CITATION: R. v. Cudjoe, 2009 ONCA 543
Date: 20090703
Docket: C46508
COURT OF APPEAL FOR ONTARIO
Borins*, Feldman and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Randulph Cudjoe
Appellant
Catriona Verner, for the appellant
Alexander Alvaro, for the respondent
Heard: December 17, 2008
On appeal from convictions entered by Justice Michael F. Brown of the Superior Court of Justice, sitting with a jury, dated December 23, 2005, on counts of second degree murder and aggravated assault.
Watt J.A.:
[1] After seventeen years of marriage, Janice Cudjoe told her husband, Randulph, that she was leaving him for her new lover, Maryann Smith, whom she had met on the internet.
[2] Shortly after Janice Cudjoe announced her intended departure from their marriage and home, Randulph Cudjoe stabbed both his wife and Maryann Smith in the chest with a kitchen knife. Janice Cudjoe died. Maryann Smith survived.
[3] The appellant admitted that he unlawfully killed his wife. But, on his account, the appellant committed manslaughter, not second degree murder, the offence with which he was charged. He denied intentionally stabbing Maryann Smith.
[4] On their second day of deliberations, the jury found the appellant guilty of second degree murder in the death of his wife and of aggravated assault in the stabbing of Maryann Smith.
[5] The appellant says that both convictions are flawed because of legal errors in the reception of evidence of prior misconduct, in final instructions to the jury, and in the response given by the trial judge to a question asked by the jury during deliberations.
[6] For the reasons that follow, I would dismiss the appeal against convictions. In oral argument, the appellant abandoned his appeal against sentence and I would dismiss that appeal as an abandoned appeal.
I THE FACTS
1. The Principals
[7] The appellant and Janice Cudjoe met in 1986 shortly after the appellant arrived in Canada from the West Indies. The couple married in 1988. Their two children, aged 11 and 12 at the time of trial, lived with them. The appellant, who was 48 years old at the time of trial, worked as a landscaper.
[8] Maryann Smith was 38 years at the time of the relevant events and had recently separated from her husband.
2. Janice Cudjoe Meets Maryann Smith
[9] In early May 2004, Janice Cudjoe met Maryann Smith on an internet dating site. Ms. Cudjoe was seeking out a new relationship on-line. Shortly, the two women began to speak regularly by telephone and communicated frequently by email.
[10] Janice Cudjoe and Maryann Smith first met in person at the Cudjoe home in early June 2004. They began a sexual relationship. At the time, the appellant thought that the two women were just friends.
3. The Ménage-à-Trois
[11] A few weeks after meeting Maryann Smith, Janice Cudjoe took the appellant to meet her new friend at Ms. Smith’s apartment. The women had considered and discussed a three-way relationship, which was to include the appellant.
[12] Shortly after the appellant had been introduced to Maryann Smith, the two women went into the bedroom. At their invitation, the appellant entered the bedroom where he found his wife and Maryann Smith both lying naked on the bed. The appellant was “struck” by what he saw and asked his wife to explain what was going on.
[13] The two women invited the appellant to join them on the bed and he did so. The trio participated in sexual activity together.
4. The Appellant’s Request
[14] The appellant asked his wife to end her relationship with Maryann Smith, but Janice Cudjoe declined to do so. Janice Cudjoe insisted that the appellant give Maryann Smith a chance. After all, the appellant had just met Ms. Smith. The appellant agreed and continued to participate in sexual activities simultaneously with both women until mid-July 2004, about two weeks before Janice Cudjoe died.
[15] In the meantime, Janice Cudjoe and Maryann Smith discussed the prospect of Janice Cudjoe leaving the appellant and taking up residence with Ms. Smith. The appellant was not privy to these discussions. As far as he was concerned, the appellant believed that there were no problems in his marriage to Janice.
5. The Assaults on Janice Cudjoe
[16] Over the objection of the appellant’s trial counsel, the trial judge admitted evidence from Maryann Smith about two assaults by the appellant on Janice Cudjoe within a month of the deceased’s death.
[17] The first assault took place about one month before the appellant unlawfully killed his wife. Janice Cudjoe and Maryann Smith were sitting on the bed in the bedroom of the Cudjoe home talking to each other. The appellant came into the room and asked the two women what they were doing. In an angry voice, the appellant accused the women of participating in sexual activity behind his back.
[18] The appellant lay down on the bed between the two women. According to Maryann Smith, the appellant, without warning, punched his wife in the face. Ms. Smith noticed no injuries to Janice Cudjoe’s face – no bruising or bleeding.
[19] The appellant denied this incident.
[20] Maryann Smith recounted a second assault by the appellant on Janice Cudjoe that occurred about two weeks after the first incident and about two weeks before her death.
[21] During the course of an argument with the appellant at the Cudjoe residence, Maryann Smith announced that she was leaving “for good”. Janice Cudjoe followed Ms. Smith to the driveway and pleaded with her not to leave. The appellant came outside and yelled at Janice to let Maryann leave and to come back into the house with him. Janice Cudjoe refused to go back inside.
[22] According to Maryann Smith, the appellant grabbed Janice by the back of her head, banged her head three times against the roof of the car, and pulled Janice by her arm towards the house. Ms. Smith returned later and spent the night at the Cudjoe residence comforting Janice.
[23] Ms. Smith did not notice any injuries to Ms. Cudjoe. Like the first incident, Janice Cudjoe did not receive medical attention for any injuries suffered in the second assault. Similarly, police were not called.
[24] The appellant denied the second incident.
6. The Decision to Leave the Marriage: July 29, 2004
[25] On July 29, 2004, Maryann Smith decided that she would find a place to live in Oshawa so that she would be closer to the Cudjoe home in case Janice left her husband to live with Ms. Smith. Janice had told the appellant that Ms. Smith was looking for a place to live in Oshawa, but the appellant thought nothing of it.
[26] That day, Janice Cudjoe told Maryann Smith that she (Janice) wanted to leave the appellant, but gave no indication of when she proposed to do so. That night, the appellant noticed that Janice was very restless in her sleep. Janice explained that she had lots of things on her mind and told the appellant not to worry about anything.
7. Apartment Hunting on July 30, 2004
[27] While the appellant was at work on July 30, 2004, Janice Cudjoe, Maryann Smith and the Cudjoe’s two children looked for an apartment where all of them could live. They found a suitable place. Maryann Smith filled out the necessary documents with an occupancy date of October 1, 2004.
[28] Janice Cudjoe told Maryann Smith that she was worried the appellant suspected that she (Janice) was leaving him.
[29] Maryann Smith, Janice Cudjoe and the Cudjoe children returned to the Cudjoe home in the afternoon of July 30, 2004. Around 4:00 p.m., Ms. Smith went to Janice and the appellant’s bedroom for a nap prior to her work shift. The appellant had not yet arrived home from work.
8. The Appellant’s Return from Work
[30] Janice Cudjoe drove Maryann Smith’s car to pick up the appellant at his place of work around 5:30 p.m. on July 30, 2004. It was the appellant’s birthday. The appellant and Janice Cudjoe made a number of stops on the way home including a stop to buy some beer and a bottle of rum. They arrived home around 6:30 p.m.
9. The Separation Announcement
[31] The appellant and Janice Cudjoe sat outside in front of the house together after they had returned home. According to the appellant, Janice told him that she no longer liked him and in fact that she hated him. Their marriage was over. The appellant was shocked, upset and felt insulted by what his wife had said to him. No yelling or physical confrontation occurred.
[32] Around 8:00 p.m. on July 30, 2004, Maryann Smith got up from her nap and walked outside where she saw the appellant and Janice Cudjoe sitting on chairs in the driveway talking to one another. The appellant was calm when he mentioned to Maryann that Janice had just told him that she was leaving their marriage. Ms. Smith was shocked that Janice had broken the news of their impending separation to the appellant. Ms. Smith left the couple alone, first walking to the bottom of the driveway for a cigarette, then returning to the house after the appellant and Janice had gone inside.
