R. v. MacDonald

92 O.R. (3d) 180

Court of Appeal for Ontario,

Doherty and MacFarland JJ.A and Kent J. (ad hoc)

August 1, 2008

Charter of Rights -- Right to jury trial -- Verdicts -- Accused charged with second degree murder -- Accused unequivocally acknowledging culpability for manslaughter at trial but not pleading guilty to manslaughter -- Trial judge instructing jury that it could only find accused guilty of second degree murder or guilty of manslaughter in accordance with wishes of defence counsel -- Evidence that accused causing death very strong, and accused hoping for tactical advantage of being perceived as "stand up" guy when jury weighing the evidence regarding whether the accused had requisite intent for murder -- No formal admission required in order for judge to give effect to accused's acknowledgement of one or more element(s) of the offence even if admission resulting in removing certain verdicts from jury -- Trial judge not depriving accused of constitutional right to jury trial by failing to instruct jury that "not guilty" was possible verdict.

Criminal law -- Evidence -- Propensity evidence -- Charge to jury -- Accused's experiences in prison relevant to his state of mind at time of alleged offence -- Trial judge giving careful instruction against propensity reasoning as it related to accused's prior criminal activity -- Accused's appeal from conviction for second degree murder dismissed.

Criminal law -- Charge to jury -- Intent for murder -- Accused convicted of second degree murder -- Trial judge erring by telling jury that "reckless" in s. 229(a)(ii) meant that accused saw risk that victim "could die" from choking but went ahead anyway -- Section 229(a)(ii) requiring that accused foresee victim's death as "likely" -- Trial judge instructing jury many times that it could convict under s. 229(a)(ii) only if satisfied beyond reasonable doubt that accused knew that choking would probably cause victim's death -- Jury not misled by trial judge's misstatement -- Accused's appeal dismissed -- Criminal Code, R.S.C. 1985, c. C-46, s. 229(a)(ii).

The accused choked the victim during consensual sexual activity. He was charged with second degree murder. While the accused did not plead guilty to the included offence of manslaughter, defence counsel made it clear throughout the trial that the accused acknowledged that he had unlawfully caused the victim's death and that he was guilty of manslaughter. The trial judge instructed the jury that there were only two possible verdicts: guilty of second degree murder or guilty of manslaughter. The accused was found guilty of second degree murder. On appeal, he argued that the trial judge deprived him of his constitutional right to a jury trial by failing to instruct the jury that "not guilty" was a possible verdict. He also submitted that the trial judge misdirected the jury on the meaning of "reckless" in s. 229(a)(ii) of the Criminal Code and that the trial judge failed to adequately caution the jury against the use of propensity reasoning in respect of evidence about the accused's prison history.

Held, the appeal should be dismissed.

An accused's right to a trial by jury forecloses judicial exclusion of the possibility of an acquittal based on the trial judge's assessment of the case at the end of the evidence. However, the possibility of an acquittal can be removed from the [page181] jury based on an admission by the accused of culpability with respect to an included offence or an essential element of the offence. A formal admission of liability, such as a guilty plea, is not required. In this case, the accused clearly and repeatedly admitted his culpability on the charge of manslaughter. He did not want a verdict of acquittal left with the jury because that suggestion would run at cross purposes to his attempt to gain a tactical advantage by presenting himself as a "stand up" person, prepared to acknowledge and take responsibility for the wrong he had done. In the exercise of his right to control his own defence, the accused chose to remove an acquittal from the list of possible verdicts. The trial judge did not err in respecting that choice.

The trial judge instructed the jury that the term "reckless" in s. 229(a)(ii) of the Code meant that the accused saw the risk that the victim "could die" from the injury but went ahead anyway and took the chance. This was an error as the phrase "could die" might have suggested to the jury that something less than foresight of the likelihood of death would suffice for the imposition of liability under s. 229(a)(ii), whereas the section requires proof that the accused knew that his act was "likely" to cause death and was reckless whether death ensued. However, the trial judge on ten occasions told the jury that it could convict under s. 229(a)(ii) only if satisfied beyond a reasonable doubt that the accused knew that the bodily harm he inflicted (the choking) would probably cause the victim's death. The jury would not have had any trouble understanding that it could convict only if satisfied that the accused knew that he was likely to cause the victim's death when he was choking him; therefore, the misstatement did not amount to misdirection.

