Her Majesty the Queen v. Azzam [Indexed as: R. v. Azzam]

91 O.R. (3d) 335

Court of Appeal for Ontario,

MacPherson, Epstein JJ.A. and Glithero R.S.J.

(ad hoc)

June 12, 2008

Charter of Rights and Freedoms -- Right to counsel -- Detention -- Accused convicted of first degree murder -- Accused and his girlfriend sitting on porch of deceased's house when police arrived following the discovery of body in parking lot -- Accused being deceased's stepson -- Accused and girlfriend agreeing to come to police station to be interviewed -- Police not informing accused of right to counsel before that interview -- Accused initially denying that he was present when deceased died but after being falsely told that he had been seen at time, accused stating that he had been with victim but had left her alive -- Police arresting accused and informing him of right to counsel -- Police not having reasonable and probable grounds to arrest accused before interview -- Police interviewing accused as part of general investigation and not as suspect -- Trial judge correctly holding that accused not detained during interview and s. 10(b) rights not applicable -- Ample evidence supporting trial judge's findings -- Police not infringing accused's right to counsel -- Statement properly admitted into evidence -- Canadian Charter of Rights and Freedoms, ss. 10(b), 24(2).

Criminal law -- Charge to jury -- Credibility -- Trial judge instructing jury on first two steps of W. (D.) but not on third step -- Error not having any effect on outcome -- Accused's appeal from conviction dismissed. [page336]

Criminal law -- Charge to jury -- Identification evidence -- Accused admitting killing victim but denying that he had requisite intent because of provocation and intoxication -- Eyewitness testifying as to her observations of man running from scene of murder "whooping" as if celebrating and showing dexterity inconsistent with alleged intoxication -- Crown offering evidence as evidence undermining defence of lack of intent not as evidence of identification -- Trial judge charging jury as to discrepancies in witness' evidence and her failure to pick accused's photo out of photographic line-up -- Accused not prejudiced by trial judge's failure to give standard charge about possible errors arising from eyewitness identification evidence in general.

Criminal law -- Charge to jury -- Post-offence conduct -- Accused admitting killing victim -- Accused creating alibi before offence taking place -- Trial judge properly instructing jury on use of evidence of post-offence conduct when determining issues of planning and deliberation and whether accused had requisite intent for murder despite evidence of intoxication.

Criminal law -- Charge to jury -- Murder -- Accused charged with first degree murder -- Accused admitting killing victim but denying that he had requisite intent because of provocation and intoxication -- Trial judge stating in his charge on intent and provocation that if jury was satisfied beyond reasonable doubt that accused had requisite state of mind for murder they were obligated to find him guilty of first degree murder -- Trial judge also instructing jury that if they rejected intoxication they should find accused guilty of first degree murder -- Instructions in error but trial judge quickly corrected himself -- Trial judge then instructing jury on planning and deliberation -- Charge as whole making it clear that proof beyond reasonable doubt of planning and deliberation was essential element of first degree murder.

Criminal law -- Charge to jury -- "Rolled-up charge" -- Accused convicted of first degree murder after raising provocation and intoxication -- Accused arguing that trial judge erred by failing to give "rolled-up charge" advising jury to consider whether the combination of intoxication, provocation and anger deprived the accused of intent required for murder -- "Anger" short of provocation cannot reduce murder to manslaughter -- Not appropriate case for "rolled-up charge" as provocation presupposes that accused had requisite intent -- Jury properly instructed that when applying subjective aspect of provocation (effect on accused) that should consider the effect of alcohol and drugs on him -- Charge likely too favourable to accused as doubtful that provocation should have been left.

The accused was charged with the first degree murder of his stepmother. The deceased's body was located in a parking lot. Her identification provided her address and the police went there to continue their investigation. The accused and his girlfriend were sitting on the porch of the deceased's house, although they did not live there. They agreed to come to the police station and provide statements. The accused initially denied being present when the death occurred. After an officer lied to the accused, telling him that he had been identified, he admitted killing the victim, but claimed that he lacked the intent for murder as a result of provocation and intoxication. The accused arranged to meet his stepmother in a parking lot. He borrowed a bicycle from a friend and pre-arranged an alibi. He left [page337] home carrying a duffle bag, telling his girlfriend that it contained a change of clothing. The victim was stabbed 30 times. The accused threw the knife away and rode home. An eyewitness saw a man run out of the parking lot and ride away on a bicycle. She described him as "whooping" in a celebratory manner. Her description of the man was generally consistent with the accused, but differed from him in terms of facial hair and clothing. She failed to pick the accused's picture out of a photographic line-up. When the accused arrived home, he entered through a window, showered and hid his clothing. The next day, he called the police and reported the victim as missing. He was interviewed as a "person of interest" without being informed of his right to counsel. When he stated that he met the victim in the parking lot but left her alive, he was arrested, informed of his right to counsel and given an opportunity to exercise that right. The accused was convicted of first degree murder. He appealed.