10. The Return to the House
[33] Janice Cudjoe and the appellant went back inside the house to continue their discussion about their impending separation. The appellant walked downstairs to get a drink of rum, then returned to continue the discussion about separation in the kitchen with his wife. Ms. Smith left the couple alone.
[34] In the kitchen, Janice Cudjoe and the appellant began to talk about what would happen to their two children. Janice told the appellant that he was a bad parent. She was a better parent than him. The appellant’s disposition changed. Maryann Smith could hear the couple talking, but not everything that was being said. At times, Ms. Smith rejoined the conversation. The appellant asked Ms. Smith to leave, but Janice insisted that she remain since Ms. Smith was Ms. Cudjoe’s “she-man”.
[35] Janice Cudjoe continued to insult the appellant. She told him that the only thing that he was good for was drinking. She told him that he would never see his children again, a subject that caused the appellant’s demeanour to change and his voice to get louder.
11. The Bedroom Confrontation
[36] The appellant and Janice Cudjoe retired to their upstairs bedroom to continue their discussion about their separation behind closed doors. According to the appellant, Janice continued to insult him. She said that she would get custody, since only she was a good parent. He was only good for drinking. Janice said that, at last, she had a “man” who, unlike the appellant, could satisfy her in bed. Until then, the appellant had no idea that he was not satisfying his wife in the bedroom.
[37] The appellant tried to hug his wife as they sat together on their bed with the door closed, but she pushed him away. He tried again but Janice slapped him. Janice continued to insult the appellant. She told him to leave her alone. She told him that she had a “man” now. And she told the appellant that he was no good. The appellant began to feel “hot” inside. He denied asking his wife to lay down on the bed, a remark Maryann Smith claimed to have heard from downstairs.
12. The Stabbing of Janice Cudjoe
[38] The appellant is the only living witness to the stabbing that caused Janice Cudjoe’s death.
[39] As Janice Cudjoe continued to insult him, the appellant noticed a knife on the dresser. He picked it up in an attempt to stop the onslaught of insults. The couple wrestled. The knife “went inside” Janice Cudjoe. The appellant felt responsible for inflicting the wound, but didn’t know what happened.
[40] Janice Cudjoe suffered a single stab wound to the front of her left chest, inflicted by a serrated blade with a single cutting edge. The blade penetrated the deceased’s right ventricle, her diaphragm and her liver, to a depth of between 10 and 14 cm. The wound was inflicted in a single motion and did not require a lot of force. The wound was consistent with infliction by the serrated edge kitchen knife located in the sink in the Cudjoe home. The blade of this knife was bent and had some red staining on its surface.
[41] The deceased also suffered a minor cut on her neck and some superficial bruises and abrasions. The pathologist noted no signs of blunt force injuries or anything consistent with strangulation. The deceased had no defensive wounds.
13. The Injuries to Maryann Smith
[42] When she heard Janice Cudjoe scream, Maryann Smith ran upstairs and barged into the master bedroom. There she saw the appellant on top of Janice Cudjoe. Ms. Smith approached the couple silently from behind and jumped on the appellant. Not surprisingly, Ms. Smith and the appellant offer different versions of the appellant’s response to Ms. Smith’s intrusion.
[43] The appellant recalled that he felt someone jump on him shortly after the bedroom door opened. He swung around with his right arm, the knife still in his hand. Maryann Smith came at him, pulled him over to the opposite side of the bed and flung him onto the floor. According to the appellant, Ms. Smith must have been stabbed when she rushed him while he was on the bed, the knife yet in his hand. He testified that he did not stab Maryann Smith on purpose.
[44] The appellant denied going after Maryann Smith on three or more occasions. He said he did not pursue her in or out of the bedroom.
[45] Maryann Smith testified that she did not notice a knife in the appellant’s hand when she rolled him off and away from Janice. The appellant pushed Ms. Smith away, came at her with a closed fist and “pushed his fist” into her chest three times. Although she felt “tingly”, a sensation she equated with an electric shock, Ms. Smith did not know that she had been stabbed. She fell to the floor.
[46] Maryann Smith suffered a single wound, a small cut, less than one inch long, on the left side of her left breast. The wound track offered no evidence of any sawing-type action or of multiple knife thrusts.
[47] Investigators found the black, plastic-handled steak knife on top of some dishes in the kitchen sink. The serrated blade of the knife, approximately 13.5 centimetres long, was bent. Fibres near the tip of the serrated edge were indistinguishable from those found in the T-shirts of both Janice Cudjoe and Maryann Smith.
14. The After-the-fact Conduct
[48] The appellant waited in the master bedroom after Maryann Smith had left. He waited to ensure that his wife was alright, then picked up the knife from the floor and walked downstairs to call 911. He left the knife on the kitchen counter, but did not wash it or put it in the kitchen sink.
[49] The appellant couldn’t find the cordless telephone in the kitchen. He saw Maryann Smith outside on the driveway with the telephone in her hand. He went back inside to find the other telephone. He knew that something was seriously wrong with Janice.
[50] The appellant called his employer on a two-way radio/phone. In an “excited” and “very panicky” voice, the appellant told his boss: “I did something bad. I did something bad”, “I think I just killed by wife”, and “I don’t know what I did. I’m going to go away for a long time.”
[51] Police arrived as Maryann Smith continued to talk with the 911 operator. The appellant testified that when police and paramedics arrived, he believed Janice was still alive. Some police officers recalled the appellant, when approached, said: “My wife’s dead”.
15. The Appellant’s Consumption of Alcohol
[52] The appellant usually drank alcohol on Friday. On the Friday he killed his wife, the appellant had consumed three or four shots of rum and three beers. He felt the effect of alcohol “a little”, but was not drunk.
[53] Maryann Smith was familiar with the appellant’s pattern of alcohol consumption. He was a daily drinker. When drinking, the appellant was often loud and vocal. Ms. Smith did not notice any outward indications that the appellant had been drinking that evening and did not see him drink any alcohol that day, despite his usual habit.
[54] Shortly after the appellant’s arrest, a police officer who was a qualified breathalyzer technician saw the appellant for about 10 minutes, approximately one and one-half hours after the stabbings. The officer saw no signs of intoxication. He didn’t ask the appellant whether he (the appellant) had had any alcohol to drink that evening and acknowledged that different persons exhibit signs of alcohol consumption in different ways.
II THE GROUNDS OF APPEAL
[55] For the appellant, Ms. Verner advances several grounds of appeal, all but one alleging errors or omissions in the trial judge’s final or post-charge instructions to the jury. The remaining ground asserts error in the reception of evidence of the appellant’s prior discreditable conduct towards the deceased.
[56] Reduced to their essentials, the appellant says that the trial judge erred:
i. in admitting evidence that the appellant had assaulted the deceased twice in the month preceding her death;
ii. in instructing the jury that evidence of the appellant’s after-the-fact conduct could assist the jury in determining the appellant’s mental state at the time of the unlawful killing, thus his level of culpability;
iii. in failing to instruct the jury that they could consider “provocation” as a factor in determining whether the appellant had the requisite intent for murder;
iv. in failing to properly respond to the jury’s question about the meaning of “sudden” in connection with the partial defence of provocation; and
v. in failing to relate the salient parts of the evidence to the “defences” of intoxication and provocation and, more generally, to the mental element required for murder.
III ANALYSIS
The First Ground: The Admission of Evidence of Prior Discreditable Conduct
(1) The Evidence in Overview
[57] Maryann Smith saw the appellant strike the deceased twice during the month before Janice Cudjoe’s death. Neither assault caused injuries that required medical treatment. Neither assault was reported to the police. In each instance, according to Ms. Smith, the appellant was angry with his wife.
