Her Majesty the Queen v. Fraser

Her Majesty the Queen v. Fraser Her Majesty the Queen v. Earhart et al. [Indexed as: R. v. Fraser]

56 O.R. (3d) 161

[2001] O.J. No. 4264

Docket Nos. C35017 and C26916

Court of Appeal for Ontario

Carthy, Weiler and Feldman JJ.A.

November 7, 2001

• Application for leave to appeal to the Supreme Court of Canada dismissed June 20, 2002 (Gonthier, Major and LeBel JJ.). S.C.C. File No. 29015. S.C.C. Bulletin, 2002, p. 950.

Criminal law -- Charge to jury -- After the fact conduct of guilt -- Consciousness of accused charged with second-degree murder -- Accused admitting he caused death and relying on alternative defences of extreme drunkenness negativing voluntariness of his actions and intoxication negativing the intent for murder -- Trial judge erred in instructing jury that evidence of flight could be used to determine if accused guilty of murder or manslaughter -- Flight irrelevant to actus reus as accused admitted causing victim's death and could not be used to decide whether he had requisite intent for murder as flight consistent with murder or manslaughter -- New trial ordered.

Criminal law -- Aiding and abetting -- Murder charge -- Trial judge erring in instructing jury that other parties could not be convicted of manslaughter if one party convicted of second- degree murder -- Party can be convicted of included offence if aids and abets commission of actus reus but lacked requisite intent for murder -- Crown not demonstrating to reasonable certainty that but for error verdict would not necessarily have been same -- Crown appeal against acquittal dismissed.

F, M and E were tried for second-degree murder. All three were involved in an altercation with the victim and fled the scene after the fight. F acknowledged that he stabbed the victim while the latter was fighting with M and relied on the defence of extreme intoxication negativing the voluntariness of his actions. Alternatively, F relied on the defence of intoxication relating to the requisite intent for murder. The Crown alleged that E and M were parties to the murder or, alternatively, that they were guilty of manslaughter. F was convicted as charged and E and M were acquitted. F appealed against his conviction, and the Crown appealed against the acquittals of E and M.

Held, F's appeal should be allowed; the Crown appeal should be dismissed.

The trial judge's charge pre-dated the decision of the Supreme Court of Canada in R. v. Lifchus and contained a number of deficiencies. The trial judge told the jury that reasonable doubt meant that they had to be "sure" of the guilt of the accused but he did not define the standard on which they had to be "sure", namely, that it was more than a balance of probabilities. The jury was not told that proof beyond a reasonable doubt is closer to absolute certainty than proof on the balance of probabilities. In addition, by repeatedly telling the jurors that proof beyond a reasonable doubt was a simple concept, the trial judge undermined its importance. The jury was not told that a reasonable doubt is based on evidence and common sense and that it is logically connected to the evidence or absence of evidence. However, it was not necessary to decide whether the charge, despite the deficiencies, substantially complied with the Lifchus principles, since the appeal should be allowed and a new tri al ordered on the basis of the trial judge's instruction in after-the-fact conduct.

The potential probative value of after-the-fact conduct depends on the factual context of the case, particularly the positions of the parties in relation to the issues in the case. The trial judge ought to have told the jury the issues to which the evidence of flight was relevant with respect to each accused. The trial judge told the jury that the evidence of flight was "just one piece of evidence" but he erroneously added that it could be used in deciding whether each of the accused persons was guilty of murder. This was misdirection. Given that F admitted that he stabbed the victim, the evidence of flight had no relevance with respect to the commission of the physical act, nor whether he was guilty of manslaughter or of second degree murder. As a result of the trial judge's misdirection respecting after-the-fact conduct, there was a danger that the jury might have erroneously reasoned that F fled because he committed murder as opposed to manslaughter. In the circumstances, the Crown had not met the burden of showing that, despite the error, there was no substantial wrong or miscarriage of justice. This error required that a new trial be ordered.

F argued that the learned trial judge erred in failing to instruct the jury to consider the entirety of the evidence when determining if he possessed the requisite intent for murder, rather than analyzing each defence separately. The jury should have been told that even if they rejected the defence position that the accused suffered from intoxication or extreme intoxication, they should still consider the evidence regarding his consumption of alcohol together with all of the other circumstances leading up to the offence when deciding if he had the intent required to convict of murder. This is sometimes referred to as the "rolled-up charge". For the guidance of the judge at the next trial, it would be preferable to give the rolled-up charge to ensure that the jury consider all factors which may have been relevant to the accused's intent at the time of the homicide.

The Crown's position at trial was that F intentionally killed the victim and that E and M were parties to the murder under s. 21(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46 because they aided and abetted F with subjective foresight of death. Alternatively, the Crown's position was that E and M aided and abetted F to commit an unlawful act from which serious bodily harm was objectively foreseeable, rendering them guilty of manslaughter. The trial judge erred in instructing the jury that they could not convict E and M of manslaughter if they convicted F of second-degree murder. A party can be convicted of a different offence than the principal if the party aids and abets the commission of the actus reus but lacks the required mens rea for the more serious offence. F was found guilty of second-degree murder, meaning that the jury concluded that he stabbed the victim with subjective foresight of death or that he meant to cause him bodily harm knowing that it was likely to cause death and was reckless whether death ensued or not. E or M could have been convicted of manslaughter if the jury had found that either of them aided and abetted the unlawful act and that non-trivial bodily harm was an objectively foreseeable consequence of that act but that they lacked the intent for murder. However, the Crown failed to discharge the onus of establishing with a reasonable degree of certainty that the verdict may well have been affected by the trial judge's error. Section 21(1)(b) and (c) of the Criminal Code require proof of a specific intent to aid and abet. The facts did not support the Crown's position that M beat the victim for the purpose of aiding and abetting F. It was F who intervened in the fight between M and the victim, not the reverse. There was no basis for finding that M did anything for the purpose of aiding and abetting F. As for E, he denied being involved in the fight, and the jury's verdict of not guilty of murder demonstrated that they were not satisfied beyond a reasonable doubt that he was involved in the fight.

