COURT OF APPEAL FOR ONTARIO

DATE: 20241115

DOCKET: C70624

Trotter, Favreau and Gomery JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Marko Tubic

Appellant

Counsel: Maija Martin and Stephanie Brown, for the appellant Christopher Webb, for the respondent

Heard: June 10, 2024

On appeal from the conviction entered by Justice Irving André the Superior Court of Justice on March 12, 2021, with reasons reported at 2021 ONSC 1892.

Trotter J.A.:

A. Introduction

[1] After a trial by judge alone, Marko Tubic was convicted of the second degree murder of David Fiedler. He was sentenced to life imprisonment without parole eligibility for 13 ½ years. He appeals his conviction. [^1]

[2] The appellant advances a number of grounds of appeal concerning the manner in which the trial judge dealt with the evidence of an unsavoury witness, and his use of after-the-fact conduct evidence as it related to the intent for murder. The appellant submits that the trial judge failed to provide sufficient reasons explaining why he was guilty of murder instead of manslaughter. The appellant also submits that the trial judge erred in his interpretation of the fault requirements for unlawful object murder in s. 229(c) of the Criminal Code, R.S.C. 1985, c. C-46 (“Criminal Code”). Finally, the appellant submits that the conviction for murder is unreasonable and not supported by the evidence.

[3] The following reasons explain why I would allow the appeal on two grounds and order a new trial. First, the trial judge did not adequately explain how the evidence as a whole, and the after-the-fact conduct evidence in particular, justified a conviction for murder. Second, when dealing with s. 229(c) of the Criminal Code, the trial judge referred to an objective standard of fault (i.e., “ought to have known”) that is non-compliant with ss. 7 and 11(d) of the Charter. Section 229(c) has been amended to remove these words. I would reject the other grounds of appeal.

B. Factual Overview

(1) Introduction

[4] The appellant, along with Kenneth Clifford, were charged with the first degree murder of David Fiedler. Mr. Clifford was found not guilty. [^2]

[5] The case against them rested on a combination of the evidence of an unsavoury witness, Abdul-Aziz Ahmed (“Mr. Ahmed”), forensic evidence, surveillance evidence, after-the-fact conduct evidence, and an Agreed Statement of Facts (“ASF”).

[6] Mr. Fiedler, who was in his 50’s at the time, was living with his mother. He left her home at about 1:00 p.m. on December 1, 2017 to do some banking on her behalf. Later that day he called his mother and told her that he was going to visit a friend in Mississauga. He called back later to ask if he could use her bank card to withdraw $200. She agreed to loan him the money. She never heard from him again. She reported him missing on December 3, 2017.

[7] Mr. Fiedler’s mother testified that, when her son left that day, he was in poor health and in a weakened state. He had lost weight due to treatment for throat cancer.

[8] According to Mr. Ahmed, on or about December 1, 2017, the appellant and Mr. Clifford put Mr. Fiedler in the trunk of his car. The appellant instructed Mr. Ahmed to drive to Bracebridge. They stopped at Mr. Caissey’s house, who led them to a bridge. Mr. Ahmed said that the appellant and Mr. Clifford removed Mr. Fiedler from the trunk and threw him over a hydro bridge and into the water. Mr. Ahmed testified that Mr. Fiedler was alive when he was thrown from the bridge.

[9] It was the Crown’s theory at trial that Mr. Fiedler was alive at that time and the act of throwing him over the bridge established guilt for first degree murder. [^3] During closing submissions, the Crown emphasized that the bridge was not an ideal place to “pitch a dead body". Rather, the bridge was the murder weapon; it served the dual purposes of killing Mr. Fiedler and hiding evidence of the homicide. As discussed below, the trial judge had a doubt about whether Mr. Fiedler was alive when he was thrown from the bridge.

[10] Mr. Fiedler’s body was never recovered. There is no evidence as to his cause of death. But there was evidence that Mr. Fiedler and the appellant had been involved in a physical altercation of some sort. Months later, the police found the car used to transport Mr. Fiedler to Bracebridge. Two drops of Mr. Fiedler’s blood were discovered in the trunk.

(2) Events Leading Up to Mr. Fiedler’s Disappearance

[11] When Mr. Fiedler told his mother he was going to see a friend, he went to 3056 Parkerhill Road in Mississauga (“3056 Parkerhill”). This address was known to the police as a crack house. Police and emergency personnel went there many times to respond to overdoses, two of which were fatal.

[12] As noted above, Mr. Fiedler’s mother allowed him to use her bank card to withdraw $200 from her account. He did so, and shortly afterwards bought some beer. The next morning, on December 2, 2017, between 7:11 a.m. and 7:18 a.m., someone else attempted to use this bank card to withdraw more money from his mother’s account. [^4] The person using the card entered the correct PIN, but no money could be withdrawn due to insufficient funds.

[13] Although a lot of what was discovered during the investigation of this case was reduced by the parties into an ASF, a narrative of events was provided by Mr. Ahmed, who was at 3056 Parkerhill that day. He claimed to witness the appellant and Mr. Clifford throw Mr. Fiedler over the bridge.