The evidence of the accused's experiences while in prison was relevant to his state of mind at the time of the homicide, which was the key issue in dispute. The evidence was relevant to the issue of whether the accused would have panicked in the face of aggressive behaviour. There was little risk that the jury would have misused it by inferring that the accused was a bad person and therefore had the requisite intent. The trial judge gave a careful instruction against propensity reasoning as it related to the accused's prior criminal activity and the accused did not seek additional instructions on this point. That ground of appeal failed.

APPEAL from a conviction entered by Epstein J. with a jury, dated June 22, 2004, for second degree murder.

Cases referred to R. v. Gunning, [2005] 1 S.C.R. 627, [2005] S.C.J. No. 25, 2005 SCC 27, 253 D.L.R. (4th) 76, 333 N.R. 286, J.E. 2005-988, 211 B.C.A.C. 51, 196 C.C.C. (3d) 123, 29 C.R. (6th) 17, apld R. v. Allen, [2007] O.J. No. 4458, 2007 ONCA 790, 75 W.C.B. (2d) 730; R. v. Krieger, [2006] 2 S.C.R. 501, [2006] S.C.J. No. 47, 2006 SCC 47, 272 D.L.R. (4th) 410, 354 N.R. 1, [2007] 1 W.W.R. 1, J.E. 2006-2087, 65 Alta. L.R. (4th) 1, 401 A.R. 381, 213 C.C.C. (3d) 303, 147 C.R.R. (2d) 149, 71 W.C.B. (2d) 70, EYB 2006-110508; R. v. Maharaj, [2007] O.J. No. 87, 2007 ONCA 18, 73 W.C.B. (2d) 159; R. v. Patterson (2006), 2006 2609 (ON CA), 79 O.R. (3d) 257, [2006] O.J. No. 361, 207 O.A.C. 147, 205 C.C.C. (3d) 171, 38 C.R. (6th) 157, 69 W.C.B. (2d) 43 (C.A.), consd Other cases referred to R. v. Cooper, 1993 147 (SCC), [1993] 1 S.C.R. 146, [1993] S.C.J. No. 8, 146 N.R. 367, J.E. 93-248, 103 Nfld. & P.E.I.R. 209, 78 C.C.C. (3d) 289, 18 C.R. (4th) 1, 18 W.C.B. (2d) 367; R. v. Czibulka, 2004 22985 (ON CA), [2004] O.J. No. 3723, 190 O.A.C. 1, 189 C.C.C. (3d) 199, 24 C.R. (6th) 152 (C.A.) [Leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 502, 195 C.C.C. (3d) vi]; R. v. Latoski (2005), 2005 30697 (ON CA), 77 O.R. (3d) 505, [2005] O.J. No. 3565, 202 O.A.C. 102, 200 C.C.C. (3d) 361, 66 W.C.B. (2d) 423 (C.A.); R. v. Lessey (2006), 2006 11847 (ON CA), 80 O.R. (3d) 181, [2006] O.J. No. 1476, 209 O.A.C. 6, 208 C.C.C. (3d) 186, 69 W.C.B. (2d) 196 (C.A.); R. v. MacDonald, [2004] O.J. No. 1756, 61 W.C.B. (2d) 632 (C.A.); [page182] R. v. Nygaard, 1989 6 (SCC), [1989] 2 S.C.R. 1074, [1989] S.C.J. No. 110, 101 N.R. 108, [1990] 1 W.W.R. 1, J.E. 89-1541, 70 Alta. L.R. (2d) 1, 102 A.R. 186, 51 C.C.C. (3d) 417, 72 C.R. (3d) 257, 8 W.C.B. (2d) 797; R. v. Pentiluk, 1977 20 (SCC), [1977] 2 S.C.R. 832, [1977] S.C.J. No. 33, 75 D.L.R. (3d) 107, 14 N.R. 421, 34 C.C.C. (2d) 1, 1 W.C.B. 239, affg 1974 1560 (ON CA), [1974] O.J. No. 964, 21 C.C.C. (2d) 87, 28 C.R.N.S. 324 (C.A.); R. v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933, [1991] S.C.J. No. 32, 125 N.R. 1, J.E. 91-765, 47 O.A.C. 81, 63 C.C.C. (3d) 481, 5 C.R. (4th) 253, 3 C.R.R. (2d) 1, 12 W.C.B. (2d) 582 Statutes referred to Canadian Charter of Rights and Freedoms, s. 11(f) Criminal Code, R.S.C. 1985, c. C-46, ss. 229(a), 606(4)

P. Andras Schreck and Sam Scratch for appellant. J. Klukach, for respondent.

The judgment of the court was delivered by

DOHERTY J.A.: --

I. Overview

[1] The appellant was originally committed for trial on a charge of first degree murder. This court quashed that committal and substituted a committal on the charge of second degree murder: see R. v. MacDonald, [2004] O.J. No. 1756, 61 W.C.B. (2d) 632 (C.A.). At trial, the appellant acknowledged that he had assaulted the victim and caused his death. However, the appellant urged the jury to acquit him on the murder charge and convict him on the included offence of manslaughter. The jury convicted on the charge of second degree murder. The appellant appeals.

