Court of Appeal for Ontario
Justices: Watt, Huscroft and Roberts JJ.A.
Between
Her Majesty the Queen Respondent
and
James Province Appellant
Counsel
For the Appellant: Anil K. Kapoor and Dana C. Achtemichuk
For the Respondent: Jamie Klukach and Dominic Bell
Heard
January 30, 2019
On Appeal
On appeal from the conviction entered by Justice Bruce G. Thomas of the Superior Court of Justice, sitting with a jury, on December 1, 2015.
Reasons for Decision
Introduction
1In 2010, James Province (the appellant) and Joanne Underhill (the deceased) separated after 21 years of marriage. In its early stages, the separation was amicable. The couple continued to live together with their three children. They tried to resolve their family law issues without lawyers.
2Over time, things changed. Hostility replaced amicability. Financial issues became a sore point. The deceased moved out with the couple's younger daughter. Then came the lawyers. And more lawyers.
3The deceased told her friends and co-workers about her fears of the appellant, of what he might do. After moving out, she took precautions to ensure that the appellant did not know where she lived. The appellant also complained. He said he was not being treated fairly. His support payments were too high.
4Early one morning, the appellant got out of bed. He dressed in dark clothing. He put a knife in his backpack, got in his car and drove over to the area where the deceased lived. After parking a short distance away from the deceased's home, the appellant walked towards the house, his backpack and knife with him.
5The deceased's home was in darkness. Using a key he had surreptitiously obtained, the appellant entered the house. Once inside, he walked to the deceased's bedroom. In a brief struggle, the appellant stabbed the deceased three times, then left the house trying to lock the door behind him. He drove home where he waited for police to arrest him.
6A jury found the appellant guilty of first degree murder. He appeals. These reasons explain my conclusion that his appeal fails and should be dismissed.
The Background
7A brief canvass of some of the circumstances preceding and concluding with the deceased's death will furnish the background necessary to understand the basis upon which the case was advanced by the parties at trial. To the extent that further detail is required to appreciate the grounds of appeal advanced and my assessment of them, it appears in the discussion of the ground of appeal to which it relates.
8The essential narrative as it unfolded at trial was largely uncontroversial, although the parties differed significantly on the inferences and conclusions to be drawn from it.
The Early Years
9In 2010, the appellant and deceased had been married for 21 years. They had three children. The family lived together.
The Initial Separation
10In early 2010, the appellant and deceased decided to separate. Despite this decision, they continued to live together in the same house with their children. The separation was amicable. They tried to settle their family law issues without the intervention and expense of lawyers.
11The appellant and deceased participated in private mediation. The deceased concluded that private mediation was not working. She retained a lawyer.
The Figurines
12The deceased had a valuable collection of Royal Doulton figurines. In July of 2010, the appellant discovered that the deceased had removed this collection from the home they had occupied together. The appellant got upset. Two events annoyed him. The deceased had retained a lawyer and she had removed the figurines, which the appellant regarded as an attempt by the deceased to hide assets, thus to remove them from any potential property settlement.
The Retaliation
13In retaliation for the deceased's removal of her collection of figurines, the appellant gathered up several more of the deceased's collectibles, put them in a box and smashed them. His purpose in doing so, he said at trial, was not to scare the deceased, but rather to ensure that she felt some of the pain that he was feeling as a result of their ongoing matrimonial issues.
The Final Separation
14When the deceased discovered that the appellant smashed her collectibles, she and their younger daughter never returned to live in the family home. The couple and family never lived together again. The deceased and her younger daughter lived for a time at a women's shelter, then at the home of a friend. She kept her location secret and did not tell her friends or her older children where she lived. Later, she, her son and younger daughter moved into a home, which they rented.
The Family Law Litigation
15The family law litigation between the appellant and deceased began around mid-2010 and continued into 2012. The proceedings were hard fought, especially over financial issues. Each of the parties retained and discharged lawyers.
The Deceased's Fears
16Throughout the separation and the litigation that followed, the deceased expressed concerns to her friends, co-workers and her children about the appellant's behaviour. With her supervisors, she devised a plan to ensure her safety at work should the appellant appear there.
17A police officer lived across the road from the deceased's new home. She asked the officer to keep a watchful eye on her house for her safety. The deceased contacted Victim Services.
18She described the appellant as very angry. She wondered aloud to others whether he would ever hurt her. She told a friend that she was scared and uncertain about what the appellant might do after he had an outburst when she attended the funeral of his step-sister. She continued to express these fears until one or two weeks prior to her death.
The Appellant's State
19During 2011 and 2012, the family law litigation between the appellant and deceased continued unabated. Rancour was its predominant characteristic. The appellant bristled at the amounts he was required to pay for spousal and child support. He complained to his co-workers and his children about the deceased's excessive financial demands and warned the deceased that she was "not going to get" his money.
20In early 2012, the appellant was injured playing hockey. He broke his arm. At first, he took sick leave. Then, he went on short-term disability. He stopped working in May or early June of 2012. By mid-August 2012, his base pay was reduced to 66 percent.
The Motion to Reduce Support
21About two weeks before the death of the deceased, the appellant tried to serve a motion to reduce his support payments on the deceased's lawyer. The motion was returnable the following week. The lawyer refused to accept service. The motion did not proceed. This incensed the appellant.
22The appellant's older daughter described her father as not being himself during this time period. He appeared defeated. He just sat and watched television.
The Drop-off Incident
23On August 28, 2012, the deceased dropped off the couple's younger daughter for an arranged visit with the appellant, who pressed the deceased to fire her lawyer and agree to mediation with him alone. He also wanted his support payments reduced.
24The deceased rejected the appellant's entreaties. The appellant believed she would not meet with him in any public place to continue the discussion. The deceased complained to others that the appellant raised his voice as he made his demands and invaded her personal space. The appellant disputed this characterization of their interaction.
