DATE: 20050314

DOCKET: C39103

COURT OF APPEAL FOR ONTARIO

CRONK, ARMSTRONG and BLAIR JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Melvyn Green for the appellant

Respondent

• and -

M. R. (A Young Offender)

John McInnes and Geoff Chesney for the respondent

Appellant

Heard: November 30, 2004

On appeal from the conviction entered by Justice G. I. Pardu of the Superior Court of Justice, sitting with a jury, dated October 18, 2002.

CRONK J.A.:

[1] On October 18, 2002, following a trial conducted by Pardu J. of the Superior Court of Justice, sitting with a jury, the appellant was convicted of second degree murder and sentenced to life imprisonment without eligibility for parole for 7 years. He appeals his conviction.

[2] The appellant argues that the trial judge erred: (i) in her instructions to the jury concerning evidence that the appellant contends afforded him an alibi or ‘alibi-like’ defence to the murder; and (ii) in her treatment in the jury charge of evidence that the appellant threatened to kill the victim several weeks prior to her death.

[3] For the reasons that follow, I am satisfied that an alibi or ‘alibi-like’ defence was not available to the appellant on the evidence at trial and that the trial judge did not err in her instructions on this issue. Although I am also satisfied that the trial judge erred in her treatment of the evidence of the appellant’s threat to kill the victim, as asserted by the appellant, I am of the view that this is a proper case for application of the proviso under s.686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. Accordingly, I would dismiss the appeal.

I. Background

[4] Sandra O’Brien was last seen alive at about 9:00 p.m. on May 9, 2001 as she left a church choir practice. Sometime between midnight on May 9, 2001 and 10:11 p.m. on May 10, 2001, she was savagely bludgeoned to death in her home. She sustained 51 injuries to various parts of her body, inflicted by approximately 30 separate blows. She had a significant skull fracture, caused by a forceful blow to the head. Bruising to her face and body was consistent with a severe physical assault prior to death. Numerous defensive wounds were identified on her hands. She died, in part, due to blood loss that occurred within 30 to 60 minutes after she was assaulted.

[5] Ms. O’Brien had close ties to the appellant’s family and served as a godparent and surrogate ‘mother figure’ to the appellant and his younger brother. She had a supportive relationship with the appellant and, when he was an adolescent, he lived with her for some time. In later years, he regularly slept overnight at her home. Shortly before her death, Ms. O’Brien presented the appellant with a gift from Italy, a t-shirt bearing the name “ROMA”.

[6] However, Ms. O’Brien and the appellant’s relationship was not free from occasional conflict. They argued from time to time concerning aspects of the appellant’s behaviour of which Ms. O’Brien disapproved. Prior to her death, Ms. O’Brien had discovered the appellant and his brother visiting pornographic websites on their foster father’s computer. She made known to the appellant her disapproval of his viewing pornographic photographs or sexually explicit images on the Internet.

[7] At the time of the murder, the appellant was 17 years of age. He had been asked to leave his foster father’s home. As a result, he was residing at the Calvary Christian Centre (the “Calvary”) with the benefit of social assistance while he attempted to finish high school.

[8] On May 9, 2001, he skipped school and spent the day with a friend, Frank Cyr. The two youths went together to a local library where, during the course of the afternoon, the appellant downloaded sexually explicit cartoon images from the Internet onto a computer disk. The disk was later obtained by the police from the appellant.

[9] Cyr testified at trial for the Crown. He said that the appellant told him on May 9 that he planned to go to Ms. O’Brien’s house that evening, ostensibly to spend the night but, in reality, to print the Internet cartoon images on her computer. According to Cyr, the appellant planned to ‘sneak out’ of Ms. O’Brien’s home sometime after midnight to meet a friend. Cyr said that, in furtherance of this plan, the appellant packed blue jeans, a ‘grayish white’ t-shirt and a movie in a plastic bag while he was at the Calvary during the afternoon of May 9, and made several attempts to reach Ms. O’Brien by telephone. He eventually reached her at about 9:45 p.m. and arrangements were made for him to go to her house.

[10] The image files on the appellant’s computer disk were accessed on Ms. O’Brien’s computer on May 10, 2001 between 12:41 a.m. and 1:09 a.m. A sexually explicit cartoon image, later found to bear the appellant’s fingerprint, was found by the police in Ms. O’Brien’s home after the murder. It had been printed on her computer at 1:04 a.m. At trial, the Crown maintained (and the defence did not seriously dispute) that the appellant was the person who accessed the image files on Ms. O’Brien’s computer.

[11] Cyr also gave evidence at trial concerning the appellant’s relationship with Ms. O’Brien. He said that the appellant was “nice” to Ms. O’Brien if he needed something, but “if he was mad or she said something, he’d just call her names”.