Held, the appeal should be dismissed.

The trial judge did not err in ruling that the accused was not detained at the time of his first interview and that, as a result, his s. 10(b) rights of the Canadian Charter of Rights and Freedoms were not engaged at the time of the interview. The evidence strongly supported the trial judge's finding that the police did not have reasonable and probable grounds to arrest the accused prior to the interview, and that the questioning was part of a general investigation, and not for the purpose of obtaining incriminating information from a person the police had decided was responsible for the murder. The accused's statement was properly admitted into evidence.

The Crown did not rely on the evidence of the eyewitness to prove that the accused was the killer. Rather, her evidence was relevant to the issue of the alleged lack of intent due to intoxication, and possibly of some relevance to the issue of planning. In his charge to the jury, the trial judge pointed out the discrepancies in the witness' evidence and noted that she had failed to pick the accused out of the photographic line-up. However, he did not charge the jury as to the usual frailties of identification evidence, and instead left her evidence to the jury as circumstantial evidence. While it would have been preferable had the trial judge charged the jury in the traditional way, the accused was not prejudiced. Given the limited purpose for which the evidence was offered, the jury was adequately instructed.

The trial judge properly charged the jury on the use that could be made of the accused's post-offence conduct. The evidence of post-offence conduct included that he had arranged his alibi before the offence, he changed his clothes and hid the ones he wore during the murder, deflated the air in the bicycle he used to flee the scene and then reported that his stepmother was missing. This evidence was relevant to the issues of planning and deliberation and whether he had the required intent for murder despite evidence of intoxication.

In his charge to the jury on the issue of intent and provocation, the trial judge stated that if they were satisfied beyond a reasonable doubt that the accused had the requisite state of mind for murder, they were obligated to find him guilty of first degree murder. When dealing with the issue of intoxication, he instructed the jury that if they rejected intoxication, they should find the accused guilty of first degree murder. Those instructions were in error. The trial judge quickly corrected himself and instructed the jury that if they resolved those issues in favour of the Crown, the result would be a finding of second degree murder rather than first degree murder. He also told them that he had not yet dealt with the issue of planning and deliberation, which was the extra ingredient required to be proven [page338] for first degree murder. The correcting charge was sufficient to accurately clarify the jury's understanding as to the necessary elements for the various offences relevant to their deliberations.

The trial judge did not err in failing to give the jury a "rolled-up charge" directing them to consider intoxication, provocation and "anger" together and in combination in determining whether the intent required for first degree murder had been established. "Anger" short of provocation cannot reduce murder to manslaughter. Provocation presupposes that the accused had the requisite intent whereas the evidence of intoxication went to whether he had the intent for murder. Thus, this was not an appropriate case for a "rolled-up charge". The instructions properly alerted the jury to the fact that, if they accepted that the alleged provocation would have deprived an ordinary person of self-control, the effects of the consumption of alcohol and drugs on the accused was relevant to the subjective test of whether it deprived the accused of his self-control.

The trial judge instructed the jury with respect to the first two branches of the R. v. W. (D.) formulation dealing with the acceptance of the accused's evidence, or rejection of it, but being left with a reasonable doubt by it. He did not give the third step of the W. (D.) formulation, namely that even if the evidence of the accused was totally rejected, they still had to go on to consider on the balance of the evidence whether the Crown had met the burden of proof. However, the error could not reasonably have had any effect on the outcome.

APPEAL from a conviction for first degree murder entered by Flinn J. of the Superior Court of Justice, sitting with a jury, on April 7, 2004.

Cases referred to R. v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129, [1994] S.C.J. No. 5, 111 D.L.R. (4th) 48, 162 N.R. 280, J.E. 94-241, 69 O.A.C. 26, 87 C.C.C. (3d) 289, 27 C.R. (4th) 1, 22 W.C.B. (2d) 144; R. v. Bazinet (1986), 1986 108 (ON CA), 54 O.R. (2d) 129, [1986] O.J. No. 187, 14 O.A.C. 15, 25 C.C.C. (3d) 273, 51 C.R. (3d) 139, 16 W.C.B. 164 (C.A.); R. v. MacKinnon (1999), 1999 1723 (ON CA), 43 O.R. (3d) 378, [1999] O.J. No. 346, 117 O.A.C. 258, 132 C.C.C. (3d) 545, 41 W.C.B. (2d) 159 (C.A.); R. v. Moran, 1987 124 (ON CA), [1987] O.J. No. 794, 21 O.A.C. 257, 36 C.C.C. (3d) 225, 2 W.C.B. (2d) 347 (C.A.) [Leave to appeal to S.C.C. refused [1998] 1 S.C.R. xi]; R. v. Parent, [2001] 1 S.C.R. 761, [2001] S.C.J. No. 31, 2001 SCC 30, 199 D.L.R. (4th) 622, 268 N.R. 372, J.E. 2001-1045, 154 C.C.C. (3d) 1, 41 C.R. (5th) 199, 49 W.C.B. (2d) 443; R. v. Peavoy (1997), 1997 3028 (ON CA), 34 O.R. (3d) 620, [1997] O.J. No. 2788, 101 O.A.C. 304, 117 C.C.C. (3d) 226, 9 C.R. (5th) 83, 35 W.C.B. (2d) 375 (C.A.); R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 122 N.R. 277, J.E. 91-603, 46 O.A.C. 352, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302, 12 W.C.B. (2d) 551; R. v. Walle, [2007] A.J. No. 1195, 2007 ABCA 333, 230 C.C.C. (3d) 181, 82 Alta. L.R. (4th) 1, 417 A.R. 338, 77 W.C.B. (2d) 140 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 10(b), 24(2) Criminal Code, R.S.C. 1985, c. C-46, ss. 229(a)(i), (ii), 686(1)(b)(iii)

