Her Majesty the Queen v. McCullough
[Indexed as: R. v. McCullough]
Ontario Reports Court of Appeal for Ontario Huscroft, Miller and Harvison Young JJ.A. February 3, 2021 154 O.R. (3d) 171 | 2021 ONCA 71
Case Summary
Criminal law — Charge to jury — Post-offence conduct — Accused admitting to stabbing victim and dismembering body — Accused claiming that stabbing was reaction to sexual advance and that killing was not planned or deliberate — Trial judge not providing instruction to jury on post-offence conduct — Accused's appeal from conviction dismissed — Post-offence conduct evidence demonstrated that accused acted in cool and calculated manner — Trial judge ensured that jury was aware of alternative explanations for conduct to guard against inference of guilt.
Criminal law — Evidence — Admissibility — Prior discreditable conduct — Propensity reasoning — Accused admitting to stabbing victim and dismembering body — Accused claiming that stabbing was reaction to sexual advance and that killing was not planned or deliberate — Trial judge admitting evidence of rap lyrics by accused and statements to psychiatric nurse suggesting desire to commit cannibalism — Accused's appeal from conviction dismissed — Probative value of evidence outweighed prejudicial effect — Evidence disclosed specific propensity in regard to dismemberment and was probative of intention and voluntariness.
Criminal law — First degree murder — Planned and deliberate — Accused admitting to stabbing victim and dismembering body — Accused claiming that stabbing was reaction to sexual advance and that killing was not planned or deliberate — Trial judge admitting evidence of rap lyrics by accused and statements to psychiatric nurse suggesting desire to commit cannibalism — Trial judge not providing instruction to jury on post-offence conduct — Accused's appeal from conviction dismissed — Post-offence conduct evidence demonstrated that accused acted in cool and calculated manner — Trial judge ensured that jury was aware of alternative explanations for conduct to guard against inference of guilt — Cannibalism evidence disclosed specific propensity in regard to dismemberment and was probative of intention and voluntariness.
The accused called 911 to report a body in his hotel room and to state that he wanted to turn himself in. When the police arrived they found a torso stuffed into a large hockey bag and various body parts in a smaller duffle bag. A piece of a leg bone was in a resealable plastic bag. During a search of the accused's home the police found rap lyrics that referred to chopping up people and drinking blood. The accused admitted that he wrote the lyrics more than a year prior to the offence. He testified that he and the victim were staying in the hotel as part of a plan to commit a home robbery invasion. When the victim made sexual advances toward him, he "freaked out" and grabbed his knife and started stabbing. He remembered stabbing the victim twice before blacking out and then awoke to find the victim's dismembered body in the bathtub. He told police that he was acting in self-defence but explained at trial that he had lied to police about that. The accused had been seeing a psychiatrist before the killing as part of a psychosis intervention program. A psychiatric nurse testified that the accused told him that he had killed cats and would consider eating human flesh. The Crown's theory was that the nurse's evidence and the rap lyrics demonstrated that the accused had a fantasy about killing and dismembering a person and that taking the victim to the hotel was part of a plan to fulfil that fantasy. Counsel for the accused conceded to a charge of manslaughter but argued that the accused did not intend to kill or dismember the victim and that he did so only suddenly in an immediate reaction to an unexpected sexual advance. The Crown referred to the accused's post-offence conduct of dismembering the victim, extensively cleaning the hotel room, attempting to dispose of the body, lying to the police and remaining calm the day after the killing. The trial judge gave no specific instruction to the jury on post-offence conduct. The trial judge did admit evidence of the accused's desire to commit cannibalism, but instructed the jury that they could not find an act of cannibalism. The accused was convicted of first-degree murder and committing an indignity to a human body. The accused appealed.
Held, the appeal should be dismissed.
The trial judge made no error regarding the post-offence conduct evidence. Such evidence demonstrated that the accused acted in a cool and calculating manner after he killed and dismembered the victim. Not only could the evidence be used to refute the defence's "frantic reaction" narrative, as a matter of common sense and experience it was also relevant to the inference of planning and deliberation. That inference arose most clearly from the accused's action in dismembering the body and saving a bone fragment. The Crown suggested that the accused kept the bone fragment as a trophy or souvenir of the killing. Although it was open to the trial judge to instruct the jury that they should not infer guilt simply from the apparent oddity of the accused's actions, the question was not whether the charge could be improved but rather whether the jury was charged properly, and it was. There was no danger that the jury might wrongly conclude that the accused was guilty simply because his actions following the killing and dismemberment were "bizarre". Nor did the trial judge err in not providing a caution concerning the risks of demeanour evidence generally. It was clear that the trial judge met her primary responsibility in regard to the post-offence conduct evidence by ensuring that the jury was aware of alternative explanations for that conduct to guard against the danger that the jury might jump to an inference of guilt.
