COURT OF APPEAL FOR ONTARIO DATE: 20230221 DOCKET: C68361

van Rensburg, Roberts and Sossin JJ.A.

BETWEEN

His Majesty the King Respondent

and

Glenn Gaetan Appellant

Counsel: Marianne Salih, for the appellant Katie Doherty, for the respondent

Heard: November 9, 2022

On appeal from the conviction entered by Justice Faye E. McWatt of the Superior Court of Justice, sitting with a jury, on June 19, 2019.

van Rensburg J.A.:

A. Introduction

[1] The appellant was convicted of second-degree murder by a judge and jury. It was uncontested that the appellant killed the victim, after shooting him in the face with a semi-automatic gun. The central issue was whether the Crown had proven beyond a reasonable doubt the intent for second-degree murder. The appellant, who testified at trial, asserted that the killing was accidental: although he intentionally pulled the trigger, he believed the gun was unloaded.

[2] The appeal raises three issues: (1) whether the trial judge erred in failing to provide a no probative value or limiting instruction with respect to the appellant’s after-the-fact conduct evidence; (2) whether the trial judge erred in failing to relate the evidence of intoxication to the issue of accident; and (3) whether the verdict was unreasonable.

[3] For the reasons that follow, I would dismiss the appeal. There was no error in the trial judge’s charge. On the first ground of appeal, the after-the-fact conduct instructions were thorough and fair, vetted by the parties, and indeed included specific language proposed by defence counsel. Just as the after-the-fact conduct evidence was relevant to the defence position that the shooting was accidental – in the sense that the appellant believed that the gun was not loaded – it was relevant to the Crown’s position to the contrary. On the second ground, the jury received proper instructions on both accident and intoxication, that were, once again, vetted and approved by defence counsel. In any event, contrary to the appellant’s suggestion, there is no prospect that the jury would have arrived at a different verdict even if the trial judge had reviewed the evidence of intoxication at an earlier stage in the charge, when she first addressed the question of accident because the jury could have only convicted the appellant of murder if they were satisfied that he had the requisite specific intent for murder.

[4] With respect to the third ground, the second-degree murder verdict was reasonable. The evidence was such that a properly instructed jury could reasonably have concluded that the appellant’s guilt was the only reasonable conclusion available on the totality of the evidence. The evidence included: the circumstances of the victim’s death – shot at close range, with the gun pointed at his head; the appellant’s conduct in bringing a gun to the victim’s apartment and brandishing it against his back as they entered; and the appellant’s conduct after the shooting, fleeing from the apartment and disposing of much of the evidence that would connect him with the incident.

[5] In the reasons that follow, I will begin with a brief overview of the case, followed by a summary of some of the pertinent evidence at trial, before addressing the three issues on appeal.

B. Overview of the Case

[6] The victim, Martin Hauck, was shot in his apartment in Toronto in the late evening of April 15, 2017. There was no question that he was shot at close range by the appellant, using a gun the appellant had in his possession. The appellant was charged with second-degree murder after Mr. Hauck’s body and a fair amount of evidence connecting the appellant to the scene was discovered.

[7] The police and expert evidence respecting the scene of the killing, the collected evidence, the operation of the appellant’s firearm, and the mechanism of Mr. Hauck’s death, was largely uncontested. There was video footage from security cameras at Mr. Hauck’s apartment building that captured comings and goings to and from his apartment both before and after the shooting. The appellant admitted multiple facts pursuant to s. 655 of the Criminal Code, including that the video footage depicted him in a hoodie with the hood up, entering Mr. Hauck’s apartment carrying a firearm and leaving two hours later, and the fact that nobody entered Mr. Hauck’s apartment between his departure and the discovery of the body. There was the testimony of civilian witnesses – the evidence of two other residents who attended Mr. Hauck’s apartment when the appellant was there [1], and witnesses who provided evidence respecting the events and the appellant’s conduct after the shooting. The appellant also testified in his defence.

[8] At trial the defence argued that, while the appellant intentionally pulled the trigger of the gun, he shot Mr. Hauck by accident because, while intoxicated, he believed the gun was not loaded. The defence relied on: the appellant’s account of the events; his lack of any apparent motive; the presence of others in the apartment just before the shooting; Mr. Hauck’s departure from and return to the apartment two or three times in the two hours preceding his death; evidence of a magazine and bullet on the table in front of where Mr. Hauck was shot; the appellant’s intoxication by drugs and alcohol; and his panicked and confused behaviour after the shooting. The defence argued that the appellant committed non-culpable homicide as he did not have the mens rea for murder or manslaughter – the shooting was not intentional and his conduct did not amount to a marked departure from the standard of care of a reasonable person.