Irwin Koziebrocki, for appellant. M. David Lepofsky, for respondent. [page339]

GLITHERO R.S.J. (ad hoc): -- A. Introduction

[1] Mr. Azzam appeals his conviction for first degree murder.

[2] The victim was Eftihia Azzam, the appellant's stepmother. Her body was found beside her vehicle in a parking lot in the early morning hours of May 23, 2001 in the City of London. She died as a result of multiple stab wounds to the chest.

[3] In statements to the police, and in his trial evidence, the appellant admitted killing her.

[4] The issues of provocation and lack of intent as a result of intoxication were raised at trial and left with the jury. The available verdicts were those of manslaughter, second degree murder or first degree murder.

[5] The appellant advances a number of grounds of appeal:

(a) that the trial judge erred in failing to conclude that the first of three statements given by the appellant to the police was obtained in violation of his s. 10(b) right to counsel, and ought to have been excluded under s. 24(2) [both of the Canadian Charter of Rights and Freedoms];

(b) that the trial judge erred in his instructions to the jury as to the use of post-offence conduct;

(c) that the trial judge erred in instructing the jury that if they found that the appellant had the required intent for murder, and that if they rejected provocation, the appropriate verdict was one of first degree murder, in circumstances where the appropriate direction would have been that those findings would substantiate a finding of murder, with planning and deliberation being the additional element required for first degree murder. The appellant contends that the trial judge's correcting instruction was insufficient;

(d) that the trial judge erred in failing to give a "rolled-up" instruction as to the cumulative effect of drug and alcohol intoxication, provocation and anger with respect to the intent required for murder;

(e) that the trial judge erred in failing to give a complete W. (D.) instruction;

(f) that the trial judge's instructions to the jury on eyewitness identification were inadequate; [page340]

(g) that the trial judge erred by failing to refer, on some occasions during his charge, to one of the required elements of the second type of intent necessary for murder, as defined in s. 229(a)(ii) [Criminal Code, R.S.C. 1985, c. C-46].

B. Facts

[6] The appellant was 21 years of age. When he was two, the victim married his father. His father died unexpectedly in 1999. The victim was angry that she had not been left adequate insurance and spoke ill of the appellant's father. There was evidence that thereafter the appellant became increasingly angry with his stepmother. Her disrespect upset the appellant, as did the fact that she gave away some of his father's belongings, and she had a new boyfriend move in with her in what the appellant thought to be an unseemly short period of time following his father's death. He also admitted being upset by remarks the victim made when she spoke of selling the family home and moving to Greece.

[7] The appellant and his girlfriend, Sandy Viveiros, lived in an apartment near the victim's home and would frequently visit her. In the period prior to the killing the appellant and Viveiros frequently stayed over at her home. In this period the victim became increasingly depressed and she abused alcohol and sleeping pills.

[8] In the months prior to the killing, the appellant had spoken to Viveiros about wanting to kill his stepmother, although the evidence was inconsistent as to whether he was serious. On one occasion the victim left a suicide note and the appellant kept it and indicated that it might be of use later. There was evidence that on one occasion the appellant deliberately caused the victim to ingest an overdose of sleeping pills.

[9] On the evening leading up to the killing, the appellant told Viveiros that this was the day he was going to do "it". He consumed alcohol and marijuana. He left his stepmother's home and went to his own apartment. He phoned his stepmother from a phone booth and asked her to meet him in the parking lot where her body was subsequently found. He borrowed a bicycle from a friend which he used to get to that parking lot, and to leave from it.

[10] The appellant and Viveiros arranged to have a friend, Stacey, come over to the victim's home so as to unwittingly be available as an alibi. Viveiros was to show Stacey the bed with the covers rumpled in such a way as to suggest that the appellant was asleep in the bed, when in fact he was out confronting his [step] mother. This was done with the appellant's prior knowledge.