The trial judge did not err in admitting evidence of the accused's desire to commit cannibalism. As a practical matter, it was not possible to edit the accused's statement about cats from his statement about what he wanted to do to a human being. The trial judge recognized the potential for prejudice but concluded that it was outweighed by the probative value of the evidence and that the prejudice could be addressed with a proper limiting instruction. As for the rap lyrics, the trial judge acknowledged that they were open to different interpretations, but it was a reasonable interpretation of the accused's lyrics that they meant what they literally said. Having admitted the accused's statements to the nurse and the rap lyrics on the issues of motive, intention, and planning and deliberation, the trial judge also addressed whether the evidence was admissible on a propensity basis. The trial judge found that there was insufficient evidence of cannibalism to place the allegation before the jury, but the judge also found that the evidence disclosed a specific rather than general propensity in regard to the dismemberment and that the statements to the nurse and the rap lyrics were probative both of the accused's intention and the voluntariness of his actions.
Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii)
The Appeal
APPEAL from convictions for first degree murder and committing an indignity to a human body entered on April 25, 2016 by Pomerance J., sitting with a jury.
Counsel: Lance Beechener, for appellant. Elise Nakelsky, for respondent.
The judgment of the court was delivered by HUSCROFT J.A.: —
Overview
1There is no doubt that James McCullough killed Alexander Fraser. He admitted to stabbing him numerous times and dismembering his body. The issues at trial were whether he intended to do so; whether he was provoked; and whether the killing was planned and deliberate.
2The appellant was convicted of first-degree murder and committing an indignity to a human body. He appealed both the convictions and the sentence but has abandoned the sentence appeal. He raises two issues in relation to his convictions. First, he argues that the trial judge erred in failing to instruct the jury concerning his post-offence conduct. Second, he argues that the trial judge erred in admitting evidence of his desire to commit cannibalism, evidence he says was prejudicial. The appellant contends that, as a result of these errors, he was denied his right to a fair trial.
3In my view, the trial judge made no such errors. I would dismiss the appeal for the reasons that follow.
Background
4The background facts are not in dispute.
5On September 8, 2013, following an evening spent drinking, the appellant and his friend Alexander Fraser decided to take a cab from Orangeville to London and rent a hotel room. A cab was dispatched to the appellant's home and the appellant informed the driver that he and Fraser were heading to Motel 6 in London. The appellant gave the cab driver $320 cash for the trip. Shortly after leaving for London, the appellant directed the cab driver to return to his home and to wait for him. The appellant exited the cab and entered his home. He returned to the cab a few minutes later carrying two bags -- a large hockey bag and a smaller duffle bag. The cab then proceeded to London.
6The appellant and Fraser spoke with the cab driver throughout the trip. The appellant insisted that Fraser call him by the pseudonym, "Josh Childress", rather than call him by name, but Fraser often referred to the appellant as James. Fraser told the driver he was drunk and asked her to stop the cab several times during the trip in order to allow him to urinate.
7Although the appellant and Fraser were driven to Motel 6 and entered the motel, they did not stay there. They left that motel and headed to the nearby Ramada Inn. The appellant spoke with the clerk. Fraser was behind him, carrying both bags. The Ramada was full so they went to the Travelodge, where they got a room. By this point, it was around midnight. The Travelodge clerk testified that the appellant gave the name Josh Childress, did not provide any identification and paid for the room in cash. The two men went to their room, each carrying one of the bags.
8Early the following morning, the appellant registered for another night at the hotel and asked the clerk to inform housekeeping that he did not need to have his room cleaned. That afternoon, he sent a text message to a college friend, Lucas Verscheure, inviting him to the hotel, asking him to bring shoes and telling him to come alone. Verscheure attended but brought along a mutual friend, Colby McGee. The appellant met them at the front door of the hotel and took them to his room. Verscheure described the appellant's behaviour during the visit as highly disturbed and said that his behaviour became weirder and weirder. Verscheure did not consume alcohol or drugs during the visit, but McGee had beer and used cocaine with the appellant.
9The appellant told the men that the two bags in the room contained stolen documents he needed to dispose of and offered Verscheure $600 to drive him to North Bay to dump the bags. The appellant then informed Verscheure that there were some body parts in the bags and asked him to help dump the bags in the Peterborough area or in London. Verscheure refused and he and McGee left the hotel.
10Later that afternoon, the appellant called his uncle and told him that he had killed someone. His uncle described the appellant as distraught and in tears. He was concerned that the appellant was contemplating suicide and told him to call a lawyer and the police. The appellant called 911 at approximately 7:56 pm and said that there was a body in his room. He said that he had spoken with a lawyer, was unarmed and wanted to turn himself in. He provided no further information.
11The police entered the hotel room. They found an empty bottle of tequila and empty beer cans along with some full beer cans in the refrigerator; cigarette butts; and empty take-out bags from Kentucky Fried Chicken and Wendy's with receipts dated that day. Two bags, two backpacks and two belts were on the floor.