[58] The appellant denied both incidents and opposed the introduction of this evidence.
(2) The Positions of the Parties
[59] The appellant acknowledges that in a prosecution for unlawful homicide, the prosecutor may adduce evidence that the person charged had a motive to kill the deceased, or bore an animus towards the deceased. Sometimes, the evidence adduced to demonstrate motive or animus involves other bad acts allegedly committed by the person charged. To qualify for admission on this basis, however, the probative value of the evidence of an accused’s other bad acts must exceed its prejudicial effect.
[60] In this case, the appellant continues, the prejudicial effect of the evidence of the appellant’s two prior assaults on Janice Cudjoe exceeded its probative value as evidence of motive or animus. In the result, Ms. Verner contends, the evidence should not have been admitted. At all events, even if the evidence were properly admitted, the trial judge failed to adequately instruct the jury about the limited use that they could make of it in their deliberations.
[61] The respondent sees it differently. The prior bad acts were assaults on the very person killed, not bad acts of a general nature likely to prompt a prohibited chain of reasoning. Evidence of two contemporaneous assaults was relevant to establish motive or animus, further to impeach the appellant’s claimed belief that the couple’s marriage was “good” and that Janice Cudjoe’s announced intention to leave came as a bolt out of the blue. Evidence of motive or animus was also relevant to establish the appellant’s state of mind at the time he unlawfully killed the deceased.
[62] Mr. Alvaro, for the respondent, reminds that when evidence of other bad acts is adduced to establish animus or motive, the conventional instruction limiting evidentiary use is not required. In any event, the respondent submits that the instructions given here immunized jurors against the virus of the prohibited chain of reasoning.
(3) The Governing Principles
[63] As a general but not unyielding rule, the prosecutor is not entitled to introduce, as part of the prosecution’s case in-chief, evidence of an accused’s bad acts, other than those charged, to support an inference of guilt from general bad character. We generally bar the introduction of evidence of other bad acts because it invites propensity reasoning – a finding of guilt based on character not conduct: R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321 (C.A.), at para. 100. Evidence of bad acts of an accused, other than the acts charged, may be admitted as an exception to the general rule, however, when the probative value of the evidence on a fact in issue exceeds its prejudicial effect: Batte at para. 90.
[64] In a prosecution for a crime of unlawful homicide, such as murder, evidence of an accused’s prior abuse of the deceased may illuminate the nature of the relationship between the principals, demonstrate animus and establish a motive for the killing. This circumstantial evidence, used prospectantly, may assist in proving complicity in an unlawful killing and in establishing the state of mind that accompanied it: R. v. F. (D.S.) (1999), 1999 CanLII 3704 (ON CA), 43 O.R. (3d) 609 (C.A.), at p. 616; R. v. Jackson (1980), 1980 CanLII 2945 (ON CA), 57 C.C.C. (2d) 154 (Ont. C.A.), at p. 167; R. v. Misir (2001), 2001 BCCA 202, 153 C.C.C. (3d) 70 (B.C.C.A.), at para. 17; Plomp v. R. (1963), 110 C.L.R. 234 (H.C.).
(4) The Principles Applied
[65] In my view, the trial judge correctly admitted the evidence of the appellant’s prior bad acts towards the deceased within one month of her death.
[66] When the trial judge admitted Maryann Smith’s evidence about the appellant’s two prior assaults on the deceased within one month of her death, the appellant had not yet acknowledged that he had caused his wife’s death, let alone that he had done so unlawfully. In other words, both the identity of Janice Cudjoe’s killer and the crime he or she committed were in play at the time the evidence was introduced.
[67] The trial judge admitted the evidence about the appellant’s prior bad acts because it
i. explained the nature of the Cudjoe marital relationship;
ii. provided context for the jury to evaluate the events that occurred on the night that Janice Cudjoe died; and
iii. demonstrated the appellant’s animus or motive.
The trial judge concluded that the probative value of the evidence prevailed over its prejudicial effect. I agree.
[68] The evidence was relevant and material. It tended to show the true nature of the relationship between the appellant and deceased contemporaneously with her death. Further, this evidence demonstrated animus and motive, and thus was relevant to prove the identity of the deceased’s killer (which had not been admitted when this evidence was received) and the mental state that accompanied the killing.
[69] The trial judge appreciated the governing admissibility rule and properly balanced the probative value of the evidence against its inherent prejudicial effect. As Ms. Smith completed her testimony, the trial judge instructed the jury about the chains of reasoning that were not open to them as a result of the admission of this evidence. In his final instructions, the trial judge revisited the prohibition – he reminded the jury that they must not use this evidence of the appellant’s prior bad acts:
i. to conclude that the appellant was a person of general bad character, thus likely to have committed the offence charged; or
ii. to punish the appellant for the prior conduct by convicting him of the offence charged simply because of those prior bad acts.
The trial judge explained to the jury that they could only use the evidence of prior bad acts to assist them in understanding the true nature of the Cudjoe marital relationship and to help them in determining whether the appellant had a motive to kill his wife.
[70] This ground of appeal fails.
The Second Ground: Jury Instructions on After-the-fact Conduct
(1) The Evidence in Overview
[71] In his final instructions, the trial judge directed the jury’s attention to three features of the appellant’s behaviour after he unlawfully killed the deceased:
i. removal of the steak knife from the bedroom to the kitchen sink;
ii. failure to render assistance to the deceased, including failure to call 911; and
iii. the appellant’s demeanour after the infliction of the fatal wound.
[72] The appellant did not take issue with the relevance, materiality or admissibility of the evidence as part of the unfolding of the narrative of the killing and its aftermath.
(2) The Position of the Parties
[73] The appellant says that the trial judge erred in instructing the jury that evidence of the appellant’s after-the-fact conduct could be used to determine the level of his culpability for having unlawfully killed the deceased. Ms. Verner contends that, as a matter of law, evidence of an accused’s after-the-fact conduct cannot be used to determine the level of the accused’s culpability. The appellant acknowledged that he unlawfully killed the deceased by stabbing her with a steak knife. The single, but important question for the jury to decide was whether the appellant’s crime was murder or manslaughter, a question the appellant’s after-the-fact conduct could not assist the jurors in answering.
[74] The appellant submits that the jury should have been instructed expressly that they could not use any evidence of the appellant’s demeanour or conduct after the unlawful killing to determine whether he was guilty of second degree murder or of manslaughter.
[75] For the respondent, Mr. Alvaro submits that the appellant’s after-the-fact conduct could assist the jurors in deciding whether the appellant committed murder or manslaughter. The appellant took the position at trial that, in combination, his intoxication and the provoking conduct of the deceased raised a reasonable doubt that he had either state of mind required to make the unlawful killing murder. Evidence of his apparently purposeful conduct in removing the knife to another place after the killing was relevant to rebut his claim of a diminished or confused mental state, thus to whether his crime was murder or manslaughter.
[76] Mr. Alvaro points out that the evidence about the appellant’s failure to assist the deceased was the subject of a “no probative value” instruction, and the instruction about the appellant’s demeanour significantly downplayed its evidentiary value. The appellant suffered no prejudice. No harm, no foul.
(3) The Governing Legal Principles
[77] To assist in proof of an accused’s participation in an offence a prosecutor may adduce evidence of what the accused said or did after the offence was committed. The prosecutor invites the trier of fact to infer prior participation in the offence from subsequent conduct. Circumstantial evidence is used retrospectantly: the later occurrence of an act, state of mind or state of affairs is offered to support an inference that the prior act was done or state of affairs or mind existed in the past at the material time.
[78] Evidence of after-the-fact conduct is no different than any other circumstantial evidence. The inferences drawn from it must be reasonable, not speculative. They must be rooted in human experience and common sense. There is no fixed regime of inferences. What may be inferred is case-specific, a function of several factors, including but not only:
i. the nature of the conduct;
ii. the facts sought to be inferred from the conduct;
iii. the positions of the parties; and
iv. the totality of the evidence.