[11] The appellant left the victim's home carrying a duffle bag. Viveiros testified that he told her it contained a change of [page341] clothing. The appellant testified he could not remember what the bag contained.

[12] The appellant rode the borrowed bicycle to the parking lot of the community centre at which he had requested the victim to attend. He had with him a six-inch kitchen knife. As she sat in the driver's seat he inflicted 30 knife wounds, 18 of which were to her chest, and the balance were in the nature of defensive wounds to the hands and arms of the victim. Of the 18 wounds to the chest, seven were superficial and of a slashing nature, but the other 11 penetrated the chest and vital organs.

[13] Linda Kozar lived near the parking lot. She observed a man run out of the parking lot towards her and to ride away on the bicycle. Her description of the man was generally consistent with the appellant in terms of age and racial background, but differed from him in terms of the amount of facial hair and clothing. It was the same witness who early the next morning discovered the victim's body in the parking lot and alerted police. Later that same morning she was shown a photographic line-up and failed to pick out the appellant's picture.

[14] After the killing, the appellant threw the knife in a nearby field and rode the bicycle to his stepmother's home. He hid his shoes in a hedge behind her house, and put the bicycle behind other items in the garage. When found, the tires of the bicycle were deflated. Viveiros and Stacey were in the home. The appellant entered the home by sneaking in through a bedroom window. He called Viveiros into the bedroom and reported that "it" was done. He showered. He hid the clothing he had been wearing in the bedroom and in the garage. Bloodstains on the clothing matched the DNA of the victim.

[15] In the early morning hours after the killing, initially Viveiros, and subsequently the appellant, each telephoned the police to report the victim as missing.

[16] The appellant testified at trial. He admitted that he felt angry towards the victim because of things she said and did, which he felt did not show proper respect towards his father. He admitted being upset by the fact that she had another man move into his father's home. The appellant admitted that on occasion he talked to Viveiros about killing his stepmother, but at trial claimed it was just a way of venting his anger. At trial he admitted he planned to have Stacey visit so as to be able to confirm his presence in the house, while in fact he would be out confronting his stepmother.

[17] The appellant's evidence was that during the meeting in the victim's car in the parking lot, they discussed various feelings each had arising out of his father's death. He testified he felt he [page342] was sober enough to talk to her about these matters. While the last topic he could remember being discussed was her intention to sell the house and move to Greece, he testified at trial that he didn't really take that seriously. His evidence is that he called her a greedy bitch, and she told him to get out of her life and that he could rot in hell with his father. As a result, he snapped, or lost it, took out the knife and stabbed her. In chief, he testified he remembered stabbing his stepmother, but thought it was only four or five times, that he was mad and lost control.

[18] In cross-examination, he admitted telling the police that he had planned this in his head. When questioned as to what he meant by "planned", he said that at the time he snapped his intentions were to kill his stepmother. When asked why he called the victim to ask her to meet him in the parking lot, rather than confronting her either in her home, or in his apartment, he said that had never occurred to him. He agreed that it was arranged that Stacey would be there so she could say he had been in bed the whole time, so that no one would know that he had been with the victim. He agreed that he had known beforehand that his stepmother had talked about selling the house and accordingly that was not a surprise to him that night. He admitted in cross-examination that he was angry just before he stabbed her, that he was aware he had the knife, he was aware of the victim's identity, he was aware that she was screaming as he stabbed her and that she was trying to defend herself. He agreed and accepted that he had told the police that as soon as he had stabbed her the first time he knew that he had to continue. He admitted that while stabbing her he turned his mind to whether it was murder or attempted murder and decided that it was the same thing so he decided to keep going. He agreed that in the midst of stabbing her he was able to contemplate the consequences, and the potential penalties, and decided they would be the same. He agreed that he was not flailing around with the knife but rather hitting his target each time. He admitted he thought to throw away the knife immediately after stabbing her, that he was able to ride home on the bicycle, that he had sufficient awareness to climb through the window to gain access to the home without being seen by Viveiros and Stacey and that he hid his shoes and clothing. He admitted that in response to comments by the victim in the car to the effect that he was drunk, that he told her "Yeah, I know I'm drunk but I know exactly what I'm doing", and he admitted that is what he believed. [page343]

C. Grounds of Appeal

Ruling on motion to exclude statement of the appellant

[19] The appellant challenges the trial judge's pre-trial ruling denying an application to exclude the appellant's first statement to the police on May 23, 2001 on the basis that it was obtained in violation of his s. 10(b) right to counsel. Voluntariness was not at issue.

[20] The victim's body had been discovered earlier that morning. The police knew the vehicle was registered to the victim and knew her home address. By that stage her purse containing her identification had not yet been found in the field where the appellant had thrown it. The police also knew that the witness, Linda Kozar, had reported the sighting of the man on the bicycle in the area and had given a description which in terms of general appearance resembled the accused. Both Viveiros and the appellant had telephoned the police to report the victim missing.