12The police found Fraser's torso stuffed into the large bag. His head, legs, arms and penis were in the smaller duffle bag along with a 20 cm knife. The knife was in a paper bag and the head and penis were in a garbage bag. A piece of a leg bone was in a resealable Ziploc bag in one of the two backpacks. A small arm muscle was the only part of Fraser's body that was missing.
13The second backpack had personal items belonging to Fraser as well as the appellant's knife sharpener. No cellphones were found. The Crown suggested that there was inculpatory evidence on the appellant's cellphone and that he gave it to his mother before the police arrived, but the appellant denied this.
14Police examination of the room suggested that Fraser had lain between the two beds for a period of time and had been dismembered in the bathtub. He had been stabbed 29 times before being dismembered. There was no blood on the appellant's clothes, save for a spot of blood on the back of his pants. There was no damage to Fraser's clothes, suggesting that he had not been wearing them when he was stabbed. Fraser had both marijuana and a substantial amount of alcohol in his system, well over the legal limit for driving.
The Evidence
Psychiatric evidence
15The appellant had been seeing a psychiatrist before the killing as part of a psychosis intervention program. A psychiatric nurse, Brendan Carmichael, met with him on several occasions. Carmichael testified that the appellant told him of the need to slay celebrities as a sacrifice and told him that he had killed three cats and had been fascinated when he cut one of them open. The appellant told him he had thought of doing this to a human and would consider eating human flesh, expressing the view that by doing so you could acquire a person's traits. However, the appellant told Carmichael that he had no plans to do so and Carmichael thought that it was a fantasy.
16Carmichael testified that the appellant told him on another occasion prior to the killing that he had exaggerated some things in an attempt to appear "badass". He had killed only one cat, not three, and had only imagined killing and eating a human.
The rap lyrics
17During a search of the appellant's home the police found the following rap lyrics written by the appellant:
U no its me when i come thru the scene, homie Another day another dollar my only dream is get [illegible] Yall faggotz soft being rich is only dream Only things in my dreams is your girl and Your money, homie thinks i'm joking but aint a damn thang funny, Ill dig ur pockets break your jaw and ram a knife thru your tummy, you aint been thru half the shit I been through, Ill go through, Your whole crew, a routine Im used to, chop em up mail their parts to you, Im so fucking sick my favurite drink is the blood of a jew, always in the kitchen cooking but its never stew, homie pass the pipe time for this rock to brew
The appellant's testimony
18The appellant admitted that he wrote the rap lyrics over one year prior to the offence and that the lyrics referenced "chopping up" people and drinking blood. He described the lyrics as "death rap", which was designed to be as violent as possible, but he denied that the reference to stew was a reference to cooking body parts. He said it was a reference to cooking cocaine into crack cocaine but added that he had never in fact cooked crack cocaine.
19The appellant said that he and Fraser planned to commit a home invasion robbery in London and had gone there for that reason. This explained the cab ride and hotel stay, the empty duffle bags, paying for everything with cash and using the alias Josh Childress. The appellant testified that he regularly carried a knife in his backpack because he was a drug dealer and that his backpack also included a knife sharpener along with a bottle of tequila, cocaine and two belts.
20The appellant testified that he and Fraser chatted, drank and smoked after they checked into their hotel room and that he consumed some cocaine. He took a shower about one hour later and when he went outside the bathroom to get his towel, he saw Fraser standing there nude. According to the appellant, Fraser informed him that he was attracted to him and wanted to have sex. The appellant said that he "freaked out" and that he grabbed his knife and started stabbing Fraser after Fraser attempted to grab his penis. The appellant said he remembered stabbing him in the chest only twice before blacking out. The appellant testified he had no memory of his actions after this. He said that he awoke to find Fraser's dismembered body in the bathtub. He was upset and his first reaction was to attempt to cover it up. He cleaned the room, put the body parts into the two bags and Fraser's personal items into the backpacks. At this point he sought the assistance of Verscheure.
21The appellant gave a statement to the police, which was not in evidence, but portions of the statement were put to him in cross-examination. The appellant told the police that he had acted in self-defence after Fraser brandished the knife and attempted to sexually assault him. The appellant said: "He [Fraser] was like some fucking monster, rapist. I don't even know how to describe. I was scared." At trial, however, the appellant testified that the narrative given to the police was untrue. He explained that he tried to make Fraser look as terrible as possible because he was trying not to take any responsibility. In particular, he claimed that he omitted to mention he was naked because he didn't want the police to think "there was anything sexual going on". He said that he was lying in order to persuade the police he had acted in self-defence and that the death was an accident.
The Arguments at Trial
The defence theory
22Counsel for the appellant conceded to the charge of manslaughter but argued that the appellant did not intend to kill or dismember Fraser and that he did so only suddenly, in immediate reaction to an unexpected sexual advance and sexual attack.
