he was drinking. Mr. Fair, who was much bigger than the appellant, dismissed the appellant's comments, indicating they were having a party.
8Ms. Gilbert recalled conversations about the jobs of the appellant and Mr. Fair. On her recollection, everyone was laughing and enjoying themselves, although the appellant was acting a little jealously. Ms. Gilbert recalled that the appellant got up and left the room. She thought he was going to the washroom.
9The appellant testified that he decided he had to do something to get Mr. Fair out of the apartment. He went to the furnace room looking for something he could use as a weapon to confront Mr. Fair with and force him to leave. As the appellant put it, he was looking for something to help him "shoo" Mr. Fair from the apartment. The appellant did not think Mr. Fair would go voluntarily and he knew that he would not do well in a physical confrontation with Mr. Fair. He had seen Mr. Fair fight on a previous occasion.
10The appellant found a hollow aluminum pipe, about 16 inches long, in the furnace room. He wrapped a towel around one end of the pipe and secured the towel with duct tape.
11As the appellant was looking for the duct tape to put around the towel, he noticed Mr. Fair's partially opened backpack on the floor. The appellant looked into the backpack and saw his camera and other property belonging to him. The appellant quickly concluded that Mr. Fair had stolen the items and might be planning to steal more items from the appellant if the appellant became very drunk and passed out. After the appellant saw the stolen items, he described himself as "quite a bit agitated … I was pissed off, I felt like victimized".
12The appellant testified that he went back into the living room armed with the aluminum pipe. He approached Mr. Fair from behind and yelled at him. As Mr. Fair turned around, the appellant struck him on the head with the padded end of the aluminum pipe. According to Ms. Gilbert, the appellant walked up behind Mr. Fair, smiled at her and swung the pipe with both hands like a baseball bat, striking Mr. Fair on the head. The appellant insisted he used only about 50 per cent of his force when he swung the pipe.
13The appellant testified that Mr. Fair started to get up after the first blow landed and made a threatening remark to him. The appellant swung the pipe a second time, striking Mr. Fair in the head and shoulder area, again with the padded end. Ms. Gilbert testified that Mr. Fair started to get up after the first blow, but was immediately felled by the second. She did not hear Mr. Fair say anything.
14According to the appellant, Mr. Fair continued to move toward him after the second blow. The appellant pushed Mr. Fair, who fell backward into the wall, possibly striking his head. He then fell face first onto the floor. Mr. Fair was unconscious and bleeding profusely from his nose and mouth. He died within moments.
The Appellant's Actions after Mr. Fair's Death
15The appellant and Ms. Gilbert testified that it was obvious that Mr. Fair was badly injured. Both were very upset and started to cry. The appellant checked for a pulse saying, "He can't be dead." Ms. Gilbert testified that the appellant was panicking and insisting that he had not intended to kill, or even hurt, Mr. Fair.
16The appellant, with Ms. Gilbert's assistance, dragged Mr. Fair's body into the backyard. [2] He buried the body in a shallow grave. A day or two later, the appellant reburied the body in a deeper grave. A day or two after that, he dug the body up again and dismembered it. He buried the head in one place, the arms in a second, and the torso and legs in a third. He covered the body parts in quicklime to hide the smell.
17The appellant cleaned up the blood in the apartment. He threw the pipe and other incriminating evidence into two dumpsters. The police never recovered those items.
18In the weeks following the homicide, the appellant and Ms. Gilbert drank more than usual and argued a great deal. Ms. Gilbert testified that she was very upset about what happened to Mr. Fair. She wanted "to do the right thing", but the appellant was adamant that they could "get away with this". Both Ms. Gilbert and the appellant wanted to move out of the apartment.
19There was evidence that during one argument after the killing, the appellant struck Ms. Gilbert. During another argument, Ms. Gilbert threatened to dig up Mr. Fair's head and show it to a friend.
20In early November 2008, about six weeks after the homicide, the appellant and Ms. Gilbert went to a local bar. During an evening of drinking, Ms. Gilbert confided to her friend that the appellant had killed Mr. Fair. The appellant, in a separate conversation with another friend, and in answer to that friend's questions, intimated that he had killed someone.
21The appellant knew that Ms. Gilbert had told her friend that the appellant had killed Mr. Fair. When the appellant returned to his apartment, he called his ex-wife, Susan Ellery. Although they were divorced, the appellant trusted Ms. Ellery. He was drunk when he called her.