[12] Cyr also recounted that the appellant and Ms. O’Brien quarrelled a few weeks before the murder. According to Cyr, he overheard the appellant talking to Ms. O’Brien on the telephone, asking for food. The appellant called Ms. O’Brien an alcoholic and hung up on her. Ms. O’Brien subsequently drove to the Calvary and provided the appellant with some rice. An argument ensued and Ms. O’Brien became angry and threw the rice on a counter. The appellant was also angry. According to Cyr, the appellant swore at Ms. O’Brien and told her that he wanted nothing to do with her, that he would kill her and “to get lost”. The appellant then threw the rice at Ms. O’Brien and “stormed around to the back of the building” in an angry state. Cyr testified that both the appellant and Ms. O’Brien were “really mad” during this ‘rice argument’. He also said, however, that when they got mad, “[T]hey’d end up calling each other and apologizing.”

[13] The evidence at trial indicated that Ms. O’Brien continued to see the appellant from time to time after this altercation, including in the days preceding her death.

[14] The appellant left a series of voicemail messages on Ms. O’Brien’s answering machine on May 10, 2001. In these messages, he indicated that he had expected Ms. O’Brien to drive him to school that morning (as she had sometimes done in the past), inquired why she had failed to pick him up, and said that he wished to speak with her. At trial, the Crown asserted that these calls were a subterfuge by the appellant, designed to make it appear that he was unaware of the murder.

[15] Ms. O’Brien’s body was discovered by the appellant’s foster father and a friend at about 10:00 p.m. on May 10, 2001. When they entered her home, there were no signs of forced entry. The windows were closed and the front door was locked, but the rear house door was ajar. There were indications that the killer left the home in a hurry: the computer desk light was still on; television sets in two bedrooms were running; both beds had been disturbed; and lights, some of which were on automatic timers, were on throughout the house.

[16] On May 11, 2001, the day after the murder, the police found a plastic bag in a trash can near Ms. O’Brien’s home. It contained blue jeans, a white t-shirt with the word “ROMA” on it, a hammer and a blue shirt. The appellant’s DNA was found on the t-shirt and Ms. O’Brien’s blood was on the blue shirt and jeans. The hammer, which also bore Ms. O’Brien’s blood, was wrapped in the t-shirt.

[17] Several articles of clothing were seized from the appellant’s residence after the murder. None bore any blood.

[18] At trial, the Crown called an expert pathologist who testified that although Ms. O’Brien’s time of death was estimated at between midnight on May 9, 2001 and 10:11 p.m. on May 10, 2001, this broad range represented the outer limits of the time interval during which she died. He was unable to offer an opinion concerning a more precise time of death. However, Ms. O’Brien did not keep confirmed appointments scheduled for the morning of May 10, 2001, commencing at 8:30 a.m. Thus, there was strong circumstantial evidence that she died sometime after midnight on May 9, 2001 and before 8:30 a.m. on May 10, 2001.

[19] The Crown’s case against the appellant was entirely circumstantial. No direct evidence linked the appellant to the crime. The key issue at trial was the identity of the killer.

[20] The appellant did not testify at trial. Lisa Deschamps, a resident at the Calvary, was the only defence witness. She testified at the appellant’s preliminary inquiry for the Crown. On that occasion, she said that she saw the appellant enter the Calvary at 1:40 a.m. on May 10, 2001, the day of the murder. She also stated that she saw the appellant a second time that morning, at about 2:30 a.m. sitting on the stairs at the Calvary and talking with a friend.

[21] At trial, Deschamps confirmed that she saw the appellant at 1:40 a.m. and that she also saw a friend of the appellant at 2:30 a.m. on May 10, 2001 at the Calvary. Contrary to her evidence at the preliminary inquiry, however, she testified at trial that she did not remember the appellant’s friend talking to the appellant at 2:30 a.m. In the end, Deschamps testified that she did not recall, although she did not deny, the 2:30 a.m. sighting of the appellant.

II. Positions of the Parties at Trial

[22] According to the Crown, the most likely sequence of events leading to the murder involved Ms. O’Brien discovering the appellant in the course of downloading sexually explicit materials on her home computer at about 1:09 a.m. on May 10, 2001. The Crown maintained that this led to an angry confrontation with the appellant and the violence that caused Ms. O’Brien’s death. The forensic evidence at trial suggested that it was unlikely that Ms. O’Brien’s computer was used after the killing. Thus, on the Crown’s primary theory, the fatal assault on Ms. O’Brien likely took place at or shortly after 1:09 a.m.

[23] The defence countered the Crown’s case by asserting that the appellant was not present when the murder most likely occurred, he had no credible motive to kill the victim, and there was no physical evidence directly connecting him to the murder.