23Counsel said that the appellant made his comments to Nurse Carmichael in an attempt to obtain a personality disorder diagnosis, which he wanted in order to obtain disability benefits from the Ontario government, and that his comments did not relate to or demonstrate a plan to kill Fraser. Nor did the rap lyrics demonstrate a plan to kill him. They were a red herring. The appellant was a drug dealer and carried a knife and knife sharpener because of his dangerous occupation.
24The trip to London was explained by the appellant's testimony that he and Fraser had gone there to party, perform a home invasion and to go shopping. The bags were for use in the home invasion and one bag was also used to carry a box of beer. The intention to perform the home invasion explained the appellant's use of the pseudonym Josh Childress.
25The absence of cuts on Fraser's clothing supported the appellant's testimony that he was naked when he was stabbed and the absence of any significant blood on the appellant's clothing suggested that he was also naked. Counsel argued that the appellant's actions in cleaning up the scene, putting the body parts into the bags and calling his uncle and Verscheure demonstrated a frantic reaction rather than a prior plan.
The Crown's theory
26The Crown argued that Nurse Carmichael's evidence and the rap lyrics demonstrated that the appellant had a fantasy about killing a person and dismembering him. The appellant had obtained a work visa and was going to Australia shortly; he planned to kill and dismember Fraser before he left.
27The plan involved taking Fraser to London, paying for the trip in cash, and using a pseudonym to avoid detection. The appellant had Fraser carry the bags into the motel so that if he were caught, he could claim that Fraser had brought them and that Fraser had intended to kill him. The Crown argued that the appellant brought the knife and knife sharpener for the purpose of dismembering Fraser. The belts were brought to restrain him if necessary.
28The Crown theorized that Fraser did not live long after he arrived in the hotel room. He was stabbed while he lay between the two beds and was then dragged to the bathtub, where he was dismembered. The Crown argued that the appellant kept a piece of bone from Fraser's leg in a Ziploc bag as a souvenir, then cleaned the hotel room to get rid of the evidence.
29The Crown argued that the appellant lied to the police and at trial and that he had never blacked out. The sexual attack was a story he created to deny his plan to kill and dismember Fraser.
Issues on Appeal
30The appellant raises two issues on appeal. First, he argues that the trial judge erred in failing to caution the jury about his post-offence conduct and the limited use to which it could be put. He submits that the judge had to inform the jury that this evidence had no probative value in relation to the appellant's level of culpability and should have cautioned the jury concerning what he describes as bizarre demeanour evidence. This argument was the focus of the appellant's submissions at the hearing. Second, the appellant argues that the trial judge erred in admitting evidence of his desire to commit cannibalism, evidence that he says was prejudicial.
The Post-Offence Conduct Evidence
31The post-offence conduct in question includes the following:
(1) the dismemberment of the victim; (2) the extensive cleanup of the motel room; (3) the attempt to dispose of the body; (4) the appellant's lies to the police and his acquaintances; and (5) the appellant's calmness and ability to make rational decisions the day after the killing.
32It also includes conduct the appellant characterizes as demonstrating his bizarre demeanor following the offence, including:
(1) eating two fast food meals in the motel room with the dismembered body of the victim beside him; (2) laughing during the 911 call; and (3) putting a piece of the victim's leg bone into a resealable Ziploc bag.
The appellant's position
33The appellant notes that the Crown referred to the post-offence conduct evidence throughout her cross-examination of the appellant. The Crown also referred to the appellant's post-offence conduct throughout her closing address, emphasizing that the appellant ate fast-food meals alongside the bags containing the dismembered remains of Fraser and that he kept a piece of Fraser's leg bone, an action the Crown described as akin to keeping a trophy or souvenir of having lived out his fantasy. The appellant complains that the jury was given neither a post-offence conduct caution nor a no-probative-value instruction in respect of this evidence. He says that in the pre-charge conference the trial judge specifically asked the Crown, but not the defence, if she wanted a post-offence conduct instruction.
34The appellant argues that the probative value of the post-offence conduct was equivocal at best, yet the jury would have been tempted to focus on this evidence -- especially the dismemberment and the appellant's ability to eat beside the dismembered body -- and it could have played a powerful role in the jury's deliberation. The appellant submits that an instruction to the jury cautioning them about this evidence and explaining to them the limited uses to which it could be put was required. The lack of any instruction on the post offence conduct is a major error that requires a new trial.
The respondent's position
35The Crown acknowledges the absence of a specific instruction on post-offence conduct but says that none was necessary: the trial judge mitigated the main reasoning risk associated with post-offence conduct by instructing the jury to consider alternative explanations for the appellant's conduct and carefully reviewing the alternative explanations provided by the appellant. The appellant's conduct after killing Fraser was relevant to ascertaining his intent and to whether the murder was planned and deliberate; a no-probative-value instruction was not warranted. Although a caution concerning the risks of demeanour evidence would have been ideal, the failure to give one had minimal impact.