The Early Morning of September 7, 2012
25The appellant could not sleep early in the morning of September 7, 2012. He got up at about 4:00 a.m. He was "wound up". He wanted to do something after having repeatedly failed to reduce his support payments.
26The appellant got out of bed and put on dark clothing: black shoes, sweat pants, a nylon jacket and a blue t-shirt. He put on a baseball cap, although he was not in the habit of wearing one. He also picked up a knife from the kitchen and put it in a backpack to take with him. He testified that he took the knife to have as a deterrent in case the deceased's boyfriend was at her home when he arrived there.
27The appellant drove to the deceased's neighbourhood. He parked about a quarter-mile from her house and walked there. He did not look to see whether the deceased's boyfriend's motorcycle or vehicle was parked outside the house before he used a key he had surreptitiously obtained and duplicated to enter. The house was in darkness.
28The appellant took the knife out of his backpack and put it in his pocket. He walked silently through the house. As he passed his younger daughter's room, he closed the door. As he approached the deceased's room, he took the knife out of his pocket and held it in his right hand down by his side. He pushed the bedroom door open.
The Stabbing
29The deceased was alone in her bed. According to the appellant, she awakened and asked "[w]hat's going on?" The appellant said that he responded "[b]e quiet, I just want to talk." He approached the deceased.
30In his evidence at trial, the appellant claimed that as he approached the bed, he tripped, stumbled and fell to the floor beside the bed. As he put his hand on the side of the bed to assist him to regain his standing position, the deceased, who had stood up on the bed upon hearing the appellant's voice, jumped off. She fell against the appellant's arm. Both fell towards the wall.
31The appellant realized that the deceased was dead. He took the knife, left the room and closed the bedroom door. He put the knife in his pocket, picked up his backpack and left the house, closing the door and fidgeting with the deadbolt as he did so. He shoved the knife into a garbage bag left outside on a neighbouring property, walked back to his car and then drove home. His son, awakened in his basement room at the deceased's house by a noise from upstairs, got up, got into his mother's car and saw the appellant walking away at a brisk pace. He returned home, found his mother's body and called 911.
The Cause of Death
32The deceased suffered two stab wounds and one incised wound to her left knee. Each had been inflicted prior to death. She had also received several blunt force injuries, mostly in the form of abrasions.
33The fatal stab wound was to the left side of the deceased's chest. The wound penetrated to a distance of approximately 15.5 centimetres. It passed through the chest cavity, left lung and heart and entered the right lung. The wound was linear; that is to say, the knife had been removed along the same path it followed on entry. The wound track was consistent with infliction when the deceased was not moving.
34The second-most serious stab wound entered the deceased's abdomen in a right to left direction.
35No defensive wounds were visible on the deceased's hands.
The Positions of the Parties at Trial
36The primary position of the Crown at trial was that the unlawful killing of the deceased was a planned and deliberate first degree murder. The Crown also contended that the appellant murdered the deceased while committing criminal harassment, and thus was guilty of first degree murder under s. 231(6) of the Criminal Code, R.S.C. 1985, c. C-46.
37The defence position was that the appellant went to the deceased's home to persuade her to settle their family law disputes, not to harm or kill her. He had no motive to do so. Her death was a tragic accident.
The Grounds of Appeal
38The appellant advances three grounds of appeal. The first has to do with the selection of the jury, the second and third with the charge to the jury.
39As I would paraphrase the appellant's complaints, they are that the trial judge erred:
i. in substituting a second pair of static triers to determine the truth of the challenge for cause on the second day of jury selection, in the absence of any statutory authority to do so, which resulted in the jury being improperly constituted;
ii. in leaving s. 231(6) of the Criminal Code to the jury as a basis upon which the appellant could be found guilty of first degree murder; and
iii. in failing to properly instruct the jury on the essential elements of constructive first degree murder under s. 231(6).
Ground #1: The Jury Selection Issue
40Some further background is necessary to understand this ground and how I propose to resolve it.
The Opening Instructions to the Jury Panel
41In his opening instructions to the jury panel, the trial judge explained that the parties would be selecting 14 jurors and 2 alternates for a trial estimated to take up to 4 weeks to complete. The judge told the panel in plain language that prospective jurors would be challenged for cause based on pre-trial publicity.
42The trial judge then explained how the challenge for cause process would work. Two persons from the panel would be selected as triers of the challenge. They would decide on the acceptability of each prospective juror. They would fulfill this role until "the entire jury" was selected, but would not become jurors themselves.
The Selection of the Triers
43The numbers of two jury panel members were drawn to serve as triers. One was excused because his son was a member of the investigating police force. Another panel member's card was selected. These two jury panel members became the triers of the challenge for cause. The trial judge instructed them on their duties.
44The trial judge divided the remainder of the jury panel into groups of 12 for selection purposes.
The First Day of Jury Selection
45The selection of the jury for trial continued throughout the first day. The triers participated. Their decisions about each prospective juror who was challenged for cause were unanimous. At the conclusion of the sittings on that day, 13 jurors had been selected. This meant that three more jurors (one additional juror and two alternates) were required to complete the selection process.
The Discharge of the Triers
46At the conclusion of the sittings on the first day of jury selection, the trial judge addressed the triers. He said:
Okay, so we have exhausted our groups for today. Ladies, as triers, I want to thank you for your service today, okay? I'm going to let you go now and you're free to go. You have certainly done everything we've asked of you, all right? And we will carry on tomorrow to complete our jury selection but we won't do it with you, okay?
47Before he discharged the triers, the trial judge did not advise counsel of his intention or reason for doing so. He did not invite or receive submissions on the issue. Neither the Crown nor defence counsel, none of whom are counsel on appeal, objected to the discharge of the triers.
The Second Day of Jury Selection
48The following day, the appellant was re-arraigned before another jury panel. The trial judge repeated the instructions he had given to the first panel, including what he said about the challenge for cause and the procedure that would be followed to decide it. Two triers were selected, the remainder of the panel divided into groups of 12 and selection continued until 12 jurors, 2 additional jurors and 2 alternates had been chosen.