III. Issues

[24] The appellant challenges the trial judge’s instructions to the jury concerning Deschamps’ testimony at trial and her treatment of certain of Cyr’s evidence.

[25] He contends that Deschamps’ testimony constituted alibi or ‘alibi-like’ evidence that was key to the defence theory that the appellant lacked the opportunity to commit the murder. He attacks the trial judge’s instructions regarding Deschamps’ evidence on several grounds. First, he asserts that the trial judge erred in her charge to the jury by failing to relate the potential significance of Deschamps’ evidence to the theory of the defence and by failing to provide the jury with the standard alibi evidence instruction mandated in R. v. Parrington (1985), 20 C.C.C. (3d) 184 (Ont. C.A.) and R. v. O’Connor (2002), 170 C.C.C. (3d) 365 (Ont. C.A.).

[26] In the alternative, if this instruction was not required, the appellant maintains that the trial judge was obliged to provide a ‘modified’ reasonable doubt instruction that expressly drew the jury’s attention to the evidence that the appellant claimed supported his contention that he lacked sufficient opportunity to carry out the murder.

[27] Finally, the appellant submits that the trial judge erred by failing to instruct the jury on the significance of the discrepancy between Deschamps’ trial and preliminary inquiry testimony, which I have described above, regarding her sightings of the appellant at the Calvary in the early hours of May 10, 2001.

[28] With respect to Cyr’s testimony, the appellant argues that the evidence of his alleged threat to kill Ms. O’Brien at the time of the ‘rice argument’ should have been removed from the jury’s consideration. In the alternative, he claims that this evidence should not have been left with the jury without an appropriate limiting instruction by the trial judge.

IV. Analysis

(1) Assertion of an Alibi or ‘Alibi-Like’ Defence

[29] The appellant’s assertions that the trial judge erred by failing to relate the potential significance of Deschamps’ evidence to the theory of the defence and by failing to provide the jury with the standard alibi evidence instruction rest on two premises: first, that Deschamps’ testimony that she saw the appellant at the Calvary at 1:40 a.m. (and, according to her evidence at the preliminary inquiry, again at 2:30 a.m.) on May 10, 2001 is tantamount to alibi or ‘alibi-like’ evidence; and, second, that the Crown’s case against the appellant placed the time of the murder at about 1:09 a.m. on May 10, 2001. In my view, these premises are fatally flawed. I say this for several reasons.

[30] First, Deschamps did not provide the appellant with a complete alibi for the murder. Her evidence did not preclude the possibility that the murder was committed between 1:09 a.m. and 1:40 a.m. on May 10, 2001, or sometime later that morning.

[31] In order to constitute an alibi, the evidence at issue must be determinative of the final issue of guilt or innocence of the accused. In essence, such evidence contemplates that it was impossible for the accused to have committed the crime charged because, at the time of its commission, the accused was elsewhere: R. v. Hill (1995), 102 C.C.C. (3d) 469 (Ont. C.A.) at 478-79.

[32] In this case, Deschamps’ evidence established that the appellant could not have been the killer if Ms. O’Brien was murdered at or about 1:40 a.m. on May 10, 2001. This, however, accounted for only a small part of the lengthy interval during which, on the forensic evidence at trial, the murder could have taken place.

[33] Counsel for the appellant candidly acknowledged during oral argument before this court that if the Crown’s case was not dependant upon proof that the time of the murder was about 1:09 a.m. on May 10, 2001, there was insufficient alibi or ‘alibi-like’ evidence to warrant a Parrington or O’Connor instruction. As I have said, the Crown’s case was not so constrained. Although the Crown advanced the theory that the most likely time of the attack on Ms. O’Brien was about 1:09 a.m. as the result of an explosive outburst by the appellant when Ms. O’Brien discovered him using her home computer to download sexually explicit images, the crime was not particularized in this fashion by the Crown. During his closing address to the jury, Crown counsel asserted that Ms. O’Brien was killed sometime between midnight on May 9, 2001 and, at the very latest, by about 8:30 a.m. on May 10, 2001.