APPEAL by accused from conviction for second-degree murder; APPEAL by Crown from acquittal on charges of second-degree murder.

R. v. Jackson, 1993 53 (SCC), [1993] 4 S.C.R. 573, 109 D.L.R. (4th) 318, 162 N.R. 113, 86 C.C.C. (3d) 385, 26 C.R. (4th) 178 (sub nom. R. v. Davy), apld Other cases referred to R. v. Allegretti, [1994] O.J. No. 172 (C.A.); R. v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129, 111 D.L.R. (4th) 48, 162 N.R. 280, 87 C.C.C. (3d) 289, 27 C.R. (4th) 1; R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, 195 Nfld. & P.E.I.R. 338, 192 D.L.R. (4th) 596, 262 N.R. 96, 586 A.P.R. 338, 149 C.C.C. (3d) 77, 38 C.R. (5th) 26 (sub nom. R. v. Avetysan (A.)); R. v. Beauchamp, 2000 SCC 54, [2000] 2 S.C.R. 720, 192 D.L.R. (4th) 577, 262 N.R. 119, 149 C.C.C. (3d) 58, 38 C.R. (5th) 11; R. v. Bob (1990), 1990 13299 (ON CA), 40 O.A.C. 184, 78 C.R. (3d) 102 (C.A.); R. v. Clow (1985), 1985 5974 (ON CA), 44 C.R. (3d) 228 (Ont. C.A.); R. v. Daviault, 1994 61 (SCC), [1994] 3 S.C.R. 63, 64 Q.A.C. 81, 118 D.L.R. (4th) 469, 173 N.R. 1, 24 C.R.R. (2d) 1, 93 C.C.C. (3d) 21, 33 C.R. (4th) 165; R. v. Desveaux (1986), 1986 153 (ON CA), 13 O.A.C. 1, 26 C.C.C. (3d) 88, 51 C.R. (3d) 173 (C.A.); R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, 118 Man. R. (2d) 218, 150 D.L.R. (4th) 733, 216 N.R. 215, 149 W.A.C. 218, [1997] 10 W.W.R. 570, 118 C.C.C. (3d) 1, 9 C.R. (5th) 1; R. v. MacKenzie, 1993 149 (SCC), [1993] 1 S.C.R. 212, 118 N.S.R. (2d) 290, 146 N.R. 321, 327 A.P.R. 290, 78 C.C.C. (3d) 193, 18 C.R. (4th) 133; R. v. MacKinnon (1999), 1999 1723 (ON CA), 43 O.R. (3d) 378, 132 C.C.C. (3d) 545 (C.A.); R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345, 30 O.A.C. 81, 88 N.R. 161, 44 C.C.C. (3d) 193, 66 C.R. (3d) 1; R. v. Mulligan (1997), 1997 995 (ON CA), 34 O.R. (3d) 212, 115 C.C.C. (3d) 559 (C.A.); R. v. Nealy (1986), 1986 4694 (ON CA), 17 O.A.C. 164, 30 C.C.C. (3d) 460, 54 C.R. (3d) 158 (C.A.); R. v. Peavoy (1997), 1997 3028 (ON CA), 34 O.R. (3d) 620, 117 C.C.C. (3d) 226, 9 C.R. (5th) 83 (C.A.); R. v. Rhee, 2001 SCC 71; R. v. Robinson, 1996 233 (SCC), [1996] 1 S.C.R. 683, 133 D.L.R. (4th) 42, 194 N.R. 181, [1996] 4 W.W.R. 609, 34 C.R.R. (2d) 205, 105 C.C.C. (3d) 97, 46 C.R. (4th) 1; R. v. Russell, 2000 SCC 55, [2000] 2 S.C.R. 731, 192 D.L.R. (4th) 585, 261 N.R. 339, [2001] 2 W.W.R. 407, 149 C.C.C. (3d) 66, 38 C.R. (5th) 1 (sub nom. R. v. Russell (M.E.)); R. v. Schell (2000), 2000 16917 (ON CA), 148 C.C.C. (3d) 219, 38 C.R. (5th) 165 (Ont. C.A.); R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, 148 Man. R. (2d) 161, 190 D.L.R. (4th) 591, 258 N.R. 250, 224 W.A.C. 161, [2000] 11 W.W.R. 1, 147 C.C.C. (3d) 449, 36 C.R. (5th) 1; R. v. Vezeau (1976), 1976 7 (SCC), [1977] 2 S.C.R. 277, 28 C.C.C. (2d) 81, 66 D.L.R. (3d) 418, 8 N.R. 235, 34 C.R.N.S. 309; R. v. White, 1998 789 (SCC), [1998] 2 S.C.R. 72, 39 O.R. (3d) 223n, 161 D.L.R. (4th) 590, 227 N.R. 326, 125 C.C.C. (3d) 385, 16 C.R. (5th) 199 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 21(1)(b), (c), 27

Jamie C. Klukach and John McInnes, for respondent/appellant. David M. Tanovich, for appellant. Fletcher Dawson, for respondent Donald Wayne Earhart. Julian Falconer and Bibhas Vaze, for respondent Ryan Kenneth Menard.