[21] The only evidence on the application was that of two police officers. The evidence was that police records disclosed the appellant also lived at the victim's address, and provided a physical description of the appellant which in general terms matched the description given by Kozar. Detective Chantler had caused the victim's residence to be placed under surveillance and the appellant and Viveiros had been observed. The appellant was noted to match the general physical description given by Kozar. Chantler directed other officers to maintain surveillance on the appellant, but gave directions that he was not to be approached unless he appeared to be leaving the area, in which case Chantler would attend and advise him that the body was believed to be that of his stepmother.

[22] At 5:52 a.m., detectives arrived at the victim's home and found the appellant and Viveiros sitting on the front porch. Police advised the appellant that the body discovered earlier was believed to be that of his stepmother. The appellant and Viveiros were asked to attend at the police station for a videotaped interview. The police evidence was that such interviews were standard practice and designed to obtain background information about the victim and her whereabouts in the days preceding the death. The appellant and Viveiros agreed to the interview.

[23] Viveiros was interviewed first and gave an alibi that the appellant had been at home all night and provided the name of Stacey, the other alibi witness. During her interview the police also had been advised that the witness Kozar had failed to identify the appellant in the photographic line-up shown to her. [page344]

[24] At 8:14 a.m., Detective Hettinga began to interview the appellant, under the direction of Detective Chantler. The two had discussed and agreed they did not have reasonable and probable grounds to arrest the appellant. They classified him as being a person of interest. They agreed that if anything was said by the appellant during the interview to change that status, the interview would be stopped and the appellant would be arrested and advised of his rights to counsel. Initially the appellant denied having seen his stepmother at the relevant time. Hettinga did advise him that a witness had "picked him out" of a line-up, which was false. The officer explained that he did this so as to see if that would cause the appellant to change his story. The officer also asked the appellant if he would agree to provide a DNA sample, and testified that such requests are standard in cases of this nature. The appellant agreed, and also consented to a search of the house.

[25] The appellant made exculpatory comments during the interview. After approximately 45 minutes he admitted that he had been at the community centre, and had spoken to his stepmother, but had left her alive. Upon that admission being made, the interview was terminated and he was arrested and given his rights to counsel and arrangements were made for him to speak to counsel by telephone.

[26] Both officers testified that the appellant had been free to leave the police station at any time up to the point that he was arrested, and the police testified they had made no demands or given any directions inhibiting the freedom of the appellant.

[27] There was no evidence that the appellant felt that he had been "psychologically" detained. He did not testify on the application. There was no evidence of acquiescence in a demand or direction, which is essential to constitute psychological detention: R. v. Bazinet (1986), 1986 108 (ON CA), 54 O.R. (2d) 129, [1986] O.J. No. 187, 25 C.C.C. (3d) 273 (C.A.).

[28] The trial judge ruled that the appellant had not been detained at the time of this first interview, and that accordingly his s. 10(b) rights had not been engaged. There was ample evidence to support this conclusion. The fact that the physical description given by Kozar only generally matched the appellant, the fact that she had subsequently failed to pick his photograph out of a line-up, and the alibi evidence given by Viveiros on behalf of the appellant strongly support the trial judge's finding that the police did not have reasonable and probable grounds to charge or arrest the appellant prior to the interview. There was ample evidence upon which the trial judge could conclude that the questioning was part of a general [page345] investigation, as opposed to police questioning for the purpose of obtaining incriminating statements from a person the police had decided to be responsible for the crime, as delineated in R. v. Moran, 1987 124 (ON CA), [1987] O.J. No. 794, 36 C.C.C. (3d) 225 (C.A.), leave to appeal refused [1998] 1 S.C.R. xi, to which the trial judge referred.

[29] The trial judge's findings of credibility and findings of fact are entitled to appellate deference. I see no basis to interfere and would not give effect to this ground of appeal.

[30] Subsequent statements by the appellant in which he confessed to the killing were not challenged on appeal.

Identification evidence

[31] The appellant submits that the trial judge failed to adequately instruct the jury concerning the evidence of the eye witness, Linda Kozar, in that he failed to caution them as to the inherent frailties of identification evidence.

[32] The Crown's case did not rely upon her evidence to prove that the appellant was the killer. His own evidence proved that. Linda Kozar's evidence was of some relevance in that she described the man who approached her from the direction of the community centre as "whooping like an Indian", suggesting to her that the sound was of a celebratory nature. That evidence would be relevant to the issue of the alleged lack of intent by reason of intoxication, and possibly of some relevance to the issue of planning.

[33] On the morning of the killing, Kozar had provided the police with a description of the man which matched the appellant's general appearance, but was inaccurate as to clothing. When shown a photographic line-up, Kozar had failed to pick out his photograph. When she testified in chief at trial, she said "he looks just like the gentleman sitting behind you . . . but he had a lot more facial hair then and he wore greens, hospital greens, and he had a toque on but . . . what kind of jacket or that, I don't recall".

