Court of Appeal for Ontario

Date: 2017-07-26

Docket: C61556

Judges: Juriansz, Pepall and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Byron Spence Appellant

Counsel:

• Christopher Hicks, for the appellant
• Nadia Thomas, for the respondent

Heard: May 31, 2017

On appeal from the conviction entered by Justice Robert A. Riopelle of the Superior Court of Justice, sitting with a jury, on September 25, 2014.

Trotter J.A.:

A. Introduction

[1] Byron Spence was convicted of first degree murder for killing his half-brother, Jonah Trapper, by shooting him in the back with a shotgun. He appeals his conviction.

[2] There is no doubt that the appellant killed Jonah. During an interview with the police, the appellant admitted shooting Jonah, but claimed that he only meant to scare him when he fired the shotgun. In the same interview, he suggested that he struggled with mental health issues.

[3] The issues at trial were straightforward – did the appellant mean to shoot Jonah, and was the killing planned and deliberate? However, because of errors in the trial judge's jury instructions on the intent for murder, a new trial is required.

B. The Facts

(1) Introduction

[4] The appellant was 25 years old at the time of the shooting. Jonah was 18. The two young men had the same mother. There was no indication of any pre-existing animosity between them.

[5] The appellant sometimes stayed at his mother's home in Timmins, where Jonah lived. He was staying there on the day of the shooting, on October 24, 2009. The appellant and Jonah were the only people in the house at the time.

(2) The Shooting and its Aftermath

[6] It was not disputed that the appellant caused Jonah's death by firing a shotgun at him on the second floor of the house. The appellant did not testify at trial. The following narrative of events comes from the appellant's utterances to the police, and to his aunt and uncle.

[7] In the early evening, the appellant was watching television in the living room when Jonah came in and complained that the house was a mess: dirty dishes were stacked up in the kitchen, the sink was clogged, and the garbage was full. The appellant denied that it was a heated exchange, but said he felt upset and angry afterwards.

[8] Jonah slammed the door and went up to a common area on the second floor where he used his computer and played loud music.

[9] The appellant retrieved a shotgun from the basement. It was already loaded. The appellant was familiar with the gun because he had used it to hunt. Fifteen minutes passed before the appellant climbed the stairs to the second floor and went into a bedroom he used during his stay. This required him to walk through the second floor common room at the top of the stairs where Jonah was on the computer. Once in the bedroom, the appellant closed the door and cocked the shotgun.

[10] The appellant swung the bedroom door open and, without saying a word, fired the shotgun, hitting Jonah in the back. The appellant cocked the gun again. Jonah looked at him. The appellant said, "I'm sorry…I love you Jonah." Jonah stood up and fell down the stairs, coming to rest by the front door.

[11] In the aftermath of the shooting, the appellant collected his bags and put them by the front door. This required him to walk over Jonah. Realizing that his mother's car keys were upstairs, he went back up to get them. He went to the computer and accessed the United Nations website. He then accessed his email account. In the body of an unaddressed message, he wrote: "Sorry. I'm very sorry." The appellant returned downstairs and left the house. He said that Jonah was still alive, making "gagging" sounds. However, a pathologist testified that Jonah would have died within 10 to 20 seconds of being shot.

[12] The appellant drove to the nearby home of his aunt and uncle, Alex and Kathy Spence. He parked his vehicle partly in the driveway and went to the house, leaving the driver's side door wide open. He left the loaded and cocked shotgun on the front passenger seat, inside a shotgun bag.

[13] The appellant told Alex Spence, "I just shot somebody." When asked who it was, he said "my brother." The appellant started to cry. His uncle asked whether his brother was dead. The appellant confirmed that he was.

[14] Kathy Spence heard the appellant say, "I shot him, he's dead. I know he's dead." She heard him repeat this three or four times.

