COURT OF APPEAL FOR ONTARIO
Zarnett, Coroza and Monahan JJ.A.
BETWEEN
His Majesty the King
Respondent
and
James Scordino
Appellant
Nathan Gorham and Breana Vandebeek, for the appellant
Katie Doherty, for the respondent
Heard: May 7, 2024
On appeal from the conviction entered by Justice Clayton Conlan of the Superior Court of Justice, sitting with a jury, on March 8, 2019.
OVERVIEW
1Angela Skorulski’s body was discovered in her Oakville apartment on March 8, 2017. She had not been seen or heard from since February 13, 2017; the condition of her body was consistent with that being the date of her death. Forensic pathology evidence established that she had been shot multiple times – the final time with the gun pressed directly to the back of her head.
2Although there was no direct evidence of exactly how events transpired inside her apartment leading up to her being shot, significant evidence connected the appellant to Ms. Skorulski, the place of her killing, and the weapon that was used. Video from the apartment building’s surveillance cameras showed the appellant meeting Ms. Skorulski on February 13 at the entrance way of the building and approaching her unit together. Later that day, it captured him leaving the building alone. The gun used to kill Ms. Skorulski was found hidden at the appellant’s workplace and bullets and documents relating to the gun were found hidden at his home.
3The appellant was tried on a charge of first degree murder. The jury found him guilty. He challenges his conviction, raising three grounds.
4First, the appellant asserts the trial judge erred in refusing to leave the included offence of manslaughter with the jury on the basis that there was no realistic possibility of a verdict of manslaughter. Although the appellant acknowledges that a judge may remove an included offence from the jury’s consideration, he submits it was wrong to do so in this case because there was a plausible theory on which manslaughter was a realistically possible outcome.
5Second, the appellant submits that even if the trial judge was right to remove manslaughter from the jury’s consideration, the trial judge erred by instructing the jury that if they were satisfied the appellant was the shooter, they were to find he had the required state of mind for murder1 and proceed to consider whether the killing was planned and deliberate.2 The appellant submits that the trial judge was not entitled to direct the jury to find an essential element of the offence of murder was proven, and in effect direct them (as long as they were satisfied that the appellant was the shooter) to convict of at least second degree murder, regardless of the trial judge’s own view as to whether the killing was intentional.
6Third, the appellant argues that the trial judge erred in the way he instructed the jury on the use of evidence of the appellant’s after-the-fact conduct.3
7For the reasons that follow, I would dismiss the appeal.
8The first two issues raised by the appellant require close attention to the boundary between the powers of the judge and the jury. On one hand, the trial judge has the power to decide that an included offence is not to be left with the jury. On the other hand, on the offence charged and any included offence that is being left with the jury, only the jury may determine that the essential elements have been proven – the trial judge may not direct the jury that any non-admitted essential element has been proven or direct them to convict. As in this case, the question on which the exercise of each power may turn – here, whether the killing could be viewed as unintentional – may overlap. Yet, the boundary must be strictly observed.
9As I explain below, the trial judge did not err in refusing to leave the included offence of manslaughter with the jury. As this court held in R. v. Ronald, 2019 ONCA 971, at paras. 42 and 47, potential liability for an included offence may be removed from the jury’s consideration where on “the totality of the evidence and having due regard to the position of the parties and the proper application of the burden of proof, there is no realistic possibility of an acquittal on the main charge and a conviction on [the] included offence”. The trial judge was entitled to find, within the parameters of his power not to leave an included offence with the jury, that if the jury was satisfied that the appellant was the shooter there was no realistic possibility of a verdict of manslaughter. This conclusion was available based on the uncontested forensic pathology evidence that Ms. Skorulski was shot repeatedly in the head, including a final time with the gun pressed directly to the back of her head after she was already incapacitated by a previous shot. The trial judge, in this context, was entitled to find that, “it could not possibly have been an accidental shooting or an unintentional killing.”
