CITATION: R. v. Anthony, 2007 ONCA 609
DATE: 20070910
DOCKET: C41933
COURT OF APPEAL FOR ONTARIO
LASKIN, MACPHERSON and CRONK JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
JAMES ANTHONY
Appellant
Christopher D. Hicks and Catriona Verner for the appellant
Roger A. Pinnock for the respondent
Heard: February 21, 2007
On appeal from the conviction entered on May 12, 2004 by Justice Alan C.R. Whitten of the Superior Court of Justice, sitting with a jury.
LASKIN J.A.:
A. OVERVIEW
[1] The appellant, James Anthony, was convicted of the first degree murder of Cynthia Jamieson. Mr. Anthony met Ms. Jamieson in a bar in the spring of 2002. After they each drank a few glasses of beer, they returned to Mr. Anthony’s apartment and had sex. In his statement to the police and medical personnel, Mr. Anthony described the sex as “kinky”. He said that he thrust his fist into Ms. Jamieson’s vagina and anus. Afterwards, Mr. Anthony went to sleep. When he awoke he found large amounts of blood and fecal matter around her. Several hours later, at a friend’s suggestion, he called 9-1-1.
[2] Ms. Jamieson bled to death from massive internal injuries. The experts testified that Mr. Anthony’s fist thrusts would have caused excruciating pain and that no one could have tolerated or consented to that level of injury.
[3] Mr. Anthony was charged with first degree murder under s. 231(5)(b) of the Criminal Code: causing Ms. Jamieson’s death while committing a sexual assault. He was tried before Whitten J. and a jury. He denied that he had sexually assaulted Ms. Jamieson; he said that she consented to the sexual activity or that he mistakenly believed that she had consented. He also claimed that he did not intentionally cause Ms. Jamieson’s death; rather, he said that her death was accidental. Finally, he said that he was too drunk to have the intent for murder. He did not testify at trial.
[4] The jury found Mr. Anthony guilty of first degree murder. The trial judge sentenced him to the mandatory term of life imprisonment without eligibility for parole for twenty-five years.
[5] On appeal, Mr. Anthony argued that the trial judge made four errors of law:
He erred by admitting into evidence a statement Mr. Anthony made to a police officer at the scene;
He erred by failing to relate the defence of accident to the question whether Mr. Anthony had the required mens rea for murder;
He erred by failing to direct the jury that they could not use the evidence of Mr. Anthony’s post-offence conduct to help them determine whether he was guilty of murder or manslaughter; and
He erred by instructing the jury that sexual arousal could cause the required mens rea for murder.
[6] We called on the Crown on arguments two and three. I would not give effect to Mr. Anthony’s first, second, or fourth argument but I agree with his third. However, the trial judge’s non-direction on Mr. Anthony’s post-offence conduct did not deprive him of a fair trial. I would therefore dismiss his appeal.
B. ANALYSIS
1. The Admissibility of Mr. Anthony’s Statement to the Police Officer at the Scene
(a) Mr. Anthony’s position
[7] At trial Mr. Anthony challenged the admissibility of three statements that he made to the police: a statement he gave to Officer Chu at the scene; a statement he gave later the same day at the police station; and a statement he gave the next day after he had been arrested. He challenged these statements on two grounds: before he made them the police did not advise him of his right to counsel under s. 10(b) of the Charter, and he did not make the statements voluntarily.
[8] The trial judge excluded the second and third statements but admitted Mr. Anthony's first statement made at the scene. In a thorough and well reasoned decision, the trial judge ruled that when Mr. Anthony gave a statement to Officer Chu at the scene he was not detained under s. 10(b) of the Charter, and he was not a suspect so his statement was voluntary.
[9] On appeal, Mr. Anthony contends that the trial judge’s ruling was incorrect on any one of three grounds:
• The trial judge erred in holding that Mr. Anthony was not detained and therefore that the police did not need to advise him of his right to counsel;
• The trial judge erred in holding that Mr. Anthony was not a suspect at the time and therefore that the police did not need to advise him of his right to silence; and
• The trial judge erred in failing to exclude or at least edit the statement on the ground that its prejudicial effect substantially outweighed its probative value.