[15] Alex and Kathy Spence both agreed that the appellant seemed extremely upset or distraught. Kathy Spence also said that he was confused, and did not make a lot of sense. The appellant, sitting at the kitchen table, put his head down and mumbled. Kathy Spence said the appellant repeated, "I should have shot the computer. I should have shot at it." She denied that he said, "I meant to shoot the computer." Alex Spence had no memory of the appellant mentioning the computer.

[16] All three agreed that the police should be called. Kathy Spence made the call. The police soon arrived at the Spence home and arrested the appellant. He spontaneously told the arresting officer: "I shot Jonah Trapper." Another officer transported the appellant to the police station. On the way, the appellant was crying. The officer asked the appellant if he was okay, but received no response. The officer did not notice anything unusual about the appellant's behaviour beyond that of someone involved in a traumatic experience, when people are "not quite themselves."

(3) Evidence Relating to the Appellant's Mental Health

[17] Although the appellant did not testify, and no expert evidence was called on his behalf, there was some evidence that the appellant had mental health issues. This came from Alex Spence's testimony and a police interview conducted by P.C. Mike Fortin in the early morning after the appellant's arrest.

[18] Alex Spence testified that schizophrenia runs in his family. He testified that he saw the appellant in downtown Timmins about a week before the shooting. The appellant told him that he had taken time off work because he was "ill", but did not elaborate on the nature of his malady, nor did he specify whether it was physical or otherwise.

[19] During his interview with P.C. Fortin, the appellant tried to talk about his mental health issues. However, the officer largely ignored these utterances. The appellant said that he had been through counselling. He mentioned that the past had been "pretty bad" for him and that he had been checked into the hospital for depression; however his mental health problems "never got resolve[d]" and were "still…piling underneath." When asked whether he was thinking clearly during the events, he answered "no" and again made reference to depression and counselling. The officer did not follow up on this answer.

(4) The Appellant's Intent When He Shot Jonah

[20] There were no concerns about the appellant's sobriety when he shot Jonah. Alex Spence asked him whether he was under the influence of alcohol or drugs. The appellant said that he was not. The appellant also denied drinking or using drugs the night of the shooting in his police interview.

[21] The 911 operator asked Kathy Spence whether the appellant had been drinking. She answered "yes." Ms. Spence assumed that to be the case because she thought, "Well, if someone did something like that, they must've been under the influence of alcohol." However, at trial, she agreed there was no indication that the appellant had been drinking.

[22] At the outset of the police interview, the appellant seemed somewhat confused. When asked whether he spoke to a lawyer, the appellant said, "no I haven't." He had to be reminded that he had spoken to a Legal Aid lawyer.

[23] During the interview, the appellant made numerous utterances touching on his state of mind when he fired the shotgun. It is fair to describe the interview as a "back-and-forth" between the officer and the appellant, with the officer suggesting that the appellant intended to shoot Jonah, and the appellant maintaining that he did not. This is illustrated in the following excerpts:

• "I pulled the trigger. I'm at, I'm at…the computer is right there…I shoulda shot the computer…I was thinking of shooting the stereo because it was blaring…I don't know…I'm kinda sick [unintelligible] gets in the way…I shouldn't have done that…"

• "I was gonna shoot that stereo…I didn't meant to really hurt him. I just wanted to scare him and shoot the computer."

• "I wanted to shoot the stereo which was in his room and I wanted to shoot the computer but…"

• "I wanted to scare him."

• "I didn't mean to shoot him."

[24] The following exchange between the appellant and the officer took place:

A.: I was… I was just gonna shoot the stereo first…I was gonna shoot, shoot the computer but he was already in the way and the way the door opens and I, I….I just…I just went like that and pulled the trigger…"

Q: But when you were pointing the gun at him…you must have known you were gonna hit him…It was pointing right at him…

A: Yeah.

Q.: So you knew you were shooting him.

A.: Yeah…I knew I shot him.

Q.: Okay.

A.: I didn't, I didn't directly go and try to shoot him.

