DATE: 20031120

DOCKET: C32339

COURT OF APPEAL FOR ONTARIO

DOHERTY, GOUDGE and CRONK JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Appellant

Susan Ficek

for the appellant

• and -

JESSE WATKINS

James Lockyer

for the respondent

Respondent

Heard: October 22, 2003

On appeal from the acquittal entered by Justice B. Glass, of the Superior Court of Justice, sitting with a jury, dated May 6, 1999.

DOHERTY J.A.:

I

[1] The respondent was charged with first degree murder. At the end of the Crown’s case, the trial judge directed a verdict of not guilty on first degree murder and the trial proceeded on a charge of second degree murder. The respondent testified and called other evidence. The jury acquitted and the Crown appeals from that acquittal.

[2] The Crown alleges that the trial judge erred in law by:

• excluding the evidence of the respondent’s former girlfriend;
• permitting the defence to elicit inadmissible hearsay in the course of the cross-examination of the deceased’s sister to the effect that the deceased had written letters in which she had threatened suicide; and
• failing to instruct the jury on the definition of murder in s. 229(a)(ii) of the Criminal Code.

[3] The first of these alleged errors was the centrepiece of the Crown’s appeal.

[4] I would dismiss the appeal. In my view:

• the trial judge did not err in excluding the evidence of the respondent’s former girlfriend;
• the impugned cross-examination of the deceased’s sister was proper. The trial judge could have given a limiting instruction as to the use of the evidence adduced in that cross-examination, but his failure to do so does not amount to reversible error; and
• the trial judge should have instructed the jury on s. 229(a)(ii) when defining murder, especially given the Crown’s express request that he do so, however, this non-direction did not amount to reversible error.

II

[5] Laurie Anne White (the deceased) aged 20 was found by her mother lying on the deceased’s bedroom floor with an electrical cord tied tightly around her neck. A kitchen chair lay on the bedroom floor nearby. The cord was hung over her bedroom door. It had apparently snapped and the detached end of the cord was found wrapped around the outside doorknob of the deceased’s bedroom door. There were no signs of forced entry or struggle. Initially, the police believed that the deceased had committed suicide. Further investigation eventually led to the arrest of the respondent on a charge of murder.

[6] The deceased and the respondent had been involved in a romantic relationship. There had been difficulties in the relationship and the two had broken up more than once only to get back together again. Shortly before she died, the deceased had decided to terminate the relationship for good and had started to see someone else. On the day she died, the deceased and the respondent had gone to her home so that the respondent could retrieve some of his clothing that he had left there. It was the Crown’s position that the respondent and the deceased argued. The respondent could not accept that the deceased did not want to see him anymore and as had happened in the past, he became violent. This time, however, he killed her. The Crown contended that the respondent strangled the deceased manually, or with an electrical cord, or with a combination of the two. The Crown further argued that the respondent attempted to make it look as though the deceased had committed suicide by tying the electrical cord around her own neck, running it over the bedroom door, tying it to the outside doorknob of the door, standing on a chair inside the bedroom, and kicking the chair away. The Crown argued that the respondent put the electrical cord around the deceased’s neck either while strangling her or after he had strangled her. He staged the suicide by placing her prone body by the door and putting a chair on the floor near her body. He then ran the electrical cord over the door, stepped into the hallway, closed the door, pulled on the cord from the outside of the door until it broke, and wrapped the broken end around the outside doorknob. He then left the house and went to a friend’s to establish his alibi.

[7] It was the position of the defence that although the respondent and the deceased were together on the afternoon she died, the respondent had nothing to do with her death. The defence contended that the initial assessment made by the police was correct and that the deceased had hung herself.

[8] The outcome of the trial turned on whether the Crown could prove beyond a reasonable doubt that the deceased had been strangled and had not hanged herself. There was no suggestion that if the deceased was strangled, someone other than the respondent had strangled her.

