COURT OF APPEAL FOR ONTARIO

DATE: 20241011 DOCKET: C68831

Fairburn A.C.J.O., Pepall and Dawe JJ.A.

BETWEEN

His Majesty the King Respondent

and

Nicholas Necan Appellant

Counsel: James Foy and Ava Armand, for the appellant Sunil Mathai, for the respondent

Heard: January 25, 2024

On appeal from the conviction entered by Justice John S. Fregeau of the Superior Court of Justice, dated February 16, 2018.

Fairburn A.C.J.O.:

A. Overview

1There is no dispute that the appellant beat George Gerard to death inside of Mr. Gerard’s apartment.

2The appellant was charged with second degree murder. He pled guilty to manslaughter, accepting that he unlawfully caused Mr. Gerard’s death but disputing that he had the intention for murder. That meant that the only issue for the jury’s determination was whether the Crown had proven beyond a reasonable doubt that the appellant had the intention for murder. That is, whether the appellant intended to kill Mr. Gerard or intended to cause Mr. Gerard bodily harm that he knew would likely result in death and was reckless whether death ensued.

3The appellant relied heavily on the fact of his intoxication when arguing that he did not have the intention for murder. Although he did not claim to be in a state of intoxicated automatism, he argued that his degree of intoxication informed why the jury should have a reasonable doubt about whether he formed the specific intent for murder: see R. v. Brown, 2022 SCC 18, 472 D.L.R. (4th) 459, at para. 43; R. v. Gibb, 2024 ONCA 255, 436 C.C.C. (3d) 131, at para. 16.

4The trial Crown did not dispute that the appellant was intoxicated, but argued that the totality of circumstances pointed toward the appellant having formed the intention required for murder despite his level of intoxication.

5The jury resolved this issue in favour of the Crown’s position and found the appellant guilty of second degree murder.

6This is an appeal from conviction. The appellant raises four grounds of appeal involving objections to the jury charge rooted both in what the trial judge said and what he did not say. The appellant maintains that the trial judge erred by:

i. providing the jury with an inadequate anti-bias instruction;

ii. providing the jury with a confusing rolled up instruction, and inaccurate, insufficient, unclear, and legally incorrect instructions on intoxication;

iii. failing to provide the jury with an after-the-fact conduct instruction; and

iv. failing to provide the jury with a propensity reasoning instruction.

7For reasons that I will explain, none of these grounds of appeal can succeed.

B. Background

8Mr. Gerard was killed on January 28, 2016. Evidence of the appellant’s degree of intoxication on that day came from various witnesses, including several who lived in the same Thunder Bay apartment complex as the appellant. The appellant also testified as to his degree of intoxication.

9On the morning in question, the appellant woke up in the apartment of Melanie Bell, his former partner. She testified that she observed the appellant drinking one beer before leaving her apartment. In contrast, the appellant testified that he had consumed three beers before leaving.

10It was agreed at trial that the appellant then went to purchase alcohol, specifically, six “tall boy” cans of beer and a 26 oz. (750 ml) bottle of Jack Daniels Tennessee Whiskey. The appellant testified that he also stole a “junior mickey” of Fireball Cinnamon Whisky. The Crown does not appear to have challenged that assertion.

11The appellant testified that, later in the day, he met up with some friends and shared some of his alcohol with them. On his way back to the apartment complex, he ran into Valentino Desmoulin, with whom the appellant shared more of his alcohol. The appellant testified that he continued drinking shots of Jack Daniels and believes he later went to the apartment of his stepdaughter, Cori Bell-Miranda. He testified that from that point on, he could recall nothing until waking up in police custody.

12According to various witnesses, the appellant was asked to leave Ms. Bell-Miranda’s apartment. He complied with that direction. He then went to another apartment, where he consumed more alcohol. The occupant of that apartment testified that she asked him to leave and, like before, he complied with the direction. Eventually he made his way to Mr. Gerard’s apartment.

13Mr. Gerard’s mother testified that when she went to check in on her son and bring him a sandwich, the appellant was there. As Ms. Gerard left her son’s apartment, she ran into one of the appellant’s daughters, Randi-Lynn Necan. The daughter asked Ms. Gerard if she had seen a “native” with a beard and wearing glasses. Ms. Gerard testified that she took Ms. Necan to her son’s apartment. Ms. Necan thought that the men appeared intoxicated because she could smell alcohol and there was a partially empty bottle of wine on a table.

14That afternoon, one of Mr. Gerard’s neighbours started hearing thumping sounds, banging and yelling, along with a man saying, “get up” or “stand up.” She testified that this went on for over an hour. At around 3:30 p.m., another resident at the apartment complex, Peggy Desmoulin, went to ask Mr. Gerard for a cigarette. When she opened the door and looked into his apartment, she saw the appellant repeatedly hitting Mr. Gerard with a wooden two by four board. She told him to put the board down and yelled for the neighbours to call the police. The appellant looked at her in what she described as a “daze”. She testified that he appeared “out of it.”

15One of the officers who arrived on scene, Constable Hanchuck, testified that Mr. Gerard was “visibly unrecognizable” given the injuries sustained to his face. In fact, according to the forensic pathologist who conducted the autopsy on Mr. Gerard, there were approximately 90 blunt-force injuries sustained to his face, head and neck. Mr. Gerard also had defensive wounds. It took over six pages of the postmortem report to describe the facial, cranial, head, brain, thorax, neck and upper body injuries sustained by Mr. Gerard. It was also later determined that Mr. Gerard was in a state of acute ethanol intoxication at the time of his death.

16The appellant was uncooperative with police. Neighbour Darby Keehn, who entered the apartment after the police arrived, described the appellant as a “native guy” holding the board with a “blank stare” on his face. Constable Hanchuck testified that the appellant refused to comply with a police direction that he drop the two-by-four that he was holding. Accordingly, the police pepper sprayed him prior to arrest.

17The police officers testified that the appellant displayed aggressive behaviour, including threatening them and screaming “Allah Akbar.” When told that his daughter was present and, therefore, he should behave, the appellant allegedly said: “I don’t give a fuck about my daughter.” According to Constable Hanchuck’s testimony, he was able to walk down the stairs and into the police cruiser without difficulty. Once at the police station, he hit his head on the plexiglass of his cell. Another officer testified that the appellant acknowledged his right to counsel but said he did not wish to speak with one, saying: “[f]uck your lawyer.”

