Court of Appeal for Ontario

Date: 2021-07-02 Docket: C66290

Watt, Benotto and Jamal JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Daniel Debassige Appellant

Counsel: Richard Litkowski and Jessica Zita, for the appellant Gregory J. Tweney, for the respondent

Heard: March 4, 2021 by video conference

On appeal from the conviction entered by Justice W. Danial Newton of the Superior Court of Justice, sitting with a jury, on May 25, 2017.

Watt J.A.:

[1] A few days before Christmas, Monica Spence and Daniel Debassige (the appellant) were drinking wine at Richard Spence's (the deceased) apartment in Thunder Bay. Feeling the effects of the wine and “percs” she had consumed over several hours, Ms. Spence lay down on the deceased's bed. She was fully clothed.

[2] Sometime later, Ms. Spence was awakened by someone pounding at the apartment door. The deceased was on top of her. They were on the living room couch. Ms. Spence had no clothes on below her waist. Apparently, no one else was in the apartment.

[3] Ms. Spence pushed the deceased off her. She punched and kicked him. She tried to escape. The deceased tried to prevent her from leaving his apartment. Ms. Spence did escape. She ran out of the apartment, naked from the waist down.

[4] Later the same day, the deceased was found dead on the floor in his bedroom. A police investigation followed. Ms. Spence and the appellant were charged with second-degree murder.

[5] Ms. Spence and the appellant were tried together. The jury found Ms. Spence guilty of manslaughter and the appellant guilty of second-degree murder.

[6] The appellant appeals against his conviction. The reasons that follow explain why I would dismiss the appeal and affirm the conviction.

The Background Facts

[7] The principal grounds of appeal allege errors in the charge to the jury. Those grounds do not require an elaborate recitation of the evidence adduced at trial. However, the appellant also contends that the jury's verdict was unreasonable. A brief overview of the essence of the case as it unspooled before the jury will provide the background necessary to understand the claims of error advanced.

The Principals

[8] The appellant and his co-accused, Ms. Spence, had been in a relationship for several years. Ms. Spence had known the deceased for nearly two decades, and she often drank alcohol with the deceased, together with several others.

[9] Evidence was introduced at trial that the deceased had sexually assaulted Ms. Spence several years before his death. In her testimony at trial, Ms. Spence explained that she had put those previous events behind her and had forgiven the deceased, who had admitted his responsibility.

The Morning Visit

[10] Ms. Spence and the appellant had sexual intercourse on the morning of December 20, 2014. The appellant did not wear a condom. Ms. Spence then called the deceased. She asked the deceased whether he had bus fare for her and the appellant. The deceased agreed to provide it.

[11] The appellant and Ms. Spence went to the deceased's apartment later that morning. The deceased gave the couple four dollars. He also offered them something to drink. Later that morning, a cousin of the deceased called. He and the deceased spoke on the phone. The cousin also spoke with Ms. Spence. He heard another male voice, not that of the deceased, in the background.

The Afternoon

[12] As morning gave way to afternoon, the deceased, Ms. Spence and the appellant continued to drink wine in the deceased's apartment. Ms. Spence had been to the apartment several times previously, but this was the first time the appellant had been there. Ms. Spence also consumed some “percs”.

[13] At some point, the appellant left the deceased's apartment. Ms. Spence remained there. She and the deceased were alone.

Monica Spence Becomes Intoxicated

[14] During the afternoon, Ms. Spence began to feel “wobbly” as she stood up in the deceased's apartment. She fell and struck her head on the table. Her nose began to bleed. She decided to lie down. She went into the deceased’s bedroom and lay down on the bed. She was fully clothed. She passed out.

The Awakening

[15] Sometime later, a banging on the door to the deceased's apartment awakened Ms. Spence. She was no longer on the bed in the deceased's bedroom. She was no longer wearing all her clothes. She was on the couch in the deceased's living room. She was naked from the waist down. And the deceased was on top of her.

The Altercation

[16] Ms. Spence pushed the deceased off her onto the floor. She punched and kicked him. She tried to escape. The deceased tried to prevent her from escaping. The struggle continued.

The Dark Figure

[17] As Ms. Spence made her way to and through the door to the deceased's apartment, she saw a dark figure standing outside the door. She did not recognize this person. It appeared to be a man. It could have been the appellant. But she was not sure.

The Escape

[18] When Ms. Spence fled from the apartment, the deceased remained inside and alive. As she left the building, Ms. Spence was naked from her waist down. It was December 20, 2014. In Thunder Bay.

The Appellant and Ms. Spence Meet

[19] At some point later, Ms. Spence met the appellant outside an Italian bar, a short distance from the deceased's apartment. The appellant did not say how he came to be outside the bar. The appellant did not ask Ms. Spence, his partner, why she was wearing no clothes from her waist down.

The Finding of the Deceased

[20] Edward Finlayson, a lifelong friend of the deceased, had been at the local casino. He walked over to the deceased's apartment so he could go to sleep. He knocked on the apartment door and called out to the deceased. He got no response. He checked a local bar the deceased frequented. Again, no sign of the deceased.

[21] Mr. Finlayson returned to the deceased's apartment. He knocked again, then tried the door. It was unlocked. He went inside. He walked to the fridge to get a drink. He saw a trail of blood. Then he thought he saw the deceased on the bedroom floor. He left the apartment to return to the casino in search of the police.

[22] At the casino, Mr. Finlayson encountered a cousin of the deceased, and the two of them located the deceased’s sister. Mr. Finlayson explained what he had seen at the deceased’s apartment. The deceased’s sister called 911, and the three of them drove to the deceased's apartment. They went inside.

[23] Inside the apartment, the deceased's cousin noticed liquor bottles and blood on the floor. He and the deceased’s sister went into the bedroom. There they saw the deceased, face down on the floor. His pants were down. He was unresponsive. Emergency personnel arrived.

The Admissions of the Appellant

[24] Ellen Marratt lived near the appellant. She had known the appellant and Ms. Spence for over three years. As she was outside her home smoking a cigarette, the appellant walked by. It was the evening of December 20, 2014. They greeted each other briefly. The appellant then said that he had killed a rapist. Ms. Marratt did not believe the appellant, nor ask him any questions about what he had said.

[25] A second witness gave similar evidence. Diane Hanson and the appellant lived in the same boarding house. She testified that in the afternoon on the day the deceased was killed, the appellant returned home. He told Ms. Hanson that he had killed a rapist. He said he had entered the deceased's apartment. There he saw the deceased and Ms. Spence, both in a state of undress. He then got into an “altercation” with the deceased. The appellant then left the boarding house.