[34] Kozar had also described the bicycle to the police as being purple and silver. At trial she was not shown a photograph of the bicycle recovered from the appellant.

[35] In the pre-charge conference, defence counsel specifically asked for the traditional charge regarding the frailties of eye witness identification. Defence counsel detailed Kozar's evidence and the frailties of identification evidence in his address to the jury. In her address, Crown counsel submitted to the jury that it was up to them to decide whether or not to accept Kozar's evidence that she believes the appellant was the man she saw that night. [page346]

[36] In the charge to the jury, the trial judge pointed out the discrepancies in her description to the police as compared to a photograph of the appellant, the fact that she had failed to pick the appellant out of the photographic line-up and recited the qualified nature of her identification in court. He reviewed the evidence as to her description of the bicycle accurately. He did not charge the jury as to the usual frailties of identification evidence. Rather he left her evidence to the jury as circumstantial evidence.

[37] By way of objections to the charge, defence counsel again requested the traditional charge. Crown counsel at trial suggested the charge as given was sufficient.

[38] The trial judge declined to re-charge the jury on that issue, expressing his view that to do so would call attention to her evidence which he thought to be prejudicial to the appellant.

[39] In my opinion, the trial judge fairly reviewed the relevant evidence for the jury, and properly raised with them the need to consider whether by coincidence there could have been another man in that particular location with similar features and riding a similar bicycle. The jury had the appellant's testimony that he had killed the victim at that location and then left on a bicycle.

[40] The probative value of her evidence lay not in identification in the usual sense, but rather in her description of the celebratory whooping of the man she saw, and in her description of his physical dexterity which undermined the defence of lack of intent or planning and deliberation based on drug or alcohol intoxication.

[41] In my opinion, it would have been preferable had the trial judge charged the jury in the traditional way. Instead he chose to put her evidence to the jury as in effect falling short of identifying the appellant, but amounting to circumstantial evidence as to the identity of the man she observed. He invited the jury to consider whether it was prepared to draw the inference that the man she described was one and the same as the appellant, to which he coupled the warning that the appellant was to be given the benefit of any reasonable doubt.

[42] Given the limited purpose for which this evidence was offered, which did not involve reliance upon it to prove the identity of the perpetrator, in my view the jury was adequately instructed with respect to the discrepancies in her description of the man and the bicycle. The jury was advised to determine whether the man was indeed the appellant, or whether there was a reasonable possibility that the witness saw a similar man on a similar bicycle at that same location and at the same time. The jury was instructed to give the benefit of any reasonable doubt on the issue to the appellant. [page347]

[43] Given that the correct factual discrepancies were pointed out, in my opinion, the manner in which the trial judge chose to categorize the evidence and hence to instruct the jury caused no prejudice to the appellant. I would not accede to this ground of appeal.

Instructions on the use of post-offence conduct

[44] The appellant objects to the instructions on the use that could be made on post-offence conduct in a case like this where the appellant has admitted responsibility for the killing. Counsel contends that a "no probative value" instruction ought to have been given on the issue of whether the killing amounted to manslaughter as opposed to murder, in accordance with the directions in R. v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129, [1994] S.C.J. No. 5, 87 C.C.C. (3d) 289.

[45] The post-offence conduct here consisted of the creation and use of the alibi, the changing and then hiding of the clothes, the flattening of the tires on the bicycle and advising the police of the missing person. I point out that the real significance of the alibi evidence was that it was arranged before the killing.

[46] As was held in R. v. MacKinnon (1999), 1999 1723 (ON CA), 43 O.R. (3d) 378, [1999] O.J. No. 346, 132 C.C.C. (3d) 545 (C.A.), at p. 384 O.R., p. 547 C.C.C., post-offence conduct depending on the circumstances of the case can be relevant to the issue of the intent required for murder, and can be relevant to the issue of planning and deliberation. In my opinion, this evidence was relevant to those issues in the circumstances of this case. The actions of the appellant shortly after the killing were relevant to the issue of intoxication, and hence to the issue of the intent required for murder. The putting into play of an alibi arranged before the murder was relevant to the issue of planning and deliberation. Defence counsel at trial conceded in pre-charge conference submissions that the evidence was relevant to the issue of planning and deliberation. The Crown's address to the jury did not invite any improper usage of the post-offence conduct.

[47] In his closing address to the jury, defence counsel referred to some of the same evidence as being inconsistent with either an intentional or planned and deliberate murder, arguing that better efforts to dispose of the incriminating evidence would have been undertaken if the murder was intentional and planned and deliberate. It would have been an error to charge the jury that they were not entitled to consider the alternate use to which the evidence could be put.

