Warning

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order prohibiting disclosure of a witness’ identity has been made in this proceeding pursuant to s. 486.31 of the Criminal Code and shall continue. This section of the Criminal Code provides that:

486.31 (1) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, make an order directing that any information that could identify the witness not be disclosed in the course of the proceedings if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) The judge or justice may hold a hearing to determine whether the order should be made, and the hearing may be in private.

(3) In determining whether to make the order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) the nature of the offence;

(c) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

(d) whether the order is needed to protect the security of anyone known to the witness;

(e) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer;

(e.1) whether the order is needed to protect the witness's identity if they have had, have or will have responsibilities relating to national security or intelligence;

(f) society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;

(g) the importance of the witness' testimony to the case;

(h) whether effective alternatives to the making of the proposed order are available in the circumstances;

(i) the salutary and deleterious effects of the proposed order; and

(j) any other factor that the judge or justice considers relevant.

(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section. S.C. 2015, c. 20, s. 38(3).

Court of Appeal for Ontario

Date: 2021-05-11 Docket: C65968

Judges: Hourigan, Zarnett and Coroza JJ.A.

Between: Her Majesty the Queen, Respondent And: Carson Anthony Morin, Appellant

Counsel: Howard L. Krongold, for the appellant Elise Nakelsky, for the respondent

Heard: March 29, 2021, by videoconference

On appeal from the conviction entered by Justice Julianne A. Parfett of the Superior Court of Justice, sitting with a jury, on May 12, 2017.

Hourigan J.A.:

A. Introduction

[1] In his appeal from his conviction for first-degree murder, the appellant submits that the trial judge erred in her jury instructions on planning and deliberation and after-the-fact conduct. The appellant asks this court to quash his conviction for first-degree murder and substitute a conviction for second-degree murder. Alternatively, he seeks a new trial.

[2] These reasons explain why I would dismiss the appeal. In summary, a fair review of the trial judge’s jury instructions reveals no error. The trial judge correctly instructed the jury on both issues, including in her answers to the jury’s questions. The alleged error regarding planning and deliberation is based on a theory of culpability that was never put to the jury and is directly contrary to the position advanced by the defence at trial. Regarding the after-the-fact conduct, the instruction was legally sound and appropriate in the circumstances. Accordingly, I would dismiss the appeal.

B. Facts

[3] The appellant met Alyson Tippins in mid-April 2013. She was a small-time drug dealer, looking for a place to live. The appellant lived alone in a rented condominium and needed money, so he proposed a “business” arrangement. Ms. Tippins would move in with him and work as an exotic dancer. She testified that the appellant told her he could get her a job at a local strip club and help her with selling marijuana. In return, after paying her half of their shared expenses, she was to split her earnings with him.

[4] On or around April 30, the appellant and Ms. Tippins had a falling out. They started to argue frequently. According to Ms. Tippins, the appellant became rude, belligerent, and aggressive.

[5] After a few weeks, Ms. Tippins moved in with her friend, Michael Wassill. The appellant suggested continuing the business arrangement on different terms. Ms. Tippins agreed. However, their relationship deteriorated after Ms. Tippins brought up her dissatisfaction with how the appellant took a cut of her earnings. The appellant informed Ms. Tippins that bad things would happen to her if she did not follow his rules, which she interpreted to mean physical harm or the loss of her job.

[6] On May 13, 2013, Ms. Tippins texted the appellant from work, saying that she had learned that he could not get her fired. The appellant responded with various text messages, including, “This ain't a game. U wanna go down that road. We can," and "Don't start something you ain't prepared for." He added, “U don’t even know what I’m capable of.” A few hours later, the appellant texted his friend, Vanessa Hill, to say that Ms. Tippins was "talking mad shit about me." He said she "need to learn the hard way. Sorry to say.” He told Ms. Hill of his plan to get back at Ms. Tippins. Rather than pick her up from the strip club on time, he would say to her that he would be late and wait until she was the last one there. Then he would tell her, "you plan on doing this on your own dont you? So walk home on your own”. He concluded, “[b]ut then I’ll see her movements. And decide from there about my paper [money]. I’m not taking the loss this time.”