[9] The Crown’s position was that the intent for murder could be inferred from: the circumstantial evidence of how Mr. Hauck was shot – in the head, at close range, while positioned with both hands on the kitchen table in front of him; by evidence of animus – video footage showing the appellant pointing a gun at Mr. Hauck’s back as they entered the apartment; the rejection of the appellant’s narrative about the shooting, which was characterized by the Crown as implausible and internally inconsistent; and the appellant’s after-the-fact conduct in disposing of evidence and lying to his surety about the shooting, which indicated conscious thought and that he was not so intoxicated as to lack the intent for murder. On the question of manslaughter, the Crown argued that the appellant’s failure to confirm whether the gun was unloaded before pulling the trigger near Mr. Hauck’s face was a marked departure from the standard of care.

C. Evidence at Trial

Events Preceding the Shooting

[10] By April 15, 2017, the date of the shooting, the appellant and Mr. Hauck had known each other for five years. Mr. Hauck lived in an apartment on the fourth floor of a building on Queen Street East in Toronto. The appellant visited the building frequently to sell drugs to various residents, including Mr. Hauck. According to the appellant, over time they developed a social relationship, and he called Mr. Hauck “uncle”. The appellant testified that Mr. Hauck had allowed him to live at his apartment for three months in 2014.

[11] The appellant testified that, on the evening of April 15, he met up with Mr. Hauck at the intersection of York Street and Bremner Boulevard after spending the day selling drugs. He recalled that he had already consumed two or three beers, and that he and Mr. Hauck went to the LCBO and continued to drink alcohol together. After hanging out in a parkette, where the appellant sold drugs to some people, the two went, by taxi, to Mr. Hauck’s apartment building.

[12] The appellant testified that, during this time, he had a gun in his satchel, which he had acquired two months earlier and used for protection while selling cocaine. He said that he had no experience with guns, had never shot the gun he was carrying, and that he was carrying the magazine separately in a pouch in his satchel. He further testified that, while he was carrying out a drug transaction in the parkette, Mr. Hauck, who was holding the satchel for him, asked why it was so heavy, and he replied that there was a gun in the bag. The appellant testified that, while en route to the apartment, Mr. Hauck asked to see the gun and he agreed to show it to him when they arrived.

[13] Video footage from a security camera showed the two men arriving at Mr. Hauck’s apartment building around 8:00 p.m., with the appellant carrying a plastic bag containing items consistent with containers of beer. A hallway security camera captured the appellant pointing a gun at Mr. Hauck’s back as they entered Mr. Hauck’s unit at 8:09 p.m. The appellant testified that he was showing Mr. Hauck the gun, because he had said he wanted to see it, and that he was going to show it to Mr. Hauck when they got inside. The appellant said that, once they were inside the apartment, however, Mr. Hauck indicated that he did not want to see the gun at that point, so the appellant put it away in a drawer in Mr. Hauck’s bedroom.

[14] The hallway security camera also captured people entering and leaving Mr. Hauck’s apartment in the following two hours: one building resident, Tessa Burtally, after calling the appellant, entered the apartment at around 9:08 p.m. and left by 9:19 p.m. The appellant testified that she wanted cigarettes, and that he gave her $200 worth of crack cocaine on credit. Mr. Hauck left and returned to the apartment two or three times. At one point, he returned with another building resident, Gregory Forsythe, who arrived at around 9:22 p.m. and left by 9:37 p.m. The appellant testified that Mr. Forsythe hung out with them and he gave him $20 worth of crack cocaine. Ms. Burtally, who was a reluctant and difficult witness, provided somewhat equivocal evidence that the appellant and victim were friends, and testified that Mr. Hauck appeared depressed, the same as always. Mr. Forsythe, who was also a reluctant witness, recalled that Mr. Hauck was in a “very, very good mood” when he was there, however he insisted that Mr. Hauck was alone in the apartment and he denied seeing the appellant.

[15] The security footage showed the appellant leaving the apartment around 10:00 p.m. No one else entered or left the apartment before Mr. Hauck’s body was discovered two days later.

Evidence Relating to Intoxication

[16] The appellant testified that during the two-hour period preceding the shooting he smoked six or seven joints of marijuana and drank four beers, while Mr. Hauck smoked crack cocaine and marijuana and had three beers. Mr. Hauck’s toxicology report confirmed the presence of the drugs and alcohol in his system at the time of death. The police found a crack cocaine pipe and a piece of crack cocaine on the table in front of Mr. Hauck, and a spent marijuana roach on the table. There was one open can of beer on the table, cans of beer in the fridge, and empty beer cans in the garbage. The appellant’s fingerprints were found on two empty beer cans in the apartment.

[17] As noted below, both the Crown and defence counsel pointed to various aspects of the after-the-fact conduct of the appellant to support their respective positions on how intoxicated he was at the time of the shooting.