49On this day, the same triers determined the acceptability of every juror who was challenged for cause. In each case, their verdict was unanimous.
The Replacement of a Juror
50After 16 jurors had been selected, the trial judge reviewed notes he had received from 2 jurors who had been chosen on the first day of selection. Each, for different reasons, sought to be relieved of their responsibility as trial jurors. The trial judge questioned each and invited submissions from counsel. He discharged one juror and replaced that juror with another who had been selected on the first day of jury selection. The second juror who had sent the trial judge a note remained on the jury.
51The appellant was given in charge of the jury, which consisted of 14 jurors.
The Arguments on Appeal
52The appellant contends that the jury selection process was fatally flawed when, for no apparent reason, the trial judge discharged the original triers and continued the selection process the following day with two new triers.
53The combined effect of ss. 640(2.1) and (2.2) of the Criminal Code, the appellant says, is to require the same set of triers to determine all challenges for cause. This is, after all, the very purpose of the static trier scheme. The only exception, inapplicable here, permits discharge of the triers and selection of new triers in the event of disagreement over the acceptability of a prospective juror, pursuant to s. 640(4).
54The appellant submits that what occurred here upset the carefully crafted statutory scheme for determining the acceptability of prospective jurors and assigned it arbitrarily, as it were, to another adjudicator. The provisions in issue, ss. 640(2.1) and (2.2), grant exclusive authority for determining the acceptability of prospective jurors to two triers and, subject to the exception in subsection (4), to only two triers. The same two triers. This ensures a fair trial by an impartial jury.
55What happened here, the appellant continues, is analogous to what occurred in R. v. W.V., 2007 ONCA 546, leave to appeal refused, [2007] S.C.C.A. No. 615 and fatally flawed those proceedings. The assignment of the decision-making authority to a second set of triers lacked statutory authority. As in W.V., the lack of objection by trial counsel cannot fill the jurisdictional deficit.
56The appellant accepts that, despite the statutory nature of the scheme for determining the acceptability of prospective jurors challenged for cause, a trial judge has inherent jurisdiction to control the jury selection process to ensure its fairness on all sides. But this inherent jurisdiction is not unlimited. It does not permit an unprincipled departure from the statutory scheme or allow contravention or alteration of the statutory procedure.
57The appellant also acknowledges that some errors occurring in the jury selection process may be forgiven by the application of various provisos, some limited to defects in the empanelling of juries, others of more general import. But none of those extend appellate forgiveness for what happened here. Not s. 670, because what happened deprived the appellant of his right to a trial by a lawfully constituted jury. The same holds true for s. 671. And s. 686(1)(b)(iv) is unavailing because the court lacked jurisdiction to try the appellant.
58The respondent advances two alternative arguments in opposition to the appellant's claim of fatal error.
59First, the respondent says, a trial judge has a wide discretion, sometimes characterized as an inherent jurisdiction, to control the jury selection process, ensure it is fair to all sides and promote impartiality in the jury selected. This authority the judge may exercise even in statutorily-regulated areas, provided what is done does not contravene any statutory provision.
60In this case, the respondent continues, the trial judge was alive to the mandates of s. 640(2.2). He told the two static triers who were chosen on the first day that they would determine juror acceptability until the full jury was selected. It is a reasonable inference that at the end of a long day of jury selection, the trial judge thought it undesirable and unnecessary to subject the triers to the inconvenience of returning the second day to choose the remaining additional juror and two alternates.
61The respondent submits that the statutory provisions governing jury selection should be interpreted in a way that favours preservation of a broad discretion in the presiding judge to manage the process fairly. More specifically, that discretion ought to encompass the authority to discharge static triers for reasons other than their inability to agree on the acceptability of a prospective juror as s. 640(4) permits. The language of subsection (2.2) does not expressly prohibit the availability of such a discretion.
62In this case, the respondent concludes, the discretion or inherent jurisdiction is sufficiently expansive to permit discharge out of concern for the fair treatment of the static triers. The substitution of new triers advanced the overarching objectives of a fair process of selection and the empanelling of an impartial jury.
63Second, and in the alternative, the respondent invokes the curative proviso of s. 686(1)(b)(iv) to save harmless any error that might be found to have occurred in the substitution of the static triers.
64The respondent characterizes s. 686(1)(b)(iv) as available to hold harmless even serious errors that result in a loss of jurisdiction, provided the error does not prejudice the accused or result in fundamental defects in the constitution of the jury such that trial jurisdiction is never obtained. The respondent also accepts that this proviso does not forgive decisions that contravene express statutory provisions or breach fundamental rights.
65On the other hand, the respondent points out, s. 686(1)(b)(iv) has been applied where trial judges have permitted or directed procedural steps that the Criminal Code neither permits nor prohibits. The withdrawal of challenges for cause. Pre-vetting of the jury panel. The prejudice inquiry, which s. 686(1)(b)(iv) directs, requires a reviewing court to consider both actual prejudice to the accused and prejudice to the administration of justice on the one hand, and any benefit the error may have conferred to the accused and the absence of objection, on the other.[1]
66Here, the respondent concludes, what occurred was a minor procedural irregularity. The appellant was not denied any fundamental right to choose the method by which his challenges for cause would be tried. He applied for static triers. He got static triers. Changing the static triers on the second day of jury selection did not undermine the impartiality of the selection process or of the jury selected. What was done was not expressly prohibited by the Criminal Code. This is not a case in which trial jurisdiction was never obtained. The trial started with a lawfully constituted jury. No objection was taken at trial, perhaps the most accurate measuring stick by which to determine whether the appellant was prejudiced by what occurred.
The Governing Principles
67Several principles inform the decision on this ground of appeal. Some apply to the jury selection process as a whole, others to the challenge for cause aspect of that process. Yet others define the boundaries within which procedural errors will not cause a trial verdict to be set aside.