[7] On May 14, 2013, in the early morning hours, the appellant and Ms. Tippins had a lengthy text exchange during which she asked him repeatedly if he was going to pick her up from the strip club. The appellant picked Ms. Tippins up about 30 minutes later and drove her to Mr. Wassill’s house. Ms. Tippins said there was a lot of yelling and screaming during the drive, as the appellant kept saying that he did not have another way to make a living and she did not want to share her earnings with him anymore. The appellant took some of her money and said he would be there to pick her up later that day.

[8] In the afternoon, Ms. Tippins texted her friends, asking them to gather at Mr. Wassill's home to confront the appellant when he arrived to pick her up for her shift. Meanwhile, Ms. Hill texted the appellant, saying she was deleting all her text messages with Ms. Tippins, as the appellant had told her to stop talking with Ms. Tippins, and to block and "delete" her from Facebook.

[9] That same day, just before 6:00 p.m., Ms. Tippins texted the appellant to see if he would pick her up for work, and when he replied that he was sending a driver, she said she would arrange a ride with her friend, Warren Meredith, instead. The appellant got upset and texted that he would go to collect his "paper" (money) when she finished work, "[a]n we done." Ms. Tippins said not to pick her up, and the appellant replied, "So u gonna run away wit my paper now? Hahahahhahaha ... Ok. We'll see how that works out for u. >:D.” About two minutes later, the appellant texted his friend, Michelle Thompson, asking for a drive later in the night. He made clear to her that he was upset with Ms. Tippins and planned to confront her about getting his money back. Around 6:20 p.m., Mr. Wassill phoned the appellant. Ms. Tippins said that Mr. Wassill told the appellant to not contact her or pick her up from work, but added that he could speak to her the next day.

[10] On May 15, 2013, just after midnight, Ms. Thompson arrived at the appellant’s condominium. The appellant was frustrated that he could not collect his money from Ms. Tippins. He told Ms. Thompson he wanted to stake out Mr. Wassill's home. They drove to Mr. Wassill's street and parked a few doors down from his house. The appellant brought an X-Acto knife with him, which Ms. Thompson said the appellant used to slash the tire of Mr. Meredith's car parked in Mr. Wassill's driveway. When he approached the house, the appellant observed that there were many people inside.

[11] Later the same day, Ms. Tippins awoke around 12:15 p.m. and decided not to go to work. She invited her marijuana dealer, Andrew Lapensee, over to Mr. Wassill’s house. The three of them were speaking in the foyer when she saw the appellant through the window.

[12] The appellant testified that he arrived at Mr. Wassill’s home shortly after 1:00 p.m. wearing latex gloves and armed with an X-Acto knife. He knocked on the window and tried to get Ms. Tippins to come to the door. Mr. Wassill answered instead. The appellant asked to see Ms. Tippins while he stood on the doorstep, but Mr. Wassill told him that she did not want to speak with him and to leave.

[13] The appellant and Mr. Wassill ended up wrestling. At one point, the appellant slashed Mr. Wassill’s throat, and then quickly fled. Mr. Wassill suffered a penetrating incised wound to the anterior (front) neck caused by a single continuous movement of the weapon from right to left. He received emergency medical treatment but died from his injuries about a week later.

[14] The three witnesses to the attack were Ms. Tippins, Mr. Lapensee, and the appellant. They gave differing accounts. According to Ms. Tippins and Mr. Lapensee, the appellant put his hands on Mr. Wassill first and, after slashing his throat, started to move further into the house towards where Ms. Tippins was before seeing Mr. Lapensee and leaving the scene. On the appellant's account, he had only planned to speak to Ms. Tippins, get his money, and leave. According to the appellant, during his conversation with Mr. Wassill, the victim lifted his right arm up quickly. The appellant testified that he interpreted this movement as an attempt to push him and reacted instinctively by pushing Mr. Wassill instead. He stated that the momentum carried him into the foyer of Mr. Wassill’s house, where the two of them engaged in a struggle. The appellant said that at one point, Mr. Wassill grabbed him from behind in a “bear hug,” and that he believed he was going to be hurt, so he grabbed his knife from the pouch of the hoodie. The appellant insisted that he wanted to show the knife to get Mr. Wassill to back off. However, he claimed that when he twisted and swung his hand around, he ended up accidently cutting Mr. Wassill across the throat, and that he immediately left the house in a panic. The appellant explained that he carried the X-Acto knife for protection and wore blue latex gloves because they gave him confidence. He also said that he sporadically worked in construction, and that he was required to bring his own latex gloves and X-Acto knives for tasks like laying flooring.