[25] The appellant further explained that he wanted to scare Jonah and "It shouldn't have happened that way…that's all I'm saying."

C. Issues on Appeal

[26] The primary focus of this appeal is on the trial judge's instructions on the mens rea for murder in s. 229(a) of the Criminal Code, and his instruction on the definition of "planned and deliberate" in s. 231(2). The appellant also complains about the trial judge's instructions on post-offence conduct, and his ruling to admit only one portion of the appellant's interview with the police.

[27] A new trial must be ordered because of shortcomings in the instructions on second degree murder. There is also an aspect of the instruction on first degree murder that requires discussion. It is unnecessary to address the remaining issues, which are best left for resolution by the judge presiding at the new trial.

D. Analysis

(1) The Intent for Second Degree Murder

i. Introduction

[28] The case against the appellant for murder was strong. After all, he shot Jonah in the back, at close range, after an argument that left him feeling angry. However, guilt for murder was not a foregone conclusion. The appellant's utterances clearly raised the issue of whether he was aiming at Jonah when he fired the shotgun. And although the evidence of the appellant's mental health struggles was rather thin, in combination with his claim of accident, it was capable of raising a reasonable doubt on the issue of intent.

[29] The appellant did not assert a defence of not criminally responsible on account of mental disorder ("NCRMD") under s. 16 of the Criminal Code. There was no basis to do so. The appellant led no medical evidence about his mental health issues or his state of mind when he shot Jonah. The Crown at trial asked the trial judge to explain to the jury that this was not a NCRMD case. Defence counsel and the trial judge agreed. This was a reasonable course of action.

[30] In cases where NCRMD is asserted, if a jury rejects this defence, they must still consider all of the evidence, including evidence of mental illness, in determining whether the Crown has proved the fault requirements in s. 229(a) beyond a reasonable doubt: see R. v. Allard (1990), 57 C.C.C. (3d) 397 (Que. C.A.), at p. 401; and R. v. David (2002), 61 O.R. (3d) 1 (C.A.), at para. 50. Even though the appellant did not rely on s. 16, the trial judge was obliged to instruct the jury along these lines.

[31] Unfortunately, the trial judge's instructions on the mens rea for murder, and how the appellant's mental health issues and his claim of accident may negate that mens rea, were confusing and contained errors. These mistakes were repeated in the trial judge's response to the jury's request for clarification on the issue of intent.

ii. The Trial Judge's Initial Instructions

[32] The first troublesome portion of the charge occurred when the trial judge alluded to the defences that might be available to the appellant. The trial judge commenced with a discussion of the defence of accident. In accordance with R. v. Mathisen, 2008 ONCA 747, 242 O.A.C. 139, at paras. 70-73, the trial judge properly distinguished between an accident, in the sense of being an involuntary act (i.e., accidentally discharging the firearm), as opposed to a voluntary act leading to unintended consequences (i.e., discharging the gun but unintentionally shooting Jonah). However, he went on to say:

It is possible for you to find on the evidence presented at this trial that [the appellant] had no intent to kill, no intent to injure, that he just intended to scare his brother or shoot at the computer and that would be the kind of accident he is talking about.

Now, Byron Spence does not have to prove that this was accidental. It is up to Crown counsel to satisfy you beyond a reasonable doubt that the firing – discharging of the firearm in that room was not an accident and we will deal with that later, how the Crown has to satisfy that burden. [Emphasis added.]

In distinguishing between the two types of accident, the first paragraph is correct; the second paragraph is not – the appellant never denied intentionally discharging the firearm.