The Shooting

[18] Mr. Hauck was shot in the side of his face. The forensic pathology evidence showed the bullet travelled straight from Mr. Hauck’s right cheek down to his left shoulder. The firearms specialist concluded that the burns from the gun powder on Mr. Hauck suggested the gun was anywhere from one centimetre to 24 inches from his face when it was fired. She also confirmed that it was possible for the gun to be discharged without the magazine. According to the evidence of another expert witness, the blood stain patterns suggested that Mr. Hauck was killed in the position he was found in. He was seated at the kitchen table, with both hands, palms down, on the table. The police found no signs that the apartment had been ransacked or of an altercation or physical struggle.

[19] The appellant testified about the shooting. He said that, after Mr. Forsythe left the apartment, he brought the gun from the bedroom when Mr. Hauck asked to see it. While they were sitting at the kitchen table, Mr. Hauck, who was familiar with guns, showed him the components of the gun as he took it apart and put it back together three times. Bothered by the cocaine smoke, the appellant went to the washroom for 15 minutes and listened to music on his phone. When he returned to the kitchen, he stood beside the table, and Mr. Hauck passed him the gun so he could look at it. The appellant claimed that he saw the magazine on the table and never saw Mr. Hauck put the magazine in the gun or rack the gun. He testified that he also saw a loose bullet on the table, which he assumed Mr. Hauck had removed from the gun.

[20] During his testimony, the appellant demonstrated how he was holding the gun and what he was doing when he pulled the trigger. He testified that he held the gun with two hands parallel to the floor, moving it back and forth between his hands, and he pulled the trigger. He explained that he pulled the trigger because he was intoxicated, he did not think the gun was loaded, and he wanted to hear the gun click. After the shot was fired, he saw the hole in Mr. Hauck’s face, and watched his head fall forward on the table and the blood pour out.

The Events Following the Shooting

[21] Security cameras captured the appellant leaving Mr. Hauck’s apartment at 10:00 p.m., with his hood pulled up and a beer can in his hand. He left the apartment door ajar and took the staircase exit at the end of the hallway, setting off the fire alarm and tracking blood down the stairwell.

[22] The appellant testified that he was shocked and scared when he realized that Mr. Hauck was dead. He placed the gun and magazine into his satchel, started chugging beer to calm his nerves, and left the apartment. He knew he was not supposed to have a gun and drugs. He left behind his house keys and a loose bullet on the kitchen table.

[23] The appellant then travelled by foot, heading to his girlfriend’s place, through various alleyways and over fences. He smashed his cellphone and began to discard his belongings, including his satchel, vest, hoodie, and cocaine. He also took apart or “field-stripped” the gun and threw away the pieces. Two people walking in the area discovered the top half of the gun, and they alerted a police officer nearby, who seized it. They also found the bottom part of the gun on a nearby sewer grate, which was also seized by the officer. The magazine was later discovered by the police in a laneway.

[24] The appellant testified that he disassembled and threw away the gun because he did not want anyone else to get hurt, and that he threw away his clothing because he was in shock and “just reacting”. In cross-examination, he acknowledged that, in discarding the various items, he removed property that could have tied him back to Mr. Hauck’s apartment, although he denied that was his intention.

[25] About 15 minutes after he left Mr. Hauck’s apartment, the appellant arrived at a house on Natalie Place. Alerted by his barking dog, a resident of the house, Hayden Austin [2], went to the front door and saw the appellant who appeared to be rifling through a recycling bin. Mr. Austin called the police when the appellant started banging on the door asking to be let in. He described the appellant as “extremely intoxicated or high”. The appellant went to the back door of the house and threw his weight against it. Another resident opened the door and noted that the appellant seemed out of breath and confused. He asked the appellant if he was running away from something and the appellant replied, “of course I am”, but did not respond when asked what he was running from. Items were discovered in the recycling bin, including a vest with the appellant’s health card inside and a satchel containing a bullet and multiple baggies of crack cocaine. The responding police officer recovered the appellant’s smashed cellphone in the nearby alleyway.

[26] Video footage showed the appellant arriving at his girlfriend’s apartment building by taxi at 11:09 p.m. He testified that he disposed of his shoes at her apartment because seeing the blood on them gave him flashbacks of Mr. Hauck’s death. At around 1:00 a.m., the appellant called his surety. He told her that Mr. Hauck had accidentally shot himself while he was in the washroom. The appellant testified that he lied to his surety because he did not want to “mess up her mental state”.

D. Issues

[27] The appellant raises the following three issues on appeal:

1. Did the trial judge err in her jury charge in failing to provide a limiting or no probative value instruction respecting the evidence of the appellant’s after-the-fact conduct?
2. Did the trial judge err in her charge in failing to relate the evidence of the appellant’s intoxication to the issue of accident?
3. Was the second-degree murder verdict unreasonable?