[2] Counsel on behalf of the appellant advanced three grounds of appeal. They contend that: -- The trial judge erred in failing to instruct the jury that "not guilty" was a possible verdict. -- The trial judge misdirected the jury on the meaning of reckless in s. 229(a)(ii) of the Criminal Code, R.S.C. 1985, c. C-46. -- The trial judge failed to adequately caution the jury against the use of propensity reasoning in respect of evidence about appellant's prison history.

[3] I would dismiss the appeal. [page183]

II. The Evidence

[4] The victim, James Campbell, a man in his early 60s, and the appellant, who was in his early 40s, met in a park in Toronto. The appellant had been drinking. After talking for awhile, Mr. Campbell and the appellant decided to go to a local bar. As they were headed to the bar, Mr. Campbell invited the appellant to come back to his apartment. The appellant, who was bisexual, asked Mr. Campbell if he was homosexual. Mr. Campbell indicated that he was. The appellant agreed to go back to Mr. Campbell's apartment. He thought that sexual activity could occur. The appellant, who had no place to stay that night, had engaged in consensual sexual activity with men in the past in exchange for a place to stay.

[5] The direct evidence of the events at the apartment comes exclusively from the appellant's testimony. He indicated that both he and Mr. Campbell had a lot to drink after they arrived at the apartment. They moved to the bedroom and began to engage in consensual sexual activity. The appellant was performing oral sex on Mr. Campbell when Mr. Campbell grabbed the appellant's testicles and squeezed very hard. The appellant pulled away; Mr. Campbell responded by flicking his fingers at the appellant's face. A struggle ensued during which the appellant placed his arms around Mr. Campbell's neck and squeezed for about five or six seconds. After the appellant relaxed his grip, Mr. Campbell did not move. The appellant checked for a pulse and realized that Mr. Campbell was dead.

[6] According to the appellant, he panicked thinking that because of his criminal background, no one would believe that had not intended to kill Mr. Campbell. The appellant contemplated suicide but decided instead to try to make it look as though Mr. Campbell had been robbed. He spent some time trying to destroy evidence and create false clues at the scene. He also took $15 from Mr. Campbell's apartment when he fled.

[7] Mr. Campbell's sister found her brother's body later the same day. Blood and urine samples taken at the post-mortem examination showed that Mr. Campbell's blood-alcohol level was 0.158. Mr. Campbell was a regular drinker and had developed a tolerance to alcohol.

[8] The post-mortem also revealed that Mr. Campbell had died as a result of neck compression, possibly due to manual strangulation. The injuries to the area around Mr. Campbell's neck indicated that his assailant had used a significant amount of pressure. It was possible that the assailant had been kneeling on Mr. Campbell's back when he applied pressure to his neck. The pathologist explained that depending on the exact physiological cause [page184] of death, the assailant may have been squeezing Mr. Campbell's neck for as little as 15 seconds or as long as 90 seconds.

[9] The appellant is an admitted alcoholic with a lengthy criminal past. He had left a detoxification centre the morning of the homicide. He testified that he was very drunk when the incidents culminating in Mr. Campbell's death occurred. He insisted that he did not mean to cause Mr. Campbell serious harm and did not foresee the likelihood of death.

[10] The appellant admitted that he took $15 from Mr. Campbell's wallet as part of his plan to make it look as if there had been a robbery. Other valuables were left in the apartment. The appellant also destroyed some potentially incriminating evidence while he was in the apartment after the homicide. He spent about a half an hour altering the scene of the homicide before leaving the apartment.

[11] The Crown argued that the appellant was guilty of murder either under the definition in s. 229(a)(i) or the definition in s. 229(a)(ii). The defence expressly and repeatedly acknowledged the appellant's liability for manslaughter. Counsel submitted, however, that the Crown had not proved the requisite mens rea for murder under either definition of murder. The defence of provocation was also available on the evidence. No issue is taken with the trial judge's instruction relating to provocation. The jury rejected that defence.