10But I agree with the appellant that the trial judge erred in directing the jury, on the charged offence and the included offence of second degree murder, that they were to find the appellant had the mental state for murder if satisfied he was the shooter. The trial judge’s power to decline to leave the included offence of manslaughter with the jury allowed him to consider the question of the shooter’s intention. But the trial judge did not have the power to direct the jury that they must find the Crown had proven the killing was intentional beyond a reasonable doubt on the offences the jury was to consider. With respect to those offences, the determination of whether the appellant had the state of mind for murder was up to the jury, even though it involved the same question of the shooter’s intention. The similarity, if not complete overlap, of the intention question does not detract from the more basic point of who was empowered to make the determination. On the charged offence and the included offence on which the jury was instructed, it was up to the jury to decide if they had a reasonable doubt about any of the essential elements.
11Even though the trial judge erred in this aspect of his instruction, I would apply the curative proviso. The jury was properly instructed on what to consider in determining whether the killing was planned and deliberate. In deciding that the killing was planned and deliberate and therefore convicting the appellant of first degree murder, the jury must necessarily have considered the killing to have been intentional. The trial judge’s error could not have affected the verdict.
12Finally, I see no error in the trial judge’s instructions on after-the-fact conduct, a conclusion fortified by the absence of any objection to the instructions about this evidence at trial.
FACTUAL AND PROCEDURAL CONTEXT
The Facts
13The appellant and the victim were co-defendants in a civil claim by the University of Toronto. The claim alleged they participated in a scheme to falsely invoice the University for elevator repairs. In the days leading up to her death, the two were in frequent contact about the claim.
14Ms. Skorulski wanted the appellant to take full responsibility for the claim. She wrote a statement to this effect for him to sign. The appellant sent a text message to Ms. Skorulski stating that he had advised his lawyer of her request and that the lawyer wanted an executed hardcopy. Ms. Skorulski told a friend and her lawyer that the appellant had assured her he was going to take responsibility for the claim. On February 12, 2017, Ms. Skorulski printed a copy of the statement. It provided that the appellant would direct his lawyer that the appellant would “accept full and sole responsibility for wrong doing … [and for] payment/damages in this law suit … would like [Ms.] Skorulski … removed from this law suit … [and would] indemnify [Ms.] Skorulski…”. It had a blank line for the appellant’s signature.
15There was also evidence that the appellant was concerned and nervous about the claim, and that he had told his girlfriend (inconsistently with the assurances that Ms. Skorulski believed she had received) that he was not willing to “take the fall” for the lawsuit.
16The appellant attended Ms. Skorulski’s apartment building on February 13, 2017. Video evidence showed them meeting on the ground floor, going up to the floor of her apartment, and walking together towards her unit. It showed the appellant leaving the building alone about two hours later by a back stairwell, with his head down and a hood pulled up.
17Ms. Skorulski was never seen alive or heard from after being recorded approaching her apartment with the appellant on February 13. Her key fobs for the apartment building were never used again. The building’s video cameras did not show anyone else going into or leaving her apartment. When her body was discovered on March 8, she was wearing the same clothing as she had been when seen on video on February 13.
18Five shots were fired in the apartment. According to the forensic pathologist whose evidence was introduced as agreed facts, Ms. Skorulski was shot four times in the head. The likely order of the shots that hit the victim was as follows. The first caused a grazing wound to the top of her head. The second caused a grazing wound across her left cheek beside the left eye. The third penetrated her face and mouth and went through to the back of the throat. This gunshot would have been incapacitating in short order; it would have been lethal absent urgent medical care. The fourth and final shot was a tight contact gunshot taken with the barrel of the gun firmly against the back of victim’s head. The bullet from the final shot went through the skull and brain. It would have been rapidly lethal.
19When police executed a search warrant at the appellant’s workplace, they located a bag under boxes. The bag had the appellant’s fingerprints on it and contained clothing matching what the appellant was wearing on February 13. The clothing had both Ms. Skorulski’s blood and gunshot residue on it.
20A gun registered in the name of the appellant’s grandfather was found in the ceiling of an office at the appellant’s workplace. Ballistic evidence from Ms. Skorulski’s apartment matched the gun. DNA was found on the gun – neither Ms. Skorulski nor the appellant could be excluded as the source of the DNA.
21Police also executed a search warrant at the appellant’s home. They located a partial box of ammunition that could be used with the gun found at his workplace – the same brand as the five fired cartridge cases recovered from the gun. They also found paperwork relating to the gun.