22The appellant and Ms. Ellery spoke for over an hour. He described the killing and his subsequent attempts to cover it up. He insisted he had not meant to kill Mr. Fair. He also told Ms. Ellery that he wanted to teach Mr. Fair a lesson and that "the drunk fucking Indian got what he deserved". Ms. Ellery called the police the next day, and they arrested the appellant a few days later.
23The police searched the backyard. They found Mr. Fair's head and torso buried in two separate holes. Both were covered in lime. The police did not find Mr. Fair's arms until about a year later, after the appellant told them where to look in the backyard.
24The dismemberment of the body, and its burial for several weeks before the post-mortem was performed, made it impossible for either the Crown pathologist, or the defence expert, to identify a medical cause of death. The Crown pathologist testified that Mr. Fair may have bled to death from the blows to his head and face, but that because the head was severed from the body, he could not say whether loss of blood caused Mr. Fair's death. The post-mortem did not identify any underlying medical condition that may have contributed to Mr. Fair's death.
25The experts agreed that the blows to Mr. Fair's head did not fracture his skull or cause any significant brain injury. Standing alone, the blows to the head did not result in sufficient trauma to cause Mr. Fair's death.
26The appellant wrote letters to various people, including Ms. Gilbert and Ms. Ellery, while he was in custody awaiting trial. The Crown put seven of those letters into evidence. The letters contained admissions by the appellant that he had killed Mr. Fair. In one letter, he "prayed" he would "beat the murder beef and hopefully get convicted of manslaughter only". In addition to establishing that the appellant was responsible for Mr. Fair's death, the Crown relied on comments in the letters as evidence supporting the Crown's theory that the murder was motivated by the appellant's jealousy and possessive attitude towards Ms. Gilbert. The Crown also used parts of the letters to attack the appellant's credibility during his cross-examination.
The Parties' Positions at Trial
27At trial, the Crown maintained that the appellant had caused Mr. Fair's death when he struck him with the pipe. The Crown argued that the appellant had the mens rea for murder, relying on s. 229 (a)(ii) of the Criminal Code. On the Crown's theory, when the appellant struck Mr. Fair, he intended to cause Mr. Fair bodily harm that he knew was likely to cause death and was reckless as to whether death would ensue from the assault.
28As to motive, the Crown argued that the appellant was very possessive of Ms. Gilbert and was jealous of Mr. Fair because he believed Mr. Fair had a prior sexual relationship with Ms. Gilbert. The Crown also suggested that the appellant's decision to attack Mr. Fair was motivated by his desire to bring an end to Mr. Fair's consumption of their beer, and possibly by his belief that Mr. Fair was stealing from him. The Crown submitted that the planning and deliberation occurred in the minutes immediately preceding the assault, after the appellant had left the living room and gone to the furnace room in search of a weapon.
29The defence argued that the Crown had not proved that the appellant caused Mr. Fair's death and that the appellant should therefore be acquitted. The defence also submitted that if the jury was satisfied that the appellant had caused Mr. Fair's death, the Crown had failed to prove beyond a reasonable doubt, either that the appellant had the requisite intent for murder required under ss. 229 (a)(i) or (ii), or that he had planned and deliberated upon the murder. On the defence argument, manslaughter was the proper verdict if the jury concluded that the appellant had caused Mr. Fair's death.
III
Was the First Degree Murder Conviction Unreasonable?
30The appellant submits that his conviction on the charge of first degree murder was unreasonable within the meaning of s. 686(1) (a)(i) of the Criminal Code. A verdict is unreasonable if a properly instructed jury, acting judicially, could not have come to that verdict: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36-42.
31An appeal court, in considering a claim that a jury verdict is unreasonable, must engage in a limited weighing of the evidence. Cromwell J. described the boundaries of that exercise in R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 27-28:
… On one hand, the reviewing court must give due weight to the advantages of the jury as the trier of fact who was present throughout the trial and saw and heard the evidence as it unfolded. The reviewing court must not act as a "13th juror" or simply give effect to vague unease or lurking doubt based on its own review of the written record or find that a verdict is unreasonable simply because the reviewing court has a reasonable doubt based on its review of the record.