III

[9] The case for the Crown rested on evidence of opportunity, motive, expert forensic evidence and an alleged confession by the respondent to a friend a few days after the deceased’s death. The evidence of opportunity came from the respondent. He told the police on the night the deceased died that he had been with her at her home that afternoon. He said that they had quarrelled and that she had told him to leave. He went to a friend’s house and learned of the deceased’s death later that evening.

[10] While the defence acknowledged opportunity, it contended that the respondent’s conduct on the day the deceased died was inconsistent with his having killed her. The respondent went to the police on his own the night the deceased died and provided the police with a full description of the day’s events. There was also considerable evidence that the respondent was genuinely distraught and became physically ill when he learned of the deceased’s death. The respondent also relied on the evidence of the several phone calls he placed to the deceased after he left her home that afternoon. Tapes of the messages he left indicated that the respondent was becoming increasingly angry when the deceased did not return his calls. The defence contended that this was inconsistent with the allegation that the respondent knew the deceased was dead.

[11] The evidence of motive came from various relatives and friends of the deceased, including her sister Lisa, and from numerous statements made by the deceased, which the trial judge admitted into evidence. This evidence painted the respondent as a jealous, possessive, assaultive, dominating boyfriend who went to extreme and even criminal lengths to control the deceased. He would not accept her decision to end their relationship. The Crown contended that this body of evidence provided strong evidence of animus towards the deceased and established that the respondent had a motive to kill the deceased on the day she died.

[12] The defence addressed the evidence of motive. The respondent acknowledged that his relationship with the deceased was intense and tumultuous. They often argued, but inevitably made up. During the arguments, they were prone to histrionic and childish behaviour which went so far as to include non-genuine threats of suicide by both of them. The respondent accepted that his relationship with the deceased was far from perfect and that both he and the deceased had acted inappropriately at times, but he denied ever physically assaulting the deceased. The defence also took issue with several of the specific events relied on by the Crown to establish animus and motive. There was evidence adduced by the defence from which the jury could conclude that some of these events had not occurred as described in the case for the Crown.

[13] The forensic evidence relied on by the Crown came from two pathologists and Mr. John Mustard, a forensic engineer. I need not detail the evidence of the pathologists. It is sufficient to note that they observed certain features on the body which are not commonly associated with suicide, but did not exclude suicide. The evidence of the pathologists standing alone could not support the Crown’s contention that the deceased was strangled and had not hanged herself.

[14] The defence also called a pathologist. He challenged the evidence offered by the pathologist called by the Crown as it related to the factors which they identified as inconsistent with death by hanging. In his opinion, the injuries to the deceased in the absence of any sign of a struggle or defensive injuries, were consistent with self-inflicted ligature hanging.

[15] Mr. Mustard’s evidence was crucial to the Crown’s case. Mr. Mustard’s opinion that the deceased had not hanged herself rested primarily on two conclusions. Based on his observations of markings on the door, paint marks on the electrical cord, and the location where the cord had snapped, Mr. Mustard concluded that the cord had snapped on the outside of the door. This was consistent with the cord having been pulled from the outside of the door and not with the deceased having stepped off a chair with the cord around her neck on the inside of the door. Mr. Mustard was also of the opinion, based on his observations of where the cord had snapped and marks on the door, that the cord could not have been tied around the outside door knob when it snapped. If either or both of these opinions were accepted by the jury, they compelled the conclusion that the deceased had not hanged herself.

[16] The defence made an all out attack on the evidence of Mr. Mustard. That attack included challenges to his methodology and findings in this case and suggestions that Mr. Mustard was generally predisposed to support the position of the police and the Crown when he conducted his investigations. In the course of the cross-examination, Mr. Mustard agreed that the groove in the door apparently made by the cord was significantly deeper than one would expect according to his theory of a single strong pull. Mr. Mustard also agreed that his theory could not account for the position of the deceased’s body when she was found by her mother. The deceased was found face down with her feet almost against the door and her head perpendicular to the door. On Mr. Mustard’s theory, the deceased was jerked forward into a sitting position when the respondent pulled on the cord before it snapped. Mr. Mustard conceded that it would be impossible for the deceased to fall into the position in which she was found if his theory was correct. He indicated that he did not know how a body might move in the final seconds of life. Mr. Mustard also conceded that he had made no attempt to try and recreate the homicide as he hypothesized it had occurred.