22In contrast to their frequent communication before his attendance at Ms. Skorulski’s apartment, the appellant made no attempt to contact her by phone or text after he left the apartment on that date. Despite their relationship he did not attend her funeral. An examination of his cellphone indicated that he had deleted text communications with Ms. Skorulski including those about the statement she had wanted him to sign on February 13.
23The appellant called no evidence.
The Ruling on Leaving Manslaughter with the Jury
24The Crown’s theory at trial was that the appellant was the shooter and the killing was planned and deliberate. On the Crown’s theory, the claim by the University was the motive for the killing – with Ms. Skorulski out of the way, the appellant could blame her for the events giving rise to the claim. The Crown theorized that the appellant misled Ms. Skorulski in telling her it was his intention to take responsibility for the claim, as a ruse to meet with her on February 13. He arrived armed. He had the opportunity to kill her during the more than two hours he was at her apartment. The number of shots and the way the final shot was administered were inconsistent with acting on the sudden. No one else ever saw or heard from her, making him the last person to see her alive. He deleted text messages with her, and did not attempt to contact her after February 13, indicating that he knew she was dead when others did not. He attempted to hide the clothing he had been wearing, which had the victim’s blood on it. The gun, ammunition and related paperwork were found hidden in locations associated with the appellant.
25The trial judge invited submissions, before instructing the jury, on the potential verdicts that should be left with the jury. The trial Crown argued that there was no basis to leave manslaughter with the jury, as what occurred could only have been “an intentional killing in these circumstances”. The trial Crown relied specifically on the last shot being a “tight-contact wound to the back of the head with a firearm.” In dialogue with the trial judge, the trial Crown made it clear that the Crown’s position was both that manslaughter should not be left as an available verdict and that when the jury reached the question of whether the appellant had the state of mind for murder they should be directed to answer the question “yes”, and move on to consider planning and deliberation.
26Defence counsel at trial opposed removing manslaughter as an available verdict and stated that a judge should not be directing a verdict. He argued that there were plausible hypotheticals – for example, the jury could find a gun was brandished, and then there was a struggle. He alluded to “a spur of the moment, in the heat of passion or argument that takes place”. He acknowledged that the number of gunshots would not in the normal course amount to manslaughter. But he stressed that whatever the views of counsel or the judge on the strength of the evidence, it was ultimately for the jury to decide.
27The trial judge decided to remove manslaughter as an available verdict. In his written reasons he stated, in part:
For the jury to find [the appellant] guilty of manslaughter, it would have to accept that he was the person who shot the victim and, in doing so, that he caused her death unlawfully. Those are the essential elements of the offence of unlawful act manslaughter.
Then the jury would have to decide that [the appellant] did not have the state of mind required for murder, or more precisely, the jury would have to be left with a reasonable doubt in that regard. The said state of mind required for murder is that [the appellant] meant to kill Ms. Skorulski or to cause her bodily harm that he knew was likely to kill her and was reckless whether she died or not.
Here, given the evidence, and given the absence of any alternative explanation offered by the accused, and given the absence of any other evidence at trial that is capable of positing a different version of how the shooting occurred, that would be a perverse result.
Putting aside rank speculation, the only evidence at trial as to the sequence and placement and manner of the gunshots fired inside the victim's residence is that of the forensic pathologist, Dr. John Fernandes, whose evidence was filed on consent as an Agreed Statement of Fact which was marked an Exhibit.
A review of Exhibit 11 reveals that this woman was shot in the head multiple times. That is what caused her death. The fourth and final shot that struck Ms. Skorulski was with the barrel of the gun pressed firmly up against the victim's head. The back of her head. While she was already incapacitated from prior gunshot wounds to the head.
In those circumstances, this can only be taken as an intentional killing. It could not possibly have been an accidental shooting or an unintentional killing. It was, essentially, an execution.
It would be a disservice to the criminal justice system to leave the verdict of manslaughter to the jury on the state of this evidentiary record. There is simply no air of reality to it.
Thus, the decision that I made at Court on March 5th. The jury was left with three available verdicts – (i) not guilty, (ii) guilty of second degree murder, and (iii) guilty of first degree murder.
28The trial judge’s reasons did not expressly say that because he was removing manslaughter from the jury it followed that he should direct the jury to find, on the charges the jury was to consider, that the killing was intentional and therefore, if the appellant was the shooter, that he had the state of mind required for murder. However, he proceeded to do so, as the trial Crown requested.