III. The Grounds of Appeal

(i) Did the trial judge err in failing to instruct the jury that "not guilty" was a possible verdict?

[12] Upon arraignment at the commencement of trial, the appellant pleaded not guilty as charged. The appellant did not enter a guilty plea to the included offence of manslaughter. Had he done so, the Crown would not have accepted that plea, and the trial would have proceeded before the jury, just as it did on the appellant's plea of not guilty to the charge of second degree murder: see R. v. Pentiluk, 1974 1560 (ON CA), [1974] O.J. No. 964, 21 C.C.C. (2d) 87 (C.A.), at pp. 90-91 C.C.C., affd 1977 20 (SCC), [1977] 2 S.C.R. 832, [1997] S.C.J. No. 33; Criminal Code, s. 606(4).

[13] Counsel for the appellant at trial, an experienced and able defence counsel, made it clear throughout the trial that the appellant acknowledged that he had unlawfully caused Mr. Campbell's death and was guilty of manslaughter. For example, during submissions on the admissibility of the appellant's criminal record, counsel defined the issue at trial as "whether it's murder or manslaughter". [page185]

[14] In the pre-charge discussion which preceded counsel's closing arguments, counsel for the appellant reiterated his position and approved a verdict sheet that contained only two possible verdicts -- guilty of manslaughter or guilty of second degree murder.

[15] In his closing submissions, counsel made at least four references to the appellant's acknowledged guilt on the manslaughter charge. At one point, counsel said:

In this case, the presumption of innocence means that Peter MacDonald is presumed to be innocent of the offence of second degree murder. I didn't say anything about manslaughter. Because, as I told you in my opening, that's conceded. (Emphasis added)

[16] Near the end of his closing, counsel made the defence position very clear:

Maybe in the state that he would have been in as a bouncer at a bar, he would have taken more control of the situation and not done the harm that, by his own admission, condemns him at least to a conviction for manslaughter. (Emphasis added)

[17] The appellant had testified. Nothing in his evidence could be taken as detracting from or modifying the position so clearly taken on his behalf by counsel throughout the trial.

[18] In her instructions, the trial judge began by telling the jury:

Now members of the jury, this case is not a whodunit. We know whodunit. By his own admission, Mr. MacDonald unlawfully killed Mr. Campbell. The issue in this case is whether what he did was second degree murder or manslaughter. Accordingly, there are only two possible verdicts available to you, guilty of second degree murder or guilty of manslaughter. (Emphasis added)

[19] In the course of reviewing the position of the defence, the trial judge reiterated the defence contention that the appellant was guilty of manslaughter but not murder. The trial judge also provided the jury with a decision tree and a verdict sheet, both of which contemplated only two verdicts: guilty as charged or guilty of manslaughter. There was no objection to the instructions or to the written material given to the jury.

[20] The position advanced by experienced counsel at trial is not unknown in murder cases. The evidence that the appellant had killed Mr. Campbell was very strong. There was a potential tactical advantage in a forthright admission of culpability in the victim's death. The appellant's straightforward admission and willingness to accept responsibility for his acts before the jury could potentially have assisted him when the jury came to decide whether he had the requisite mens rea for murder. [page186]

[21] Counsel for the appellant in this court (who were not the appellant's trial counsel) frankly acknowledge that the decision to admit liability for manslaughter before the jury was a sound tactical decision undertaken with the benefit of advice from experienced counsel. Counsel goes on to argue, however, that when the trial judge, consistent with the defence position, instructed the jury that an acquittal was not an available verdict, she denied the appellant his constitutional right to a trial by jury.

[22] I say immediately that it seems most curious that a trial judge can be said to have denied an accused his right to a trial by jury by putting that accused's case to the jury in exactly the way the accused wanted it put. As curious as this proposition might seem, counsel for the appellant submits that the unanimous decision of the Supreme Court of Canada in R. v. Krieger, 2006 SCC 47, [2006] 2 S.C.R. 501, [2006] S.C.J. No. 47, 213 C.C.C. (3d) 303 dictates that the trial judge violated the appellant's right to a trial by jury when, consistent with his defence, she did not leave an acquittal as a possible verdict. Counsel notes that Krieger was released some two years after the trial judge instructed the jury in this case.