18There was conflicting police evidence involving the appellant’s perceived level of intoxication: some believed the appellant was intoxicated and others, including a qualified breathalyzer technician, did not. The qualified breathalyzer technician noted that he was steady on his feet and not slurring his speech.

19After some time, the appellant asked to speak to investigators and apologized for being belligerent. The officer speaking to the appellant testified that the appellant said that he did not remember parts of the night and thought he might have been framed.

C. Analysis

20The appellant challenges the jury charge on four grounds. As I will explain, none of the grounds of appeal can succeed. While there are aspects of the charge that are not a model of clarity, it is my view that the charge got the job done.

21To this end, when reviewing jury charges for legal error, appellate courts are not to seek out perfection. Nor are they to ask whether the jury charge under review could have been better. Indeed, as with most things in life, almost every jury charge could be improved upon given the luxury of time and reflection. But that is not the world of jury trials.

22Accordingly, when reviewing jury charges, appellate courts must remain trained on the overarching question as to whether, in the circumstances of the entire case, the jury was properly equipped to judge the case: Abdullahi, at paras. 35-36. In answering this question, appellate courts must adopt a functional approach by considering the charge as a whole, against the backdrop of the entire trial record, including the evidence elicited and the positions taken and not taken by the parties: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 4, 34, 59. Approaching the grounds of appeal in this manner, I conclude that this jury was indeed properly equipped to judge the case.

(1) Did the trial judge err in giving an inadequate anti-bias instruction?

(a) Background

23The appellant is an Indigenous man. The record does not disclose whether Mr. Gerard was also Indigenous.

24This was a short murder trial, with only six days of evidence. Pre-charge conferences were held, the jury was charged and then a verdict was returned on the eighth day.

25During the pre-charge conference, counsel commented upon the draft charge that had been provided to them by the trial judge.

26As is customary, the jury charge contained general opening instructions to the jury, touching on how they should approach their duties. One such instruction included a somewhat typical caution about guarding against being influenced by “sympathy, prejudice or fear”. The draft instruction was as follows:

You must consider the evidence and make your decision without sympathy, prejudice or fear. You must not be influenced by public opinion. We expect and are entitled to your impartial assessment of the evidence. That was the promise you made and the oath you took or affirmation you gave after you were accepted by the parties as jurors, and they have the right to expect nothing less.

27This instruction closely tracks the standard instruction on “Irrelevance of Prejudice and Sympathy” found in David Watt, Watt’s Manual of Criminal Jury Instructions, 2023 ed. (Toronto: Thomson Reuters, 2023), at p. 44 (Preliminary 18).

28Although neither party expressed concern over the content of this instruction, the defence requested more. Specifically, defence counsel asked that the trial judge add two sentences to the instruction as follows:

Nicholas Necan is a First Nations man. You must judge the evidence in this case without bias, prejudice or partiality.

29Although the trial Crown took no issue with the suggested addition, the trial judge expressed some concern over the first proposed sentence, that “Nicholas Necan is a First Nations man.” The trial judge asked counsel to address why that sentence should be included in the charge.

30Defence counsel responded that the wording had been derived from a “sort of mutation, or an amendment to the typical Parks challenge for cause type wording”, changed to be a statement rather than a question. By this, I understand counsel to mean that they borrowed the language from the standard Parks question, which focusses in on determining whether a potential juror’s “ability to judge the evidence in the case without bias, prejudice or partiality” would be affected by x: see R. v. Parks (1993), 15 O.R. (3d) 324 (C.A.), at p. 331. For instance, the question approved by this court in Parks, at p. 331, was: “[w]ould your ability to judge the evidence in the case without bias, prejudice or partiality be affected by the fact that the person charged is a black and the deceased is a white man?” See also R. v. Campbell (1999), 139 C.C.C. (3d) 258 (C.A.), at paras. 2-8.

31Defence counsel, who acknowledged that the defence had not requested a challenge for cause at the time of jury selection, maintained that the proposed addition to the charge would cause the jurors to reflect on the issue of racial prejudice.

32Ultimately, the trial judge was willing to instruct the jury in accordance with the requested sentence about eschewing “bias, prejudice or partiality” in their deliberations, but said that there was no need to state what he considered to be “abundantly obvious” to all based upon the testimony at trial: that Mr. Necan was a First Nations man. Accordingly, the trial judge left the first requested sentence out of the final instruction but incorporated the second sentence. For the sake of clarity, the relevant portion of the final jury charge merits being reproduced:

You must consider the evidence and make your decision without sympathy, prejudice or fear. You must not be influenced by public opinion. You must judge the evidence in this case without bias, without prejudice and without partiality. We expect and are entitled to your impartial assessment of the evidence. That was the promise you made and the oath you took, or affirmation you gave after you were accepted by the parties as jurors, and they have the right to expect nothing less. [Emphasis added.]

(b) Parties’ positions on appeal

33The appellant argues that the trial judge committed a reversible legal error by failing to provide the full anti-bias instruction requested at trial, and thereby failing to link the juror’s obligation to act impartially with the fact that the appellant is Indigenous. The appellant claims that it was critical to address the potential for conscious and unconscious anti-Indigenous bias head on and that the failure to do so should result in a new trial.

34He argues that jurors may have been influenced by harmful stereotypical assumptions about Indigenous people and alcohol. Specifically, the appellant relies on the “firewater myth” as a potential source of bias. He provided the court with an article that defines the firewater myth as a “racist story” that “tells society that Indigenous peoples are constitutionally incapable of moderation when it comes to alcohol and that, once intoxicated, they are inordinately violent, aggressive, and foolish”: Corbin William Golding, “A Prairie Polyphemus: The Firewater Myth in a Canadian Legal Context” (2023) 86:1 Sask. L. Rev. 1, at p. 3. He submits that this myth is engaged on the facts of this case, given his Indigeneity, the evidence of his intoxication, what he describes as the Crown’s “competing narrative” that he was angry, and the Crown’s closing submission that alcohol “affects different people differently”.

35He also points to the broader myth that Indigenous persons have a propensity for criminality as another potential source of bias in this case: R. v. Williams, [1998] 1 S.C.R. 1128, at para. 58.

36The appellant claims that the requested sentence, “Nicholas Necan is a First Nations man”, would have ensured that the jury better understood the direct link between the appellant’s Indigeneity and the need to judge the evidence without bias, prejudice or partiality. This, maintains the appellant, was the bare minimum required to quell concerns over bias infecting the jurors’ minds.