(b) Mr. Anthony’s statement and the circumstances under which he gave it
[10] On the voir dire into the admissibility of the three statements, Officer Chu testified that he arrived at the scene just after noon. He spoke to another officer who believed that they were responding to a “sudden death” under “suspicious circumstances”. The other officer told Officer Chu to get a statement from Mr. Anthony. They discussed whether to caution Mr. Anthony and decided not to do so.
[11] Officer Chu went into the apartment and saw the victim lying nude with a lot of blood around her hips. He believed that foul play was a possibility, and that the situation appeared a “little suspicious”. However, he did not have reasonable grounds to believe an offence had been committed.
[12] Officer Chu approached Mr. Anthony and said that they “needed” to take a statement from him. The two men walked to the police cruiser. Mr. Anthony asked to sit in the front seat but Officer Chu asked him to sit in the back of the cruiser. Officer Chu again said that the police “needed” Mr. Anthony’s help. He did not caution Mr. Anthony about his right to counsel or his right to silence.
[13] Contrary to his other statements, in his statement to Officer Chu, Mr. Anthony disclosed that he had “normal sex” twice with Ms. Jamieson when she was either unconscious or dead. He said that after he penetrated her with his fist, “I went and washed my hands. I came back and I had normal sex. We fucked until the wee hours of the morning.” He then told Officer Chu that much later in the morning after he woke up he got angry with Ms. Jamieson: “She would not wake up. I figured she was passed out drunk. I went back into bed with her and had normal sex.”
[14] Mr. Anthony did not testify during the voir dire. I turn to his three contentions, and begin with the last one in order to address the relevance of his statement.
(c) The probative value of Mr. Anthony’s statement
[15] At trial, Mr. Anthony did not argue the prejudicial effect of admitting into evidence his statement to Officer Chu. Nor did he ask the trial judge to edit the statement.
[16] In this court, he submits that the statement was prejudicial because having intercourse with an unconscious or dead person would repel the jury. Even accepting that to be so, Mr. Anthony’s statement potentially had strong probative value on the question of first degree murder and should not be excluded.
[17] To prove Mr. Anthony guilty of first degree murder, the Crown had to prove two elements beyond a reasonable doubt. The first was that Mr. Anthony caused Ms. Jamieson’s death while sexually assaulting her. The second was that this sexual assault was part of the same “continuous transaction” as the unlawful acts that caused her death.
[18] On the first element, Mr. Anthony never conceded that “fisting” Ms. Jamieson amounted to a sexual assault; he relied on the defences of consent and mistaken believe in consent. If the jury had accepted either defence then Mr. Anthony’s later sexual acts, which he disclosed to Officer Chu, would be highly relevant. As Ms. Jamieson was not conscious during either of these acts, Mr. Anthony could not rely on consent or honest but mistaken belief in consent. These later two acts therefore amounted to sexual assaults. In this context, Mr. Anthony’s statement would be highly probative on the question whether Mr. Anthony caused Ms. Jamieson’s death while sexually assaulting her.
[19] However, in order to raise Mr. Anthony’s culpability to first degree murder, the jury would still have to be satisfied on the second element: that these sexual acts were part of the same “continuous transaction” as the unlawful acts that caused her death. Both counsel agreed that the jury should decide whether there was a single continuous transaction. Once again, if the jury had accepted Mr. Anthony’s defence concerning the “fisting”, they would have had to decide whether the sexual acts he performed on Ms. Jamieson’s unconscious or dead body were part of the same “continuous transaction” as the unlawful acts that caused her death. In resolving this question, Mr. Anthony’s statement to Officer Chu would be highly probative.
[20] For these brief reasons, I conclude that the probative value of Mr. Anthony’s statement to Officer Chu outweighed its prejudicial effect.
(d) Mr. Anthony was not detained when he gave a statement to Officer Chu
[21] If Mr. Anthony was detained when he gave his statement to Officer Chu, he was entitled to be advised of his right to counsel. The trial judge ruled that he was not detained. That ruling was well supported by the evidence on the voir dire, and I see no basis to interfere with it.
