COURT OF APPEAL FOR ONTARIO
Fairburn A.C.J.O., Doherty and Benotto JJ.A.
BETWEEN
His Majesty the King Respondent
and
Sukhchain Brar Appellant
Counsel: Jessica Zita and Carter Martell, for the appellant Karen Papadopoulos, Kevin Rawluk and Emily Marrocco, for the respondent
Heard: February 12-14, 2024
On appeal from the conviction entered by Justice Bruce G. Thomas of the Superior Court of Justice, sitting with a jury, on December 8, 2017.
I. Overview
1The appellant, Sukhchain Brar, was charged with the first degree murder of his wife, Gurpreet Brar. At trial, the appellant admitted killing his wife, but maintained that he should only be convicted of manslaughter, either on the basis that the Crown had not proved the mens rea required for murder, or alternatively because the Crown had not proved that the appellant was not provoked within the meaning of s. 232 of the Criminal Code, R.S.C. 1985, c. C-46.
2The jury convicted the appellant of first degree murder. He appeals his conviction, seeking a new trial.
3The appellant advances several grounds of appeal. [1] He challenges the constitutionality of s. 232(2) of the Criminal Code, which defines the partial defence of provocation. He also objects to the admissibility of certain evidence, and the trial judge’s instructions to the jury.
4The same constitutional arguments were advanced in two other appeals: R. v. Gibb, 2024 ONCA 255, and R. v. Larocque-Laplante, 2024 ONCA 256. The three appeals were heard together. Counsel for all appellants took a common position on the constitutional question and divided the arguments pertaining to the constitutional issues.
5The Crown made two submissions in response to the constitutional challenge. First, Crown counsel argued that as the constitutional arguments were not advanced at trial, this court should refuse to entertain the arguments on appeal. Second, the Crown submitted that if the court decides to address the merits, the constitutional arguments should fail.
6These reasons will address the arguments relating to the constitutional issues raised in all three appeals. The reasons will go on to consider the other grounds of appeal advanced in this appeal. The non-constitutional grounds of appeal raised in the other two appeals will be considered in separate reasons applicable to each of those appeals.
II. Overview of the Facts
7The appellant immigrated to Canada in 1995. He returned to India in 1999 to marry Gurpreet. [2] Gurpreet moved to Canada to join the appellant nine months later. In Canada, they had three children.
8By the fall of 2015, the marriage was a very troubled one. Gurpreet had been involved in a longstanding extramarital relationship. She did not get along with her brother-in-law or her mother-in-law, both of whom resided in the family home by the fall of 2015. Gurpreet’s daughter described her mother as angry and depressed. There was considerable evidence of ongoing verbal and physical disputes within the household among the appellant, Gurpreet, and her in-laws. There was also evidence of a threat by the appellant against Gurpreet in December 2015.
9Gurpreet travelled to India in the winter of 2015/2016. The appellant was with Gurpreet during part of her time in India. She made plans to return to India early in 2016 with the two younger children. Although it is not entirely clear whether Gurpreet intended to move back to India permanently, she certainly intended to live in India for at least a couple of years.
10The appellant worked as a long-haul trucker. Sometimes Gurpreet accompanied him on his overnight trips. The appellant and Gurpreet left on a three-day trip on January 30, 2016. On the day they left, the appellant arranged for them to attend at a lawyer’s office and execute wills. Each left their assets to the other. There was evidence that the preparation of the wills was a spur-of-the-moment idea by the appellant. The person named as alternate executor by the appellant testified that he was unaware that he had been so named, did not really know the appellant or his wife, and would have declined to act as an executor had he been asked to do so.
11Gurpreet expressed some fear about going on the trip with her husband. She indicated she did not want to go with him.
12The appellant and Gurpreet stopped for the night on the first day, some time before 11:00 p.m. They awoke early the next morning. It was very warm in the truck. The appellant and Gurpreet argued about Gurpreet lifting her shirt up in an effort to cool off. According to the appellant, Gurpreet quickly became very angry and verbally abusive. She told the appellant for the first time that she had been involved in a longstanding affair with his friend, Jinder. Gurpreet showed the appellant a tattoo of the letter “J” on her chest and told him it stood for Jinder. The appellant testified that Gurpreet taunted him, telling him that Jinder was the father of their youngest child and that as far as she was concerned, the appellant was “dust” and not a “real man” like Jinder. While taunting the appellant, Gurpreet grabbed his neck with both hands and shook him.
13The appellant testified that Gurpreet’s words and actions made him go blind and crazy. He pulled a mallet with a steel head from beside the driver’s seat and struck Gurpreet many times. She was covered in blood. The appellant thought she was dead.
14When describing his mental state at the time he struck Gurpreet, the appellant said it was as if his head had become “cement” and he “became blind”. When he recovered his senses and realized what he had done, the appellant formulated a plan to drive away from the truck stop and find a place where he could set the truck on fire. He would tell people that a mechanical problem had caused the truck to suddenly catch fire and Gurpreet, who was asleep in the back of the truck, had been unable to escape.
15The appellant drove his truck a short distance away from the truck stop. He pulled off the road and set the truck on fire, using fuel from cans he had stored in the truck as an accelerant. The truck burned rapidly – an OPP officer who attended the scene testified he was “shocked” by how the fire reduced the truck to just “the frame, ashes and metal.”
16Passersby quickly arrived at the scene of the fire. The truck was not fully engulfed in flames when passersby first arrived. The appellant said nothing about Gurpreet being in the truck until the fire had grown to a stage where it was impossible for anyone to attempt to get Gurpreet out of the truck. The appellant told first responders the story about the truck catching fire.
17The post-mortem revealed that Gurpreet was alive when fire engulfed the truck. She died from a combination of blunt force trauma to the head and smoke inhalation. Gurpreet’s trauma was exclusively to her face and head. There were at least four separate blunt force injuries to Gurpreet’s head. The blows caused multiple skull fractures. Gurpreet had no injuries to any other part of her body and had no defensive injuries. The appellant had no apparent injuries or any other indication that he had been in a physical confrontation.
18It was the position of the defence that the appellant did not know about Gurpreet’s affair with Jinder until she told him that morning in the truck. The defence argued that the combined effect of Gurpreet’s disclosure of the affair, her denigrating and belittling words, and her physical attack on the appellant caused him to suddenly lose control and, while out of control, to repeatedly strike Gurpreet with the mallet. He believed he had killed Gurpreet with the mallet. The appellant set the truck on fire in an effort to cover up his admittedly unlawful homicide.
19It was the position of the Crown that the appellant had known about the affair with Jinder for a long time. However, very shortly before the fateful trip, he learned that Gurpreet was planning to leave him in the immediate future and take two of the children to India. The Crown maintained that the appellant decided to kill Gurpreet and formed a plan to do so while they were on the trip.