On the other hand, however, the review cannot be limited to assessing the sufficiency of the evidence. A positive answer to the question of whether there is some evidence which, if believed, supports the conviction does not exhaust the role of the reviewing court. Rather, the court is required "to review, analyse and, within the limits of appellate disadvantage, weigh the evidence" [citation omitted] and consider through the lens of judicial experience, whether "judicial fact-finding precludes the conclusion reached by the jury". Thus, in deciding whether the verdict is one which a properly instructed jury acting judicially could reasonably have rendered, the reviewing court must ask not only whether there is evidence in the record to support the verdict, but also whether the jury's conclusion conflicts with the bulk of judicial experience. [Citations omitted; emphasis in original.]
32The factual cause of Mr. Fair's death was a live issue at trial. The experts could not identify a medical cause of death. However, it seems to me that by the end of the evidence, especially the appellant's own testimony, the jury would have no difficulty concluding that the appellant's assault caused Mr. Fair's death. The jury's verdict depended on its assessment of the appellant's state of mind immediately before and at the time he struck those blows. Depending on that assessment, the appellant was guilty of first degree murder, second degree murder, or manslaughter.
33The appellant was guilty of murder if he intended to kill Mr. Fair (s. 229(a)(i)). He was equally guilty of murder if he intended to cause bodily harm to Mr. Fair, knowing that bodily harm was likely to cause his death and was reckless as to that possibility (s. 229(a)(ii)). The appellant was guilty of first degree murder under s. 231(2) if the Crown proved two additional mental states. The Crown had to prove that the murder was both planned and deliberate.
34A murder is planned if it is the product of "a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed". A murder is "deliberate" if it is "'considered,' 'not impulsive' … implying that the accused must take time to weigh the advantages and disadvantages of his intended action": R. v. Widdifield (1961), 6 Crim. L.Q. 152 (Ont. H.C.), per Gale J.; and R. v. Nygaard, 1989 CanLII 6 (SCC), [1989] 2 S.C.R. 1074, at p. 1084. Murder, as defined in either s. 229(a)(i) or s. 229(a)(ii), can be planned and deliberate: R. v. Banwait, 2010 ONCA 869, 265 C.C.C. (3d) 201, at paras. 59-64, rev'd, but not on this issue, 2011 SCC 55, [2011] 3 S.C.R. 533.
35At trial, the Crown relied on s. 229(a)(ii) to establish the appellant's liability for murder. To establish liability for first degree murder, based on s. 229(a)(ii), the Crown had to establish beyond a reasonable doubt that the appellant:
after careful thought, formulated a plan to attack Mr. Fair, intending to cause him bodily harm that the appellant knew was likely to kill Mr. Fair, and to persist in that attack despite the likelihood that it would result in Mr. Fair's death; and
having formulated and thought out the plan described above, took the time to consider whether he should proceed with the plan, and proceeded only after evaluating the pros and cons of doing so: Banwait, at paras. 57-64.
36As in almost all cases, the evidence relevant to the mens rea issues, save the appellant's testimony as to his state of mind, was circumstantial. Much of that evidence had relevance, both to the mens rea component of murder, and the mens rea required for planning and deliberation.
37A lay jury, unaccustomed to the sometimes subtle distinctions drawn in the criminal law among various culpable mental states, might move quickly from a finding that the appellant decided to inflict bodily harm that he knew would probably cause death, to a finding that the appellant had planned to inflict harm that he knew was likely to cause death. Looking at the evidence "through the lens of judicial experience", an appeal court must have regard to the real risk that evidence demonstrating the intention to commit murder under s. 229(a)(ii) could be improperly treated by a jury as equally cogent evidence of planning, if not deliberation.
38Turning to the evidence, I am satisfied that a reasonable jury could find that the appellant decided, for one reason or another, to use force to evict Mr. Fair from the apartment. The appellant knew that he was no match physically for Mr. Fair, so he went looking for a weapon to use when confronting the unwelcome guest. The appellant found a weapon in the furnace room and returned to the living room armed with the hollow aluminum pipe wrapped in a towel. He was intent upon making a pre-emptive disabling assault on Mr. Fair. The appellant did exactly that, hitting Mr. Fair on the head from behind and then striking him a second time as he tried to stand up. Mr. Fair fell to the ground unconscious. He died within moments.
39I accept that the appellant's swift attack on Mr. Fair as soon as he returned to the living room supports the inference that the appellant had made the decision to attack Mr. Fair before he returned to the living room. I also accept that a reasonable jury could infer from the totality of the evidence that when the appellant hit Mr. Fair with the aluminum pipe, he intended to cause Mr. Fair bodily harm that he knew was likely to cause death and he was reckless as to that consequence. Those findings would justify a conviction for second degree murder.