The judgment of the court was delivered by

WEILER J.A.: --

I. Introduction

[1] Peter Fraser and his two co-accused, Ryan Menard and Donald Earhart, were tried for second-degree murder with a judge and jury. Fraser was convicted as charged and the co- accused were acquitted. Killeen J. sentenced Fraser to life imprisonment with no parole for 15 years.

[2] Fraser appeals against his conviction on the basis of three alleged errors in the trial judge's instructions to the jury. He alleges error in (i) the reasonable doubt instruction, (ii) the after-the-fact conduct instruction and (iii) the refusal to give a "rolled-up" charge on the issue of intent. With respect to sentence, Fraser appeals the period of parole ineligibility imposed by the trial judge.

[3] The Crown appeals against the acquittals of Earhart and Menard on the basis that the trial judge erred by instructing the jury that they could not convict them of the lesser and included offence of manslaughter if they convicted the principal, Fraser, of second degree murder.

[4] I am of the opinion that, with respect to Fraser, the trial judge's instruction on after-the-fact conduct amounts to misdirection and I would quash the conviction and order a new trial on this basis. Although I will comment on the reasonable doubt issue and whether a rolled-up charge should have been given, it is not necessary for me to decide whether these errors in the charge would themselves give rise to a new trial and I do not propose to do so.

[5] I would dismiss the appeals from the acquittals of Menard and Earhart on the basis that the Crown has not demonstrated with a reasonable degree of certainty that the verdicts may well have been affected by the trial judge's error in the charge.

II. The Evidence and Arguments

[6] As a new trial must be ordered with respect to Fraser and the grounds of appeal relate to the charge to the jury, I will give only a bare outline of the evidence and the positions of the parties.

[7] In the early morning of March 18, 1995, Menard, Earhart and Fraser were involved in an altercation with the victim, Jamie Williamson, on the streets of downtown London, Ontario. After the fight, the three accused fled the scene, leaving Williamson fatally stabbed on the sidewalk. He died almost immediately.

[8] Some 23 witnesses testified at the trial. It was common ground that Menard was the first to get involved in the fight with Williamson. Fraser acknowledged that he stabbed Williamson while the latter was fighting with Menard and relied on the defence of extreme intoxication negativing the voluntariness of his actions. Alternatively, Fraser relied on the defence of intoxication relating to the requisite intent for murder. Menard relied on the defence of intoxication and self-defence. Earhart's position was that the Crown had failed to prove beyond a reasonable doubt that he was involved in the killing by participating in beating Williamson after he had fallen to the ground.

III. Fraser's Appeal

(i) Did the trial judge properly instruct the jury on reasonable doubt?

[9] The trial judge's charge pre-dated the decision of the Supreme Court in R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1, which settled the proper approach in explaining reasonable doubt to the jury.

[10] As stated by Arbour J. in her decision on behalf of the court in R. v. Rhee, 2001 SCC 71 at paras. 20-21:

The proper approach in explaining reasonable doubt to a jury was settled in Lifchus, where Cory J. summarized at paras. 36-37 that, while no specific set of words had to be adhered to, in substance the judge should convey to the jury the following:

-- the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;

-- the burden of proof rests on the prosecution throughout the trial and never shifts to the accused;

-- a reasonable doubt is not a doubt based upon sympathy or prejudice;

-- rather, it is based upon reason and common sense;

-- it is logically connected to the evidence or absence of evidence;

-- it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and

-- more is required than proof that the accused is probably guilty -- a jury which concludes only that the accused is probably guilty must acquit.

On the other hand, certain references to the required standard of proof should be avoided. For example:

-- describing the term "reasonable doubt" as an ordinary expression which has no special meaning in the criminal law context;

-- inviting jurors to apply to the task before them the same standard of proof that they apply to important, or even the most important, decisions in their own lives;

-- equating proof "beyond a reasonable doubt" to proof "to a moral certainty";

-- qualifying the word "doubt" with adjectives other than "reasonable", such as "serious", "substantial" or "haunting", which may mislead the jury; and

-- instructing jurors that they may convict if they are "sure" that the accused is guilty, before providing them with a proper definition as to the meaning of the words "beyond a reasonable doubt".

The applicability of these guidelines to jury instructions delivered before Lifchus was addressed in Russell, Avetysan, Starr and Beauchamp, all supra. [See Note 1 at end of document] The majority of this Court in Starr held that "[a] court reviewing a pre-Lifchus jury charge must examine it to make sure that it was in substantial compliance with the principles set out in that case" (para. 237). Appellate review of a charge to the jury is not a mechanical task, but rather an assessment of whether the deficiencies in the charge, as compared to the Lifchus standard, cause serious concern about the jury's verdict. However, the failure of such charges to reflect Lifchus principles "cannot be taken to raise by that alone the spectre of an unfair trial or miscarriage of justice" (Russell, supra, at para. 24). Rather, the key question to ask is whether the charge in question substantially complies with the principles expressed in Lifchus, so that, as a whole, it does not give rise to the reasonable likelihood that the jury misunderstood the correct standard of proof.

