R. v. McGregor, 2019 ONCA 307

Her Majesty the Queen v. McGregor

[Indexed as: R. v. McGregor]

Ontario Reports

Court of Appeal for Ontario

Watt, Pardu and L.B. Roberts JJ.A.

April 17, 2019

145 O.R. (3d) 641 | 2019 ONCA 307

Case Summary

Criminal law — Defences — Provocation — Accused convicted of first degree murder — Trial judge providing jury with decision tree as deliberative aid — Trial judge failing to provide separate box for defence of provocation in decision tree — Trial judge's charge to jury conflating issue of intent required for murder and defence of provocation — Charge and decision tree not adequately equipping jury to reach informed conclusion — New trial ordered.

Criminal law — Murder — First degree murder — Charge to jury — Crown submitting that accused committed first degree murder because he killed deceased while kidnapping her and alternatively that murder planned and deliberate — Accused allegedly lured deceased to meet him and take drive with him to discuss allegations Crown argued he manufactured that deceased's boyfriend had sexually assaulted their child — Trial judge not erring by failing to instruct jury that in order to convict accused of first degree murder arising out of predicate offence of kidnapping they had to be satisfied that accused continued to dominate deceased from time of kidnapping until time of murder — "Illegal domination" descriptive of organizing principle regarding classification of murders committed during same transaction as specific named offences not distinct element of first degree murder requiring express instruction — Criminal Code, R.S.C. 1985, c. C-46, s. 231(5).

Criminal law — Evidence — Post-offence conduct — Charge to jury — Accused convicted of first degree murder — Trial judge giving jury contradictory instructions on relevance of evidence of post-offence conduct on issue of planning and deliberation — Trial judge correctly telling jury that post-offence statements not relevant to whether accused guilty of murder, degree of murder or whether provoked, only on issue of whether killing committed in self-defence — Trial judge repeating position of Crown that accused's statement that "I was jumped" was relevant to whether killing was murder and that killing planned and deliberate thus contradicting earlier instructions — Instructions as whole raising possibility that jury could conclude that statement "I was jumped" not subject to earlier limiting instructions about use of post-offence conduct — Counsel agreed at pre-hearing conference that post-offence conduct not relevant to provocation but trial judge not modifying draft charge which contained reference to allowing use of such conduct when assessing issues of self-defence and provocation — Error contained in written instructions left with jury — Trial judge erred in instructing jury that evidence of post-offence conduct was relevant to availability of partial defence of provocation in circumstances of this case.

Facts

The accused was charged with the first degree murder of his former girlfriend, J.M. He arranged to meet J.M. at a coffee shop to discuss their five-year-old daughter. They drove from the coffee shop to a rock pile, where the accused stabbed J.M. to death. Almost immediately after the stabbing, the accused started telling friends and relatives that J.M. was missing and that he was attacked by a group of men. A few days later, he directed police to a shallow grave, where he had buried J.M.'s body. At trial, he admitted that he had stabbed J.M., but claimed to have done so in self-defence after the deceased attacked him with a knife. He also raised the statutory partial defence of provocation. The Crown's theory was that the accused was guilty of first degree murder because he killed J.M. while kidnapping her. The accused was convicted. He appealed.

Held

The appeal should be allowed.

The trial judge did not err by failing to instruct the jury that to convict the accused of first degree murder under s. 231(5)(e) of the Criminal Code arising out of the predicate offence of kidnapping, they had to be satisfied that the accused continued to dominate J.M. from the time of the kidnapping until the time of the murder. "Illegal domination" is not an element of first degree murder in s. 231(5) requiring an express instruction; it is a term used by courts to explain the classification of murders which, if committed during the same transaction of one of the named offences involving the domination of the victim, are designated first degree murder.

The trial judge gave the jury contradictory instructions on the relevance of post-offence conduct to the issue of planning and deliberation. She properly told the jury initially that the post-offence conduct evidence could not be used to conclude that the killing of J.M. was murder or planned and deliberate first degree murder, and that its use was limited to rebutting the claim of self-defence. During the pre-charge conference, Crown and defence counsel had asked that the trial judge correct the single reference in the draft charge stating that post-offence conduct was relevant to issue of provocation but she did not change the reference when she gave her oral charge to the jury. This error was also included in the written instructions left with the jury. Moreover, she summarized the position of the Crown, which was that the accused's statement that "I was jumped" could be used to establish that the murder was planned and deliberate without advising them that this position was contrary to her instructions on post-offence conduct. The jury could have resolved this apparent conflict by concluding that the "I was jumped" statement was not subject to the limitations about the use of post-offence conduct that had been outlined elsewhere in the trial judge's instructions. That summary injected an unnecessary confusion into the charge.

In the circumstances of this case, the evidence of post-offence conduct was not a relevant consideration in determining whether J.M.'s murder was reduced to manslaughter by the statutory partial defence of provocation which was the principal defence advanced at trial.

Although evidence of provoking conduct, along with other evidence, is relevant to the accused's intention in a "rolled up charge" on intent, it is separately relevant to the question of whether provocation reduces a proven act of murder to be reduced to manslaughter. The trial judge provided the jury with a decision tree as a deliberative aid which failed to provide a separate box for the defence of provocation. Moreover, her charge to the jury conflated the issue of the intent required for murder and the defence of provocation. The charge and the decision tree did not adequately equip the jury to reach an informed conclusion.

Judgment

APPEAL by the accused from the conviction entered by Mullins J. of the Superior Court of Justice, sitting with a jury, on April 21, 2015.

Richard Litkowski, for appellant.

Amy Alyea, for respondent.

The judgment of the court was delivered by

WATT J.A.:

The Background Facts

The Principals and Their Relationship

1J.M. had a new boyfriend. She planned to spend Canada Day weekend with him.

2Early in the morning on the day following Canada Day, J.M.'s plans changed. They changed after a text and cell phone exchange with her former boyfriend about their five-year-old daughter.

3The appellant, Robert McGregor, was J.M.'s former boyfriend. The couple agreed to meet at a local coffee shop in Peterborough. They drove away in the appellant's truck, in the direction of the appellant's home where their daughter was staying.

4No one saw J.M. alive again.

5A few days later, the appellant directed police to a shallow grave in a wooded area not far from his home. There police found the body of J.M.

6The appellant was charged with kidnapping and first degree murder in connection with the disappearance and death of J.M. A jury found him guilty of both offences.

7The appellant challenges his conviction of first degree murder. These reasons explain why I would allow the appeal, set aside the conviction of first degree murder, and order a new trial on both counts of the indictment.

The Principals and Their Relationship

8In light of the disposition I propose for this appeal, an overview of the relevant circumstances will afford a sufficient background to consider and determine the grounds of appeal advanced.

9The appellant and J.M. met in high school. Their daughter was born while both were still in high school. They remained together for about one year after their daughter's birth.

10For the most part, J.M. was the primary caregiver for the couple's child. She lived with her aunt and her family in Apsley. The appellant lived outside Peterborough with his biological mother, her husband and her sister.

11J.M. was small in stature. She was 5'5" tall and weighed 108 pounds. She was known to carry a small folding knife with a two- to three-inch blade in her purse. The only prior incident of violence between the couple occurred a few years prior to the deceased's death when the appellant wanted to obtain custody of their daughter. The deceased was the aggressor. She ran at the appellant, choked him and punched him.

12Although the appellant attempted to get back together with the deceased for the sake of their daughter, he had been involved in a relationship with another woman for over four years to whom he had become engaged about one week before the death of the deceased. The appellant's fiancée was pregnant.

13The deceased had begun dating another man about a month or more before she was killed. This man, D.J., was involved in the drug culture, engaged in the sale and use of marijuana and hallucinogens. The appellant was concerned about D.J. being around his daughter.

The Custody Issue

14Until about three months prior to the death of the deceased, no formal agreement was in place about the custody of and access to the couple's daughter. The deceased and appellant agreed on both issues. The deceased had custody. The appellant had liberal access.

15In early March, the couple agreed that their child should temporarily live with the appellant. The reasons for this change are not entirely clear. About a week after their written agreement had been made, the deceased changed her mind. She wanted to retain custody of their daughter. The appellant was not in favour of this arrangement.

16Both parties sought sole custody in court filings. At the conclusion of a mediation about ten days before the deceased's death, the couple agreed that the deceased's new boyfriend would not be around their daughter. The deceased would seek professional help for her possible depression. The appellant would have primary custody of their daughter until the end of the summer when the custody issue would be revisited.