The Jury Instructions Regarding Available Verdicts
29In his instructions to the jury, the trial judge outlined four questions for the jury to answer; he provided the jury with a decision tree that set the questions out and described the effect of the answers.4 The questions were:
(1) Did the appellant cause the death of Ms. Skorulski?
(2) Did the appellant cause the death unlawfully?
(3) Did the appellant have the state of mind required for murder?
(4) Was the appellant’s murder of Ms. Skorulski both planned and deliberate?
30The trial judge summarized the main factual issue that drove the answer to questions (1) and (2) as “whether it was [the appellant] who shot Ms. Skorulski.” He instructed the jury that if they answered “no” to either question, they should find the appellant not guilty. He also instructed them that if they found the appellant was the shooter, then the appellant caused the victim’s death and did so unlawfully, and they should answer the first two questions “yes” and move on to questions 3 and 4.
31He then told the jury that in that event: “[o]n question number three, whether [the appellant] had the required state of mind for murder, you should answer that question “yes” and move on to the next question” (planning and deliberation). Consistent with this, the decision tree did not provide for a “no” answer to the question of whether the appellant had the state of mind for murder.
32On the fourth question, planning and deliberation, the trial judge instructed the jury that to convict for first degree murder, the Crown had to prove that the murder was both planned and deliberate. He instructed them that:
“Planned” means a calculated scheme or design that has been carefully thought out … [a] planned murder is one that is committed as a result of a scheme or plan that has been previously formulated or designed. It is the implementation of that scheme or design. A murder committed on a sudden impulse and without prior consideration, even with an intention to kill, is not a planned murder.
He also instructed them that a “deliberate act is one that the actor has taken time to weigh the advantages and disadvantages of. The deliberation must take place before the act of murder starts. A murder committed on a sudden impulse and without prior consideration, even with an intention to kill, is not a deliberate murder.”
33The jury was told that if they answered question 4 “no” because they were not satisfied that the murder was both planned and deliberate, they “must find [the appellant] not guilty of first degree murder, but guilty of second degree murder”. The jury was also told that if they answered question 4 “yes” because they were satisfied that the murder was both planned and deliberate, “you must find [the appellant] guilty of first degree murder.”
The Jury Instructions on After-the-Fact Conduct
34Among other evidence that he reviewed for the jury in his instructions, the trial judge referred to after-the-fact conduct evidence, specifically evidence that the appellant deleted certain messages, did not try to contact Ms. Skorulski after February 13, 2017, and did not attend her funeral. He told the jury that this evidence may or may not help them decide if the appellant was the person who committed the offence. He told them that if they accepted these facts, they were a type of circumstantial evidence; he instructed them about the use of circumstantial evidence. He reminded them that the after-the-fact conduct had only an indirect bearing on guilt and could be used only if the jury rejected any other explanation for the conduct. He cautioned them not to “jump to the conclusion that the post-offence conduct is a sign of [the appellant’s] guilt.”
ANALYSIS
(1) The First Two Grounds of Appeal: Did the Trial Judge Err in his Decision to Remove Manslaughter from the Jury or in Directing the Jury to Find the Appellant Had the State of Mind for Murder?
35The trial judge and counsel at trial addressed the questions of (i) whether the included offence of manslaughter should be left with the jury, and (ii) whether the jury should be directed to find that if the appellant was the shooter he had the state of mind for murder, as though they were essentially the same question and must have the same answer.5 This approach was erroneous. In order to properly analyze each of these grounds of appeal, it is first necessary to set out the different powers of the trial judge and jury with respect to each question.
(a) Legal Principles: The Separate Powers of the Judge and Jury
36Whether a jury should be instructed on included offences is a question for the trial judge. The trial judge’s authority not to instruct on an included offence is exercised for the purpose of focussing the jury’s attention “on the live issues actually raised by the evidence”: Ronald, at para. 43. Like the trial judge’s power to keep from the jury affirmative defences that do not have an air of reality, the power to decide not to leave an included offence with the jury seeks to reduce “the risks of unreasonable verdicts, juror confusion, or improper compromise”: Ronald, at para. 43.