(Footnote added)

[11] In this case, the trial judge charged the jury on reasonable doubt in accordance with the manner in which reasonable doubt is defined in the United Kingdom. He told the jurors that reasonable doubt meant they must each be "sure" of the guilt of the accused as follows:

In a criminal case, the accused is presumed to be innocent until the crown has proven his or her guilt beyond a reasonable doubt. That is, the crown must prove the guilt of the accused and it is not for the accused to prove his innocence, not at all. If the crown fails to prove guilt beyond a reasonable doubt on the charge before the court against one or all accused, then you must acquit. Must, not may, because that burden of proof on guilt or innocence remains throughout on the crown, and there's no corresponding obligation on the accused person to prove anything.

Now, you will ask, what does proof beyond a reasonable doubt mean?

Mr. Libis, during his remarks, helpfully pointed out, I thought, that you should approach that phrase, proof beyond a reasonable doubt, in a common sense way. That standard of proof resting upon the crown, proof beyond a reasonable doubt, is couched in very simple common sense language that any juror, I think, instinctively understands.

It's dangerous to define in other language because of its simplicity and because jurors, I think, have instinctively understood how to apply it in a criminal case through the centuries of its use. And it has been used by juries for hundreds of years throughout the Commonwealth world.

Let me give you an analogy for how to approach a case using the standard of proof beyond a reasonable doubt. Ask yourselves this question, having anxiously considered the evidence and made your findings of fact, "Am I sure, am I sure on this evidence that the accused is guilty as charged?" If your answer is yes, I am sure on this evidence that he is guilty as charged, then you are satisfied beyond a reasonable doubt. If you are not sure, then you have a reasonable doubt and you must acquit. It's as simple as that. We don't need to get into a philosophical examination of a simple standard of proof, a heavy standard of proof, but a simple one, proof beyond a reasonable doubt, remembering that that proof standard applies to the Crown. They must satisfy you, each one of you, beyond a reasonable doubt on the evidence in this case, that the accused persons are guilty as charged on the evidence.

You should remember that proof beyond a reasonable doubt does not mean proof to an absolute certainty, because there is virtually nothing in human affairs where absolute certainty can be established. But having said that proof beyond a reasonable doubt does not mean proof to absolute certainty, I say it is a high standard and you can analogize it to the answer to the question "Am I sure on this evidence that the accused is guilty as charged?" And if your answer is "yes, I am sure", convict; "no, I am not sure", acquit.

[12] The trial judge did tell the jurors that proof beyond a reasonable doubt did not mean proof to an absolute certainty. He also told the jury it was a "high standard". However, at this point in his charge, the trial judge did not define for the jurors the standard on which they must be "sure"; namely, that it was more than a balance of probabilities. Later, when instructing the jury on the defence of intoxication and the defence burden of proof on a balance of probabilities, the trial judge did explain:

Proof on a balance of probabilities is less than proof beyond a reasonable doubt. It means that the accused must satisfy you, must persuade you that it is more probably true than not that at the time of the killing, Fraser did not have an operating mind. If he fails to satisfy you on the evidence according to that lesser standard of proof, more probable than not, as I have explained it to you, then you must reject this defence.

[13] The jury would not necessarily have juxtaposed the trial judge's later comments concerning the accused's burden of proof on a balance of probabilities with the earlier instruction the trial judge gave concerning the Crown's burden of proof. Nor was the jury told that proof beyond a reasonable doubt is closer to absolute certainty than proof on the balance of probabilities. In addition, by repeatedly telling the jurors that proof beyond a reasonable doubt was a simple concept, the trial judge undermined its importance. The trial judge's references to juries instinctively understanding the concept and instinctively understanding how to apply the concept in a criminal case suggested that the standard was subjective, not objective. In addition, the jury was not told that a reasonable doubt is based on reason and common sense and that it is logically connected to the evidence or absence of evidence.

[14] The deficiencies in the instructions to the jury on reasonable doubt are serious. Appellate assessment as to whether, despite these deficiencies, the charge substantially complies with the Lifchus principles requires a judgment call as to whether the deficiencies cause serious concerns about the validity of the jury's verdict and lead to the conclusion the accused did not have a fair trial: Russell, supra, at para. 23. In this case, I need not make that judgment call because, as indicated, I would order a new trial on the next ground of appeal. I also note that Earhart and Menard were acquitted and, in respect to them, the jury appears to have understood the correct standard of proof.

(ii) Did the trial judge err in the manner in which he instructed the jury on the appellant's after-the-fact conduct?

[15] After summarizing the evidence in his charge, the trial judge instructed the jury:

So, roughly there is the evidence of the alleged flight, if you find it to be flight. As I say, if you find it to be flight and not just panic by young people who became scared or upset and unthinkingly moved away from this area in an emotional state, if you find that there was intentional flight, then it is open to you to use that as consciousness of guilt against one or every one of the accused depending on your approach to what each one of them did. I re-emphasize, someone might well attempt to flee out of fear and not out of consciousness of guilt, or for some other reason that has absolutely nothing to do with consciousness of guilt, and so you should carefully consider the circumstances surrounding the movements of these three young men after they left the scene of the alleged crime, to decide whether or not this conduct should be used by you as consciousness of guilt.