68First, as a matter of general principle, it is well established that a trial judge has an inherent jurisdiction to control the jury selection process involving challenges for cause. This discretion is exercised to prevent an abuse of the selection process and to ensure fairness to the parties, as well as to the prospective jurors: R. v. Moore-McFarlane (2001), 160 C.C.C. (3d) 493 (Ont. C.A.), at para. 85; R. v. Noureddine, 2015 ONCA 770, 332 C.C.C. (3d) 114, at para. 38; R. v. Grant, 2016 ONCA 639, 342 C.C.C. (3d) 514, at para. 11; R. v. Murray, 2017 ONCA 393, 347 C.C.C. (3d) 529, at para. 47; R. v. Husbands, 2017 ONCA 607, 353 C.C.C. (3d) 317, at para. 31, leave to appeal refused, [2017] S.C.C.A. No. 364; R. v. Riley, 2017 ONCA 650, 351 C.C.C. (3d) 223, at para. 109, leave to appeal refused, [2018] S.C.C.A. No. 216.
69The discretion or inherent jurisdiction affords some latitude to trial judges to ensure that jury selection proceeds in a fair and efficient manner to select an impartial jury without compromise of the rights of the accused: R. v. Gayle (2001), 154 C.C.C. (3d) 221 (Ont. C.A.), at paras. 52-53, leave to appeal to S.C.C. refused (2002), 159 C.C.C. (3d) vi (note). This is all the more so where the Criminal Code does not specifically address the issue: W.V., at para. 21; see also R. v. Brown (2002), 166 C.C.C. (3d) 570 (Ont. C.A.), at paras. 17-19. Implicit in these authorities is that the Criminal Code is not exhaustive of the trial judge's authority over jury selection.
70The boundaries of this inherent jurisdiction, necessarily lack precise demarcation. But whatever those outer limits may be, it is clear is that this jurisdiction does not extend to permit orders that contradict mandatory Criminal Code requirements: W.V., at para. 22; Noureddine, at para. 38; Murray, at para. 47; Riley, at para. 110; R. v. Swite, 2011 BCCA 54, 268 C.C.C. (3d) 184, at para. 28.
71All this is to say that the jury selection process, with its unforeseen and unforeseeable contingencies, is regulated by statutory provisions, some directory, others mandatory, as well as a common law discretion to fill in the unregulated spaces to ensure fairness to all participants and impartiality in the selection process and in the jury selected.
72Turning next to the static trier procedure put in place to determine the acceptability of prospective jurors challenged for cause.[2]
73The static trier procedure to determine the truth of challenges for cause is invoked on an application by the accused under s. 640(2.1) to have all jurors – sworn and unsworn – excluded from the courtroom until it is determined whether the challenge for cause is true. The discretion to order this exclusion only becomes engaged if the trial or jury selection judge is satisfied that the exclusion is necessary to preserve the impartiality of the jurors.
74An exclusion order under s. 640(2.1) brings subsection (2.2) into play. This subsection governs trial of the challenge for cause where an exclusion order has been made under s. 640(2.1). Section 640(2.2) defines:
i. who tries the challenge;
ii. the issue to be tried; and
iii. the term of the trier's mandate.
75The trial or jury selection judge chooses two triers from the panel of prospective jurors or from persons present in the courtroom. The task assigned to them is to determine whether the challenge is true. And the triers are to do so until 12, 13 or 14 jurors and any alternate jurors are sworn. It is implicit, but not expressly stated in subsection (2.2), that these triers will not become members of the trial jury.
76Section 640 also provides for the eventuality of disagreement between the triers about their verdict on the truth of the challenge. In those circumstances, s. 640(4) permits the presiding judge to discharge the triers and to "direct two other persons to be sworn to determine whether the ground of challenge is true" if the original triers have been unable to agree on their verdict after what the judge considers to be "a reasonable time". The subsection says nothing about whether these replacement triers are to continue for the balance of the selection process.
77Section 640 contains no express provision permitting or requiring a judge presiding over jury selection involving the use of static triers to vet those triers to determine their suitability to perform the task to be assigned to them. Despite this statutory vacuum, this court has held that pre-screening of prospective triers is permissible: Riley, at paras. 120-124.
78Section 640 contains no express provision that permits or prohibits substitution of static triers in circumstances that do not involve their inability to reach a unanimous decision about the acceptability of this prospective juror after a reasonable time.
79The Criminal Code contains provisions that permit verdicts challenged on appeal to be sustained despite errors made in the conduct of a trial. Some are specific to the jury selection process, as for example, ss. 643(3) and 670-672. Others are of more general application, as for example, ss. 686(1)(b)(iii) for errors of law and 686(1)(b)(iv) for "any procedural irregularity at trial".
80Section 643(3) is of no avail here because it does not apply to any failure to comply with s. 640: Noureddine, at paras. 40, 43-44. In a similar way, ss. 670 and 671, which refer to "irregularities" in "the summoning or empanelling of the jury" and "omissions to observe the directions" set out in any Act regulating the jury selection process, have no application where the error deprives an accused of a statutory right or a right to be tried by a lawfully constituted jury: Noureddine, at paras. 40-44; R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.), at p. 33.
81By its terms, s. 686(1)(b)(iv) permits an appellate court to dismiss an appeal from conviction despite a procedural irregularity at trial, provided the trial court had jurisdiction over the class of offence of which the appellant was convicted and the appellate court is of the opinion that the appellant suffered no prejudice by virtue of the procedural irregularity. Under this provision"prejudice" includes actual prejudice to the appellant's ability to defend against the case for the Crown, as well as prejudice to the appearance of the due administration of justice: Husbands, at para. 40; Noureddine, at paras. 47-48, 62-64; Riley, at paras. 70-73.
82Section 686(1)(b)(iv) applies but is not limited to minor procedural irregularities. It also embraces serious procedural irregularities, otherwise amounting to errors of law occurring in cases in which, under existing law, the trial court would lose jurisdiction over the person of the accused, but not over the offence with which the accused was charged: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 16. Procedural irregularities that deny an accused a fair trial amount to a miscarriage of justice and cannot be saved by s. 686(1)(b)(iv): Khan, at para. 27.