37Indeed, like the analysis of whether an affirmative defence should be left with the jury, the question of whether the jury should be instructed on an included offence uses an air of reality test as the applicable standard.6 In considering whether to instruct on an included offence the judge considers whether, “on the totality of the evidence, the jury could reasonably be left in doubt with respect to an element of the main charge that distinguishes that charge from an included offence”: Ronald, at para. 46. For example, if on the totality of the evidence in a first degree murder trial, the jury could reasonably be left in doubt about planning and deliberation, second degree murder must be left with the jury. There should be no instruction on an included offence only when on “the totality of the evidence and having due regard to the position of the parties and the proper application of the burden of proof, there is no realistic possibility of an acquittal on the main charge and a conviction on [the] included offence”: Ronald, at para. 42; R. v. Wolfe, 2024 SCC 34, 98 C.R. (7th) 217, at para. 50.
38The trial judge’s power not to instruct the jury on an included offence, and the applicable standard for exercising the power, must be kept separate, analytically, from the issue of what directions may be given to the jury on the main charge and on any included offence that is being left with the jury. With respect to those offences, it is a basic principle that although the trial judge can direct an acquittal, only the jury can decide that the non-admitted essential elements of the offence(s) have been proven, and only the jury can decide to convict, regardless of the judge’s views about what results are reasonable, realistic, or possible: R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627, at paras. 27-31.
39In Gunning, Charron J. observed that this basic principle is not affected by the fact that a trial judge has the power to decide, using an air of reality test, that an affirmative defence is to be kept from the jury. At para. 5 she explained that “[i]t is a basic principle of law that, on a trial by judge and jury, it is for the judge to direct the jury on the law and to assist the jury in their consideration of the facts, but it is for the jury, and the jury alone, to decide whether, on the facts, the offence has been proven … The trial judge’s duty to keep from the jury affirmative defences lacking an evidential foundation does not detract from this principle.” She went on at paras. 28-31 to point out:
Subject to one exception, it is also the exclusive domain of the jury to determine the verdict. An exception lies where the judge is satisfied that there is no evidence upon which a properly instructed jury could reasonably convict, in which case, it is the judge’s duty to direct the jury to acquit the accused. This exception is made in order to safeguard against wrongful convictions. However, there is no corresponding duty or entitlement to direct a jury to return a verdict of guilty.
As a corollary of the trial judge’s duty to instruct the jury on the law, it is a well-established principle that a judge should withdraw a defence from the consideration of the jury when there is no evidence upon which a properly instructed jury acting reasonably could find in the accused’s favour … This threshold test, requiring that a defence be put to the jury only if there is an evidential foundation for it, is often referred to as the “air of reality” test.
It is important to note that the “air of reality” test has no application in respect of the question of whether the Crown has proved beyond a reasonable doubt each essential element of the offence….
Hence, it is never the function of the judge in a jury trial to assess the evidence and make a determination that the Crown has proven one or more of the essential elements of the offence and to direct the jury accordingly. It does not matter how obvious the judge may believe the answer to be. Nor does it matter that the judge may be of the view that any other conclusion would be perverse. The trial judge may give an opinion on the matter when it is warranted, but never a direction. [Emphasis added.]
40It follows, in my view, that the trial judge’s power to remove an included offence from the jury’s consideration – because there is no air of reality in the evidence to permit a reasonable jury to acquit on the main charge but convict on that included offence – also does not detract from the basic principle enunciated in Gunning. Trial by jury is a constitutionally protected right: Canadian Charter of Rights and Freedoms, s. 11(f). Even if the evidence for guilt is, in the eyes of the trial judge, overwhelming, to direct a verdict of guilty would deprive an accused of that constitutional right: R. v. Krieger, 2006 SCC 47, [2006] 2 S.C.R. 501, at para. 29.
41As Gunning makes clear, a trial judge cannot direct the jury to convict or to find that the Crown has proven a non-admitted essential element of the offence no matter how overwhelming the evidence may be on that point. The jury is entitled to have a reasonable doubt about a non-admitted element of an offence, even where the trial judge is of the view that such a conclusion would be perverse. Justice Fish emphasized this point again in Krieger, noting that if a single element could be withdrawn from the jury on the basis that the trial judge considers the evidence overwhelming, then so too could all of the other elements if the trial judge were convinced the evidence on those elements was overwhelming also. This would not be a trial by jury: Krieger, at para. 22.