You must keep in mind that any inference you draw to that effect, that the flight was to evade the consequences of an offence, is not by itself sufficient to prove the guilt of any of the accused. It is just one piece of evidence that you can make use of in deciding, if you want to make use of it, whether each of the accused persons is guilty as charged.

[16] At the time the trial judge charged the jury, he did not have the benefit of R. v. Peavoy (1997), 1997 3028 (ON CA), 34 O.R. (3d) 620, 117 C.C.C. (3d) 226 (C.A.); R. v. White, 1998 789 (SCC), [1998] 2 S.C.R. 72, 125 C.C.C. (3d) 385; R. v. MacKinnon (1999), 1999 1723 (ON CA), 43 O.R. (3d) 378, 132 C.C.C. (3d) 545 (C.A.). These cases indicate that the potential probative value of after-the-fact conduct depends on the factual context of the case and, in particular, the positions of the parties in relation to the issues in the case: Peavoy, supra, at para. 25; White, supra, at para. 26; MacKinnon, supra, at para. 14. Thus, in relation to each accused, the trial judge ought to have told the jury the issues to which the evidence of flight was relevant. After-the-fact conduct is a type of circumstantial evidence. The trial judge did tell the jury that the evidence of flight was "just one piece of evidence". Unfortunately, the trial judge went on to say that the jury could use this evidence in deciding "whether each of the accused persons is guilty as charged". This was misdirection.

[17] Given that Fraser admitted he stabbed Williamson, the evidence of flight has no relevance with respect to the commission of the physical act. [See Note 2 at end of document] Nor does this evidence help in determining Fraser's level of culpability, that is, whether he is guilty of manslaughter or second degree murder: R. v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129, 87 C.C.C. (3d) 289. Unlike the situation in Arcangioli, Fraser did not admit culpability for any act. He did, however, commit the act that resulted in death. As such, one could, as a matter of human experience or logic, view the evidence that Fraser fled the scene as being more consistent with his having committed a culpable act than with a non-culpable act: see Peavoy, supra, at paras. 29-30; MacKinnon, supra, at para. 14; R. v. Schell (2000), 2000 16917 (ON CA), 148 C.C.C. (3d) 219 at paras. 37-42, 38 C.R. (5th) 165 (Ont. C.A.). The evidence is also relevant to rebut the defences put forward by Fraser based on his alleged absence of any culpable mental state: see Peavoy, supra, at para. 31; R. v. Mulligan (1997), 1997 995 (ON CA), 34 O.R. (3d) 212, 115 C.C.C. (3d) 559 at paras. 28-29 (C.A.). The defence contended that the Crown had not proven the requisite mental state for murder due to Fraser's drinking throughout the day and his intoxication at the time of the killing. The evidence of Fraser's flight could be used in support of the inference that, despite his intoxication, he was functioning cognitively and his flight was purposeful conduct that could be viewed as antithetical to intoxication. This evidence is capable of supporting an inference that Fraser had a particular state of mind: MacKinnon, supra, at para. 14, citing White, supra, at paras. 24-32. Unfortunately, the trial judge did not direct the jury as to the proper use to which the evidence of after-the-fact conduct could be put.

[18] As a result of the trial judge's misdirection respecting after-the-fact conduct, there is a danger that the jury might erroneously reason that Fraser fled because he committed murder as opposed to manslaughter. In these circumstances, the Crown has not met the burden of showing that, despite the error, there would be no substantial wrong or miscarriage of justice. There is a reasonable possibility that the verdict would have been different absent the error. This is particularly so in light [of] the cumulative effect of the error with respect to the issue of reasonable doubt. Accordingly, the appeal must be allowed.

(iii) Did the trial judge err in not providing a "rolled-up charge" on the issue of intent?

[19] For the benefit of the judge presiding at the new trial, and assuming the evidence at that trial is similar to the evidence at the first trial, I will deal with this issue briefly.

[20] Fraser testified that he had no recollection of what had happened due to his intoxication. His defence was that his actions in stabbing Williamson were involuntary due to intoxication: see R. v. Daviault, 1994 61 (SCC), [1994] 3 S.C.R. 63, 93 C.C.C. (3d) 21. A second defence based on intoxication was also put forward; namely, that due to intoxication he lacked the necessary intent to commit murder: see R. v. Robinson, 1996 233 (SCC), [1996] 1 S.C.R. 683, 105 C.C.C. (3d) 97.

[21] At the conclusion of the trial, defence counsel requested that the trial judge provide a "rolled-up" charge on the issue of intent in his pre-charge submissions. In his closing submissions to the jury, defence counsel submitted that the jury was entitled to acquit the appellant pursuant to s. 27 of the Criminal Code, R.S.C. 1985, c. C-46, which deals with the defence of others. This section allows a person to use as much force as is reasonably necessary to prevent the commission of an offence on oneself or a nearby person. On the evidence at this trial, the trial judge properly told the jury that this defence had no application to this case. Fraser's evidence was that he could not remember what had happened. On the evidence, Fraser could not have believed it was necessary for him to intervene to prevent the commission of a crime. Furthermore, the fight between Menard and Williamson was, on the evidence, a consensual fight. There was no offence being committed for which a person might have bee n arrested without a warrant until Fraser intervened. A pre-condition to the use of force under s. 27 is that the accused person believes on reasonable grounds that an offence is being committed for which a person might be arrested without a warrant.