37On appeal, the appellant goes even further and suggests that a more robust anti-bias instruction was required, given the Supreme Court’s decisions in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579 and R. v. Chouhan, 2021 SCC 26, [2021] 2 S.C.R. 136, which were released after the appellant’s trial. This instruction, the appellant argues, was required to help foster “self-consciousness and introspection” on the part of jurors, with the aim of fostering objectivity and fairness in their deliberations: Chouhan, at paras. 49, 59, per Moldaver and Brown JJ. Specifically, he maintains that the jury should have been instructed as follows:

The accused in this case is an Indigenous man who has substance abuse issues, including with alcohol. You heard evidence that he was drinking on the day he caused the victim’s death by violently assaulting him. As a juror, you bring with you experiences, beliefs, and opinions, some of which may be unconscious. The issue before us today is not whether these beliefs are correct or proper, but whether you can set them aside and judge the evidence presented at this trial fairly without bias, prejudice, or partiality. Impartiality requires active work. This requires that you be aware of your own personal beliefs and experiences, and that you be equally open to the views of others. It will be your duty to identify and set aside any prejudices or stereotypes that might affect your decision in this case.

38The appellant contends that the trial judge’s failure to give this type of instruction, and certainly his failure to give the briefer instruction requested at trial, leaves us in the situation where we simply do not know whether unacceptable biases were at work in the jurors’ minds.

39Crown counsel on appeal acknowledges that the trial judge should have included the sentence “Nicholas Necan is a First Nations man” in the jury charge. That, Crown counsel concedes, would have been the “better” instruction, as it would have had the effect of linking the appellant’s Indigeneity to the issue of bias. Crown counsel submits, however, that the general anti-bias instructions, which were given at several points during the trial, were sufficient. The jurors knew that the appellant was Indigenous and would have understood, based on the instructions that they were given, that they needed to judge without bias, including bias against Indigenous people. Pre-Barton and -Chouhan, nothing more was required. That said, Crown counsel submits that specific anti-bias instructions are helpful and should become more routine in nature, although he emphasizes that they are not legally necessary in all cases, including in this case. In the end, Crown counsel emphasizes that when the entire charge in this case is considered in its proper context, it was sufficient.

(c) Analysis

(i) The Applicable Legal Principles from Barton and Chouhan

40The law pertaining to when an anti-bias instruction should be given has evolved substantially since this jury was charged in February 2018. It is important not to lose sight of the fact that when the jury was charged, Barton and Chouhan had not even been argued, let alone resolved.

41With that said, both Barton and Chouhan provide helpful guidance on how the administration of criminal justice can better respond to the concerning fact that bias continues to pose a risk to fair and impartial juror deliberations. The criminal justice system has long addressed concerns about bias infecting juror deliberations. However, until Barton and Chouhan, the response had been largely directed toward biases that jurors were aware of or held deliberately – what I refer to in these reasons as conscious bias. For example, the challenge for cause procedure and the standard Parks question asked during a challenge for cause have historically been targeted at identifying those jurors who would have difficulty or be unwilling to set aside conscious biases – ones they are aware of – when fulfilling their duties as jurors.

42In the more recent past, the law has evolved to reflect a more advanced understanding of how biases operate, including at the unconscious level. It is now recognized that even jurors without conscious biases may hold unconscious biases that can infect their deliberations: Chouhan, at para. 49, per Moldaver and Brown JJ. The fact is that even well-meaning people can unwittingly carry biases, springing from conscious and unconscious beliefs, assumptions and perceptions about the traits associated with a particular group: Chouhan, at para. 53, per Moldaver and Brown JJ.

43Unconscious bias is particularly insidious because, by definition, it is concealed and can be directed at anything, including race, ethnicity, sexual orientation, religion, gender, and much more. And, unlike a conscious bias, an unconscious bias allows the holder of that bias to quite unintentionally act on it and, in fact, propagate it.

44When it comes to jury trials, we expect jurors to act impartially, arriving at their verdict based solely upon the evidence elicited and the instructions given by the trial judge. Where a juror holds a conscious or unconscious bias, it can have the effect of undermining the impartiality that is so necessary to ensuring a fair trial.

45So, what can we do about it?

46There are several mechanisms that can be used to address concerns over partiality.

47For example, a fundamental tool for addressing the concern over potential partiality is through a robust challenge for cause procedure, a procedure which allows for the exclusion of those who cannot be impartial. The risk of prejudice and discrimination is properly the subject of a challenge for cause. It is for the trial judge, in a broad exercise of discretion, to determine the parameters of a challenge for cause in circumstances suggesting a realistic potential for partiality: Chouhan, at para. 62, per Moldaver and Brown JJ.; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 24; and R. v. Find, 2001 SCC 32 [2001] 1 S.C.R. 863 at para. 45.

48As for unconscious bias, there is nothing wrong, and indeed much right, with reminding prospective jurors, before the challenge is put, or even when there is no challenge for cause, that they must engage in an exercise of introspection and that being an impartial juror demands “active and conscientious work”: Chouhan, at paras. 53-55, 63. Bearing this in mind, jurors who face a challenge for cause should be encouraged to reflect on unconscious biases that they may hold, and to challenge themselves to cast those aside during their service as a juror: see Chouhan, at para. 63, per Moldaver and Brown JJ.; Find, at para. 40.

49As I will return to later in these reasons, the appellant did not pursue a challenge for cause in this case.

50Another mechanism for addressing concerns over partiality, and specifically how partiality can arise from unconscious bias, is the jury instruction. It is beyond dispute that jury instructions can act as an additional safeguard when it comes to pushing back against biases, whether racially motivated or otherwise, and whether conscious or unconscious in nature.

51Accordingly, both Barton and Chouhan provide guidance on jury instructions as they relate to protecting and promoting juror impartiality by combatting conscious and unconscious biases.