The principles governing review of the trial judge's instructions
36The general principles governing review of the trial judge's instructions to the jury were recapitulated by Moldaver J. in R. v. Calnen, [2019] 1 S.C.R. 301, [2019] S.C.J. No. 6, 2019 SCC 6, at paras. 8-9:
An appellate court undertakes a functional approach in reviewing a jury charge, asking whether the charge as a whole enabled the trier of fact to decide the case according to the law and the evidence: R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 49; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32. As Bastarache J. wrote in R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 30:
The cardinal rule is that it is the general sense which the words used must have conveyed, in all probability, to the mind of the jury that matters, and not whether a particular formula was recited by the judge. The particular words used, or the sequence followed, is a matter within the discretion of the trial judge and will depend on the particular circumstances of the case.
In short, the test is whether the jury was properly, not perfectly, instructed: R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 62. At the end of the day, the overriding question is whether the jury was properly equipped to decide the case absent a limiting instruction against general propensity reasoning.
37The dangers posed by post-offence conduct evidence are well known. The question is, did the trial judge provide the jury with what they needed to decide the case according to the law and the evidence?
Discussion
38The essential premise of the appellant's position -- that the appellant's post-offence conduct was not probative of his level of culpability -- is, as the Crown submits, "simply incorrect". Post-offence conduct is a form of circumstantial evidence that may be relevant to a particular issue. In this case, regardless of the appellant's concession to manslaughter, the impugned post-offence conduct was relevant to the issues of intention and planning and deliberation and the trial judge made no error in instructing the jury in regard to it.
39The appellant argued that he was distressed and remorseful for having killed his friend -- that his post-offence behaviour was a frantic reaction to what had suddenly happened. The Crown's closing can be understood as highlighting the inconsistencies with this narrative. But more than this, by emphasizing the appellant's calm and calculated actions following the killing, the Crown suggested that the appellant was untroubled by what he had done -- that, far from being a frantic reaction to what the defence characterized as "an attempted sexual assault", the appellant's post-offence conduct logically suggested that the killing was intentional, planned and deliberate. This suggestion was made plain by the question the Crown posed to the jury in her address:
Use your good common sense. Does that sound like a man who is distressed and remorseful for killing his friend? Or does it sound like a man who cold bloodedly killed his friend for his own twisted interest and enjoyment. And who, therefore, has no problem sitting and enjoying a couple of meals beside his friend's dismembered body or has any problem with drinking Tequila from a bottle splattered with his friend's blood.
40The Crown fairly put this suggestion to the appellant in cross-examination and he denied it:
Q. I'm going to suggest, sir, you would never, if you had been distraught, overwhelmed, frantic because you're so upset that you killed you [sic] friend accidentally or in a drunken rage, I'm going to suggest you would never have been able to eat not one but two meals while sitting in the hotel room with his dismembered remains during the course of that day? A. Well I was hungry, so. Q. So you clearly weren't bothered enough by [the deceased's] death or dismemberment to have lost your appetite? R. Not everyone loses their appetite when they're under stress. That only happens in some people. S. I'm going to suggest, sir, you were quite interested in eating and concerned about eating throughout the course of that day because [the deceased's] murder didn't bother you at all? T. No, 'cause I didn't know what jail was like. I didn't know when I'd get my next meal and all that. U. I'm going to suggest to you, sir, it didn't bother you at all because you had wanted to kill him? A. No.
41The appellant submits that the trial judge ought to have instructed the jury that the post-offence conduct evidence could not be used to establish planning and deliberation; it could be used only to rebut the appellant's narrative of a frantic reaction.
42This submission must be rejected.
43The admissibility of post-offence conduct evidence and the formulation of limiting instructions are governed by the same principles that govern circumstantial evidence generally: R. v. White, [2011] 1 S.C.R. 433, [2011] S.C.J. No. 13, 2011 SCC 13, at para. 31, per Rothstein J. It is well established that post-conduct evidence may be relevant not only to contradict the defence narrative, but also to prove intention and planning and deliberation: see, e.g., R. v. B. (S.) (2018), 143 O.R. (3d) 81, [2018] O.J. No. 5186, 2018 ONCA 807; R. v. McLellan, [2018] O.J. No. 2941, 2018 ONCA 510, 362 C.C.C. (3d) 183, leave to appeal to S.C.C. refused [2019] S.C.C.A. No. 338; R. v. Aravena, [2015] O.J. No. 1910, 2015 ONCA 250, 333 O.A.C. 264, leave to appeal to S.C.C. refused [2015] S.C.C.A. No. 497 (Aravena), [2015] S.C.C.A. No. 509 (Gardiner), [2015] S.C.C.A. No. 516 (Mather); R. v. Khan, [2007] O.J. No. 4383, 2007 ONCA 779, 230 O.A.C. 174; and R. v. MacKinnon (1999), 43 O.R. (3d) 378, [1999] O.J. No. 346, 132 C.C.C. (3d) 545 (C.A.).