83Section 686(1)(b)(iv) is indiscriminate about the source of the procedural irregularity that falls within its compass. No reason in principle removes procedural irregularities in the jury selection process from its potential application.
84Where the procedural irregularity amounts to a failure to comply with a mandatory statutory provision, the proviso in s. 686(1)(b)(iv) will not preserve the result reached at trial: Noureddine, at paras. 57-59; W.V., at paras. 26-27; Swite, at paras. 54-55; Husbands, at para. 41.
85In other instances, whether through the application of s. 686(1)(b)(iv) or otherwise, procedural irregularities that do not contravene mandatory statutory provisions, but rather operate in areas not governed by statutory enactments and do not compromise the accused's fair trial interests or the impartiality of the jury or its selection, will be saved harmless: Gayle, at para. 53; R. v. Katoch, 2009 ONCA 621, 246 C.C.C. (3d) 423, at paras. 55, 58; R. v. Betker (1997), 115 C.C.C. (3d) 421 (Ont. C.A.), at p. 449, leave to appeal S.C.C. refused (1998), 121 C.C.C. (3d) vi (note); R. v. Brown (2005), 194 C.C.C. (3d) 76 (Ont. C.A.), at paras. 50-53.
The Principles Applied
86As I will explain, I would not give effect to this ground of appeal. My conclusion proceeds through a series of steps.
87I begin with what some, perhaps many, might characterize as but a penetrating glimpse into the obvious: taken as a whole, the jury selection provisions of the Criminal Code are not exhaustive. A moment's reflection would convince even the most steadfast adherent to the definitive or all-inclusive nature of a code that the reality is otherwise. No amount of human ingenuity could make provision for every eventuality or contingency which could arise in the selection of jurors to try an allegation of crime.
88Gaps exist. We know, for example, that when rotating triers determine the acceptability of prospective jurors challenged for cause that the judge presiding over jury selection has a discretion to exclude prospective jurors from the courtroom as each individual panel member's acceptability is tested before the rotating triers. Yet there is not a word of this authority in the Criminal Code: see Riley, at para. 62.
89We also accept, as does the appellant, that a judge presiding over jury selection has a discretion, sometimes designated an inherent jurisdiction, to adopt procedures, give directions and make orders about subjects at least to the extent that the Criminal Code does not specifically address the issue. The boundaries within which this discretion operates are not fully delineated. But we insist that what is done be for the purpose of making effective use of court resources, ensuring fairness to all participants in the selection process and empanelling an impartial jury. And that it not breach any mandatory statutory provision.
90At first light, what was done here – the selection of a second pair of static triers – would appear to fall within the sweep of this discretion or inherent jurisdiction with which the presiding judge is endowed. But this will not be so if the substitution contravened any mandatory provision of the Criminal Code.
91Sections 640(2.1) and (2.2) create the static trier procedure to determine the truth of challenges for cause. Section 640(2.2) makes it clear that the persons selected as static triers are to exercise their duties until the full jury, including additional jurors and alternates, have been sworn. The subsection awards exclusive jurisdiction to try the challenge for cause in relation to all the jurors to be empanelled to the triers chosen under the section. But it does so as a matter of status, the need for a designation, in the words of the subsection"those persons so appointed". While the language appears to refer to a one-time-only selection, other factors tend to support the availability of substitutions, yet maintain the exclusive authority of the static triers to decide the question.
92Section 640(4) permits substitution of a new pair of static triers when the chosen triers are unable to agree on their disposition of a challenge after what the judge considers a reasonable time. Indeed, the subsection would authorize selection of further substitutions should subsequent triers not reach a unanimous decision on the acceptability of other prospective jurors.
93In much the same way as the enactment of the static triers scheme by ss. 640(2.1) and (2.2) did not oust the discretion or inherent jurisdiction of a judge to exclude prospective jurors from the courtroom during the trial of challenges for cause by rotating triers, I am satisfied that the inclusion in s. 640(4) does not foreclose substitution of static triers in situations other than an inability to reach a unanimous decision about the acceptability of a prospective juror. In the end, as the appellant wanted, the acceptability of every prospective juror was determined by two static triers.
94The substitution of a second set of static triers did not compromise the appellant's choice of the mode of trial of the challenge for cause. Or the actual or apparent fairness of the jury selection procedure. Or the impartiality of the jurors selected to try the case. What the appellant sought, the appellant got. Thus, no violation of s. 640 occurred. The jury was properly constituted.
95Characterization of what occurred as a procedural irregularity does not alter the conclusion I have reached. Nothing that occurred here caused a loss of jurisdiction over the class of offence charged through an improperly constituted jury. The appellant suffered no actual prejudice. Nor was any apparent prejudice occasioned to the administration of justice. No substantial wrong or miscarriage of justice occurred. Any procedural irregularity that occurred here falls within the scope of the proviso in s. 686(1)(b)(iv).
Ground #2: The Availability of Section 231(6) as a Basis of Liability for First Degree Murder
96The final two grounds of appeal are related. Each has to do with the trial judge's decision, at the urging of the Crown, to leave s. 231(6) of the Criminal Code to the jury as a basis upon which the appellant could be convicted of first degree murder.
97This ground of appeal takes issue with the capacity of the evidence adduced at trial to furnish the air of reality necessary to warrant submission of this basis of liability to the jury. A brief reference to the positions advanced by trial counsel and the trial judge's ruling on the issue will furnish the background necessary to assess the claim.
The Pre-Charge Discussions
98The Crown asked the trial judge to leave two bases of liability for first degree murder to the jury:
i. planned and deliberate first degree murder under s. 231(2); and
ii. criminal harassment first degree murder under s. 231(6).