20The Crown led circumstantial evidence to support the planning and deliberation allegation. That evidence included forensic evidence that the accelerant used by the appellant to set Gurpreet’s body and the truck on fire contained both gasoline and diesel fuel. Gasoline was also found on paper towels and clothing placed around and under Gurpreet’s body. The appellant acknowledged that the accelerant he spread in the truck and around Gurpreet’s body came from two fuel canisters he kept in the truck. The appellant’s truck, however, used only diesel fuel. There was no reason to have gasoline on board the truck, much less in the cans containing diesel fuel. Gasoline is much more flammable than diesel fuel.
21At trial, the Crown argued that the appellant had placed the cans containing the gasoline/diesel mixture in the truck before leaving home with Gurpreet. He planned to use the accelerant to set the truck on fire after killing Gurpreet, intending for the fire to destroy the truck and Gurpreet’s remains.
22The appellant offered an explanation for how gasoline had gotten into the fuel cans which should have contained only diesel fuel. His explanation involved a mistake by his son while mowing the lawn some months earlier. It was for the jury to decide what to make of the appellant’s explanation. Suffice it to say that if the jury concluded that the appellant mixed gasoline into the fuel cans containing diesel fuel, that finding would go a long way to establishing planning and deliberation.
III. The Grounds of Appeal
A. The Constitutional Arguments
(i) Background
23For centuries, the common law has recognized provocation as a partial defence, reducing murder to manslaughter: R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at paras. 13-17; Jeremy Horder, Provocation and Responsibility (Oxford: Oxford University Press, 1992), at cc. 1-5; Department of Justice, Reforming Criminal Code Defences: Provocation, Self-defence and Defence of Property: A Consultation Paper (Ottawa: Department of Justice, 1998), at p. 2; Victorian Law Reform Commission, Defences to Homicide: Final Report (Melbourne: Victorian Law Reform Commission, 2004), pp. 21-23; The Law Commission, Partial Defences to Murder: Consultation Paper No 173 (London: Law Commission, October 2003), at pp. 5-8. Provocation has been a statutorily recognized partial defence to murder in Canada since the enactment of the first Criminal Code: Criminal Code, 1892, 55-56 Vic., c. 29, s. 229, s. 229; Tran, at para. 18.
24Provocation has been described as “an allowance made for human frailty”: R. v. Campbell (1977), 17 O.R. (2d) 673 (C.A.), per Martin J.A., at p. 682; Tran, at para. 22. Provocation, as defined in the Criminal Code since 1892, has four elements (R. v. Parent, 2001 SCC 30, [2001] 1 S.C.R. 761, at para. 10; Peter Sankoff, Professor Sankoff’s Guide to Criminal Defences (Edmonton: CDE Publishing, 2024), at pp. 499-500):
Conduct by the victim which triggers or precipitates the accused’s action;
That conduct must, from the accused’s perspective, occur on the sudden and unexpectedly;
That conduct must be sufficiently grave to deprive an ordinary person of the power of self-control; and
That conduct must cause the accused to suddenly lose self-control and act before regaining self-control.
25The onus is on the Crown to disprove provocation. If the Crown establishes beyond a reasonable doubt that any one of the four elements of the defence is not made out, the defence fails: Tran, at para. 41; David Watt, Watt’s Manual of Criminal Jury Instructions (Toronto: Thomson Reuters, 2023), at p. 1265, fn. 6.
26The provocation defence in the Criminal Code was largely unchanged from its first appearance in 1892 until 2015. It is the 2015 amendment – S.C. 2015, c. 29, s. 7 – that gives rise to the constitutional arguments in this case.
27Before the 2015 amendment, s. 232(1)- (2) read:
s. 232(1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.
(2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool. [Emphasis added.]
28The 2015 amendment did not change s. 232(1), but did amend s. 232(2). The present version, as reflected in the 2015 amendment, reads:
s. 232(2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool. [Emphasis added.]
29The 2015 amendment narrows the kind of conduct which is capable of triggering the provocation defence. Conduct which may have qualified as “a wrongful act” or “an insult” can no longer trigger the provocation defence unless that conduct constitutes an indictable offence under the Criminal Code punishable by at least five years’ imprisonment. For example, Gurpreet’s alleged admission of adultery and disparaging and taunting comments to the appellant could not constitute triggering conduct under the present provision, but may have qualified as a “wrongful act or an insult” under the broader, earlier provision: see Sankoff, at p. 524; R. v. Thibert, [1996] 1 S.C.R. 37, at paras. 9-19; R. v. Nahar, 2004 BCCA 77, 181 C.C.C. (3d) 449 (B.C. C.A.).
30Apart from narrowing the description of the conduct capable of triggering the provocation defence, the other elements of the defence were not altered by the 2015 amendment.
(ii) The nature of the constitutional challenge
31The appellants contend that s. 232(2), as amended, infringes s. 7 of the Canadian Charter of Rights and Freedoms., which provides:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
32Section 7 claims are tested in a two-stage analysis. First, the court determines whether the impugned law interferes with the applicant’s life, liberty, or security of the person. Second, if the applicant establishes the requisite interference, they must demonstrate that the interference does not accord with one or more principles of fundamental justice: Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 55.
33The appellants argue that the narrowing of the provocation defence, effected by the amendment to s. 232(2), infringes their right to liberty by reducing the possibility, in some murder cases, of a conviction for manslaughter. Murder is punishable by a minimum of life imprisonment, whereas manslaughter is punishable by a maximum of life imprisonment, but has no minimum sentence. The Crown accepts that the increase in the potential sentence engages the liberty interest of an accused seeking to advance a provocation defence.
34The appellants further argue that the deprivation of their liberty occasioned by s. 232(2) does not accord with the principles of fundamental justice because the legislation, when tested against its purpose, is both arbitrary and overbroad. It is well established that legislation which is arbitrary or overbroad contravenes the principles of fundamental justice in s. 7 of the Charter: see Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 96-102.
35The Crown acknowledges that legislation which is found to be arbitrary or overly broad infringes the principles of fundamental justice protected by s. 7 of the Charter. The Crown submits, however, that the appellants mischaracterize the purpose of s. 232(2), and that on a proper understanding of the purpose of that provision, the section is neither arbitrary nor overbroad. [3] As often occurs in s. 7 arguments based on allegations of overbreadth and arbitrariness, the constitutionality of the provision turns on an accurate identification of the purpose of the impugned legislation.
(iii) Should the court consider the constitutional argument?
36The Crown advances the preliminary position that because the constitutional arguments were not raised at trial, this court should not address the merits of those arguments on appeal.
37The 2015 amendment to s. 232(2) was in force at the time of the appellant’s trial and at the trials in Gibb and Larocque-Laplante. The trial judge left provocation, as defined in the amended s. 232(2), with the jury in all three cases. And in all three cases, the jury rejected the defence. There was no constitutional challenge to s. 232(2) at any of the three trials.