E. Analysis

(1) Issue One: The trial judge did not err in her instructions on the after-the-fact conduct evidence and there was no need for a limiting instruction

[28] I begin by noting that there were two broad categories of after-the-fact conduct evidence in this trial that were relied on by both the Crown and the defence. First, there was the evidence of the appellant’s behaviour after the shooting: his departure from Mr. Hauck’s apartment, his actions in discarding various items of clothing, the satchel, cocaine, the gun (which he dismantled), his cellphone (which he smashed), as well as his interactions with the residents of the address on Natalie Place, and his travel to his girlfriend’s apartment by taxi and disposal of his shoes when he got there. Second, there was the evidence of the lie the appellant told to his surety, that when he was in the washroom he heard a “pow” and he discovered that Mr. Hauck had accidentally shot himself. In broad terms, the defence position was that the appellant’s conduct after the shooting was panicked and irrational and consistent with his defence of accident and his claim of intoxication. It was the Crown’s position that the same actions were consistent with an intentional shooting, and showed the appellant was not highly intoxicated at the time. The issue for the jury with respect to the appellant’s after-the-fact conduct was what inferences they should draw from this circumstantial evidence.

[29] The appellant argues that the trial judge erred in failing to provide a limiting instruction on the jury’s use of the after-the-fact conduct evidence. According to the appellant, the evidence had no probative value on whether he had the mens rea for murder because the evidence was equally consistent with murder, manslaughter, and non-culpable homicide. The appellant says that the evidence was relevant to the material issue of rebutting his defence of intoxication, but not a rebuttal of the defence of accident. On the issue of accident, the conduct was relevant only to the extent of assessing the appellant’s credibility.

[30] The Crown submits that a no probative value instruction was neither required nor appropriate in the circumstances. This was not a situation where the after-the-fact conduct evidence was equally consistent with the appellant’s claimed degree of culpability and his guilt of the charged offence. It was open to the jury to conclude that the conduct was more consistent with a shooting that was intentional, not accidental. Finally, the Crown submits that defence counsel’s position at trial was significant as each party acknowledged that the after-the-fact conduct was relevant in discerning whether the shooting was intentional or accidental.

[31] I will begin my analysis of this ground of appeal by reviewing how the issue was addressed at trial, in the pre-charge submissions and positions of the parties, and in the trial judge’s instructions to the jury. In the discussion that follows, I will explain why I would not give effect to the appellant’s arguments.

The Pre-charge Conference and the Positions of the Parties at Trial

[32] In the course of the pre-charge conference, Crown counsel asserted that the after-the-fact conduct was relevant to whether the appellant shot Mr. Hauck accidentally or with the intent required for murder. Counsel submitted that, as a matter of common sense, the jury could conclude that a person who accidentally killed someone would not flee, immediately try to destroy evidence or try to get rid of the firearm that was used. The Crown also took the position that the appellant’s conduct demonstrated that he was not highly intoxicated, as he had claimed, but was capable of making rational decisions.

[33] The defence initially submitted that a no probative value instruction should be given because the appellant had admitted that he shot Mr. Hauck, and the after-the-fact conduct could not assist in determining whether the shooting was a non-culpable accident, manslaughter or murder. Later, however, defence counsel changed his position and no longer sought a no probative value instruction. He acknowledged that both the Crown and the defence were relying on the same after-the-fact conduct evidence, and he asserted that the evidence supported the appellant’s testimony that the shooting was accidental and not intentional, and was consistent with the appellant being scared, panicked, and unprepared to deal with the situation. Defence counsel offered to provide the trial judge with wording to insert in her charge summarizing the defence position on the after-the-fact conduct, and he asked that she remind the jury about the use of after-the-fact conduct as circumstantial evidence. The trial judge agreed to proceed in this way.

[34] In the pre-charge conference sessions that followed, there was no further discussion of the instructions on the appellant’s after-the-fact conduct, nor did defence counsel make any objection or request any further instructions on this issue after receiving additional drafts of the charge. In their closing submissions to the jury, both the Crown and the defence referred to various aspects of the appellant’s after-the-fact conduct, inviting the jury to draw opposing inferences from this evidence with respect to the appellant’s degree of intoxication and state of mind at the time of the shooting.

The Charge Respecting the Appellant’s After-the-fact Conduct

[35] The trial judge provided comprehensive instructions about the evidence of the appellant’s after-the-fact conduct that tracked the model jury instruction found in David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015). She began by explaining that this was a type of circumstantial evidence, and the approach the jury should take in considering the evidence. She cautioned the jury to be careful about inferring guilt based on after-the-fact conduct evidence because there might be other explanations for that conduct, something unconnected with participation in the offence charged. She instructed that the jury could use the evidence of after-the-fact conduct, along with other evidence, to support an inference of guilt only if they rejected any other explanation for the conduct.

[36] The trial judge then summarized some of the after-the-fact conduct, referring to the appellant leaving through the back exit of the apartment building after shooting Mr. Hauck, going to his girlfriend’s home down back alleys and over fences, dismantling the gun and throwing it in three different locations, getting rid of his cellphone and bag, the bullet and drugs that were found inside the bag, the appellant’s actions in getting rid of his jacket, hoodie and shoes, and telling his surety that Mr. Hauck had shot himself.