44In light of these authorities, there was nothing improper about the Crown's closing argument and nothing inappropriate about the jury being allowed to draw an inference of intention, planning and deliberation from the substantial body of post-offence conduct evidence. The evidence complemented the considerable body of pre-offence conduct. The post-offence conduct evidence demonstrates that the appellant acted in a cool and calculating manner after he killed and dismembered Fraser -- not franticly, as he claimed. Not only could this evidence be used to refute the defence's "frantic reaction" narrative; as a matter of common sense and experience it was also relevant to the inference of planning and deliberation. This inference arises most clearly from the appellant's action in dismembering Fraser's body and saving the bone fragment. Moreover, the defence relied on other aspects of the appellant's post-offence conduct to suggest the absence of a plan. There was no basis to limit the jury's consideration of this evidence in the manner suggested by the appellant.
45The appellant emphasized that, during the pre-charge conference, the trial judge stated, and trial counsel agreed, that many aspects of the "after-the-fact" conduct were of no probative value if the appellant admitted to manslaughter -- including acts of concealment, cleaning up the room and so on -- as they were equally likely to reflect cognition of manslaughter as murder.
46The trial judge's remarks in the pre-charge conference reflected what appears to have been a shared understanding that "after-the-fact" conduct was referring only to the post-offence conduct that supported an inference of consciousness of guilt. No unfairness resulted from this shared understanding. It is clear from the discussions concerning the post-offence conduct evidence -- and in particular the dismemberment and bone fragment evidence -- that it was accepted that the post-offence conduct evidence could be used to support inferences other than consciousness of guilt. The appellant's actions following the killing were properly addressed by Crown counsel in her closing and by the trial judge in her charge.
No special caution was required
47The appellant focuses on three aspects of his post-offence conduct that he characterizes as bizarre: evidence that he laughed during the 911 call; ate two fast-food meals alongside the dismembered body of the victim; and put a piece of the victim's leg bone into a resealable Ziploc bag. He submits that the need for a caution concerning this evidence is clear from the findings from the inquiry into the wrongful conviction of Guy Paul Morin. Accused persons may act strangely or do stupid things following a traumatic experience. Or their behaviour may simply appear to be different from normal behaviour -- a matter that is difficult to assess in any event given different cultural backgrounds and possible mental health issues.
48In my view, it was not necessary to caution the jury specifically concerning the "bizarre" aspects of the appellant's post-offence demeanour.
49The appellant's alleged laughter was not significant evidence. He denied laughing and neither party referred to the matter in their closing addresses.
50As for keeping a bone fragment in a Ziploc bag, the Crown did not rely on this simply as evidence of bizarre behaviour or as post-conduct evidence that indicated consciousness of wrongdoing. The Crown suggested that the appellant had kept the bone fragment as a trophy or souvenir of the killing. The appellant denied that it was a souvenir, testifying that he put the bone fragment in the Ziploc and into his backpack because he was trying to get rid of evidence and "wasn't thinking straight". The trial judge instructed the jury that this evidence had to be considered in determining whether the killing had been intentional and reminded them of the alternative explanations for this evidence. Trial counsel expressed no concerns about how this evidence was handled, and I see no basis to impugn the trial judge's instructions on appeal.
51The evidence that the appellant ate two meals alongside the dismembered remains of the victim is bizarre but, again, it was not proffered as evidence that the appellant was more likely to be guilty simply because his actions were bizarre or abhorrent, nor was it proffered as post-conduct evidence that indicated consciousness of wrongdoing. Instead, as with the other evidence showing that the appellant acted calmly following the killing and dismemberment, the evidence that the appellant ate two meals alongside the dismembered remains of the victim countered the appellant's narrative that he was distraught and overwhelmed following the killing and logically supported the inference invited by the Crown that the killing was intentional, planned and deliberate. It would have been wrong for the judge to have cautioned the jury not to consider it regardless of whether it could be characterized as "bizarre".
52It was not disputed that the appellant killed Fraser and dismembered his body. All that was at issue was whether the killing was intentional, and if so, whether it was planned and deliberate. The appellant's behaviour in putting the bone fragment into a Ziploc bag and eating fast-food meals beside the dismembered remains of the victim was probative of these issues. Although it was open to the trial judge to instruct the jury that they should not infer guilt simply from the apparent oddity of the appellant's actions, the question is not whether the charge might have been improved; the question is whether the jury was charged properly.
53I am satisfied that it was. There was no danger that the jury might wrongly conclude that the appellant was guilty simply because his actions following the killing and dismemberment were "bizarre". Indeed, it is possible that an instruction as to the bizarre nature of these particular actions may have prejudiced the appellant by highlighting them. Perhaps that is why no such instruction was requested. In any event, the trial judge did not give such an instruction and did not err in not doing so.