40A finding that the appellant decided seconds or a few minutes before inflicting the harm, to intentionally inflict bodily harm knowing that death was likely to ensue, is not the same as concluding that the appellant planned and deliberated upon the attack before commencing that attack. To borrow the language of the case law, there has to be evidence from which a jury could reasonably infer that the appellant's attack on Mr. Fair was the product "of a calculated scheme", arrived at after weighing "the nature and consequences" of that scheme. In addition to evidence of planning, there had to be evidence that having made the plan, the appellant "deliberated", that is weighed the pros and cons of putting the plan into action.
41Several features of the evidence indicate that a reasonable jury could not have been satisfied beyond a reasonable doubt that the killing was planned and deliberate. First, the Crown did not suggest that any planning and deliberation occurred before the appellant left the living room and went to the furnace room. On the appellant's evidence, only about two minutes passed before he returned and the assault occurred. While Ms. Gilbert testified that the appellant may have been gone for up to 20 minutes, her evidence about the length of time that passed between the appellant leaving the living room and his return was unclear and unreliable. She gave several different estimates. In any event, even on Ms. Gilbert's evidence, not much time passed between the appellant leaving the living room and returning armed with the pipe. It does not necessarily take a significant amount of time to plan and deliberate upon a murder, but the timeframe described in this evidence offers little support for the Crown's claim that the murder was planned and deliberate.
42The evidence about the appellant's selection and modification of the weapon he used to attack Mr. Fair does not support findings of planning and deliberation. On the Crown's theory, the appellant planned to inflict injuries that he knew were likely to cause death and thought about his plan before going ahead with it. In furtherance of that plan, the appellant selected a hollow aluminum pipe as his weapon and wrapped one end of that pipe in a towel. Again, on the Crown's evidence, the appellant then gripped that weapon with two hands and swung it "like a baseball bat", striking Mr. Fair across the head with the padded end of the pipe. Despite what was, on the Crown's theory, one, if not two, very forceful blows, the medical evidence established that there were no potentially fatal brain injuries.
43The medical evidence suggests two possibilities, neither of which support a finding of planning and deliberation. Either the weapon, as chosen and modified by the appellant, was not up to the task of inflicting lethal force, even when swung like a baseball bat, or the appellant, as he testified, did not hit Mr. Fair with a great deal of force. Neither inference supports the assertion that the appellant had not only decided to inflict bodily harm that he knew would cause death, but that he had planned for that result and deliberated upon it before launching his attack.
44The appellant's reactions immediately after he struck Mr. Fair provide the most compelling evidence contra-indicating planning and deliberation. Ms. Gilbert testified that as soon as Mr. Fair fell to the ground unconscious and bleeding, the appellant became very upset. He started to cry. The appellant searched for a pulse on Mr. Fair and insisted that he could not be dead. He told Ms. Gilbert that he had not meant to hurt, much less kill, Mr. Fair.
45The appellant's testimony was consistent with the testimony of Ms. Gilbert. Ms. Ellery's evidence about the appellant's description of the events during their telephone call is also consistent with Ms. Gilbert's testimony.
46The Crown relied heavily on Ms. Gilbert's description of the attack on Mr. Fair. There is nothing in the evidence to suggest that her description of the appellant's reaction when Mr. Fair fell to the ground was inaccurate. Nor is there anything in the evidence to suggest that the appellant may have feigned his immediate reaction to Mr. Fair's death.
47I think a reasonable jury would inevitably put considerable weight on Ms. Gilbert's description of the appellant's conduct immediately after he hit Mr. Fair when considering whether the appellant had planned and deliberated on the use of lethal force. His conduct belied any inference that he had planned an attack on Mr. Fair knowing that he would probably kill Mr. Fair and that he deliberated upon his plan before executing the attack.
48There was no other evidence capable of supporting a finding of planning and deliberation. There was evidence describing the appellant's conduct after he killed Mr. Fair. That after-the-fact conduct is the subject of a separate ground of appeal. For present purposes, it need only be said that the Crown does not suggest that any of that conduct could support the Crown's contention that the appellant committed a planned and deliberate murder.
49The Crown also led evidence of various statements made by the appellant after the homicide. While those statements contained admissions that the appellant had killed Mr. Fair, none provided evidence of planning and deliberation.