17The next scheduled court appearance was about ten days after the deceased's death. Apart from signing the mediation agreement, nothing of substance was expected to happen. In the absence of a signed mediation agreement, the couple's child continued to live with the deceased.

18In the days immediately preceding the Canada Day weekend, the appellant complained about drug use by the deceased's new boyfriend. A CAS investigator conducted a well-being check on the couple's daughter, both at school and at the deceased's home. About a day later, the investigator advised the appellant that the investigation was closed. That same day, the deceased and their daughter moved into the deceased's parents' home in Peterborough.

The Canada Day Weekend

19On Canada Day, the deceased, D.J. and some friends attended the Festival of Lights. The appellant's fiancée was also there. She reported to the appellant that she had seen the deceased and D.J. together, and that he had his arm around the deceased (this despite their disclaimer of any relationship). She then sent a text (allegedly at the appellant's request) to the appellant's cousin and best friend whom she asked to have D.J. and the deceased "smashed out". The appellant's cousin said that he would look into the request, but he did nothing and never spoke to the appellant about it.

The Next Day

20The appellant became very upset when his daughter repeatedly struck herself in her vaginal area with her hand. She had apparently done the same thing on an earlier occasion. He spoke to her about it. When he did, she told him that D.J. had "touched her head."

21The appellant then began a series of texts to the deceased. He explained his concern that someone had inappropriately touched their daughter. He repeatedly asked the deceased to call him. He explained that they needed to take their daughter to the local hospital to have her examined for signs of abuse.

22The deceased called the appellant and he explained his concerns about D.J. having touched their daughter. She agreed to meet the appellant at a local coffee shop that morning.

The Coffee Shop Meeting

23The deceased arrived at the coffee shop at 9:08 a.m. She entered the passenger side of the appellant's truck. The appellant was the only other occupant. The couple pulled out of the parking lot and turned in the direction of the appellant's home.

The Trip to the Rock Pile

24The appellant drove from the coffee shop to a rock pile about 300 metres beyond his home. Depending on traffic conditions, the trip would take about 17-21 minutes. The couple passed close by the appellant's home. According to statements made later by the appellant, the couple smoked a "bowl" of marijuana at the rock pile. There, the appellant killed the deceased.

The Cause of Death

25The deceased suffered 15 stab wounds and had an incised wound across the front of her neck. She bled to death after she suffered a wound that sliced through her carotid artery and into her spine, cutting through another artery. This wound would have quickly caused significant external bleeding and rapid loss of blood volume. She would have died from this wound within "a small number of minutes".

26The examining forensic pathologist identified a total of 15 stab wounds but could say nothing about their sequence, except that several had no bleeding associated with them. The lack of bleeding associated with the wound gave rise to two possibilities: that the wound was inflicted after death had occurred and blood no longer circulated, or that the deceased was in shock with her blood not being circulated effectively to the peripheral regions of her body.

27The stab wounds were inflicted with what appeared to be a single-edged knife. Some wounds penetrated to the bone. The pathologist could not exclude the blade of a pocketknife five centimetres in length as having caused the wounds to the neck (4), front chest (4), back (3), left arm (4) and left hand (1). The possibility that the wound to the left hand was a defensive wound could not be excluded.

28An expert in both pharmacology and toxicology analyzed samples of the deceased's blood and urine taken six days after her death. The THC level detected, coupled with the absence of metabolites, was consistent with marijuana use within hours or days prior to death. The findings were not expected if consumption had occurred within minutes of death, although severance of the carotid artery may have left insufficient time for the production of metabolites. That said, had the consumption of a marijuana product occurred within two to three minutes of death, the expert would have expected to find a significantly higher concentration of THC than that he detected in the deceased's blood.

The Return Home

29The appellant returned home about 45 minutes to one hour after he had left to meet the deceased. At 9:49 a.m., likely minutes after he arrived home, he spoke to a close friend who had called him. The appellant, who was out of breath as he spoke, told his friend that the deceased was missing. Her family was upset.

30The appellant told his friend a story that he would repeat several times to others, including the police, over the next several hours if not days. Its essence was that he had been "jumped" by several men (the numbers varied from a low of two or three to a high of seven or eight) near Rehill. These men beat him up. He had blood on his shirt, which he burned. He changed his clothes.

31The appellant's mother and her husband were both at home when the appellant returned. The appellant's mother said her son was sweaty and looked like he had a bloody nose. There was a bloody streak on his cheek. He did not appear to be "high" from drug use. Her husband saw no signs of fresh injury on the appellant who usually had some marks on him.

32On several occasions, beginning before he met the deceased at the coffee shop, the appellant texted and called his fiancée and she explained that he had invited her to come out to his house. This was unusual. Although she had visited the appellant's home, she did not usually do so when his daughter was there. She had never spent a weekend there. She stayed at the appellant's home for the entire weekend but for a few hours on the Sunday evening.

33After his fiancée arrived at his home around 11:00 a.m. on the Saturday of the deceased's death, the appellant explained that the deceased had failed to show up at the time and place appointed for their meeting. He said that he had been "jumped" by five or six guys in the parking lot. The only sign of an injury his fiancée observed was the beginning of a bruise on his back.

34At 11:34 a.m., about two hours after he stabbed her to death, the appellant sent a text message to the deceased: "Your friends just beat me up im not going to let you u trick me into that again ill just meet u in court." He sent a further text about four hours later: "Where are u everyone is worried call asap." The following day, he texted: "Plz plz call or something everyone is worried including me."

The Burial of the Deceased

35Later in the evening of the same day on which he had killed the deceased, the appellant returned to the area where he had left her body. He carried the body to a nearby wooded area, dug a hole and buried the deceased in a shallow grave.

The Post-Offence Conduct

36Evidence was given about what the appellant said and did from the time the deceased disappeared until the appellant was arrested several days later. Although the evidence included testimony about some things the appellant did, much of it consisted of the appellant's accounts to others, including the police, about what had happened between him and the deceased. In the end, after a series of contradictory and implausible accounts, the appellant told investigators that he had stabbed the deceased after she had attacked him with a knife.

The Positions of the Parties at Trial

37The indictment contained counts of first degree murder and kidnapping. In their submissions to the trial judge during the pre-charge conference and in their closing addresses to the jury, counsel on both sides focused their attention on the count charging first degree murder.

38The trial Crown (not Ms. Alyea) relied on two discrete provisions to establish the appellant's guilt of first degree murder. She contended that the murder was first degree murder because the murder was

(i) planned and deliberate; and

(ii) committed while the appellant was kidnapping the deceased.

39The Crown argued that the appellant's motive to kill the deceased was so that he could obtain sole custody of their daughter. He fabricated an allegation that the deceased's new boyfriend, D.J., had sexually interfered with their daughter. This convinced the deceased to meet with him to take their daughter to the hospital so that she could be examined about these allegations. Part of this plan included a pre-fabricated story in which he and the deceased never met because of the intervention of several men who attacked him. In the end, the story, which was deeply flawed from the beginning, failed. The later version of repelling an attack by the diminutive deceased was an equally fictitious account of what occurred, advanced in exculpation of a killing that was a planned and deliberate murder.

40The trial Crown also argued that the murder of the deceased was first degree murder because the appellant killed the deceased while kidnapping her. The appellant convinced the deceased to meet and accompany him to have their daughter examined by falsely accusing D.J. of sexual improprieties with their child. After gaining access to the deceased by these false representations, the appellant transported her to the rock pile under another false pretense and confined her there, intentionally killing her as he did so.

41Trial counsel for the appellant (not Mr. Litkowski) acknowledged that the appellant unlawfully killed the deceased, and thus, was guilty of manslaughter but not of either first or second degree murder. Counsel invoked the appellant's claim in his statement to investigators that the deceased attacked him with a knife that she carried in her purse. This was a wrongful act that reduced an intentional killing, if the jury found it to be so, to manslaughter, thus foreclosing a conviction of either first or second degree murder. And even if the statutory partial defence of provocation failed, the provoking conduct of the deceased, coupled with the other circumstances, raised a reasonable doubt about planning and deliberation, as well as the mental or fault element required to make the unlawful killing murder.

The Grounds of Appeal

42The appellant advances five grounds of appeal. Each has to do with the trial judge's charge to the jury. Some are concerned with what are said to be errors, getting an instruction wrong; others with omissions, leaving something out that should have been included.