[26] Later the same day, the appellant returned to the boarding house. Ms. Spence was with him. She was intoxicated and had blood on her nose. Ms. Hanson heard the appellant say to Ms. Spence, “[N]obody was, he was never gonna touch her, or her grandchildren, or her daughter, or whatever, again”. Ms. Hanson did not provide this information to the police during any of three interviews. She only did so around the time of the appellant's arrest.

The Admissions of Ms. Spence

[27] The jury also heard evidence of some admissions that witnesses attributed to Ms. Spence. While not admissible against the appellant at their joint trial, these admissions provide some background to the narrative of events.

[28] Donald Churchill was a friend of both Ms. Spence and the deceased. He had met the appellant a few times. He called Ms. Spence when he saw police officers outside the deceased's apartment. Ms. Spence came over to Mr. Churchill's apartment.

[29] Mr. Churchill testified that Ms. Spence said, “Don, I think, um, that was me that did it to, uh, Richard”. Ms. Spence explained that she woke up with the deceased on top of her, sexually assaulting her. She pushed, punched and kicked the deceased before fleeing the apartment. When she left, the deceased was coherent, yelling at her as she fled.

[30] Christine Churchill is Mr. Churchill's sister. She spoke to Ms. Spence after Ms. Spence had talked to her brother. Ms. Spence said that she woke up with her pants off, but she did not say whether she had been sexually assaulted. Later, Ms. Spence indicated that she had stomped on the deceased's head “or something”.

The Forensic Evidence

[31] A forensic biologist examined samples of body fluids found at or on items located at the scene of the deceased's death. The appellant could not be excluded as the source of DNA found in blood smears located on pillars leading into the deceased's apartment. Nor could he be excluded as the source of semen located in boxer shorts from Ms. Spence or a penile swab taken of the deceased. These latter findings could have been the result of transfer from Ms. Spence, with whom the appellant had engaged in unprotected sex before the couple arrived at the deceased's apartment.

[32] A bloodstain pattern analyst, who reviewed photographs of the scene and reports from investigators who had attended there, explained that patterns of staining found on the floor, door, walls and sheets revealed that the deceased was likely struck where his body was found.

The Cause of Death

[33] A forensic pathologist concluded that the deceased died from blunt impact facial trauma with aspiration of blood. The deceased was in a state of acute ethanol intoxication when he died, as well as coronary artery, or coronary atherosclerotic and hypertensive heart disease. At death, the deceased's blood alcohol concentration was 270 mg of alcohol in 100 ml of blood. A person with such a blood alcohol concentration might stagger and be lethargic.

[34] The deceased had suffered 74 separate injuries, two-thirds of which were to his neck and head. There was an extensive hemorrhage from his left temple and a small hemorrhage to the right side of his brain. Some of the injuries could have been caused by a fall, but neither a single fall nor several falls could explain all the injuries, especially those around his head.

The Grounds of Appeal

[35] The appellant urges five grounds of appeal. He contends that the trial judge erred:

i. in instructing the jury on the statutory partial defence of provocation in accordance with a provision that was inapplicable to the offence charged;

ii. in failing to instruct the jury in express terms that intoxication negates the fault element required to be proven to make an unlawful killing murder;

iii. in failing to fully and fairly put the defence position to the jury; and

iv. in failing to provide a W.(D.) instruction with respect to the appellant's defence.

[36] The final ground of appeal is that the verdict of the jury was unreasonable.

Ground #1: The Jury Instruction on Provocation

[37] This ground of appeal does not require any further reference to the evidence adduced at trial. A snapshot of the recent procedural history of s. 232(2) of the Criminal Code, R.S.C. 1985, c. C-46 is sufficient prelude for what follows.

The Procedural Background

[38] The offence charged was alleged to have occurred on December 20, 2014. At that time, the provoking conduct requirement in s. 232(2) of the Criminal Code was expressed as “[a] wrongful act or an insult”. Neither constituent was defined in or for the purposes of the provision.

[39] On July 17, 2015, an amendment to s. 232(2) came into force. It replaced “[a] wrongful act or an insult” with “[c]onduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment”. The objective and subjective standards or tests in the subsection remained unchanged. The amending legislation contained no transitional provisions with respect to s. 232: Zero Tolerance for Barbaric Cultural Practices Act, S.C. 2015, c. 29.

[40] The appellant’s trial was held in May 2017. At the pre-charge conference, it was common ground that the instructions on provocation should accord with the amended legislation. The charge, delivered on May 24, 2017, followed this course.

The Charge to the Jury

[41] In instructing the jury on provocation, the trial judge described the provocative conduct as the deceased’s sexual assault and unlawful confinement of Ms. Spence. He told the jury that both sexual assault and unlawful confinement were indictable offences punishable by imprisonment for five or more years.

[42] No objection was taken to this or any other aspect of the trial judge’s instruction on provocation.

The Arguments on Appeal

[43] The appellant says that the trial judge erred in instructing the jury on the post-amendment standard for provocative conduct. In the absence of any contrary legislative provisions, the common law presumes legislation does not apply retrospectively to events or conduct that occurred before the legislation came into force. It is all the more so where the legislation, as here, is substantive in nature. Like the legislation amending the statutory justification of self-defence, this legislation amending the statutory partial defence of provocation is, by nature, substantive. Absent a specific statutory provision or a discernible legislative intent of Parliament to have the legislation apply retrospectively, the legislation applies prospectively only. In this case, that means that the trial judge erred in charging the jury based on the amended legislation, as the relevant events took place before the amending legislation came into force.

[44] This error, the appellant continues, was prejudicial to the defence at trial. The new standard for provocative conduct is much narrower than the former, more limitative of the range of conduct that may engage the defence. In this case, the Crown did not accede to the defence assertion that a sexual assault had occurred, thus leaving the issue at large for the jury to decide.

[45] The respondent acknowledges that the trial judge erred in instructing the jury on the post-amendment standard for provocative conduct. But, the respondent says, this error caused the appellant no prejudice in the circumstances of this case.

[46] The respondent asks us to recall the defence position as advanced in the closing address of trial counsel. It had several components. The deceased died by accident. The appellant was not there when the deceased died. In the alternative, the appellant acted in lawful defence or protection of his intimate partner, Ms. Spence, who was being sexually assaulted by the deceased. Or in the further alternative, the appellant was provoked by the deceased's sexual assault of Ms. Spence, such that his unlawful killing of the deceased was manslaughter, not murder.