[14] Mr. Ahmed was an unsavoury witness. He had a lengthy criminal record. He made a deal with the prosecution that, in exchange for information about the appellant and Mr. Clifford, he would receive immunity from prosecution. Mr. Ahmed was in the witness protection program, but had to leave because he could not comply with its rules. He was paid over $20,000 while in the program. He provided trial testimony that was at odds with his preliminary inquiry testimony and his statements to the police. At the time of Mr. Fiedler’s death, Mr. Ahmed was a heavy user of alcohol and drugs. In accordance with Vetrovec v. The Queen, [1982] 1 S.C.R. 811 (“Vetrovec”), the trial judge instructed himself on the need to seek confirmation before accepting any part of his evidence.

[15] Mr. Ahmed met the appellant and Mr. Clifford at a shelter in the fall of 2017. He had a car, a grey Nissan Altima, which he used to drive them around. They paid for his gas. He said he was compensated with cigarettes, cocaine, and cash.

[16] On or about December 1, 2017, Mr. Ahmed went to 3056 Parkerhill with the appellant and Mr. Clifford. He saw Mr. Fiedler there, very high on crack cocaine. He was acting aggressively, cursing at people and starting fights. Mr. Ahmed said that the appellant and Mr. Fiedler got into “a tussle”. They were swearing at each other. There was pushing and grabbing that lasted 10-15 seconds. Mr. Ahmed did not see any punches thrown. He gave inconsistent versions of this incident. The true nature of the encounter was left unclear.

[17] Shortly afterwards, Mr. Ahmed went outside to his car. He and Mr. Clifford got into the car. The appellant came outside and asked Mr. Ahmed to reverse his car to the back of the house and to open the trunk. Mr. Clifford got out of the car. After less than a minute, the appellant and Mr. Clifford got into Mr. Ahmed’s car. They drove to a beer store and then to a Scotiabank. The appellant told Mr. Ahmed not to park close to the bank. The appellant got out of the vehicle and approached the bank. When he returned, they drove back to 3056 Parkerhill, where they spent a short period of time.

[18] The three men left the house and the appellant told Mr. Ahmed to drive to the highway. They drove north to Bracebridge. They stopped at the home of Mr. Caissey. They stayed for about 15 minutes. At some point, the appellant told Mr. Caissey that he had to get rid of something and made a gun shape with his hand. Mr. Caissey got into his van and the appellant, Mr. Clifford, and Mr. Ahmed followed him. Mr. Caissey took them to a bridge, which was supported with hydro beams; he then drove off.

[19] Mr. Ahmed described how the appellant and Mr. Clifford took Mr. Fiedler’s body from the trunk of the car and threw it over the bridge. He gave varying accounts of how this happened. He remained in the car when he made his observations through the passenger side-view mirror and/or the rear passenger window. The driver’s side mirror was missing. Mr. Ahmed testified that he did not hear any sounds or feel any movement coming from the trunk of the car at any time after Mr. Fiedler was placed in the trunk. The trunk had a safety latch that could open the trunk from the inside. Mr. Ahmed said that he saw Mr. Fiedler’s legs kicking as he was carried to the side of the bridge. On the way back to 3056 Parkerhill, Mr. Clifford asked the appellant: “Why did you do this? What the fuck?” The appellant said not to worry about it, or words to that effect.

[20] Once back at 3056 Parkerhill, the appellant told Mr. Ahmed to follow him while he drove Mr. Fiedler’s van to a parking lot where it was abandoned. Video surveillance and cellphone evidence placed the appellant in the area of the parking lot where the van was abandoned. Mr. Ahmed drove the two men back to house.

[21] Mr. Ahmed then drove the appellant to a Food Basics store where the appellant gave a young person money to buy bleach, which was used to clean the basement of 3056 Parkerhill. This was confirmed when a friend of Mr. Fiedler’s mother went to this address in search of Mr. Fiedler. He was denied entry but said that the occupants appeared to be cleaning the basement with bleach.

[22] The appellant dismantled some furniture in the basement, put the items in a fire pit in the backyard, and set it alight. This prompted a visit by the police and the fire department. On December 13, 2017, the police executed a search warrant at the residence and discovered a piece of carpet near the firepit. There were “chemical indications” of blood on the carpet, but the presence of blood was not confirmed.

[23] Mr. Ahmed eventually left 3056 Parkerhill and went to a shelter. A few days later, the appellant and Mr. Clifford came to see him and told him that he would have to give up his car. Mr. Ahmed gave the appellant his car keys. In 2018, the police found this car. Two drops of Mr. Fiedler’s blood were discovered in the trunk.

C. The Trial Judge’s Reasons

[24] The trial judge delivered written reasons for judgment in which he found the appellant guilty of second degree murder and Mr. Clifford not guilty. Ultimately, he rejected the Crown’s main contention that Mr. Fiedler was alive when his body was thrown from the bridge. He concluded that Mr. Fiedler died as a result of being assaulted and robbed by the appellant at 3056 Parkerhill.