38After the trials in this case, and in Gibb and Larocque-Laplante, the Ontario Superior Court of Justice declared s. 232(2) contrary to s. 7 and unconstitutional in R. v. Mujber, [2020] O.J. No. 6126. The decision in Mujber relied heavily on two prior cases from other provincial trial courts, which reached the same conclusion: R. v. Simard, 2019 BCSC 531, 375 C.C.C. (3d) 107; Fredette c. R., 2019 QCCS 4116, 59 C.R. (7th) 173. These cases severed from s. 232(2) the language limiting the triggering act to certain indictable offences. After this severance, any conduct of the victim could trigger a consideration of the provocation defence under s. 232(2). The ultimate success of the defence would depend on whether the Crown could establish beyond a reasonable doubt that at least one of the other elements of the defence could not be made out: see supra, para. 24.
39Despite success on the constitutional arguments in Simard, Fredette, and Mujber, the accused in all three cases were convicted of murder. The Crown had no right of appeal from those convictions. The Crown in Simard did unsuccessfully apply for leave to appeal directly to the Supreme Court of Canada on the constitutional question: [2019] S.C.C.A. No. 201.
40The constitutionality of the amended s. 232(2) recently came before this court in R. v. Salifu, 2023 ONCA 590, 429 C.C.C. (3d) 492. In that case, the appellant had been convicted of murder at trial and attempted to raise the constitutionality of the narrowed provocation defence for the first time on appeal. This court declined to consider the merits of that argument. There is presently no appellate authority on the constitutionality of s. 232(2).
41An appellant, with leave of the court, may raise issues, including constitutional issues, not raised at trial. [4] The appellant must convince the court that it is in the interest of the proper administration of justice to allow the appellant to advance the constitutional claim. In exercising its discretion, the appellate court will consider a variety of factors, including whether the issue can be properly addressed on the record before the appeal court, the risk of injustice should the court decline to hear the argument, and any prejudice to the opposing party should the court hear the argument. Different factors will have different weight in different situations: Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at paras. 20-23; R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 39-44, leave to appeal refused, [2016] S.C.C.A. No. 432.
42The appellants submit that the success of the argument in three separate trial decisions is a testament to the strength of the argument. They assert that there can be no doubt that the constitutional arguments they seek to raise have merit.
43The Crown acknowledges that several considerations favour allowing the appellants to advance the constitutional argument. The trial records before this court permit a fair and full adjudication of the issue. There is no suggestion the constitutional issue was not raised at trial for tactical reasons.
44The constitutional issue raised by the appellants is an important one to the proper administration of justice. Provocation arises only in murder cases when the stakes, for the accused and the community, are obviously very high. Presently, the principle of horizontal stare decisis requires trial courts in Ontario to follow the decision in Mujber: see R. v. Sullivan, 2022 SCC 19, 472 D.L.R. (4th) 521, at para. 86. Absent adjudication by the Supreme Court of Canada, it is the responsibility of this court to settle outstanding questions of law for the province.
45Crown counsel submits, however, that the factors favouring hearing the merits of the constitutional argument are outweighed by the absence of any possibility that a provocation defence could have succeeded in any of the three cases before this court. The Crown contends that there was no air of reality to a provocation defence under either version of s. 232(2), and that on the evidence there was effectively no difference in the scope of the two versions of s. 232(2). The Crown argues that it can never be in the interests of justice to allow the defence to advance an argument not made at trial when there is no realistic possibility that the argument, even if accepted by this court, would result in an order quashing the conviction and directing a new trial.
46The Crown relies on Salifu, in which this court refused to hear the merits of the same constitutional question the court is asked to consider in these appeals. Salifu is distinguishable. In Salifu, the appellant did not advance any defence of provocation at trial. This court, after reviewing the trial record, concluded that the defence had made a tactical decision that it would not advance provocation: paras. 21-23. Appeals cannot be used as a “redo” when tactical decisions made at trial do not work out. As indicated above, there is no suggestion here that the failure to raise the constitutionality of the provocation defence in these three cases had anything to do with trial tactics.
47The court in Salifu had a second reason for refusing to hear the constitutional argument, indicating at para. 24:
The appellant’s claim of provocation does not have an air of reality under either version of s. 232. Therefore, no miscarriage of justice will result from our refusal to consider the constitutional question.
48We cannot agree that the amendment to s. 232(2), limiting the defence of provocation, could not realistically have made any difference in Brar. While the defence of provocation may not have been a strong one, the defence was available, based on the appellant’s evidence. Furthermore, again on the appellant’s evidence, the triggering conduct consisted of both insults and a criminal assault. Under the prior definition of s. 232(2), either or both could have provided the “wrongful act or an insult” required to trigger the provocation defence. Under the present legislation, only the alleged assault on the appellant could fill that role.
49We also do not accept the submission that the amended version of s. 232(2) did not potentially weaken the provocation defence available to the appellant. For example, even if the jury did not believe the appellant’s evidence that Gurpreet physically attacked him and choked him – a real possibility, in the absence of any physical evidence to support this part of the appellant’s testimony – provocation would still have been available under the previous version of s. 232(2). Under the present provision, the defence would not have been available if the jury rejected the appellant’s evidence that he was physically attacked.
50A refusal by this court to hear the constitutional challenge in Brar would run the risk of an injustice. If the argument is allowed to proceed and the court determines that the present s. 232(2) is unconstitutional, the appellant would arguably be entitled to a new trial where he would have the benefit of the broader provocation defence available under a constitutionally compliant s. 232(2): see generally Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, [2002] 1 S.C.R. 678, at para. 33.
51As we are satisfied there is a risk of a miscarriage of justice should we decline to hear the constitutional argument in Brar, we need not decide whether the refusal would also run the risk of a miscarriage of justice in the two other appeals. The constitutional arguments are the same in all three cases, and were effectively advanced as a single argument by counsel for the three appellants. Neither counsel for the appellants nor the Crown suggested that it might be appropriate to allow the constitutional challenge in one of the appeals but not in the others. As we have decided the relevant factors dictate that we hear the constitutional argument in Brar, we will hear it in all three appeals.
(iv) The merits of the constitutional arguments
52As set out above, the parties agree that the amendment to s. 232(2) limits an accused’s liberty interest: Mujber, at paras. 54-55. If s. 232(2) does not accord with the principles of fundamental justice, the provision violates s. 7 of the Charter.
53The principles of fundamental justice are intended to capture and reflect Canada’s basic societal values. Those values include a commitment to legislation that is rational, comprehensible, and fair. The concepts of arbitrariness, overbreadth, gross disproportionality, and vagueness have emerged and developed as examples of those fundamental societal values: Bedford, at paras. 93-97; Carter, at paras. 71-73.
54The appellants rely on arbitrariness and overbreadth. Both concepts examine the relationship between the purpose or object of the impugned legislation and the effect of the legislation on the life, liberty, or security of the person protected by s. 7. Legislation is arbitrary if there is no rational connection between the purpose animating the impugned law and the effect of that legislation on an individual’s life, liberty, or security of the person. If legislation is arbitrary, there is a total disconnect between purpose and effect. Legislation is overbroad if the scope of the law captures some conduct that impairs an accused’s liberty but bears no connection to the purpose of the law. If legislation is overly broad, there is a partial disconnect between the purpose and effect: Bedford, at paras. 111-19; Carter, at paras. 83-89; R. v. Sharma, 2022 SCC 39, 165 O.R. (3d) 398, at para. 86.