[47] In this case, the respondent continues, the trial judge told the jury that both sexual assault and unlawful confinement met the standard required for provocative conduct. It would have been equally the case had the standard been “[a] wrongful act or an insult”, as it should have been. The critical question was whether this conduct, as alleged by Ms. Spence, ever occurred and satisfied the objective standard for provocation. This would have been no different had the correct characterization of the engaging conduct been applied. The appellant suffered no prejudice.

The Governing Principles

[48] Two sources of principle control our decision on this ground of appeal. The first has to do with the temporal application of amending legislation to existing prosecutions when Parliament has not enacted any transitional provisions. The second concerns the nature and extent of the amendment to the threshold standard for the statutory partial defence of provocation.

[49] As a matter of general principle, legislation affecting substantive rights is presumed to have prospective effect unless it is possible to discern a clear legislative intent that it apply retrospectively. On the other hand, new procedural legislation designed to govern only the manner in which rights are asserted or enforced, which does not affect the substance of the rights, applies immediately to pending and future cases: R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272, at para. 10; R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22, at para. 40.

[50] The amendment in this case relates to the statutory partial defence of provocation. In particular, the amendment alters an essential element of the defence — the threshold requirement of provocative conduct. In place of the former “[a] wrongful act or an insult”, the amendment substitutes a narrower range of conduct that may constitute provocation. The objective and subjective standards the provocative conduct must meet remain the same.

[51] In recent years, Parliament also amended the statutory justifications of self-defence and defence of property. A single section for each replaced several provisions often criticized for their complexity. As here, the amending legislation was bankrupt of any transitional provisions. These amendments were held to be substantive in nature. Nothing in the legislation suggested any intention on the part of Parliament to have the legislation apply retrospectively. Thus, the presumption against retrospective application applied and the amendments operated prospectively only: Bengy, at paras. 50, 31, 67 and 71.

[52] Turning to the nature and effect of the amendments to s. 232(2) themselves.

[53] Provocation is a statutory partial defence to murder. When applicable, provocation reduces what otherwise would be murder to manslaughter: Criminal Code, s. 232(1). Provocation, as a statutory defence, has nothing to do with the mental or fault element in murder, since murder must be proven first before the statutory partial defence can become engaged: R. v. Bouchard, 2013 ONCA 791, 305 C.C.C. (3d) 240, at para. 60, aff’d 2014 SCC 64, [2014] 3 S.C.R. 283; R. v. McGregor, 2019 ONCA 307, 145 O.R. (3d) 641, at para. 149.

[54] The statutory partial defence of provocation consists of three essential elements:

i. provocative conduct;

ii. an objective standard; and

iii. a subjective standard.

The provocative conduct must satisfy both the objective and subjective standards for the defence to reduce murder to manslaughter.

[55] The amendment to s. 232(2) with which we are concerned relates to the provocative conduct element of the defence.

[56] Under the now repealed s. 232(2), the provoking conduct required to engage the defence was “[a] wrongful act or an insult”. Neither “wrongful act” nor “insult” was defined. Despite the absence of clearly defined boundaries for “[a] wrongful act”, however, no one would deny that the commission of an indictable offence punishable by imprisonment for five years or more by the victim would meet this standard. Whatever may be the outer reaches of “wrongful act”, the term would seem to include an unlawful act, a criminal offence under the Criminal Code.

[57] The only change to the statutory partial defence of provocation made by the amendment to s. 232(2) with which we are concerned has to do with the threshold requirement of provocative conduct. Instead of “[a] wrongful act or an insult”, the subsection requires conduct by the victim that would constitute an indictable Criminal Code offence punishable by imprisonment for five years or more. The balance of the section, which requires that the provocative conduct meet both an objective and a subjective standard, remains unchanged.

The Principles Applied

[58] Despite my conclusion that the trial judge erred in instructing the jury in the statutory partial defence of provocation, I would not give effect to this ground of appeal. In the circumstances of this case, the error was harmless.

[59] The amendment to s. 232(2) substituted a new formula for determining what constitutes provocative conduct for the purposes of the statutory partial defence of provocation. This affects a substantive right, the scope of a defence, albeit partial, to a charge of murder. Such an amendment is, by nature, substantive. As a substantive provision, the amendment is subject to the presumption against retrospective operation absent any evidence of a legislative intention to the contrary. No such contrary intention is suggested. None appears.

[60] In the result, I agree with counsel on both sides that the trial judge erred in instructing the jury in accordance with the current version of s. 232(2), rather than its predecessor which required that the provocative conduct be “[a] wrongful act or an insult”.

[61] However, I am satisfied that in the circumstances of this case, the error was harmless.

[62] First, the nature of the allegedly provocative conduct in this case.

[63] The provocative conduct alleged in this case consisted of the commission of two criminal offences: sexual assault and unlawful confinement. When prosecuted on indictment, each is punishable on conviction by a term of imprisonment of more than five years. As criminal offences, the victim’s conduct would also constitute “[a] wrongful act” for the purposes of the former s. 232(2). In other words, this is a case in which the allegedly provocative conduct would have been left to the jury as the basis for the partial statutory defence under the applicable version, the former s. 232(2).

[64] Second, in his final instructions, the trial judge told the jury that the allegations of sexual assault and unlawful confinement amounted to conduct that constituted an offence punishable under the Criminal Code by five or more years of imprisonment. The trial judge went on to identify both the objective and subjective standards the conduct must meet for the defence to reduce proven murder to manslaughter. The instructions on those issues are not affected by the error in the provocative conduct requirement and are not the subject of complaint here.

[65] The trial Crown disputed that a sexual assault or unlawful confinement had occurred and that it met either standard essential to the statutory partial defence. But that dispute likely would have also occurred had “[a] wrongful act or an insult” been the governing characterization. That the applicable characterization was not applied caused no prejudice to the appellant.

[66] Third, trial counsel were provided ample opportunity to review the proposed charge before it was delivered. No one raised any objection about how the threshold issue — the characterization of provocative conduct itself — was left to the jury.

[67] In the result, what occurred here when the wrong qualifying requirements of provocative conduct were left with the jury was harmless error. The evidence adduced reveals no conduct beyond the alleged sexual assault and unlawful confinement that would have been captured by “[a] wrongful act or an insult” but was beyond the borders of the current formulation.