[25] The trial judge relied on the evidence of the appellant’s subsequent activities as after-the-fact conduct to conclude that he was guilty of second degree murder. His key findings are set out in para. 106 of his reasons:

The direct evidence of Mr. Ahmed and the circumstantial evidence, particularly the blood found in the trunk of Mr. Ahmed’s car, the decision to travel a long distance to, in the words of Jeff Caissey, to get rid of something, the dumping of Mr. Fiedler over the bridge and the steps taken to clean up the location of the altercation, collectively support a conclusion that Mr. Tubic either meant to cause the death of Mr. Fiedler or meant to cause him bodily harm that he knew was likely to cause his death and was reckless whether death ensued or not. Alternatively, Mr. Tubic is guilty of culpable murder if, for the purpose of robbing Mr. Fiedler by forcing him to disclose his PIN number, he physically assaulted Mr. Fiedler in a manner that he knows or ought to have known was likely to cause death, notwithstanding that he desired to effect his unlawful object of robbing Mr. Fiedler without causing death or bodily harm to Mr. Fiedler. In my view, Mr. Tubic is guilty of second degree murder either under s. 229(a) or s. 229(c) of the Code.

D. Issues on Appeal

[26] As noted in the introduction, I would allow the appeal based on the insufficiency of the trial judge’s reasons for finding the appellant guilty of murder and his reference to an objective standard of fault in s. 229(c) of the Criminal Code. Nonetheless, I address the other grounds of appeal raised by the appellant.

(1) Unsavory Witness Evidence

[27] The appellant submits that the trial judge erred in his approach to Mr. Ahmed’s evidence. At trial, all parties accepted that he was an unsavoury witness whose evidence had to be approached with caution. Mr. Webb for the respondent acknowledged that the Crown’s case rested largely on the evidence of Mr. Ahmed, who supplied the narrative of the events surrounding Mr. Fiedler’s disappearance. His evidence had to be confirmed before it could be relied upon.

[28] Generally speaking, Vetrovec cautions are designed for juries, not judges. In R. v. Fuller, 2021 ONCA 888, Doherty J.A. said at para. 19:

First of all, a judge conducting a judge-alone trial is not obliged to give herself a “Vetrovec” caution with respect to witnesses who could well attract that caution in a jury case. The “Vetrovec” caution is designed to educate jurors about the risks inherent in accepting the evidence of certain kinds of witnesses and the need to carefully examine the entire trial record for potential supporting evidence. Trial judges are well aware of those risks and the need to look for supporting evidence: R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at paras. 23-25; R. v. KRR, 2020 ABCA 475, 398 C.C.C. (3d) 259, at paras. 56-58.

See also R. v. Khan, 2022 ONCA 698, [2023] 1 C.T.C. 16, at para. 65, leave to appeal refused, [2022] S.C.C.A. No. 455; and R. v. Krawczyk, 2024 ONCA 196, 435 C.C.C. (3d) 468, at para. 49. Although this was a trial by judge alone, the trial judge applied the principles in Vetrovec. He did so free from error.

(a) The Need for Caution

[29] The trial judge explained why it was necessary to treat Mr. Ahmed’s evidence with great caution. He itemized seven challenges that Mr. Ahmed presented as a witness, beginning with Mr. Ahmed’s criminal record, which included entries for crimes of dishonesty.

[30] The trial judge addressed Mr. Ahmed’s motive to lie. He was connected to the disappearance of Mr. Fiedler; he helped transport Mr. Fiedler to the bridge from which he was thrown. Mr. Ahmed negotiated immunity from prosecution in exchange for his cooperation with the prosecution. He was in the witness protection program. As the trial judge said at para. 57: “The fact that he left the program a few months later does not alter the fact that he received a benefit in exchange for his cooperation with the prosecution of both accused.”

[31] The trial judge also noted Mr. Ahmed’s unexplained delay in coming forward with his current version of events. He initially denied any involvement in Mr. Fielder’s death, both in the days after Mr. Fiedler’s disappearance and when he was arrested seven months later on unrelated matters.

[32] Mr. Ahmed gave different versions of events. There were several inconsistencies in his statements to the police, his testimony at the preliminary inquiry, and his evidence at trial. The trial judge itemized 12 instances where this happened. His evidence was also inconsistent with Mr. Caissey’s evidence.

[33] Lastly, the trial judge pointed to Mr. Ahmed’s lack of sobriety when he claimed to make observations about the circumstances surrounding Mr. Fiedler’s disappearance. He was consuming alcohol and crack cocaine. The trial judge said, at para. 62: “While he denied that his inability to recall certain details was on account of his consumption of crack cocaine, it is reasonable to conclude that his state of inebriation, coupled with fatigue, likely affected his perception of what transpired on December 1 and 2, 2017.”

(b) The Approach to Confirmatory Evidence was Correct

[34] Having established the need for caution, the trial judge turned his attention to the confirmatory evidence. He identified the requisite qualities of confirmatory evidence, with particular emphasis on the attribute of independence: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 39 (“Khela”). He relied on R. v. Roks, 2011 ONCA 526, 274 C.C.C. (3d) 1, at para. 66, where Watt J.A. said: “It is worth [reminding] that a trier of fact is entitled to convict on the evidence of a Vetrovec witness in the absence of confirmatory evidence where the trier of fact, cautioned about the danger of doing so, is satisfied that the witness is telling the truth” (citations omitted). The trial judge then posed and answered the following question, at para. 67: “Is there independent confirmatory evidence in this trial that provides comfort that Mr. Ahmed is telling the truth? In my respectful view, there is.”