43As I would paraphrase the complaints, the appellant contends that the trial judge erred in

(i) failing to instruct the jury that to convict the appellant of constructive first degree murder under s. 231(5)(e) of the Criminal Code arising out of the predicate crime of kidnapping, the jury must be satisfied that the appellant continued to dominate the deceased from the time of the kidnapping until the time of the murder;

(ii) giving contradictory instructions on the relevance of evidence of post-offence conduct on the issue of planning and deliberation;

(iii) instructing the jury that evidence of post-offence conduct was relevant to the availability of the statutory partial defence of provocation;

(iv) failing to include a separate box for the defence of provocation in the decision tree provided to the jury; and

(v) failing to provide instructions to correct various misstatements in the closing address of the trial Crown.

Ground #1: Jury Instructions on the Elements of Constructive First Degree Murder Under Section 231(5)(e)

44This ground of appeal focuses on what is said to be a fatal omission in the instructions on the essential elements of first degree murder under s. 231(5)(e) arising out of the predicate offence of kidnapping. The issue raised is not concerned with what was said, but rather with what was left out.

45The appellant also says that the evidence adduced at trial, largely from the statements of the appellant to the police, obligated the trial judge to provide this instruction. I will approach the issue by first considering whether an instruction of the nature urged by the appellant is a legal requirement of a jury instruction under s. 231(5)(e).

The Charge to the Jury

46In her final instructions to the jury, the trial judge explained what the Crown was required to prove to establish the appellant's guilt of first degree murder under s. 231(5)(e). She said:

Mr. McGregor is charged with first degree murder arising from kidnapping. For you to find Mr. McGregor guilty of first degree murder in relation to kidnapping, the Crown must prove each of these essential elements beyond a reasonable doubt.

i. That Mr. McGregor caused the death of [J.M.];

ii. That Mr. McGregor caused the death of [J.M.] unlawfully; and was not acting in self-defence;

iii. That Mr. McGregor had the state of mind required for murder;

iv. That the murder was not provoked;

v. That Mr. McGregor had kidnapped [J.M.];

vi. That the kidnapping and murder of [J.M.] were part of the same series of events.

If the Crown has not satisfied you beyond a reasonable doubt of each of these essential elements of constructive first degree murder, you must find Mr. McGregor not guilty of first degree murder.

If the Crown has satisfied you beyond a reasonable doubt of each and every [sic] of these essential elements, you must find Mr. McGregor guilty of first degree murder.

The Arguments on Appeal

47The basic proposition the appellant advances is that, in addition to what is required by R. v. Harbottle, the Crown must prove that the appellant continued to dominate the deceased from the time of the kidnapping until the time of the intentional killing in order for him to be found guilty of first degree murder under s. 231(5)(e) arising out of the predicate offence of kidnapping. The appellant says that to establish the "while committing or attempting to commit" element of constructive first degree murder, the Crown must prove a continuing domination of the victim that connects the predicate offence to the murder.

48The appellant submits that the decision in R. v. Paré added this element of continued domination. The argument continues, that in order to establish guilt, it is insufficient that the predicate offence and the murder be discrete offences but part of the same sequence of events. The Crown must also prove a continuing domination of the victim such that the murder is an exploitation of the accused's position of dominance over the victim. And the jury must be instructed of the need for such a finding.

49The appellant says that the proposition he advances is supported by the authorities which hold that the constitutional validity of s. 231(5) depends on its capture of only those murders committed when the killing is an exploitation of the accused's position of continued dominance over the victim.

50The murder must be temporally linked to the predicate offence. It must also be causally linked through continued domination to the predicate offence. Since this requirement of continued domination is a prerequisite to sustain the constitutional validity of s. 231(5), it must be included in final instructions to the jury. An instruction on the "single transaction" essential element of first degree murder under s. 231(5) is not sufficient to convey this essential causal link between the predicate offence and the murder.

51The appellant concludes with the submission that although the instruction for which he contends may be redundant in some cases, it is not so here. And that is because there is an air of reality to the defence claim that the chain of domination was broken prior to the murder taking place. The appellant submits that the trial judge's failure to instruct the jury on the element of continued domination was non-direction amounting to misdirection.

52The respondent rejects the claim of error advanced by the appellant. The instruction for which the appellant contends is not required as a matter of law in cases where liability for first degree murder depends on s. 231(5). The decision in Paré, the respondent invites us to recall, described continuing domination as an organizing principle underlying the predicate offences listed in s. 231(5). It explains why these, of all the offences in the Criminal Code, have been selected, when combined with a contemporaneous murder, as displaying such an enhanced moral blameworthiness to warrant classification of the murder as first degree murder, and thus deserving of the most severe punishment permitted under our law. An organizing principle is not, nor does it become, an essential element of an offence.

53As an organizing principle, continuing domination explains and supports Parliament's decision to classify murders committed as part of a series of continuous events, involving both a predicate offence and a murder, as sufficiently serious to warrant enhanced punishment. But this rationale for the inclusion of predicate offences in s. 231(5) forms no part of the essential elements of first degree murder under this basis of classification. A jury instruction, as here, that the predicate offence and murder be closely connected, part of the same series of events and constituting a single ongoing transaction, is all that is legally required. That instruction in this case attracted no objection from defence counsel at trial and conforms to the law in this province and elsewhere in Canada.

The Governing Principles

54The principles that control our decision on this ground of appeal are those that define the essential elements of first degree murder under s. 231(5) of the Criminal Code.

55No one gainsays that s. 231 classifies murder for sentencing purposes as either, but not both, second degree murder or first degree murder. Section 231(1) says as much: R. v. Farrant; R. v. Droste; see, also, R. v. Nette.

56Section 231(5) is one of several subsections that describe the circumstances in which a murder will be classified for sentencing purposes as first degree murder. Those murders not classified as first degree murder are second degree murder under s. 231(7) of the Criminal Code. Section 231(5) classifies murder as first degree murder where an accused causes the death of another in circumstances amounting to murder while committing or attempting to commit a listed offence involving the physical domination of another. The listed offences include in s. 231(5)(e) kidnapping and unlawful confinement.

57The organizing principle that underlies s. 231(5) is that where a murder is committed by someone already abusing his or her power by illegally dominating another, that murder should be treated as an exceptionally serious crime. Parliament has chosen to treat those murders as first degree murders: Paré. The murder represents an exploitation of the position of power created by the underlying crime and makes the entire course of conduct a "single transaction": Paré.

58An organizing principle is not a free-standing rule, rather it is a standard that helps to understand and develop the law in a coherent and principled way: Bhasin v. Hrynew.

59The continuing illegal domination of the victim gives continuity to the sequence of events that culminate in the murder. The words "while committing or attempting to commit" in s. 231(5) include conduct that is part of the continuous sequence of events forming a single transaction with the underlying offence. A jury instruction on this issue should make it clear that there must be a connection between the underlying offence and the murder, but that those offences need not occur simultaneously: Paré.

60The essential elements of constructive first degree murder under s. 231(5) are five:

(i) that the accused committed or attempted to commit a listed underlying crime;

(ii) that the accused murdered the victim;

(iii) that the accused participated in the murder in such a manner that he was a substantial cause of the victim's death;

(iv) that no intervening act by somebody else resulted in the accused no longer being substantially connected to the victim's death; and

(v) that the underlying crime and the murder were part of the same transaction.

See Harbottle; R. v. Magoon; R. v. Parris.

61The essential elements of constructive first degree murder under s. 231(5) could be summarized as follows:

(i) predicate offence;

(ii) murder;

(iii) substantial cause;

(iv) no intervening act; and

(v) same transaction.

See Parris.

62Section 231(5) refers to two crimes. Each must be a distinct criminal act. The first is the enumerated or predicate offence, which may be completed or merely attempted. The second is murder. The same or single transaction requirement demands that there be a temporal and causal relationship between the actual or attempted commission of the enumerated offence and the killing: R. v. Pritchard.

63Under s. 231(5)(e), murder becomes first degree murder where the murder and the predicate offence (here, kidnapping) are linked together both temporally and causally in circumstances that make the entire course of conduct a single transaction. This temporal-causal connection lies proven where the kidnapping creates a "'continuing illegal domination of the victim' that provides the accused with a position of power which he or she chooses to exploit to murder the victim": Paré; Pritchard.

64The underlying offence of kidnapping is not defined in the Criminal Code.

65Kidnapping is an aggravated form of unlawful confinement. Kidnapping is also a continuing offence, one that is complete in law when the victim is first apprehended and moved, but not complete in fact until the victim is freed: R. v. Vu.

66A final point concerns the relationship between illegal domination as an organizing principle of the classification of murder under s. 231(5) as first degree murder and the essential elements the Crown must prove to bring home liability to an accused under this section.