55The arbitrariness/overbreadth analysis begins by identifying the purpose and the effect of the challenged legislation. The parties agree that the effect of s. 232(2) is apparent on a reading of the provision: R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485, at para. 25. Its effect is to limit conduct which may trigger a provocation defence to conduct that constitutes an indictable criminal offence punishable by five years or more.
56Determining the object or purpose of legislation can be more difficult. The correct identification of the purpose of legislation is, however, essential to a proper application of the concepts of overbreadth and arbitrariness: Moriarity, at paras. 24-27. Indeed, it is our disagreement as to the purpose of the legislation, as identified in Simard, Fredette, and Mujber which leads us to a different conclusion as to the constitutionality of s. 232(2).
57In Simard, at para. 30, the trial judge identified the purpose of s. 232(2) as:
[T]o protect vulnerable women by removing any vestige of “honour” as a basis for invoking the provocation defence.
58In Mujber, the trial found a similar purpose, stating, at para. 57:
Parliament’s purpose was directed at violence against women and the aim was to protect women by preventing honour-based killings from being reduced to manslaughter.
59The trial judge in Fredette identified a similar purpose. [5]
60The conclusion arrived at in Simard, Mujber, and Fredette has found some academic support: K. Roach, “Vandalizing the Criminal Code with Irrational and Arbitrary Restrictions on Provocation” (2015) 62 Crim. L.Q. 403; Don Stuart, “R. v. Simard: 2015 Limits to Provocation Defence Rightly Struck Down as Overbroad and Arbitrary” (2019) 55 C.R. (7th) 134. [6] We do not, however, agree that the purpose of s. 232(2) is limited to cases involving violence against women, violence arising in the context of ongoing domestic or intimate relationships, or violence motivated by obsolete notions of male honour and entitlement. We see the purpose of s. 232(2) as limiting the availability of provocation as a defence to what would otherwise be murder to situations in which the conduct said to trigger the homicidal reaction is itself a serious violation of societal norms and expectations as reflected in the Criminal Code.
61Finding the purpose of legislation under a s. 7 analysis engages the same exercise and tools as does statutory interpretation: R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754, at para. 33. One looks to the words of the statute, considered in their grammatical and ordinary sense and placed in the broader context of the legislation as a whole, and the related legislative history and commentary: La Presse inc. v. Quebec, 2023 SCC 22, 485 D.L.R. (4th) 652, at paras. 22-24; MediaQMI inc. v. Kamel, 2021 SCC 23, [2021] 1 S.C.R. 899, at para. 37; R. v. N.S., 2022 ONCA 160, 160 O.R. 401, at para. 69, leave to appeal refused, [2022] S.C.C.A. No. 281. Any statement of the legislative purpose must be firmly anchored in the legislative text considered in its full context: Moriarity, at para. 32.
62There is nothing in the language of s. 232(2) which offers any support for the limited purpose identified in Simard, Mujber, and Fredette. Indeed, as candidly acknowledged in Mujber, at para. 57:
There is no indication within the four corners of the text to suggest that the intent was to aim strictly at honour killings and male violence directed at women.
63The absence of any language in the s. 232(2) amendment capable of offering any support for the purpose of the amendment as found in Simard, Fredette, and Mujber certainly suggests that those cases have misconceived the purpose of the amendment. As recently observed by Côte and Brown JJ., in dissent, but not on this point, in Frank v. Canada (Attorney General), 2019 SCC 1, [2019] 1 S.C.R. 3, at para. 130:
[T]he best way of discerning a legislature’s purpose will usually be to look at the legislation itself.
64The absence of any language in s. 232(2) justifying the purpose identified in Simard, Mujber, and Fredette is even more telling in light of the many relatively recent amendments to several provisions of the Criminal Code which have used language to limit the provisions to circumstances involving intimate partner and gender-based violence: see s. 109(1) (a.1), 110(2.1), s. 423(1) (a), s. 515(3) (a), s. 515(6) (b.1), s. 718.2 (a)(ii), s. 718.201, s. 718.3(8), s. 738(1) (c), s. 810(1) (a) and (3.2). It is difficult, in the face of the many examples in which Parliament has used language to specifically tailor legislation to violence directed at women in the context of an intimate partner relationship, to find that Parliament acted with the same purpose in amending s. 232(2), but without using any of the language used in all the other amendments.
65The historical context in which the amendment was brought forward is also informative. In 2010, in Tran, Charron J. considered the meaning of “wrongful act or an insult” in the former s. 232(2). Mr. Tran maintained that he had been provoked by finding his wife, from whom he was separated, in bed with another man. The trial judge had accepted the defence of provocation and convicted the accused of manslaughter. The Alberta Court of Appeal reversed (R. v. Tran, 2008 ABCA 209, 432 A.R. 234), holding there was no air of reality to the provocation defence. The Supreme Court unanimously agreed with the Alberta Court of Appeal.
66In the course of her reasons, Charron J. explained that the “wrongful act or an insult” language in s. 232(2) could be traced back at least to a Law Commission report in 1839: Tran, at para. 16. She further explained that the meaning of the phrase was not frozen in time, but must be informed by “contemporary social norms and values”, and “contemporary norms of behaviour, including fundamental values such as the commitment to equality provided for in the Canadian Charter of Rights and Freedoms”: Tran, at paras. 19, 34.
67The amendment to s. 232(2) in 2015 is Parliament’s articulation of the applicable contemporary norms and values governing conduct in Canadian society. Murderous violence, declares Parliament in s. 232(2), may be partly excused only if that violence is triggered by conduct that is readily identifiable as unlawful and strongly offensive to Canadian norms and values. Limiting the potential triggering conduct to acts that are not only criminal, but seriously so, as reflected in the potential penalty, achieves that purpose: Sharma, at paras. 104-106.
68The concern in Tran, that the triggering conduct in s. 232(2) continue to reflect contemporary Canadian norms and values, was clearly directed at circumstances involving violence against intimate spouses in response to conduct by those spouses that was not itself unlawful. Tran did not, however, suggest that the law of provocation, and in particular the concept of a “wrongful act or an insult”, should develop in a manner specific to addressing violence against women in intimate partner relations. Instead, Tran spoke in more general terms of ensuring, through judicial interpretation, that the law of provocation in all of its applications should remain reflective of contemporary Canadian norms and values. By amending s. 232(2) to require that the triggering conduct accord with what the Criminal Code regards as serious criminal conduct, Parliament sought to ensure that the availability of the defence would reflect “contemporary social norms and values.”
