Court of Appeal for Ontario

Date: October 22, 2018 Docket: C54841

Judges: Strathy C.J.O., Nordheimer J.A. and McKinnon J. (ad hoc)

Between

Her Majesty the Queen Respondent

and

Andrew Campbell Appellant

Counsel

Joseph Wilkinson, for the appellant

Shawn Porter, for the respondent

Heard: October 16, 2018

On appeal from the conviction entered on December 6, 2011, by Justice John Sproat of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] Mr. Campbell appeals his conviction for first degree murder.

[2] Two grounds are raised on the appeal. The first ground is that the trial judge erred in concluding that the appellant's March 11, 2009 statement given to the police (his second statement) was voluntary. The second ground is that the trial judge erred in his instructions to the jury on the use that could be made of the post-offence conduct evidence with respect to the issue of intent.

[3] The basic facts are that the appellant owed the deceased money with respect to a gambling debt. The deceased attended at the appellant's home in Whitby to collect the debt. The deceased was not seen again until five days later when his body was found in his car in Brampton. The deceased had been shot four times in his upper body.

[4] The police became aware of the connection between the appellant and the deceased. The police interviewed the appellant twice. Both times the appellant lied about the deceased coming to his home.

[5] It is the second of these two interviews that involves the first ground of appeal. By the time of the second interview, the police had found the deceased's body. It was uncontested that the police considered the appellant a suspect in the deceased's murder. However, the police told the appellant the reason that they wanted to interview him a second time was because the interviewing officer was having trouble reading the notes of the officer who had conducted the earlier interview, and also to follow up on concerns that the appellant had expressed to the police about people driving by his home. Neither of these reasons was the true reason why the police were re-interviewing the appellant.

[6] At the outset of the interview the interviewing officer told the appellant, in part:

Detective: Um, I am a police officer. Um, I am investigating a murder. Um, so anything that you say to me could be used. If your were gonna be charged ...

Appellant: Mm-hmm.

Detective: ... for murder. ..

Appellant: Yeah.

Detective: ... what you'd tell me I could use.

Appellant: Yeah.

Detective: Um, and I can use that in court. Um, and then the other thing is, is that if you spoken to any police officer or anybody in authority that says you know, if the police come by you have to talk to them ...

Appellant: Mm-hmm.

Detective: ... don't pay any attention to that, okay?

Appellant: Yeah.

[7] The appellant argued at trial, and repeats the argument here, that the statement ought to have been excluded because, while the officer cautioned the appellant, he did not tell the appellant that he was a suspect and that the police had reasonable and probable grounds to arrest him for murder. The police therefore did not advise the appellant of the full extent of his jeopardy.

[8] The appellant essentially asks us to engraft onto the existing law respecting police cautions, a requirement that the police advise a person that they are a suspect. The trial judge rejected that invitation as do we. While the words used by the interviewing officer were not particularly elegant, they conveyed the salient points to the appellant. In particular, the interviewing officer told the appellant that the police were investigating a murder and that, if the appellant was charged with murder, anything he said could be used against him. The appellant was, in our view, given the requisite information to allow him to make a meaningful choice whether to speak to the police. Nothing more was required.

[9] Further, the appellant's effort to characterize the failure of the police to tell the appellant that he was a suspect as "trickery" (R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3) does not succeed. It is important to remember that the court in Oickle referred to trickery as conduct that "would shock the community" (at para. 66). Assuming that the failure to advise a person that they are a suspect could amount to trickery, the circumstances here would not rise to the "shock the community" standard.

[10] The second ground of appeal deals with the post-offence conduct issue. In this instance, the post-offence conduct was the appellant's failure, immediately after the shooting, to perform CPR on the deceased or to call 911.[1] The post-offence conduct in issue did not arise, as it might normally, as evidence going to the issue of guilt per se. Rather, it was used by the trial judge as one of 13 factors that he listed for the jury's consideration on the issue of the state of mind of the appellant. In other words, this post-offence conduct was used solely in relation to the mental intent for murder – an issue that the jury would only reach after they had rejected the appellant's self-defence claim.

[11] In our view, the evidence here is akin to evidence of the presence or absence of hesitation, which was at issue in R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433. In deciding that evidence was relevant post-offence conduct, Rothstein J. said, at para. 74:

In my view, the situation in the present case is no different. A jury could legitimately infer that Mr. White's lack of hesitation after the gun was fired belied his claim that the shooting was accidental. Evidence of such a failure is thus relevant to the question of whether he had the requisite intent for second degree murder.

A similar result was reached in R. v. McLellan, 2018 ONCA 510, 362 C.C.C. (3d) 183 at para. 44.

[12] Evidence that a person did not render aid to someone, who they had shot, is more consistent with intending (or being reckless regarding) the death of the person than not. Consequently, this post-offence conduct was a relevant consideration on the issue of the mental element for murder. The issue that the jury had to decide respecting the appellant's state of mind was whether the appellant meant to kill the deceased, or meant to cause the deceased bodily harm that the appellant knew was likely to kill the deceased and was reckless whether the deceased died or not. In our view, whether the appellant took steps to prevent the deceased from dying is a relevant consideration in that analysis.

[13] We would repeat, on this point, that this single item of post-offence conduct was included by the trial judge among a list of evidence bearing on the issue of intent to commit murder. The trial judge did not separately address this evidence as post-offence conduct as he had with respect to certain other pieces of evidence. Rather, he added it into a long list of factors bearing on the issue of intent, including factors favourable to the appellant. Any of the traditional concerns regarding post-offence conduct were thus entirely ameliorated by the very limited manner in which the trial judge used this evidence in his instructions to the jury.

Conclusion

[14] We would reject both grounds of appeal. The appeal is dismissed.

"George R. Strathy C.J.O."

"I.V.B. Nordheimer J.A."

"Colin McKinnon J."

[1] The appellant acknowledged that he had been trained in CPR.