(b) Application to this Case
42When the trial judge was asked not to instruct the jury on manslaughter, he was asked to exercise a power he undoubtedly had. But whether he chose to exercise the power, and why, could have no bearing on whether the jury could be directed to find that the appellant had the state of mind required for murder when they were instructed on the main charge and the included offence of second degree murder. The trial judge simply did not have the power, with respect to those offences, to “make a determination that the Crown has proven one or more of the essential elements of the offence and to direct the jury accordingly … [no] matter how obvious the judge may believe the answer to be”: Gunning, at para. 31.
(i) The Trial Judge Did Not Err in Removing Manslaughter from the Jury
43In my view the trial judge did not err in determining not to instruct the jury on manslaughter.
44It was open to the trial judge to find, within the parameters of the evidentiary review permitted to him on that question, that Ms. Skorulski’s death “could not possibly have been an accidental shooting or an unintentional killing.” That finding meant, using the Ronald formulation of the test, that in the trial judge’s view there was no realistic possibility of an acquittal on the main charge of first degree murder and the included offence of second degree murder, and a conviction on the included offence of manslaughter. That possibility could only exist if the jury could reasonably be left in doubt about whether the killing was intentional: Ronald, at paras. 42, 46; R. v. Hodgson, 2024 SCC 25, 494 D.L.R. (4th) 501, at para. 48.
45I do not accept the argument that defence counsel at trial suggested a plausible theory that allowed for the realistic possibility of an acquittal on first and second degree murder and a conviction on manslaughter. The “struggle” scenario was completely speculative. But even if one hypothesized a struggle at some point, the forensic pathologist’s evidence describing the number, likely sequence, effect, and location of the gunshots, with the (likely) final one delivered with the gun pressed directly to the back of the victim’s head when she was already incapacitated by a prior shot, is consistent only with the shooter having an intention to kill. The forensic evidence was adduced as an agreed statement of fact on consent.
(ii) The Trial Judge Erred in Directing the Jury to Find the Appellant had the State of Mind for Murder
46As explained above, the trial judge did, however, err in directing the jury that, “[o]n question number three, whether [the appellant] had the required state of mind for murder, you should answer that question “yes” and move on to the next question”. Although that conclusion may have flowed logically from the reasons that the trial judge gave for not instructing on manslaughter, the sole power to decide whether that essential element was proven on the charge of murder belonged to the jury. To be sure, the trial judge could have offered his opinion on how the jury should address that issue, but he could not direct them on how to answer it.
47I do not accept the Crown’s argument that the trial judge could direct the jury as he did because the pathology evidence was adduced in an agreed statement of fact, which the jury was instructed they must accept “as facts in this case”. The agreed facts regarding the pathology evidence are not an admission of intention. The trial judge may have properly considered it as evidence of intention that was overwhelming, but intention remained a live issue – in the sense of an issue that was not admitted – and it was for the jury to decide whether the Crown had proven it beyond a reasonable doubt.
(c) The Curative Proviso
48The Crown asks in the alternative that the appeal on the ground of improperly directing the jury to find the state of mind for murder be dismissed by resort to the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, under which an appellate court may, notwithstanding a wrong decision at trial on any question of law, dismiss the appeal if it is satisfied “that no substantial wrong or miscarriage of justice has occurred”. The proviso may apply where the Crown shows either that the legal error was harmless in the sense that it could have had no effect on the verdict, or that the evidence was so overwhelming that a trier of fact would inevitably convict: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 26-31.
49The appellant argues that the proviso is unavailable in these circumstances. He relies on the refusal to apply the proviso in Krieger, a case where the trial judge had expressly directed the jury to return a verdict of guilty and “[made] it plain to the jurors that they were not free to reach any other conclusion”, reiterating this direction when he refused the request of two jurors to be excused: at paras. 8-9. At para. 25 of Krieger, Fish J. stated: “[the proviso] may perhaps be applied where there has been an imperfect trial by jury but not where, as here, there has in effect been no trial by jury at all.”