69Legislative activity in other jurisdictions is also part of the context when determining the purpose of the amendment to s. 232(2). The continued viability of the provocation defence as traditionally defined in common law jurisdictions has been an issue in several jurisdictions for at least the last 25 years. Several jurisdictions, which have provocation defences similar to the defence in Canada, have either eliminated the defence, or significantly limited the defence by amendment in recent years. [7]
70Amendments in jurisdictions that have maintained the provocation defence have taken two different approaches. For example, in Queensland, Australia, the Legislature has limited the defence using a context specific approach. That approach significantly limits the availability of the defence, both when it is based on words alone, and when it occurs in the context of domestic relationships: Criminal Code Act, 1899, s. 304.
71Other jurisdictions have adopted an approach which provides a narrower definition of the triggering event for provocation, but does not limit the defence to any particular context. For example, the legislation enacted in New South Wales limits the availability of the defence in much the same way as s. 232(2). Under the amendments in New South Wales, the triggering event must be an indictable offence punishable by at least five years: Crimes Act, 1900 No. 40, ss. 4, 23.
72The parliamentary record relating to the passage of the s. 232(2) amendment demonstrates that the government was aware of the legislative activity in other jurisdictions and the different approaches available to the defence of provocation. Parliament chose to model the s. 232(2) amendment on the New South Wales legislation, rather than on legislation which limited the defence by reference to the context in which it arose: House of Commons, Standing Committee on Citizenship and Immigration, Evidence, 41-2, No. 48 (12 May 2015), at p. 5 (Costas Menegakis).
73The amendment to s. 232(2) was part of Bill S-7, entitled the Zero Tolerance for Barbaric Cultural Practices Act, S.C. 2015, c. 29. The other provisions in the Bill amended various acts of Parliament and addressed underage and forced marriages and polygamy, all of which are associated with the abuse and unequal treatment of women and girls. Bill S-7 is clearly part of the legislative context which must be considered when identifying the purposes of s. 232(2) as a step in the s. 7 analysis.
74The placement of s. 232(2) in Bill S-7 fully warrants the conclusion that one of the aims of s. 232(2) was to remove as a defence to homicidal violence, non-criminal conduct perpetrated in the context of an intimate or family relationship and motivated by long-obsolete notions of male dominance or honour. In our view, however, it goes too far, based only on the placement of s. 232(2) in Bill S-7, to suggest that the purpose is limited to the elimination of non-criminal conduct as a trigger to a provocation defence in the specific circumstances set out above.
75In concluding that the purpose of s. 232(2) was limited to homicides involving violence against women committed in the context of intimate or familial relationships, the courts in Simard, Mujber, and Fredette referred to its placement in Bill S-7, but placed their heaviest reliance on parts of the parliamentary record. [8] Many of the relevant passages from the parliamentary record can be found in the reasons in Simard, at paras. 28-30, and Mujber, at para. 26. [9] Those passages emphasize the removal of the provocation defences in cases involving so-called “honour killings” and similar homicides involving violence in intimate partner or family relationships.
76The legislative record supports the observation of the Saskatchewan Court of Appeal in R. v. Wolfe, 2021 SKCA 39, 404 C.C.C. (3d) 141, at para. 138:
The legislative record accompanying that Act reveals that the driving force behind the amendment was to ensure that the defence of provocation could not apply in cases of honour killings or spousal homicides where the alleged provoking act on the part of the deceased took the form of marital infidelity, disrespect, defiance or insulting behaviour, and not serious criminal conduct [Citations omitted].
77Courts can and should look to the parliamentary record when determining the purpose of legislation. Courts do so, however, to aid in the interpretation of the language actually used in the legislation and not as the source of a freestanding explanation for the purpose behind the legislation. The question must be what the purpose of the legislation is as written and enacted, not what members of the government, or senior civil servants, perceived the purpose to be: Frank v. Canada (Attorney General), 2019 SCC 1, at paras. 130-36; MediaQMI inc. v. Kamel, 2021 SCC 23, at paras. 37-39. As observed in Sharma, at para. 89:
Extrinsic evidence should be used with caution. Statements of purpose in the legislative record may be rhetorical and imprecise [citations omitted]. Decontextualized statements made by members of Parliament can be poor indicators of Parliamentary purpose [citations omitted]. What is to be identified is the purpose of Parliament, being that of its collective membership as expressed in its legislative act, and not the purpose of its individual members. [Emphasis in the original.]
78A careful review of the entirety of the parliamentary record relating to the amendment of s. 232(2) reveals that, while many of the statements in the House of Commons and Senate in support of the amendment emphasized the elimination of the defence in so-called honour killings, or killings in intimate partner or family relationships, brought on by male feelings of entitlement, dishonour, or shame, the purpose of the legislation went beyond those limited circumstances. Parliament was no longer prepared to accept that Canadian society should excuse, even partially, murder precipitated by conduct of the victim that was not even illegal.
79The following statement from the Minister responsible for the legislation in the House of Commons at third reading is illustrative of the amendment’s broader purpose (House of Commons Debates, 41-2, No. 232 (16 June 2015), at p. 15122 (Chris Alexander)):
We are also seeking to limit the defence of provocation, because honour, in whatever form, is not an excuse for violence. We do not want Canada to be a country where a crime takes place and the explanation given either by the defendant or the defendant's lawyer in court or in public is that the violence happened because someone had been dishonoured. There are no words that can be uttered, no insults that can be given, no failure of conjugal duty or duty in a marriage that can justify violence.
This defence of provocation has not been successful in many cases in Canada. There has been perhaps one case in which a conviction was downgraded from murder to manslaughter, but it is still used in innumerable cases to explain violent behaviour and it still accepted in courts as a legitimate defence that deserves to be heard. That is absurd in this day and age, and after the passage of Bill S-7, it would no longer be permitted.
The defence of provocation will be limited to cases in which the victims themselves have, on the evidence, committed an indictable crime that would be punishable by up to five years imprisonment. In other words, if the victims themselves commit a serious act of violence that led to other violence, then that needs to be part of the case. That needs to be part of the chain of events that led to the result, whatever it is. That needs to be taken into consideration, but not words, not gestures, not failure to perform in a marriage, and certainly not honour-based arguments of any kind. [Emphasis added.]
80This statement, made at the final stage of the legislative process, close to the final parliamentary vote, demonstrates that while preventing the use of the provocation defence in cases akin to so-called honour killings was one aim of the amendment, its purpose went beyond that single goal. [10]
81Once the full purpose of the amendment to s. 232(2) is properly understood, the claims of arbitrariness and overbreadth must be rejected. There is no disconnect between the purpose – to eliminate as a trigger for provocation, conduct by a victim which is not itself serious unlawful conduct – and the effect of the amendment. The effect mirrors the purpose.
82The absence of any disconnect is apparent on an examination of the hypotheticals considered in Simard, Mujber, and Fredette, and relied on by the appellants.
83One hypothetical supposes a woman who has been abused by her male partner for many years. She responds to taunts and slurs by stabbing him. According to this scenario, the woman who has been abused for years does not fear for her safety when taunted, but instead responds to “protect her dignity.”