R. v. Figueroa (2008), 2008 ONCA 106, 232 C.C.C. (3d) 51 (Ont. C.A.), at paras. 33 and 35.
[79] It follows from the situation-specific nature of the process of drawing inferences that no prefabricated rule stamps certain kinds of after-the-fact conduct as always or never relevant to a particular fact in issue: Figueroa, at para. 33; R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at paras. 19-22; R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 34 O.R. (3d) 620 (C.A.), at pp. 629-631.
[80] In some instances, evidence of after-the-fact conduct may be relevant to establish that an accused’s conduct was culpable rather than non-culpable, or to rebut a claim of a compromised mental state: Peavoy at pp. 629-631; R. v. Azzam (2008), 2008 ONCA 467, 91 O.R. (3d) 335 (C.A.), at para. 48; R. v. Walent, 2007 ONCA 871, at paras. 10-11; R. v. Fraser (2001), 2001 CanLII 8611 (ON CA), 56 O.R. (3d) 161 (C.A.), at para. 17; R. v. Schell (2000), 2000 CanLII 16917 (ON CA), 148 C.C.C. (3d) 219 (Ont. C.A.), at paras. 40-41; R. v. Younger (2004) 2004 MBCA 113, 186 C.C.C. (3d) 454 (Man. C.A.), at paras. 51-52.
[81] Evidence of after-the-fact conduct is typical of many items of evidence adduced in a criminal trial: it is evidence of limited admissibility. The trier of fact may use this evidence for one or more purposes but not for another or others. It follows that its introduction imposes on the trial judge in a jury trial the obligation to explain both the permitted and prohibited use of the evidence: Figueroa at paras. 35 and 36; White, at para. 28; R. v. Rodrigue (2007), 2007 YKCA 9, 223 C.C.C. (3d) 53 (Y. C.A.), at para. 42.
(4) The Principles Applied
[82] The trial judge devoted several pages of his final instructions to evidence of after-the-fact conduct. In my opinion those instructions disclose no prejudicial errors.
[83] After some general instructions about the subject, the trial judge isolated three items of evidence for specific instructions:
i. the removal of the steak knife from the bedroom to the kitchen;
ii. the appellant’s failure to assist the deceased after stabbing her, including but not only his failure to call 911; and
iii. the appellant’s demeanour after stabbing his wife.
[84] The trial judge treated each of these items somewhat differently in his final instructions.
[85] In connection with the evidence about the removal of the knife from the bedroom to the kitchen, the trial judge said:
The fact that Randulph Cudjoe took the knife from the bedroom to the kitchen is equally consistent with the actions of someone who is guilty of either murder or manslaughter. You cannot use the evidence of taking the knife from the bedroom to the kitchen to draw an inference of guilt towards Randulph Cudjoe. However, you may consider this evidence as relevant to rebut defences put forward by the defence of an alleged absence of the required state of mind for murder if you are satisfied that the conduct in question demonstrated some cognitive functioning and purposeful conduct which was inconsistent with the defences of an alleged absence of the required state of mind for murder as I shall define it for you. With respect to this piece of evidence keep in mind that there is no evidence in this case that Randulph Cudjoe attempted to wash any blood off the knife or to conceal it from detection from the police in any way. Whether Randulph Cudjoe left it on the counter or the sink, it was still in plain view. It is ultimately for you to assess the weight, if any, to place on this evidence, but it does not strike me that the fact that Randulph Cudjoe takes the knife from the bedroom to the kitchen is evidence which is of much assistance in supporting an inference one way or the other regarding his state of mind. However, that is a matter for you to determine.
[86] The trial judge next turned to the evidence that the appellant failed to assist his wife after stabbing her in the chest. The trial judge gave a “no probative value” instruction about this evidence:
I am instructing you as a matter of law that any evidence relating to Randulph Cudjoe’s failure to assist the police or emergency personnel regarding his wife or to answer questions of the police regarding his wife’s whereabouts is of no probative value and should play no role whatsoever in inferring the guilt of Randulph Cudjoe.
With respect to the evidence of Randulph Cudjoe’s efforts to phone 911, even if you were to conclude that Randulph Cudjoe did not attempt to phone 911, I am instructing you that that fact has no probative value and should play no role whatsoever in inferring the guilt of Randulph Cudjoe. Even if you were to find that Randulph Cudjoe was not being truthful in his evidence regarding his attempts to phone 911, the fact of his untruthfulness if you were to so find, could not be used to infer the guilt of Randulph Cudjoe or as affirmative evidence of his state of mind. You may, however, examine his evidence regarding his efforts to phone 911 along with all the other evidence in this case to assess his credibility generally.
[87] The trial judge concluded his instructions on after-the-fact conduct by cautioning the jurors to be very circumspect about their use of the demeanour evidence:
I must caution you that the probative value of such evidence of demeanour is highly suspect. No two people are alike. Not all people react the same way in similar situations. In particular, perceptions of guilt on the basis of demeanour evidence are likely to depend on highly subjective impressions and can be easily misinterpreted. You must evaluate this evidence with extreme caution.
[88] When read as a whole, the effect of the trial judge’s instructions about the evidence of the appellant’s failure to assist the deceased and his demeanour at about the same time was to remove this evidence from the jurors’ consideration as evidence of after-the-fact conduct. The evidence that the appellant failed to assist was expressly removed from the determination of guilt and relegated to an assessment of the general credibility of the appellant. The jurors were told to evaluate the demeanour evidence with extreme caution because of the infinite variability of human conduct.
[89] After identifying the evidence about the removal of the knife as evidence of after-the-fact conduct, thus subject to a specific instruction, the trial judge told the jurors about the prohibited and permitted use of the evidence. Since the evidence was equally consistent with the appellant’s crime being manslaughter or second degree murder, the jurors were not entitled to use the evidence “to draw an inference of guilt towards Randulph Cudjoe”. On the other hand, the jurors could use the evidence to rebut the appellant’s claim that he did not have the state of mind required to make his unlawful killing of the deceased murder, provided they were satisfied that the conduct demonstrated some cognitive functioning and purposeful conduct inconsistent with the claimed absence of intent.
[90] The trial judge’s instructions may seem somewhat self-contradictory. In essence, the jurors were told that, although they could not use the after-the-fact conduct evidence to determine the level of culpability, they could use it to rebut the appellant’s claim that his culpability was reduced because of his compromised mental state. To some, at least, perhaps many, evidence that can be used to rebut a claim of reduced culpability is used to determine the level of culpability.
[91] It seems to me at least that the authorities that discuss the relationship between evidence of after-the-fact conduct and level of culpability are in a less than satisfactory state and not easily reconcilable. That said, as the authorities do establish, there are cases in which evidence of after-the-fact conduct can be used in determining the level of culpability, whether as positive evidence of a particular mental state (like planning and deliberation), or in rebuttal of a claim of a compromised mental state (like one befuddled by alcohol and/or drugs).
[92] In the current state of the law, however, I am not prepared to say that the instructions given reflect prejudicial error. It is difficult to gainsay the relevance of evidence of removal of the weapon from the scene of the killing as proof of a functioning mind, thus intentional conduct.
[93] I would not give effect to this ground of appeal.
The Third Ground: Failure to Refer to “Provocation” in the Rolled-up Instruction
(1) The Instructions
[94] When the dust settled at the end of the evidence, the issue for the jurors to decide was whether the appellant’s unlawful killing of his wife was murder or manslaughter. The trial judge instructed the jury about the effect of evidence of intoxication on the appellant’s mental state at the time of the killing. He also left to the jury the statutory partial defence of provocation under s. 232 of the Criminal Code in the event that the jurors were satisfied that the prosecution had proven that the appellant had committed murder.