[37] The trial judge instructed the jury on the two-step approach they must take to the evidence: that, after deciding whether the appellant engaged in the after-the-fact conduct, they must then consider whether what he said or did was related to the commission of the offence charged or to something else. The trial judge, incorporating into her instructions some of the wording proposed by defence counsel, said the following:

If you find that Mr. Gaetan actually did or said what he is alleged to have done or said after the offence was committed, you must be careful not to immediately conclude that what he did or said was related to the commission of the offence charged rather than to something else. To decide the reason for what Mr. Gaetan did or said afterwards, you should consider all the evidence. Of particular importance is evidence that offers another explanation for what Mr. Gaetan said or did. Mr. Gaetan testified that he was freaked out because he shot Mr. Hauck by accident. He did not intentionally kill him. He was on bail that night. He did not have a license to have the gun and it was an illegal gun. He did not want to be linked to the accident, he panicked and took the gun and ran from the scene. He got rid of the firearm, his clothes and lied to [his surety] in order that she should not be concerned that he was out that night. You must not use this evidence about what Mr. Gaetan did or said afterwards in deciding or helping you to decide that Mr. Gaetan committed this offence unless you reject any other explanation for it. … If you do not or cannot find that what Mr. Gaetan did or said afterwards was related to the commission of the offence charged, you must not use this evidence in deciding or helping you decide that Mr. Gaetan committed the offence charged. On the other hand, if you find that anything Mr. Gaetan did or said afterwards was related to the commission of the offence charged, not to something else, you may consider this evidence together with all the other evidence in reaching your verdict. [Emphasis added.]

[38] The trial judge explained that the Crown’s position was that the evidence could be used in two ways: to rebut the appellant’s testimony that the shooting was an accident, and to rebut the appellant’s claim that he was so intoxicated that he did not have the state of mind for murder. Incorporating the wording proposed by defence counsel, she went on to describe that the defence position was that the appellant’s after-the-fact conduct supported the defence of accident:

The defence submits that Mr. Gaetan’s conduct after the shooting clearly shows that he was panicking and not thinking clearly. This is consistent with Mr. Gaetan’s testimony that he had just accidentally shot his friend. He left the apartment leaving his keys and a bullet still on the kitchen table. He left the apartment door open. He tracked blood all over the emergency stairwell. He pushed open the emergency doors triggering a loud alarm. He brought beer with him. Also consistent with Mr. Gaetan’s testimony that this was an accident is the fact that Mr. Gaetan did not try to cover up that Mr. Hauck was dead. He did not clean the apartment, he did not move Mr. Hauck’s body, he in fact reported the death that evening to [his surety], but he was too scared to admit to her that he was responsible for it. Also consistent with Mr. Gaetan’s testimony that this was an accident is what he did with the gun, he took it apart and threw it on the street in several pieces so nobody else would get hurt. This critical act was not about ensuring that no one would connect him with the death. If this was his intention, why would he tell [his surety] that he was there when Martin Hauck died? Mr. Gaetan was so panicked after the accident that he threw away his bag without taking the crack cocaine from it, he threw away his jacket without taking his health card from it, he smashed his phone on the walkway, he banged so loudly on the front and back of [the Natalie Place address] that the police were called. Hayden Austin witnessed it and described Mr. Gaetan as drunk, high and confused. These actions are more consistent with a man who panicked because he had made a mistake and accidentally shot someone than a man who intentionally killed somebody. [Emphasis added.]

[39] Finally, the trial judge reminded the jury that, since the after-the-fact conduct was a form of circumstantial evidence, they must not infer the appellant’s guilt from that evidence unless, when they considered it together with the rest of the evidence, they were satisfied beyond a reasonable doubt that his guilt was the only rational inference that could be drawn from all the evidence.

Discussion

[40] Evidence of after-the-fact conduct is a form of circumstantial evidence. It is admissible if it is relevant to a live, material issue, its admission does not offend an exclusionary rule of evidence, and its probative value exceeds its prejudicial effects: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 107 per Martin J. (dissenting, but not on this point). Accordingly, after-the-fact conduct evidence can be admitted when it is relevant to the issue of the accused’s state of mind: Calnen, at para. 119. As this court summarized in R. v. Café, 2019 ONCA 775, 381 C.C.C. (3d) 98, at para. 55, citing R. v. MacKinnon (1999), 43 O.R. (3d) 378 (C.A.), at pp. 383-84, and R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 42:

The admissibility of after-the-fact conduct evidence, and the use to be made of it by the trier of fact, depends on the nature of the evidence, the issues in the case, and the positions of the parties. Sometimes, this type of evidence may be probative of a person’s participation in a crime, but of no value in determining the person’s level of culpability. In other cases, “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”. [Citations omitted.]