67In Paré, Wilson J. used the organizing principle of illegal domination to inform her interpretation of the "while committing . . ." or same transaction requirement. She did not add "domination" or "illegal domination" to the list of things that the Crown must prove to have a murder classified as first degree murder under s. 231(5): R. v. Imona-Russell.

The Principles Applied

68Several reasons persuade me that this ground of appeal fails.

69To begin, consider the role of an organizing principle.

70As we have seen, an organizing principle is not a free-standing rule. It is a standard that helps us understand and develop the law in a coherent and principled way. In this case, the organizing principle helps us understand why Parliament classified murders committed in connection with listed predicate offences as first degree murder. This was because an accused killed his or her victim whom he or she was already illegally dominating by committing the predicate offence. What must be proven to establish first degree murder under this classification is set out in s. 231(5). The characterization of the underlying crimes for descriptive purposes as offences involving illegal domination does not add a further essential element to the statutory language.

71Second, Paré, when examined carefully, does not provide any authority for the appellant's argument.

72In Paré, the central issue was whether Paré murdered the victim "while committing" an indecent assault. The argument advanced there was that a murder committed after the indecent assault ended could not satisfy the "while committing" element of what was then s. 214(5). The court was satisfied that the murder was temporally and causally connected to the underlying offence of indecent assault. The murder formed part of one continuous sequence of events and was part of the same transaction.

73The Paré court recognized "illegal domination" as the organizing principle underlying the classification of murders committed while committing or attempting to commit an offence of indecent assault. What the court did not do was add a further element of continuing illegal domination to the essential elements included in the subsection.

74Third, this argument finds no support in the decisions of the Supreme Court of Canada, or of this court, rendered after Paré, which set out, as in Harbottle and Magoon, the essential requirements of proof to establish first degree murder under s. 231(5).

75Fourth, the appellant's submission fails to take into account the continuing nature of the crimes of domination listed in s. 231(5)(e) -- kidnapping and unlawful confinement -- which, when combined with instructions on the same transaction requirement, make it clear that both the underlying offence and the murder must be part of the same transaction.

76Finally, the specific argument advanced here was made and rejected in Imona-Russell, albeit in relation to a different predicate offence. At bottom, this court held that "illegal domination" is not a distinct element of first degree murder in s. 231(5) requiring express instruction beyond what is included under existing jurisprudence: see Imona-Russell.

Ground #2: Instructions on Evidence of Post-Offence Conduct as Relevant to a Planned and Deliberate Murder

77This ground of appeal takes issue with the trial judge's instructions about the use jurors could make of evidence of post-offence conduct in reaching their verdict. The focus is more on the adequacy and clarity of the instructions, less upon the evidence that qualified as post-offence conduct.

The Relevant Evidence

78At trial, evidence was given of many things the appellant said and did after he killed the deceased. Of particular prominence in this catalogue of sayings and doings was an obvious lie told and repeated by the appellant to family, friends and investigators. That lie consisted of a denial of having met the deceased on July 2, 2011, and of having been beaten by a number of men when he attended at their agreed-upon meeting place.

The Pre-Charge Conference

79Extensive discussion took place at the pre-charge conference about the relevance of evidence of post-offence conduct and what the jury should be told about its use in reaching their verdict. One issue on which counsel were divided was whether this evidence could be used to determine whether the killing of the deceased was murder and whether the murder was planned and deliberate first degree murder.

80The trial Crown took the position that evidence of the speed with which the appellant provided this exculpatory explanation, literally within minutes of having killed the deceased, was relevant and thus available for jury use in deciding whether murder, otherwise proven, was planned and deliberate.

81Defence counsel advanced a different argument. He submitted that the evidence of post-offence conduct was only relevant and thus confined in its use by the jury to the issue of self-defence; in other words, to the decision about whether the killing of the deceased was unlawful or justified. Put somewhat differently, the evidence could help the Crown establish the appellant's culpability, but not the legal character or classification of the unlawful killing.

82The trial judge appears to have acceded to the defence position on this issue, at least so far as it related to the instructions she would later give to the jury.

83Despite the trial judge's apparent conclusion about how she would instruct the jury about their use of evidence of post-offence conduct in reaching their verdict, the trial Crown asked whether she could invite the jury to consider the appellant's fabricated disclaimer as evidence that the deceased's killing was planned and deliberate murder. The trial judge responded: "I don't think I am troubled by that."

The Closing Address of the Crown

84In her closing address to the jury, the trial Crown suggested that the appellant's immediate and repeated disclosure of the fabricated disclaimer beginning almost immediately after the killing supported an inference that the killing had been thought out in advance, and a further inference that the unlawful killing of the deceased was, at once, intentional and planned and deliberate.

The Charge to the Jury

85In her instructions to the jury on evidence of post-offence conduct, the trial judge characterized this testimony as a type of circumstantial evidence that could support inferences which, together with the rest of the evidence, the jury could use to determine whether the Crown had proven the appellant's guilt beyond a reasonable doubt.

86The trial judge then explained to the jury the permitted and prohibited use of this evidence in reaching their verdict:

As circumstantial evidence, evidence of after-the-fact conduct has only an indirect bearing on the issue of Mr. McGregor's guilt, because you may only consider this evidence in relation to whether he acted in self-defence or whether he was provoked in the circumstances in which [J.M.] died. You may not infer that he is guilty of murder or kidnapping on the basis of his after-the-fact conduct, because there may be other explanations for his conduct.

87The trial judge concluded her instructions on the evidence of post-offence conduct in this way:

If you do not or you cannot find that what Mr. McGregor said and did afterwards was related to the commission of the offences charged, you must not use his evidence in deciding or in helping you decide whether he acted in self-defence.

Remember that you must not consider any of the words or conduct of Mr. McGregor that occurred after the offences with which he is charged as evidence of any intention or planning to commit murder or kidnapping. You must not therefore, consider any of his post-offence conduct as evidence of either first or second degree murder, or kidnapping. His post offence words and conduct have no probative value as to whether there was an intention, or whether there was planning or deliberation to murder or kidnap [J.M.]. Remember to consider all of the evidence.

88Later in her instructions to the jury, the trial judge reviewed the positions of the parties and outlined some of the evidence each marshalled in support of their position. In summarizing the evidence to sustain the Crown's position that the killing of the deceased was a planned and deliberate first degree murder, the trial judge said:

He had an alibi already, a story about being jumped by six men. It would cover off his delay, any injuries that might result in his confrontation with [J.M.], and explain that [J.M.] had never met with him and had simply disappeared. He would cover up with texts to [J.M.]'s phone, inserting his alibi story, explaining he was worried about her, imploring her to call after he had killed her.

The Arguments on Appeal

89The appellant says that the trial judge erred in failing to adequately instruct the jury on the limits within which it could use evidence of post-offence conduct, in particular, the fabricated disclaimer, in reaching its verdict. The authorities recognize that this kind of circumstantial evidence is notoriously susceptible to jury misuse. Clear and careful instructions are required to counteract this danger.

90In this case, the appellant continues, the instructions given were confusing, contradictory, inadequate and incomplete. In her charge, the trial judge limited jury use of this evidence to the issues of self-defence and provocation. This was over-inclusive because the permitted use should have been confined to self-defence. The prohibited use instructions advising the jury that the evidence could not be used to assist in proof of kidnapping, murder or planned and deliberate first degree murder were correct. But those directions were compromised and ultimately undone for planned and deliberate first degree murder when the trial judge instructed the jury on the position of the Crown. There, the trial judge specifically referred to this evidence and implicitly advised of its availability for use in proof of planning and deliberation.

91The appellant acknowledges that the authorities recognize that no per se or bright line rule enjoins the use of evidence of post-offence conduct to prove a mental or fault element that distinguishes levels of culpability, such as planning and deliberation. In each case, it is a matter of relevance. And the evidence of post-offence conduct, particularly the fabricated disclaimer, was not relevant to planning and deliberation in this case.

92According to the appellant, taken as a whole, the charge is at best confusing, at worst misleading. To reconcile the facially inconsistent instructions, a copy of which was sent to the jury room, the jury may have thought that somehow the evidence of the fabricated disclaimer was not evidence of post-offence conduct when it was plainly so. And thus, the jury may have thought the fabricated disclaimer was not subject to the caution earlier given about this type of evidence.

93The respondent joins issue with the appellant about the adequacy of the instructions. Read as a whole, the respondent says, the instruction adequately conveyed to the jury not only the need for caution in its handling of this evidence, but also the use it could and must not make of it in reaching its verdict. This included the evidence of the "I was jumped" fabricated disclaimer first uttered within an hour of the killing.