[95] In his instructions on the mental element in murder, the trial judge emphasized the duty of the jurors to consider all the evidence relevant to the issue. He provided jurors with what has become known as a “rolled-up” instruction on the mental element in these terms:
Even if you are satisfied beyond a reasonable doubt that when he caused Janice Cudjoe’s death, Randulph Cudjoe was not intoxicated as a result of his consumption of alcohol, in deciding whether Randulph Cudjoe had either state of mind required to make the unlawful killing of Janice Cudjoe murder, you must also consider the cumulative effect of any evidence of Randulph Cudjoe’s consumption of alcohol, anger, fear, excitement, instinctive reaction or mental disturbance.
You should consider this evidence, 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 Randulph Cudjoe acted instinctively, in the sudden excitement of the moment, without thinking about the consequences of what he did, and without either state of mind necessary to make the unlawful killing of Janice Cudjoe murder.
[96] The trial judge pointed out that neither the individual factors nor their cumulative impact necessarily compelled a conclusion that the appellant’s crime was manslaughter. The trial judge concluded:
You must consider the effect of all this evidence, the sum total of it, along with any other evidence that seems or tends to show Randulph Cudjoe’s state of mind when you are deciding whether Crown counsel has proven beyond a reasonable doubt that Randulph Cudjoe’s unlawful killing of Janice Cudjoe was murder.
If you are not satisfied beyond a reasonable doubt that Randulph Cudjoe had either state of mind required to make his unlawful killing of Janice Cudjoe murder, you must find Randulph Cudjoe not guilty of second-degree murder, but guilty of manslaughter. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that Randulph Cudjoe had either state of mind to make his unlawful killing of Janice Cudjoe murder, you must go on to the next question. [Provocation]
[97] The appellant’s trial counsel did not object to the charge on proof of the mental element required for murder, but, in his submissions at the pre-charge conference, had sought an instruction that included reference to provocation.
(2) The Position of the Parties
[98] The appellant says that the defence position at trial was that the appellant’s crime was manslaughter, not murder. The appellant did not intend to kill his wife. Two factors, intoxication and provocation, raised a reasonable doubt about the intention required for murder.
[99] The appellant acknowledges that the trial judge properly instructed the jury on intoxication and provocation as discrete “defences”. Typically, the jurors learned that provocation (under s. 232 of the Criminal Code) entered their deliberations only after they had found that the appellant had committed murder. Thus the trial judge removed provocation as a factor that the jurors could consider in deciding whether the prosecution had proven murder in the first place. The appellant contends that provocation should have been included in the “rolled-up” instruction on intent.
[100] The respondent disagrees. Provocation is a statutory partial defence under s. 232, only available after murder has been proven and without influence on the fault element required to make an unlawful killing murder. This stand-alone statutory defence cannot be part of a “rolled-up” instruction.
[101] In any event, the respondent contends, the rolled-up instruction given here adequately apprised the jurors of all the factors relevant to their decision on the state of mind issue. The jurors were instructed that evidence of anger, instinctive reaction and excitement was relevant to their decision on the state of mind issue. Provocation is not itself a state of mind. Provocation, at bottom, consists of words and conduct by one person that produce a reaction in another. At its core, provocation involves a loss of self-control, due to anger or excitement. The jurors were instructed that both anger and excitement, as well as instinctive reaction, were relevant to the mental state required for murder. The purpose of the “rolled-up” instruction is to ensure that the jury does not compartmentalize evidence and limit it to discrete defences, but rather considers its cumulative effect on the issue of the accused’s state of mind. That purpose was achieved here.
(3) The Governing Principles
[102] In answer to an allegation of murder, an accused will often advance a discrete defence, justification or excuse. The evidence adduced at trial may give an air of reality to another defence, justification or excuse, one not advanced by and sometimes incompatible with that proffered by the accused. The trial judge will instruct the jury on each defence for which the necessary evidentiary foundation exists.
[103] Some defences, justifications and excuses relate to the mental or fault element in murder (for example intoxication) while others attach to the external circumstances (for example, self-defence) or operate otherwise (for example, provocation). Evidence that supplies the air of reality required to get a defence, justification or excuse before the jury may also be relevant for the jury to consider in deciding whether the prosecutor has proven the mental or fault element in murder beyond a reasonable doubt.
[104] To ensure that jurors do not take a compartmentalized approach to the evidence, considering it only in connection with a discrete defence, justification or excuse, we require trial judges to remind jurors that they should consider the cumulative effect of all relevant evidence in determining the adequacy of the prosecution’s proof of the mental or fault element in murder, even if the same evidence does not raise a reasonable doubt about guilt when offered in support of a specific defence. Sometimes, the whole exceeds the sum of its parts: R. v. Clow (1985), 1985 CanLII 5974 (ON CA), 44 C.R. (3d) 228 (Ont. C.A.), at pp. 230-231; R. v. Nealy (1986), 1986 CanLII 4694 (ON CA), 30 C.C.C. (3d) 460 (Ont. C.A.), at p. 466; R. v. Bob (1990), 1990 CanLII 13299 (ON CA), 78 C.R. (3d) 102 (Ont. C.A.), at pp. 110-111; R. v. Leming, [2000] O.J. No. 3540 (C.A.), at para. 1; R. v. Fraser (2001), 2001 CanLII 8611 (ON CA), 159 C.C.C. (3d) 540 (Ont. C.A.), at paras. 25-26; R. v. Schell (2000), 2000 CanLII 16917 (ON CA), 148 C.C.C. (3d) 219 (Ont. C.A.), at para. 36.
[105] Under s. 232 of the Criminal Code, provocation is a partial defence to murder. The statutory defence only becomes engaged when murder has been proven and does not negate either the external circumstances or mental element in murder: R. v. Humaid (2006), 2006 CanLII 12287 (ON CA), 81 O.R. (3d) 456 (C.A.), at para. 63. Provocation is the only statutory partial defence in our criminal law, a concession to human frailty based on a recognition that everyone, however law-abiding she or he may otherwise be, has her or his breaking point. Provoked murder, s. 232 announces, is of such reduced culpability that it warrants a conviction for the lesser but still serious crime of manslaughter.
[106] In general terms, provocation under s. 232 consists of two components:
i. a wrongful act or insult by the victim or a third party; and
ii. a sudden reaction by the accused, the product of a loss of self-control due to the sudden wrongful act or insult striking a mind unprepared for it.
The first component focuses on the conduct of another, the person who gives provocation. But the second element plainly relates, at least in part, to the mental state of the accused.
[107] Previous decisions have included reference to provoking conduct, sometimes described simply as “provocation”, as one of the components of a rolled-up instruction on the mental or fault element: R. v. Campbell (1977), 1977 CanLII 1191 (ON CA), 17 O.R. (2d) 673 (C.A.), at p. 683; Nealy at p. 467; Clow at p. 231; Bob at pp. 110-11; and R. v. Robinson, 1996 CanLII 233 (SCC), [1996] 1 S.C.R. 683, at para. 59.
[108] Anger may be an essential feature of provocation but it does not amount to a free-standing or stand alone defence: R. v. Parent, [2001] 1 S.C.R. 683, at para. 10. In at least one decision, this court has denied anger a place in the “rolled-up” instruction: Azzam at para. 65.
[109] In the end, what jurors must understand, whether by express instruction or otherwise, is that in deciding whether the prosecution has proven either state of mind necessary to make an unlawful killing murder, they are to consider all the evidence that sheds light on that issue, even if they have rejected the specific defences, justifications or excuses in play to which that evidence also relates.
(4) The Principles Applied
[110] This ground reduces essentially to a complaint that the trial judge failed to include “provocation” as a component in the “rolled-up” instruction, thereby leaving jurors with the erroneous impression that provocation was only relevant as a stand alone partial defence after murder was proven – I disagree.