[41] The relevance of after-the-fact conduct evidence is assessed on a case-by-case basis and is fact-driven: Calnen, at para. 108. The question is whether the evidence is capable of supporting the inference sought to be drawn about the accused’s state of mind. It will be irrelevant to this issue if the conduct is “equally consistent” with the proposed inference and the alternate inference, such that the conduct no longer allows the trier of fact to choose between available inferences as a matter of common sense, experience, and logic: Calnen, at para. 124. When this is the case, a trial judge must provide a limiting or no probative value instruction to the jury: White, at para. 60. However, the mere fact that after-the-fact conduct can support a range of inferences does not render it irrelevant: Calnen, at paras. 112, 144.

[42] In providing instructions respecting after-the-fact conduct evidence to the jury, it is important that the trial judge sets out the use to which the evidence can be put and the inferences that are available: Calnen, at para. 115. It will be for the jury to determine whether the after-the-fact conduct evidence is related to the crime before them rather than some other reaction or culpable act. This accords with the fact that “it is normally the function of the trier of fact to determine what inference is accepted and the weight to be given to it”: Calnen, at para. 124.

[43] I would not give effect to this ground of appeal. The after-the-fact conduct evidence was relevant to the appellant’s state of mind: whether he pulled the trigger believing that the gun was unloaded (his defence of accident) or whether he did so intending to shoot Mr. Hauck. That the evidence was capable of proving or disproving intent was acknowledged by defence counsel at trial who took the position that the entire body of the after-the-fact conduct evidence was relevant and admissible. Just as the Crown relied on aspects of the appellant’s conduct (his flight from the scene, disposing of the blood-stained clothing and gun, coupled with lying to his surety about the incident) as evidence that he intended to shoot Mr. Hauck, the defence relied on other aspects (the fact that the appellant did not try to clean up the scene, that he left the door of the apartment open, and his erratic behaviour at the Natalie Place address) in support of the claim of accident. The Crown and defence also expressly relied on the evidence in relation to the appellant’s level of intoxication at the time of the shooting.

[44] On appeal, the appellant acknowledges that the after-the-fact conduct evidence was relevant in assessing the appellant’s credibility when he claimed the shooting was an accident but contends that the evidence was not relevant in assessing intent. In the circumstances of this case, this is a distinction without a difference. The appellant’s defence of accident was simply a way of asserting that he lacked the requisite mens rea: see R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 186. If the jury was entitled to consider the evidence in assessing the appellant’s defence of accident, that is in determining whether to reject the evidence or to conclude that it did not raise a reasonable doubt, it was relevant to whether he intended to shoot and kill the victim.

[45] The appellant’s position on appeal respecting the after-the-fact conduct evidence is contrary to the position advanced at trial. This was not a case of counsel acquiescing in a trial judge’s proposed instruction or failing to request a limiting instruction that was necessary to protect his client’s interests; rather, counsel and the trial judge spent a great deal of time on this issue at the pre-charge conference, with the appellant’s counsel ultimately advising that he was withdrawing his request for a no probative value instruction because he recognized that both parties would rely on the evidence for opposing inferences.

[46] In his closing address to the jury, defence counsel pointed to the after-the-fact conduct evidence as a central part of the defence position. He identified the issue at trial: “Practically speaking on the evidence that you’ve heard, you would have to find beyond a reasonable doubt that Mr. Gaetan intentionally shot Mr. Hauck in the side of the face”. He then focussed on the after-the-fact conduct evidence, referring not only to what the appellant did, but also to what he did not do after the shooting: he did not try to clean up the scene, he did not remove the bullet that was on the table, he did not even close the door behind him when he left, and he left behind his house keys. The defence asserted that the appellant behaved in a nonsensical way at the Natalie Place address, when he threw away clothes with his health card in the pocket, and banged on the door of the house to be let in, and that he had made a spectacle of himself where it was obvious he was going to be caught. Defence counsel argued that all of this was inconsistent with an intentional killing. The defence also pointed to Mr. Austin’s evidence about the appellant’s level of intoxication only 15 minutes after leaving the apartment. The after-the-fact conduct evidence was not only relied on as part of the assessment of the appellant’s credibility; it was key evidence relied on by the defence at trial in support of the claim that the shooting was accidental and not intentional.

[47] The argument advanced on appeal here is similar to one that was rejected by this court in R. v. Morin, 2021 ONCA 307. In that case, the appellant argued on appeal that evidence of his after-the-fact conduct was not admissible to support the Crown’s position that he had committed a planned and deliberate murder. Instead, it was relevant only to the question of whether the killing was intentional or an accident. In dismissing this ground of appeal, Hourigan J.A. concluded that the after-the-fact conduct evidence was capable of supporting the inference the Crown was inviting the jury to draw, and he observed that both the Crown and defence had relied on the after-the-fact conduct evidence at trial to support their positions on the issue of planning and deliberation. In particular, one of the appellant’s “principal arguments” at trial was that the after-the-fact conduct demonstrated the killing had not been planned. The trial judge had properly instructed the jury that the after-the-fact conduct “may assist [in determining] whether there was or was not any planning and deliberation”: see paras. 50-57.