94The respondent underscores the absence of any blanket rule governing the reception and use of evidence of post-offence conduct. Admissibility and use all comes down to relevance. And relevance is relative, not absolute. Context controls. The nature of the evidence. The issues at trial. The positions of the parties.

95In this case, the respondent continues, what is relevant is not so much the content of the "I was jumped" disclaimer, but that it was ready at hand within an hour of the killing. That it was indicative of forethought. And in its turn, forethought supports an inference that the conduct it was deployed to displace was planned and deliberate, not the product of circumstances beyond the appellant's choosing. In this respect, the instructions that foreclosed use of this evidence of post-offence conduct in relation to planning enured to the benefit of the appellant. It follows that its inclusion in the recital of the position of the Crown caused the appellant no prejudice.

96The respondent acknowledges the absence of any specific directed caution about jury use of this evidence, but invites us to consider the instructions as a whole in testing their adequacy. What was said as a matter of law alerted the jury to the need for caution in drawing inferences; limited its use to the defences of self-defence and provocation; and prohibited recourse to it in determining whether the appellant kidnapped the deceased, intentionally killed her or planned and deliberated her murder.

97The respondent also parts company with the appellant about the impact of the reference to the "I was jumped" disclaimer as relevant to planning and deliberation during the trial judge's reprise of the position of the Crown. Especially in a case such as this where the jury was provided with a written copy of the judge's final instructions, the members of the jury would readily distinguish between legal instructions by which they were bound and descriptions of the positions of the parties by which they were not. The claim of contradictory or confusing instructions should fail.

The Governing Principles

98Evidence of post-offence, or more neutrally, post-event conduct, is the subject of a robust body of jurisprudence from the Supreme Court of Canada and courts of appeal across the country. The nature of the issue raised here relates to the adequacy of jury instructions about jury use of the evidence of post-offence conduct in reaching a verdict. But it is difficult to draw a bright line between issues of admissibility, on the one hand, and instructions on jury use, on the other. For each, relevance is critical. The principles that control admissibility determine use and thus what must be said about it to the jury.

99Evidence of post-offence conduct refers to evidence of what an accused is alleged to have said or done after the offence charged was committed. This covers a vast expanse of possible circumstances bordered only by the limits of human experience. It necessarily follows from the breathtaking sweep of circumstances that may constitute evidence of post-offence conduct that the proper treatment of this evidence is both context and fact-specific: R. v. Calnen.

100Evidence of post-offence conduct is circumstantial evidence. It invokes a retrospectant chain of reasoning. The trier of fact is invited to infer from later words or conduct the accused's prior conduct or a state of mind: Calnen. Like other items of circumstantial evidence, evidence of post-offence conduct may give rise to a range of inferences. But the mere fact that the evidence gives rise to a range of inferences, some inculpatory others not, does not deprive this evidence of probative value or render it null. In most cases it will be for the trier of fact to determine which inferences to draw and the weight to assign to them in reaching a conclusion about guilt: Calnen; R. v. Allen.

101The inferences that may be drawn from evidence of post-offence conduct must be reasonable when adjudged by the measuring stick of human experience. Those inferences will depend on the

(i) nature of the conduct;

(ii) inferences sought to be drawn from that conduct;

(iii) positions of the parties; and

(iv) totality of the evidence.

See Calnen; R. v. Smith.

102To be receivable, evidence of post-offence conduct must be relevant, material and not offend any other exclusionary rule of evidence, including the requirement that its probative value exceed its prejudicial effect: Calnen. Since receivability falls to be decided on this principled basis, no per se rule confines the answer to the receivability issue in any case. No prefabricated rule imposes a label of "always relevant" or "never relevant" when evidence of post-offence conduct is proposed for use in establishing a particular fact or issue: Calnen. So, for example, no legal impediment bars use of evidence of an accused's post-offence conduct in determining his or her state of mind, and thus in distinguishing between or among different levels of culpability: Calnen; R. v. White (1998); R. v. White (2011); R. v. Rodgerson.

103The context and fact-specific nature of the inquiry into and determination of receivability of evidence of post-offence conduct has implications for the trial participants including counsel, the trial judge and the trier of fact.

104Counsel and the trial judge should specifically define the issue, purpose and use for which the evidence is tendered and articulate the reasonable and rational inferences that might be drawn from it: Calnen.

105Evidence of post-offence conduct admitted for a particular purpose is to be used only for that purpose. Counsel are as much bound in their use of this evidence, as for example in closing submissions, as the trier of fact is in its consideration of that same evidence in reaching a verdict. And in a jury trial, it is incumbent on the trial judge to instruct the jury about the permitted and prohibited use of that evidence in their deliberations: Calnen.

106Instructions limiting the use of evidence by the trier of fact typically include three elements:

(i) identification of the evidence to which the instruction applies;

(ii) an instruction on the permitted use of the evidence; and

(iii) an instruction on the prohibited use of the evidence.

See Calnen; R. v. T. (J.A.).

107When the evidence of limited use is evidence of post-offence conduct, some unique reasoning risks may require more refined instructions. This evidence is often removed temporally from the event to which it is said to relate. An appropriate inference may be harder to draw because of this separation. The evidence may appear more probative than it is. It may be inaccurate. It may encourage speculation, immature reasoning and premature conclusions: Calnen.

108To meet these general concerns, instructions on evidence of post-offence conduct must tell jurors to take into account alternative explanations for the accused's conduct, thus to avoid a mistaken leap from the evidence to a conclusion of guilt: Calnen. But sometimes more is required because cautions and limiting instructions must pay heed to the actual evidence and the specific risks it poses in the case at hand: Calnen.

The Principles Applied

109I would give effect to this ground of appeal. In my view, the instructions were unclear and incomplete and more likely to confuse than to educate the jury about proper use of this evidence.

110At the pre-charge conference, counsel and the trial judge had a lengthy discussion about the several items of evidence of post-offence conduct and how the jury could and could not use them in reaching its verdict. The trial judge concluded that this evidence, including the "I was jumped" disclaimer uttered repeatedly shortly after the killing, was not relevant to the level of the appellant's culpability or to the statutory partial defence of provocation. In other words, the evidence could not be used by the jury to conclude that the killing of the deceased was murder or planned and deliberate first degree murder. Nor could it be used to rebut the statutory partial defence of provocation or to establish that the appellant kidnapped the deceased. The use to which this evidence was limited was to rebut the claim of self-defence, thus to assist in establishing the unlawful character of the killing.

111In large measure, the instructions provided to the jury on the use of the evidence of post-offence conduct were faithful to what had been decided. But, contrary to what had been determined at the pre-charge conference, the trial judge also instructed the jury that the evidence of post-offence conduct could be used to rebut the provocation defence. In this respect, as I will explain later, the trial judge erred.

112Two other trial events, considered together, compromise the judge's instructions about jury use of the evidence of post-offence conduct. Both related to the position of the Crown. The first appeared in the closing address of the trial Crown. The second emerged in the trial judge's instructions to the jury about the position of the Crown.

113Recall that at the pre-charge conference, the trial judge decided to instruct the jury that the evidence of post-offence conduct was not relevant to, and thus could not be considered by the jury, in deciding whether the murder of the deceased was planned and deliberate. Despite this determination, the trial Crown asked whether, in her closing address, she could invite the jury to consider the "I was jumped" disclaimer and the circumstances in which it was uttered as evidence that the killing was murder and that the murder was planned and deliberate. The trial judge permitted the Crown to do so and the Crown made submissions on this use of the evidence.

114In her charge to the jury, the trial judge summarized the positions of the parties. Included in her review of the position of the Crown was a reference to the use of this evidence to establish that the murder of the deceased was planned and deliberate. In the end, the trial judge's legal instructions to not use evidence of post-offence conduct to help establish that the murder was planned and deliberate were at odds with the judge's exposition of the Crown's position that the "I was jumped" disclaimer could be used for that purpose. While it could be said that a contemporary Canadian jury, equipped with a written copy of the charge, could distinguish between legal instructions they were bound to follow and positions of the parties by which they were not bound, the instructions injected an unnecessary confusion into the use of evidence that occupied a position of prominence in the Crown's attempt to establish the appellant's guilt of planned and deliberate first degree murder.

115To the extent that the jury may have resolved these contradictory instructions by considering that the "I was jumped" disclaimer was not evidence of post-offence conduct, and not subject to the cautions associated with this kind of circumstantial evidence, the appellant suffered prejudice as a result.