50This case is distinguishable from Krieger, where the trial judge completely “usurped the jury’s function” with the result that “their verdict was that of the judge; it was theirs only in form”: at para. 2. Here, the trial judge did not direct the verdict the jury reached – guilty of first degree murder. The jury here was given a number of paths to a verdict of not guilty. Although the inability of a trial judge to direct a finding on an essential element of an offence, and the inability to direct a conviction, are aspects of the same principle, I do not accept the appellant’s argument that for the purposes of the proviso, directing that the jury find an essential element must in all cases be treated the same way as if the jury was directed to convict of a certain offence and then did so.
51In considering the applicability of the proviso, regard may be had to the findings of fact implicit in the jury’s verdict: Ronald, at paras. 68-69. The jury was instructed, properly, on planning and deliberation. Their conclusion, that the killing was planned and deliberate, necessarily includes the conclusion that the killing was intentional. The jury could not have concluded, beyond a reasonable doubt, that the appellant planned to kill Ms. Skorulski, deliberated on the advantages and disadvantages of doing so, and then killed her to implement his plan, while having a reasonable doubt about whether he killed her intentionally.
52Notwithstanding that the jury was told to find the appellant had the state of mind for murder, their conclusion that the killing was planned and deliberate means they found he had that state of mind in planning to kill Ms. Skorulski, deliberating about it, and then implementing the plan and killing her. Therefore, the trial judge’s error was harmless in the sense that it could not have affected the verdict.7 In the language of Krieger, this was not a case of “in effect…no trial by jury at all” but of an “imperfect trial by jury”: at para. 25. The imperfection was harmless as it caused no prejudice to the appellant – the jury’s verdict was its own in form and substance, not that of the trial judge.8
(2) The Third Ground of Appeal: Did the Trial Judge Err in his Instruction on After-the-Fact Conduct Evidence?
53The appellant argues that the instruction on after-the-fact conduct was flawed in three respects.
54First, he submits that the trial judge should have instructed the jury that the evidence that the appellant did not attend the victim’s funeral had no probative value.
55Second, he argues that a limiting instruction was required so that the jury would not use the evidence to decide the appellant’s level of culpability. Although the evidence of deleting messages could have supported the inference that the appellant had done something wrong and wanted to hide it, and the evidence of not communicating with Ms. Skorulski after February 13 could have supported the inference that he knew Ms. Skorulski was dead, the appellant submits that those inferences could only be relevant to whether the appellant was the shooter, not to whether the killing was planned and deliberate.
56Third, the appellant submits that the trial judge did not identify what inferences could be drawn from the after-the-fact conduct, enhancing the risk that the jury would misuse the evidence.
57I do not accept these submissions.
58Appellate courts take a functional approach to the review of jury instructions for legal error. An accused is entitled to a jury that is properly, not perfectly, instructed. The overriding question is whether the jury was properly equipped to decide the case according to the law and the evidence – a properly equipped jury being one that is both accurately and sufficiently instructed. Any alleged errors will be considered within the context of the entire jury instruction and the trial as a whole: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 34-37; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 8-9; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32.
59After-the-fact conduct evidence is a type of circumstantial evidence that can pose unique reasoning risks. As the Supreme Court has recognized, jurors may be tempted to “jump too quickly from evidence of [after-the-fact] conduct to an inference of guilt” without properly considering alternative explanations for the conduct in question: R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at para. 57 (“White (1998)”). In many circumstances, trial judges can address this risk by providing a general cautionary instruction and informing the jury that they must consider other explanations for the accused’s actions: White (1998), at para. 57; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 24 (“White (2011)”); Calnen, at para. 117.
60The trial judge appropriately cautioned the jury against these risks. He cautioned them not to jump too quickly from the evidence to an inference of guilt. He instructed them to consider alternative explanations, to use the evidence only if they rejected any such explanations, and in all events to be cautious in using this evidence.
61The appellant challenges the probative value of only one aspect of the after-the-fact conduct evidence – the appellant’s non-attendance at Ms. Skorulski’s funeral. The appellant submits that a specific no probative value instruction was required. But generally, it is for the jury, assuming it has been appropriately cautioned, to assess the evidence of after-the-fact conduct in the context of all the evidence and to consider what inference, if any, to draw from it in the context of any explanations: Calnen, at paras. 112, 117, 124 and 137. In this case it was open to the jury to consider the funeral non-attendance, in light of the prior business and personal relationship between the appellant and the victim, as potentially probative on the question of whether the appellant had anything to do with the victim’s death, and to decide whether it was helpful. This is not a case where that conduct was equally consistent with competing inferences such that the trial judge had to provide a no probative value instruction to the jury: R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, at p. 145; White (2011), at para. 60.