[111] The trial judge began his final instructions about proof of the state of mind required for murder by telling the jurors to take into account what the appellant did or did not do, how he did or did not do it, and what he said or did not say.
[112] The judge then turned the jurors’ attention to intoxication, a critical feature of the appellant’s defence. At the end of his instructions on intoxication, to which no objection is taken, the trial judge made it clear that even if they rejected intoxication, the jurors were nonetheless required to consider the cumulative effect of evidence of:
i. alcohol consumption;
ii. anger;
iii. fear;
iv. excitement;
v. instinctive reaction; and
vi. mental disturbance
along with other evidence that the appellant:
…acted instinctively, in the sudden excitement of the moment, without thinking about the consequences of what he did, and without either state of mind necessary to make the unlawful killing of Janice Cudjoe murder.
[113] After a specific instruction about the role of anger in their decision about the appellant’s state of mind, the trial judge reiterated the jury’s obligation to consider the cumulative effect of the evidence, then concluded with a concise statement of the findings available to the jury on the issue.
[114] The trial judge did not use the term “provocation” in the “rolled-up” instruction. But use of the term “provocation”, otherwise than in reference to the partial statutory defence, is not without its problems. For example, in cases of planned and deliberate first degree murder provocation may be:
(i) a statutory partial defence under s. 232, reducing murder to manslaughter; and
(ii) a relevant item of evidence on the issue on whether the murder was deliberate.
To avoid confusion, it has been suggested that the term “provocation” not be used in connection with item (ii), above, lest jurors apply the narrower meaning of the term when a broader and less exact scope is to be applied: R. v. Mitchell, [1965] S.C.R. 471, at p. 476. The descriptive “provoking words or conduct” may be better suited in that context, likewise here.
[115] To hold the instructions given here deficient because they omitted the single term “provocation” from the list of factors relevant to a determination of the appellant’s state of mind when he unlawfully killed his wife is to reject substance in favour of form. The jury was instructed to take into account, among other things, anger, excitement, instinctive reaction and mental disturbance, all of which are closely allied with provocation. The instructions given adequately equipped the jurors to perform the task set for them: to decide whether the unlawful killing was murder or manslaughter.
[116] This ground of appeal fails.
The Fourth Ground: Inadequate Response to Jury Question about the Meaning of “Sudden”
(1) The Question and its Context
[117] On the first day of deliberations, the jurors asked three questions. The third question occurred at about 10:00 p.m., twelve hours after proceedings had begun that day and eight and one-half hours into the jury’s deliberations. The question was this:
Can the judge provide the definition of the term “sudden” in a legal context with reference to questions C and D of the provocation section of the second degree murder charge?
[118] The appellant’s trial counsel wanted an opportunity to research the issue raised by the jury’s question. The prosecutor pressed for an immediate response, a re-reading of the instructions already given and of which the jurors had a written copy.
[119] The trial judge prefaced his response to the jury’s question with the following:
If you don’t feel that the answer to your question is found in those written instructions please let me know and I’ll try again to answer your questions, but on initial view of this I think your answer is found in the written instructions.
After re-reading a portion of his earlier instructions on provocation, the trial judge directed the jurors to retire at about 10:30 p.m. on the first day of their deliberations.
[120] On the following day, the jurors asked no further questions. Counsel did not seek the jury’s recall for further instruction.
[121] The jury returned its verdict in the afternoon of the second day of deliberations.
(2) The Position of the Parties
[122] The appellant says that the third question affords a clear indication that the jurors were encountering difficulty with the partial statutory defence of provocation. They were entitled to a full, careful and correct response to their query, something more than a second reading aloud of instructions of which they had a written copy. It seems obvious that they required something beyond what they had already been told and had read. And they never received a proper response to their question.
[123] The appellant also complains about the failure of the trial judge to accede to trial counsel’s request for an opportunity to review the authorities in order better to answer the jury’s question. There was no pressing need to barrel ahead late at night with an inadequate response, rather than to await the morning when a complete answer could be provided to a refreshed jury.
[124] Mr. Alvaro, for the respondent, agrees that the jury was entitled to a clear, correct and comprehensive answer to their question. The timing of the response is of less importance than its accuracy. The response was correct, clear and comprehensive. The jury was invited to ask further questions if they were not satisfied with the response, but asked none. The appellant’s trial counsel was given the chance to make further submissions, but declined.
(3) The Governing Principles
[125] The parties share common ground on the importance of clear, correct and comprehensive responses to questions posed by jurors during deliberations: R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at pp. 759-760; R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, at pp. 528-531.
[126] Questions from a jury during deliberations provide the clearest possible indication that the jurors, at least one or more of them, is or are encountering difficulty with the subject-matter of the question and require judicial assistance through further instruction. The importance of a correct and comprehensive answer increases with the length of the deliberations and the time that has elapsed since the original instructions.
[127] The specific question asked here had to do with the suddenness requirement in provocation. Suddenness must characterize both the wrongful act or insult and the act of retaliation. The wrongful act or insult must strike upon a mind unprepared for it, make an unexpected impact that takes the understanding by surprise and set the passions aflame: R. v. Tripodi, 1955 CanLII 10 (SCC), [1955] S.C.R. 438, at p. 443; R. v. Thibert, 1996 CanLII 249 (SCC), [1996] 1 S.C.R. 37, at para. 20. In ordinary speech, “sudden” means happening or coming without warning, unexpected, or unforeseen.
[128] The suddenness requirement does not mean that the background and history of the relationship between the principals falls out of consideration. The relationship is of especial importance if it reveals a long and rich history of insults levelled at the accused by the deceased: Thibert at para. 20.
(4) The Principles Applied
[129] The jurors’ question arose well into the deliberation process, about eight hours after final instructions had concluded. The question surfaced in a case in which the jurors each were provided with a written copy of the judge’s instructions. The response given did not go beyond what was included in the written instructions.
[130] The final instructions and the response to the jury’s question both emphasized the suddenness requirement in provocation. The jurors were told that the wrongful act or insult and the appellant’s retaliation must both be sudden. The trial judge also repeated his earlier instructions, which included his reference to the background and history of the spousal relationship. The appellant’s trial counsel did not object to the recharge.
[131] On appeal, the principal complaint appears to be that the trial judge should also have told the jurors that they should take into account the prior relationship between the couple when considering the objective standard in provocation, the so called “ordinary person” test.
[132] The jury had a copy of the trial judge’s final instructions. Those instructions included reference to the prior relationship between the appellant and deceased, including “the same series of acts or insults”. This relationship was linked to both the objective and subjective test for provocation. The only circumstance the recharge excluded from consideration on the issue of the suddenness of the deceased’s wrongful acts or insults was her words or conduct that amounted to a predictable response to something the appellant said or did.
[133] The reality of this case is that the bedroom insults were little more than repetitions of things said earlier the same evening, insults that produced no loss of self-control on anyone’s account of events. While more of the same may sometimes be sudden, it seems scarcely the case here. The failure to provide an express instruction to include a reference to the prior relationship, an instruction not sought by counsel at trial, did not cause the appellant any prejudice.
[134] Although I have found the trial judge’s response to the jury’s question caused no prejudice in the circumstances of this case, the need for a clear, correct, careful and comprehensive response to all jury questions warrants emphasis. Jury trials, especially the composition of jury instructions, are challenging work for all concerned. It makes little sense to sacrifice accuracy and completeness for immediacy of response. Questions from jurors that arise late in the evening, especially after a full day or longer of deliberations, may be better answered the following morning when everyone returns to their task more refreshed: R. v. Chahal, (2008) 2008 BCCA 529, 240 C.C.C. (3d) 363 (B.C.C.A.), at para. 40. Mistakes are as easily avoided as they are made. There is little point in rushing to make them. Stopwatch justice comes at too high a price.
[135] I would not give effect to this ground of appeal.