Ground #3: Evidence of Post-Offence Conduct and the Statutory Partial Defence of Provocation

116This ground of appeal also relates to evidence of post-offence conduct and the trial judge's instructions to the jury about its use. The evidence is the same as that involved in the second ground of appeal, including the "I was jumped" disclaimer. Likewise, the principles that govern instructions about jury use of this evidence are those canvassed earlier. Neither requires repetition here.

The Pre-Charge Conference

117During the lengthy pre-charge discussions about evidence of post-offence conduct and how the jury should be instructed about its use, defence counsel submitted that the evidence was not relevant to the statutory partial defence of provocation being advanced on the appellant's behalf. The trial Crown agreed. And seemingly, so did the trial judge.

The Charge to the Jury

118In her final instructions to the jury, the trial judge left two defences:

(i) self-defence under current s. 34 of the Criminal Code; and

(ii) provocation under former s. 232.

She also provided jurors with a "rolled up" instruction on proof of the intent required for murder.

119Before summarizing the evidence of post-offence conduct, the trial judge explained the use jurors could make of this evidence in reaching their verdict:

As circumstantial evidence, evidence of after-the-fact conduct has only an indirect bearing on the issue of Mr. McGregor's guilt, because you may only consider this evidence in relation to whether he acted in self-defence or whether he was provoked in the circumstances in which [J.M.] died. You may not infer that he is guilty of murder or kidnapping on the basis of his after-the-fact conduct, because there may be other explanations for this conduct.

120In concluding her instructions on this issue, the trial judge told the jury:

If you do not or you cannot find that what Mr. McGregor said and did afterwards was related to the commission of the offences charged, you must not use his evidence in deciding or in helping you decide whether he acted in self-defence.

Remember that you must not consider any of the words or conduct of Mr. McGregor that occurred after the offences with which he is charged as evidence of any intention or planning to commit murder or kidnapping. You must not therefore, consider any of his post-offence conduct as evidence of either first or second degree murder, or kidnapping. His post offence words and conduct have no probative value as to whether there was an intention, or whether there was planning or deliberation to murder or kidnap [JM]. Remember to consider all of the evidence.

121Defence counsel objected to the inclusion of provocation and the instructions about jury use of the evidence of post-offence conduct. Counsel for the Crown reminded the judge of the agreement during the pre-charge conference that the evidence was relevant only to the availability of self-defence as a justification for the killing, not to provocation. The trial judge did not modify the charge or re-charge the jury.

The Arguments on Appeal

122The appellant begins by emphasizing that the statutory partial defence of provocation was the principal defence advanced at trial. The wrongful act upon which the defence was grounded was the knife attack described by the appellant after he finally admitted that he had stabbed the deceased to death. Defence counsel also suggested that, apart from the statutory partial defence, the deceased's provoking conduct was relevant in an assessment of whether the Crown had proven the mental element in murder beyond a reasonable doubt.

123According to the appellant, the trial judge's instruction, which left a vast expanse of evidence of post-offence conduct as relevant to whether the murder of the deceased was provoked and thus manslaughter, amounted to a serious legal error. By pitting this evidence against the appellant's account of a sudden attack by an armed aggressor and an equally sudden response, the effect of the instruction was to eliminate the prospect of any reasoned assessment of the defence.

124The appellant says the prejudice created by the instruction linking the evidence of post-offence conduct to the provocation defence was exacerbated in two ways. The first is inherent in evidence of post-offence conduct: the recognized tendency of a jury to overemphasize and overvalue this evidence as probative of guilt. The second perpetuated the prejudice: the jury received a written copy of the judge's charge to review during their deliberations.

125The respondent concedes that in the circumstances of this case, the evidence of post-offence conduct was not relevant to the jury's decision on provocation. But the instruction to the contrary, said only once, caused the appellant no prejudice.

126The respondent contends that a contemporary Canadian jury would appreciate that the evidence of post-offence conduct had nothing to do with provocation in light of the trial judge's instructions on this evidence considered as a whole. Further, the defence at trial had conceded that a conviction of manslaughter was appropriate despite advancing self-defence on the basis of the self-same conduct of the deceased.

127The respondent points out that linking the evidence of post-offence conduct to provocation contributed little if anything to the failure of the statutory partial defence. The account itself was inherently implausible and at odds with the incontrovertible physical evidence. And this was apart from the chronology of falsehood heaped upon falsehood as each story crumbled when confronted with contradictory evidence. In any event, says the respondent, the wording of the instruction may have had a minimal impact because it was essentially the same as limiting that instruction to self-defence, and was merely a lead-in to the main instruction. The main portion of the instruction provided that evidence of post-offence conduct only pertained to self-defence, without mention of provocation.

The Governing Principles

128The prior canvass of precedent on the instructions required when evidence of post-offence conduct is adduced in a jury trial is sufficient to inform the decision on this ground of appeal. But one point deserves emphasis. And that is that the relevance of the evidence of post-offence conduct in the concrete reality of the case in hand determines its use and the necessity for, and content of, any instructions about jury use of the evidence.

The Principles Applied

129As I will briefly explain, I would give effect to this ground of appeal. In the circumstances of this case as the parties agreed at trial and the respondent concedes here, the evidence of post-offence conduct was not relevant for the jury to consider in determining whether the murder of the deceased was reduced to manslaughter by the statutory partial defence of provocation.

130To be clear, I reach this conclusion in the circumstances of this case, not on the basis of any bright line rule that bars use of evidence of post-offence conduct in assessing the viability of the statutory partial defence of provocation. Relevance controls the decision, not bright line rules.

131In some cases where an accused is charged with a first degree murder alleged to have been planned and deliberate and responds in part by claiming that the murder was provoked under s. 232 of the Criminal Code, evidence of post-offence conduct supportive of an inference of planning and deliberation would also seem likely relevant to rebut the statutory partial defence of provocation. But neither party suggest that this is such a case.

132In this case, the instruction about the use of evidence of post-offence conduct in assessing the statutory partial defence of provocation was prejudicial to the appellant because it related to the principal defence advanced on his behalf. While mentioned only once during final instructions, the reference was contained in the written version of the charge provided to jurors. Despite objection by defence counsel, the trial judge failed to correct the error.

Ground #4: Provocation and the Decision Tree

133This ground of appeal takes issue with the contents of a portion of the decision tree provided to the jury as an aid to assist them in their deliberations.

134Some brief background will help to better understand the nature of this grievance.

The Pre-Charge Conference

135During the pre-charge conference, counsel and the trial judge discussed the structure and content of a decision tree the trial judge proposed to provide to the jury as a deliberation aid. Defence counsel asked the trial judge to include a separate box for the statutory partial defence of provocation and proposed that the box be inserted below the box that referred to the mental element necessary to prove an unlawful killing was murder.

136The trial Crown resisted the defence request. Her resistance appears to have been grounded, at least in part, in her view that the defence of provocation is somehow related to the mental or fault element in murder. It followed, according to the trial Crown, that the entry dedicated to proof of the state of mind required for murder covered this issue of provocation and rendered any separate entry unnecessary.

137The trial judge seemed to be of the same view as the trial Crown. She declined to accede to the defence request. The decision tree provided to the jury contained no separate entry for provocation.

The Decision Tree

138The decision tree provided to the jury appears as Appendix "A" to these reasons. It includes this entry:

Did Mr. McGregor have a state of mind required for murder, (not provoked)?

as well as directional arrows pointing to the consequences of an affirmative or negative response to the question.

The Charge to the Jury

139In introducing the statutory partial defence of provocation in her final instructions to the jury, the trial judge began in this way:

Provocation becomes an issue for you to decide if the Crown has satisfied you beyond a reasonable doubt that Robert McGregor committed murder. If you are not satisfied beyond a reasonable doubt that Robert McGregor committed murder, you do not consider the issue of provocation that I am about to describe to you.

140The written version of the charge provided to jurors contains the same instruction. Neither advised the jury how to use the decision tree.

The Arguments on Appeal

141The appellant says that the trial judge erred in failing to include a separate entry or box for the statutory partial defence of provocation in the decision tree. This was required to ensure that the jury understood that the statutory defence was separate and apart from the mental element required to establish an unlawful killing as murder. Provoking words or conduct by a deceased are relevant in assessing whether the Crown has proven a requisite state of mind to establish an unlawful killing as murder, but the statutory partial defence in s. 232 is only engaged when murder has been proven beyond a reasonable doubt.