[33] The trial judge then referred to the evidence of mental illness. This is where the instructions became problematic. As the trial judge said:

There has also been an air of suspicion of the – that the personal circumstances of Byron Spence could have affected his ability to form the required intent that is needed in order that he be guilty. I am referring here to the whiff of mental illness or these other issues. There is a presumption at law that a person intends what he does voluntarily and where there is a rebuttal of that presumption, where there is guilt, it can be displaced by intoxication in terms of alcohol or drugs. It could be displaced as well by proof of mental issues. So, some of those circumstances a defence – in some of those circumstances a defendant can excuse the guilt but the burden of proof, to call witnesses, to call experts to identify the mental illness, they have to show that the cause is such an incapacity that he is not aware of what he is doing and the consequences of what he is doing. That is not our case here.

Our case here, there were no experts called on the issue of mental disability or diminished mental capacity. There were no experts at all on that issue. So, here it does not excuse guilt if you find there is guilt. At best, it is relevant to the issue of punishment, which I will deal with if there is a finding of guilty on this matter. Or it is also relevant, at best, to Byron Spence's mental state of mind as to whether or not he had the required state for murder. [Emphasis added.]

This passage contains numerous errors, which are discussed below. They were repeated when the jury asked for clarification on the issue of intent.

[34] Later in his instructions, the trial judge focused on the mental element for murder. He paraphrased s. 229(a) in the following language:

[O]ne, he meant to kill Jonah Trapper or, two, he meant to cause Jonah Trapper bodily harm that Byron Spence knew was so dangerous and so serious that he knew it was likely to kill Jonah Trapper and he proceeded despite his knowledge of this risk.

[35] The trial judge then instructed the jury to consider all of the evidence in determining the appellant's state of mind. He said:

You may conclude as a matter of common sense that if a sane and sober person does something that has predictable consequences, that person usually intends or means to cause those consequences. But that is simply one way for you to determine a person's actual state of mind, what he actually meant to do. It is a conclusion that you may only reach, however, after considering all of the evidence. It is not a conclusion you must reach, it is for you to say whether you will reach that conclusion in this case.

In this case in determining whether, in all the circumstances, it is appropriate to draw this permissible inference that Byron Spence intended the natural consequences of his actions, you must take into account all of the evidence, including the evidence that he may have been in a reduced mental condition at the time of the killing. This evidence may of course rebut the common sense inference but, if after a consideration of all of the evidence you are left with a reasonable doubt as to whether or not it is appropriate to draw the inference that Byron Spence intended the natural consequences of his action, then you must not draw that inference.

[36] This passage is unobjectionable. However, it was soon followed by another discussion of whether the shooting was accidental. The trial judge referred to the appellant's "reduced mental state" and then said:

That is still subject to some circumspection because, as I indicated to you, there is a presumption that a person intends what he does voluntarily and that he knows the outcome of what he is doing and to displace that presumption there are defences that are available in the Criminal Code to displace those kinds of presumptions. In a case of first degree murder there are, but none of those were proffered by the defence. So, they do not excuse guilt, as I have said earlier. They may have something to do with sentencing when it is time to sentence but we did not hear from witnesses or experts about his diminished mental capacity. There is no evidence here identifying what his particular mental illness might be or might not be even if it exists. [Emphasis added.]

This passage replicates some of the more problematic features of the excerpt reproduced in para. 33, above.

iii. Objections to the Charge

[37] The appellant's trial counsel (not Mr. Hicks) asked the trial judge to clarify that: (1) the assertion of accident was not the discharge of the firearm, but the shooting of Jonah; and (2) despite the fact that the defence did not call expert evidence, the jury "could" still look at the evidence in its entirety on the issues of the intent for murder, as well as planning and deliberation.

[38] In his re-charge, the trial judge properly explained both the concept of accident and how the jury could consider the appellant's mental health when deciding whether he had the intent for murder. On the second issue, the trial judge referenced his earlier instructions and said:

I think it was fairly clear from what I said to you that there are limitations on which you can deal with [the appellant's mental state]. But it does enter into your deliberations of whether or not there was intent to murder and if you feel that there was intent to murder, it still is something you have to consider when you go to the second stage. Was there planning? Was there deliberation? His mental health at the time was made an issue during the course of the trial so you know the evidence that was there. More of that evidence we have about what he was like after. We do not have any evidence of what he was like before. But we know some things.