Ground #2: The Instruction on Intoxication

[68] The second ground of appeal also alleges a fatal omission in the charge to the jury. As with the first ground of appeal, this submission relates to an issue on which the trial judge instructed the jury. But, unlike the first ground of appeal, the issue to which this claim of error relates was not the focus of the multi-faceted position advanced to the jury by trial counsel.

[69] A brief reference to the charge to the jury will furnish the background necessary to an understanding of the error alleged and an assessment of its impact.

The Charge to the Jury

[70] The trial judge instructed the jury on the mental or fault element the Crown was required to prove beyond a reasonable doubt before the appellant (or Ms. Spence) could be found guilty of second-degree murder. The instruction included reference to the common-sense inference of intention from conduct and the relationship between evidence of intoxication and the availability of that inference in proof of the fault or mental element. The trial judge made it clear that, in determining whether to draw the inference, the jury was required to consider all the evidence, including evidence of impairment and intoxication from drug and alcohol consumption.

[71] The trial judge also devoted several pages of the charge to intoxication. After repeating the fault element required to make an unlawful killing murder, the trial judge instructed the jury in these terms:

To decide whether Crown counsel has proven beyond a reasonable doubt that Monica Spence and or Daniel Debassige had the state of mind required for second degree murder, you should take into account the evidence about her and or his consumption of alcohol and drugs, along with the rest of the evidence that throws light on her and or his state of mind at the time the offence was allegedly committed.

[72] The trial judge also included evidence of alcohol and drug consumption, together with evidence of anger and instinctive reaction, in a “rolled-up” instruction in connection with proof of the mental or fault element required for murder.

The Arguments on Appeal

[73] The appellant acknowledges that the trial judge did instruct the jury on the issue of intoxication based on the evidence of Ms. Spence about the consumption of alcohol and drugs over a period of several hours on December 20, 2014. But the appellant says the instructions given were deficient in that they failed to include an express direction that a finding that the appellant was intoxicated when he unlawfully killed the deceased would require the jury to return a verdict of manslaughter. This failure, despite the inclusion of a “rolled-up” instruction, essentially deprived the appellant of a manslaughter verdict.

[74] The respondent accepts that the evidence adduced warranted an instruction about the legal effect of evidence of intoxication on proof of the mental or fault element required to establish an unlawful killing as murder.

[75] In this case, the respondent points out, the trial judge provided counsel with copies of his proposed charge. Apart from some minor comments about the use of footnotes, trial counsel for the appellant and his co-accused were content with the proposed instruction. In these instructions, the trial judge dealt with the obligation of the Crown to prove the mental or fault element in murder in three ways. He explained the substance of the element. He directed the jury to consider all the evidence, including but not only evidence of intoxication, in determining whether the Crown had proven the required fault element beyond a reasonable doubt. And he specifically told the jury about the legal effect of evidence of intoxication on proof of the fault element both on its own and as part of the combined effect of several factors.

The Governing Principles

[76] Three sources of principle help us assess this ground of appeal.

[77] The first involves the effect of evidence of an accused’s intoxication on proof of the fault element in murder.

[78] It is uncontroversial that a jury should be instructed that they are to consider evidence of an accused’s consumption of alcohol and drugs, together with evidence of the other circumstances surrounding an unlawful killing, in deciding whether the Crown has proven the mental or fault element required for murder beyond reasonable doubt: R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 48; R. v. Robinson, [1996] 1 S.C.R. 683, at paras. 48-49.

[79] It is commonplace for jurors to be instructed that in deciding whether the mental or fault element in murder has been proven beyond a reasonable doubt, they are entitled to rely on the common-sense inference that a person intends the natural and probable consequences of their acts. However, the jurors must also understand that the inference can only be drawn after they have considered the whole of the evidence, including evidence of the accused's consumption of alcohol and drugs: Daley, at para. 58; R. v. Seymour, [1996] 2 S.C.R. 252, at para. 23.

[80] The second relates to the “rolled-up” instruction. The purpose of the “rolled-up” instruction is to advise the jury not to take a compartmentalized approach to the evidence by considering it only in connection with a discrete defence, such as intoxication. The “rolled-up” instruction ensures that the jury understands that the probative value of evidence, for example of intoxication, is not spent simply because they reject the substantive defence to which it relates. Insufficient on its own to raise a reasonable doubt about proof of the mental or fault element in murder, evidence of intoxication may gain sufficient strength, when combined with other evidence, to do so: Robinson, at para. 59; R. v. Phillips, 2017 ONCA 752, 355 C.C.C. (3d) 141, at para. 155. No specific word formula need be followed to convey this principle to the jury: Phillips, at para. 160.

[81] The final point relates to the principles governing appellate review of the adequacy of jury instructions.

[82] Appellate courts are instructed to adopt a functional approach in our review of jury instructions. Our purpose is to ensure that the jury has been properly instructed, not perfectly instructed. Instructions are proper if, when considered as a whole in the context of the trial in which they were given, they leave the jury with an adequate understanding of the applicable legal principles and the evidence relating to the issues that require their decision: R. v. Jacquard, [1997] 1 S.C.R. 314, at paras. 2, 32 and 62; Daley, at para. 58. In assessing the adequacy of the instructions, we may consider counsel's failure to object, especially where the proposed instructions were provided to counsel in advance of their delivery: Jacquard, at paras. 36-38.

The Principles Applied

[83] I would reject this ground of appeal.

[84] The trial judge explained to the jury the mental or fault element the Crown was required to prove beyond a reasonable doubt before the jury could find the appellant guilty of second-degree murder. The judge explained this element in detail and emphasized that the jury was to consider all the evidence in deciding this issue. This evidence, the trial judge expressly pointed out, included evidence of intoxication from the appellant's consumption of alcohol and drugs.

[85] The trial judge defined for the jury the role of the common-sense inference of intention in proof of the mental or fault element in murder. He described the permissive nature of the inference and the relationship between evidence of intoxication and the availability of the inference in proof of this element.

[86] In several pages of the charge, under the heading “Intoxication”, the trial judge advised the jury of the legal effect of evidence of intoxication on proof of the mental or fault element, the distinguishing feature between murder and manslaughter. Intoxication was linked to proof of the appellant's actual state of mind.