[22] At the heart of a detention – in this case an alleged psychological detention – is compulsion. An individual acquiesces to a demand by the police because the individual reasonably believes there is no choice but to comply: R. v. Therens (1985), 18 C.C.C. (3d) 481 (S.C.C.); R. v. Thomsen (1988), 40 C.C.C. (3d) 411 (S.C.C.).
[23] In Officer Chu’s interview of Mr. Anthony, the trial judge found no compulsion. The following evidence reasonably supports his finding:
• The trial judge characterized Officer Chu’s “need” for a statement as a request, not a demand. This characterization was reasonable. As the trial judge held, this request was not “imbued with the psychological compulsion that the courts are vigilant for.”
• Officer Chu interviewed Mr. Anthony for over an hour, but his questions did not contribute to an atmosphere of oppression or compulsion. Indeed, he asked few questions, and those he asked were mainly “tell me what happened.” Mr. Anthony was eager to tell his story. Officer Chu listened and took notes.
• The location for the interview did not create an atmosphere of oppression or compulsion. The back of the police cruiser was selected for its convenience and privacy. Although the door was closed, Mr. Anthony was allowed to leave, and did so to get a glass of water and smoke a cigarette.
• When the interview took place, Officer Chu did not believe that Mr. Anthony had committed a criminal offence. He certainly did not have reasonable and probably grounds to arrest him. He was simply inquiring into a suspicious death.
• The police did not know that Ms. Jamieson’s death resulted from a crime until the delivery of the autopsy report the following day. The report concluded that Ms. Jamieson could not have consented to the acts that caused her death. Officer Chu did not know this critical piece of information when he interviewed Mr. Anthony.
• As Mr. Anthony did not testify on the voir dire, there was no evidence from him that he felt compelled to comply with Officer Chu’s request for a statement.
(e) Mr. Anthony was not a suspect at the time
[24] The trial judge focussed his voluntariness ruling on whether Mr. Anthony was a “suspect” at the time because that was the principal issue argued before him. Relying on R. v. Dalzell, [2003] O.J. No. 4901 (S.C.J.), R. v. Worrall, [2002] O.J. No. 2711 (S.C.J.), and R. v. Morrison, [2000] O.J. No. 5733 (S.C.J.), the trial judge found that a caution about the right to silence assists the court in determining whether a statement given by a “suspect” was made voluntarily. In this case, the trial judge found that Mr. Anthony was not a suspect at the time, did not need a caution about his right to silence, and gave his statement voluntarily. I see no basis to interfere with this finding.
[25] The trial judge summarized his findings that Mr. Anthony was not a suspect when Officer Chu interviewed him in the following part of his ruling:
His narrative was that of a couple, not known to each other, becoming friendly, intimate, and having possible unconventional sex. The woman was described as haemorrhaging and in essence is progressively described by Mr. Anthony the morning after to be vital signs absent. This is not a narrative of a crime. There is no unlawful death as such. It is an unexplained death possibly in suspicious circumstances, and it is treated as such by Officer Hrab. It is a narrative which requires an expert opinion as to a cause of death before it can be considered a crime. It cannot be said that Mr. Anthony was a suspect throughout the Chu interview and, therefore, in need of a caution as to the right to silence.
The trial judge then concluded that Mr. Anthony gave his statement to Officer Chu voluntarily.
[26] On appeal, Mr. Anthony contends that the trial judge erred in this conclusion. He compares the trial judge’s finding on his statement to Officer Chu with the trial judge’s finding on his statement later that day at the police station. Although Mr. Anthony was not cautioned about his right to silence before either statement, the trial judge found that the statement made at the scene was voluntary and the statement made at the station was not. Mr. Anthony submits that these two findings are inconsistent because the police had the same information when they conducted both interviews.