Defence counsel said he was "fine" with this reinstruction.

iv. The Question from the Jury

[39] Later that same day, the jury sent a note to the trial judge that said: "Need more guidance or instruction on state of mind required for murder."

[40] The trial judge discussed this request with counsel. All agreed that the question was broad. The trial judge decided to ask the jury to clarify its question if they could. Moreover, because it was almost 10 p.m. when the question was received, the trial judge decided to answer the question the following morning. As this was explained to the jury, the trial judge said that he would be replaying the court recording of the relevant portions of his instructions. He said: "That is the way it is normally done. It is not that I sit down and re-explain it to you in a different way. You have to hear it exactly the same way that it was played originally."

[41] The following morning, the jury clarified its request for assistance. It asked the trial judge to "replay the direction for deciding box three." This was a reference to a part of the Decision Tree used by the trial judge to explain the intent for murder in s. 229(a) of the Criminal Code. The trial judge replayed all aspects of his original instructions on this issue, as well as those following defence counsel's objections. The playback concluded at 11:35 a.m. At just after 4:00 p.m., the jury found the appellant guilty of first-degree murder.

v. The Errors in the Charge

[42] In analyzing jury instructions, appellate courts must review the charge as a whole, and not dissect isolated passages: see R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 2. In R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, the Court held, at para. 31:

In determining the general sense which the words used have likely conveyed to the jury, the appellate tribunal will consider the charge as a whole. The standard that a trial judge's instructions are to be held to is not perfection. The accused is entitled to a properly instructed jury, not a perfectly instructed jury: see Jacquard, at para. 2. It is the overall effect of the charge that matters.

Having abided by this direction, I conclude that the trial judge's instructions on the intent for murder were seriously flawed.

[43] The most problematic part of the charge is reproduced in para. 33, above, where the trial judge attempted to explain that the case did not engage the defence of NCRMD. This passage contains several errors.

[44] First, the trial judge's identification of "a presumption at law that a person intends what he does voluntarily", and his explanation that the presumption may be rebutted by evidence of alcohol, drugs or mental illness, is incorrect. There is no such presumption in law.

[45] The passage conflates the presumption of sanity or criminal responsibility in s. 16(2) of the Criminal Code with the so-called common sense inference that a sane and sober person intends the natural and probable consequences of his or her actions. The former is a statutory legal presumption that may be rebutted on a balance of probabilities. The latter is not a legal presumption at all; it is a permissible inference that may be drawn in appropriate circumstances: see R. v. Seymour, [1996] 2 S.C.R. 252, at paras. 19-20; and Daley, at para. 50. When evidence points in a different direction (for example, evidence of intoxication or mental illness), the jury should be instructed to consider this evidence, along with all other evidence, in deciding whether to draw the common sense inference: see Seymour, at para. 21; R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438, at paras. 55-67; and R. v. Chretien, 2014 ONCA 403, 321 O.A.C. 150, at para. 91.

[46] The trial judge never made it clear for the jury that his comments were restricted to the inapplicability of s. 16. There was a real risk that the jury would have understood these instructions to apply to the issue of intent at large.

[47] The second error flows from the first. By speaking of a legal presumption in this context, the trial judge essentially reversed the burden of proof, requiring the appellant to prove that the intent for murder was compromised by mental illness. In a true NCRMD case, if the accused raises the issue, the burden is reversed by the operation of the presumption in s. 16(2). Given the manner in which it was explained, at the very least, the jury would have been confused about whether the appellant had the onus of calling medical evidence to support his position that he lacked the intent for murder.

[48] Thirdly, the trial judge's references to "ability to form the required intent", "incapacity" and "capacity" further muddied the waters. The use of these terms is appropriate in the context of s. 16, which speaks of a mental disorder rendering a person "incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong." Outside of s. 16, the focus is on actual intent, or intent in fact, not on an accused's capacity to form the intent: see David, at para. 50.