[17] The defence (and the trial judge) also made much of Mr. Mustard’s failure to disclose to the defence that he had disassembled and examined the outside doorknob immediately before testifying. Mr. Mustard answered questions about the doorknob put by the defence without making any reference to the examination he had conducted. He described that examination and the results for the first time in his re-examination. The defence described this as an attempt to spring a trap on the defence and argued that it demonstrated that Mr. Mustard was not a neutral witness. The trial judge lent his support to this position in his instructions to the jury.

[18] The defence called Professor Perovic, an engineering expert. He disagreed with Mr. Mustard’s opinion that it could be inferred that the cord was being pulled from the outside because it broke on the outside of the door. He pointed out that the cord was seventeen years old and had several nicks, scraps and defects. In his opinion, the age and the condition of the cord would influence where the cord might break. The cord could have broken where it did because it was frayed or weak at that point and not because it was being pulled from outside of the door. Professor Perovic was also of the opinion that the cord broke as a result of a lengthy period of stress and not a single sudden pull. He based this opinion primarily on the depth of the groove in the top of the door.

[19] The Crown cross-examined Professor Perovic. He had conducted six tests, albeit with new cords. In those tests, when he pulled the cord from the outside, the cord broke on the outside of the door. When he hung a weight on the inside of the door and did not pull on the cord from the outside of the door, the cord broke on the inside of the door.

[20] The expert evidence was obviously of central importance in the case and the trial judge dealt with it at some length in his instructions to the jury. There is no objection taken on the Crown appeal to those instructions.

[21] The evidence of the alleged confession by the respondent came from Joshua Brown, an acquaintance of the respondent. He testified that he and the respondent were at the respondent’s mother’s house watching videos on October 11^th^, three days after the deceased died. Mr. Brown remarked that he had heard that the respondent’s girlfriend had committed suicide. The respondent replied that it was not suicide, but that he had killed the deceased. According to Brown, the respondent said that he and the deceased had argued and that he had choked her from behind. When she taunted him, he became even angrier, moved in front of her and strangled her to death. He then hung the cord over the door to make it look like a suicide. According to Brown, the respondent said that if he could not have the deceased, no one would have her.

[22] The respondent testified that he and Brown spoke about the deceased’s death on October 11, but he denied telling Brown that he had killed her.

[23] Mr. Brown did not go to the police with this information. In the month following the alleged confession, Mr. Brown told his girlfriend, his sister, and an old friend about the alleged confession. The girlfriend and the sister did not believe him. The girlfriend indicated that Mr. Brown had a tendency to make things up. Mr. Brown’s sister described him as a pathological liar. The third person who Mr. Brown told about the confession also did not believe Mr. Brown, but after she heard that the respondent had been arrested, she contacted the police and told them what Brown had told her.

[24] Brown had a criminal record, including convictions for several crimes of dishonesty. He had a long history of drug abuse and conceded that he used to be “a compulsive liar”. Friends and relatives of Brown testified that he could not be believed and was prone to lie to gain attention. There was also some evidence that Brown had given different versions of the respondent’s alleged confession to different people. The respondent’s mother testified that Brown and the respondent were not alone in her basement as Brown claimed.

[25] The trial judge gave the jury a “Vetrovec” warning in respect of Brown’s evidence.

IV

A. Grounds of Appeal

(i) The admissibility of the evidence of the former girlfriend

[26] The Crown wanted to lead evidence from a former girlfriend of the deceased.[^1] That evidence consisted of discreditable conduct involving the respondent and his former girlfriend. The evidence was presumptively inadmissible, but the Crown contended that it had sufficiently strong probative value on the question of whether the deceased had hanged herself or had been strangled that it should be admitted. The trial judge disagreed. The Crown renews its submission on appeal.