62The appellant also submits that the trial judge had to warn the jury not to use the after-the-fact conduct evidence to help them decide whether the appellant had the mens rea for first degree murder. In some cases, such an instruction may be necessary. For example, where the accused has admitted to the actus reus of the offence, after-the-fact conduct evidence will often not be relevant to distinguishing between different mens rea, as such evidence will be equally consistent with multiple offences: R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 52; Calnen, at para. 121.
63But whether such an instruction was necessary here is a case specific inquiry: R. v. Adan, 2019 ONCA 709, at para. 35. There was no appreciable risk that the jury would use this evidence on the issue of planning and deliberation, thereby necessitating a specific warning. The trial judge reviewed the evidence on the issue of planning and deliberation for the jury without making any reference to the after-the-fact conduct evidence. Nor did defence counsel at trial ask for any such warning or object to the failure to include one in the instructions to the jury.
64The appellant submits that the trial judge should have outlined the specific inferences that could be drawn by the jury from the after-the-fact conduct evidence. But such a clarification was neither requested by defence counsel at trial nor legally required to make the instructions to the jury sufficient in the circumstances of this case. Indeed, defence counsel’s concern about the instructions as a whole was that they said too much, not too little, about the evidence.
65A failure to object is relevant, although not determinative, on the sufficiency of jury instructions. It may be “particularly relevant” to whether a contingent instruction was required – such as a limiting instruction against general propensity reasoning – or to whether an instruction that was given was sufficiently detailed: Abdullahi, at paras. 67-68. Here, the failure to object lends support to the conclusions that the warnings and cautions in the instructions to the jury about the after-the-fact conduct evidence were, in the context of the case and viewed from a functional perspective, sufficiently detailed and that a more specific limiting instruction was unnecessary.
DISPOSITION
66I would dismiss the appeal. The appellant’s notice of appeal sought leave to appeal sentence, but this was not pursued in the appellant’s factum or oral argument. I would not grant leave to appeal sentence.
Released: January 13, 2025 “B.Z.”
“B. Zarnett J.A.”
“I agree. Coroza J.A.”
“I agree. P.J. Monahan J.A.”
Schedule A
Footnotes
- A person has the state of mind for murder when they mean to cause the victim’s death or mean to cause bodily harm that they know is likely to cause death and are reckless whether death ensues or not: Criminal Code, R.S.C. 1985, c. C-46, s. 229(a).
- Murder can be first or second degree. Murder is first degree murder when it is planned and deliberate: Criminal Code, ss. 231(1) and (2).
- Sometimes referred to as “post-offence” conduct.
- A copy of the decision tree is appended as Schedule A to these reasons.
- The trial Crown asked that the jury be directed to find the appellant had the state of mind for murder, a direction the Crown viewed as flowing directly from the position that manslaughter should not be left with the jury. Defence counsel opposed taking manslaughter away from the jury in part by citing the principle that a judge should not direct a jury’s findings. The trial judge accepted the Crown’s position.
- See for example R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 75. As Doherty J.A. pointed out in Ronald, although the substance of the test is the same, the accused has a burden to point to evidence that gives an affirmative defence an air of reality, while neither the Crown nor the accused has any burden when it comes to the question of instructing the jury on included offences: at paras. 43-46. See also R. v. Tenthorey, 2021 ONCA 324, 404 C.C.C. (3d) 457, at paras. 64-68.
- Had the jury found the appellant guilty of second degree murder, but not first degree murder, the result would likely be different. In that situation, it could not be said that the error had no effect on the verdict, because it would not be clear that the jury was convinced beyond a reasonable doubt of all of the elements of the offence on which the appellant was convicted.
- The Crown also relies on the overwhelming case aspect of the proviso. In light of the conclusion I have reached on harmless error it is unnecessary to consider that argument. A trial judge lacks the power to direct a conviction or a finding on a non-admitted essential element even where the trial judge considers the case to be overwhelming. I leave for another day whether a trial judge’s erroneous direction to convict or to find an essential element has been proven can be cured because the appellate court finds the case was overwhelming.