[87] To ensure that the jury did not take a compartmentalized approach to the evidence of intoxication, the trial judge also included a “rolled-up” instruction with intoxication as one of its components. This made it clear to the jury that even if evidence of intoxication on its own did not raise a reasonable doubt about proof of the essential mental or fault element, the jury understood that they had to decide whether it did so when combined with other evidence.

[88] Trial counsel was provided with the proposed charge in advance. Neither then nor after delivery was any objection raised to what is now said to have been a fatal omission.

Ground #3: Failure to Review the Position of the Defence

[89] The appellant also contends that the trial judge failed to adequately review the position of the defence as it was put forward by trial counsel.

[90] Although this ground of appeal does not require any recitation of the evidence adduced at trial, it is informed by a brief reference to the concluding moments of the trial when counsel discussed the contents of the charge and addressed the jury and the trial judge delivered his charge.

The Essential Background

[91] This was a joint trial. Ms. Spence testified in her own defence. The appellant neither testified nor called evidence. As a result, defence counsel addressed the jury first, followed by the Crown.

The Pre-Charge Conference

[92] Before counsel gave their closing addresses, the trial judge discussed with them what he proposed to include in his charge. Counsel had been provided with drafts of the proposed instructions in advance and had the opportunity to review them before the pre-charge conference.

[93] At the pre-charge conference, the trial judge asked and received from counsel statements of their positions as they wished the trial judge to instruct the jury on those positions.

The Closing Addresses

[94] In their closing addresses, all three counsel made extensive reference to the evidence adduced at trial and the inferences and findings of fact they invited the jury to draw and make from that evidence. The addresses were completed in a single day.

[95] In a somewhat meandering closing address, which included several references to Ockham’s Razor, trial counsel for the appellant (not Mr. Litkowski) advanced a multi-faceted defence:

i. the deceased died by accident (repeated falls);

ii. the appellant was not present when the deceased died;

iii. in the alternative, the appellant was acting in defence of Monica Spence;

iv. in the further alternative, the appellant was provoked by the sexual assault on Monica Spence.

Trial counsel asked the jury to find the appellant not guilty.

The Charge to the Jury

[96] The trial judge divided his charge into several parts, including one part that summarized the position of each of the parties as counsel had earlier provided them to him. With minor language adjustments, the positions of each party were provided in the language of counsel's choosing.

[97] In his canvass of the position of the appellant, the trial judge included references to the evidence on which trial counsel relied in support of his position. The judge’s review of the appellant’s position was the most detailed of any, about the same length as those of the Crown and the co-accused combined.

The Arguments on Appeal

[98] The appellant underscores the requirement that, in final instructions, a trial judge must review the substantial parts of the evidence and clearly articulate the position of the defence, so that the jury appreciates the value and effect of the evidence and how the law applies to the facts as they may find them to be. The trial judge, the appellant says, fell short of this requirement. He neither accurately conveyed the defence position to the jury, nor did he fairly summarize the evidence that supported that position.

[99] In his charge to the jury, the trial judge, the appellant urges, failed to mention the evidence of Ms. Spence that the appellant had left the deceased's apartment before the sexual assault and any response to it occurred. Further, there was no mention of the dark figure at the door as Ms. Spence fled from the apartment. She did not identify this man as the appellant.

[100] The respondent contends that, applying a functional approach in considering the charge as a whole in light of the evidence adduced at trial, the charge properly equipped the jury to apply the evidence to the issues that required their decision.

[101] A trial judge, the respondent continues, has a well-established discretion about how to organize their final instructions and how much of the evidence adduced at trial they will review for the jury. The extent of an evidentiary review is a function of the evidence adduced at trial. The trial judge is under no obligation to review all the evidence or repeat evidentiary references where the same evidence is relevant to more than one issue.

[102] The first issue the jury was required to decide was whether the Crown had proven beyond a reasonable doubt that either or both accused caused the deceased's death. On this issue, the trial judge instructed the jury that the Crown was required to prove this essential element beyond reasonable doubt. The jury was told that they were to consider all the evidence, including but not limited to the testimony of the pathologist and of any witness who described the relevant events. The trial judge made specific reference to the evidence of Ms. Spence, including her testimony that the deceased seemed fine when she left.

[103] The trial judge's instructions on the position of the defence reflected what trial counsel provided at the trial judge's request. It included, in the words of counsel's choosing, not only the position advanced, but also the evidence on which counsel relied. This included the testimony of Ms. Spence that the appellant had left the apartment before the sexual assault occurred and was not the dark figure outside the door as she fled from the apartment. The evidentiary references also included the defence position on the limited value of the forensic evidence linking the appellant to the scene and his submission about the unreliability of the testimony of his “I killed a rapist” admissions.

The Governing Principles

[104] In addition to the principles already discussed in connection with the second ground of appeal, some further brief references are worthy of reminder.

[105] First, the structure or organization of a jury charge is largely a matter within the discretion of the trial judge who is an eye and ear witness to the entire proceedings: Daley, at para. 30.

[106] Second, applying a functional approach, we assess the adequacy of jury instructions in the context of the evidence adduced, the positions advanced and the trial proceedings taken as a whole: R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, para. 10.

[107] Third, a trial judge is under no obligation to review all the evidence adduced at trial in their charge, or to repeat the evidence if it bears on more than one issue the jury has to decide. The judge's obligation is to review the substantial parts of the evidence and to relate it to the issues raised so that the jury understands the value and effect of that evidence and how it applies to these issues: Azoulay v. The Queen, [1952] 2 S.C.R. 495, at pp. 497-8.

[108] Further, the extent to which a trial judge reviews the evidence in final instructions varies from one case to the next and resides largely within the discretion of the trial judge: R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 30; Daley, at para. 57; and R. v. Royz, 2009 SCC 13, [2009] 1 S.C.R. 423, at para. 3.

[109] A final point concerns the effect of a failure to refer to an item of evidence in final instructions. Without more, non-direction on an item of evidence is not misdirection. Nor does it amount to a failure to put the position of the defence to the jury. Non-direction on an item of evidence only becomes misdirection where the item of evidence omitted is the foundation of a defence: Young v. R., [1981] 2 S.C.R. 39, at p. 56; Thériault v. The Queen, [1981] 1 S.C.R. 336, at p. 344; and R. v. Demeter (1975), 25 C.C.C. (2d) 417 (Ont. C.A.), at p. 436-37, aff’d on other grounds, , [1978] 1 S.C.R. 538.

The Principles Applied

[110] I would not accede to this ground of appeal.