[35] The nub of the appellant’s complaint is that Mr. Ahmed’s evidence was not sufficiently confirmed on the issue of whether there was a physical altercation between the appellant and Mr. Fiedler. However, this narrowly focused submission runs afoul of the well-accepted principle that confirmatory evidence need not directly implicate the accused person in the offence, but as a whole, “should give comfort to the jury that the witness can be trusted in his or her assertion that the accused is the person who committed the offence”: Khela, at para. 42; see also R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 12-13; and Vetrovec, at p. 833. As Martin J.A. said many years ago in R. v. Bulleyment (1979), 46 C.C.C. (2d) 429 (Ont. C.A.), at p. 447, the law does not require that confirmatory evidence “relate directly to some fact with respect to which the accomplice has testified. What is sought is evidence that renders it probable that the accomplice is telling the truth” (citations omitted).

[36] The trial judge followed this approach. He looked at how the evidence confirmed Mr. Ahmed’s evidence as a whole. Evidence that confirmed Mr. Ahmed’s evidence in other areas was capable of restoring the trial judge’s overall faith that he was telling the truth when he testified about the physical altercation. When he considered the independent evidence related to Mr. Ahmed’s broader narrative, the trial judge was satisfied that Mr. Ahmed was telling the truth.

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

(2) After-the-Fact Conduct Evidence

[38] The appellant submits that the trial judge erred in finding that the after-the-fact conduct evidence was probative of the appellant’s intent for murder.

[39] The evidence in question was subject to different potential uses. The Crown’s main theory at trial was that Mr. Fiedler was alive when he was thrown from the bridge. This theory did not engage the use of the evidence as after-the-fact conduct; part of this body of evidence was direct evidence of the events leading up to and including Mr. Fiedler’s death. The evidence was undoubtedly admissible on this basis. The after-the-fact conduct use of the evidence only arose on the alternate theory that Mr. Fiedler was killed earlier and was not alive when he was thrown from the bridge.

[40] The trial judge had a reasonable doubt that Mr. Fiedler was alive when he was thrown from the bridge. Accordingly, the alternative use of the evidence in question, use as after-the-fact conduct evidence, arose. The trial judge summarized this evidence at paras. 102-103:

The evidence I accept in this trial indicates that Mr. Tubic went to extraordinary lengths not only to ensure that Mr. Fiedler was not found but also that Mr. Fiedler’s disappearance would not be linked to him. This evidence includes the following:

The placing of Mr. Fiedler in the trunk of Mr. Ahmed’s car;
Mr. Tubic’s direction to Mr. Ahmed to drive to a location hours away from the Parkerhill residence;
Mr. Tubic’s enlisting of Mr. Caissey’s help for a location where he could get rid of “something”, presumably without the likelihood of the object or thing being found;
Mr. Tubic’s purchase of bleach following his return from Bracebridge;
Mr. Tubic’s dismantling of a couch and table in the residence;
The use of bleach to clean the lower section of the residence by Mr. Tubic and others;
The burning of items of furniture and a rug at the back of the residence;
The removal of Mr. Fiedler’s van from the Parkerhill residence;
The request to Mr. Ahmed to give Mr. Tubic his car, the discarding of the car in Toronto and cellphone records linking Mr. Tubic’s cellphone to the general location where the car was found; and
Mr. Tubic’s attempts to mask his appearance when he unsuccessfully tried to withdraw money from Joan Fiedler’s bank account.

In my view, Mr. Tubic would not have taken such elaborate steps to conceal his interaction with Mr. Fiedler or to be linked to his death. [^5] With respect, this paragraph is unclear because it is incomplete. I will address this issue below, at para. 62.

[41] The trial judge referred to the governing authorities from the Supreme Court of Canada concerning after-the-fact conduct evidence, including R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, where the court stated at para. 42:

Whether or not a given instance of post-offence conduct has probative value with respect to the accused’s level of culpability depends entirely on the specific nature of the conduct, its relationship to the record as a whole, and the issues raised at trial. There will undoubtedly be cases where, as a matter of logic and human experience, certain aspects of the accused’s post-offence conduct support an inference regarding his level of culpability.

[42] Building on this passage from White, the authorities are now clear that, depending on the circumstances of the case, after-the-fact conduct evidence may be probative of an accused person’s level of culpability. But this is an area that must be approached with rigour and care.