[34] I agree with the Crown that the following factors negate the appellant’s assertion of an alibi or ‘alibi-like’ defence:

(a) the precise time of death was not established. The pathology evidence indicated a wide range of possible times at which the murder could have been committed. As I have previously said, 1:09 a.m. was simply one time at which Ms. O’Brien might have been killed. Her murder could also have taken place between 1:09 a.m. and 1:40 a.m., or much later in the morning on May 10, 2001;

(b) the range of time estimated for Ms. O’Brien’s time of death was calculated based on the physical processes that commenced upon her death. On the pathology evidence, the onset of the assaultive attack on Ms. O’Brien was likely 30 to 60 minutes prior to her death;

(c) the evidence was consistent with a frenzied, rather than a prolonged attack;

(d) as I have also mentioned, the defence did not seriously challenge that the appellant used the victim’s computer between 12:41 a.m. and 1:09 a.m. on May 10, 2001. This placed the appellant in the victim’s home at 1:09 a.m., when the Crown asserted that the murder most likely occurred;

(e) although there was some evidence at trial that it would take about 30 minutes to walk from Ms. O’Brien’s home to the Calvary, where the appellant resided, there was no evidence as to how the appellant in fact travelled to or from her home on May 10, 2001, that is, whether he walked, ran or rode a bicycle;

(f) the appellant owned a bicycle. It was discovered in his room at the Calvary after the murder. Ms. O’Brien had purchased parts for the bicycle shortly before her death; and

(g) a neighbour of Ms. O’Brien saw a mountain bike leaning against the back step of Ms. O’Brien’s home between 10:20 p.m. and 10:40 p.m. on May 9, 2001. At about the same time, he also saw a male person at her back screen door.

[35] Based on these factors, even if the jurors accepted that Deschamps saw the appellant at the Calvary both at 1:40 a.m. and again at 2:30 a.m. on May 10, 2001, they could still be satisfied of the appellant’s guilt on the criminal standard of proof. In other words, the appellant could have committed the murder between 1:09 a.m. and 1:40 a.m., or after 2:30 a.m., on May 10, 2001.

[36] Thus, contrary to the appellant’s submission, Deschamps’ evidence did not provide him with a complete alibi, nor was it conclusive of his guilt or innocence. Accordingly, the trial judge’s instructions cannot be faulted on the basis that an alibi was provided to the appellant by Deschamps, thereby necessitating either a standard alibi evidence instruction or an ‘alibi-like’ instruction to the jury.

[37] Second, the trial judge did not ignore the Deschamps evidence in her jury charge. Instead, when summarizing the evidence, she expressly mentioned Deschamps’ test-imony, including the discrepancy between her trial and preliminary inquiry evidence that I have described.

[38] Later in her charge, when summarizing the three critical elements of the defence position, the trial judge said:

The position of the defence is that there is a reasonable doubt as to whether M. [R.] applied force to Sandra O’Brien. Defence submits that the doubt arises in part because (a) the evidence about the time of death does not establish that the blows were struck when M. [R.] was at Sandra O’Brien’s home, (b) M. [R.] had no reason to hurt Sandra O’Brien, and (c) [the] forensic evidence of bloodstain patterns and shoe wear impressions does not link M. [R.] to the crime.

The first ground for reasonable doubt asserted by the defence and mentioned by the trial judge – the evidence regarding the time of death – was based on both Deschamps’ testimony concerning her 1:40 a.m. sighting of the appellant at the Calvary on the day of the murder, and on the forensic evidence at trial.

[39] During the pre-charge conference, defence counsel at trial (not counsel on this appeal) did not mention Deschamps’ evidence. Nor did he request an alibi or ‘alibi-like’ instruction even though the trial judge herself raised the possibility of providing the jury with an instruction analogous to an alibi instruction in connection with evidence of the appellant’s after-the-fact conduct.

[40] In addition, defence counsel did not object to the trial judge’s treatment of Deschamps’ evidence in the jury charge, or to her description of the defence theory in relation to this evidence. He did not request a recharge on the Deschamps evidence, or a different or clearer explanation by the trial judge of the defence position regarding the significance of that evidence.

[41] Third, the issues in this case were not complex. The appellant did not offer a defence other than the evidence of Deschamps, whose testimony was brief and straightforward. The defence focused on the appellant’s lack of opportunity and motive to kill Ms. O’Brien and the absence of forensic evidence connecting him with the crime.

[42] In the context of that defence position, the trial judge reviewed the substantial parts of the evidence at trial in her charge and provided the jury with a succinct but accurate description of the defence and Crown theories and the burden and standard of proof. I am satisfied that she was required to do no more.

(2) Reasonable Doubt Instruction

[43] The appellant’s counsel submitted in oral argument, for the first time, that in the absence of a standard alibi evidence instruction it was incumbent on the trial judge to provide a ‘modified’ reasonable doubt instruction that expressly identified for the jury the evidence that the defence relied upon as capable of giving rise to a reasonable doubt whether the appellant had the opportunity to commit the murder. In particular, counsel asserted that the jury should have been instructed that the following evidence could support a reasonable doubt whether the appellant murdered Ms. O’Brien: it took about 30 minutes to walk from Ms. O’Brien’s home to the Calvary; the appellant could have walked home from her house on May 10, 2001; and he was seen at the Calvary at 1:40 a.m.