[111] In this case, the trial judge first instructed the jury on their duties as jurors and on the general rules of law applicable in all criminal cases and thus to their decision at trial. The judge then turned to the specific legal principles that apply and explained the essential elements that the Crown was required to prove beyond a reasonable doubt to establish the guilt of the appellant and Ms. Spence of the offence charged. He described these elements as:

i. that Monica Spence and or Daniel Debassige caused Richard Spence's death;

ii. that Monica Spence and or Daniel Debassige were not acting in self defence or defence of another; and

iii. that Monica Spence and or Daniel Debassige had the state of mind required for murder.

[112] The trial judge converted each essential element into a question, followed that question with the legal principles that informed the jury's decision on it and then reviewed some of the evidence that was relevant to the jury's decision on the question. He concluded his instructions on each issue with a reminder about the burden and standard of proof imposed on the Crown and the further deliberation and verdict consequences of the findings available to the jury.

[113] The manner in which the charge was organized was an issue for the trial judge to determine. That another judge might have done it in another way is beside the point. Examined in a functional way, the charge was neither unorganized nor so disorganized that it failed to fairly place the position of the defence before the jury.

[114] Second, the extent to which the trial judge reviewed the salient features of the evidence and where he located those references in the charge were equally issues for the trial judge to determine. The trial was brief. The evidence was uncomplicated. Three counsel had painstakingly reviewed the evidence the day before the charge was delivered.

[115] Third, the defence position and the evidence relied on in support of it was more fully canvassed during the trial judge's review of the positions of the parties. This portion of the charge was drafted with the input and approval of trial counsel. It expressly recited the items of evidence the appellant now says were missing from other parts of the charge and linked it to the defence position. These references included the core elements of the defence:

i. that the appellant had left the apartment and was not present when Ms. Spence was sexually assaulted;

ii. that the forensic evidence linking him to the apartment and the deceased could be explained; and

iii. that if the jury accepted that he was there, he was acting in defence of his partner Ms. Spence.

[116] Finally, the appellant has not identified any specific aspect of the evidence the trial judge failed to mention that formed the basis of a defence advanced at trial. That more could have been said or parts of what was said repeated affords no sufficient basis for our intervention. These instructions adequately equipped the jurors to fulfill their obligations and attracted no objection from trial counsel.

Ground #4: The W.(D.) Instruction

[117] This ground of appeal alleges another deficiency in the charge to the jury. Its focus is the testimony of the co-accused, Ms. Spence, about the circumstances in which she was awakened and responded to the sexual assault and other conduct by the deceased. More narrowly, that portion of the co-accused's testimony in which she said that the appellant had left the apartment before the deceased sexually assaulted her.

[118] However, there was evidence that the appellant was present when the deceased was killed if the jury accepted the testimony of two witnesses who said the appellant told them “I killed a rapist”.

The Charge to the Jury

[119] The trial judge included a W.(D.) instruction in his charge to the jury. That instruction related to the testimony of the co-accused, Ms. Spence, and her potential liability for the killing of the deceased. Even though her testimony was evidence for and against the appellant, the trial judge did not, in express terms at least, link this instruction to the issue of the appellant's liability.

[120] Trial counsel for the appellant did not seek a W.(D.) instruction in relation to his client and did not object to its omission from the charge.

The Arguments on Appeal

[121] The appellant submits that the need for a W.(D.) instruction arises even when an accused does not testify, or the defence calls no evidence. In this case, the obligation to provide such an instruction was engaged by the evidence of the co-accused, Ms. Spence, whose testimony was exculpatory of the appellant. This was direct evidence that the appellant was not in the deceased's apartment when the events leading to the deceased's death occurred.

[122] In this case, the trial judge was required to include the appellant in the W.(D.) envelope. This meant including an instruction that, even if the jury did not accept Ms. Spence's testimony that the appellant was not present at the material time, if that testimony left them with a reasonable doubt about the appellant's participation, they were required to find him not guilty.

[123] The respondent accepts that where credibility is the central issue at trial, a trial judge is required to explain the relationship between the assessment of credibility and the burden and standard of proof. Although the word formula often used to explain this relationship is that of W.(D.), no express language is required, so long as the jury is not left, expressly or by necessary implication, with the impression that they are simply required to choose between competing versions. The jury must understand that they are only to find an accused guilty if the evidence, taken as whole, establishes their guilt beyond a reasonable doubt.

[124] In this case, the respondent accepts, the co-accused’s evidence that she did not kill the deceased or cause him bodily harm that could have caused his death was properly the subject of a W.(D.) instruction. But the appellant did not testify or adduce evidence. A W.(D.) instruction was not sought, and its omission attracted no objection. In these circumstances, a W.(D.) instruction was only required when a credibility assessment required the resolution of conflicting evidence on a vital issue. That is not this case. And, in any event, a W.(D.) or equivalent instruction is not necessarily required where there is potentially exculpatory evidence, provided the jury is properly instructed on the burden and standard of proof and not left to choose between competing versions of events.

[125] Here, Ms. Spence's testimony about the appellant's whereabouts when she fled the deceased's apartment, if believed, did not conflict with the evidence adduced by the Crown on this point. She testified that she was awakened by the sound of someone banging on the door. She discovered that the deceased was trying to have sex with her. She fought him off and ran out of the apartment. She noticed a dark figure outside the door. It looked like a man. It might have been the appellant. She ran past this person and kept running. She later ran into the appellant at a bar a few blocks away from the deceased's apartment. She did not tell the appellant what had happened, nor did he ask why she was not wearing any pants. Ms. Spence's testimony could not exclude the possibility that the man outside the door was the appellant, a version of events that did not conflict with the evidence from Ms. Hanson. There was no need for a W.(D.) instruction in these circumstances.

The Governing Principles

[126] In any prosecution, irrespective of the nature of the evidence, the issue for the trier of fact is whether the evidence adduced, taken as a whole, establishes the guilt of the person charged beyond a reasonable doubt. Of particular importance in cases in which the evidence reveals two (or more) competing narratives, the trier of fact must not decide the case simply by choosing between the narratives presented. To do so would not be faithful to the burden and dilute the standard of proof.