The Fifth Ground: Failure to Relate the Evidence to the Contested Issues
(1) An Overview of the Ground
[136] The final ground of appeal questions the adequacy of the trial judge’s relation of the evidence to the critical issues in the case.
[137] The task assigned to the jury in this case was to determine whether the appellant’s unlawful killing of his wife was murder, as the prosecutor asserted, or manslaughter, as the appellant contended. The jury had to decide first whether the prosecutor had proven beyond a reasonable doubt that the appellant had either mental state required for murder when he unlawfully killed the deceased – that the appellant either meant to kill Janice Cudjoe, or meant to cause her bodily harm that he knew was likely to kill her and was reckless whether she died or not. Without such a finding, the appellant’s crime was manslaughter. With such a finding, the jury was required to decide whether the murder was provoked, thus manslaughter, or unprovoked, thereby murder.
[138] The trial judge instructed the jury on the mental or fault element required to establish murder. Included in the charge were:
i. instructions on the effect of intoxication on a person’s mental state;
ii. directions on the common sense inference of intention from conduct and its consequences; and
iii. the “rolled-up” instruction about the cumulative effect of various factors on state of mind.
[139] After completing these instructions on the mental or fault element in murder, the trial judge turned to provocation, separated out its essential elements, and provided instructions to which no objection is or could be taken.
[140] The trial judge mentioned some relevant factors for the jurors to consider on the mental or fault element and the partial defence of provocation, but did not, at the same time, review the essential features of the evidence or expressly relate that evidence to the issues he framed for the jury as follows:
Did Randulph Cudjoe have the state of mind required for murder?
Was Randulph Cudjoe not [sic] provoked?
[141] The trial judge’s references to the evidence adduced at trial appear under his heading, Trial Evidence, and consist of a serial review of some features of the testimony of some witnesses, including investigating police officers, experts and the principal witnesses, Maryann Smith and the appellant.
[142] Neither counsel objected to the substance of the evidentiary review or to the manner in which it was incorporated into the final instructions.
(2) The Positions of the Parties
[143] Ms. Verner for the appellant emphasizes the obligation of the trial judge not only to review the essential features of the evidence, but to relate that evidence to the critical issues in the case so that the jury might appreciate the value and effect of the evidence. A mere summary of witnesses’ testimony is inadequate to the task set by the authorities for the trial judge.
[144] The appellant argues that the critical issue in this case was the appellant’s state of mind when he unlawfully killed his wife. Did he intend to kill her? Did he intend to cause her bodily harm that he knew would likely kill her and was he reckless whether she died or not? The jury was entitled to have the trial judge apply his legal training to the evidence, to identify the essential features of the evidence relevant to the issue of the appellant’s intention and foresight, in short to his mental state, and to relate those features of the evidence to the issue the jury was required to decide. And this, she submits, the trial judge simply did not do.
[145] The appellant advances the same argument with respect to the partial defence of provocation; there was no review of the evidence and no relation of its essential features to the issues spawned by s. 232 of the Criminal Code.
[146] In the result, Ms. Verner says, the trial judge left the jurors inadequately equipped to decide the critical issues in the case because they lacked any appreciation of the evidence of which they could make use to reach their decision. A new trial should follow.
[147] For the respondent, Mr. Alvaro begs to differ. Each case is different. Some require a more elaborate review and relation of evidence than others. This was an uncomplicated, for all practical purposes, single issue case. The significant aspects of the evidence were reviewed by the trial judge in his final instructions. The jury could not have been left in any doubt about how that evidence related to the issue they had to decide.
[148] Mr. Alvaro points out that the trial judge gave full and correct instructions about the mental or fault element required to be proven to make an unlawful killing murder. His instructions on provocation were equally complete and correct. In each instance, he listed or otherwise noted factors that the jurors could consider in reaching their conclusion. The relevance of the evidence to these elements was obvious, the evidence itself remarkable for its simplicity. All that was reviewed was the evidence that mattered.
[149] The respondent advances the further point that a more detailed review and textured relation of the evidence would have worked great mischief for the appellant. The evidence of intoxication was flimsy at best, belied by the appellant’s own words. Likewise, the evidentiary underpinnings for the loss of self-control. No prejudicial error here.
(3) The Governing Principles
[150] The obligation upon a trial judge to review the essential parts of the evidence and to relate it to the critical issues in the case so that the jurors will appreciate its value and effect is well-established. The locus classicus of the principle is its expression by Taschereau J. in Azoulay v. The Queen, 1952 CanLII 4 (SCC), [1952] 2 S.C.R. 495, at pp. 497-498:
The rule which has been laid down, and consistently followed is that in a jury trial the presiding judge must, except in rare cases where it would be needless to do so, review the substantial parts of the evidence, and give the jury the theory of the defence, so that they may appreciate the value and effect of that evidence, and how the law is to be applied to the facts as they find them. As Kellock J.A. (as he then was) said in Rex v. Stephen et al.: “It is not sufficient that the whole evidence be left to the jury in bulk for valuation.” The pivotal questions upon which the defence stands must be clearly presented to the jury’s mind. Of course, it is not necessary that the trial judge should review all the facts, and that his charge be a minute record of the evidence adduced… [Emphasis in original; citations and footnotes omitted.]
See also, R. v. MacKinnon (1999), 45 O.R. (3d) 378 (C.A.), at p. 385; and R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 54.
[151] It does not follow from Azoulay, or for that matter from any later authority, that a trial judge is required to review in final instructions all the evidence upon which an accused relies in support of his or her defence: Azoulay at p. 498; Daley at para. 55. Nor is the trial judge required to review or relate evidence that is only peripheral to the controverted issues in the case: Daley at para. 55; Thériault v. The Queen, 1981 CanLII 180 (SCC), [1981] 1 S.C.R. 336, at p. 342.
[152] The role of the trial judge in instructing a jury generally, and in reviewing and relating the evidence to the issues in particular, is to decant and simplify. The trial judge should not simply leave the evidence in bulk for the jury, assigning to them responsibility for determining the relationship between the evidence and the issues that arise for their decision: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 13; R. v. Royz, 2009 SCC 13, at para. 2. The extent to which the evidence must be reviewed to fulfill the obligation of the trial judge will depend on the circumstances of individual cases: Daley at para. 57; Royz at para. 3.
[153] Any assessment of the validity of a complaint about an inadequate review and relation of the evidence to the issues in a particular case should keep in mind the considerable discretion reposed in trial judges to choose the method of reviewing and relating the evidence to the issues they consider best suited to the circumstances of the case being tried: R. v. John, [1970] S.C.R. 781, at pp. 792-793.
[154] To determine the adequacy of jury instructions requires a functional approach, which tests the instructions against their ability to fulfill their intended purposes, not by reference to their adherence to or departure from some pre-ordained formula or pattern; Jacquard at para. 14; John at pp. 792-793; MacKinnon at pp. 385-386; R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146, at pp. 163-4. Provided the instructions in an individual case fulfill their intended purpose, it is beside the point that the evidentiary references could have been more complete or better expressed, or less extensive and differently placed. The instructions are adequate if the evidence is put to the jury in a way that allows the jury to fully appreciate the issues and the defences advanced: Daley at para. 57.
[155] We expect counsel conducting a case to assist the trial judge by offering constructive submissions about the content of jury instructions, including but not only final instructions. The extent to which the evidence will be reviewed and how it will be related to the issues are subjects worthy of discussion at pre-charge conferences held sufficiently in advance of final instructions to ensure that the standard required is met. Failure to assist, as well failure to object, may be indicative of the seriousness of what is later said to be error and a factor in appellate review: Daley at para. 58; Royz at para. 3; Jacquard at para. 38.