[48] As indicated in R. v. Peavoy (1997), 1997 3028 (ON CA), 34 O.R. (3d) 620, [1997] O.J. No. 2788, 117 C.C.C. (3d) 226 (C.A.), after-the- fact [page348] conduct can be relevant to prove that an accused had the required intent for murder despite evidence of intoxication. In my opinion, such evidence was admissible for this purpose in this case. The action of the appellant very shortly after the killing was capable of demonstrating both physical dexterity and mental awareness that would be inconsistent with intoxication to the point of preventing the formation of the intent required for murder.

[49] Once post-offence conduct is determined to be admissible on the issue of planning and deliberation, in the vast majority of cases it is artificial to say that it is inadmissible on the issue of intent required for murder, in that most planned and deliberate homicides will not involve unintended killings. It is further submitted that the trial judge erred in instructing the jury to consider all the evidence "before, at the time, and after" the killing. In the circumstances of this case, at least, there was no error in that instruction.

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

Instructions to convict on first degree murder in the case of certain findings

[51] In his charge to the jury on the issue of intent and intoxication, the trial judge charged the jury that if they were satisfied beyond a reasonable doubt that the appellant had the required state of mind for murder, they were obligated to find him guilty of first degree murder. Similarly, when dealing with the issue of intoxication, the trial judge instructed the jury that if they rejected intoxication they should find the appellant guilty of first degree murder. Further, in instructing the jury with respect to provocation, he instructed the jury to find the appellant guilty of first degree murder if they rejected provocation.

[52] It is obvious that those instructions were in error. Jury conclusions adverse to the appellant on the issues of the intent required for murder, intoxication as affecting that issue, and provocation would all lead to a finding of guilt for murder, as opposed to first degree murder. Such findings by the jury would then properly be followed by a consideration of the issue of planning and deliberation as the additional step required to elevate the crime to one of first degree murder.

[53] Immediately after giving the jury these instructions, the court took a normally scheduled morning recess. As soon as the jury retired, defence counsel brought the error to the trial judge's attention. Upon resuming after the 15-minute recess the trial judge immediately instructed the jury that he had been in error [page349] in his earlier instructions, and charged them that if they resolved those three issues in favour of the Crown, the result would be a finding of second degree murder, rather than first degree murder. He instructed the jury that he had not yet dealt with the issue of planning and deliberation, which is the extra ingredient required to be proven for first degree murder.

[54] This correcting instruction clearly admitted the prior error, clarified it, and was delivered as the very next instruction received by the jury, and well in advance of jury deliberations.

[55] Defence counsel at trial raised no objection to the correcting instruction.

[56] The trial judge correctly instructed the jury both at the outset of the jury charge, at its conclusion, and during the charge on planning and deliberation, that this latter element was required to be proven beyond a reasonable doubt before the jury could return a verdict of first degree murder. The jury's return of that verdict demonstrates that they were so satisfied.

[57] I am of the view that the correcting charge was sufficient to accurately clarify the jury's understanding as to the necessary elements for the various offences relevant to their deliberations. Read as a whole, the charge made it clear to the jury that proof of planning and deliberation beyond a reasonable doubt was an essential element for first degree murder and that the jury could not have been left in confusion on that issue. I would not give effect to this ground of appeal.

[58] There is a sub-issue relating to the instructions as to the intent required for murder pursuant to s. 229(a)(i) and (ii), his issue was not identified in either the notice of appeal or the appellant's factum, but was pursued during oral submissions.

[59] In dealing with the issue of the intent required for murder, the trial judge correctly instructed the jury twice on the constituent elements, in full, of the two types of intent set forth in s. 229(a).

[60] In three subsequent references to the intent required for murder under s. 229(a)(ii), his instruction to the jury was incomplete in that it omitted the element "that he knows is likely to cause death".

[61] In six subsequent passages, the trial judge referred to "the required intent" or "the intent for murder" or "either of the intents for murder" without repeating the definition.

[62] The first three occasions where the trial judge purported to give the s. 229(a)(ii) instruction but omitted the element that "he knows is likely to cause death" constituted an error. The later references to the intent required for murder, or the "required intent", are in my opinion of little concern. While it would have [page350] been preferable to fully instruct the jury as to all elements of both types of intent necessary for murder and then to expressly advise the jury "that hereafter my references to the intent required for murder would be to either or both of the required intents for murder as I have defined them for you", in my opinion that is not an absolute requirement. The omission of the phrase "that he knows is likely to cause death" is of potential concern in that it constitutes one of the elements required for the second type of intent permitted under s. 229(a).

[63] There were no objections at trial to that portion of the charge. In the circumstances of this case I am of the view that the error would have no practical effect. Given the number of stab wounds, the multiple stab wounds to the chest of the victim, and the admission during the appellant's testimony that while stabbing his stepmother he turned his mind to the issue of attempted murder as compared to murder, and to the penalties for each, and decided to keep going, in my opinion the only reasonable conclusion for the jury to reach, once they had rejected intoxication and provocation, was that the appellant intended to kill as contemplated in s. 229(a)(i).