84It is difficult to imagine that a woman who has regularly been the victim of physical abuse by her partner over many years would not have a legitimate fear of physical violence when being subjected to her husband’s verbal abuse. The husband’s conduct would in all likelihood constitute a threat to cause bodily harm and, therefore, an indictable offence punishable by five years or more: Criminal Code, s. 264.1(1)(a).
85Even if one were to accept the hypothetical as reasonable and assume that there was no perceived threat, the denial of a provocation defence in the absence of any perceived threat is consistent with the purpose of the amended s. 232(2). Attacks upon one’s dignity, which do not amount to a serious indictable offence, are incapable of providing a partial excuse for murder.
86The second hypothetical involves a homicide triggered by racial or religious slurs. Accepting, as we do, that the purpose of the amendment to s. 232(2) is to eliminate non-criminal conduct as a trigger for provocation, the denial of a provocation defence in circumstances like those posited in the second hypothetical is entirely consistent with the purpose of the legislation.
87As we are satisfied, for the reasons set out above, that the amended s. 232(2) does not violate s. 7, we need not address the s. 1 arguments advanced by the parties.
B. Non-Constitutional Grounds of Appeal
88The appellant raises additional, non-constitutional grounds of appeal:
- The trial judge erred in instructing the jury on the first element of provocation;
- It was an error for the Crown to advance a religious or cultural motive to kill;
- The trial judge erred by charging the jury on the Crown’s theory regarding motive;
- The trial judge erred by failing to properly instruct the jury in relation to the ante-mortem statements; and
- The trial judge erred in not instructing the jury with respect to the permissible uses of after-the-fact conduct.
(i) Instruction on Provocation
89The trial judge charged the jury in accordance with the amended s. 232(2). This meant that the jury was told that the partial defence of provocation was only available if the allegedly provoking act itself constituted an indictable offence punishable by at least five years’ imprisonment. In accordance with this requirement, the trial judge instructed the jury on the essential elements of assault.
90The appellant argues that the trial judge erred by failing to instruct the jury that there is no minimum degree of force necessary to make out the first essential element of assault: the intentional application of force. The appellant maintains that the lack of instruction on this point may have left the jury with the erroneous impression that a greater degree of force than what he testified Gurpreet used on him was necessary to qualify as an assault. The appellant says that this concern is heightened when one considers that the trial Crown suggested to the jury, in her closing address, that the force used by Gurpreet was insufficient to constitute an assault.
91The appellant contends that the failure to tell the jury that a simple touching can constitute an assault ran the risk that the jury improperly disregarded provocation because they thought that Gurpreet did not use enough force.
92In our view, the instruction on assault was error free. The trial judge instructed the jury that:
The indictable offence here is the offence of assault. An indictable offence in this case is an offence that is punishable by five years or more. That offence, as I mentioned, is in fact punishable by five years or more. The elements of the offence of assault are the intentional application of force without the consent of the other person. The accused has told you that [Gurpreet] put her hands around his throat or neck and would not let go. If the Crown has proven beyond a reasonable doubt that one of the elements of that offence are not present, the defence of provocation fails.
93The appellant agrees that this instruction was correct. His objection lies in what the trial judge did not say, specifically that there is no minimum degree of force required to qualify as an intentional application of force. We see no difficulty with the trial judge’s silence on this point.
94The appellant offered the only evidence about his wife having allegedly assaulted him. In our view, there was no risk that the jury could have believed the appellant’s version of events about his wife strangling him, and yet have concluded that the indictable offence requirement for provocation was not met.
95The trial Crown did not suggest otherwise in her closing address to the jury. Rather, like defence counsel, Crown counsel characterized the live issue on this element as being whether Gurpreet had physically put her hands around the appellant’s neck. Importantly, the trial Crown did not suggest to the jury that if Gurpreet had put her hands around the appellant’s neck, that touching may not have constituted a sufficient degree of force to meet the first essential element of an assault. To the contrary, the trial Crown always maintained that the jury should reject the suggestion that there had been any application of force.
96The trial judge carefully reviewed the appellant’s testimony regarding the force that he said was used by Gurpreet: that she grabbed hold of his throat with both hands and would not let go. As for the appellant himself, he testified that Gurpreet had not only grabbed his neck with both hands, but that she had “clutched” her fists, and that he was unable to get Gurpreet off of him because she was “heavy duty” and strong "like men.”
97It is against that factual backdrop that the trial judge had to instruct the jury on assault. In these circumstances, the trial judge was under no obligation to expound upon the meaning of “force”. Not only did the trial judge accurately capture the force applied, but there is no reasonable possibility that the jury may have accepted the appellant’s testimony on this point, or even have had a reasonable doubt about whether it was true, and come to any conclusion other than that there was an intentional application of force without consent. In the circumstances of this case, the charge correctly and completely instructed the jury on the allegedly provoking act.
(ii) Cultural and Religious Motive
98The appellant alleges that it was prejudicial for the Crown to refer to the appellant’s Sikh culture and religion, in particular with respect to infidelity and divorce in suggesting motive. He submits that the Crown made submissions departing from the evidence at trial, suggesting that there was an “honour-based” motive to kill his wife. This, he submits, also undermined the basis for provocation.
99We do not accept these submissions. First, the defence relied on culture and religion. Second, the trial judge proceeded cautiously and even curtailed the Crown’s questioning. Third, the Crown did not unfairly use this evidence to bolster motive.
100Defence counsel first raised the issue of religion and culture. The defence submitted that the appellant was a devout man who could not have known about his wife’s affair. For example, when he was in India, he took her to the Golden Temple, a place he would not have gone had he known about the affair.
101Defence counsel repeatedly asked Crown witnesses about their cultural and religious response to extramarital affairs. During the cross-examination of the appellant’s cousin Karamjit Kaur, defence counsel asked about the practice of arranged marriages and the cultural difficulties that ensue if one party does not go through with it. She was also asked if the deceased did not tell the appellant about her relationship with another man because it “is not acceptable” in “your culture”; and how that would be viewed “[b]ecause it’s not morally okay to have an affair in your culture”.
102During the cross examination of Gurmeet Brar, the deceased’s mother, the defence asked:
- Is an age difference between husband and wife unusual in your culture?
- In your culture is it acceptable for a wife to have a relationship with another man other than her husband? Is that shameful conduct?
- Were you aware of [the appellant’s] reputation in the community?
103During the examination-in-chief of Harjinder Brar (“Jinder”) defence counsel asked:
- In the Sikh religion are people permitted to have extramarital relationships with other people?
- [Whether] having a sexual relationship with someone who is not your wife is not acceptable in your religion or your community?
104Even the appellant was asked by his counsel whether, in the Sikh religion, extramarital affairs or extramarital sexual relationships were appropriate.