[27] I disagree with Mr. Anthony’s submission. The trial judge held that Mr. Anthony’s statement at the station was involuntary because Mr. Anthony was being “treated like a suspect”. Mr. Anthony had been detained during his transportation to the station and up until the start of his interview with Detective Hill. Although the trial judge held that Mr. Anthony was not detained during the interview with Detective Hill, he found that the interview had been tainted by the detention: “In my opinion if a person is treated like a suspect in terms of the control of his freedom of movement, there are onerous circumstances put into play.” Because of these “onerous circumstances”, the trial judge was not convinced beyond a reasonable doubt that Mr. Anthony’s statement was made voluntarily.
[28] However, the interview in the police cruiser with Officer Chu was different. When that interview took place, Mr. Anthony was not being “treated like a suspect” and no “onerous circumstances” were in play. The trial judge was therefore convinced beyond a reasonable doubt that Mr. Anthony’s statement was voluntary. I find this conclusion reasonable.
2. The Defence of Accident and the Mens Rea for Murder
[29] At trial, Mr. Anthony put forward two main defences: he was not guilty because the harm that he caused to Ms. Jamieson was accidental; or, he was guilty only of manslaughter because he was drunk and did not have the required mens rea for murder. The trial judge charged the jury consistently with the defence’s position. He related the defence of accident to the question whether Mr. Anthony committed an unlawful act necessary for manslaughter, and he related the defence of intoxication to the question whether Mr. Anthony had the specific intent for murder.
[30] On appeal, however, Ms. Verner in her able argument for Mr. Anthony submits that the trial judge erred in where he discussed the defence of accident. She contends that accident was relevant not to whether Mr. Anthony committed an unlawful act but to whether he had the required intent for murder. Thus, the trial judge should have related the defence of accident to the question whether Mr. Anthony was guilty of murder.
[31] She also contends that the trial judge further compounded this error in two ways: he spent a significant portion of his charge on whether Mr. Anthony was guilty of first or second degree murder, when second degree murder was not even a possible verdict; and he answered questions from the jury by repeating the error in his original charge.
(a) The location of the defence of accident in the trial judge’s charge
[32] The trial judge gave the jury a series of decision trees to assist them in working through the various scenarios available to them. Each decision tree had a series of questions. One of the decision trees was for murder and it contained three questions. The trial judge discussed each question as follows:
• Did Mr. Anthony cause Ms. Jamieson’s death? The trial judge properly told the jury they should have no difficulty in answering “yes” to this question. The defence acknowledged as much.
• Did Mr. Anthony cause Ms. Jamieson’s death unlawfully? The unlawful act the Crown relied on was Mr. Anthony’s sexual assault of Ms. Jamieson by “fisting” her and causing her internal injuries. The trial judge told the jury that they would have to decide whether Mr. Anthony intended to cause Ms. Jamieson harm or whether the initial “fisting” was consensual and what happened to her was an accident. If the jury had a reasonable doubt that what happened to Ms. Jamieson was an accident, or in other words, they had a reasonable doubt that Mr. Anthony unlawfully caused her death, they must acquit. If not, they had to go on to the next question.
• Did Mr. Anthony have the state of mind required for murder? The trial judge instructed the jury on the specific intent required for murder. He then told the jury that in deciding whether Mr. Anthony had the state of mind for murder, they could take into account the evidence of his alcohol consumption. He reviewed that evidence, which included drinking several glasses of beer at the bar and about half of a forty ounce bottle of rum at his apartment. The trial judge instructed the jury that if, after taking into account the evidence of intoxication and other evidence, they were not satisfied Mr. Anthony had the state of mind for murder, they must find him guilty of manslaughter.
[33] The essence of Mr. Anthony’s submission on appeal is that the trial judge should have discussed the defence of accident under the third question, not the second question. He argues that the central issue at trial was whether he had the mens rea for murder. He says that he conceded his acts were intentional and thus he could not rely on accident to exonerate him of manslaughter.
[34] I do not accept Mr. Anthony’s submission for two reasons. First, the trial judge extensively discussed with counsel the content and structure of his charge, including the location of the defence of accident; both Crown and defence counsel approved the charge in advance and took no objection to it after its delivery. Second, Mr. Anthony did not concede that his actions were intentional.