[27] E.C. and the respondent started going out in 1993. She had just finished high school. Problems soon developed in their relationship. The respondent was a jealous, possessive and at times violent person. By 1994, Ms. C. did not want to be involved in a relationship with the respondent. She had an argument with her parents in 1994 and decided to move out of the house. She had nowhere to go and the respondent, who was still very interested in continuing their relationship, suggested that she move in with his father. Ms. C. believed that the respondent lived with his mother and only occasionally stayed at his father’s home. She decided to move into the respondent’s father’s home. She was not interested in resuming or continuing a full-time relationship with the respondent. According to Ms. C., the respondent would not accept her decision and continued to try to control her life and dictate to her what she could do and whom she could see. The respondent monitored her phone calls, followed her to her workplace, and at times physically prevented her from leaving her room or from leaving the house. Ms. C. moved out of the respondent’s father’s house in late 1994. Even after she left, the respondent continued to harass her. Ms. C. indicated that the respondent stalked her, interfered with her friends, and threatened suicide. She also knew that he had a videotape of them engaging in sexual activity and Ms. C. became concerned that he would use the threat of disclosure of that videotape to maintain control over her.

[28] Ms. C.’s description of the respondent’s conduct during their relationship, particularly after she made it clear that she wanted to end the relationship, was similar in many details to the description of the respondent’s conduct towards the deceased as provided by various Crown witnesses and the deceased’s statements. The Crown, however, did not contend that these similarities alone justified the admission of Ms. C.’s evidence. The Crown relied on the evidence of the nature of their relationship as context for Ms. C.’s description of a specific event involving the restraining of Ms. C. with a telephone cord tied around a bedroom door. It was this specific event, considered in the context of the relationship between the respondent and Ms. C., which the Crown argued gave her evidence significant probative value on the question of whether the deceased had killed herself or had been strangled.

[29] The event involving the telephone cord occurred some time in the late summer or early fall of 1994, a few months before Ms. C. moved out of the respondent’s father’s house. By the late summer of 1994, she had made it clear to the respondent that their relationship was over and that she was moving out. He would not accept her decision and continued to try to exercise control over her. Ms. C. described the specific incident in these words:

I don’t know exactly what we were fighting for, but it ended up being that we were fighting for the phone to use. Like I wanted to use the phone and I wanted to leave and he wouldn’t let me leave. So I ended up fighting for the phone. And this phone has a phone cord, like an extension that is like extremely long. Like you could take it from the top floor right down to the second like kitchen, living room, dining room --- or not living room/dining room area. …

So he took this phone cord and he ended up wrapping it around my hands and then the door knob and then he took it all the way downstairs with him so that it was always pulled tight. So that if I tried to fidget, because it was always pulled tight, I couldn’t get loose.

[30] Ms. C. said that the bedroom door was open and the telephone cord was wrapped around the outside doorknob and then around a banister beside the stairs. The respondent pulled the cord tight and held Ms. C.’s arms together for about five or ten minutes. Another telephone in the house rang and Ms. C. somehow got loose. She plugged in the phone and spoke to the respondent’s mother. Ms. C. told her that she and the respondent were fighting and she asked the respondent’s mother to come and get her.

[31] Crown counsel describes the potential probative value of this evidence on the issue of whether the deceased killed herself in this way in her factum:

[T]he respondent’s efforts to control Laurie White and prevent her from leaving the relationship, culminated in the act of tying her to a door using an extension cord. The fact that the defendant had previously used a cord to tie E.C. to a door, which he had also wrapped around a doorknob, when she tried to end the relationship, was highly relevant to the issue of whether Laurie White, was tied up by the respondent or committed suicide. It was highly improbable as a coincidence that the deceased should have committed suicide, using the same mechanism (cord wrapped around a doorknob) as the respondent had previously used (cord wrapped around a doorknob), as a means of controlling his former girlfriend to prevent her from leaving him in circumstances where the relationship had ended. [Emphasis added.]