54Nor did the trial judge err in not providing a caution concerning the risks of demeanour evidence generally. The evidence of the appellant's demeanour following the killing did not depend on witnesses' powers of observation and interpretation. The subjective interpretation risk associated with demeanour evidence therefore did not arise. A general instruction on demeanour evidence might have been "ideal", as the Crown suggested, but it was not necessary. In any event, even assuming that the trial judge erred in failing to provide such an instruction, in my view the error would be inconsequential and the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 would apply. The relevance of the appellant's actions following the killing to the issues of intention and planning and deliberation was clear and straightforward, and the jury was aware of the alternate explanations. There was no substantial wrong or miscarriage of justice.
The trial judge properly instructed the jury about alternative explanations
55The trial judge's primary responsibility in regard to the appellant's post-offence conduct evidence was to ensure that the jury was aware of alternative explanations for that conduct in order to guard against the danger that the jury might jump to an inference of guilt. It is clear that she did so. For example, concerning the dismemberment -- which the defence conceded was relevant to planning and deliberation -- the trial judge instructed the jury as follows:
You may consider the act of dismemberment. Was this part of the original plan that was carried out? Had he planned to dismember the body after killing Mr. Fraser? If so, is this evidence that the plan was actually implemented? Or was the dismemberment something that was not planned. Was it a panicked reaction to the realization that he had killed his friend and he did not wish to be discovered with the body? If the decision to dismember the body only arose after the killing, then it was not a planned event and does not shed light on whether the murder itself was planned and deliberate.
56With respect to the appellant's efforts to clean up, the trial judge instructed the jury:
The same may be said of the decision to clean up the room and remove visible signs of blood. Was that part of an original plan to kill Alex Fraser? Or was that an after-the-fact reaction? It is for you to decide.
57As for the appellant's decision to keep a bone fragment in a Ziploc bag, the trial judge instructed the jury:
Was this a souvenir that Mr. McCullough was keeping to remind himself of the murder? If so, does that suggest that the killing was intentional? In answering the question, consider Mr. McCullough's testimony that he kept the shard of bone as part of his effort to clean up the scene. He clearly did clean up the scene and was sufficiently successful that very little blood was visible to the naked eye. Is that a reasonable explanation? That is a question for you to decide.
58The trial judge was fair and balanced in her treatment of the evidence. She ensured that the jury was aware of alternative explanations for the conduct in question. Nothing more was required.
The trial judge's process
59I conclude my consideration of the appellant's arguments with these observations.
60This is yet another case in which jury instructions have been impugned on appeal, despite trial counsel having raised no objection when the charge was made. As always, this court acknowledges that responsibility lies with the trial judge to get the charge right. But in this case not only did experienced trial counsel not object to the charge that is now impugned; she was consulted at every step in a cooperative process employed by the trial judge in crafting that charge.
61There is no merit to the appellant's submission that the trial judge treated the parties unequally by asking only the Crown whether she wanted a post-offence conduct instruction. The trial judge sought input from both counsel on the matter and simply raised the post-offence conduct instruction as an example of the input she sought from both counsel.
62The trial judge provided the parties with a draft of her charge and reviewed the draft point by point, seeking and obtaining their comments and submissions, and ultimately, their agreement.
63The trial judge informed the parties that she would instruct the jury that they must consider the evidence in an objective and dispassionate manner, free of any emotional reaction to "unusual", "graphic" and "potentially disturbing" evidence, and that they must analyze the case based on logic, common sense and good judgment. Defence counsel indicated that she was "very content with that". Finally, the trial judge asked the parties whether they required anything further -- whether there were "any items on your shopping lists that we haven't addressed or anything in particular that you would like to request". Both the Crown and defence stated that they needed nothing further.
64The result was a charge that should have satisfied both parties and surprised neither. There was no reason to object to the charge and there is no basis to impugn the charge on appeal.
The Evidence of Cannibalism
65The appellant argues that the trial judge erred in admitting evidence of his desire to commit cannibalism. It was not relevant to motive because it would be pure speculation to find that the appellant had committed the offence in order to eat the victim, as there was no evidence of cannibalism having occurred. The evidence was prejudicial and should have been edited out of the nurse's statement. Additionally, the appellant argues, the rap lyrics were prejudicial and should have been excluded as a whole, as there was a very weak connection between the content of the lyrics and the offences with which the appellant was charged.
66The starting point for assessing this argument is that this was evidence of bad character/extrinsic misconduct and as such it was inadmissible if proffered to show only that the appellant was the sort of person likely to have committed the offence. But bad character evidence is admissible if it is relevant and material, is not otherwise covered by an exclusionary rule, and its probative value outweighs its prejudicial effect: R. v. T. (J.A.), [2012] O.J. No. 1208, 2012 ONCA 177, 290 O.A.C. 130, at para. 51.