[44] I would not give effect to this submission.

[45] The trial judge provided a reasonable doubt instruction in accordance with R. v. Lifchus, [1997] 3 S.C.R. 320. She also provided a standard circumstantial evidence direction. At trial, defence counsel did not object to the trial judge’s reasonable doubt instruction. Nor did he request a ‘modified’ reasonable doubt instruction of the type now said by the appellant to have been necessary.

[46] Trial judges are not required to relate their reasonable doubt instructions to specific pieces of evidence, whether consistent with the defence or the Crown’s theory of the case. Here, a thorough and unchallenged reasonable doubt instruction was given, together with a direction on the approach to be taken by the jury to circumstantial evidence. This was appropriate and, in my view, all that was required.

(3) Testimonial Inconsistency Instruction

[47] Deschamps was the only witness in this case whose trial evidence was challenged by counsel for inconsistency with prior testimony. As I have indicated, in her brief evidence at trial, Deschamps said that she saw the appellant arrive at the Calvary at 1:40 a.m. on May 10, 2001 and that she did not recall seeing him again that morning. In contrast, at the preliminary inquiry, she said that she also saw the appellant at the Calvary at about 2:30 a.m. on May 10, 2001, sitting on a set of stairs and talking to one of his friends.

[48] When this inconsistency was put to Deschamps by Crown counsel during cross-examination at trial, Deschamps stated that she saw the appellant’s friend at about 2:30 a.m. hiding underneath some stairs at the Calvary, but that she did not recollect him talking to the appellant. She also said that she did not know what the appellant did after she saw him at the Calvary and that he may have stayed or left the building. Although she did not disavow her testimony at the preliminary inquiry, neither did she expressly adopt it. Based on her trial testimony, therefore, Deschamps did not recall seeing the appellant after 1:40 a.m.

[49] The appellant argues that the trial judge “skated over the evidence” relating to Deschamps’ testimonial inconsistency and that her failure to “ground her charge through reference to the evidence bearing on these issues amounted to prejudicial non-direction”. I disagree.

[50] The trial judge identified the discrepancy between Deschamps’ trial and pre-liminary inquiry testimony in her jury charge. She then stated:

When a witness says one thing in the witness box, but has said something you find to be quite different on an earlier occasion, your commonsense tells you that the fact that a witness has given different versions may be important in deciding whether or how much you believe of or rely on a witness’s testimony. The first thing for you to decide is whether the witness in fact gave an earlier and different version of her testimony from the same events. If you do not find that he or she gave an earlier and different version of events, please ignore what I am going to tell you about how you can use that version to help you decide that case.

If you find that the witness gave an earlier version of events and you find that the earlier version of events was different from her testimony at trial, please listen carefully to what I tell you about how to use that version to help you decide this case.

Not every difference or omission will be important. Consider the fact, the nature and the extent of any differences in deciding their importance to you in deciding whether you will believe or rely on the witness’s testimony, and consider any explanation the witness gives for the differences.

Whatever you choose to make of the differences, you can only use the testimony given under oath in this trial as evidence of what actually happened. You cannot use an earlier statement as evidence of what actually happened unless you are satisfied that the witness accepted it as true while in the witness box. Even then, like the evidence of any witness, it is for you to say whether or how much you will believe of or rely upon it in reaching your decision.

[51] This instruction comports with the instruction on the approach to testimonial inconsistencies set out in the Ontario Specimen Jury Instructions (Criminal) #25-A (Toronto: Thomson-Carswell, 2003) at 137-38 prepared by Watt J. of the Superior Court of Justice. In the circumstances of this case, this instruction was both adequate and appropriate. As I have said, defence counsel did not object to the trial judge’s treatment of Deschamps’ evidence, including her testimonial inconsistency.

(4) Cyr’s Evidence

[52] The defence position at trial rested, in part, on the assertion that the appellant lacked a motive to kill Ms. O’Brien. Central to this claim was the appellant’s depiction of his relationship with Ms. O’Brien as a close and supportive one. Given this position, the appellant does not challenge that Cyr’s evidence of the volatile nature of the relationship and of the appellant’s threat during the ‘rice argument’ to kill Ms. O’Brien was admissible to provide the jury with a more complete appreciation of the relationship between the appellant and Ms. O’Brien.

[53] However, the appellant attacks the trial judge’s treatment of this evidence on two grounds. First, he argues that the ‘threat’ evidence was evidence of prior discreditable conduct from which the jury might improperly infer that the appellant’s past behaviours were predictive of his response to Ms. O’Brien’s interruption of his computer session at her home on May 10, 1991, as posited by the Crown. Because this inference depends on propensity reasoning, the appellant submits that the ‘threat’ evidence ought to have been removed from the jury’s consideration. Alternatively, the trial judge should have provided the jury with an appropriate limiting instruction.