[35] The trial judge met with counsel on his proposed charge six times. He heard submissions on what he should say to the jury over two days. He gave counsel drafts of his charge and time to review them. He asked for and took their input into account. And he gave the Crown and the defence a full draft of his charge before delivering it. As I have said, neither counsel complained beforehand or objected afterwards.
[36] Now, Mr. Anthony’s new appeal counsel seeks to second guess his trial counsel’s tactical decisions. Defence counsel at trial decided where discussing the defence of “accident” might best advance his client’s cause. Mr. Anthony’s appeal counsel takes an entirely different position. I do not think that this court should accede to it. As Doherty J.A. explained in R. v. Austin (2006), 214 C.C.C. (3d) 38 (Ont. C.A.) at para. 14, an appellate court is understandably reluctant to accept arguments that contradict positions taken at trial:
Arguments by appellate counsel that fly in the face of positions taken by counsel at trial quite properly attract judicial scepticism and resistance. The significance of counsel’s position at trial to the merits of the argument on appeal will depend on the nature of the argument advanced on appeal. Where it is alleged that an instruction to the jury was unclear, inadequate on a legal or evidentiary issue raised in the trial, or did not treat the position of the appellant at trial fairly or fully, counsel’s approval of the jury instruction and to a lesser extent his or her failure to object, will be a significant consideration on appeal…. Similarly, where an appellant argues that the trial judge failed to give an instruction that was discretionary, counsel’s failure to request the instruction at trial will be a significant consideration on appeal…. Counsel’s position at trial will become all the more significant on appeal if it appears that the position reflects a calculated tactical decision…. [Citations omitted.]
[37] Trial judges have to rely on the positions of trial counsel, as the trial judge did in this case. Otherwise we risk undermining the adversary system on which the administration of criminal justice so critically depends. Finlayson J.A. made this point in R. v. Lomage (1991), 2 O.R. (3d) 621 at 630:
Defence counsel assumes a great deal of responsibility in a criminal case and when he makes a decision, both he and his client must live with it. It is no function of this court to play the role of what in football terminology is called a “Monday morning quarterback” when it comes to trial tactics employed by counsel. If we were to do so, it would have the effect of placing an unhelpful burden on the trial judge. Instead of being able to rely on the competence of counsel who must know more about the case than the trial judge, we would effectively be saying that the trial court has an overriding responsibility to vet tactical decisions of counsel and, where necessary, to vary or reverse them. Such overweening paternalism denigrates the adversary system. Had the court taken such an approach in this case, it would have amounted to an unjustified interference in the role of both Crown and defence counsel.
[38] This court may take a different view if convinced that the position advanced at trial resulted in a miscarriage of justice or otherwise deprived the accused of a fair trial. That, however, is not the case here. The trial judge placed the defence of accident fairly before the jury and thoroughly reviewed the evidence supporting that defence. Obviously the jury rejected the contention that what happened to Ms. Jamieson was accidental.
[39] The second reason I do not accept Mr. Anthony’s position is because he did not concede he had the intent to commit an unlawful act and was guilty of manslaughter. Instead, his trial counsel argued forcefully that the jury should find him not guilty because what happened to Ms. Jamieson was an accident. Defence counsel set out Mr. Anthony’s position in giving his overview of the case to the jury:
His honour will explain to you about the law of accident. I will tell you in a moment why what happened was an accident and as a result why you should acquit Mr. Anthony. However, if all of you in your good judgment decide the Crown has convinced you beyond any reasonable doubt that this was not an accident then there is something else I am going to ask you to consider. And His Honour will explain to you what the law is with regards to intoxication. I am also going to tell you why as a result of what he had to drink Mr. Anthony was unable to commit murder.
[40] Then, after discussing the relevance of the defence of accident to Mr. Anthony’s alleged unlawful act, and arguing for an acquittal, defence counsel said:
If the Crown has convinced you beyond a reasonable doubt that what happened to Ms. Jamieson was not an accident, then you will be asked to decide whether what happened to Ms. Jamieson constituted a crime of culpable homicide. In other words, murder.