[43] In R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760 (“Rodgerson”), the Supreme Court of Canada explained the different uses that might be made of after-the-fact conduct evidence that involves concealment. In that case, also a homicide, Moldaver J. held that evidence of concealment was relevant to whether Mr. Rodgerson unlawfully killed the victim. This available inference was a matter of common sense: Rodgerson, at para. 27. However, the use of the same evidence as it related to the issue of intent required further consideration. As Moldaver J. wrote, at paras. 27 and 28:

Once the jury moved on to the issue of intent for murder, however, this simple inferential reasoning was no longer of any use. Rather, the limited relevance of this post-offence conduct on the issue of intent rested on the following, narrower inference: the jury might reasonably conclude that Mr. Rodgerson concealed Ms. Young’s body and cleaned up the scene of her death in order to conceal the nature and extent of her injuries and the degree of force required to inflict them.

In the sections of the jury charge relating to the issue of intent, the trial judge failed to link the evidence of concealment and clean-up to the nature and extent of Ms. Young’s injuries and the force required to inflict them. Rather, his charge merely reiterated the existence of the evidence, and instructed the jury to consider it along with all the other evidence adduced at trial. This was a legal error. Having first used the concealment and clean-up evidence in a common sense manner based on clear and readily accessible inferences, there was a risk that the jury might continue to rely on the evidence in this same manner on the issue of intent. The failure to instruct the jury on the narrower basis for using the evidence created a risk that the jury might convict Mr. Rodgerson for murder based only on the broader inference that had previously been sufficient: that the concealment and clean-up pointed to a consciousness of guilt and a desire to prevent discovery of an unlawful killing. [Emphasis added.]

Moldaver J. also said that the trial judge erred in failing “to assist the jury in understanding the limited and somewhat nuanced relevance of the concealment and clean-up evidence on the issue of intent for murder” (emphasis added): Rodgerson, at para. 37.

[44] In R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, Martin J. (dissenting, but not on this issue) discussed the potential uses of after-the-fact evidence and its relation to intent. As she said at para. 112:

As with all circumstantial evidence, a range of inferences may be drawn from after-the-fact conduct evidence. The inferences that may be drawn “must be reasonable according to the measuring stick of human experience” and will depend on the nature of the conduct, what is sought to be inferred from the conduct, the parties’ positions, and the totality of the evidence: R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at para. 77. That there may be a range of potential inferences does not render the after-the-fact conduct null: see R. v. Allen, 2009 ABCA 341, 324 D.L.R. (4th) 580, at para. 68. In most cases, it will be for the jury or judge to determine which inferences they accept and the weight they ascribe to them. “It is for the trier of fact to choose among reasonable inferences available from the evidence of after-the-fact conduct”: Smith, at para. 78. [Emphasis added.]

[45] Continuing on this theme, Martin J. said, at para. 139: “It may not always be reasonable to infer that an individual who destroys a body after causing their death has done so to conceal the nature and extent of the injuries. The reasonableness of that proposition will depend on the record as a whole and the issues raised at trial.” Martin J. also warned of the reasoning risks that may accompany after-the-fact conduct evidence at para. 116:

Even if admitted for a particular purpose, after-the-fact conduct may pose some unique reasoning risks: see D.M. Paciocco, “Simply Complex: Applying the Law of ‘Post-Offence Conduct’ Evidence” (2016), 63 Crim. L.Q. 275. Conduct that is “after-the-fact”, and therefore removed in time from the events giving rise to the charge, carries with it a temporal element that may make it more difficult to draw an appropriate inference. This evidence may also appear more probative than it is, it may be inaccurate, and it may encourage speculation. After-the-fact conduct evidence may thus give rise to imprecise reasoning and may encourage decision makers to jump to questionable conclusions.

[46] On the one hand, some of the evidence in question was relevant and admissible as direct evidence in support of the Crown’s main theory that Mr. Fiedler was alive when he was thrown from the bridge. It was also admissible as after-the-fact conduct evidence on the alternative theory that Mr. Fiedler had been killed earlier and elsewhere. It was potentially probative on the issue of whether the appellant unlawfully caused Mr. Fiedler’s death and whether he had the intent for murder. But this is just the beginning of the analysis. The key issue on this appeal is whether the trial judge properly used this body of evidence in his analysis of the appellant’s level of culpability.

(3) The Trial Judge’s Reasons Were Insufficient

(a) Introduction

[47] The appellant submits that the trial judge’s reasons were insufficient in two, related ways. First, the trial judge erred in failing to determine the cause of Mr. Fiedler’s death. Second, combined with the submission that the trial judge erred in the manner in which he dealt with the after-the-fact conduct evidence, the trial judge failed to explain why the appellant was guilty of second degree murder rather than manslaughter.

[48] The appellant’s first submission may be disposed of briefly. The failure to reach a firm conclusion on Mr. Fiedler’s cause of death does not, standing alone, amount to an error. As Martin J. held in Calnen, this is not a bar to the use of after-the-fact conduct evidence on the issue of intent. At para. 132, she said: “It is not the law that that an offence must be separately established before after-the-fact conduct evidence can be used by the trier of fact to determine an accused’s intent; after-the-fact conduct evidence is not merely complementary evidence.” Calnen stands as an example of the same situation. In homicide cases where the body is destroyed, it may be impossible to determine the cause of death, hence the need to consider after-the-fact conduct evidence.