[23] I do not read Krieger as broadly as does counsel for the appellant. In Krieger, the accused elected trial by judge and jury on a charge of producing marijuana. He made certain factual admissions at trial. He advanced a defence of necessity based on his medical condition. At the end of the evidence, the trial judge held, correctly, that there was no air of reality to the necessity defence and he declined to put that defence to the jury. Without the necessity defence, the rest of the evidence and the accused's admissions made the Crown's case overwhelming.

[24] After the trial judge held that the necessity defence was not available, there was a discussion among counsel and the trial judge as to the accused's options. There was some suggestion of a guilty plea; however, the accused chose to let the matter go to the jury despite the apparent overwhelming nature of the evidence and the absence of any viable defence. The trial judge directed the jury that it must return a guilty verdict. After several hours and with obvious difficulty on the part of at least some of the jurors, the jury followed that instruction and convicted.

[25] In the Supreme Court of Canada, Fish J., for a unanimous court, observed that where an accused exercises his right to trial by judge and jury, s. 11(f) of the Canadian Charter of Rights and Freedoms entitles that accused to the verdict of the jury. Despite any factual admissions made by an accused, and [page187] despite the apparent strength of the Crown's case, the court held that a trial judge cannot usurp the jury's role and direct the jury to convict.

[26] Krieger makes it clear that, regardless of the strength of the Crown's case or the availability of any defence to the charge on the evidence, the accused who is being tried by a judge and jury is entitled to the verdict of the jury. As interpreted in Krieger, the constitutional right to a trial by jury includes the right to the chance of a perverse acquittal by a jury.

[27] In asserting that the ratio in Krieger reaches this case, counsel relies heavily on this passage, at para. 18:

The Crown submits that Mr. Krieger's testimony and defence counsel's submissions in the course of the trial are tantamount to a guilty plea. It is true, of course, that the fate of the accused will often be sealed by their own testimony and admissions, or by concessions and submissions of their counsel. But absent a plea of guilty, the need for a verdict remains. And in a trial by judge and jury, the verdict must be that of the jury, not the judge -- unless the judge finds the evidence insufficient and directs a verdict of acquittal on that ground. (Underlined added; italics in original)

[28] Counsel accepts that trial counsel repeatedly and expressly acknowledged the appellant's liability for manslaughter. Counsel also accepts that the appellant's testimony was entirely consistent with the position taken on his behalf by trial counsel. Relying on the above-quoted passage, however, counsel submits that only a plea of guilty to the included offence of manslaughter could justify the trial judge's decision to remove the possibility of an acquittal from the jury. I note that absent the consent of the Crown, the court could not have accepted such a plea: see Pentiluk, supra, at pp. 90-91 C.C.C.

[29] Counsel cites two cases in this court subsequent to Krieger that he submits have affirmed the principle that only formal admissions of liability can justify the removal of the possibility of an acquittal in a jury case: see R. v. Allen, [2007] O.J. No. 4458, 2007 ONCA 790; R. v. Maharaj, [2007] O.J. No. 87, 2007 ONCA 18. Both cases refer to the need for a "formal admission" of guilt before a trial judge can take the possibility of an acquittal away from a jury. However, in these cases, as in Krieger, the accused individuals made no admissions of culpability with respect to any part of the charges against them. Instead, in each case, the trial judges decided, based on their assessment of the evidence, that the Crown's case, on at least part of the charge, was so overwhelming as to preclude the possibility of an acquittal. In all three cases, the trial judges removed the possibility of an acquittal in an effort to help the [page188] jury focus on what the trial judges saw as the contentious issues. After Krieger, an accused's right to a trial by jury forecloses judicial exclusion of the possibility of an acquittal based on the trial judge's assessment of the case at the end of the evidence. This is the principle flowing from the constitutional right to a jury trial that I take from Krieger.

[30] I do not think that Krieger holds that an accused can admit culpability with respect to part of the indictment or an essential element of the offence only by a guilty plea. The reference (para. 27, supra) in the passage from Krieger to a "guilty plea" is made in the context of a case in which the trial judge instructed the jury to return a guilty verdict on the full charge on which the accused had elected trial by jury. It is difficult to think of an admission other than a guilty plea that would justify an instruction to the jury to convict on the full charge.