52Barton and Chouhan make clear that anti-bias instructions should be given wherever “specific biases, prejudices, and stereotypes … may reasonably be expected to arise in the particular case”: Chouhan, at para. 50; Barton, at para. 203. The need for these instructions to be directed at both conscious and unconscious biases that “may taint the integrity of jury deliberations” is clear: Chouhan, at para. 50, per Moldaver and Brown JJ. As for unconscious biases, the key is to attempt through the instruction to expose them – biases, prejudices and stereotypes – all of which may “lurk beneath the surface, thereby allowing all justice system participants to address them head-on – openly, honestly and without fear”: Chouhan, at para. 49, per Moldaver and Brown JJ., citing Barton, at para. 197. See also: Barton, at para. 201; R. v. Bhogal, 2021 ONSC 4925, 73 C.R. (7th) 351; R. v. Douse, 2022 ONSC 3228; R. v. Smith, 2021 ONSC 6173.

53Encouraging jurors to approach their duties with a healthy dose of introspection, and to confront and set aside prejudices, may involve both general and specific instructions. Whether either, or both, type of instruction is necessary will depend on the circumstances of the case and must be determined in consultation with the parties: Chouhan, at para. 50, per Moldaver and Brown JJ. Indeed, Moldaver and Brown JJ. in Chouhan characterized the submissions of counsel as “integral” to crafting a specific anti-bias instruction: at para. 58.

54Where such instructions are required, they should be delivered early in the trial before evidence has been elicited: Chouhan, at para. 53, per Moldaver and Brown JJ. While there is nothing to preclude a further instruction later in the trial or during the charge to the jury at the end of the case, it is best to get the jury doing the work of confronting any possible biases before they start hearing and considering evidence. Examples of such preliminary instructions include: “Duties of Jurors” in Watt’s Manual of Criminal Jury Instructions, at pp. 36-38 (Preliminary 15); Canadian Judicial Council, Model Jury Instructions: Preliminary Instructions (2021), online (pdf): National Judicial Institute https://www.nji-inm.ca/index.cfm/publications/model-jury-instructions/?langSwitch=en.

55In summary, the combined message from Barton and Chouhan is that conscious and unconscious bias continues to exist. Where bias exists, it threatens impartiality, which in turn threatens trial fairness. Where it arises, it is up to all justice participants to keep an open mind as to how to address concerns over bias. One of the means to do so, is by way of a challenge for cause. Another important mechanism to combat bias is through carefully crafted jury instructions, ones that encourage jurors to engage in the hard work necessary to challenge themselves by engaging in a degree of self-awareness about what might lurk below the surface.

(ii) The trial judge did not commit a reversible error

56As I will now explain, despite the evolution of the law involving anti-bias instructions, the trial judge did not commit a reversible error in failing to preface his instruction to decide the case “without bias, prejudice or partiality” with the words “Nicholas Necan is a First Nations man.” Nor did his failure to give a more extensive instruction, requested for the first time on appeal, result in reversible error.

57In explaining how I arrive at these conclusions, I start with a somewhat basic, but important observation about the presumption of juror impartiality and how it intersects with the types of anti-bias instructions that were typically given prior to Chouhan and Barton, the types of instructions given in this case.

Presumption of juror impartiality over the ages

58There exists a deep body of jurisprudence that reflects a strong and well-earned presumption of juror impartiality. Even recognizing, as I do, that there is a concerning degree of racism that continues to infect society, and that we could do a much better job at confronting that racism, the fact is that jurors are still properly presumed to act impartially: R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398, at para. 53; Spence, at para. 21; and Williams, at paras. 17, 57. This presumption is both a reflection of and a testament to the fact that when 12 citizens are brought together to judge a case, they take their responsibilities seriously and have historically lived up to the trust placed in them: Barton, at para. 177; see also R. v. Corbett, [1988] 1 S.C.R. 670, at pp. 692-693.

59There is nothing in either Barton or Chouhan that has shaken the jurisprudential foundation for our confidence in the jury system as a fundamental pillar of the administration of criminal justice. Nor is there anything in these decisions that would support the conclusion that generalized anti-bias instructions, of the nature that existed before Chouhan and Barton were written and of the nature given in this case, have no role to play in cultivating juror impartiality. While specific anti-bias instructions of the nature discussed in Chouhan and Barton can certainly “add a layer of protection”, the absence of such instructions should not be equated with a presumption of partiality. Nor should the anti-bias, anti-prejudice, and anti-partiality instructions that have been historically given be seen as having no value. To the contrary, as Moldaver J. specifically addressed in Barton, at paras. 176-77:

When sworn in, all 12 jurors took an oath that they would perform their duties in a fair, impartial, and unbiased manner, and that they would render a true verdict according to the evidence. The trial judge reminded the jurors of this in his final instructions: he explained that they must examine the evidence “without sympathy or prejudice for or against anyone involved in these proceedings” and that “[this] means you must now make good on your promise to put aside whatever biases or prejudices you may hold or feel” …. Admittedly, these safeguards are not a panacea — and I acknowledge that specific instructions addressing particular types of prejudice can provide an additional layer of protection going forward ….

That said, we should not be too quick to assume that they play no role in fostering impartial and unbiased reasoning. To conclude otherwise would be to assume that such instructions, which have been repeated to juries through the ages, were of no value and amounted to little more than lip service. I refuse to go there. To do so would be to lose sight of the well-established jurisprudence of this Court expressing our strong faith in the institution of the jury and our firmly held belief that juries perform their duties according to the law and the instructions they are given [citations omitted]. This is not a form of blind faith; rather, it is a reflection of the well-earned trust and confidence that has been built up over centuries of experience in courtrooms throughout the Commonwealth. The institution of the jury is a fundamental pillar of our criminal justice system. We erode our confidence in this bedrock institution at our own peril.

60This just cited passage from Barton applies with equal force to this case. As I will now discuss, although the trial judge could have added into the jury charge the additional 7 words asked by the defence, or even said more on this topic had he been asked to, the fact is that like in Barton, the instructions given in this case were sufficient in the circumstances.

No legal error in not adding that “Nicholas Necan is a First Nations man”

61Like in Barton, “we should not be too quick” in this case to assume that the generalized instructions involving the need to decide the case without prejudice or bias had no role to play. Also, like in Barton, while specific instructions about bias could have added a further layer of protection, the instructions that were given adequately equipped the jury to decide this case without prejudice or bias.

62To this end, this jury was instructed on several occasions to keep an open mind and to judge the case without bias, prejudice, sympathy or partiality. The following excerpts provide good examples:

1. When addressing the entire jury panel, the trial judge told them that every juror had to be impartial and that “[a]n impartial juror is one who will approach the trial with an open mind.”
2. At the outset of the trial, the petit jury was instructed that they must use their common sense and experience, consider the evidence with an open mind and to make their “decision without sympathy, prejudice or fear.” They were also told to listen to and observe the trial proceedings “without prejudice, bias or sympathy.”
3. In the charge to the jury, the trial judge reinforced that they were to decide the case “without bias, without prejudice and without partiality.”