(b) The Positions of the Parties at Trial

[49] As noted above, the Crown’s principal theory was that Mr. Fiedler was killed by being thrown from the bridge. This theory did not give rise to a consideration of the lesser and included offence of manslaughter. It was common ground at trial that this would amount to first degree murder.

[50] However, the alternative theory that Mr. Fiedler was not alive at the time, and that he had been killed at 3056 Parkhill, did give rise to the possibility of a manslaughter verdict. As the trial Crown said:

But if Your Honour had a reasonable doubt about David being alive going over the bridge, you may say how can I be satisfied that the criminal offence that has been committed is [second] degree murder rather than manslaughter.

[51] The trial Crown submitted that the inquiry should begin with whether the Crown could prove that the appellant and Mr. Clifford were responsible for Mr. Fiedler’s death:

So, in the Crown submission you’re going to start with manslaughter because there would be no reason for them to embark on any of this post-offence conduct, including throwing the body, if they have not been responsible for the deaths.

[52] The Crown submitted that the after-the-fact conduct evidence proved that the appellant and Mr. Clifford committed second degree murder. After outlining the steps taken to dispose of Mr. Fielder’s body, and to clean the scene, the Crown submitted: “To go to this extent shows that the accused intentionally murdered David versus a manslaughter and that that would be the facts that would need to be concealed.” With reference to Calnen, the trial Crown said, “there the Supreme Court of Canada says the disposal of a body is in itself enough to raise an inference of murder as opposed to manslaughter.” This was an oversimplification of the holdings in both Rodgerson and Calnen. It may be enough to raise such an inference, depending upon the circumstances of the case.

[53] Defence counsel at trial did not squarely join issue with the Crown’s submissions on liability insofar as the after-the-fact conduct evidence was concerned. Assuming that Mr. Fiedler was alive when he was thrown from the bridge, defence counsel said, “there isn’t a path to second degree murder, and there isn’t a path to manslaughter.”

(c) Analysis

[54] For the purposes of this discussion, the critical parts of the trial judge’s reasons include his itemization of the after-the-fact conduct evidence in para. 102 (reproduced above, in para. 40) and his conclusion in para. 103: “In my view, Mr. Tubic would not have taken such elaborate steps to conceal his interaction with Mr. Fiedler or to be linked to his death.”

[55] These paragraphs must be read in conjunction with the “Application of the Law to the Facts” section, which contains the following single paragraph at para. 106:

[56] Having decided that he had a reasonable doubt about whether Mr. Fiedler was alive at the bridge, the trial judge proceeded on the theory that the appellant assaulted Mr. Fiedler at 3056 Parkhill in order to obtain the PIN to his mother’s bank card. The trial judge reasoned that Mr. Fielder would not have volunteered this information and that he must have been assaulted. Missing from the trial judge’s analysis is a consideration of whether any of the acts committed against Mr. Fiedler satisfied the fault requirements for manslaughter. Proof of an unlawful act (i.e., an assault) that causes the death of another human being is, standing alone, insufficient to ground liability for manslaughter. The mens rea for manslaughter requires objective foreseeability of the risk of bodily harm that is neither trivial nor transitory: see R. v. Hodgson, 2024 SCC 25, at para. 47; R. v. Goforth, 2022 SCC 25, 415 C.C.C. (3d) 1, at para. 26; R. v. Javanmardi, 2019 SCC 54, [2019] 4 S.C.R. 3, at para. 31; and R. v. Creighton, [1993] 3 S.C.R. 3, at pp. 44-45.

[57] The after-the-fact conduct evidence was probative of this issue. It may have supported the more straightforward finding, discussed in Rodgerson, that the appellant acted as he did because he caused Mr. Fielder’s death unlawfully. The trial judge’s conclusion in para. 103 – “In my view, Mr. Tubic would not have taken such elaborate steps to conceal his interaction with Mr. Fiedler or to be linked to his death” – does not address this issue.

[58] In the next section of the trial judge’s reasons, entitled “Is Mr. Tubic Guilty of Second Degree Murder or Manslaughter?”, the trial judge simply reproduced ss. 229 and 232 of the Criminal Code. Section 232 provides for the partial defence of provocation that may reduce murder to manslaughter. It is unclear why the trial judge included this provision. He made no further reference to it. Although Mr. Ahmed suggested that Mr. Fiedler may have been high and/or belligerent around the time of his “tussle” with the appellant, the parties did not address provocation in their submissions. There was no air of reality to the defence, especially for Mr. Clifford. In this case, the potential route to manslaughter was not through s. 232 of the Criminal Code; rather, it would have been based on a reasonable doubt on the mens rea for murder.

[59] This comes to the nub of the appellant’s submission. Even though the trial judge posed the question to himself – “Is Mr. Tubic Guilty of Second Degree Murder or Manslaughter?” – he did not explain why he drew the more subtle and nuanced inference that this evidence proved that the appellant killed Mr. Fiedler, accompanied by one of the intents in s. 229(a) of the Criminal Code. This needed to be explained. As Martin J. cautioned in Calnen, after-the-fact conduct evidence may “give rise to imprecise reasoning and may encourage decision makers to jump to questionable conclusions”: para. 116. These concerns are equally present in a judge alone trial and ought to have been addressed in the trial judge’s reasons. This was especially important given the trial Crown’s broad submission about what may be inferred from the “disposal of a dead body.”