[49] Fourth, the trial judge's statement that "[s]o, here it does not excuse guilt if you find there is guilt" was wrong. As previously noted, outside of the s. 16 framework, evidence of mental illness is capable of undermining the mental element for murder in s. 229(a) (thereby reducing liability from second degree murder to manslaughter). It may also undermine the added mental elements of planning and deliberation in s. 231(2): see More v. The Queen, [1963] S.C.R. 522, at pp. 533-535; and McMartin v. The Queen, [1964] S.C.R. 484, at pp. 493-495.

[50] Fifth, the trial judge's reference to mental illness being relevant "at best" to "the issue of punishment" was wrong. It was also misleading. Punishment had nothing to do with the jury's task in determining whether the appellant had the requisite intent for murder. Moreover, although mental illness may have some role to play in sentencing an accused for manslaughter or second degree murder, it can have no impact on the mandatory sentence for first degree murder, which requires life imprisonment without parole eligibility for 25 years: Criminal Code, s. 745(a). The reference to punishment ought to have been left out completely.

[51] I repeat the last sentence from the impugned passage: "Or it is also relevant, at best, to Byron Spence's mental state of mind as to whether or not he had the required state for murder." This was a correct statement of law, although it was improperly qualified by the expression "at best."

[52] Responding to these shortcomings in the trial judge's instructions, Ms. Thomas for the Crown rightly submits that this passage (in para. 33) should not be considered in isolation. She acknowledges that the trial judge erred in describing the "presumption at law" discussed above, but contends that, considered as a whole, the instructions properly explain the intent for murder. With respect, I disagree.

[53] I acknowledge that the trial judge correctly discussed the common sense inference and related it to the issue of mental illness: see para. 35, above. However, he failed to distinguish this instruction from his earlier erroneous instruction on the so-called legal presumption. The commonality in language shared by the two concepts ("a presumption at law that a person intends what he does voluntarily" versus "if a sane and sober person does something that has predictable consequences, that person usually intends or means to cause those consequences") would have been confusing for the jury. Indeed, in the excerpt in para. 35 above, the trial judge repeated his instruction on the legal presumption right after his discussion of the common sense inference.

[54] I also agree with Ms. Thomas that the trial judge's response to defence counsel's objections (in para. 38, above) was correct. However, it was not sufficient to undo the errors contained in other portions of his instructions.

[55] As a whole, the charge to the jury on the intent for murder was confusing. This conclusion is borne out by the jury's request for assistance: "need more guidance or instruction on state of mind required for murder."

[56] I need say very little about the substance of the trial judge's response to this request for help. The trial judge repeated the problematic parts of the charge discussed above. The re-charge compounded the problem.

[57] Mr. Hicks also argues that the trial judge's approach to answering the jury's question was wrong. He submits that, instead of simply repeating his original instructions, the trial judge ought to have responded to the jury's concerns more effectively, by explaining matters in a different way.

[58] In fairness to the trial judge, he attempted to get at the heart of the jury's concerns by asking them to be more specific. This is a common and useful practice. However, his request for clarification, and the implicit promise of further assistance that it conveyed, was undermined by what he told the jury – "You have to hear it exactly the same way that it was played originally." The jury seemed to take this limitation to heart – they simply asked the trial judge to "replay" his instructions on intent.

[59] The Supreme Court of Canada has stressed the importance of answering questions of jurors in the most responsive manner possible. In R. v. Naglik, [1993] 3 S.C.R. 122, at p. 139, the Court ascribed superordinate importance to questions from a jury because they signify the areas in which they require assistance in deciding the case. See also R. v. W.D.S., [1994] 3 S.C.R. 521, at pp. 528-531.