[22] In telling the jury that the defence did not apply, the trial judge focused on whether a crime, as opposed to a consensual fight, was taking place. He told the jury:

There is no evidence in this case that Mr. Williamson was an aggressor or that he assaulted or was intending to assault anyone.

This is not entirely accurate. There is evidence that Menard was the aggressor when an initial exchange of blows between Williamson and Menard took place. Fraser broke up that initial exchange. There is further evidence that, following this, Menard, Fraser, and Earhart walked away from Williamson and around the corner of the street, and that Williamson came after them saying "Let's go. Let's go." Williamson also is alleged to have said something about getting the Outlaws. The fight between Williamson and Menard then resumed and was, on the evidence, a consensual fight at that point. Menard was losing the fight badly when Fraser intervened and stabbed Williamson. There was some evidence that, notwithstanding this, Williamson continued to beat Menard and that, seeing this, Fraser intervened and again stabbed Williamson. In all, Williamson received a total of ten stab wounds.

[23] The trial judge correctly charged the jury with respect to the Daviault defence. He also told them that, if they rejected that defence, they were to go on and consider the Robinson defence. He did not, however, tell the jury what evidence was relevant on the issue of intent if they rejected the Robinson defence. The trial judge told the jury at various points "to consider all the surrounding circumstances to the events in the case" and "to consider all the evidence and all the circumstances surrounding the stabbing acts", the evidence of intoxication "and the other factors bearing on Fraser's mental state".

[24] The Crown submits that, in the circumstances of this case, there were no defences other than intoxication and that the rolled-up charge did not have to be given. Self-defence was not an issue. Defence of others had no foundation in the evidence. Any provocation by Williamson was not directed at Fraser and, in any event, Fraser did not intervene in the heat of the moment after these comments were made.

[25] The purpose of a rolled-up charge is, however, to bring to the attention of the jury evidence linking the evidence of intoxication with other evidence on the issue of intent: Robinson, supra. Ordinarily, evidence that has a bearing on the issue of intent will already have been raised by way of a justification defence such as self-defence, or there may be evidence of provocation directed towards the accused. See e.g. Robinson, supra; Schell, supra; R. v. Allegretti, [1994] O.J. No. 172 (C.A.); R. v. Clow (1985), 1985 5974 (ON CA), 44 C.R. (3d) 228 (Ont. C.A.); R. v. Bob (1990), 1990 13299 (ON CA), 78 C.R. (3d) 102, 40 O.A.C. 184 (C.A.); R. v. Nealy (1986), 1986 4694 (ON CA), 30 C.C.C. (3d) 460, 17 O.A.C. 164 (C.A.); R. v. Desveaux (1986), 1986 153 (ON CA), 26 C.C.C. (3d) 88, 13 O.A.C. 1 (C.A.). While the jury may have rejected each individual defence, they may still have a reasonable doubt about the accused's intent to commit murder having regard to the cumulative effect of the evidence as a whole. The purpose of a rolled-up charge is to prevent the jury from compartmentalizing the evidence and to draw to the jury's attention those pieces of evidence that have a bearing on intent so that they may assess its cumulative effect. The cumulative effect of the evidence bearing on intent may result in the verdict being one of manslaughter as opposed to murder.

[26] Because the charge was second degree murder, it was incumbent on the trial judge to instruct the jury on the circumstances that had a bearing on Fraser's intent when he stabbed Williamson. The trial judge did tell the jury in his charge to consider the factors bearing on Fraser's mental state. At the very least, it would have been preferable for the trial judge to have instructed the jury that, with respect to the issue of intent for murder, even if they rejected the Daviault and Robinson defences, they should consider the evidence of Fraser's alcohol consumption together with Fraser's earlier intervention in breaking up the fight between Menard and Williamson, the confrontational nature of the second incident, its spontaneity, the fact Menard was being badly beaten, the number of times Fraser stabbed Williamson and the location of the wounds. As stated in Nealy, supra, at pp. 468-69 C.C.C., it will be preferable in most cases, and essential in some, for the trial judge to give a rolled-up charge bringing to the jury's mind the pertinent facts in resolving the issue of intent. It would have been preferable for the trial judge to have done so in this case.

IV. Conclusion with Respect to Fraser's Appeal

[27] I would allow the appeal as to conviction, set aside the verdict of guilty to the charge of second degree murder and order a new trial. Inasmuch as I would order a new trial, it is not necessary to consider the issue raised with respect to sentence, namely, the period of parole ineligibility.

V. The Crown Appeals Respecting Earhart and Menard

(i) The trial judge's incorrect instruction on available verdict

[28] The Crown's position at trial was that Fraser intentionally killed Williamson and that the respondents aided and abetted him with subjective foresight of death thereby being parties to the murder under s. 21(1)(b) and (c) of the Criminal Code. Alternatively, even if there was a reasonable doubt about subjective foresight of death, the Crown's position was that the respondents aided and abetted Fraser to commit an unlawful act from which serious bodily harm was objectively foreseeable and that they were therefore guilty of manslaughter.