[60] The respondent submits that the trial judge did consider such alternative explanations posed by defence counsel at trial. It was submitted that: (a) Mr. Fiedler was killed by a drug dealer; (b) a drug dealer got the appellant to dispose of Mr. Fiedler’s body; or (c) that Mr. Fiedler had a fatal drug overdose, as had others at the Parkerhill residence. As the trial judge said, at para. 101:

First, there is no evidence that Mr. Fiedler had an altercation with anyone else at the residence. Neither is there any evidence that he owed money to anyone associated with the “Bobby” phone. [^6] Third, while there had been a number of cases of drug overdoses at the Parkerhill residence, emergency personnel had been summoned to the residence to deal with the overdoses. Fourth, it is a matter of common sense that if Mr. Fiedler had simply been a victim of a drug overdose, Mr. Tubic would not have gone to such great lengths to get rid of his body. [^7]

[61] The trial judge’s rejection of these alternative scenarios related to whether the appellant caused Mr. Fiedler’s death, not his level of culpability. Thus, this does not assist with the key issue on appeal.

[62] I repeat the trial judge’s concluding words after itemizing the after-the-fact conduct evidence: “In my view, Mr. Tubic would not have taken such elaborate steps to conceal his interaction with Mr. Fiedler or to be linked to his death.” As mentioned earlier, this sentence is incomplete and unclear. When read in conjunction with para. 106, reproduced above, it would appear that the trial judge was referring to the intent for murder.

[63] On the evidence, it was a plausible theory (but still speculative) that, if the appellant assaulted Mr. Fiedler, and if he did so to obtain the PIN for his mother’s bank card, it was nevertheless not objectively foreseeable that the assault would cause non-trivial harm. This also required an explanation. It was a central feature of the defence position at trial. If the trial judge was satisfied that this was proved, he was then required to address whether the evidence could sustain a conviction for murder, as opposed to manslaughter.

[64] The trial judge’s general reference to the evidence from para. 106 does not explain why he concluded the appellant’s post-offence conduct was a reaction to having killed another human being with a murderous intent, rather than something less. In Calnen, at para. 117, the words of Martin J.’s are particularly apt in the circumstances:

To meet the general concern that such evidence may be highly ambiguous and susceptible to jury error, the jury must be told to take into account alternative explanations for the accused’s behaviour. In this way, jurors are instructed to avoid a mistaken leap from such evidence to a conclusion of guilt when the conduct may be motivated by and attributable to panic, embarrassment, fear of a false accusation, or some other innocent explanation. [Citations omitted.]

[65] While the treatment of after-the-fact conduct evidence has developed in the realm of jury trials, the concerns apply equally to judge alone trials: Calnen, at paras. 112-113. [^8]

[66] In conclusion, the trial judge’s reasons on this critical issue are “unintelligible”, not in the harsh colloquial sense of the word, but in the legal manner identified by the Supreme Court of Canada in R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 79. Consequently, I would allow the appeal on this basis and order a new trial.

(4) The Trial Judge Misstated the Fault Requirement for Murder in s. 229(c) of the Criminal Code

[67] I would also allow the appeal on another basis. As noted above, the trial judge found the appellant guilty of murder on the basis of s. 229(a) or 229(c) of the Criminal Code, which currently read as follows:

229 Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

(c) if a person, for an unlawful object, does anything that they know is likely to cause death, and by doing so causes the death of a human being, even if they desire to effect their object without causing death or bodily harm to any human being. [Emphasis added.]

[68] Section 229(c) casts the net of criminal liability more broadly than s. 229(a). As originally enacted, the liability aperture of s. 229(c) was much wider. The fault requirement read as follows:

229 Culpable homicide is murder

(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being. [Emphasis added.]

[69] In R. v. Martineau, [1990] 2 S.C.R. 633, at p. 648, the Supreme Court of Canada held that the words “ought to know” in this previous version violated ss. 7 and 11(d) of the Charter. For the offence of murder, nothing less than a subjective state of mind is sufficient: see R. v. Shand, 2011 ONCA 5, 104 O.R. (3d) 291, at para. 122, leave to appeal refused, [2011] S.C.C.A. No. 270 (“Shand”); R. v. S.K., 2019 ONCA 776, 148 O.R. (3d) 1, at para. 71; and R. v. Williams, 2019 ONCA 846, at para. 17.

[70] Despite this jurisprudence, the offending language was not removed from s. 229(c) for almost two decades: see Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, S.C. 2019, c. 25, s. 77, which received Royal Assent on June 21, 2019. [^9]

[71] In his reasons, the trial judge referred to the wording of the repealed version of s. 229(c) – “ought to have known.” It is unclear why the trial judge resorted to this section in the first place. The Crown did not rely upon this route to a murder conviction.