[15] With respect to how long the incident took, Ms. Tippins believed that everything happened between 20-30 seconds. Mr. Lapensee testified that the entire incident lasted 30-45 seconds, with the appellant being inside Mr. Wassil’s home and grappling with him for approximately 5-15 seconds.

[16] As the appellant drove away from Mr. Wassill's home, he threw the knife and gloves out the window. He went to Ms. Hill's apartment and met her in the parking lot outside her building. Ms. Hill said the appellant seemed like a "wreck." The appellant gave Ms. Hill the clothes he had been wearing (he had already changed into a new set of clothes). The appellant refused to tell her what happened and then left.

[17] A few minutes later, the appellant texted Ms. Hill, asking if he could return as he needed to shower. The appellant also texted, "If anyone asks I was with u since 12.” Ms. Hill said she could not be involved. The appellant replied, "I was never there then lol." He returned to Ms. Hill's apartment, and she cleaned his face with baby wipes and checked his upper body for more blood.

[18] The appellant testified that after he left Ms. Hill’s home, he learned the police were already at his condominium. The appellant decided that he would “put things in motion, so [he] could turn [himself] in.” He told Ms. Thompson that he would give her his car and Ms. Hill his money. He also asked Ms. Hill to delete photos of his car on Facebook. The appellant eventually called police and was arrested in the afternoon.

[19] At trial, the Crown's theory was that spurned and embarrassed by Ms. Tippins, the appellant planned and deliberated to murder her and Mr. Wassill too, if he got in the way. The defence’s theory was that the appellant did not plan to kill anyone, that the attack on Mr. Wassill was an accident, and that his erratic after-the-fact conduct showed his lack of intent. The defence, however, admitted that the appellant was guilty of manslaughter. During their deliberations, the jury asked several questions about planning and deliberation before eventually finding the appellant guilty of first-degree murder.

C. Analysis

[20] There are two issues on the appeal:

1. Did the trial judge err in her response to the jury’s questions on planning and deliberation?
2. Did the trial judge misdirect the jury to consider the appellant’s after-the-fact conduct as evidence of planning and deliberation?

[21] As I will explain, I would answer both questions in the negative and, on this basis, would dismiss the appeal.

(1) Planning and Deliberation

[22] The trial judge instructed the jury that to prove planning and deliberation, the Crown must show beyond a reasonable doubt that the appellant planned and thought out the killing of Ms. Tippins and/or Mr. Wassill if he attempted to intervene. The appellant takes no issue with these instructions, which he concedes were accurate and tracked the standard instructions found in Watt J.A.’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015).

[23] Where the appellant objects to the trial judge’s instructions is her answer to a series of questions posed by the jury during their second day of deliberation. These questions, which focused on planning and deliberation, were as follows:

[313-315] Can a plan + implementation occur during the event (15 to 30 seconds) Carry out immediately > impulsive? Does planned and deliberate have to be planned before the event or can it be planned as the event unfolds? 313 says, “one person may prepare a plan and carry it out immediately.” Does this mean a plan can be immediate, or must be planned in advance? p. 57 – 313 needs to be clarified. Can a plan + implementation occur immediately or is it more important that time is spent to plan? Could deliberate possession of a weapon rule out that a murder was impulsive?

[24] Before answering the questions, the trial judge heard submissions from counsel regarding the appropriate response to be given by the court. These submissions take on special significance on the appeal because they reflect the understanding of defence counsel regarding the meaning of the questions. This understanding is inconsistent with the position now asserted by the appellant.

[25] Immediately after the trial judge read the questions aloud to the court, the following exchange occurred between one of the defence counsel and the trial judge:

MR. RUSSOMANO: It strikes me, just upon reflection, that this really is two questions. That the – all of the questions, except for the very last one deal with, can a plan and its implementation happen at the exact same time.

THE COURT: Or very close in time.