[60] Sometimes repetition of the original instructions will be sufficient (assuming they are correct); in other situations, it may be necessary to explain things differently: see R. v. Layton, 2009 SCC 36, [2009] 2 S.C.R. 540, at para. 23. This will depend on the issues in play, the nature of the request for assistance, and whether the jury has been provided with a written version of the trial judge's instructions.

[61] I acknowledge that I come at the issue with the luxury of hindsight, equipped with a written version of all instructions to the jury, and augmented by the thoughtful submissions of appellate counsel made years after the fact. Nevertheless, the trial judge undermined the opportunity to be of assistance to the jury by offering only a simple playback of his original instructions. Given the serious problems with the instructions on intent in the original charge, the jury would have benefited from having things explained differently. Had this been done, repetition of the erroneous portions may have been avoided, and the instructions as a whole possibly salvaged.

[62] Lastly, I deal with the lack of objection by counsel. Although defence counsel objected to some portions of the charge, the most problematic passages were left unchallenged.

[63] On appeal, the Crown argues that this lack of objection is an indication that the charge was adequate. However, this argument cannot win the day because the impugned passages contain legal errors going to the heart of the case: see R. v. Newton, 2017 ONCA 496, at para. 24; and R. v. Maciel (2007), 2007 ONCA 196, 219 C.C.C. (3d) 516 (Ont. C.A.), leave to appeal refused, [2007] 3 S.C.R. xi (note), at para. 97.

[64] I agree that defence counsel ought to have been alive to these issues and should have brought them to the trial judge's attention. The Crown should also bring legal errors it spots in a charge to the trial judge's attention. Had either defence or Crown identified the problems with the trial judge's instructions, the need to order a new trial may have been avoided.

[65] In conclusion, I would allow the appeal and order a new trial on this ground.

(2) The Instruction on First Degree Murder

[66] The appellant submits that the trial judge erred in the manner in which he defined the word "deliberate" for the jury. He also contends that the trial judge failed to sufficiently relate the evidence to the elements of planning and deliberation. Because there must be a new trial, discussing how this trial judge reviewed the evidence for the jury serves little purpose. However, the manner in which the trial judge defined the term "deliberate" deserves consideration. As I will explain, the trial judge's instructions on the "deliberation" needed for first degree murder were not ideal, but neither were they inadequate.

[67] Section 231(2) of the Criminal Code provides that: "Murder is first degree murder when it is planned and deliberate." The Code provides no further guidance on the meaning of these terms.

[68] Over the years, the courts have grappled with finding the best way to instruct juries on this concept: see e.g. More, at pp. 533-534; and The Queen v. Mitchell, [1964] S.C.R. 471, at pp. 474-475. See also the discussion in Don Stuart, Canadian Criminal Law – A Treatise, 7th ed. (Toronto: Carswell, 2014), at pp. 273-275. In R. v. Nygaard, [1989] 2 S.C.R. 1074, the Court held that the following definition was appropriate to leave with juries, at p. 1084:

As far as the word "deliberate" is concerned, I think that the Code means that it should also carry its natural meaning of "considered," "not impulsive," "slow in deciding," "cautious," implying that the accused must take time to weigh the advantages and disadvantages of his intended action.

[69] This definition is used in David Watt, Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015). In Final Instruction 231-A (Planned and Deliberate First Degree Murder), at p. 691, the following definition for "deliberate" is recommended:

"Deliberate" is not a word that we often use when speaking to other people. It means "considered, not impulsive", "carefully thought out, not hasty or rash", "slow in deciding", "cautious".

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 sudden impulse and without prior consideration, even with an intention to kill is not a deliberate murder. [Emphasis in original.]