99In support of the submission that the appellant's liability could be established under s. 231(6), the trial Crown pointed to the evidence about what happened on the morning the deceased was killed. This included the appellant's own testimony in which he acknowledged that his appearance would cause the deceased to be fearful and call the police, and that she was startled when she awakened. The Crown also relied on the prior history between the parties to provide context for what happened on the day of the killing. The deceased's reported expressions of fear. The precautions she took at work and at home to keep safe. The unabated anger of the appellant about the financial demands of the deceased and the amounts of his support obligations. The appellant's frustrations about his injury and inability to work.
100The trial Crown also submitted that the evidence adduced permitted the jury to find that there was conduct amounting to criminal harassment that was distinct from the killing and other events, and that the criminal harassment and murder of the deceased were part of a single, ongoing transaction. The Crown contended that the offence of criminal harassment was complete and the appellant arrestable for it when he unlawfully entered the deceased's home on the morning he killed her.
101Defence counsel resisted submission of s. 231(6) to the jury as a basis upon which the appellant could be found guilty of first degree murder. The predicate offence the appellant committed was breaking and entering the deceased's home, not criminal harassment. And breaking and entering does not engage s. 231(6) of the Criminal Code, or for that matter, any other first degree constructive murder provision.
102It was also the position of the appellant's trial counsel that the evidence adduced at trial did not warrant submission of s. 231(6) to the jury as a basis upon which the jury could find the appellant guilty of first degree murder. This was so, the argument proceeded, for two reasons. There was no evidence of persistent conduct by the appellant. But more importantly, even if there were evidence sufficient to establish criminal harassment, there was no evidence to permit a finding that the criminal harassment and murder were distinct acts as required by the authorities.
The Ruling of the Trial Judge
103The trial judge concluded that the evidence adduced at trial warranted submission of the provision of s. 231(6) to the jury, in addition to the primary basis invoked by the Crown, that the murder was planned and deliberate.
104The trial judge considered the availability of s. 231(6), as the trial Crown advanced it, on the basis of a single act under s. 264(2)(d) rather than as a pattern of persistent conduct. The judge considered the appellant's conduct in unlawfully entering the deceased's home – in the dead of night, armed with a knife, and confronting her in her bedroom with the knife in his hand – in light of the history of their relationship after she left the matrimonial home. Her repeatedly expressed fears of the appellant. The appellant's aggressive conduct towards her on any occasion when they were at the same place at the same time. And the confrontation of August 28, 2012, less than two weeks before the deceased's death.
105The trial judge separated out the essential elements of criminal harassment based on the conduct described in s. 264(2)(d)"engaging in threatening conduct directed at the other person", and concluded that the evidence adduced at trial permitted a properly instructed jury to find that the Crown had proven the predicate offence of criminal harassment.
106In his discussion of the elements of constructive first degree murder, the trial judge noted that the phrase "while committing or attempting to commit an offence under section 264" required that the criminal harassment and murder be "part of the same transaction" or "part of the same series of events". On this issue, the trial judge concluded:
Province's evidence is that from the time he let himself into Underhill's home until she lay dead in her bedroom it was only a matter of minutes. There can be no dispute that the acts had the necessary temporal connection.
The Closing Addresses of Counsel
107Defence counsel addressed the jury first. In responding to the Crown's likely invocation of s. 231(6) as a basis of liability for first degree murder, counsel focused on the failure of the Crown to prove an essential element of criminal harassment; that is to say, the intention to cause the deceased to fear for her safety. It followed from this submission that the appellant could not be found guilty of first degree murder under s. 231(6) for want of proof of an essential element of the predicate offence, and thus of the offence charged.
108The trial Crown made it clear in her closing address that her "primary theory" of liability was that the appellant committed a planned and deliberate first degree murder. She also advanced s. 231(6) as a basis upon which the appellant's guilt of first degree murder was proven and pointed out the evidence on which she relied to establish guilt on this basis.
The Arguments on Appeal
109The appellant contends that the trial judge erred in leaving constructive first degree murder under s. 231(6) as a basis upon which the jury could convict him of the offence charged.
110Under s. 231(6), the appellant says, it is not enough that the criminal harassment and murder are part of a single transaction or series of events to have the murder classified as first degree murder on this basis. In addition to this "single transaction" requirement, the evidence must also establish that the criminal harassment and the murder were distinct acts. The evidence adduced was incapable of supporting this critical finding. The trial judge's ruling makes no mention of it. This is fundamental to all forms of constructive first degree murder. Here, the criminal harassment was integral to and inherent in the killing. This is not good enough and falls well short of what is required as a matter of law.
111In addition, the appellant submits, it is an essential element of criminal harassment that the victim be cognizant of the harassment, and thus feel harassed and fearful for her safety. In this case, the Crown contended that the predicate offence of criminal harassment was established when the appellant entered the deceased's home. This is wrong as a matter of law. The deceased was asleep, and thus could not be harassed or feel fearful for her safety. In combination, the failure of the evidence adduced at trial to provide the support necessary for these findings, as well as the "distinct acts" requirement, should have put paid to any suggestion of this alternative basis of liability.
112The appellant also argues there is evidence that at least one juror relied on this route to liability improperly left. Before rendering its verdict, the jury asked a question about one of the elements for criminal harassment, namely"fear [being] reasonable in all the circumstances". The appellant submits that this question indicates that at least one juror was considering s. 231(6) as a basis for guilt. When a route to first degree murder is improperly left with the jury and the appellant is convicted of that offence, the appellant says, a new trial is necessary.
113The respondent disagrees. No error has been established. The evidence adduced at trial was sufficient to ground the factual findings necessary to establish the essential elements of criminal harassment, and the criminal harassment and unlawful killing were at once distinct acts and part of a single series of events or a single transaction.
114The respondent says that the appellant's entry into the deceased's home in the early morning hours and his confrontation of her in the bedroom fulfilled the requirements of s. 264(2)(d) of the Criminal Code. This was threatening conduct directed at the deceased. And she was aware of this harassment as she awakened to the appellant in her bedroom, armed with a knife, and was startled. On its face, this conduct, in light of the history between the couple, would cause the deceased to fear for her safety and be harassed. Repetitive conduct is not required. A single act is sufficient.