[29] After defining the elements of party liability for murder under s. 21(1) and giving a summary of the positions of the Crown and the defence on the application of s. 21(1), the trial judge concluded as follows:

Now, if you find Menard not guilty of aiding and abetting Fraser in the commission of second degree murder, either because you conclude that he did not factually aid and abet him, or because he, Menard, did not have the requisite intention at the time of the stabbing based on all the evidence, including the evidence going to his state of intoxication or because you have a reasonable doubt on these issues of aiding and abetting or intent, you must go on to consider whether he can be convicted of manslaughter as an aider and abettor. Now this last option would, I emphasize, only arise if you found the co-accused, Fraser, guilty of manslaughter and not second degree murder.

I'll repeat that, you can only consider this option, this last option, if you found Fraser guilty of manslaughter and not second degree murder.

(Emphasis added)

[30] The trial judge told the jury to apply the same instruction to the respondent Earhart. Toward the end of the charge, he summarized the possible verdicts and said this:

If you find Fraser guilty of second degree murder, the verdicts open to Menard are as follows: if you are satisfied beyond a reasonable doubt that Menard aided and abetted Fraser in second degree murder, including rejecting the defence of lower level intoxication, you should find Menard guilty as charged. If you have a reasonable doubt about whether Menard aided and abetted Fraser in second degree murder, you should find him not guilty as charged. If you find him not guilty as charged, you must consider whether he is guilty or not guilty of aiding and abetting manslaughter, but only if you have convicted Fraser of manslaughter as well.

As to Earhart, the verdict considerations are the same as for Menard, but remember, he has not raised a defence of lower level drunkenness as has Menard.

(Emphasis added)

[31] At the conclusion of the charge, all counsel were given an opportunity to voice objections. After counsel for Earhart voiced various objections, Mr. Royle, counsel for Fraser, entered several objections, one of which was stated in the following terms:

Also, I object to the fashion in which Your Honour linked the liability of Menard to the issue of whether, of what Fraser's liability was, specifically, Your Honour instructed the jury that if Fraser was only convicted of manslaughter, that they couldn't convict Menard of any higher offence.

That's the highest result that can happen for Menard in terms of his liability, or alternatively, Fraser's liability reduces Menard's liability. Now, in my submission, Your Honour, it is incumbent on you to instruct the jury that they must consider the potential liability of each accused independently of one another. It is conceivable, perfectly conceivable, that a sober man intending certain consequences could assist a drunk man, who is incapable of forming any intent. In other words, it's available to the jury to find Peter Fraser not guilty or guilty of manslaughter because of his state of drunkenness, and still find that Mr. Menard intended to, fully intended to assist a drunken man in carrying out either an unlawful act or carry out a killing, a murder.

[32] Counsel for Menard voiced a number of objections and criticized the "charge as a whole as it related to Mr. Menard and the issue of specific intent and the issue of aiding and abetting as between murder, manslaughter and acquittal". Mr. Libis, on behalf of Earhart, adopted the other objections raised by counsel as it related to his client. When Crown counsel was given an opportunity to object and to respond to defence objections, he stated:

The one issue raised by Mr. Royle that I agree is one that must be addressed is his ninth point about linking the liability of Menard or Earhart to Fraser's liability. Your Honour said to the jury that . . . the only way you consider . . . whether [Menard is] guilty of manslaughter, is if Fraser has been found guilty of manslaughter, and Your Honour made it clear that if you acquit Fraser altogether, that is accept the automaton defence, then you acquit everyone. And in my submission, the liability of each accused does not depend on the findings made with respect to the others, and I point specifically with respect to, Your Honour, what you were saying to the jury was, the only way you consider Menard on manslaughter is if you have found Fraser guilty only of manslaughter, and in my submission, I agree with Mr. Royle that they're completely independent.

[33] Crown counsel went on to quote McLachlin J. in R. v. Davy (indexed as R. v. Jackson, 1993 53 (SCC), [1993] 4 S.C.R. 573, 86 C.C.C. (3d) 385), hereinafter Jackson, where she said, at para. 21 [at p. 583 S.C.R.]:

[A] person may be convicted of manslaughter who aids or abets another person in the offence of murder, where a reasonable person in all the circumstances would have appreciated that bodily harm was the foreseeable consequence of the dangerous act which was being undertaken.

[34] In conclusion, Crown counsel stated:

[I]t seems clear, if that's the law, that if the jury were to find Fraser guilty of murder, on the basis that he intended to kill, and they're considering Menard or in fact Earhart's involvement as an aider or abettor, if they had a reasonable doubt as to whether . . . Menard had the intent to kill or intent to cause bodily harm likely to cause death and recklessness, if they had a reasonable doubt on that, but they concluded in the words of Madam Justice McLachlin that he was aiding and abetting and a reasonable person would have appreciated that bodily harm is the foreseeable consequence, then in my submission, he can be found guilty of manslaughter, as could Earhart.

The trial judge did not re-charge the jury on this point.

[35] The passage read to the trial judge from Jackson, supra, holds that a party can be convicted of a different offence [from] the principal if the party aids and abets the commission of the actus reus but lacks the required mens rea for the more serious offence. In the present case, Fraser was found guilty of second degree murder and the jury therefore concluded that he stabbed Williamson with subjective foresight of death or that he meant to cause him bodily harm and was reckless whether death ensued or not. The Supreme Court of Canada decided in Jackson that a verdict of manslaughter is available in this situation if the jury finds that the parties aided and abetted the unlawful act and that non-trivial bodily harm was an objectively foreseeable consequence of that act but that the parties lacked the intent for murder. In addition to the quote brought to the attention of the trial judge and referred to above, the unanimous court stated at paras. 17-21 [a t pp. 581-83 S.C.R.]:

I turn first to Davy's potential liability for manslaughter as an aider and abettor under s. 21(1)(b) and (c). A person is a party to an offence if he or she aids or abets the commission of it. In this case, Jackson committed the offence of murder. It was open on the evidence for the jury to find that Davy aided and abetted him in that offence, and is guilty under s. 21(1)(b) and (c) of the Criminal Code. If he possessed the necessary mens rea for murder he could be guilty of murder. In the event that the jury did not find the intent required for murder, the question arises whether and in what circumstances Davy could be convicted under s. 21(1) for the lesser offence of manslaughter.