[54] Second, the appellant relies on R. v. Jackson (1980), 57 C.C.C. (2d) 154 (Ont. C.A.) to submit that because his threat to kill Ms. O’Brien was an isolated utterance made in the course of an argument a few weeks before Ms. O’Brien’s death and there was no evidence that the threat was a serious one, Cyr’s evidence of the threat ought not to have been left with the jury as evidence from which it could infer that the appellant intended to kill Ms. O’Brien. In the alternative, the appellant asserts that due to the highly prejudicial effect of this evidence, it ought not to have been left for the jury’s consideration without a limiting instruction that its sole permissible use was as evidence of the dynamics at play in the appellant’s relationship with Ms. O’Brien and that it could not be used as direct evidence of an intention by the appellant to kill Ms. O’Brien.

[55] I agree that Cyr’s evidence of the appellant’s threat to kill Ms. O’Brien during the ‘rice argument’ should not have been left for the jury’s consideration without a clear limiting instruction on its permissible use. I reach this conclusion for the following reasons.

(i) Trial Judge’s Instructions

[56] During the pre-charge conference, defence counsel requested a limiting instruction regarding the evidence of the appellant’s prior discreditable conduct, including the evidence of the ‘rice argument’. Counsel maintained that Crown counsel, in his closing address to the jury, linked evidence from various witnesses to show that the appellant was a “bad guy” with an “explosive personality”. He made the following submission:

I also think that, Your Honour, in light of the charge, is going to have to give some careful thought to how you instruct the jury to handle things like…the situation that Frank Cyr reported, because [Crown counsel], in his address to the jury, linked all of those things as if there is a connection. The connection, the only connection, I’m afraid, would be one that’s saying well, this is a bad guy, he has an explosive personality, he’s, you know, prone to say and do things unpredictably, which fit very nicely with the way [Crown counsel] was building in his argument. So, I think the jury has to be instructed that there’s really no probative value in a great deal of that.

[T]he comment that Mr. Cyr reported that was repeated by the Crown has to – the jury has to be instructed that it really can make no use of that kind of comment in this case. And linking all of those various issues together, as I say, raises the issues of character in an uncomfortable way that I think Your Honour is going to have to address and instruct the jury that they shouldn’t be drawing any adverse inferences from this type of evidence… [emphasis added].

[57] In his response to this submission, Crown counsel submitted that the basis for the admission of the ‘threat’ evidence was narrow. He said:

I agree it wasn’t introduced to establish a motive, in the true sense of motive. It was introduced to show that there was another side of the relationship, a volatile aspect to the accused’s reaction to Miss O’Brien when things don’t go as he expects in his dealings with her, when she’s not providing him what he wants to have provided to him or the opportunity or whatever. You know, whether it be the opportunity to do [sic] with pornographic pictures, as I said, or the provision of the food or the provision of the bicycle parts. When he gets his way he’s nice, but when he’s not getting his way, he’s got a volatile reaction to her, and I think it does have some – it does have probative value for the jury in assessing, in light of what he was doing at her house that night, what took place thereafter [emphasis added].

[58] The trial judge provided the following instruction on the use by the jury of the evidence concerning the appellant’s prior disreputable conduct:

You heard evidence about activities you might find inappropriate or distasteful. The fact that someone views pornographic material or skips school or is on welfare or reacts aggressively to a teacher must not be used by you to conclude that because of his character the person is more likely to have committed any offence.

[59] Immediately thereafter, the trial judge stated with respect to motive:

Motive is a reason why somebody does something. It is not one of the essential elements that Crown counsel must prove. It is just part of the evidence, one of the many things for you to consider as you determine whether M. [R.] is guilty. A person may be found guilty of an offence, whatever his motive, or even without a motive. Absence of proven motive is a circumstance for you to consider, one which you may find tends to support the presumption of innocence. A person may also be found not guilty of an offence, even with a motive to commit it.

In this case, Crown argues that M. [R.] became angry when Sandra O’Brien tried to direct him or would not give him something he wanted.

Defence argues that there was no reason for M. [R.] to kill someone who was so good to him and with whom he had a close relationship.

It is for you to decide whether M. [R.] had such a motive or any motive at all and how much or little you will rely on it to help you decide this case.