50A reasonable jury could not convict the appellant of a planned and deliberate murder on this evidence. The conviction on the charge of first degree murder is unreasonable and must be set aside.
IV
The After-the-Fact Conduct Instruction
51As the conviction for first degree murder was unreasonable, the appellant is entitled to an acquittal on that charge. I am satisfied that he is also entitled to a new trial on the charge of second degree murder. The trial judge's instructions on the use the jury could make of the appellant's after-the-fact conduct resulted in reversible error. I turn now to that ground of appeal.
52The jury heard a great deal of evidence about the appellant's actions in the minutes, hours and days following the homicide. The appellant buried the body twice, dismembered the body and covered it in quicklime. The appellant cleaned up the apartment after the homicide and discarded incriminating evidence, including the weapon used in the assault. The jury also heard evidence about the appellant's verbal and written statements made in the days and months following the homicide. For the purposes of this ground of appeal, I concentrate on the appellant's actions and not his statements.
The Arguments on Appeal
53Counsel for the appellant accepts that the appellant's after-the-fact conduct was relevant and admissible. He submits, however, that in the circumstances of this case, the evidence was equally consistent with the appellant having committed manslaughter, murder or first degree murder. Thus, it could not assist the jury in deciding whether the appellant had the intent required for murder under s. 229(a) or had planned and deliberated upon the murder. Counsel argues that the relevance could not go beyond identifying the appellant as having unlawfully caused Mr. Fair's death: see R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129; and R. v. Figueroa, 2008 ONCA 106, 232 C.C.C. (3d) 51, at paras. 33-39.
54Counsel submits that if after-the-fact conduct is not relevant to the issues of the intent required for murder, or planning and deliberation, the jury must be told that it cannot consider the after-the-fact conduct in respect of those issues. Counsel argues that an instruction identifying the prohibited uses of the after-the-fact conduct was particularly necessary in this case because Crown counsel in his closing repeatedly and incorrectly invited the jury to use the after-the-fact conduct as evidence of intention under s. 229(a). Counsel adds that the sheer volume of after-the-fact conduct evidence, and the gruesome nature of that evidence, could incline a jury, absent a proper instruction, to use that evidence without any restriction in determining its verdict. Counsel submits that this was yet another reason why it was essential that the trial judge clearly instruct the jury on the limited use it could make of the appellant's after-the-fact conduct.
55Crown counsel accepts that the after-the-fact conduct in this case, while relevant to show that the appellant unlawfully caused Mr. Fair's death, could not assist the jury in deciding whether the appellant had the intent required for murder or had planned and deliberated upon the murder. Counsel submits that the trial judge's instructions, read as a whole, properly limited the use of the after-the-fact conduct to a determination of whether the appellant had unlawfully caused Mr. Fair's death.
56Crown counsel also submits that at least some of the after-the-fact conduct had other potential evidentiary value not mentioned by the trial judge. She submits that to that extent the instruction was unduly favourable to the appellant. [3]
What Use can be Made of After-the-Fact Conduct Evidence?
57Things done by an accused after an alleged offence may constitute circumstantial evidence of a material fact in issue. As circumstantial evidence, after-the-fact conduct operates no differently than other kinds of circumstantial evidence. If the conduct, as a matter of common sense and human experience, makes a material fact in issue more or less likely, the evidence is relevant to that fact in issue: [4] see R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 22, 31; and R. v. Chambers, 2016 ONCA 684, at para. 76.
58However, because after-the-fact conduct is often discreditable conduct, and can, at least on a superficial level, be wrongly viewed as almost conclusive of guilt, it is crucial that the trial judge carefully instruct the jury on the use it can make of such evidence. Often, a proper instruction will require not only an instruction as to what the jury can use the evidence for, but also an instruction as to the prohibited uses of the evidence: R. v. Foerster, 2017 BCCA 105, 346 C.C.C. (3d) 163, at para. 55.
59After-the-fact conduct can, in different contexts, be relevant to different issues, including intent under s. 229(a) and planning and deliberation under s. 231(2): e.g. see; R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 43 O.R. (3d) 378 (C.A.), at pp. 383-84 and R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 27, aff'g 2014 ONCA 366, 309 C.C.C. (3d) 535. However, in this case, I agree with counsel that the after-the-fact conduct was relevant only to whether the appellant unlawfully killed Mr. Fair. It could not assist the jury in determining whether he had the intention for murder, or had planned and deliberated upon the murder.