[32] Crown counsel recognizes that where a trial judge applies the proper legal principles, substantial deference must be afforded his or her decision to admit or exclude evidence of an accused’s disreputable conduct. She submits, however, that the trial judge erred as to the applicable principles by mistakenly treating the evidence as relevant to the issue of identity and using the “striking similarity” yardstick to measure its admissibility. Crown counsel argues that identity was never in issue and had the trial judge accurately identified the issue to which the evidence was directed, that is whether the deceased committed suicide, the probative value/prejudicial effect calculus would have favoured admissibility.

[33] The trial judge’s reasons for excluding the evidence properly begin by placing the onus on the Crown to establish admissibility. In his reasons, the trial judge recognizes that evidence of other discreditable conduct by an accused is admissible only where its probative value exceeds its prejudicial effect, and that the probative value of this kind of evidence rests in the objective unlikelihood of coincidence as the explanation for the occurrence of the events .

[34] Probative value can be measured only by reference to the tendency of the tendered evidence to prove or disprove a specific fact. Before probative value can be measured, the factual issue to which that evidence is directed must be identified. As Binnie J. said in R. v. Handy (2002), 144 C.C.C. (3d) 481 at 504 (SCC):

The requirement to identify the material issue “in question” (i.e. the purpose for which the similar fact issue is proffered) does not detract from the probative value/prejudice balance, but it is in fact essential to it. Probative value cannot be assessed in the abstract. The utility of the evidence lies precisely in its ability to advance or refute a live issue pending before the trier of fact.

[35] The trial judge did not identify the issue to which the evidence was directed, although the Crown had clearly done so in his submissions. One passage from the trial judge’s reasons supports the Crown’s contention that he understood that the evidence was proffered to prove identity:

The Crown submits that this is not an identification case … I do not agree that this is not a case in which identification is in issue. There is no direct evidence of the death of Laurie White. Therefore, I conclude that the court can review this evidence on the basis of an objective improbability of coincidence. When doing so, the court is not in the position of finding such an unlikelihood of coincidence. I am not satisfied that there is such a high degree of similarity between the two acts as to render the likelihood of coincidence objectively improbable. In addition, I am concerned that since the evidence is not displaying a high degree of similarity, its introduction would prejudice the defence by showing a propensity to be a jealous boyfriend who must have done the killing of Laurie White because he tied up his former girlfriend for a short time and was possessive. Striking similarity is one factor to consider rather than an isolated factor. … [Emphasis added.]

[36] The trial judge was wrong insofar as he saw identity as a live issue in this case. No one suggested that if the deceased was strangled, anyone other than the respondent had strangled her. I do not, however, read this passage as going so far as to exclude the consideration of the potential probative value of the evidence on the question of whether the deceased committed suicide. While the trial judge may have mis-described the fact in issue as related to identity, his ultimate assessment of the probative value indicates to me that he understood the purpose for which the Crown sought the admission of the evidence. After referring to factors relevant to probative value, the trial judge said:

I do not find that the evidence of Ms. C. meets these tests. Her relationship ended with Mr. Watkins in 1995. Ms. White died in 1996. The evidence of Ms. C. does not demonstrate that her life was endangered while she was a girlfriend of Mr. Watkins. It only shows that he was a jealous boyfriend who was miserable to any male acquaintances of his girlfriend. The incident with the telephone cord only illustrates two people having an argument over the phone. He did not force her stay. He released the end of the cord, and she untied herself. I conclude that the use of this discreditable conduct is remote. That reduces the opportunity to consider it relevant. Finally, the prejudicial effect of the introduction of this evidence surrounding Ms. C. far outweighs its probative value. This evidence would be used to leave the jury with the impression that Mr. Watkins was a person with a bad disposition towards his girlfriends and that if he tied up a former girlfriend when arguing over the use of the phone and her wanting to leave the residence then he must be the type of person who would kill a subsequent girlfriend.

[37] The trial judge’s comments are directed at the potential probative value of the evidence to show that the deceased did not hang herself. He refers to the lack of a temporal nexus between the event described by Ms. C. and the death of the deceased and also to the many differences between the two incidents. The latter consideration appears to have been by far the most significant one in the mind of the trial judge. Where evidence of discreditable conduct by the accused is offered to prove the actus reus, the similarity between the accused’s conduct on the prior occasion and his alleged conduct in the commission of the offence will be a significant factor in assessing probative value: R. v. Handy, supra, at 505-507.