[72] The “unlawful object” in s. 229(c) of the Criminal Code must be different from the assault that gives rise to the murder: Shand, at para. 134, citing R. v. Meiler (1999), 136 C.C.C. (3d) 11 (Ont. C.A.), at para. 48. In this case, it required proof of a more elaborate theory, one in which the appellant did not simply assault Mr. Fiedler, but assaulted him to steal his mother’s bank card and/or to obtain the PIN. The trial judge found this to be the case. In their closing submissions at trial, the Crown suggested that Mr. Fiedler may have been beaten for the PIN while he was alive in the trunk of Mr. Ahmed’s car. There was no evidence that this was the case.

[73] In his helpful submissions, Mr. Webb for the respondent concedes that the trial judge erred in his reliance on the unconstitutional language previously found in s. 229(c) of the Criminal Code. He further acknowledges that, had this been contained in a jury charge, a new trial would be required because there would be no way of knowing which route the jury took. However, in the context of this judge alone trial, the trial judge found that the Crown proved one of the subjective states of mind in s. 229(a) of the Criminal Code. Therefore, Mr. Webb submits that “there is no danger that the trial judge’s misstatement of the mens rea respecting s. 229(c) resulted in a conviction based on an unconstitutional standard.” In other words, the finding on s. 229(a) trumps the finding on s. 229(c), permitting the application of the curative proviso in s. 686(1)(b)(iii) of the Criminal Code.

[74] The appellant submits that the error was not minor, nor was it harmless. As Ms. Martin said in her oral submissions, the trial judge essentially said that the appellant killed Mr. Fiedler and that he “either meant it or didn’t mean it”, and we do not know whether he relied on the unconstitutional “ought to have known” standard. This submission is fortified by the trial judge’s ultimate finding at para. 106 of his reasons where he found the appellant guilty “either under s. 229(a) or s. 229(c) of the Code” (emphasis added), but not both.

[75] Strictly speaking, it is not necessary to address the respondent’s submission that the trial judge’s findings on s. 229(a) “trump” his application of s. 229(c). As explained above, the trial judge’s findings on the intent for murder in s. 229(a) are undermined by the manner in which he approached the after-the-fact conduct evidence. Thus, the trial judge’s reference to s. 229(c) must stand on its own. On its face, an unconstitutional version of the provision may have been applied. This would be fatal. Accordingly, I would not apply the curative proviso.

[76] I would allow the appeal on this basis and order a new trial.

(5) The Verdict Was Reasonable

[77] Lastly, the appellant submits that the verdict on second degree murder is unreasonable and cannot be supported by the evidence. This submission was predicated on the court finding that the after-the-fact conduct evidence was not probative of the appellant’s state of mind at the relevant times. As explained above, that body of evidence was admissible on the issue of intent. Consequently, I would not give effect to this ground of appeal.

E. Disposition

[78] I would allow the appeal, set aside the conviction, and order a new trial on the charge of second degree murder.

Released: November 15, 2024 “G.T.T.” “Gary Trotter J.A.” “I agree. L. Favreau J.A.” “I agree. S. Gomery J.A.”

Footnotes

[^1]: The appellant abandoned his sentence appeal. [^2]: As discussed below, Jeffery Caissey, a witness who testified at the trial, had been charged with the murder of Mr. Fiedler as well. The charges were withdrawn. Abdul-Azizi Ahmed, another witness who testified at the trial, was not formally charged but was given immunity from prosecution in exchange for his cooperation. [^3]: At trial, experienced counsel for Mr. Clifford acknowledged if Mr. Fiedler was alive at the time he was thrown from the bridge, this would have been sufficient to prove first degree murder. [^4]: At trial, the Crown initially alleged that it was Mr. Clifford who used the bank card at the ATM that morning. That position changed and the Crown ultimately submitted that it was the appellant. [^5]: Some of these items would appear to be duplicative, particularly items 4 (purchasing bleach) and 6 (using bleach), as well as items 5 (dismantling furniture) and 7 (burning furniture and a carpet). Nonetheless, it was for the trial judge to determine how much weight to attribute to these items of evidence, both individually and in combination. [^6]: The reference to the “Bobby” phone related to evidence concerning a drug dealer who it was suggested may have been involved in the events leading to Mr. Fiedler’s disappearance. [^7]: At trial, the defence addressed Mr. Fiedler’s weakened state as one of four reasonable explanations for his death, which the trial judge outlined at para. 100 of the decision. While the trial judge addressed three of the explanations in his analysis at para. 101, he appears to have omitted Mr. Fiedler’s weakened state as part of the discussion. This omission does not change my analysis given the alternative theories did not relate to his level of culpability. [^8]: This approach has been taken in the following decisions: see R. v. Teske (2005), 32 C.R. (6th) 103 (Ont. C.A.); R. v. Gagnon, 2006 MBCA 125, 208 Man. R. (2d) 213; and R. v. J.H., 2014 NLCA 25, 350 Nfld. & P.E.I.R. 47, at paras. 50-59. [^9]: The summary to this legislation states one of the objectives of the legislation is “to remove passages and repeal provisions that have been ruled unconstitutional by the Supreme Court of Canada.”

R. v. Tubic, 2024 ONCA 833

Case Summary