The Errors in the After-the-Fact Conduct Charge
60The trial judge began her instruction on after-the-fact conduct by telling the jury that evidence of after-the-fact conduct may or may not provide evidence of culpability. She correctly told the jury that after-the-fact conduct could be explained by something other than the appellant's commission of the offence, in which case evidence of after-the-fact conduct could not assist the Crown. The trial judge next reviewed several of the appellant's statements to various people about the homicide. She then turned to the appellant's acts after the homicide:
Other evidence of post-offence conduct is the burial, the dismemberment. You may use that evidence, together with the other evidence of the letters, to help you decide if Mr. Robinson is guilty of culpable homicide, and I'll tell you what that is shortly … [Emphasis added.]
61The trial judge went on to explain the inferences necessary before after-the-fact conduct could be used as evidence of guilt:
If you conclude that he actually did say what he has alleged to have said, or did do what he is alleged to have done after the offence was committed, you go on to consider the next question, whether this was because Mr. Robinson was conscious, was culpable of having committed the offence of culpable homicide, or for some other reason. Alright, so two steps, did he actually do it, did he say it and then the second step is did he do it or say it because it's evidence of culpability?
62The trial judge's only reference to the definition of "culpable homicide" appears in her instructions on manslaughter. She told the jury:
Manslaughter is defined as culpable homicide that's not murder. In other words, when someone kills another person unintentionally, without the intent. To determine John Robinson's state of mind, what he meant to do, you should consider all of the evidence, what he did or did not do, how he did or did not do it, what he said or did not say. You look at Mr. Robinson's words and conduct before, at the time, and after the unlawful act that caused Mr. Fair's death. All of these things, and the circumstances in which they happened, may shed light on Mr. Robinson's state of mind. They may help you decide what he meant or didn't mean to do. [Emphasis added.]
63The trial judge did not expressly tell the jury that they could not use the appellant's after-the-fact conduct as evidence of intention under s. 229(a), or as evidence of planning and deliberation. It is not always necessary for a trial judge to tell a jury both the permissible and impermissible uses of evidence. However, in this case, the after-the-fact conduct was a dominant feature of the evidence. It was the kind of evidence that, absent a proper instruction, could be used by a jury to infer guilt without distinguishing among the levels of guilt available on a proper application of the law to the evidence. An instruction explaining the prohibited uses of the after-the-fact conduct evidence was required.
64I am also satisfied that a specific instruction about the prohibited uses of the after-the-fact conduct evidence was essential as an antidote to the Crown's closing argument in which counsel erroneously invited the jury on more than one occasion to use the after-the-fact conduct evidence as evidence of intent under s. 229(a). The non-direction in the circumstances of this case constituted misdirection, amounting to an error in law.
65Apart from the non-direction, the trial judge also misdirected the jury on the use it could make of the appellant's after-the-fact conduct. She told the jury that the evidence could help them "decide if Mr. Robinson is guilty of culpable homicide". She indicated she would explain the phrase "culpable homicide" in due course. When explaining the elements of manslaughter, the trial judge referred to manslaughter as "culpable homicide that is not murder". I can find no other explanation of the phrase "culpable homicide".
66The trial judge's indication that manslaughter is defined as "culpable homicide that is not murder" implies that both murder and manslaughter are culpable homicide (as they are: see s. 222(4)). If the jury took that meaning from the instruction, it would understand that the after-the-fact conduct was relevant to the appellant's potential liability for both manslaughter and murder.
67Even if the jury did not understand "culpable homicide" to include both murder and manslaughter, the trial judge immediately followed her reference to "culpable homicide" with an express instruction that the jury should consider all of the appellant's conduct "before, at the time, and after the unlawful act that caused Mr. Fair's death" to decide the appellant's "state of mind" when he killed Mr. Fair (see para. 62 above). The reference to "state of mind" clearly includes intent as defined in s. 229(a) and planning and deliberation. This instruction amounts to misdirection.
68The trial judge erred in law in her instruction on after-the-fact conduct. The Crown, quite correctly in my view, does not suggest that the curative proviso can be applied. Had the jury been properly instructed on the limited use of the appellant's after-the-fact conduct, the jury may well have returned a different verdict. The appellant is entitled to a new trial on the charge of second degree murder.
V
The Remaining Grounds of Appeal
69The appellant raises several other grounds of appeal. Some relate to alleged errors in the instruction on first degree murder. As I would quash the first degree murder conviction and enter an acquittal on that charge, I need not address those arguments.