[38] I see no error in the trial judge’s assessment of probative value. On a hard look at the proffered evidence, there was, as the trial judge held, little similarity and many differences between the incident involving Ms. C. and the allegations made by the Crown in this case. Ms. C. was bound by the wrists for about five to ten minutes after she and the respondent argued over the use of a phone. She was not bound with a cord retrieved from somewhere else in the house for that purpose, but with the telephone extension cord that was part of the object Ms. C. and the respondent were fighting over at the time. The telephone extension was run around the doorknob, and the banister, so that the respondent could hold the cord tightly to prevent Ms. C. from moving her arms. Ms. C. was not tied to the door of her bedroom. Ms. C. was not hurt, and this was but one of many instances where the respondent attempted to physically dominate Ms. C.

[39] On the Crown’s theory, the respondent strangled the deceased with his bare hands, or with an electrical cord, or with a combination of the two. He then made elaborate efforts to make it look as though the deceased committed suicide. These efforts included wrapping a broken end of the electrical cord around the doorknob. The deceased was never tied to the door on the Crown’s theory.

[40] The Crown places great emphasis on the fact that a cord was wrapped around the outside doorknob in both incidents. This may give the evidence some superficial similarity. However, in the case of Ms. C., the cord was wrapped around the door to hold her arms. In the case of the deceased, on the Crown’s theory, the wrapping of the cord around the door had nothing to do with controlling the deceased or killing her, but was rather part of the respondent’s attempts to make it appear as though the deceased had committed suicide. I would put it this way; the fact that two years earlier the respondent ran a telephone extension cord around the doorknob of his girlfriend’s bedroom door to assist him in holding his former girlfriend’s hands for several minutes, to keep her away from the telephone, cannot reasonably assist in determining whether after strangling his girlfriend he wrapped a broken extension cord around the doorknob of her bedroom door to make it look like she committed suicide.

[41] I also agree with the trial judge’s assessment of the potential prejudice. As with any evidence of discreditable conduct, there was a danger that the jury would misuse the evidence. The superficial similarity between the two events heightened the risk that the jury could give the evidence far too much weight.

[42] The trial judge did not err in excluding the evidence of the deceased’s former girlfriend.

(ii) The cross-examination of the deceased’s sister

[43] The Crown adduced evidence from several witnesses that the deceased had never spoken of suicide and did not seem suicidal or depressed. Her sister, Lisa White, who gave significant evidence on the issue of motive, was asked if her sister had ever discussed or mentioned suicide:

Q. Did Laurie ever discuss with you at any stage the issue of her committing suicide or the issue of a person committing suicide?

A. Herself, never.

[44] When defence counsel commenced his cross-examination, he indicated an intention to question Lisa on a statement she had made to the police. In that statement, she had said:

I know that Jesse [the respondent] apparently used to talk and threaten each other about suicide, but I never once heard anything like that come out of her mouth. To me that is not Laurie.

[45] Crown counsel objected to the question. In the absence of the jury, he argued based on Lisa’s evidence at the preliminary inquiry, that Lisa had no firsthand knowledge of such statements but had been told by someone else about the purported contents of letters written by her sister which referred to suicide. Crown counsel argued that this was double hearsay and should not be heard by the jury. Crown counsel also argued that the defence had not established any basis upon which to cross-examine Lisa on her previous statement.

[46] Defence counsel argued that he was entitled to explore Lisa’s evidence concerning what she knew about her sister having spoken about suicide. He also argued that the evidence could support the respondent’s contention, advanced in his statement to the police (and later in his evidence), that he and the deceased had threatened each other with non-genuine threats of suicide in the course of some of their childish arguments.