[70] During the Pre-Charge Conference, the trial judge advised counsel that he would not rely upon this definition in its entirety. He decided to remove the words "slow in deciding" and "cautious." He explained: "They have nothing to do with this context. It doesn't mean anything in English anyway." The trial judge instructed the jury as follows:

A deliberate act is one that the actor has taken time to weigh the advantages and disadvantages of. "Deliberate" in this context means considered not impulsive, carefully thought out, not hasty or rash. That deliberation must take place before the act of murder, before, in this case the discharging of the firearm. A murder committed on a sudden impulse and without prior consideration, even with an intention to kill, is not a deliberate murder.

[71] Neither defence counsel nor Crown counsel at trial objected to this definition. The appellant now contends that the removal of the words "slow in deciding" and "cautious" was capricious, amounting to reversible error. I disagree.

[72] The characterization of the trial judge's decision as "capricious" is unnecessary and unhelpful. Clearly, the trial judge was attempting to assist the jury in understanding s. 231(2) of the Criminal Code.

[73] The Crown argues that there is no singular way to instruct a jury on the elements of planning and deliberation. She contends that the definition the trial judge employed properly conveyed the meaning of that section of the Criminal Code: see Daley, at para. 30.

[74] The terms "slow in deciding" and "cautious" have long been considered to be an important part of the definition of "deliberate" in this context. In this province, the use of this terminology can be traced back to R. v. Widdifield (September 29 1961), (Ont. H.C.J.), an unreported trial decision of Gale J., as he then was, whose jury charge was reproduced in part in "Capital Murder—Drunkenness" (1963-64), 6 Crim. L.Q. 152, at p. 153. It is used regularly by trial judges in this province, and elsewhere. The formulation also has been endorsed by this court: see R. v. Reynolds (1978), 22 O.R. (2d) 353 (C.A.), at pp. 361-62; R. v. Hay, 2009 ONCA 398, 249 O.A.C. 24, rev'd on other grounds, 2013 SCC 61, [2013] 3 S.C.R. 694, at paras. 80-81; R. v. Stiers, 2010 ONCA 382, 255 C.C.C. (3d) 99, leave to appeal refused, [2011] S.C.C.A. No. 150, at para. 66; and R. v. Smith, 2014 ONCA 324, 308 C.C.C. (3d) 254, at para. 29. As noted above, the Supreme Court of Canada approved of this wording in Nygaard. Moreover, Watt J.A.'s Final Instruction 231-A was specifically approved of by the Supreme Court of Canada in R. v. Banwait, 2010 ONCA 869, rev'd 2011 SCC 55, [2011] 3 S.C.R. 533, at paras. 181-82.

[75] In my view, there is little reason to depart from the settled definition of "deliberate", which has stood the test of time, and which has received the stamp of approval from the Supreme Court of Canada. With respect to the trial judge, I am unable to understand why he considered these terms to be inapplicable or unhelpful in this case.

[76] However, in all of the circumstances, I would not give effect to this ground of appeal. I accept Ms. Thomas' submission that, notwithstanding the trial judge's ill-advised departure from accepted parlance, the meaning of "planned and deliberate" was adequately conveyed to the jury.

[77] At trial, counsel for the appellant did not object to this alteration to the standard instruction. This is not surprising. The appellant's own utterances overwhelmingly support the view that he did plan and deliberate on his actions. He remained in the basement with the gun for 15 minutes before going upstairs. The central issue was what the appellant planned to do – kill Jonah, or merely scare him. In his closing address to the jury, defence counsel spent very little time on the issue of planning and deliberation. His main focus was on the intent for murder in s. 229(a) of the Criminal Code.

E. Conclusion and Disposition

[78] I would allow the appeal and order a new trial on the charge of first-degree murder.

Released: July 26, 2017

"SP" "G.T. Trotter J.A."

"I agree R.G. Juriansz J.A."

"I agree S.E. Pepall J.A."

Footnote

[1] The trial judge used the earlier version of Justice Watt's book: Watt's Manual of Criminal Jury Instructions (Toronto: Carswell, 2005), Final Instruction 231-A (Planned and Deliberate First Degree Murder), at p. 438.