70Some of the appellant's other arguments concern issues that may or may not arise on the new trial. Even if they do arise, the record on the new trial will not necessarily be the same as the record at the first trial. None of the issues raised are jurisprudentially contentious. I see little point in examining the remaining grounds of appeal in detail. I will, however, briefly address two of the grounds in the hope that my comments may assist at the retrial.
The Evidence of the Appellant's Mistreatment of Ms. Gilbert
71The jury heard considerable evidence about the relationship between the appellant and Ms. Gilbert. They heard evidence that the two often argued and that the appellant sometimes resorted to violence against Ms. Gilbert. He assaulted her on various occasions before and after the homicide. The evidence of the appellant's mistreatment of Ms. Gilbert came from Ms. Gilbert, her parents, her friends, and the letters written by the appellant while he was in jail. In his testimony, the appellant confirmed that he and Ms. Gilbert argued and fought quite often. He admitted that he could be possessive and controlling.
72The Crown offered the appellant's mistreatment of Ms. Gilbert as evidence of motive. The Crown maintained that the appellant had attacked Mr. Fair, in part at least, because he was jealous of what he believed to be the prior sexual relationship between Mr. Fair and Ms. Gilbert and he was angry as the two seemed to be getting along very well that night. The Crown submitted that the appellant's possessiveness and prior acts of violence against Ms. Gilbert and his efforts to control her actions supported the Crown's motive theory. The trial judge put this theory to the jury.
73On appeal, counsel for the appellant argues that there was no evidence to support the motive advanced by the Crown. I disagree. Ms. Gilbert described the appellant as acting a little jealously when she, the appellant and Mr. Fair were drinking together on the night of the homicide. She also gave evidence of his controlling and jealous nature during their relationship. Other witnesses testified about the appellant's possessive attitudes towards Ms. Gilbert. The appellant, in letters from jail, made comments suggesting that he had killed Mr. Fair out of jealousy and a desire to keep Ms. Gilbert under his control. There was also evidence that the appellant believed that Ms. Gilbert and Mr. Fair had a prior sexual relationship.
74Having regard to the totality of the evidence, a reasonable juror could infer that when the appellant saw Mr. Fair and Ms. Gilbert drinking together and apparently getting along very well during the evening, he might become jealous, possessive and react violently. There was an evidentiary basis for the motive alleged by the Crown. I, of course, make no comment on the cogency of that evidence.
75If on the retrial, the Crown alleges the same motive, it will be for the trial judge to determine, based on the material placed before him or her, whether there is an evidentiary basis for the alleged motive. Assuming the evidence is the same as it is in the appeal record, it would be appropriate for the judge to leave motive with the jury.
76The fact that motive is in play does not, however, mean that all of the evidence that has some relevance to motive will necessarily be admitted. The trial judge will have to consider the various pieces of evidence put forward by the Crown in support of the alleged motive. Much of that evidence will involve discreditable conduct by the appellant. The trial judge will have to determine whether the probative value of that evidence as it relates to motive is outweighed by its potential prejudicial effect. If so, the evidence should be excluded. In making that assessment, the trial judge will have regard to a number of factors, including the nature and timing of the conduct at issue. For example, conduct that is distant in time from the homicide may have little value on the issue of motive. Similarly, conduct alleging mistreatment of Ms. Gilbert that is not testified to by Ms. Gilbert herself may have limited probative value.
77The trial judge is not required to choose between admitting all of the evidence relevant to motive and excluding all of that evidence. The admissibility arguments on the retrial should be more focused than the arguments advanced at the original trial, as the parties on the retrial will have a clearer understanding of the nature of the evidence, its potential relevance, and its potential to prejudice the appellant.
78The Crown offered a second basis upon which the appellant's mistreatment of Ms. Gilbert after the homicide should be admitted. The Crown submitted that evidence of his controlling and violent conduct towards Ms. Gilbert in the weeks following the homicide and before his arrest supported her evidence that she was afraid of the appellant and feared that he might hurt her if she spoke to anyone about the homicide. That fear caused her to remain quiet. The Crown argued that if the jury accepted that the appellant had mistreated Ms. Gilbert after the homicide, it would make her evidence more credible, particularly as it related to her explanation for remaining silent.