[47] The trial judge ruled that the defence could cross-examine Lisa on her statement. When Lisa was cross-examined, she acknowledged making the statement to the police and explained she was referring to letters that her cousin had told her about. She said she had never seen those letters. These answers prompted further cross-examination on her preliminary inquiry evidence in which she had said:

I just heard that there were some letters found and that it had mentioned something about suicide, him and her threatening each other about suicide or something.

[48] Counsel’s cross-examination of Lisa made it clear that he was suggesting that she was being less than candid in her answers concerning any information she had about the deceased having made threats of suicide. It was the defence position that Lisa was understandably not supportive of the defence and did not want to provide any evidence that would suggest that her sister had discussed suicide. Counsel argued that this reluctance to say anything that might help the defence made all of her evidence suspect.

[49] There were no further objections to the evidence. Crown counsel said nothing about this evidence in his closing and the trial judge did not refer to the evidence in his instructions to the jury. Defence counsel made one reference to this evidence in his closing argument. In that reference, he connected this evidence, albeit somewhat obliquely, to the respondent’s evidence that he and the deceased had exchanged idle threats of suicide. Counsel implied that the evidence of Lisa supported the respondent’s evidence.

[50] Counsel was entitled to cross-examine Lisa on her statement to the police and her explanation for what she had said to the police. The cross-examination went both to Lisa’s knowledge, if any, concerning her sister’s state of mind and to impeach Lisa’s credibility. Given Lisa’s answers, it was open to the jury to conclude that Lisa was not being forthcoming in explaining how she came to hear about these alleged threats of suicide exchanged between Laurie and the respondent.

[51] The cross-examination did not, however, provide any evidence from which the jury could infer that the deceased had actually written letters in which she threatened suicide. Lisa’s evidence went no further than to indicate that she had been informed by a cousin that such letters existed.

[52] In any trial, much less a trial of this length, there is likely to be evidence adduced that is admissible for a limited purpose or purposes. Sometimes it is essential that the trial judge tell the jury that it may use the evidence only for the identified limited purpose. This is so, for example, where there is a risk that the jury will misuse the evidence to the prejudice of an accused. Not all evidence which is admitted for a limited purpose, however, is so inherently dangerous as to demand a limiting instruction in all cases. In many cases, it will be left to the trial judge, guided by counsel’s submissions, to decide how best to address evidence which is admitted for a limited purpose.

[53] In this case, the trial judge could have told the jury that the evidence elicited on Lisa’s cross-examination was not evidence that there were in fact letters written by the deceased in which she threatened suicide. By giving that instruction, the trial judge would of course bring some attention to the evidence. The Crown did not request any limiting instruction either when the evidence was adduced or at the end of the trial. I take from its silence that the Crown was content that the trial judge leave the evidence alone. The Crown’s silence speaks to the relative insignificance of the evidence. In these circumstances, I would not characterize the absence of a limiting instruction as non-direction amounting to misdirection. The trial judge’s failure to give a limiting instruction did not affect the fairness of the trial and did not in the circumstances amount to an error in law.

(iii) The failure to instruct on s. 229(a)(ii) of the Criminal Code

[54] Murder is defined in s. 229(a) of the Criminal Code:

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;

[55] In his initial instructions, the trial judge told the jury several times that the respondent could only be convicted of murder if he meant to kill the deceased. The trial judge did not instruct the jury on the culpable state of mind for murder set out in s. 229(a)(ii).

[56] Crown counsel objected to the charge and requested an instruction on s. 229(a)(ii). Crown counsel observed that he had anticipated that the trial judge would instruct on s. 229(a)(ii) based on the written outline of the charge the trial judge had given to counsel for discussion purposes prior to delivering his charge. Crown counsel submitted that it was open to the jury to have a doubt as to whether the respondent meant to kill the deceased when he strangled her, but at the same time be satisfied beyond a reasonable doubt that he did strangle her meaning to cause her bodily harm and knowing that death was likely.

[57] The trial judge recharged the jury on some issues but did not instruct on s. 229(a)(ii).