142According to the appellant, the impact of failing to include a separate entry or box for provocation was exacerbated by the reference "was not provoked" in the box in the decision tree relating to proof of murder. The reference is at best ambiguous. At worst, it is misleading because it leaves the impression that provocation has to do with the state of mind for murder. Provocation under s. 232 has nothing to do with the mental element. Indeed, it is engaged only when that mental element has been proven beyond a reasonable doubt.

143The respondent begins with an observation that whether the trial Crown and trial judge were under a misapprehension about the relationship between the statutory partial defence of provocation and the mental element in murder is beside the point. The real issue is whether, in all the circumstances, the omissions or inclusions in the decision tree prejudiced consideration of the appellant's defence of provocation.

144The respondent says that the jury was properly instructed on the mental element in murder and the evidence relevant for them to consider in deciding that issue. The evidence included anger, instinctive reaction and an unthinking response. The trial judge made it clear that those considerations were entirely distinct from provocation about which she would instruct them later. And as she turned to the statutory partial defence of provocation, the trial judge made it clear that this defence only required consideration where the jury was satisfied that the appellant had committed murder. These instructions were contained in the written copy of the charge provided to the jury.

145In the end, the respondent concludes, the failure of the trial judge to include a separate box for provocation in the decision tree was not a legal error. Even if we were to consider it to be a legal error, the appellant suffered no prejudice because the jury was instructed correctly on this issue.

The Governing Principles

146In a prosecution of a culpable homicide as murder, evidence of provoking conduct by the deceased and of an accused's reaction to it may be relevant for the jury to consider in either or both of two ways in reaching its verdict.

147First, evidence of the deceased's provoking conduct and the accused's reaction to it, together with evidence of other circumstances surrounding the killing, including those relating to the mental state and condition of the accused, is relevant for the jury to consider in determining whether the Crown has proven either state of mind required to establish the unlawful killing was murder: R. v. Bouchard. This evidence is often an integral part of a "rolled up" instruction on the mental element in murder: R. v. Robinson; R. v. Flores.

148Evidence of provoking conduct by the deceased and of the accused's reaction to it relevant to proof of the state of mind essential to make the unlawful killing murder need not qualify as provocation as defined in s. 232(2) of the Criminal Code: Bouchard; Flores.

149Second, provocation which meets the requirements for the statutory partial defence as defined in s. 232(2) reduces an unlawful killing proven to be murder to manslaughter. This statutory partial defence does not relate to the mental element in murder. This is so because the opening words of s. 232(1) provide that "[c]ulpable homicide that otherwise would be murder may be reduced to manslaughter . . .": R. v. Gilling; R. v. Conway.

150Since the term "provocation" may be used in either or both of these senses, it is critical to the jury's understanding that the trial judge explain the difference between them and confine their use to the issue to which each is relevant: Bouchard. This can be achieved in different ways, as for example by describing the statutory partial defence of provocation as "the defence of provocation" and making it clear that it only arises for consideration where the jury has been satisfied beyond a reasonable doubt that the unlawful killing of the deceased was murder: Bouchard. And by eschewing the language of "defence" and "provocation" in favour of terms such as "provoking words and conduct", when linking it to proof of the state of mind required for murder and thus distinguishing it from the statutory partial defence: R. v. Mitchell; see, also, R. v. Cudjoe.

151The role of decision trees in jury instructions and deliberations requires brief examination.

152A decision tree is a deliberation aid routinely provided to jurors in this province, along with a written version of final instructions and a verdict sheet. The questions posed in the boxes portrayed in the decision tree duplicate the language used for the same questions in the charge. Each reflects an essential element of the offence charged. The boxes are arranged in the same sequence as the questions in the charge. Each represents a step along the way to a final verdict. The consequences of "yes" or "no" answers to each question for further deliberations or verdicts are displayed. See, generally, R. v. B. (P.).

153The manner in which trial judges integrate instructions on defences, justifications and excuses into decision trees on offences is left largely to individual judges. Some defences are linked to discrete essential elements of an offence. For example, self-defence relates to the unlawful act requirement in a prosecution for a crime of culpable homicide. But not so for every defence. And not so for the statutory partial defence of provocation. Properly sequenced, the provocation question should appear following an affirmative answer to the question about proof of the mental element in murder. Recall the words "[c]ulpable homicide that otherwise would be murder".

154Final instructions to the jury at the conclusion of a criminal trial must not only be comprehensive, but also comprehensible. Sometimes, however, instructions may become so unnecessarily confusing that they amount to legal error: Rodgerson.

The Principles Applied

155In my assessment of this ground of appeal, I have considered the final instructions and the decision tree as part of a whole. I have assessed them functionally to determine whether, together, they adequately equipped this jury to reach an informed conclusion. As I will explain, I have concluded that the instructions fell short of the standard required of them. My reasons proceed through a series of steps.

156In her charge to the jury, the trial judge distinguished between evidence of provoking conduct and of the appellant's reaction to it, on the one hand, and the statutory partial defence of provocation, on the other.

157In connection with the mental element in murder, the trial judge's instructions invited the jury to consider the cumulative effect of the evidence of the circumstances in which the deceased died. The trial judge included in this inventory evidence that the appellant acted instinctively, in the sudden excitement of the moment, without thinking of the consequences of what he was doing. Surprise and anger were folded into the mix. The trial judge segregated this evidence from that associated with the statutory partial defence with the language "apart altogether from what I will tell you later about this subject of provocation". After briefly summarizing some of the evidence, the judge reminded the jury of their obligation to consider all this evidence on the issue of the intent for murder.

158The trial judge then turned to the statutory partial defence of provocation. She began by pointing out that this provocation only became an issue for the jury if they were satisfied beyond a reasonable doubt that the appellant committed murder:

Provocation becomes an issue for you to decide if the Crown has satisfied you beyond a reasonable doubt that Robert McGregor committed murder. If you are not satisfied beyond a reasonable doubt that Robert McGregor committed murder, you do not consider the issue of provocation that I am about to describe for you.

159In concluding her instructions on the statutory partial defence of provocation, the trial judge substantially repeated her instructions on the intent required for murder but added "and that he was not provoked" thereby conflating the issue of the intent required for murder and the statutory defence of provocation.

If you are not satisfied beyond a reasonable doubt that Mr. McGregor had either state of mind to make his unlawful killing of [J.M.] -- if you are not satisfied beyond a reasonable doubt that Mr. McGregor had either state of mind required to make his unlawful killing of [J.M.], you must find Mr. McGregor not guilty of first degree murder, but guilty of manslaughter and your deliberations would be over.

If you are satisfied beyond a reasonable doubt that Mr. McGregor had either state of mind, that Mr. McGregor either meant to kill [J.M.] or to cause her bodily harm that he knew was likely to kill her, and was reckless whether she died or not and that he was not provoked, wherefore he committed murder, you must go on to the next question.

160In the last excerpted passages, the trial judge was concluding her instructions on the statutory partial defence of provocation. That defence only became pertinent for the jury to consider after they had found that the killing was unlawful and amounted to murder. What was left for the trial judge to explain at this point of her instructions on the statutory partial defence was the impact of the jury's finding about it on further deliberations and the verdict.

161In the usual course, the instructions would conclude in the following or similar language:

If you are satisfied beyond a reasonable doubt that in unlawfully killing the deceased, the accused committed murder (as I have defined it for you), and if you find or have a reasonable doubt that when he did so the accused was acting under (the defence of) provocation, as I have just defined it for you, then you shall find, record and return a verdict of not guilty as charged, but guilty of manslaughter.

If you are satisfied beyond a reasonable doubt that in unlawfully killing the deceased, the accused committed murder (as I have defined it for you), and if you are also satisfied beyond a reasonable doubt that, when he did so, the accused was not acting under (the defence of) provocation, as I have just defined it for you, you must go on to the next question.

162The first paragraph of the judge's instructions excerpted above, at para. 160, is misplaced in a concluding instruction on the statutory partial defence of provocation. This is because it assumes a reasonable doubt about proof of the state of mind required to establish the unlawful killing as murder. This has nothing to do with the statutory defence; rather, it describes involuntary manslaughter on the basis of inadequate proof of the mental element in murder. Evidence of provoking conduct and the accused's reaction to it may assist in raising a reasonable doubt about proof of the state of mind required for murder, but the statutory partial defence does not, and cannot do so, for it assumes that murder has been committed.

163The reference to "and that he was not provoked" in the second paragraph of the charge excerpt, and to "(not provoked)" in the box of the decision tree relating to the mental element in murder, resulted in an instruction that was flawed by ambiguity. In the result, there was non-direction amounting to misdirection about the verdict and further deliberation consequences of the statutory partial defence of provocation.