MR. RUSSOMANO: Yes, although I think it’s the former rather than the latter, and I think the answer is in 314 of your charge, that the plan has to be - it has been previously formulated or designed. Now, it can be right before, but it can't be during. It has to be previously.…

[26] The trial judge then allowed counsel time over the lunch break to consider their positions and make submissions. On their return, the position of counsel for the defence did not change. He agreed with the trial judge (1) that planning and deliberation could happen seconds before a murder; (2) that the question referencing 15 to 30 seconds related to the struggle between the appellant and Mr. Wassill; and (3) that the plan could not have been developed during the struggle. In the course of these submissions, defence counsel and the trial judge had an exchange about whether the planning and deliberation could occur as the appellant walked up the stairs to Mr. Wassill’s doorstep. Defence counsel stated that this would be theoretically possible since planning and deliberation has to occur before the murder, but pondered whether there was enough time in such a brief interval.

[27] Defence counsel also had an additional concern. He believed that the jury's questions suggested that they may be conflating planning and deliberation, and requested an instruction to clarify these as distinct concepts.

[28] The Crown submitted that there was no reason to instruct the jury about the fact that planning and deliberation were separate concepts. He reminded the trial judge that she had made this distinction clear at seven different points in her charge. Regarding timing, the Crown took the position that the planning and deliberation could have occurred during the course of the verbal exchange with the victim on the doorstep. He requested an instruction wherein this point was explicitly made.

[29] The trial judge rejected the requested instruction by defence counsel to clarify the distinction between planning and deliberation. She also dismissed the Crown's suggestion that she instruct the jury regarding the fact that the planning and deliberation could occur at any time before the throat slash, up to and including the verbal exchange on the doorstep, and the “spilling into the foyer.” The trial judge further made it clear that in her answer she would use the term murder instead of the more ambiguous term "event."

[30] The pertinent portions of the trial judge’s answer provided to the jury are as follows:

You have asked the following questions: Paragraphs 313 to 315 – can a plan and implementation occur during the event (15 to 30 seconds) carry out immediately > impulsive? Does the plan – does planned and deliberate have to be planned before the event, or can it be planned as the event unfolds?

Paragraph 313 says: "One person may prepare a plan and carry it out immediately." Does this mean a plan can be immediate, or must be planned in advance? Paragraph 313 needs to be clarified. Can a plan and implementation occur immediately, or is it more important than time is spent to plan? Could the deliberate possession of a weapon rule out that a murder was impulsive?

In the first four questions, it appears you’re asking about the timing in relation to the formulation of the plan, and the deliberation. And I refer you again, to paragraphs 311 and – to – 311 to 316. In addition, I add the following: The key with respect to the planning and deliberation is that both the planning and deliberation have to be complete before the murder occurs. Although the length of time between the completion of the planning and deliberation, and the implementation could be very short – almost immediate.

As an aspect of timing, part of the planning and deliberation of the murder could be determined in advance, with part not being determined until immediately before carrying out the murder, so long as the entire plan and deliberation is complete before the murder.

The last question is: Could the deliberate possession of a weapon rule out that a murder was impulsive? It depends. The possession of a weapon is a piece of evidence to consider along with all the other evidence in determining whether the murder was planned and deliberate. So I hope that helps members of the jury. If you have further questions, don’t hesitate to ask.

[31] The jury asked no further questions of the trial judge. They convicted the appellant of first-degree murder the next day.

[32] The appellant argues that the jury had to conclude that the appellant planned and deliberated committing murder before he arrived at Mr. Wassill's home to convict on first-degree murder. If the appellant arrived without a plan to kill, counsel for the appellant submits that there was no evidence or realistic opportunity for the attack on Mr. Wassill to be planned and deliberate. According to the appellant, the questions show that the jury was struggling with whether the appellant might have only formulated a plan to kill while standing on the doorstep of Mr. Wassill's residence, during his argument with the victim.

[33] The appellant also submits that the jury’s questions demonstrate that they were struggling to understand the law of planning and deliberation, and how to apply the law to the evidence. Paragraph 313 of the written charge said: “One person may prepare a plan and carry it out immediately.” This was meant to capture the classic instruction emphasizing that formulating a plan takes time, so a jury should focus on the time involved in developing a plan, and not how long a person waits to implement it. But the appellant says that the jury read it to mean that the appellant could immediately prepare a plan and carry it out.