63The appellant submits that, at a minimum, the trial judge should have gone further when charging the jury and linked the reminder that “Nicholas Necan is a First Nations man” to the need to decide the case without bias, prejudice or partiality. With respect, I do not agree.

64At least by the end of the trial, it would have been obvious to the jury that Mr. Necan is a First Nations man, since at least two witnesses, including his own daughter, had referred to his Indigeneity. As the Crown acknowledges, it might have been better for the trial judge to have expressly mentioned the appellant’s Indigeneity when he was directing the jurors to “judge the evidence in this case without bias, without prejudice and without partiality”. Making this connection explicit would have done no harm, and might have helped focus the jurors’ attention on the importance of setting aside conscious and unconscious anti-Indigenous bias, as well as any other forms of bias they might have. However, I am not persuaded that it was a reversible error for the trial judge, who did not have the benefit of the Supreme Court of Canada’s direction in Barton and Chouhan, not to utter the additional seven words requested by the defence at trial. Elevating this to an absolute requirement would seem to belie the presumption of an intelligent, committed and functioning jury. This jury knew that the appellant was Indigenous, and they were expressly told that they were to approach the case free from bias or prejudice. The jurors would have known what the instruction meant, and realized that the biases and prejudices they had to set aside included biases or prejudices relating to Indigenous people.

No legal error in not giving the specific anti-bias instruction requested for the first time on appeal

65Even though it was not requested at trial, the appellant says that the trial judge should have gone even further than adding the missing 7 words, and instructed the jury in a manner that he says is more consistent with the concerns over bias that have been acknowledged in both Chouhan and Barton. For ease of reference, I repeat the instruction requested for the first time on appeal:

The accused in this case is an Indigenous man who has substance abuse issues, including with alcohol. You heard evidence that he was drinking on the day he caused the victim’s death by violently assaulting him. As a juror, you bring with you experiences, beliefs, and opinions, some of which may be unconscious. The issue before us today is not whether these beliefs are correct or proper, but whether you can set them aside and judge the evidence presented at this trial fairly without bias, prejudice, or partiality. Impartiality requires active work. This requires that you be aware of your own personal beliefs and experiences, and that you be equally open to the views of others. It will be your duty to identify and set aside any prejudices or stereotypes that might affect your decision in this case.

66The appellant maintains that the absence of this instruction, including the references to the fact that the appellant had substance abuse issues, and had been drinking on the day of the killing, left the jury vulnerable to engaging in their work with unconscious biases informing their views.

67In explaining why I respectfully disagree, I again point to what Moldaver J. said in Barton, at para. 176, that while the safeguards in place prior to Barton were not a “panacea”, and additional instructions could provide a “layer of protection going forward”, the absence of perfection on this front does not lead to the setting aside of the presumption of juror impartiality. I too “refuse to go there”: Barton, at para. 177.

68This is particularly true in this case where it is difficult to ascertain a direct link between the potential bias and the live issue at trial, whether the appellant’s degree of intoxication cast a reasonable doubt on whether he formed the intention for murder. It is against that backdrop that the parties on appeal had an understandably difficult time articulating the link between the live issue at trial and the unconscious biases that may have been at work below the surface in the jury room. To this end, the appellant fairly acknowledges that, to the extent that biases may have been operative, they may have worked in favour of the defence theory at trial, specifically that the appellant’s degree of intoxication meant he did not form the intention for murder.

69The point here is not that biases are sometimes alright and sometimes not. Clearly, they have no proper place in jury deliberations. Rather, the point is that it is not at all clear what prejudice flowed to the appellant by the failure to give the instruction now requested on appeal.

70Even accepting, as I do without hesitation, that there continues to exist racism in society, and anti-Indigenous racism remains a most disturbing reality that we must continue to confront and actively address, there is nothing in the record here suggesting that such racism was active in this case. The appellant’s lack of any request for a challenge for cause is a strong indication that the danger of anti-Indigenous bias was not a particular concern for him when the trial started, that he was satisfied with the impartiality of the jury selection process and that he was content with the jury that was picked. There is no evidence in the record that anything changed as the trial unfolded. Neither party relied, explicitly or implicitly, on stereotypes about Indigenous peoples. In these circumstances, all indications are that both parties were content with this jury and its ability to approach its work impartially and fairly.

71Challenging jury members to confront their subconscious and conscious biases can certainly support and encourage impartiality and trial fairness. In this case, though, the absence of such an instruction does not give rise to a concern.

(2) Did the trial judge err by providing confusing, inaccurate and insufficient instructions on intoxication?

72The appellant says the instructions relating to intoxication were confusing, inaccurate and insufficient. After being instructed on intoxication, the jury was told to record their verdict, only then to be given what are said to be further, unnecessary and confusing instructions that were largely irrelevant to their deliberations. The appellant also says there was a failure to relate the evidence of intoxication to the legal issues.

73I agree that the instruction following the instruction on intoxication, what I will refer to as the “rolled-up instruction”, was unnecessary and somewhat repetitive. That said, perfection is not the standard by which we assess jury charges: Abdullahi, at para. 35. And reversible error does not arise from the fact that a charge is repetitive or even more complex than it needed to be: R. v. Lawes (2006), 80 O.R. (3d) 192 (C.A.), at para. 41, leave to appeal refused, [2006] S.C.C.A. No. 175. The real question is whether, at the end of the charge, the jury had the necessary tools to arrive at a just verdict: Abdullahi, at para. 35. They did. I will now explain why I say this is so.

(b) Structure of the charge

74It is important to start by placing the disputed parts of the charge in context.

75The charge in this case was admirably concise, homing in on the actual issues for consideration and coming in at less than 50 pages in length.

76It began with a typical review of the general duties of the jurors, the general principles for the jurors to apply, the principles of evidence, and the evidence itself, including the admissions that were made. A significant portion of the admissions and the evidentiary review was focussed on the appellant’s alcohol consumption and the degree of his intoxication.

77The trial judge then moved onto the elements for second degree murder. There is no dispute that they were properly recounted, including on what constitutes the state of mind for murder.