[31] The situation is quite different where an accused proposes to admit liability for an included offence or to concede an essential element of the offence. In those circumstances, a guilty plea may not be possible -- much less provide the only means by which an accused could make an effective admission. In R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627, [2005] S.C.J. No. 25, 196 C.C.C. (3d) 123, a case in which all of the judges who sat on Krieger sat, the unanimous court, through Charron J., at para. 30, stated:

It is important to note that the "air of reality" test has no application in respect of the question of whether the Crown has proved beyond a reasonable doubt each essential element of the offence. By his plea of not guilty, the accused in effect advances the "defence" that the Crown has not met its burden in respect of one or more of the necessary ingredients of the offence. In every trial where there is no plea of guilty or an admission by the accused as to one or more of the essential elements of the offence, the question of whether the accused has met its burden is necessarily at play and must be put to the jury for its determination. (Emphasis added)

[32] Gunning contemplates admissions to one or more of the essential elements of an offence. In some circumstances, those admissions will eliminate the possibility of an acquittal and the jury must be so instructed. Gunning does not require that the admissions take any special form or be of any specific kind. Given their importance, these admissions must be express and unequivocal. Trial judges faced with such admissions must ensure that the admissions are what they appear to be and that they accurately reflect the defence position. If the trial judge is satisfied that the admissions are made, then the trial judge must give effect to those admissions even if it means removing certain verdicts from the jury's consideration. [page189]

[33] In this case, the appellant clearly and repeatedly admitted his culpability on the charge of manslaughter. He did not want a verdict of acquittal left with the jury because that suggestion would run at cross purposes to his attempt to gain a tactical advantage by presenting himself as a "stand up" person prepared to acknowledge and take responsibility for the wrong he had done.

[34] An accused is entitled, within limits, to control his own defence. As Lamer C.J.C. said in R. v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933, [1991] S.C.J. No. 32, 63 C.C.C. (3d) 481, at p. 972 S.C.R., p. 505 C.C.C.:

Given that the principles of fundamental justice contemplate an accusatorial and adversarial system of criminal justice which is founded on respect for the autonomy and dignity of human beings, it seems clear to me that the principles of fundamental justice must also require that the accused have the right to control his or her own defence. (Emphasis added)

[35] Fundamental justice requires that the appellant be allowed, in the conduct of his defence, to acknowledge his culpability for manslaughter and leave the jury with the question of whether he was guilty of manslaughter or murder. In the exercise of his right to control his own defence, the appellant chose to remove an acquittal from the list of possible verdicts. He had a constitutional right to do so.

[36] The trial judge's instructions with respect to the possible verdicts were tailored and responsive to the appellant's position throughout the trial. She vetted the proposed verdicts with counsel to be sure that they reflected the decision that the appellant wanted the jury to make. The trial judge's instructions as to the possible verdicts -- guilty of murder or guilty of manslaughter -- did not deny the appellant a verdict by the jury he had chosen; instead, her instructions framed the question for the jury in exactly the way the appellant wanted it framed. In the circumstances, the instruction that precluded an acquittal respected both the appellant's constitutional right to a trial by jury and his right to control his own defence.

[37] I would reject this argument.

(ii) Did the trial judge misdirect the jury on the meaning of reckless in s. 229(a)(ii)?

[38] In the course of a lucid, well-organized jury instruction, the trial judge repeatedly instructed the jury in the exact language of s. 229(a)(ii) of the Criminal Code. She repeated that language in the decision tree she gave to the jury to assist [page190] them in their deliberations. The trial judge also gave the jury written copies of the relevant Criminal Code sections, including s. 229(a)(ii).

[39] Section 229(a)(ii) reads:

Culpable homicide is murder (a) where the person who causes the death of a human being (ii) means to cause him bodily harm that he knows is likely to cause death and is reckless whether death ensues or not.

[40] The essential elements of murder as defined in s. 229(a) (ii) were examined in R. v. Nygaard, 1989 6 (SCC), [1989] 2 S.C.R. 1074, [1989] S.C.J. No. 110, 51 C.C.C. (3d) 417 and R. v. Cooper, 1993 147 (SCC), [1993] 1 S.C.R. 146, [1993] S.C.J. No. 8, 78 C.C.C. (3d) 289. In Cooper, at at pp. 154-55 S.C.R., p. 294 C.C.C., Cory J. provides this description of the section:

This section was considered in R. v. Nygaard, supra. On the issue of the requisite intent the court was unanimous. At pages 1087-88, it was said:

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

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

[41] As these authorities demonstrate, the word "reckless" in the section is in most fact situations redundant insofar as it purports to describe the requisite mens rea. What is important, however, is that the concept of recklessness not be described in a way that could detract from the Crown's obligation to prove beyond a reasonable doubt that the accused knew the bodily harm he inflicted was likely to cause death: Cooper, supra, at pp. 155-56 S.C.R., p. 295 C.C.C.