[34] The crux of the appellant’s argument is that the questions show how the jury misunderstood what planning requires, and what the relationship is between planning and deliberation. The appellant submits that although a plan, once formulated, can be carried out immediately, a plan cannot be formulated immediately. Similarly, deliberation cannot happen immediately.

[35] According to the appellant, the trial judge erred in not realizing that there was no air of reality to the theory that the appellant planned and deliberated murdering Mr. Wassill while he was standing on the doorstep and arguing with the victim. He submits that the jury needed to be told there was no evidentiary basis to convict the appellant of first-degree murder on the scenario their questions implied. The jury should also have been told that while a plan might be carried out immediately after it is formulated, formulating a plan takes time. Instead, the recharge focused on how quickly a plan can be implemented, effectively endorsing the jury’s misconceived theory of liability. The appellant submits that the failure to correct the jury's misapprehensions about planning and deliberation was not minor or incapable of impacting the verdict. Instead, this failure went to the critical issue between a finding of first- or second-degree murder.

[36] The law regarding answers to jury questions is well-settled and was not the subject of debate on this appeal. Jury questions are recognized in the jurisprudence as being particularly significant because they provide insight into the jury's problems with a case. For that reason, jury questions require a full, careful and correct response: R. v. W. (D.), [1991] 1 S.C.R. 742, at pp. 759-760. The jury is not only entitled to a responsive answer to its question, but the trial judge should take care not to discourage further questions: R. v. Layton, [2009] 2 S.C.R. 540, at para. 33.

[37] As noted by Mainella J.A. of the Court of Appeal of Manitoba in R. v. Willis (TAW), 2016 MBCA 113, 344 C.C.C. (3d) 443, leave to appeal refused, [2017] S.C.C.A. No. 45, this seemingly simple task is often challenging for a trial judge because there is no set of standard answers that can be applied. Ultimately, it “is a judicial function that relies entirely on the proper exercise of discretion tailored to the applicable circumstances”: Willis, at para. 217. This court made a similar comment in R. v. Mohamad, 2018 ONCA 966, 369 C.C.C. (3d) 211, leave to appeal refused, [2019] S.C.C.A. No. 162, wherein Watt J.A. stated, at para. 279: “[H]ow the response is given is left largely to the discretion of the presiding judge. And that discretion, uncontaminated by errors of law or misapprehensions of fact and falling within a range of reasonable alternatives is entitled to deference on appellate review.”

[38] With these comments in mind, I consider the adequacy of the trial judge’s answer. There can be no doubt that the answer was correct in law. By that I mean, that the trial judge’s instruction that planning and deliberation had to occur before the murder was without error. The appellant’s counsel is not arguing otherwise on this appeal. His point is that the questions revealed a concern held by the jury about whether the appellant had adequate time to plan and deliberate.

[39] The appellant's argument on this issue is premised on the assertion that what the jury was concerned about is whether he could plan and deliberate murder as he stood on Mr. Wassill’s doorstep and argued with the victim. This doorstep theory was mooted in exchanges between counsel and the trial judge. However, it was never put to the jury by either party or the trial judge. Recall that the Crown requested a specific instruction that the planning and deliberation could occur on the doorstep. The trial judge rejected that request.

[40] The interpretation of the questions asserted on appeal is contrary to the position taken by defence counsel before the trial judge. The trial judge explicitly raised with defence counsel the doorstep theory, but counsel did not take the position that the jury questions were aimed at that issue. His interpretation was that the jury was asking about timing, i.e. whether the planning and deliberation, and the implementation, can happen simultaneously.

[41] The trial judge accepted that characterization of the questions and tailored her answer accordingly. That interpretation was sensible in the circumstances. Nowhere in the multiple questions was there an explicit reference to planning and deliberation taking place on the doorstep as the appellant argued and then struggled with Mr. Wassill. In her response, the trial judge was careful to refer to the "murder," and not the "event," to emphasize that the planning and deliberation had to happen before the murder. In doing so, she mitigated against the risk that the jury might be asking a question premised on the doorstep theory. It was plain from her answer that she was referring to whether the murder, and the planning and deliberation, could occur at the same time.

