CITATION: R. v. Vipond, 2008 ONCA 653

DATE: 20080926

DOCKET: C46604

COURT OF APPEAL FOR ONTARIO

Doherty, Laskin and MacPherson JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Allan Vipond

Appellant

Christopher D. Hicks, for the appellant

M. David Lepofsky, for the respondent

Heard and released orally: September 23, 2008

On appeal from the conviction entered on September 22, 2006, by Justice Alan C.R. Whitten of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant appeals his conviction for first degree murder. He raises three grounds of appeal:

1. the trial judge erred in his instruction on after-the-fact conduct because he failed to give the instruction called for in R. v. Marinaro (1994), 95 C.C.C. (3d) 74 (Ont. C.A.), dissenting reasons of Dubin C.J.O. adopted at (1996), 105 C.C.C. (3d) 95 (S.C.C.);

2. the trial judge erred in his instruction on causation because it eliminated the practical possibility of a verdict of manslaughter; and

3. the trial judge failed to properly relate the evidence to the issues in the case.

1) The after-the-fact conduct instruction

[2] The trial judge included in the list of after-the-fact conduct the appellant’s alleged confession to his brother and his brother’s girlfriend, his polishing his boots and his discarding his bloody t-shirt. Although the trial judge’s charge on this evidence was balanced, it did not include an instruction that the after-the-fact conduct had no probative value on the appellant’s degree of culpability. As stated in Marinaro and other cases, depending on the context, a no probative value instruction may be appropriate.

[3] Although the trial judge did not instruct the jury in accordance with Marinaro, we see no resulting prejudice to the fairness of the appellant’s trial for two reasons. First, the alleged confession was not, strictly speaking, “after-the-fact conduct” and, if made, was probative of a planned and deliberate murder. Second, even if a no probative value instruction was warranted for the other evidence the trial judge left as after-the-fact conduct, that evidence was relatively insignificant. We do not think it would have played any role in the jury’s determination that the appellant committed first degree murder. This ground of appeal therefore fails.

2) The causation instruction

[4] The trial judge’s instruction on causation was unduly favourable to the appellant because for culpability it required the jury to find that the appellant had both rendered the deceased unconscious and then set the fire, which eventually killed the deceased. The practical result of the causation instruction was to remove manslaughter as a viable verdict. If the jury found that the appellant had rendered the deceased unconscious and then set the fatal fire, he would be guilty of either first or second degree murder. At trial, neither the Crown nor defence counsel objected to the causation instruction.

[5] Now, on appeal, the appellant contends that since the jury would want to find him guilty of something, removing manslaughter as a viable verdict actually prejudiced him. We do not accede to this contention for it belies the reality of the trial and counsel’s trial tactics. The absence of an objection to the causation instruction is telling against this ground of appeal.

3) Relating the evidence to the issues

[6] Although the trial judge could have structured his charge in other ways, we are satisfied that, overall, his charge was fair and adequately related the evidence to the issues in dispute. Again, we note that the defence had an opportunity to review the charge in advance and did not object to it after it was given. This ground of appeal, therefore, also fails.

[7] Accordingly, the appeal is dismissed.

“Doherty J.A.”

“John Laskin J.A.”

“J.C. MacPherson J.A.”