[42] Counsel for the appellant submits that the trial judge incorrectly defined the word "reckless" for the jury and in doing so watered down the foresight requirement in s. 229(a) (ii). The trial judge told the jury:

The crime of murder requires proof of a particular state of mind. For an unlawful killing to be murder, Crown counsel must prove that Mr. MacDonald meant either to kill Mr. Campbell or meant to cause Mr. Campbell bodily [page191] harm that Mr. MacDonald knew was likely to kill Mr. Campbell and was reckless whether Mr. Campbell died or not. The term "reckless" in plain English means that Mr. MacDonald saw the risk that Mr. Campbell could die from the injury but went ahead anyway and took the chance. [See Note 1 below] (Emphasis added)

[43] Counsel submits that this definition of reckless suggests that foresight that the victim "could die" would suffice when in fact the section requires that the accused foresee the victim's death as "likely".

[44] The trial judge repeated the above-quoted instruction in response to a question from the jury asking that she:

Please define and clarify the terms A) prove requisite intent, and B) negate provocation.

[45] The two phrases identified by the jury as "A" and "B" came from a part of the written summary of the instructions given to the jury by the trial judge. The question was posed early in the jury's deliberations. They deliberated for another day and returned with further questions, none of which involved the requisite mens rea for murder.

[46] The trial judge should not have used the phrase "saw the risk that Mr. Campbell could die" (my emphasis). As explained, that terminology potentially suggests that something less than foresight of the likelihood of death will suffice for the imposition of liability under s. 229(a)(ii). Language identical or very similar to that used by the trial judge has been criticized in four cases from this court; all post-date this trial: see R. v. Czibulka, supra, at paras. 66-70, leave to appeal refused [2004] S.C.C.A. No. 502, 195 C.C.C. (3d) vi; R. v. Patterson (2006), 2006 2609 (ON CA), 79 O.R. (3d) 257, [2006] O.J. No. 361, 205 C.C.C. (3d) 171 (C.A.), at paras. 34-48; R. v. Latoski (2005), 2005 30697 (ON CA), 77 O.R. (3d) 505, [2005] O.J. No. 3565, 200 C.C.C. (3d) 361 (C.A.), at paras. 14-18; R. v. Lessey (2006), 2006 11847 (ON CA), 80 O.R. (3d) 181, [2006] O.J. No. 1476, 208 C.C.C. (3d) 186 (C.A.), at paras. 11-13.

[47] The four cases cited above all cautioned against using language that was very similar to that used by the trial judge when explaining the meaning of reckless in s. 229(a)(ii). In only one of those cases, however (R. v. Patterson, supra), did the court find that the use of the language constituted reversible misdirection. [page192] In two of the cases (R. v. Latowski, supra, and R. v. Lessey, supra), the court found, having regard to the totality of the instruction, that the language did not amount to misdirection. In the fourth case (R. v. Czibulka, supra), the court allowed the appeal on other grounds and did not have to decide whether the instruction on the word "reckless", standing alone, constituted reversible error. As these cases indicate, the effect of the language used by the trial judge in explaining the concept of recklessness will depend on several factors, including the totality of the charge, the nature of the evidence and the nature of the defence. It comes down, however, to the question of whether the instruction misled the jury as to the level of foresight of death required before an accused could be convicted under s. 229(a)(ii).

[48] In this case, the trial judge on some ten occasions told the jury that it could convict under s. 229(a)(ii) only if satisfied beyond a reasonable doubt that the appellant knew that the bodily harm he inflicted (the choking) would probably cause Mr. Campbell's death. When the trial judge referred to the recklessness requirement in the section, she put it as an additional requirement above and beyond the requirement that the appellant foresee death as the likely result of his assault. The typed decision tree given to the jury followed the same format. It posed the question in this way:

Did Peter MacDonald mean to cause James Campbell's death or mean to cause him bodily harm that he knew was likely to cause death and was reckless as to whether death ensued or not?

[49] Despite the misdescription of the meaning of the word "reckless" in the context of s. 229(a)(ii), I do not think that the jury would have any trouble understanding that it could convict only if satisfied that the appellant knew that he was likely to cause Mr. Campbell's death when he was choking him. If the jury made that determination, then it would inevitably conclude, on any possible definition of the word "reckless", that the appellant was reckless when he continued to choke the victim knowing that death was the likely result. This is one instance where the language used in the Criminal Code ("that he knew was likely to cause death") is so clear and straightforward that it is highly unlikely that its meaning would be obscured by a subsequent reference to the concept of recklessness. Whatever the jury might have made of the meaning of the word "reckless", on these instructions they would turn to that meaning only having decided that the Crown had proved beyond a reasonable doubt that the appellant knew [page193] that the victim's death was the likely result of his assault on the victim.