Ground #5: The Closing Address of the Crown

164The final ground of appeal repeats objections made at trial about the Crown's closing address to the jury and alleges error in the trial judge's failure to provide correcting instructions in her charge to the jury.

165The conclusions I have reached concerning the cumulative effect of errors in the charge about evidence of post-offence conduct and the issue of provocation make it unnecessary to engage in a line-by-line dissection of the closing address of the Crown. It is sufficient in the circumstances to characterize the nature of the complaints, consider whether remedial action was required, and assess the impact of any failure to do so.

The Complaints

166In general terms, the complaints about the trial Crown's closing address to the jury fall into four groups:

(i) inviting speculation about events taking place culminating in the death of the deceased;

(ii) overstating the evidence;

(iii) suggesting improper use of evidence; and

(iv) using emotive language to conjure sympathy for the deceased.

The Arguments on Appeal

167The appellant says that the trial judge erred in failing to provide appropriate correcting instructions for several aspects of the trial Crown's closing address which exceeded well-defined limits.

168In her closing address, the appellant contends, the Crown advanced a theory of the events that preceded and culminated in the death of the deceased which did not, indeed could not, arise by reasonable inference from the evidence adduced at trial. These submissions were grounded in pure speculation. They included assertions that

(i) the appellant must have got hold of the deceased's phone since she failed to respond to calls and texts as was her usual habit;

(ii) the deceased would not have gone to the rock pile "to smoke a bowl" as the appellant claimed, without having first seen their daughter who was the purpose of their meeting in the first place; and

(iii) the appellant pursued the deceased over a distance, caught up with her and stabbed her to death.

169The appellant adds that the trial Crown also overstated the evidence about the appellant's expectations on the couple's next appearance in family law proceedings. Although the appellant was concerned about the litigation, the evidence was that no final decision was imminent and there was a lack of evidence that the appellant expressed fear about losing custody.

170In addition, the appellant claims that the Crown invited the jury to make improper use of an alleged prior consistent statement of a witness (D.J.) as evidence of the reliability of his testimony and used emotive language to conjure sympathy for the deceased and consequently prejudice against the appellant.

171The respondent begins with a reminder that the central or controlling question is whether the Crown's closing deprived the appellant of a fair trial or caused a miscarriage of justice. In this case, the respondent says, whether considered individually or cumulatively, the closing address of the Crown did not extend beyond the limits of proper advocacy, let alone cause a miscarriage of justice or prejudice the appellant's right to a fair trial.

172After counsel had concluded their closing addresses, the respondent points out, counsel on both sides complained about the other's address. The trial judge heard the complaints, engaged counsel in a colloquy and decided not to provide correcting instructions so as not to unbalance the charge to the prejudice of either party. That was a decision the trial judge was entitled and best positioned to make. She was there. She saw and heard the addresses and was eyewitness to the jury's reaction. Her decision is entitled to significant deference in this court.

173The respondent also disputes the substance of each of the appellant's discrete complaints.

174The invitations to the jury to speculate about which the appellant complains were in fact requests to draw reasonable inferences well-grounded in the evidence about the deceased's usual habit of responsiveness to texts and calls to her cell phone, the evidence of unanswered texts and calls during the time period she was in the appellant's company, and the physical findings consistent with a destroyed personal communication device at the scene.

175The same may be said in connection with the submissions about the likelihood of the deceased going to the rock pile "to smoke a bowl" without seeing their daughter. This too was a reasonable inference, not idle speculation. After all, this was the singular purpose of their meeting -- to permit examination of their child to determine the validity of the appellant's claim of inappropriate interference by D.J.

176Likewise, the respondent continues, the trial Crown's submissions that the attack took place over some distance is firmly rooted in the evidence at trial. The physical findings in various places along the way. And the evidence of the examining forensic pathologist about the wounds inflicted and the relative position of the deceased when those wounds were inflicted. In a similar way, the evidence supported the submissions about the appellant's concern over the impending family law proceedings.

177Nor can the submission that the Crown invited the jury to make impermissible use of a prior consistent statement of D.J. be sustained. The impugned reference falls well short of the mark. Equally so, the claim of emotive language.

The Governing Principles

178The principles that govern the limits imposed on Crown counsel in closing to a jury in a criminal trial are well-settled and not in need of restatement. Leaving to one side the prohibition against inflammatory rhetoric, demeaning commentary and sarcasm, some specific principles are worthy of brief restatement because of the complaints advanced here.

179To begin, consistent with the divide between reasonable inference, on the one hand, and speculation, on the other, the Crown is not entitled to corrupt the fair reach of the evidence by inviting the jury to speculate in order to find guilt established: R. v. Roberts.

180Second, Crown counsel is not entitled to invite the jury to use an item of evidence in reaching its verdict for a purpose other than that for which it was admitted and the law permits: Calnen; R. v. Boudreau. The same restrictions apply to defence counsel.

181We accept that closing addresses may contain some measure of argument and advocacy. Counsel on both sides are entitled to a fair degree of latitude in their closing addresses. The Crown is entitled to advance her position forcefully and effectively. Juries expect and are entitled to nothing less: Boudreau.

182None can gainsay that the trial judge is in the best position to gauge the impact of closing submissions made by either counsel. The trial judge can take the temperature of the trial. As an eye and ear witness to the entire proceedings, including both jury addresses. In that position the trial judge can assess the apparent significance or otherwise of the impugned remarks, and determine whether and to what extent correction or other remedial action may be required: R. v. Sarrazin; R. v. Zvolensky; R. v. Rose. We accord substantial deference to the trial judge's conclusions on these issues. This is as it should be.

183In many cases in which complaints are made at trial about the propriety of Crown counsel's closing address, the response of a random selection of trial judges would not be uniform. Some would react in one way. Others in another. But inaction does not become error simply because another judge presiding in the same case might have reacted differently: R. v. S. (L.); R. v. McDonald.

184A final point concerns the standard to be met for appellate intervention. For this court the issue is whether, considered in the context of the trial as a whole, including the evidence adduced and the positions advanced, the substance or manner of the Crown's closing address has caused a substantial wrong or miscarriage of justice, including by prejudicing the accused's right to a fair trial: Roberts; Sarrazin.

The Principles Applied

185I would not give effect to this ground of appeal. My reasons for rejecting it are brief.

186To begin, the invitation to speculate. This is a familiar claim where counsel invites the jury to draw certain factual conclusions from several strands of circumstantial evidence. For the proponent, it is inviting inference. For the opponent, it is summoning speculation. In this case, I am not prepared to say that the factual findings Crown counsel invited the jury to make from the evidence on which she relied extended beyond the field of inferences reasonably available from that evidence taken as a whole.

187Nor am I persuaded that the closing address of the Crown overstated the appellant's apprehension about the imminent court appearance in family law proceedings. His attempt at CAS intervention failed. The mediated agreement had not been signed and the deceased appeared reluctant to sign it. And as the appellant said in a text message:

I cant do this anymore Im done fighting for . . . my lawyer said everything I have I cant use against her I can only hope she agrees to the agreement so I'm screwed

188The trial Crown, the appellant concedes, did not expressly invite the jury to find that D.J. had made a prior statement consistent with his trial testimony or to rely on that prior statement to bolster the witness' reliability or credibility. There was no evidence of a prior consistent statement, much less of its contents. Nor can it be said that the jury would have taken from the Crown's closing anything about the contents of any statement or that it could use it to infer reliability or credibility from consistency.

189In her final instructions, the trial judge made it clear to the jury that their first duty was to decide what the facts were. To make that decision, the jurors were to consider the evidence, but only the evidence. They were not to speculate or to guess or to make up theories in the absence of evidence. Their consideration of the evidence was to be free of sympathy, prejudice and fear and uninfluenced by public opinion. What was required of them was an impartial assessment of the evidence, not an emotional reaction to it.

190In these circumstances, I am unable to conclude that the closing address of the Crown prejudiced the appellant's right to a fair trial or otherwise resulted in a miscarriage of justice.

Conclusion

191The cumulative effect of the errors in the trial judge's charge to the jury compromises the integrity of the verdict the jury rendered. These errors were serious and related to the single defence ultimately advanced on the appellant's behalf. The Crown's case was formidable, but not overwhelming.

192For these reasons, I would allow the appeal, set aside the conviction of first degree murder and the stay on the kidnapping count and order a new trial on both counts of the indictment.

Appeal allowed.