79I think the evidence was relevant to Ms. Gilbert's credibility. As with the evidence going to motive, however, this evidence had the potential to improperly prejudice the appellant in the jury's eyes. On the retrial, the trial judge will have to determine whether that potential prejudice justifies excluding the evidence of the mistreatment of Ms. Gilbert after the homicide, despite its relevance to her credibility.
80In considering whether the evidence should be excluded, the trial judge will have to consider the extent to which Ms. Gilbert's credibility is in fact attacked by the defence, and the extent to which the evidence of her mistreatment by the appellant after the homicide enhances her credibility. I think it would be open to a trial judge to conclude that the probative potential of the evidence as it relates to Ms. Gilbert's credibility is not significant.
The Appellant's Letters from Jail
81The Crown led evidence of seven letters written by the appellant from jail to various individuals. Parts of the letters were clearly admissible and counsel for the appellant does not suggest otherwise. Parts of the letters were redacted at trial, although counsel submits that some of the redacted portions could still be seen if the letters were held up to the light.
82The letters contained comments capable of amounting to admissions by the appellant that he had unlawfully caused Mr. Fair's death. Other parts of at least two of the letters supported the Crown's argument that jealously provided the motive for the killing. Still other parts of the letters could have a negative impact on the appellant's credibility as a witness. He was cross-examined at length on the contents of some of the letters. One letter also contained an observation by the appellant that could be read as an indication by him that one should carefully read the disclosure provided by the Crown so that one could shape one's evidence to match that disclosure. The Crown was entitled to cross-examine the appellant as to the extent to which his own evidence was shaped by his knowledge of the disclosure. Cross-examination along that line does not invite the jury to draw an adverse inference against the appellant's credibility merely because he received disclosure, to which he was constitutionally entitled, but rather invites the jury to draw an inference against the appellant's credibility based on the appellant's explanation of how he used disclosure: R. v. White (1999), 1999 CanLII 3695 (ON CA), 42 O.R. (3d) 760 (C.A.), at pp. 767-68; and R. v. F.E.E., 2011 ONCA 783, 108 O.R. (3d) 337, at paras. 71-72.
83There were parts of the letters that were not relevant, and some that were potentially prejudicial to the appellant. For example, he made references in some of the letters to the very negative views that others held of him. He also referred to time spent in segregation while in jail.
84If the Crown introduces the letters at the new trial, the trial judge will have to determine the extent to which the letters should be redacted before they go to the jury. That process involves not only considering which parts of the letters are relevant and/or potentially prejudicial, but also the need to maintain the proper context in which the admissible parts of the letters should be read.
85The trial judge is entitled to expect the assistance of counsel, particularly defence counsel, in the editing process. Defence counsel is in, by far, the best position to know what parts of the letters, while on their face perhaps irrelevant or even prejudicial, are necessary or advantageous to the defence because of the context they provide, either for other comments in the letters, or for other defence evidence. Defence counsel cannot simply make generic comments about prejudice, sit back and hold his or her specific complaints until the case reaches the appellate level.
86Assuming, after redaction, there are still potentially prejudicial parts to the material provided to the jury, the trial judge will have to properly caution the jury against the impermissible use of those parts of the letters. This trial judge did that. As in the editing process, counsel, especially defence counsel, have an obligation to bring the potentially prejudicial aspects of the letters to the judge's attention, and put forward the defence position as to what the jury should be told about those parts of the letters.
VI
Conclusion
87I would allow the appeal, quash the conviction on the charge of first degree murder, enter an acquittal on that charge, and order a new trial on the charge of second degree murder.
Released: August 10, 2017
"Doherty J.A."
"I agree. J. MacFarland J.A."
"I agree. David M. Paciocco J.A."
Footnotes
1The appellant also pled guilty to, and was convicted of, offering an indignity to a dead body. That conviction is not in issue on the appeal.
2Ms. Gilbert pled guilty to being an accessory after-the-fact to murder.
3For example, Crown counsel argues that the trial judge could have told the jury that the appellant's conduct immediately after the homicide was relevant to the jury's assessment of the extent to which the appellant's capacity to form the requisite mens rea for murder or planning and deliberation was compromised by his consumption of alcohol and drugs in the hours before the homicide. I need not consider whether the evidence had any relevance to this issue as it has no impact on the error alleged by the appellant.
4After-the-fact conduct, like any evidence, can be excluded even if relevant, if the probative value of the evidence is outweighed by its prejudicial effect: D. Watt, Watt's Manual of Criminal Evidence, (Toronto: Thompson Reuters, 2017), at pp. 44-45.