115Further, the respondent argues, the evidence adduced could support a conclusion that the criminal harassment and unlawful killing were discrete acts. This is not a case in which the criminal harassment is subsumed in the act of killing.
116In the alternative, the respondent says, even if s. 231(6) should not have been left to the jury as a basis upon which the appellant could be convicted of first degree murder, the error occasioned the appellant no substantial wrong or miscarriage of justice. This is so, according to the respondent, because the evidence that the murder of the deceased was planned and deliberate was overwhelming.
The Governing Principles
117The principles that inform the decision on this ground of appeal are those that define the essential elements of the offence of criminal harassment when the conduct in issue falls within s. 264(2)(d) of the Criminal Code, those that serve the same purpose where the classification of murder as first degree murder is under s. 231(6), and those that define the limits within which the proviso of s. 686(1)(b)(iii) is available to sustain a verdict rendered at trial.
118First, the offence of criminal harassment.
119The offence of criminal harassment is committed when a person, without lawful authority and knowing that, or is reckless or wilfully blind as to whether another person is harassed, does something prohibited that causes the other person reasonably, in all the circumstances, to fear for their own safety, or the safety of another person whom they know. The "something prohibited" consists of conduct described in s. 264(2), which includes "engaging in threatening conduct directed at the other person or any member of their family."
120The essential elements of criminal harassment where the prohibited conduct falls within s. 264(2)(d) are these:
i. the accused engaged in threatening conduct directed at the complainant or a member of the complainant's family;
ii. the complainant was harassed;
iii. the accused knew or was reckless or wilfully blind as to whether the complainant was harassed;
iv. the conduct caused the complainant to fear for her or his safety or the safety of someone she or he knew; and
v. the complainant's fear was, in all the circumstances, reasonable.
121Threatening conduct need not be repeated in order to violate s. 264(2)(d). A single threatening act directed at the complainant or a member of the complainant's family may constitute criminal harassment. Nor need the conduct itself be harassment, provided it causes the complainant to be harassed: Kosikar, at paras. 20, 22, 26.
122Parliament has not defined the term "harassed" or, for that matter"harassment". The authorities make it clear, however, that it is not enough that the conduct vexes, disquiets or annoys the complainant. What is required is that the conduct "tormented, troubled, worried continually or chronically, plagued, bedevilled and badgered" the complainant: Kosikar, at para. 24, citing R. v. Lamontagne (1998), 129 C.C.C. (3d) 181 (Que. C.A.), at p. 188.
123A final point concerns the nature of the "threatening conduct" under s. 264(2)(d). That conduct must amount to a "tool of intimidation which is designed to instill a sense of fear in the recipient". The conduct should be viewed objectively with due consideration for the circumstances in which it took place and its effect on the complainant: R. v. Burns, 2008 ONCA 6, at para. 2, citing R. v. George, 2002 YKCA 2, 162 C.C.C. (3d) 337, at para. 39; see also R. v. Sim, 2017 ONCA 856, 41 C.R. (7th) 416, at para. 16.
124Second, constructive first degree murder under s. 231(6).
125Section 231 does not create a distinct and independent substantive offence of first degree constructive murder; rather, it classifies for sentencing purposes the crime of murder, defined elsewhere, as first degree murder or second degree murder: R. v. Farrant, [1983] 1 S.C.R. 124, at pp. 140-41; R. v. Harbottle, [1993] 3 S.C.R. 306, at p. 323.
126Section 231 contains several provisions that classify as first degree murder unlawful killings which amount to murder, committed while the accused is also committing or attempting to commit another offence. In general terms, this classification requires proof that:
i. the accused committed or attempted to commit a listed underlying crime (predicate offence);
ii. the accused murdered the victim;
iii. the accused participated in the murder in such a manner that he or she was a substantial cause of the victim's death;
iv. no intervening act of another resulted in the accused no longer being substantially connected to the death of the victim; and
v. the listed crime and the murder of the victim were part of the same transaction; that is to say, the victim's death was caused while the accused was committing or attempting to commit the listed crime as part of the same series of events.
See Harbottle, at p. 325; see also R. v. Magoon, 2018 SCC 14, [2018] 1 S.C.R. 309, at para. 17.
127In s. 231(6) the listed crime or predicate offence is criminal harassment, whether completed or merely attempted. Further, the accused must also intend to cause the victim to fear for his or her own safety or the safety of another person whom the victim knows.
128To satisfy what might be termed the "single transaction" requirement under s. 231(6), summarized as item (v) above, the criminal harassment or attempted criminal harassment and the murder of the victim must be temporally and causally connected so as to form a continuous single transaction: R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at paras. 19, 25, 28, 35. But, as is the case with other forms of first degree constructive murder, the predicate offence and the killing must also be distinct acts: Pritchard, at paras. 3, 27; R. v. Kimberley (2001), 157 C.C.C. (3d) 129, at para. 108, leave to appeal refused, [2002] S.C.C.A. No. 29; R. v. Smith, 2015 ONCA 831, 344 O.A.C. 22, at para. 11; R. v. Parris, 2013 ONCA 515, 300 C.C.C. (3d) 41, at paras. 50-53; R. v. McLellan, 2018 ONCA 510, 362 C.C.C. (3d) 183, at para. 69. Said somewhat differently, the conduct that constitutes the attempted or completed predicate offence – in this case, criminal harassment – and the murder must be distinct and independent acts one from the other, not one and the same: Pritchard, at paras. 27-29; Kimberley, at para. 108; Smith, at para. 11; Parris, at paras. 53, 57.
129Finally, the availability of the proviso in s. 686(1)(b)(iii).