105Only after this line of questioning was introduced by the defence did the Crown ask about the Sikh culture and religion. The Crown asked Gurpreet’s friend Rajwinder Khaira how she believed divorce was viewed in the Sikh culture, and how a married man is viewed if his wife leaves. Counsel was stopped by the trial judge on the basis that the witness was not a qualified expert to provide authority opinions about cultural norms. The Crown took the position that they were simply asking the witness to recount her opinions based on personal experiences and observations. Nonetheless the trial judge told the jury:
So we’re gonna move on to another area of questioning. But you did hear some questions and some answers from this witness about cultural practices which – or simply her view on what she viewed the cultural practices to be and she expressed that. She’s not an expert in the cultural practices of the Sikh community. She’s provided you with some evidence. It’s perhaps worth something to you, perhaps not. That’s for you to decide. But we’re gonna move on to another area.
106The appellant submits that the Crown then unfairly used this evidence to suggest that the killing was honour-based, thereby bolstering its case on motive and intent and undermining the appellant’s submissions with respect to provocation. In referring to provocation, the Crown said this in closing submissions:
These words would’ve been a direct attack on the accused’[s] belief in a man’s honour and the immorality of adultery, which were deeply connected to his religion and culture. You will remember that he said, “those words are not acceptable to me. Those words put me on fire. She said words bigger than me and I did not have a choice. My ears heard of the affair for the first time and she said it with her own mouth and our religion does not allow this.”
107The appellant submits that this suggestion invited the jury to conclude that he was likely to have killed his wife by virtue of his religion. However, the Crown’s single reference to religion was related to the element of the test for provocation – the ordinary person standard. The Crown’s words, immediately following the above were:
These words are insufficient to deprive an ordinary person of the power of self-control and these words do not meet the legal requirements for provocation.
108We see no prejudice arising from the Crown’s statement.
(iii) The Jury Charge on Motive
109The appellant submits that the trial judge erred by repeating the Crown submissions in the charge to the jury as follows:
The Crown suggests that [the appellant] was aware his wife was having an affair, that she was planning to move to India, thereby dishonouring him. He was upset at the conflict between Gurpreet and his mother and brother, and as a result, it is suggested by the Crown that he took this opportunity to kill her.
110The trial judge did not err in putting the Crown’s theory to the jury. It was known throughout the trial that this was the Crown theory, and the trial judge accurately set it out. There was no objection by defence counsel at the time, perhaps because counsel was making a similar submission in relation to the appellant’s loss of control in relation to provocation.
111The appellant also submits that the trial judge erred in the charge on provocation by saying that “the ordinary person” does not hold extreme religious views, because it implied that the appellant held them.
112We do not accept this submission. In Tran, at para. 34, the Supreme Court stated:
Further, an individualized approach ignores the cardinal principle that criminal law is concerned with setting standards of human behaviour. As Dickson C.J. put it [in R. v. Hill, [1986] 1 S.C.R. 313]: “It is society’s concern that reasonable and non-violent behaviour be encouraged that prompts the law to endorse the objective standard”. Similarly, McIntyre J. in concurring reasons expanded upon this purpose, stating:
The law fixes a standard for all which must be met before reliance may be placed on the provocation defence. Everyone, whatever his or her idiosyncracies, is expected to observe that standard. It is not every insult or injury that will be sufficient to relieve a person from what would otherwise be murder. The “ordinary person” standard is adopted to fix the degree of self-control and restraint expected of all in society.
It follows that the ordinary person standard must be informed by contemporary norms of behaviour, including fundamental values such as the commitment to equality provided for in the Canadian Charter of Rights and Freedoms. For example, it would be appropriate to ascribe to the ordinary person relevant racial characteristics if the accused were the recipient of a racial slur, but it would not be appropriate to ascribe to the ordinary person the characteristic of being homophobic if the accused were the recipient of a homosexual advance. Similarly, there can be no place in this objective standard for antiquated beliefs such as “adultery is the highest invasion of property”, nor indeed for any form of killing based on such inappropriate conceptualizations of “honour”. [Citations omitted.]
113See also: R. v. Humaid (2006), 81 O.R. (3d) 456 (C.A.).
(iv) Ante-Mortem Statements
Statements not admitted for the truth of their contents
114The trial judge admitted certain of Gurpreet’s statements to several family members and friends. The statements were about the deceased’s unhappiness in her marriage, domestic disputes with her husband and brother-in-law, sometimes involving physical violence, and her expressions of fear and loneliness. The trial judge admitted the statements as evidence of Gurpreet’s state of mind and the narrative, not for the truth of their contents. [11]
115The trial judge gave instructions to the jury about these statements midtrial and in the final instructions.
116The midtrial instructions:
This last witness, much – much of her testimony dealt with things that she was told by Gurpreet Brar. Normally, the evidence you hear in the courtroom that I will ask you to consider comes from a witness on this witness stand who is examined in-chief and cross-examined, called by either one of the parties. In this case, for obvious reasons, you are never going to hear from Gurpreet Brar. And so you are left from this witness and from other witnesses that will be called later with her words said to someone else outside the courtroom. So it is evidence that we would normally call hearsay.
I mentioned to you when we started that in my charge at the end I would tell you that there are some types of evidence that you could only use for certain purposes, and that would be a legal direction from me. At the end of this case in my charge, I will tell you what use you can make of those comments that this witness and other witnesses will tell you Gurpreet Brar told them. All right? It is a different type of evidence. It will be part of a specific instruction to you. Okay? Thank you.
117In the final instruction to the jury, the trial judge listed some statements that Gurpreet had made and then instructed as follows:
These are only some of the examples of what Gurpreet Brar is alleged to have told witnesses in this trial about how she was feeling and what was happening to her. You can consider this evidence only for a very limited purpose in helping you to understand the narrative or development of the events; the state of mind of the deceased, Gurpreet Brar, throughout this time. And as well, to explain to you the state of the marriage of Gurpreet Brar and Sukhchain Brar.
You must not use this kind of evidence for its truth. What I mean by that is, it is not evidence that these things described actually happened to Gurpreet Brar or that she felt the way she described for the reasons that she gave.
There are, however, other events which witnesses testified they saw themselves and they experienced themselves. That evidence can be used by you differently and I will describe it as we move along. Remember though with that evidence you will still need to consider whether you believe these things happened and how much weight you choose to give to those events even if you find they did take place.
118The charge took place after multiple meetings with counsel. There was no objection to the charge. We see no error in the trial judge’s charge. The appellant submits that the charge did not go far enough in explaining how the jury was to rely on the evidence. The jury was told they were only to use the statements for a limited purpose, and it was clear to the jury that they were only to use evidence for the purposes described by the trial judge. We see no error in the trial judge's charge.
Statements admitted for the truth of their contents
119There was also evidence admitted for the truth of its contents. The appellant’s daughter testified about a phone call between her parents while Gurpreet was in India. The daughter testified that Gurpreet told her that the appellant said: “You’re lucky you escaped,” - “I would’ve made your image look so bad.” The daughter testified that the appellant said he was joking when she called and asked him about these remarks.