78In the section of the charge dealing with intoxication, the jury was reminded that the appellant had consumed alcohol the evening before, the morning of and afternoon of the homicide. They were then reinstructed – again correctly – on the necessary state of mind for murder. The jury was also reminded that, to decide whether the appellant had the state of mind for murder, they must look not only to his consumption of alcohol, but also to the “rest of the evidence that throws light on [the appellant’s] state of mind at the time the offence was allegedly committed.” That instruction was also a legally correct one.

79Notably, defence counsel asked the trial judge to add a section to the charge, specifically adverting to other evidence, beyond intoxication, that informed the appellant’s state of mind at the time that he killed Mr. Gerard. The Crown took no objection to this addition and counsel worked together on the wording which was ultimately incorporated into the charge. As discussed below, the appellant now takes issue with the inclusion of this requested addition.

80As the trial judge had already extensively reviewed the evidence of intoxication earlier in his charge, he did not repeat it in the section on “Intoxication”. Rather, he simply reminded the jury to consider “all the evidence, including the evidence that the accused may have been in an intoxicated condition at the time of George Gerard’s death”.

81The trial judge told the jury that, if after taking into account all of the evidence, including that relating to alcohol consumption, they were not satisfied beyond a reasonable doubt that the appellant had the state of mind for murder, then they had to find him not guilty of second degree murder and only guilty of manslaughter (which he had pled guilty to at the outset of trial). He then told the jury that if they were satisfied beyond a reasonable doubt that the Crown had proven the state of mind for murder, they had to find the appellant guilty of second degree murder. Following those instructions, he told the jury to record their verdict on the verdict sheet.

82In a somewhat unusual move, given that the jury had already been told to record their verdict, the trial judge then went on to give a further instruction on intention. This is what I will refer to as the “rolled-up” instruction. With some notable changes, this instruction followed the standard instruction found in “Cumulative Effect of Evidence on Proof of Mental Element in Murder”, Watt’s Manual of Criminal Jury Instructions, at pp. 1236-1237 (Final 69-B). As previously noted, the appellant also takes issue with this part of the charge.

83Under this section, the trial judge continued to instruct the jury over seven paragraphs. He started by repeating, again correctly, the mens rea for murder and reinforcing that even if they found that the appellant was not intoxicated, they had to have regard to all the evidence, including that of his alcohol consumption, in deciding whether the appellant had the state of mind for murder.

84The trial judge proceeded to tell the jury that alcohol consumption, alone, does not mean that a person does not have the state of mind for murder. Direct from the standard jury instruction, he told the jury that, in fact, evidence of alcohol consumption may actually give rise to the state of mind required for murder: see Watt’s Manual of Criminal Jury Instructions, at p. 1236 (Final 69-B). He again reinforced that the jury had to consider all of the evidence in determining the appellant’s state of mind.

85The trial judge then said the following to the jury:

Anger, even intense anger, on its own, is not enough to reduce murder to manslaughter. It is just one factor, like all the other factors I have previously referred to, that should be considered when determining if the Crown has proven beyond a reasonable doubt that Nicholas Necan had the required state of mind for murder. [Emphasis added.]

86As noted, on appeal, the appellant takes issue with the inclusion of this paragraph in the charge.

87The paragraph on anger was followed by a repeat of the last two paragraphs in the intoxication instruction: (i) if the jury was satisfied beyond a reasonable doubt that the Crown had proven the state of mind for murder, they had to find the appellant guilty of second degree murder; and (ii) if the jury was not so satisfied, they had to find the appellant not guilty of murder, but guilty of manslaughter.

88These instructions were followed by a brief summary of the parties’ positions followed by concluding instructions.

(c) Parties’ positions on appeal

89The appellant says no rolled-up instruction was required in this case. Rolled-up instructions are typically given where there is more than one discrete defence, justification or excuse raised by the accused. Jurors need reminding in such circumstances that, although they may have rejected each discrete defence, justification or excuse, they may still arrive at a reasonable doubt about the state of mind for murder based upon the cumulative effect of the evidence, including all of the evidence that informs the individual defences, justifications and excuses: R. v. Flores, 2011 ONCA 155, 269 C.C.C. (3d) 194, at para. 73.

90The appellant points out that his sole position was that he did not form the state of mind for murder because, among other things, he was so intoxicated. He explains that he did not raise multiple defences. Therefore, the rolled-up instruction, which fell under the heading “Cumulative Effect of Evidence on Proof of Mental Element in Murder”, should not have been included.

91In terms of the content of the rolled-up instruction, the appellant claims that the trial judge erred when instructing the jury that “anger, even intense anger”, acting on its own, is not enough to reduce murder to manslaughter. Although the appellant concedes that this instruction was legally correct, he says that it was prejudicial in this case for three reasons.

92First, the appellant argues that the reference to “anger” was inappropriate and unnecessary because such an instruction should only be given when the partial defence of provocation is raised, which it was not in this case. By including the reference to anger when there was no claim of provocation, the trial judge’s instruction essentially singled out “anger” as a factor worthy of special consideration by the jury. The appellant argues that, by singling out anger as a standalone factor, the instruction set up a “false dichotomy”, one that resulted in the jury thinking that either the appellant was drunk and not guilty, or angry and guilty.

93Second, the appellant takes issue with the language about “reducing” murder to manslaughter and argues that it is, again, inappropriately linked to provocation. He argues that this language is typical when a trial judge is instructing a jury on provocation. Given that the partial defence of provocation was not an issue, the appellant argues that the idea of reducing murder to manslaughter was irrelevant and confusing. Alternatively, the trial judge should have given the follow-up instruction to the jury as well.

94Third, the appellant submits that these instructions could have confused the jury because they were delivered after the end of the section on intoxication, where the jury was invited to record their verdict. The appellant contends that, taken together, the instructions may have led a juror who had a reasonable doubt on the mens rea for murder, and indeed recorded that finding, to reconsider it under the rolled-up instruction.

95Separately, the appellant submits that the trial judge’s section on intoxication was flawed because the trial judge failed to relate the evidence of intoxication specifically to the issue of whether the appellant had the mens rea for murder.

(d) No reversible error arising from rolled-up instruction

96I agree with the appellant that the rolled-up instruction was unnecessary. The defence was not advancing multiple defences, justifications or excuses. The appellant’s defence was, quite simply, that in light of the evidence of intoxication and all other evidence in the case, the jury should have a reasonable doubt about mens rea.