[60] Later in her charge, the trial judge addressed the requisite mental state for murder:

Did M. [R.] have the state of mind required for murder? The crime of murder requires proof of a particular state of mind. For an unlawful killing to be murder, Crown must prove that M. [R.] meant, either to kill Sandra O’Brien or meant to cause Sandra O’Brien bodily harm, that M. [R.] knew was likely to kill her, and was reckless whether Sandra O’Brien died or not. The Crown does not have to prove both; one is enough. All of you do not have to agree on the same state of mind, as long as everyone is sure that one of the required states of mind has been proven beyond a reasonable doubt. If M. [R.] did not mean to do either, he committed manslaughter.

To determine M. [R.]’s state of mind, that is what he meant to do, consider all of the evidence.

Consider the nature of their relationship, and the injuries inflicted.

[61] The trial judge next reviewed the forensic and medical evidence regarding Ms. O’Brien’s injuries. She then set out some of the evidence concerning the relationship between the appellant and Ms. O’Brien, commenting:

It appears that Sandra O’Brien helped and supported M. [R.]. She took him to school, and helped him with laundry and groceries. She allowed him to stay at her home from time to time, and it appeared that they spent time together at church.

According to Frank Cyr, they also had arguments, and he testified that M. [R.] had told Sandra O’Brien that he would kill her. It is up to you to assess whether these words were said at all, and if they have any significance. If M. [R.] did utter those words, was it an idle threat expressed in the course of an argument or was it a serious threat? [emphasis added]

[62] Defence counsel objected to these comments, arguing that unless the appellant’s statements to Ms. O’Brien were capable of constituting a motive for murder, they were inadmissible and, “being inadmissible…they ought not to have been received because they are character evidence”. He submitted that the threat overheard by Cyr lacked probative value because there was no evidence of any argument or ill-will between the appellant and Ms. O’Brien on May 9, apart from the offence charged, and requested that the trial judge recharge the jury on the permissible use of the ‘threat’ evidence.

[63] The trial judge, however, declined to recharge the jury on this issue, ruling that Cyr’s testimony of the appellant’s threat could not be said to lack any probative value. She reasoned:

The evidence indicates that Sandra O’Brien adopted a motherly role towards M. [R.], and that sometimes M. [R.] became angry when chastised by Sandra O’Brien. Given the circumstances that M. [R.] was printing out pornographic material on Sandra O’Brien’s computer, the fact that she was known to object to, [sic] and given that he planned to sneak out of her home, one cannot say that the circumstances were such as to give rise to [no] possibility of any argument.

(ii) Need for a Limiting Instruction

[64] Trial judges have an obligation to instruct juries properly on the use of prior discreditable conduct evidence. This court has held that where such a limiting instruction is required, it is preferable for trial judges to direct the jury that it may not use evidence of prior disreputable conduct to reason from general disposition or character to guilt. In other words, the jury may not rely on such evidence to reason that because an accused is a person of general bad character, he or she is more likely to be guilty of the offence charged. In addition, the jury may not use such evidence to punish the accused for past misconduct by finding the accused guilty of the offence charged: see R. v. B. (C.) (2002), 171 C.C.C. (3d) 159 (Ont. C.A.) at paras. 34 and 35.

[65] In this case, the trial judge cautioned the jury that it must not use the evidence of the appellant’s prior disreputable conduct to infer that he was a person likely, by reason of his general bad character, to have murdered Ms. O’Brien. In providing this instruction, she expressly averted to the evidence that was capable of establishing general bad character. Although she did not mention Cyr’s testimony concerning the appellant’s threat to kill Ms. O’Brien in this instruction, this evidence did not demonstrate a general disposition or general bad character on the part of the appellant. Rather, it was directed to a specific disposition by the appellant towards the victim of the crime: Ms. O’Brien. In my view, therefore, there was little danger that the ‘threat’ evidence would be viewed by the jury as evidence of general disposition, making it more likely that the appellant killed Ms. O’Brien. In any event, the trial judge’s instruction made it clear that this type of reasoning was impermissible.

[66] In addition, given the nature of the appellant’s activities that could be viewed as prior disreputable conduct, there was no realistic possibility that the jury would convict him of the offence charged in order to punish him for his prior misdeeds. On this record, apart from the ‘threat’ evidence, the evidence of the appellant’s activities, to the extent that it was evidence of bad character, was not so significant that it would have invited the jury to engage in this type of prohibited propensity reasoning. The danger of this type of reasoning simply did not arise on the facts of this case.

[67] I take a different view, however, of the trial judge’s instruction on the use to which the jury could put the ‘threat’ evidence.

[68] Crown counsel at trial argued that the ‘threat’ evidence was “introduced to show that there was another side of the relationship, a volatile aspect to the accused’s reaction to Miss O’Brien when things didn’t go as he expects in his dealings with her, when she’s not providing him what he wants…”. Thus, the Crown was relying on the ‘threat’ evidence to demonstrate a feature of the appellant’s state of mind towards Ms. O’Brien – feelings of animus or hostility – that, in the circumstances of the day in question, could have led him to fatally assault her.