[42] The trial judge also invited the jury to ask further questions. This is a significant factor in this case because the jury had asked several questions and clearly was not reticent about seeking clarification when it was struggling with an issue. I have no difficulty concluding that if this jury meant by their questions that they needed guidance about whether the planning and deliberation could occur on the doorstep, they would have had no hesitation in seeking further clarification.

[43] Ultimately this issue comes down to whether the trial judge correctly answered the questions having regard to her discretion to tailor the answer in the circumstances. In this case, where there was no explicit reference to the doorstep theory in the questions, and it had not been put to the jury, I can see no error in her response. The trial judge properly answered the questions, tailored her answer to clarify that she was referring to the actual murder and not what happened on the doorstep, and encouraged the jury to come back for further guidance. Accordingly, I would not give effect to this ground of appeal.

(2) After-the-fact Conduct

[44] The appellant concedes that since he asserted the defence that he struck Mr. Wassill accidentally, his after-the-fact conduct was admissible to rebut his defence. He also argues that the after the-fact conduct was relevant to support his contention that he did not have murderous intent.

[45] The jury charge highlighted several examples of after-the-fact conduct, including:

• The appellant went to Ms. Hill's home after the incident and asked for a garbage bag in which he deposited his clothing.
• The appellant asked Ms. Hill to say he had been with her since noon.
• The appellant returned to Ms. Hill’s home, and Ms. Hill helped clean blood off the appellant’s face.
• The second time he went to Ms. Hill's home, the appellant parked his car some distance away. He later arranged for Ms. Thompson to pick the car up.
• At the request of the appellant, Ms. Hill went on his Facebook page and deleted all his photos with his car.
• When the appellant went to Ms. Hill's a third time, he gave her his keys and told her he was going away for a while, and she could use his condominium.
• Ms. Hill and Ms. Thompson tried to go to the appellant’s condominium.
• Ms. Hill gave Ms. Thompson the bag containing the appellant’s clothes.
• Ms. Thompson later disposed of the bag in a garbage bin at a gas station some considerable distance away.

[46] The trial judge also reviewed in the jury charge the appellant's explanations for his conduct. For example, she reminded the jury of the appellant’s explanation that he threw the bloody gloves and knife out the window because he was frightened and panicked. She told them that the appellant testified about how he changed out of his clothes not because they were blood-stained, but because they were sweaty and made him feel disgusting. The trial judge reviewed with the jury the appellant’s explanation that he hid his car on a side street and asked Ms. Hill to remove photos of his car from Facebook because he feared the BMW gang and wanted to avoid a criminal charge for driving without a license. She also reminded the jury of the appellant’s evidence that he tried to find the Ottawa Police Service's phone number to turn himself in.

[47] The trial judge further cautioned the jury on the proper uses of the evidence and asked them to consider alternative explanations. She told the jury that to use the after-the-fact conduct to support a finding of guilt, they must reject any other explanation for the conduct.

[48] In his factum, the appellant asserts the trial judge concluded during the pre-charge conference that the after-the-fact conduct could not be used to support the Crown’s theory that the murder was a result of planning and deliberation. Despite this conclusion, the jury charge explicitly invited the jury to use the after-the-fact conduct as evidence to "assist in determining whether there was or was not, planning and deliberation." The appellant argues that the trial judge ought to have provided a limiting instruction advising the jury that they could not use the after-the-fact conduct to support an inference of planning and deliberation.

[49] I would not give effect to this ground of appeal. To the extent that is premised on the notion that after-the-fact conduct cannot serve as evidence of planning and deliberation, that is an erroneous view of the law. There is no legal impediment in using the after-the-fact conduct to determine intent or distinguish between different levels of culpability. As Doherty J.A. stated in R. v. MacKinnon (1999), 43 O.R. (3d) 378 (C.A.):

Evidence of after-the-fact conduct is a type of circumstantial evidence. Its potential probative value will depend upon the nature of the evidence, the issues in the case and the positions of the parties. Often, evidence of after-the-fact conduct will be probative of the accused's participation in the crime alleged, but will have no probative value in determining the level of the accused's culpability. Sometimes, however, as a matter of common sense and human experience, the evidence will be capable of supporting an inference that an accused had a particular state of mind: R. v. White, [1998] 2 S.C.R. 72 at pp. 88-92, 125 C.C.C. (3d) 385 at pp. 400-03.