97Interestingly, during the pre-trial conference, there was much discussion about this section of the charge. Defence counsel asked that the whole section be removed as it was unnecessary. As an alternative, if the section was to remain in the charge, defence counsel asked that a particular paragraph be removed. The trial judge decided to leave the section in, but acceded to the defence request by removing the identified paragraph.

98As for the paragraph regarding anger, defence counsel and the trial Crown worked cooperatively to come up with appropriate and agreeable wording. That wording was then given to the court and inserted into the final charge. For ease of reference, I repeat that instruction here:

Anger, even intense anger, on its own, is not enough to reduce murder to manslaughter. It is just one factor, like all the other factors I have previously referred to, that should be considered when determining if the Crown has proven beyond a reasonable doubt that Nicholas Necan had the required state of mind for murder.

99So to set the context, what we are left with is the following: (a) the defence correctly recognized that the rolled-up instruction was not legally necessary and asked for its deletion but this was not done; (b) if the section was to remain in, defence counsel asked for the removal of a specific paragraph which the trial judge removed; and (c) if the section was to remain in, defence counsel asked to assist in drafting the now impugned instruction on anger, which was done.

100That provides the framework for the issue. Now, let us look at its legal accuracy.

101The appellant quite rightly accepts that the instruction about anger is legally correct. The fact is that anger alone cannot reduce murder to manslaughter. While we would typically see that instruction in a case involving the partial defence of provocation, I see no problem arising from the fact that it was given here. Indeed, one might suggest that given how the case was argued, it was legally necessary to give a general instruction about anger.

102After all, anger can be relevant to the state of mind of an accused even when provocation is not advanced by the defence: R. v. Ethier, 2023 ONCA 600, 430 C.C.C. (3d) 121, at paras. 33-39. In this case, the defence specifically relied upon the notion that the appellant was “totally out of control” and in a “frenzied rampage” during the attack to support his advanced state of intoxication. In contrast, the Crown took the position that the appellant’s behaviour during the attack was consistent with an intoxicated man who was angry. In this circumstance, it was incumbent on the trial judge to explain the role of anger and how the jury should approach it in relation to the determining the appellant’s state of mind at the time of the killing.

103There was no false dichotomy created here. This submission is belied by the fact that the defence and Crown actually collaborated to come up with this language and provide it to the trial judge for use in the charge.

104While I agree that it was not ideal that the jury was instructed on intoxication and its intersection with the state of mind for murder, told to record their verdict, and then further instructed on the state of mind for murder, this does not rise to the level of reversible error. Considered as a whole, the charge was not so confusing and complex that we are left wondering if the jury was without the proper tools to deliberate: see Abdullahi, at para. 38; R. v. Hebert, [1996] 2 S.C.R. 272, at para. 8; R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 42.

105In the end, this jury knew what they needed to know to properly deliberate on the state of mind for murder. Ideally, the instructions would have been more streamlined and left the direction regarding the actual verdicts and the registering of them on the verdict sheet to the end. This may be a case that rings a note of caution about not relying too heavily on specimen charges instead of tailoring them to the specific circumstances of a case. Even so, this is not a case that constitutes reversible error. This jury knew what the law was and how to apply it to the facts as they found them to be.

(e) Evidence of intoxication was related to the legal issues

106The appellant also says there was a failure to relate the evidence of intoxication to the legal issues.

107The appellant correctly points out that it was the trial judge’s obligation to explain the evidence and the law to the jury, and to relate them to the essential issues that needed to be decided: R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948, at para. 140. He maintains that it was incumbent on the trial judge to specifically relate the evidence of intoxication to the question of mens rea, which he failed to adequately do in the section on intoxication. Instead, he submits that, in this section, the trial judge merely referred to “evidence about his consumption of alcohol” (emphasis added), and juxtaposed it with other evidence, unrelated to intoxication, that sheds light on his state of mind.

108In making this argument, he points to the following passage in the charge:

When considering the state of mind of [the appellant] it is important that you don’t focus solely on the issue of intoxication. You should consider all of the evidence that sheds light on the state of mind of [the appellant] including:

• Lack of evidence of motive or animosity between Mr. Necan and Mr. Gerard;
• Evidence that Mr. Necan and Mr. Gerard were seen together getting along;
• Mr. Necan's testimony that he had no memory of Mr. Gerard or the incident;
• The destruction of the living room in apartment;
• The severity of the injuries suffered by Mr. Gerard;
• The duration of the attack; and
• The evidence of police and civilian witnesses as to the behaviour of Mr. Necan at the time of the incident and arrest.

109He suggests that the juxtaposition of evidence of consumption with this evidence could have left the jury with the misunderstanding that the only evidence related to intoxication was evidence of actual consumption, when in fact there was other evidence of intoxication. In particular, he notes that the evidence of police and civilian witnesses, which is mentioned in the last bullet point, touched upon the appellant’s degree of intoxication.

110In my view, when this matter is considered in its proper context and the charge is read as a whole, the issue has no traction. I say this for three reasons.

111First, the appellant, who had a full opportunity to weigh in on the charge, did not raise an issue with this aspect of the charge at trial. Although this factor is not determinative, Rowe J., on behalf of a majority of the Supreme Court in Abdullahi, at para. 66, made clear that “where counsel fails … to raise an objection to the charge as delivered, appellate courts have often turned to counsel’s silence as an important consideration.”

112Second, and relatedly, the part of the charge that is said to create a problematic contrast, the part that outlines the other evidence beyond intoxication that informs the state of mind for murder, was specifically drafted by defence counsel (with input from the Crown) and placed into the charge at counsel’s request.

113Third, the trial judge provided a very good summary of the evidence touching on intoxication before giving the instructions on the state of mind for murder. As the trial was largely about that issue, it was all inextricably bound up with the evidentiary review that the trial judge undertook before discussing the law. In my view, it was entirely open and, indeed, preferable that the trial judge not repeat that evidence during his instructions on state of mind. To do so would have added significant repetition to the charge.

(3) Did the trial judge err by failing to give the jury with an after-the-fact conduct instruction?

(a) Parties’ positions on appeal

114The appellant maintains that the trial judge erred by failing to give an after-the-fact conduct instruction that specifically limited the use that the jury could make of his conduct after the police arrived and discovered him beating Mr. Gerard.