[48] Likewise, in this case, the after-the-fact conduct evidence was capable of supporting the inference that the shooting was intentional. It was also relied on by the defence for the contrary: that the shooting was an accident. The fact that the evidence was capable of different and competing inferences and that there were other available explanations for the appellant’s conduct did not mean that the evidence was irrelevant to the appellant’s state of mind. The trial judge instructed the jury to consider the after-the-fact conduct evidence as relevant to the appellant’s claim of accident and intoxication, and she set out the competing inferences the Crown and defence were asking the jury to draw. Ultimately, the inferences to be drawn and the weight of this evidence were up to the jury.

[49] In conclusion on this issue, the trial judge instructed the jury in the manner that was requested by defence counsel, having regard to his position that the appellant’s after-the-fact conduct was consistent with his defence of accident and intoxication and inconsistent with an intentional killing, and there was no reason for her to adopt a different approach in the circumstances of this case. As such, the trial judge made no error in failing to provide a no probative value instruction on the after-the-fact conduct evidence.

(2) Issue Two: The trial judge did not err in failing to relate the evidence of intoxication to the issue of accident

[50] For this ground of appeal, the appellant does not take issue with the content of the trial judge’s instructions with respect to intoxication or with her review of the evidence. Rather, the appellant argues that the trial judge erred in failing to relate the evidence of intoxication to the defence of accident. The trial judge incorrectly told the jury to separately consider the defence of accident from the defence of intoxication, applying the former only to the question of whether there was an assault with a weapon, and the latter to the question of mens rea for murder. The appellant submits that exclusively highlighting evidence of intoxication on the question of mens rea for murder would have misled the jury to believe that the evidence was only relevant to that stage of the analysis. As a matter of common sense, intoxication was relevant to whether the accused committed assault with a weapon.

[51] The Crown submits that the trial judge’s instructions reveal no reversible error. The trial judge told the jury to consider all of the evidence in evaluating whether the appellant intentionally applied force, and she referred to the appellant’s consumption of alcohol at this stage. The Crown points out that the jury was instructed as defence counsel had suggested, and that, in any event, the verdict indicates that the jury was satisfied that the appellant’s level of intoxication did not raise a reasonable doubt as to his guilt for murder.

[52] I would not give effect to this ground of appeal, which can be addressed briefly.

[53] I begin by observing that, in the circumstances of this case, the evidence concerning the appellant’s intoxication could have been reviewed in the context of the trial judge’s discussion of accident. Initially, that is how the trial judge proposed to instruct the jury. However, the structure of the charge on the essential elements of the offences changed as a result of discussions during the pre-charge conference. In the end, this part of the charge reflected the approach defence counsel had requested.

[54] In the course of the pre-charge conference there was some discussion about which offence would constitute the unlawful act for second-degree murder, and whether the jury should simply be instructed that the unlawful act was not contested. Ultimately, it was agreed that the unlawful act for second-degree murder would be assault with a weapon. Initially, the discussion of accident and intoxication were located in the charge under the question of intent for murder, however defence counsel requested that the jury be instructed to consider accident at a preliminary stage of their deliberations – that is, in deciding whether the appellant intended to apply force and committed an assault with a weapon. The trial judge acceded to that request. There was no similar request to move the instructions and review of the evidence on intoxication, which remained in the next part of the charge on the question of whether the appellant had the intent for murder. Given that the appellant alleges an error of non-direction, the failure of defence counsel to object at trial informs this court’s assessment of the adequacy of the instruction: R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, at para. 97, leave to appeal refused, [2007] S.C.C.A. No. 258; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58.

[55] While the trial judge could have adverted to the intoxication evidence at an earlier point in her instructions, in the circumstances of this case, her failure to do so did not mislead or misdirect the jury. The fact that intoxication was addressed later in the charge, when the jury reached the question of intent, did not, as the appellant contends, leave the jury with the message that they were not to consider evidence of the appellant’s intoxication when deciding whether he intentionally applied force to the victim. They were specifically instructed to consider all of the circumstances surrounding the application of force, to “take into account the nature of the contact, and any words or gestures that may have accompanied it, along with anything else that indicates Mr. Gaetan’s attitude or state of mind at the time he applied force to Mr. Hauck” (emphasis added). The trial judge went on to refer to the evidence relied on by the defence. I am satisfied that the jury was “properly equipped to render its decision in the absence of the instructions of which complaint is now made”: R. v. Wood, 2022 ONCA 87, 411 C.C.C. (3d) 495, at para. 129.