67The trial judge found that the appellant's statements to the nurse had significant probative value on the issues the jury had to decide. Whether the appellant had killed three cats, as he told his nurse initially; only one, as he said in a later interview; or in fact any cats at all was beside the point. The probative value of the statements lay in the appellant's fantasies linked to killing a cat -- specifically, what he fantasized about doing to a human being -- and their relationship to the Crown's theory of planning and deliberation. As a practical matter, it was not possible to edit his statement about cats from his statement about what he wanted to do to a human being. The trial judge recognized the potential for prejudice but concluded that it was outweighed by the probative value of the evidence and that the prejudice could be addressed with a proper limiting instruction.
68As for the rap lyrics, the trial judge acknowledged that they were open to different interpretations and that many listen to songs with violent imagery. Nevertheless, it was a reasonable interpretation of the appellant's lyrics that they meant what they literally said. To the extent that the lyrics refer to knifing and chopping up people, drinking blood and cooking in the kitchen, they were probative of the central issue at trial -- whether the killing was intentional, planned and deliberate. Ultimately, it was for to the jury to determine whether the rap lyrics referred to killing, dismemberment and cannibalism. Again, the trial judge recognized the potential for prejudice, but concluded that it was outweighed by the probative value of the evidence and could be addressed by a proper limiting instruction.
69Having admitted the appellant's statements to the nurse and the rap lyrics on the issues of motive, intention and planning and deliberation, the trial judge also addressed whether the evidence was admissible on a propensity basis -- that is, whether the evidence of the appellant's fantasy of killing, dismembering and cannibalizing could help establish that he killed Fraser and dismembered the body. This was necessary because the appellant's position on dismemberment was not clear at the time, and the Crown might be put to the proof of each element of the charge, including identity. The trial judge found that there was insufficient evidence of cannibalism to place the allegation before the jury; there was no evidence that the appellant had consumed the victim's flesh and the theory that he had done so was too speculative. However, the trial judge also found that the evidence disclosed a specific rather than general propensity in regard to the dismemberment and that the appellant's statements to the nurse and the rap lyrics were probative both of his intention and the voluntariness of his actions. The evidence, she found, posited not a general tendency to violence, but a highly specific and unusual manifestation of violence -- the dismemberment of a human body. The trial judge found that the prospect of prejudice was outweighed by the probative value of the evidence and admitted it.
70The trial judge carefully weighed the probative value of the evidence and the potential prejudice to the appellant in deciding whether or not to admit the bad character evidence. Her decision was neither unreasonable nor marred by legal error or a misapprehension of the evidence. It is entitled to deference.
71The appellant says that the absence of evidence that he engaged in cannibalism after the killing and dismemberment suggests that his interest in cannibalism formed no part of his motive to kill and dismember the victim. But this is illogical. The absence of evidence that he engaged in cannibalism does not preclude a finding that he had been motivated to do so initially. There are any number of possible explanations for not following through on a motivation to act in a particular way, none of which negates the existence of the initial motivation.
72The trial judge's mid-trial and closing instructions on the use of the evidence were impeccable. She instructed the jury that they could not find that there was an act of cannibalism and instructed the jury not to speculate about the missing muscle tissue. The trial judge limited the use of the ideation and rap lyric evidence to issues of motive, intention, planning and deliberation, in response to the Crown's argument.
73It goes without saying that lyrics are open to different interpretations and that, in any event, the writers of songs are not to be presumed to share the views they present in their songs. The trial judge instructed the jury to consider whether the rap lyrics were a form of artistic expression -- specifically, whether the appellant was interested in the lyrics as a form of art or entertainment, as he testified. If the appellant's interest was purely artistic, the rap lyrics were not to be used to determine whether or not the appellant was guilty of the offences charged. If, however, the jury determined that his interest was more than purely artistic, they were required to consider what the lyrics referred to -- cooking drugs, as the appellant testified, or killing, dismemberment and cannibalism.
74The trial judge instructed the jury that if it found that the lyrics referred to drugs, they were not to be used to determine whether the appellant was guilty. Even if the jury found the lyrics referred to killing, the evidence could be considered only as it related to the appellant's motive, intention and state of mind when he killed Fraser. The trial judge went on to admonish the jury not to allow emotional reactions to the graphic and morbid nature of the lyrics to affect their assessment of the evidence. She specifically instructed the jury not to conclude that the appellant was a bad person more likely to have committed the offences, or the kind of person likely to have committed the crimes, and to convict on either basis. The trial judge reiterated that meaning of the lyrics was to be assessed in an objective and dispassionate manner. Nothing more was required.
Conclusion
75This ground of appeal must also be rejected.
76I would dismiss the appeal.
Appeal dismissed.