[127] The decision in R. v. W.(D.), [1991] 1 S.C.R. 742 set out a series of three steps to ensure that a trier of fact remained focused on the principle of reasonable doubt where confronted with conflicting versions of relevant events: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 6; W.(D.), at p. 758. The trial proceedings in W.(D.) were before a judge sitting with a jury, and the steps suggested an instruction to jurors to ensure fidelity to the burden and standard of proof. From W.(D.) itself and myriad decisions following its lead, it is clear that the steps need not be rigidly expressed by a judicial trier of fact, nor articulated in exactly the way that W.(D.) suggests to a lay trier of fact: W.(D.), at p. 758; R. v. S. (W.D.), [1994] 3 S.C.R. 521, at p. 533; and C.L.Y., at para. 7.

[128] The principles explained in the W.(D.) formula have been extended beyond its oath-versus-oath origins to cases in which defence evidence other than the testimony of the person charged has contradicted the narrative presented by the Crown. This includes other evidence adduced as part of the defence case and conflicting evidence favourable to the defence emerging in the case for the Crown: R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 114; R. v. Dayes, 2013 ONCA 614, 301 C.C.C. (3d) 337, at para. 52.

[129] In each case, what is critical is not so much whether the precise formula proposed in W.(D.) has been faithfully uttered in final instructions to the jury, but rather whether the jury has been properly informed on the burden and standard of proof they are to apply in deciding whether the Crown has proven the essential elements of the offence charged beyond a reasonable doubt: C.L.Y., at para. 7; B.D., at para. 104.

[130] The principles expressed in the W.(D.) formula underscore the relationship between credibility and reasonable doubt. They make it clear that reasonable doubt applies to credibility. In a jury instruction, this relationship must be explained. From what is said or left unsaid a jury must not be left with the impression or understanding that they are to decide the case according to their preference of the competing versions advanced in the evidence. Instead, the jury must understand that their verdict must be based on whether, on the whole of the evidence, they are left with a reasonable doubt about the guilt of the person charged.

The Principles Applied

[131] I would reject this ground of appeal.

[132] In this case, the trial judge properly instructed the jury on the burden and standard of proof, both generally and in respect of each of the two statutory defences — defence of another and provocation — that the appellant advanced as alternatives to his principal claim that he was not involved in the death of the deceased. Nothing said or left unsaid in those instructions would have left the jury with the impression that they were to decide the case by simply choosing one position or the other.

[133] In accordance with the prevailing practice in this province, the trial judge divided the offence charged — second-degree murder — into its essential elements. He converted each essential element into a question, then explained what Crown counsel had to prove to establish the relevant element. In each case, the trial judge made it clear that the jury was to decide whether the essential element had been proven, or the related defence of defence of another had been disproven, by the Crown beyond a reasonable doubt based on all the evidence.

[134] The evidence on which the appellant relies as the basis for a W.(D.) instruction is the testimony of the co-accused, Ms. Spence, that the appellant had left the apartment before the sexual assault by the deceased began. By necessary implication, this meant that the appellant did not cause the death of the deceased. To the opposite effect was the testimony of two witnesses each of whom said that the appellant told them “I killed a rapist”. In one instance, the appellant, who had a split knuckle, described returning to the deceased's apartment and being involved in an “altercation” with him.

[135] It is open to question whether Ms. Spence’s testimony about the appellant’s whereabouts when she fled the deceased’s apartment, if believed, was of such a nature as to require a W.(D.) instruction. Recall that Ms. Spence was awakened by the sound of someone banging on the door of the deceased’s apartment. She discovered the deceased on top of her. Neither were fully clothed. The deceased was trying to have sex with her. She fought off the deceased and fled the apartment. As she fled, she noticed a dark figure that looked like a man outside the door. She did not know whether it was the appellant, but it could have been him. She ran past the man and kept running. She encountered the appellant a few blocks away from the deceased’s apartment. She was naked from the waist down. She did not tell the appellant what had happened to her at the deceased’s apartment and the appellant did not ask her about her state of undress.

[136] Ms. Spence's testimony was not in conflict with that of the Crown witness, Ms. Hanson, who lived in the same rooming house as the appellant. The appellant told her that he returned to the apartment and engaged in an altercation with the deceased. He also told Ms. Hanson “I killed a rapist”. The testimony of Ms. Spence could not exclude the possibility that the appellant was the man outside the apartment door when she fled the apartment.

[137] Even if a W.(D.) instruction might have been preferable with respect to this issue, I am satisfied that the jury was properly instructed on the burden and standard of proof. They were not instructed, expressly or by necessary implication, that they were entitled to resolve the case, or any essential element of the offence charged, simply by choosing which narrative of events they preferred.

[138] Before concluding on this ground of appeal, it is necessary to assess the impact of an error in the W.(D.) instruction the trial judge did include in his charge.

[139] The trial judge included in his charge a section entitled “TESTIMONY OF ACCUSED”. In that section, he provided a W.(D.) instruction in connection with the testimony of Ms. Spence. In doing so, the judge limited the application of the evidence to the verdict for Ms. Spence.

[140] This was a joint trial. When Ms. Spence testified, her evidence was available for use by the jury not only in deciding whether the case against her had been proven beyond a reasonable doubt, but also in connection with the case against the appellant. Unlike an out-of-court statement by one of several accused jointly charged and tried that is admissible only in respect of its maker, the testimony of one accused in a joint trial is evidence for and against all accused in that joint trial. The limitations imposed here, which repeated an error in the closing address of defence counsel, were incorrect.

[141] Despite the erroneous limitation of the effect of the evidence of Ms. Spence to the case against her, I am satisfied that the appellant suffered no prejudice by the omission of a W.(D.) instruction with respect to the appellant. No such instruction was sought, nor was its omission the subject of objection. The evidence was left to the jury for their consideration of whether either accused caused the death of the deceased. And the evidence itself, taken as a whole, was of limited exculpatory value.

Ground #5: Unreasonable Verdict

[142] The final ground of appeal challenges the reasonableness of the jury's verdict. A brief reference to some aspects of the evidence adduced at trial will provide the background necessary for an evaluation of this ground.

The Essential Background

[143] The appellant fastens on two aspects of the case for the Crown to advance this ground of appeal: the absence of evidence that the appellant caused the death of the deceased and a similar evidentiary vacuum on the state of mind necessary to establish the unlawful killing as murder.

[144] Expert evidence suggested the appellant’s DNA was in blood smeared on the wall by the entrance to the deceased's apartment and in fingernail scrapings from the deceased's left hand. Ms. Spence gave no evidence of any conduct by the appellant while he was present in the deceased's apartment that would account for either finding. Ms. Spence testified about being awakened by pounding on the apartment door as she was being sexually assaulted by the deceased. She also testified that she saw a dark figure standing outside that door as she fled, half-naked, from the apartment. The figure appeared to be a man. She could not exclude the appellant as that man.