I agree with the Court of Appeal that the jury could have convicted Davy of manslaughter under these sections while convicting Jackson of murder.

[A] person may be convicted of manslaughter who aids and abets another person in the offence of murder, where a reasonable person in all the circumstances would have appreciated that bodily harm was the foreseeable consequence of the dangerous act which was being undertaken. I further conclude that Davy might fall within this rule on the evidence presented at trial.

[36] In order to succeed on this appeal, however, the Crown must establish more than an error of law. The Crown is required to demonstrate with a reasonable degree of certainty that the outcome may well have been affected by the error: R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345, 44 C.C.C. (3d) 193 at para. 80; R. v. Vezeau (1976), 1976 7 (SCC), [1977] 2 S.C.R. 277, 28 C.C.C. (2d) 81; R. v. MacKenzie, 1993 149 (SCC), [1993] 1 S.C.R. 212, 78 C.C.C. (3d) 193. In Morin, supra, at paras. 79-80 [at p. 374 S.C.R.], Sopinka J. explained:

It is the duty of the Crown to satisfy the court that the verdict would not necessarily have been the same if the jury had been properly instructed.

I am prepared to accept that the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty. An accused who has been acquitted once should not be sent back to be tried again unless it appears that the error at the first trial was such that there is a reasonable degree of certainty that the outcome may well have been affected by it. Any more stringent test would require an appellate court to predict with certainty what happened in the jury room. That it cannot do.

[37] The error in this charge had the effect of removing an available verdict from the jury's consideration. Consequently, the Crown submits that the error "may well have affected" the result.

[38] While deliberating, the jury requested definitions of murder and manslaughter. Before responding to the inquiry, the trial judge sought the assistance of counsel. At that point, the Crown had a further opportunity to ask the judge to correct his error with respect to the availability of the verdict of manslaughter in relation to Earhart and Menard. The fact that the Crown omitted to do so is, in my opinion, a strong suggestion that the Crown did not consider the verdict of manslaughter a likely verdict. Nevertheless, I will address the Crown's submissions.

[39] The respondent Earhart concedes that the learned trial judge erred in instructing the jury as he did on this issue. He contends, however, that the Crown has not discharged the onus of establishing with a reasonable degree of certainty that the outcome may well have been affected by the error. The issue with respect to Earhart was whether he had participated in the fight. The jury's verdict of not guilty of murder demonstrates that the jury was not satisfied beyond a reasonable doubt that Earhart was involved in the fight. The Crown has not discharged its burden of proof in relation to Earhart.

[40] The respondent Menard also concedes that the trial judge erroneously instructed the jury with respect to party liability for manslaughter where the principal is convicted of murder. On the particular facts of this case, however, Menard submits manslaughter was an unlikely verdict and the Crown has not discharged its onus to establish with a reasonable degree of certainty that the verdict may well have been affected by the error.

[41] The Crown submits there was a reasonable basis on which to infer that Menard was well aware of what Fraser was doing and that Menard knew that Williamson had been stabbed by Fraser when Williamson fell to the sidewalk and Menard continued to beat him.

[42] Section 21(1)(b) and (c) require proof of a specific intent to aid and abet. The facts do not support the Crown's position that Menard beat Williamson for the purpose of aiding and abetting Fraser. It was Fraser who intervened in the fight between Menard and Williamson, not the reverse. There was simply no basis for finding that Menard did anything for the purpose of aiding and abetting Fraser.

[43] Accordingly, I would dismiss the appeal against both respondents on the basis that the Crown has not discharged the onus of establishing with a reasonable degree of certainty that the outcome may well have been affected by the error.

(ii) Appellate delay

[44] In view of my conclusion above, it is unnecessary to consider this ground of appeal and I do not propose to do so.

V. Conclusion Respecting the Crown's Appeal

[45] For these reasons, I would dismiss the Crown's appeal in relation to Earhart and Menard on the basis that, although there were errors in the charge, the Crown has not discharged its onus of showing with a reasonable degree of certainty that the trial judge's error in his charge may well have affected the outcome.

Accused's appeal allowed; Crown's appeal dismissed.

Notes

Note 1: R. v. Russell, 2000 SCC 55, [2000] 2 S.C.R. 731, 149 C.C.C. (3d) 66; R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, 149 C.C.C. (3d) 77; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, 147 C.C.C. (3d) 449; R. v. Beauchamp, 2000 SCC 54, [2000] 2 S.C.R. 720, 149 C.C.C. (3d) 58.

Note 2: Earhart's participation in the killing was in issue. Insofar as he was concerned, the evidence of flight was a piece of circumstantial evidence that would have assisted the jury in determining whether he was merely an innocent bystander or whether he was one of the persons who kicked Williamson after he had been stabbed and fell to the ground.