Failure to give a "rolled-up" charge

[64] It is submitted on behalf of the appellant that the trial judge erred in failing to give the jury a "rolled-up" instruction directing them to consider intoxication, provocation and anger together and in combination in determining whether the intent required for murder had been established.

[65] "Anger" (short of provocation) cannot reduce murder to manslaughter, and accordingly "anger" cannot be a factor in a rolled-up charge: R. v. Parent, 2001 SCC 30, [2001] 1 S.C.R. 761, [2001] S.C.J. No. 31, 154 C.C.C. (3d) 1, at para. 10; R. v. Walle, [2007] A.J. No. 1195, 2007 ABCA 333, at para. 31.

[66] In my opinion, the Crown correctly submits that in the circumstances of this case provocation and intoxication would not be the proper subject of a rolled-up charge. Intoxication is relevant to the issue of whether the appellant had the required intent. Provocation by definition presupposes the required intent but reduces the offence to one of manslaughter.

[67] Further, in his instructions on provocation the trial judge properly directed the jury to consider the effect of the alleged provocation on the ordinary person, and then instructed the jury to consider the effect of the alleged provocation on the appellant and, in so doing, to take into account the effect of alcohol or drugs on him. [page351]

[68] In my opinion, that instruction was sufficient to bring home to the jury that the claimed alcohol and drug ingestion was relevant not only to the issue of intent, but also to the issue of provocation.

[69] I also agree with the Crown's submission that the appellant likely received an undeserved bonus by having the issue of provocation left with the jury at all. The subject matter of the discussions between him and the deceased did not involve any factors that were new. They had been discussed previously. While there may have been some new expressions in terms of name calling, in his testimony the appellant admitted making a conscious decision to keep stabbing the victim because on his analysis there was no difference between murder and attempted murder. That admission of conscious deliberation is inconsistent with provocation. The verbal confrontation between him and his stepmother was also something the appellant had arranged to take place, and on his own evidence her hurtful comments were in response to his calling her a greedy or selfish bitch.

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

W. (D.) instruction

[71] The appellant submits that the trial judge erred in failing to give a full instruction pursuant to the decision in R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 63 C.C.C. (3d) 397, at p. 409 C.C.C.

[72] In the jury charge, in the sections relating to intention, intoxication, and to planning and deliberation, the trial judge instructed the jury with respect to the first two branches of the W. (D.) formulation dealing with the acceptance of the appellant's evidence, or rejection of it, but being left with a reasonable doubt by it. At no point did the trial judge give the third step of the W. (D.) formulation, namely that even if the evidence of the appellant is totally rejected, they must still go on to consider on the balance of the evidence whether the Crown has met the burden of proof. This was an incomplete instruction.

[73] On the other hand, in numerous instances throughout the charge, the trial judge instructed the jury to consider all of the evidence.

[74] Failure to give a full instruction in this regard was the subject of an objection to the charge by defence counsel. The trial judge declined to recall the jury to further charge on that issue, initially reasoning that he thought he had dealt with it clearly enough, and thereafter declining to do so on the basis that a verdict of not guilty was unavailable to the jury. [page352]

[75] At no point in the charge was there a suggestion that rejection or disbelief of the appellant's evidence constituted proof of the opposite.

[76] An appellate court must take a functional approach when assessing the adequacy of jury instructions and determine whether they fulfilled the purpose for which they were given. While, in my opinion, the charge was in error in failing to give a complete W. (D.) instruction, I conclude that the error could not have reasonably had any effect on the outcome in this matter. It was only the evidence of the appellant that theoretically called into question the issue of planning and deliberation, and only his evidence that arguably, at best, amounted to a denial of the intent necessary for murder. If his evidence was rejected, on the balance of the evidence the outcome was clear.

[77] I would not allow the appeal on this ground.

The curative proviso

[78] Lastly, the Crown submits that if we should find there to be merit in any of the grounds of appeal, the appeal should nevertheless be dismissed by application of s. 686(1)(b)(iii). I agree.

[79] For the reasons given, I have concluded that in the circumstances of this case, none of the deficiencies identified in the charge to the jury constitute a reversible error.

[80] Moreover, if I had come to a different conclusion with respect to any of the deficiencies in the charge, even if viewed cumulatively, in my opinion the evidence led was so overwhelming that there was no substantial wrong or miscarriage of justice. The admissions by the appellant to the police in the unchallenged statements, his admissions in testimony before the jury particularly as to his thoughts during the killing, together with the unchallengeable evidence of a pre-planned alibi, constitute an unanswerable case of first degree murder.

D. Result

[81] For these reasons, I would dismiss the appeal.

Appeal dismissed.