[58] Section 229(a)(ii) modestly expands the “pure” definition of murder set out in s. 229(a)(i). The close proximity between the states of mind described in the two subsections is made clear by the explanation of s. 229(a)(ii) offered by Cory J. in R. v. Cooper (1993), 78 C.C.C. (3d) 289 (S.C.C.) at 294:

… The essential element is that of intending to cause bodily harm of such a grave and serious nature that the accused knew that it was likely to result in the death of the victim. The aspect of recklessness is almost an afterthought …

The aspect of recklessness can be considered an afterthought since to secure a conviction under this section, it must be established that the accused had the intent to cause such grievous bodily harm that he knew it was likely to cause death. One who causes bodily harm that he knows is likely to cause death must, in those circumstances, have a deliberate disregard for the fatal consequences which are known to be likely to occur. That is to say, he must, of necessity, be reckless whether death ensues or not. [Emphasis added.]

[59] Because the mental states described in the two subsections are so close, a trial judge will usually put both definitions of murder to the jury. No doubt there are cases where there can be no doubt that whoever killed the deceased must have meant to do so. In such cases it would be unnecessary to instruct on s. 229(a)(ii), although if the instruction were given, it would not likely cause any harm. I would think that absent overwhelming evidence that whoever caused the death must have intended to kill, and a clear indication by counsel that s. 229(a)(ii) need not be put to the jury, that the safer course would be to instruct on both parts of s. 229(a).

[60] On appeal, Crown counsel argued that the evidence was reasonably open to an interpretation which would bring the mental element described in s. 229(a)(ii) into play. Counsel argued that the jury could conclude that the respondent was very angry over the break-up and that in an effort to frighten and control the deceased, he strangled her intending to stop before she died. The Crown argued that if the jury took this view, it could be left in doubt as to whether the respondent meant to kill, but be satisfied beyond a reasonable doubt that he caused the deceased bodily harm that he knew was likely to cause her death and was reckless as to whether death would ensue.

[61] Crown counsel did not suggest this interpretation of the evidence to the jury at any time during the trial. On the totality of the evidence, it is highly unlikely that a jury would find beyond a reasonable doubt that the respondent strangled the deceased thereby causing her death, and then attempted to make it look as if she had committed suicide, but at the same time have a reasonable doubt as to whether he actually meant to kill the deceased. Although I regard this scenario as unlikely, I cannot say that the evidence does not reasonably admit of that interpretation. The trial judge should have left s. 229(a)(ii) to the jury.

[62] The non-direction on s. 229(a)(ii) constituted an error in law. The Crown is entitled to a new trial, however, only if it can satisfy the heavy burden of demonstrating with a reasonable degree of certainty that the verdict would not necessarily have been the same if the instruction on s. 229(a)(ii) had been given: R. v. Moran (1998), 44 C.C.C. (3d) 193 at 221 (SCC).

[63] The Crown cannot meet that heavy burden. An instruction on s. 229(a)(ii) would have only minimally altered the basis upon which the respondent could be convicted. The distinction between meaning to kill and causing bodily harm knowing that that harm is likely to cause death is a slim one. At trial, no one suggested to the jury at any time in this case that liability could be based on some intention short of an intention to kill. It was implicit in the position taken by both the Crown and the defence that if the respondent strangled the deceased to death he was guilty of murder. The position put to the jury by the parties is exactly what one would expect given the evidence adduced in this case. While I have concluded that a finding of guilt based on s. 229(a)(ii) was open on one view of this evidence, it is most unlikely that a reasonable jury would have ever reached that definition of murder if it concluded that the respondent strangled the deceased. The Crown has not satisfied me with anything approaching a reasonable degree of certainty that the verdicts would not necessarily have been the same had the trial judge instructed on s. 229(a)(ii).

V

[64] I would dismiss the appeal.

RELEASED: “DD” “NOV 20 2003”

“Doherty J.A.”

“I agree S.T. Goudge J.A.”

“I agree E.A. Cronk J.A.”

[^1]: The admissibility of the evidence was determined on a voir dire. By agreement, the Crown proffered the statements provided by the witness and her pre-trial cross-examination by the defence.