[56] In any event, even if the charge had been constructed differently and the jury had been expressly instructed to consider the appellant’s intoxication in the context of the instructions on whether the appellant intentionally applied force, this would not have been of any consequence. The jury received specific instructions and a review of the evidence relating to intoxication in connection with the instructions on intent for murder. Given that the jury was satisfied that the appellant had the specific intent for murder, despite the evidence of intoxication, they could not have been left with any doubt about whether the appellant had intentionally applied force to the victim when he discharged the gun.

(3) Issue Three: The second-degree murder verdict was not unreasonable

[57] The test for unreasonable verdict within the meaning of s. 686(1)(a)(i) of the Criminal Code is whether, on all the evidence, the verdict is one that “a properly instructed jury acting judicially, could reasonably have rendered”: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. Where the Crown’s case depends principally on circumstantial evidence, the issue is whether a trier of fact, acting judicially, could be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55; R. v. McDonald, 2017 ONCA 568, 351 C.C.C. (3d) 486, at para. 136.

[58] It is not the role of the reviewing court to retry the case or to act as a 13th juror. The question is whether the verdict is supportable on any reasonable view of the evidence and whether proper judicial fact-finding, when applied to the evidence as a whole, precludes the jury’s verdict: R. v. Jahangiri, 2022 ONCA 644, at para. 48; R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 163, leave to appeal refused, [2015] S.C.C.A. No. 478.

[59] In arguing that the verdict of second-degree murder was unreasonable, the appellant highlights the following facts that did not support the Crown’s theory: (i) the friendship between the appellant and Mr. Hauck and the lack of any apparent motive; (ii) the two-hour timeframe that the appellant spent in Mr. Hauck’s apartment; (iii) Mr. Forsythe’s and Ms. Burtally’s visits to Mr. Hauck’s apartment – the appellant would have understood that there would be witnesses who could place him at the scene of the shooting; (iv) the fact that Mr. Hauck left his apartment and returned two or three times; (v) Mr. Hauck’s drug and alcohol consumption; and (vi) the presence of alcohol, marijuana, and cocaine in Mr. Hauck’s apartment. In light of these facts, the appellant asserts that the verdict could only be explained by the jury’s reliance on the after-the-fact conduct evidence, which ought not to have been considered in determining whether he had the intent for murder.

[60] The appellant has not met his burden for establishing that the verdict was unreasonable.

[61] While there was undoubtedly evidence consistent with the appellant’s defence of accident and intoxication, it was up to the jury to decide how much or how little to believe of the appellant’s evidence. I do not agree with the appellant that the uncontroverted evidence pointed all one way; nor do I accept that the assessment of this ground of appeal is to be made without considering the after-the-fact conduct evidence. As I have already explained, the jury was properly instructed on the use of that evidence.

[62] In this case there was a basis in the evidence upon which the jury, acting judicially, could have found that the only reasonable verdict was that the appellant was guilty of second-degree murder – that he shot the gun intending to apply force and that he had the requisite intent to murder Mr. Hauck. The inculpatory evidence included: the appellant taking a gun with him to the victim’s apartment, and brandishing the gun against Mr. Hauck’s back as they entered, which suggested some sort of animus; the forensic evidence confirming that the victim was shot at close range in the head, and that, at the time, he was seated facing forward with his palms on the table, showing no reaction to the appellant who, on his own evidence, was juggling a gun beside the victim’s head; the appellant’s flight from the apartment and his disposal of items that could have linked him to Mr. Hauck, including disassembling and disposing of the gun and damaging and throwing away his cell phone; and the lie to his surety about what happened in the apartment.

[63] In the final analysis, the appellant’s position on this ground of appeal is that there was evidence that supported an acquittal. That is not enough. As Doherty J.A. observed in R. v. Dadollahi-Sarab, 2021 ONCA 514, at para. 45, leave to appeal refused, [2021] S.C.C.A. No. 356, “the existence of an evidentiary road leading to an acquittal does not make a conviction unreasonable”. The relevant question is whether every road to conviction was unreasonable. In this case, there was an available evidentiary road to the appellant’s conviction for second-degree murder. Considering all of the evidence, it was open to the jury to reject the appellant’s defence of accident, and to conclude that the only reasonable verdict was second-degree murder.

[64] Accordingly, I would not give effect to this ground of appeal.

F. Disposition

[65] For these reasons, I would dismiss the appeal.

Released: February 21, 2023 “KMvR” “K. van Rensburg J.A.” “I agree. L.B. Roberts J.A.” “I agree. L. Sossin J.A.”

[1] On consent of the parties, the testimony from the preliminary inquiry was read in at trial for both Tessa Burtally and Gregory Forsythe, both of whom had passed away before the trial.

[2] The preliminary inquiry testimony of Hayden Austin, who was living outside Ontario, was read in as evidence at the trial, on consent of the parties.