120The deceased’s mother (the daughter’s grandmother) testified that Gurpreet told her that the appellant said if she was in Canada, he would “disfigure her looks”. After Gurpreet’s death, the daughter talked to her grandmother and aunt about this phone call. The daughter did not inform police of this incident when she provided statements.
121The trial judge ruled that he would admit the daughter’s evidence regarding this incident for the truth of its contents. The grandmother’s evidence on this was not admitted for its truth.
122The appellant submits that the trial judge should have highlighted for the jury that the daughter did not mention this phone call in her two statements to the police. The appellant submits that the trial judge should have instructed the jury on how to assess the reliability of the daughter's evidence. He submits that the jury should have been told how to make reliability findings regarding this evidence in light of the fact that she did not report the conversation to police and because she testified that she did not remember the incident until her grandmother reminded her.
123It was not an error for the trial judge to have failed to instruct the jury on the reliability of the daughter’s evidence. Trial judges are not required to highlight all possible issues with every piece of evidence. There was no objection to the charge despite much time spent in pre-charge conferences. The jury was aware of the concerns stemming from the daughter's evidence and she was candid about why she did not tell the police about the statements and that her memory of the incident came back after speaking with her grandmother and aunt.
124The appellant further submits that the trial judge erred in failing to give a limiting instruction in relation to the grandmother’s evidence. We see no error in this aspect of the trial judge’s charge. The parties did not rely on the grandmother’s version and the trial judge’s references were to the daughter’s evidence in relation to this incident.
125We see no error in this aspect of the trial judge’s charge.
(v) After-the-fact Conduct
126The appellant takes issue with two aspects of what he refers to as after-the-fact conduct evidence: (a) that the trial judge misdirected the jury on this evidence; and (b) that the trial judge failed to correct the Crown’s closing as it related to this evidence.
127Recall that after the appellant struck his wife over the head with a mallet, he drove his truck some distance away, parked it on the side of the highway and then lit his wife and the truck on fire. The appellant then exited the truck and stood on the median, watching as the fire grew. The appellant did not call 911. Nor did he disclose to civilians, who stopped to see if they could offer assistance, that his wife was inside of the burning truck. And, when speaking with three different police officers, he feigned ignorance about the cause of the fire.
128By the time of trial, the appellant accepted that he had not only killed his wife, but that he had intentionally set the fire in an effort to conceal his actions. To him, there was “no other solution” to the predicament that he found himself in other than to burn his wife’s brutalized body in order to hide her head injuries and thus to avoid jail.
129Crown counsel asked the trial judge to make a ruling on after-the-fact conduct before counsel closed to the jury. Recall that two canisters were located on the truck, both with gasoline and diesel fuel in them. This was unusual in the sense that the truck was fuelled by diesel, but not unusual in the sense that, as an expert explained, if you want to set a successful fire, gasoline ignites and burns more easily than diesel. As the trial judge noted, it was the Crown’s theory that from the moment that the gasoline/diesel cans were put into the vehicle, to the time that the fire was lit, the appellant was “putting in motion the plan he had deliberated about.”
130Therefore, the trial judge concluded that anything up to and including the setting of the fire could be considered by the jury when deliberating upon intention for murder, as well as planning and deliberation. As the trial judge said during a colloquy with counsel:
[T]he issue of the fire itself and the setting of the fire and the … presence of the paper towels in the truck and the presence of the [gasoline/diesel mix] in the truck, the presence of the mallet in the cab are all factors that the jury can take into account with regard to his intention because it’s all part of [the Crown’s] theory that in fact this was all planned and deliberate…
131The trial judge further concluded that anything following the setting of the fire could only be considered as part of the narrative.
132The jury was charged exactly in accordance with the trial judge’s ruling. As it related to the evidence following the setting of the fire, the trial judge said:
What [the appellant] did and said after he caused the death of Gurpreet and set the fire to his truck, is information provided to you so that you can see how this event developed on the scene. What in law we would call the narrative of the case…
However, it is of no value to you in deciding whether [the appellant] intended to kill his wife. His actions and comments after he struck her with the mallet and set fire to the truck are just as consistent with his admission of committing manslaughter as they are with committing murder and therefore, this body of evidence cannot assist you in your task of determining whether he had had the necessary intent for murder beyond a reasonable doubt.
133The appellant claims that the trial judge erred in failing to conclude that everything following the striking of his wife’s head with the mallet constituted after-the-fact conduct, such that it should have attracted a specific limiting instruction. In advancing this submission, the appellant emphasizes that he believed that he had killed his wife with the mallet. Accordingly, when he set fire to the truck, it was in circumstances where he believed that his wife was already dead. Against that factual backdrop, he argues that the jury should have been instructed that the setting of the fire was of no assistance to them in determining the issues of intention or planning and deliberation, unless they first concluded that the appellant had placed the gasoline and diesel cans on the truck as part of a pre-developed plan to kill his wife.
134We cannot accept this submission.
135We start with a practical observation, that in the circumstances of this case, the fire cannot be properly characterized as after-the-fact conduct because it formed part of the unlawful act resulting in death. Regardless of what the appellant testified to regarding his belief as to when his wife died, the fact is that Gurpreet did not die just from the blows to her head. Rather, the pathology evidence was clear that she also died from smoke inhalation. Consistent with this pathology evidence, the jury was instructed that the second essential element for murder, the unlawful act resulting in death, included the fire. The fire having been properly named as one of the unlawful acts causing death, it could not also be characterized as after-the-fact conduct.
136In any event, even if the appellant believed that he had successfully killed his wife by striking her with the mallet, this did not relegate the fire to after-the-fact conduct. In the circumstances of this case, there was a formidable body of evidence suggesting that the fire was all part of a master plan to kill the victim and turn her beaten body and all other evidence of the intentional murder to ashes. As the trial judge noted, there was a direct line between placing gasoline/diesel cans on a diesel truck and the setting of the fire. And as the trial Crown made clear throughout, including in her closing address to the jury, the fire was always part of the appellant’s murderous plan. In these circumstances, there was no need to instruct the jury that they needed to make a finding about the placement of the gasoline/diesel cans onto the truck, before they could use evidence of the unlawful act of setting the fire to inform the essential elements of intention or planning and deliberation.
137As for the Crown closing, as evidenced by the lack of any objection, there was no need for a corrective instruction.
138The Crown’s closing address accorded exactly with the trial judge’s ruling. While the Crown was prepared to accept that the appellant may well have believed that Gurpreet was dead after he struck her in the head with the mallet, this did not detract from the straight line between the taking of gasoline/diesel cans onto a diesel truck and the setting of the fire. The Crown drawing that straight line, one that revealed intention and planning, was anything but an invitation to use after-the-fact conduct and did not require any corrective instruction.
IV. Conclusion
139For all these reasons, we dismiss the appeal.
Released: April 11, 2024 Fairburn A.C.J.O. Doherty J.A. M.L. Benotto J.A.