[41] In retrospect, the defence might have been more effective had it conceded that Mr. Anthony was guilty of manslaughter and argued that both intoxication and accident negated the required intent for murder. But that was not the defence’s position at trial. The trial judge instructed the jury on accident consistently with the way defence counsel argued it to the jury. I therefore cannot accept that the trial judge erred by where he located the defence of accident in his charge.
(b) Instruction on first and second degree murder
[42] Mr. Anthony submits that the trial judge further confused the jury by charging them both on first and second degree murder. He contends that second degree murder was not even a possible verdict because the alleged unlawful act for manslaughter was a sexual assault. Therefore, if he is guilty of murder he must be guilty of first degree murder (a sexual assault during the course of an intentional killing). Yet a significant portion of the trial judge’s charge centred on whether Mr. Anthony was guilty of first or second degree murder. Mr. Anthony submits that this part of the trial judge’s charge was superfluous and shifted the jury’s attention from the real issues they had to resolve. I do not agree with this submission.
[43] A conviction for second degree murder was an unlikely verdict, but a possible verdict. Although the defence conceded the “sexual nature” of Mr. Anthony’s acts, it refused to concede that Mr. Anthony was guilty of sexual assault. If the jury accepted the defence’s position but nonetheless found that Mr. Anthony intended to cause Ms. Jamieson bodily harm that he knew was likely to cause her death and was reckless whether she died (or he simply intended to kill her) they would have found him guilty of second degree murder.
[44] Moreover, however unlikely a verdict, the defence endorsed the charge on second degree murder. The defence agreed that a murder conviction would drop from first to second if a sexual offence was not made out.
[45] The trial judge’s instructions on first and second degree murder undoubtedly lengthened the charge, but especially in view of the defence’s position, they were not superfluous. More importantly, they reflected no error.
(c) The trial judge’s answers to the jury’s questions
[46] The jury asked three questions. In answering these questions, the trial judge largely repeated the relevant parts of his charge. Mr. Anthony submits that by doing so he compounded his original error. I disagree. The trial judge answered the jury’s questions appropriately and correctly.
[47] The jury first asked the trial judge to repeat his instructions on two branches of the decision tree for murder: the definition of “unlawfully” in the question “did Mr. Anthony cause Ms. Jamieson’s death unlawfully”; and the state of mind required for murder. With counsel’s agreement the trial judge did so. Neither counsel objected to the re-charge.
[48] The jury’s second question asked “must the murder tree be followed in order to reach a decision or is it just a guideline?” The trial judge discussed the appropriate answer with counsel, who agreed that he repeat his instructions about the use of the decision tree. Again, neither counsel objected to this re-charge.
[49] The jury’s third question asked the trial judge again to clarify the requisite “state of mind” for murder and “if we say yes, do we move on?” Counsel agreed that the answer to the second part of the question was “yes the jury should move on”, and the trial judge so re-charged the jury. In answering the first part of the third question, the defence proposed that the trial judge expand on his original charge. The trial judge asked the jury to clarify whether they wanted him to repeat his original instruction or give them a “reader’s digest” version. They opted for a repetition of his original instruction. The defence then made a further request that the trial judge include in his answer a summary of each side’s theory of the case. The trial judge declined to do so, stating that the theories had already been clearly put. He simply repeated his original instruction, which is what the jury had asked for.
[50] The jury’s questions show that they were struggling with but focused on the two central issues debated by the Crown and the defence: first, did Mr. Anthony commit an unlawful act or was it accidental?; and second, did Mr. Anthony have the intent to kill or was he too drunk? The trial judge’s instructions on these issues were fully and fairly set out in his charge and were approved by counsel. He did not err by repeating the instructions that the jury had requested: see R. v. Desveaux (1986), 26 C.C.C. (3d) 88 at 93 (Ont. C.A.).
[51] I would not give effect to this ground of appeal.
3. The Trial Judge’s Non-Direction on Mr. Anthony’s Post-Offence Conduct
[52] The Crown pointed to Mr. Anthony’s post-offence conduct as circumstantial evidence pointing to his guilt. It relied on three pieces of evidence: Mr. Anthony cleaned up his apartment before the police arrived; he delayed calling 9-1-1; and he ran some errands.