The appellants' conduct as described by Ransome, from the time they fled the club until they disposed of evidence in the dumpster could, when viewed in its entirety, support the inference that they had done exactly what they had planned to do, that is, enter the club, commit a robbery and shoot Mr. Chow. This inference would lend considerable support to the Crown's claim that the murder was planned and deliberate. As the evidence had some probative value on the question of whether the appellants had engaged in a planned and deliberate murder as opposed to a robbery or some other illegal activity which had gone awry, the trial judge could not have instructed the jury that the evidence had no value in determining the appellants' level of culpability. The alleged non-direction does not constitute misdirection on the evidence adduced in this case.

See also: R. v. Calnen, [2019] 1 S.C.R. 30, at para. 119, per Martin J. (dissenting, but not on this point); R. v. Café, 2019 ONCA 775, 381 C.C.C. (3d) 98, at paras. 55-58.

[50] I agree with the submission of the appellant that the after-the-fact evidence referred to by the trial judge was relevant to the issue of his intent. It was also relevant to support one of the appellant’s principal arguments at trial, specifically that his after-the-fact conduct demonstrated that the killing had not been planned. The defence relied on the fact that the appellant did not make prior arrangements to settle his affairs before the killing, and that his actions seemed frantic, to negate the Crown’s submissions on planning and deliberation.

[51] The question on appeal is whether the after-the-fact conduct evidence was admissible to support the Crown’s position that the murder was a planned and deliberate killing. It is necessary at this point to review the argument made in the appellant’s factum that the trial judge agreed the jury could not use the after-the-fact conduct to support the Crown’s position regarding planning and deliberation, but then inexplicably instructed them to do so. This description of what occurred during the pre-charge conference is inaccurate.

[52] It is true that the trial judge did state during the beginning of her colloquy with the Crown that after-the-fact conduct could not help the Crown prove planning and deliberation. The Crown disagreed and made submissions on the point. He relied on the passage from MacKinnon excerpted above to argue that after-the-fact conduct can be relevant to the issue of planning and deliberation.

[53] The trial judge acceded to this argument. She stated repeatedly that the after-the-fact conduct could be used both to prove or disprove planning and deliberation, and advised the parties that she would include that instruction in her charge. The trial judge observed, quite correctly, that how the evidence could be used was a matter for the jury to decide.

[54] Defence counsel did not object to the proposed instruction. During the pre-charge conference, she explicitly agreed with the suggestion made by the trial judge that the jury could use after-the-fact conduct to determine “whether there was any planning and deliberation.” Defence counsel also did not object when the trial judge suggested a slightly modified instruction at the insistence of the Crown to read “it may assist whether there was or was not any planning and deliberation”.

[55] The Crown’s position was that the evidence was relevant to rebut the appellant’s claim that he accidentally slashed Mr. Wassill’s throat, and to support an inference of planning and deliberation. According to the Crown, after killing Mr. Wassill, the appellant “beelined” toward Ms. Tippins instead of hesitating (as one would expect in an accidental killing). The Crown submits that the appellant’s conduct after leaving the house was consistent with the follow-through and execution of a previously devised plan adjusted to deal with an unanticipated eyewitness.

[56] The trial judge had a choice of permitting the after-the-fact conduct to be used to support the Crown’s theory regarding planning and deliberation, or cautioning the jury that they could not use it for that purpose. In my view, the trial judge did not err in instructing the jury that they could rely on this evidence to support the Crown’s theory regarding planning and deliberation. The evidence was capable of supporting the inference that the Crown was inviting the jury to draw.

[57] The jury would have understood that both the Crown and defence relied on the after-the-fact conduct to support their respective theories of the case. Further, the jury was properly instructed on the limited use of that conduct, including that to use it as evidence of guilt, they had to reject any other explanation for the conduct. Therefore, I would not give effect to this ground of appeal.

D. Disposition

[58] For the foregoing reasons, I would dismiss the appeal.

Released: May 11, 2021 “C.W.H.” “C.W. Hourigan J.A.” “I agree. B. Zarnett J.A.” “I agree. S. Coroza J.A.”