[50] I do not propose to review each of the four cases referred to above. They turn on their own circumstances. I will only refer to Patterson, supra, the one case in which the error was held to be fatal, in more detail. In Patterson, the trial judge initially charged the jury in the language of the Criminal Code. Several hours into their deliberation, they asked for clarification on the "state of mind required for murder". The trial judge and counsel decided that the jury was struggling with the concept of recklessness and that some further definition was necessary. The trial judge then provided a definition of reckless which is very close to that given in this case. The jury convicted an hour later.

[51] In quashing the conviction, this court stressed the timing of the instruction and the conviction, holding, at para. 44:

Further, the answer was obviously vital to the conclusion of the jury's deliberation and central to its guilty verdict, which it rendered about one hour after receiving the recharge. The jury would have placed considerable weight on the trial judge's recharge instruction. Given this, the error was made all the more significant.

[52] It is true that the trial judge repeated her inappropriate description of the word "reckless" in response to the jury's question. It is, however, far from clear whether the jury was concerned with the notion of recklessness in posing its question. The question was much broader than that put in Patterson and may well have arisen because of the particular wording used by the trial judge in part of the written material she gave to the jury. It is not possible to safely draw any inference as to the jury's concerns from the question it posed in this case. Furthermore, unlike Patterson, the verdict did not follow quickly on the heels of the judge's response to the jury's question. There was another day of deliberation and more questions from the jury before the verdict was delivered.

[53] Lawyers and judges trained in the criminal law see subtleties and possible connections between different words that juries would never see. Lawyers and judges, because of their training, appreciate the potential conflict in the notion of recklessness provided to the jury by the trial judge and the specific requirement of the section that the accused foresee the likelihood of death. This conflict is apparent on a careful parsing of the language, performed by those with an understanding of the shades of meaning ascribed to various culpable mental states in the criminal law and the relationship of those mental states. A jury of 12 reasonable, intelligent people would be much more inclined to fix [page194] on the specific words of the section, especially the written words. On the plain meaning of those words, whatever reckless means, it imposes a requirement that is distinct from and in addition to the requirement that the Crown prove that the accused knew that death was a likely result of the bodily harm he inflicted. I do not think that the trial judge's misdescription of the concept of recklessness would have diluted the level of culpability that the Crown would have to prove to establish the requisite mens rea under s. 229(a)(ii). The jury knew that it could convict only if satisfied beyond a reasonable doubt that the appellant foresaw that Mr. Patterson would likely die from the choking. The misstatement did not amount to misdirection, much less reversible misdirection.

IV. Was the Instruction against Propensity Reasoning Adequate?

[54] The appellant submits that the trial judge did not adequately caution the jury against propensity reasoning arising out of the evidence of the appellant's experiences while in prison. The evidence was admitted as relevant to the appellant's state of mind at the time of the homicide. The Crown argued that given the appellant's past experiences, he was not a person who would panic in the face of aggressive behaviour from another. The Crown argued that the appellant would have found himself in somewhat similar situations in the past and would not be likely to react without thinking and knowing what the probable consequences of his actions would be.

[55] The relevance of this evidence was not disputed at trial or on appeal. Given that the evidence was relevant to the appellant's intent and the defence acknowledged that the appellant's state of mind was the only real issue in the trial, I see little risk that the jury would have misused the evidence by inferring from it that the appellant was a bad person and, therefore, had the requisite intent. The basis on which the evidence was admitted was the more obvious and potentially powerful inference. The trial judge did give a careful instruction against propensity reasoning as it related to the appellant's prior criminal activity. The defence did not request any further instruction as it related to the potential misuse of propensity reasoning. This ground of appeal must fail.

V. Conclusion

[56] I would dismiss the appeal.

Appeal dismissed.

Notes

Note 1: This definition of reckless is taken from the Standard Jury Instructions of the Superior Court of Justice Jury Trial Project. This standard instruction has since been changed in the light of this court's comments in R. v. Czibulka, 2004 22985 (ON CA), [2004] O.J. No. 3723, 189 C.C.C. (3d) 199 (C.A.), at p. 228 C.C.C., at fn 7.