115In support of this submission, the appellant maintains that the Crown inappropriately encouraged the jury to use the appellant’s after-the-fact conduct to draw the inference that he intended to kill Mr. Gerard because he was an angry man. The trial judge is said to have compounded the problem by instructing the jury to consider “the evidence of police and civilian witnesses at the time of … the arrest” without any guidance regarding how to use that evidence to assess intention. Without such guidance, the appellant maintains that there was a risk that the jury would place undue emphasis on the appellant’s anger at the time of and following arrest to explain the appellant’s conduct, as opposed to considering other reasonable inferences, such as the fact that he had been pepper sprayed by police.

116The appellant suggests that the jury should have been instructed that the after-the-fact conduct evidence could only be used to determine whether he was intoxicated at the time that the death occurred such that he did not have the mens rea for murder. In advancing these submissions, the appellant leans heavily on Ethier, where this court set aside a second degree murder conviction because of a failure to give an after-the-fact conduct instruction: at paras. 29, 76-77.

117In response, the Crown submits that there are several reasons to reject the appellant’s submissions on this point, including that the instruction that he is now requesting would have confused the jury and could have undermined the defence.

(b) No error in not giving a limiting after-the-fact conduct instruction

118I am not persuaded that the trial judge erred in failing to give the requested after-the-fact conduct instruction.

119After-the-fact conduct evidence – circumstantial evidence that relates to the accused’s statements and activities after the alleged offence – poses unique reasoning risks because jurors might leap from evidence of after-the-fact conduct to an inference of guilt without assessing other plausible explanations for the conduct: R. v. White, [1998] 2 S.C.R. 72, at para. 57; Ethier, at para. 57; and Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 25. As recently noted by Zarnett J.A. in Ethier, at para. 57, general cautionary instructions simply informing the jury that they must consider other explanations for the accused’s conduct will sometimes address the risk. At other times, specific directions will be required, ones that warn of specific reasoning dangers that may arise on the evidence.

120Should the trial judge have gone further in this case and issued a limiting instruction? In my view, the answer is no, for three reasons.

121First, no one asked for a limiting after-the-fact conduct instruction. The parties at trial were undoubtedly in the best position to understand the nature and effect of the after-the-fact conduct evidence and the dangers it held. It is telling that neither thought it necessary to seek a limiting instruction.

122Second, the Crown never suggested to the jury that the appellant had the required mens rea because he was angry. Rather, the Crown argued that the appellant was angry at the time of the offence, which was a reasonable inference to draw from the brutal nature of the killing.

123Also, the defence used the appellant’s after-the-fact conduct to suggest that the appellant did not have the mens rea for murder, such as his “blank stare” toward the neighbour and his belligerent behaviour in relation to the police. In these circumstances, and as a direct response to the defence position, it was open to the Crown to argue that the appellant’s “blank stare” and belligerent behaviour was consistent with anger.

124Third, the instruction that the trial judge gave was entirely necessary and a more nuanced one may have confused the jury. At trial, the defence asked the jury to find that the after-the-fact conduct evidence demonstrated how extremely intoxicated he was, such that they should have a reasonable doubt about whether he formed the intention for murder. Yet the Crown pointed to that very same conduct as an indication of the fact that the appellant was not so intoxicated that the jury should entertain any doubt about the requisite mens rea. The trial judge directed the jury to “look at [the appellant’s] words and conduct before, at the time of and after the assault … and the circumstances in which they happened” to “shed light on [the appellant’s] state of mind at the time”. In these circumstances, it is difficult to imagine what a limiting charge would have looked like, and any such charge may have undercut the appellant’s defence.

125As for the appellant’s attempt to draw a parallel to this court’s decision in Ethier, there is no parallel. Ethier is a fundamentally different case, where the after-the-fact conduct evidence that lay at the heart of the order for a new trial involved a period of several hours, and included flight, disposal of evidence, changing of clothes, the purchasing of drugs and the like. This case is fundamentally different. Here, other than a touch of evidence in the detention facility in the immediate wake of the arrest, the evidence we are talking about involved the appellant’s conduct virtually at the scene of the killing.

126All in all, it seems to me that there was no risk of prejudice to the appellant from the lack of an after-the-fact conduct instruction here.

(4) Did the trial judge err by failing to provide the jury with a propensity reasoning instruction?

(a) Parties’ positions on appeal

127The appellant claims that the Crown invited the jury, in its closing submissions, to engage in propensity reasoning about the appellant’s character by suggesting that not only did he act out of anger, but that he was generally an angry man: “[h]e was simply an angry man.” The trial judge is said to have compounded the problem by repeating the Crown theory in the charge that the appellant “was an angry man and became angry with George Gerard to such a degree that he wanted to kill him.” The jury is said to have been left with the inappropriate impression that the appellant’s character as an angry man was relevant to the mens rea. According to the appellant, the jury should have been instructed that they were not to consider whether he was generally an angry man, although it was permissible for them to consider whether he was angry that night.

128The Crown submits that this instruction was not required, as the Crown did not argue that the appellant was generally an angry man. Nor did the defence request any such caution, demonstrating that they understood the Crown was not arguing the appellant was generally an angry man.

(b) No error in failing to give a propensity instruction

129It goes without saying that encouraging the jury to engage in propensity reasoning is inherently prejudicial. I agree with the appellant that the Crown is not entitled to ease its burden by stigmatizing the accused. This is said to be particularly true in a case such as this where unconscious biases may have been at work.

130Despite those genuine concerns, I am not persuaded that the trial judge erred in failing to give the requested propensity instruction.

131I do not find support for this issue in the record. The Crown did not argue that the appellant was generally an angry man. During cross-examination, the Crown asked the appellant whether he became angry while intoxicated, and the appellant’s answer was “I don’t know.” The Crown also suggested to the appellant that his attack on Mr. Gerard and his interactions with the police demonstrated he was angry, and he again answered, “I don’t know.” No other witnesses were asked whether the appellant was generally an angry man. Accordingly, there was no evidence that the appellant was generally an angry man, although the nature of the beating was evidence that he was angry at the time of the attack.

132As for the Crown’s closing submissions, although the trial Crown suggested that the evidence that the appellant looked “out of it” and had a “blank stare” was a reflection that the appellant was angry, there was nothing wrong with that suggestion. The Crown’s position was not an unreasonable one.

133In these circumstances, a caution against general propensity reasoning was not required.

D. Conclusion

134I would dismiss the appeal.