CITATION: R. v. Gould, 2008 ONCA 855
DATE: 20081216
DOCKET: C47226
COURT OF APPEAL FOR ONTARIO
Sharpe, Blair and Rouleau JJ.A.
BETWEEN
Her Majesty The Queen
Respondent
and
Sandra Gould
Appellant
Joseph Wilkinson and Philip Norton, for the appellant
M. David Lepofsky, for the respondent
Heard: December 3, 2008
On appeal from the conviction entered by Justice Joseph G. Quinn of the Superior Court of Justice, sitting with a jury, dated March 4, 2005.
Sharpe J.A.:
[1] The appellant was convicted of second degree murder. There is no issue that the appellant caused the victim’s death. She inflicted the mortal stab wound in the full view of several eye-witnesses. This attack was preceded by a dispute between the appellant and the victim, both drug users. The night before the stabbing, the appellant, the victim and the owner of the house where the appellant was staying smoked cocaine together. The next morning, apparently believing that the appellant had stolen her hair-care products, the victim went back to the house where she ransacked the appellant’s belongings. She was heard to say that if the appellant were present, she would kick or beat the appellant’s head in. Later in the day, the appellant was told that the victim was looking for her and was going to “kick her ass”. Following a heated telephone exchange during which the appellant threatened to kill the victim, the appellant confronted the victim and fatally stabbed her in the chest with a steak knife.
[2] The appellant did not testify at trial. Her defence was based on self-defence, provocation, intoxication, and lack of intent to commit murder.
ISSUES
[3] The appellant raises three grounds of appeal against her conviction, all relating to the trial judge's instructions to the jury.
Did the trial judge err in his charge to the jury by failing to give a proper limiting instruction as to the relevance of post-offence conduct?
Did the trial judge err by overemphasizing the common sense inference that persons intend the natural and probable consequences of their acts?
Did the trial judge err by failing to give a proper “rolled-up” charge with respect to the mens rea for murder?
ANALYSIS
1. Post-offence conduct
[4] Evidence was led as to the appellant’s conduct immediately after the stabbing. According to some children who had witnessed the stabbing, the appellant threatened them that if they did not keep quiet she would kill them. There was also evidence that the appellant threw the knife into a sewer, ran away, then returned to the scene and made efforts to help the victim. When she was arrested at the scene for murder, the appellant initially denied involvement in the killing but then said “tell my kids I'll see them in 20 years”.
[5] The trial judge gave the following instruction in relation to the post-offence conduct evidence:
What a person says or does after a crime was committed may help you decide whether it was that person who committed it. It may help. It may not. The words or conduct may indicate that Sandra Kimberly Gould intentionally committed a crime. On the other hand, the words or conduct may be those of an innocent person who simply wants to avoid involvement in a police investigation or that of a person who is frightened and needs time to think about a traumatic experience, or in a panic.
The first thing to decide is whether Sandra Kimberly Gould actually did or said these things. If you find that she did not do or say these things, you must not consider this evidence in reaching your verdict. If you find that Sandra Kimberly Gould did in fact do or say these things, you should consider next whether this was because Sandra Kimberly Gould committed the offence charged, or for some other reason. If you find that what Sandra Kimberly Gould said or did afterwards is consistent with her being conscious of having done what is alleged against her, and not for some other reason, you may consider this evidence together with all the other evidence in reaching your verdict. If you do not or cannot find that Sandra Kimberly Gould said or did those things for that reason, you must not consider this evidence in this way. It is for you to decide, based on the evidence as a whole, whether Sandra Kimberly Gould's after the fact conduct is not attributable to the charge, but that for example she was scared and wanted time to think clearly. It is for you to decide whether the after the fact conduct was related to the charge before you, rather than to some other possible culpable act. It is for you to consider the weight, if any, such evidence should be accorded in your final determination of guilt or innocence.
[6] The appellant acknowledges that on the facts of this case, the post-offence conduct evidence could have been relevant to self-defence, provocation and intoxication. The appellant submits, however, that the jury should have been specifically instructed that the post-offence conduct was relevant to self-defence, provocation and intoxication and that it had no bearing on the issue of whether the Crown had proved the requisite mens rea for murder.
[7] The appellant relies on a line of authority holding that while post-offence conduct may suggest that the accused committed a culpable homicide, it may not assist in determining whether the accused committed murder or manslaughter: see R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 34 O.R. (3d) 620 (C.A.); R. v. Diu (2000), 2000 CanLII 4535 (ON CA), 49 O.R. (3d) 40 (C.A.); R. v. Figueroa, 2008 ONCA 106.
[8] For the following reasons, I am not persuaded in the circumstances of this case that the trial judge erred in his instructions relating to the use the jury could make of the post-offence conduct evidence.
[9] First, as I have already noted, the appellant concedes that the post-offence conduct was arguably relevant to two issues bearing on whether the appellant was guilty of murder or manslaughter: intoxication and provocation. The appellant’s post-offence conduct could have been used by the jury to determine whether she was so intoxicated that she could not have intended to kill or whether she was so provoked as to have lost self-control. Accordingly, on the facts of this case, it would not have been appropriate for the trial judge to instruct the jury that the post-offence conduct evidence had no bearing on the issue of whether the appellant was guilty of murder or manslaughter. A more complex instruction would have been required.