[145] A short time later, Ms. Spence, still half-naked, met the appellant at a local bar not far from the deceased's apartment. The appellant did not say how he came to be there, when he had arrived or where he had come from. Nor did he ask his domestic partner, Ms. Spence, why she was not wearing any pants.

[146] In addition, two witnesses testified about admissions the appellant made on the day of the deceased's death. Each recalled the appellant as having said “I killed a rapist”. One said that the appellant told her that he returned to the deceased's apartment, entered it and got into an “altercation” with the deceased. She noticed he had a split knuckle, an injury that was still visible on arrest several days later.

[147] A forensic pathologist testified that the deceased suffered 74 injuries, nearly two-thirds of which were around his head and neck area. Although a fall could have caused some of the injuries, repeated falls could not account for all the injuries, especially those around his head. The pattern of blood splatter at the scene indicated that the deceased was likely struck where he was found on the floor of his bedroom.

The Arguments on Appeal

[148] The appellant says that the verdict is unreasonable because there was no evidence of two essential elements of the offence of which he was convicted:

i. that he caused the death of the deceased; and

ii. that he had the state of mind necessary to make an unlawful killing murder.

[149] The case for the Crown, the appellant suggests, consisted entirely of circumstantial evidence. As a result, the issue in this court is whether, on the evidence adduced, the jury, acting judicially, could reasonably be satisfied that the appellant's guilt was the only reasonable conclusion available on the totality of that evidence.

[150] The evidence of the appellant’s admissions was highly suspect and contradicted by other evidence. Ms. Spence’s evidence was that the appellant had been present in the deceased's apartment earlier that day but had left before she was sexually assaulted by the deceased. The injuries to the deceased and the bloodstain pattern could have been caused by repeated falls by a highly intoxicated deceased. At most, the evidence could sustain a finding that the appellant had been involved in some unlawful act that led to the death of the deceased. There was no evidence that could support a finding that the unlawful act was accompanied by a state of mind necessary for murder.

[151] The respondent says that this complaint fails. The standard of review is well-settled. It is whether the jury, acting judicially, could reasonably be satisfied that the appellant’s guilt was the only reasonable inference available on the evidence taken as a whole. The availability of competing inferences does not render the verdict unreasonable. It is for the trier of fact to decide whether any alternative inferences are reasonable enough to raise a reasonable doubt and to separate reasonable doubt from speculation.

[152] The jury was entitled to reject the claim of Ms. Spence that the appellant had been at the deceased's apartment earlier and left but did not return there. Evidence of the appellant's blood on the wall of the apartment, coupled with the absence of any suggestion that an altercation had taken place before he left, put paid to this claim. As did the appellant’s DNA in the deceased's fingernail scrapings. There was also Ms. Spence's evidence about the dark figure outside whom she could not say was not the appellant. And the later meeting with no questions asked about how Ms. Spence came to be missing her pants. And finally, the telling admissions “I killed a rapist”, and a visibly split knuckle.

[153] In connection with evidence about the mental element in murder, the respondent points to the number, nature and location of the injuries; the location in the apartment where the deceased was struck; the incompatibility of the injuries with repeated falls; and the appellant’s admissions to the effect that he had killed a rapist.

The Governing Principles

[154] The applicable standard of review is uncontroversial. A verdict is unreasonable if it is one that a properly instructed jury, acting judicially, could not reasonably have rendered: R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 26. We must ask not only whether there is evidence in the trial record to support the jury's verdict, but also whether the jury's conclusion conflicts with the bulk of judicial experience: W.H., at para. 28; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 40. To succeed, the appellant must demonstrate that no properly instructed jury acting judicially could reasonably have found guilt established on the evidence adduced at trial: R. v. Jackson, 2007 SCC 52, [2007] 3 S.C.R. 514, at para. 2.

[155] In the exercise of our authority under s. 686(1)(a)(i) of the Criminal Code, we must, within the limits of appellate disadvantage, re-examine and re-weigh the evidence, and consider, through the lens of judicial experience, whether judicial fact-finding precludes the verdict reached by the jury: Biniaris, at para. 36; R. v. Yebes, [1987] 2 S.C.R. 168, at p. 186. Where a verdict is based on a credibility assessment, the verdict will be unreasonable if that assessment cannot be supported on any reasonable view of the evidence: R. v. Burke, [1996] 1 S.C.R. 474, at para. 7. One factor we may consider in determining whether the verdict is unreasonable is the failure of the appellant to testify: R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 33; R. v. George-Nurse, 2018 ONCA 515, 362 C.C.C. (3d) 76, at para. 33, aff’d 2019 SCC 12, [2019] 1 S.C.R. 570.

[156] In a case consisting of circumstantial evidence in which the verdict is challenged as unreasonable, we must consider whether the jury, acting judicially, could reasonably have been satisfied that the guilt of the accused was the only reasonable conclusion available on all the evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55-56.

The Principles Applied

[157] I would not give effect to this ground of appeal.

[158] The forensic evidence adduced at trial supported an inference that the appellant was in physical contact with the deceased and shed blood in the deceased's apartment. He was observed shortly afterwards with a split knuckle that remained visible almost two weeks later when he was arrested. He admitted to two witnesses “I killed a rapist”. This was consistent with Ms. Spence's description of what had happened in the deceased's apartment before she fled the premises partially clad. The manner in which the appellant described his “altercation” with the deceased to Ms. Hanson was also consistent with Ms. Spence's evidence about hearing pounding on the door and a dark figure outside who she claimed not to be able to identify.

[159] As for proof of the fault or mental element essential to make the unlawful killing murder, the deceased died from blunt impact facial trauma and aspiration of blood. He suffered 74 separate injuries, the vast majority around his head and neck. With those injuries and in a grossly intoxicated state, he was left on his bedroom floor, where blood spattered patterns indicated that the injuries were likely inflicted. Shortly thereafter, the appellant said “I killed a rapist”.

[160] The jury’s verdict that the appellant was guilty of murder was not unreasonable.

Disposition

[161] For these reasons, I would dismiss the appeal and affirm the conviction.

Released: July 2, 2021 “DW”

“David Watt J.A.”

“I agree. M.L. Benotto J.A.”

“I agree. M. Jamal J.A.”