130Reviewing courts have identified two classes of errors that can engage the application of this proviso. The first category is that of "harmless errors". These are errors of a minor nature that have no impact on the verdict entered at trial. The second category is different. It embraces serious errors – mistakes that would justify a new trial, but for the fact that the evidence of the appellant's guilt is so overwhelming that the reviewing court concludes that there was no substantial wrong or miscarriage of justice occasioned by the error: Khan, at paras. 26-31; see also R. v. Brown, 2018 ONCA 481, 361 C.C.C. (3d) 510, at paras. 74-77.
The Principles Applied
131As I will explain, I would not accede to this ground of appeal. I reach this conclusion not because I am satisfied that the trial judge was right in leaving s. 231(6) to the jury as a basis upon which they could find the appellant guilty of first degree murder. To the contrary, I am satisfied that doing so was legally wrong. However, I am satisfied that this error caused the appellant no substantial wrong and did not result in a miscarriage of justice.
132To take first, the error.
133At trial, the Crown took the position that the offence of criminal harassment was complete when the appellant, armed with a knife, unlawfully entered the deceased's home in the early morning hours. At that time, the deceased and two of her children were asleep, unaware of the appellant's presence.
134Recall the essential elements of criminal harassment where the underlying conduct is that described in s. 264(2)(d). Threatening conduct directed at another person or a member of that person's family. Conduct that caused the victim to fear for her safety or the safety of anyone she knew. That the victim was harassed and reasonably feared for her safety or that of her children. On the basis of this theory, there was no evidence upon which a properly instructed jury, acting reasonably, could find that the appellant's conduct amounted to criminal harassment on the basis advanced by Crown counsel at trial.
135For different reasons, the same conclusion follows when we examine the circumstances that unfolded when the appellant confronted the deceased in her bedroom. Even if we assume that the appellant's conduct there amounted to criminal harassment, or at least an attempt to commit criminal harassment (an issue not raised at trial), the air of reality standard necessary to warrant submission of s. 231(6) to the jury as a basis for a finding of guilt of first degree murder remains wanting. Briefly stated, the evidence simply cannot sustain a finding that there was a criminal harassment distinct and independent from the act of killing. The act of criminal harassment and that of killing were one and the same. Nor is there evidence, even in the appellant's own version of events, which could meet the air of reality threshold for a finding that in criminally harassing or attempting to criminally harass the deceased, the appellant intended to cause her to fear for her own or her children's safety as required to engage s. 231(6).
136Despite this error, I am satisfied that submission of this basis of liability to the jury caused the appellant no substantial wrong and occasioned no miscarriage of justice. The primary basis upon which the Crown sought to establish the appellant's guilt of first degree murder was that the murder of the deceased was planned and deliberate. Section 231(6) was presented as an alternative, both in the addresses of counsel and in the charge to the jury.
137The evidence marshalled in support of the submission that the murder of the deceased was planned and deliberate was overwhelming. Extensive preparations. Dark clothing. Possession of and concealing a knife. Driving to the deceased's home in darkness, in the early hours of the morning. Parking a distance away so as not to associate his vehicle with the scene. Entry by use of a key duplicated from one surreptitiously taken from the appellant's son. Quietly entering the house. Closing his daughter's bedroom door. Inflicting a fatal wound that betrayed any bodily movement by the deceased at the time of its infliction. Withdrawing the knife through the same wound track as it entered. Leaving the deceased. Disposing of the knife. Leaving the scene. Never summoning assistance.
138The inquiry from the jury about an element of criminal harassment does not alter my conclusion that the appellant experienced no substantial wrong or miscarriage of justice. The importance of jury questions as an indication of the particular issue the jury is confronting is well established: R. v. W.D.S., [1994] 3 S.C.R. 521, at pp. 526, 528-29; R. v. W. (D.), [1991] 1 S.C.R. 748, at pp. 759-60. However, the inquiry must be assessed in the circumstances of this case. Constructive first degree murder under s. 231(6) was improperly left with the jury in the face of an overwhelming case against the appellant on the basis that the murder was planned and deliberate. That was the principal route to liability, made clear in both the Crown's closing address and the charge to the jury. In my view, based on all the evidence, a reasonable and properly instructed jury would inevitably convict the appellant of first degree murder: Khan, at para. 31; Brown, at para. 76. Therefore, s. 686(1)(b)(iii) applies.
139Heeding to the Supreme Court of Canada's advice in R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at paras. 44-46, the Crown should have carefully considered whether to pursue an alternate route to liability where the evidence for that route was tenuous. Decisions to pursue routes to liability based on tenuous evidence can increase the length and complexity of the trial and burden the jury deliberation process. Even further, they put at risk the sustainability of verdicts rendered at trial. These risks were present here by leaving with the jury a route to first degree murder pursuant to s. 231(6) where the evidence supporting that theory was strained and wanting.
140I would not give effect to this ground of appeal.
Ground #3: Jury Instructions on Section 231(6)
141The final ground of appeal alleges non-direction amounting to misdirection in the instructions to the jury on the constituent elements of constructive first degree murder under s. 231(6).
142My conclusion on the second ground of appeal – that s. 231(6) should not have been left to the jury as a basis upon which the appellant could be found guilty of first degree murder – renders it unnecessary for me to examine the correctness of the trial judge's instructions to the jury to determine whether legal error occurred. Suffice it to say that, although it may not be necessary in all cases of constructive first degree murder to add what might be described as a "distinct acts" direction to the current instructions, trial judges would be well advised to canvass this issue with counsel at the pre-charge conference and decide whether the circumstances of the case warrant such an inclusion in final instructions to the jury.
Conclusion
143For these reasons, I would dismiss the appeal.
Released: July 31, 2019
"David Watt J.A."
"I agree. Grant Huscroft J.A."
"I agree. L.B. Roberts J.A."
Footnotes
1In its factum, but not in oral argument, the respondent also relied on s. 686(1)(b)(iii).
2In amendments to s. 640 of the Criminal Code contained in S.C. 2019, c. 29, which came into effect September 19, 2019, the trier of the truth of challenges for cause will be the presiding judge.