[10] Second, the trial judge did caution the jury regarding the use of post-offence conduct evidence. He told the jury that the appellant’s actions following the offence could be “those of an innocent person who simply wants to avoid involvement in a police investigation or that of a person who is frightened and needs time to think about a traumatic experience, or in a panic.” He also explained that it was for the jury to decide whether the appellant’s actions were attributable to the offence charged or merely indicated that “she was scared and wanted time to think clearly” and that it was for the jury “to decide whether the after the fact conduct was related to the charge… rather than to some other possible culpable act.” While this instruction lacks the specificity sought by the appellant, it accurately conveyed the fundamental point that the jury should exercise care and caution in the use of the post-offence conduct evidence and that the jury should not assume that this evidence supported a finding of guilt for murder.
[11] Third, the appellant’s submission must be considered in the light of the positions taken at trial. The Crown did not invite the jury to make inappropriate use of the post-offence conduct. The appellant’s trial counsel relied on the post-offence conduct to reduce murder to manslaughter. He argued that the post-offence conduct buttressed her claim that she was drugged, panicked and not thinking clearly and that she did not intend to kill the victim. Moreover, in a pre-charge conference, the trial judge provided counsel with a written copy of his proposed instructions. The appellant’s trial counsel did not object to the post-offence conduct instruction, either then or following the delivery of the charge.
[12] I am not persuaded that, in the circumstances of this case, the trial judge’s failure to give the jury an instruction along the lines now requested by the appellant amounts to an error that prejudiced the appellant or that would justify appellate intervention.
2. The “common sense inference”
[13] The appellant submits that the trial judge overemphasized the common sense inference that persons are taken to intend the natural and probable consequences of their acts. The appellant submits that the trial judge’s repeated references to the common sense inference could well have diverted the jury's attention from the fundamental proposition that it was for the Crown to prove the requisite mens rea beyond a reasonable doubt.
[14] I would not give effect to this ground of appeal. It is well-established that the common sense inference instruction should be given to the jury in a case like the present one: see R. v. Seymour, 1996 CanLII 201 (SCC), [1996] 2 S.C.R. 252, at para. 19. The trial judge instructed the jury several times that there was no burden on the defence. He told the jury that the Crown bore the burden of proof on all elements of the offence and on demonstrating that the appellant had not acted in self-defence, under provocation or that she was so intoxicated as to have lacked the requisite intent for murder.
[15] I do not agree with the appellant that the trial judge’s instruction that evidence of intoxication may “rebut” the common sense inference in any way suggested to the jury that the onus was on the appellant to prove intoxication. Indeed, the authorities establish that the jury should be instructed that evidence of intoxication may rebut the common sense inference: see R. v. Robinson, 1996 CanLII 233 (SCC), [1996] 1 S.C.R. 683, at para. 65; Seymour, at para. 23. Nor do I accept the appellant’s submission that in the circumstances of this case the trial judge’s failure to define “recklessness” when relating and explaining the mens rea for murder under s. 229(a) of the Criminal Code could have left the jury with the impression that the standard to be applied was objective rather than subjective.
[16] When read as a whole, I am satisfied that the instruction brought home to the jury that the common sense inference could not and did not displace the burden on the Crown that remained throughout to prove all aspects of the case against the appellant beyond a reasonable doubt.
[17] Finally, I note that, here as well, the appellant’s trial counsel did not object to this aspect of the charge either during the pre-charge conference or after the charge was delivered.
3. Rolled-up charge
[18] The appellant submits that the judge erred by failing to give a sufficient “rolled-up” charge with respect to the mens rea for murder. Specifically, the appellant submits that the effect of the trial judge’s charge was to exclude from the jury’s consideration evidence that tended to support, but that fell short, of self-defence or provocation.
[19] The trial judge gave the following “rolled-up” charge:
Even if you are satisfied beyond a reasonable doubt that when she caused Jennifer Hillis’s death, in deciding whether Sandra Kimberly Gould had the state of mind required to make the unlawful killing of Jennifer Hillis murder, you must consider the evidence of Sandra Kimberly Gould's drug consumption, anger, and fear. You should consider this evidence as well, apart altogether from what I will tell you later about provocation, not just by itself on the particular issue to which it relates, but all together and along with any other evidence that might suggest that Sandra Kimberly Gould acted instinctively in the sudden excitement of the moment, without thinking about the consequences of what she did, and without the state of mind necessary to make the unlawful killing of Jennifer Hillis murder.
[20] In my view, this instruction was adequate. When read in the light of the balance of the charge and in the context of the facts of this case, it brought home to the jury that they were to consider any and all evidence that had a bearing on the issue of the mens rea required for murder. By referring to “drug consumption, anger, and fear” the trial judge used non-technical but readily comprehensible language to capture the meaning behind the more formal legal categories of intoxication, provocation and self-defence. The jury was told to consider that evidence on the issue of intention, quite apart from whatever bearing it might have on the issues of intoxication, provocation and self-defence, together with any other evidence that might suggest that the appellant had acted in an instinctive, impulsive or unthinking manner when she stabbed the victim. In my view, the charge left the jury with the clear understanding that they were to consider the cumulative effect of all the evidence. Again, it is noteworthy that although a more expansive or detailed instruction could have been given, the appellant’s trial counsel did not request such an instruction upon reviewing the draft charge and did not object after the charge was delivered.
[21] Accordingly, I would not give effect to this ground of appeal.
Conclusion
[22] For these reasons, I would dismiss the appeal.
“Robert J. Sharpe J.A.”
“I agree R.A. Blair J.A.”
“I agree Paul Rouleau J.A.”
RELEASED: December 16, 2008