[69] The appellant concedes that the ‘threat’ evidence was admissible to assist the jury in understanding the true nature of the relationship between the appellant and Ms. O’Brien.

[70] I agree. The ‘threat’ evidence was admissible, together with Cyr’s evidence of the appellant’s manner of interacting with Ms. O’Brien, to rebut the defence claim that the appellant’s relationship with Ms. O’Brien was ideal, rendering it unlikely that the appellant would kill her, and to show a pattern of volatile behaviour by the appellant towards Ms. O’Brien. These were factors that the jury could properly take into account. They tended to support the position of the Crown and to detract from the position of the defence at trial.

[71] The trial judge instructed the jury that it was for it to determine if the appellant’s threat to Ms. O’Brien was “an idle threat expressed in the course of an argument or was it a serious threat”. However, the Crown’s theory was not dependent on the seriousness of the appellant’s threat. Indeed, the gravity of the threat formed no part of the Crown’s case against the appellant. The trial judge’s instruction, by calling into question the gravity of the threat, misstated the potential relevance of the ‘threat’ evidence and left open the possibility that it would be used by the jury to support the inference that the appellant had a reason, and intended, to kill Ms. O’Brien.

[72] As well, the trial judge’s instruction on motive contained no caution that the ‘threat’ evidence could not be used by the jury to infer that the appellant had a reason to murder Ms. O’Brien. Nor did it clearly caution the jury that its use of the ‘threat’ evidence must be confined to consideration of the dynamics at play in the appellant’s relationship with Ms. O’Brien, including his mercurial behaviour when things did not proceed as he wished with her.

[73] In these important respects, the trial judge’s instructions did not provide the jury with necessary guidance on the proper use of the ‘threat’ evidence. The jury should have been cautioned that the ‘threat’ evidence had the limited purpose outlined by Crown counsel in his pre-charge submissions, that is, to assist the jury in understanding the hostile and sometimes confrontational nature of the relationship between the appellant and Ms. O’Brien and the appellant’s capacity for angry behaviour in relation to Ms. O’Brien. Further, the jury should have been told that the evidence was available to them for no other purpose. In the circumstances of this case, these non-directions were errors.

(iii) Application of Curative Proviso

[74] The Crown argues that even if the trial judge erred by failing to provide a limiting instruction on the appropriate use of Cyr’s evidence, this court should uphold the appellant’s conviction under s. 686(1)(b)(iii) of the Criminal Code. I agree.

[75] The Crown’s case against the appellant, although circumstantial, was formidable. There was a substantial body of circumstantial evidence to confirm the appellant’s identity as the murderer: (i) the evidence placed the appellant in Ms. O’Brien’s home on the day of the murder at a time when, according to the forensic evidence, the murder could have been committed; (ii) the apparent murder weapon, the hammer, was discovered by the police wrapped in an article of clothing, a t-shirt, that bore the appellant’s DNA and that was of a type given as a gift to the appellant by Ms. O’Brien shortly before her death; (iii) Ms. O’Brien’s blood was found on the blue shirt and jeans that were discovered with the hammer and the t-shirt; (iv) the appellant essentially conceded at trial that, while he was in Ms. O’Brien’s home in the early hours of the day on which she was killed, he had engaged in conduct (accessing sexually explicit cartoon images on Ms. O’Brien’s computer) known to have been unacceptable to Ms. O’Brien and the subject of prior disagreements between the appellant and Ms. O’Brien; and (v) finally, notwithstanding the strength of the Crown’s case against him, the appellant elected to provide no explanation at trial for his actions and whereabouts on the day of the murder.

[76] I am satisfied that the high standard for the engagement of s. 686(1)(b)(iii) of the Criminal Code has been met. On this record, even if the correct limiting instruction had been given by the trial judge concerning the ‘threat’ evidence, there is no reasonable possibility that the verdict would have been different: R. v. Bevan (1993), 82 C.C.C. (3d) 310 (S.C.C.) at 328-30; R. v. S. (P.L.) (1991), 64 C.C.C. (3d) 193 (S.C.C.) at 200 and R. v. Merz (1999), 140 C.C.C. (3d) 259 (Ont. C.A.) at 278-80. To the contrary, entirely apart from Cyr’s evidence of the appellant’s threat during the ‘rice argument’, a reasonable jury would inevitably have concluded that the appellant was the perpetrator of the crime.

V. Disposition

[77] For the reasons given, I would dismiss the appeal.

RELEASED:

“MAR 14 2005” “E.A. Cronk J.A.”

“EAC” “I agree Robert P. Armstrong J.A.”

“I agree R.A. Blair J.A.”