[53] The trial judge properly instructed the jury on both the innocent and culpable explanations for Mr. Anthony’s conduct. For example, the trial judge told the jury that Mr. Anthony has an innocent explanation for cleaning up his apartment: he was bothered by the mess.
[54] Mr. Anthony, however, submits that the trial judge’s instruction on post-offence conduct was in error in one respect. He failed to tell the jury that although Mr. Anthony’s conduct could help them determine whether he committed a crime, it could not help them determine whether the crime was murder or manslaughter. I agree with this submission.
[55] The trial judge instructed the jury that if they rejected any innocent explanation for Mr. Anthony’s conduct they could consider this conduct in reaching its verdict:
If you find what James Anthony said or did afterwards is consistent with him being conscious of having done what is alleged against him and you reject the possibility that it could have been for some innocent reason … you may consider that evidence together with all of the other evidence in reaching your verdict.
[56] The trial judge reinforced this instruction when he summarized the Crown’s position for the jury:
The after-the-fact conduct of Mr. Anthony, including his cleaning up of the scene, the lengthy delay in calling 911 and his activities the next morning, including calling Steve Sperry and offering to pay for his wages, the Crown submits are consistent with actions of first degree murder and not accident.
[57] As Mr. Anthony did not admit his culpability for his actions, the trial judge was correct in instructing the jury that they could consider Mr. Anthony’s post-offence conduct in determining his guilt. However, beginning with the Supreme Court of Canada’s decision in R. v. Arcangioli (1994), 87 C.C.C. (3d) 385 the case law has recognized that an accused’s post-offence conduct cannot be used to determine an accused’s level of culpability.
[58] Therefore, to be entirely accurate the trial judge also should have told the jury that though they could use Mr. Anthony’s post-offence conduct to determine his culpability, they could not use it to determine whether he was guilty of murder or manslaughter. This failure to so instruct the jury – this non-direction – as the Crown acknowledged in oral argument, amounted to an error in law: see R. v. Fraser (2001), 159 C.C.C. (3d) 540 (Ont. C.A.) and R. v. Peavoy (1999), 117 C.C.C. (3d) 226 (Ont. C.A.).
[59] The trial judge’s charge on Mr. Anthony’s post-offence conduct was otherwise accurate and fair. The remaining question is whether the trial judge’s non-direction deprived Mr. Anthony of a fair trial. I do not think that it did. The post-offence conduct was relatively minor. Defence counsel did not object to the trial judge’s instruction. And, as the Crown said in oral argument, this case did not turn on why Mr. Anthony cleaned up his apartment, when he called 9-1-1, or why he ran errands. The trial judge’s non-direction, therefore, caused no substantial wrong. I would apply the proviso in s. 686(1)(b)(iii) of the Criminal Code and dismiss this ground of appeal.
4. Sexual Arousal and the Mens Rea for Murder
[60] Mr. Anthony also submits that the trial judge erred by instructing the jury that Mr. Anthony’s excitement or sexual arousal could give rise to the mens rea for murder. I see no merit in this submission.
[61] The trial judge fairly told the jury that these emotions of excitement or sexual arousal could either detract from or give rise to the mens rea for murder. This instruction was balanced, approved by defence counsel, and largely in accord with Justice David Watt’s Ontario Specimen Jury Instructions (Criminal) at 1027-1028. I therefore dismiss this ground of appeal.
C. CONCLUSION
[62] The trial judge did not err in admitting into evidence Mr. Anthony’s statement to Officer Chu at the scene. Nor did he err in his charge to the jury either on the defence of accident or on the mens rea for murder. Although the trial judge did err in one respect in his charge on Mr. Anthony’s post-offence conduct, that error caused no substantial wrong and did not deprive Mr. Anthony of a fair trial. Accordingly, I would dismiss this appeal.
“J.I. Laskin J.A.”
“I agree J.C. MacPherson J.A.”
“I agree E.A. Cronk J.A.”
RELEASED: September 10, 2007