(4) The Principles Applied
[156] This was a simple case. Was the unlawful killing for which the appellant accepted responsibility second degree murder, or was it manslaughter? To determine the legal character of the unlawful killing, the jurors had first to decide whether the appellant committed murder. If the jurors found the appellant had committed murder, they then had to decide whether the murder was mitigated by provocation, thus manslaughter. If the jurors had a reasonable doubt that the unlawful killing was murder, then their verdict would be that the appellant was guilty of manslaughter.
[157] The application of the governing principles discussed earlier to the circumstances of this case imposed on the trial judge the obligation of reviewing the essential features of the evidence and relating it to the issues of murder and provocation so that the jurors could appreciate the value and effect of that evidence.
[158] The trial judge instructed the jury that the prosecutor had to satisfy them of three essential elements before they could find the appellant guilty of second degree murder:
i. that the appellant unlawfully caused the deceased’s death;
ii. that the appellant had the state of mind required for murder; and
iii. that the appellant was not provoked.
[159] After pointing out that the first essential element had been admitted by the appellant, the trial judge turned to the second essential element, the mental or fault element required to be established to make an unlawful killing murder. He explained to the jury their obligation to consider all the evidence in deciding this issue, including the appellant’s words and conduct before, at the time and after the killing, and made specific reference to evidence of alcohol consumption, the common sense inference of intention from conduct and its consequences and the relevance of evidence of intoxication to the proof of the mental element required to make the unlawful killing murder. The trial judge added a “rolled-up” instruction, which referred specifically to consumption of alcohol, anger, fear, excitement, instinctive reaction and mental disturbance and stressed the need to consider the cumulative effect of this evidence.
[160] The trial judge did not review, contemporaneously with his legal instructions on the mental or fault element in murder, the essential parts of the evidence that would assist the jury in deciding this issue, or relate that evidence to the mental or fault element in murder. He did not, except as indicated earlier, describe the evidence by subject-matter for later reference or point out the positions of the parties on this issue.
[161] In connection with the partial statutory defence of provocation, the trial judge separated out its essential elements, posed each as a question for the jurors to determine and provided legal instructions on the issue without any evidentiary references or descriptions.
[162] The trial judge’s review of the evidence occurred immediately after he had concluded his instructions about the mental element in murder, the defence of provocation and the essential elements of aggravated assault, the second count charged. The review consisted of a fair recitation of the substance of the evidence of several witnesses, including Maryann Smith and the appellant. The review also contained a recapitulation of the observations of several police officers about the appellant’s conduct and condition on and after his apprehension, evidence that had a bearing on the issue of intent, especially the influence of alcohol consumption on the appellant’s behaviour.
[163] Immediately after this evidentiary review, which consisted in large part of evidence relevant to the issues to be decided, the trial judge outlined the positions of the parties. The prosecutor contended that the unlawful killing was murder, motivated by jealousy and unattenuated by the partial defence of provocation. The appellant argued that his crime was manslaughter, an unlawful killing that was not murder because he was intoxicated or provoked.
[164] At bottom, what must be accomplished is that the essential features of the evidence must be rehearsed for the jury in such a way that will ensure that the jurors fully appreciate the issues to be decided and the evidence that informs that decision. Final instructions that meet this standard are adequate: Daley at para. 57.
[165] In this case, no legitimate complaint can be advanced about the judge’s review of the evidence adduced at trial. His summary of the evidence was fair and balanced. It omitted nothing of consequence. It included little of unimportance to the issues raised. Tested against the benchmark of fairness, the review was adequate.
[166] The critical issue in this case is whether the way in which the trial judge reviewed the evidence for the jury allowed the jury to fully appreciate the issues and the defence presented. In the singular circumstances of this case, I am satisfied that the trial judge’s instructions were adequate.
[167] The only issue that the jury was required to decide in this case was the legal character of the unlawful killing. The appellant admitted he had unlawfully killed the deceased. The jury had to decide whether the unlawful killing was murder or manslaughter. Their first decision required them to examine the evidence and determine whether the prosecutor had proven beyond a reasonable doubt either mental state necessary to make the unlawful killing murder. If they found the unlawful killing was murder, they had next to determine whether the murder was mitigated by provocation, thus manslaughter.
[168] The jury received legally accurate instructions about the essential elements of murder. They were given the appropriate benchmarks by which they could determine whether the mental element required to make an unlawful killing murder had been established. Likewise, the instructions parsed the constituents of the partial defence of provocation and explained the consequences of a reasonable doubt on the issue. The evidence upon which they could rely on both issues was uncomplicated, essentially the testimony of two witnesses, the appellant and Maryann Smith, together with the testimony of investigating officers about their observations at the scene and minimal uncontroversial expert opinion evidence. Counsel had reviewed the same evidence in support of their positions on the preceding day.
[169] To say that the jurors could not appreciate the value and effect of the relevant evidence because the review was separate from the legal instructions, at least in the circumstances of this case, would be to abandon the well-settled latitude afforded trial judges to determine the manner in which and the extent to which the evidence is to be reviewed and related to the essential elements of liability and defence in favour of a rule that requires adherence to a set formula with the penalty for default being appellate reversal.
[170] In this case, this ground of appeal fails for several reasons. At the risk of repetition, this was a single issue case: was it murder or was it manslaughter. The evidence was neither lengthy nor complicated. Expert evidence was minimal and uncontroversial. The relationship between the evidence reviewed by the trial judge and the issue to be decided would be obvious to a contemporary Canadian jury. The evidentiary review, which followed very shortly after the legal instructions, was focused on the critical features of the evidence, not cluttered or rendered meaningless by a lengthy and indiscriminate regurgitation of nearly everything said by almost everybody who testified. Counsel at trial did not object to either the substance or placement of the evidentiary review and voiced no complaint that the manner in which it was done failed to alert the jury to the value and effect of the evidence on the issues to be decided.
[171] Every case is different. What was done here was adequate in this case. But I do not wish to be taken as affirming that, in another case on other facts, much less in all cases, the approach taken here will meet the standard required.
[172] The task of a trial judge in connection with evidentiary references is not co-extensive with a simple review, summary or even a complete rendition of the evidence adduced at trial. Such rote reviews are more apt to confuse than to enlighten, especially when jurors are numbed into near automatistic states by a mindless recitation of evidentiary minutiae. The mere fact that an item of evidence has been introduced at a trial does not command its repetition in final instructions.
[173] The more difficult task for trial judges in connection with evidentiary references is the relation of those references to the issues in the case. Review and relate. Relating the evidence to the issues requires the trial judge to apprise the jurors of the essential features of the evidence that they may apply in resolving the issues that are theirs to decide and that will lead them, ultimately, to their verdict.
[174] The trial judge in this case followed the format of the Ontario Specimen Jury Instructions (Criminal) (Toronto: Thomson Carswell, 2003), in his final instructions. Those instructions on substantive offences:
i. separate out and state in point form the essential elements of the offence;
ii. convert the point form statements of the essential elements into a series of questions;
iii. provide legal instructions that govern the jury’s decision on each question, including instructions on any defences, justifications or excuses that relate to the essential element that is the subject of the question;
iv. instruct the trial judge to “review relevant evidence and relate to issue”, thus helping jurors to understand the value and effect of the evidence on their decision on each issue; and
v. identify the decisions available to the jury on each issue and explain the consequences of those decisions for further deliberations and final verdict.
[175] The Ontario Specimen Jury Instructions (Criminal), and other model and pattern instructions that have duplicated their methodology, adopt a systematic approach to jury instructions. A crucial constituent of this scheme, reflected in item iv, above, involves linking the critical features of the evidence to the issue or essential element to which the evidence relates. Said somewhat differently, what must be proven (the essential element) is mated with what is offered to prove it (the evidence).
[176] To determine whether an essential element of an offence has been proven beyond a reasonable doubt requires a jury to make findings of fact. These findings of fact are made on the basis of evidence adduced at trial: testimony, exhibits and admissions, together with inferences drawn from that evidence. For each finding of fact some, but usually not all of the evidence adduced at trial will be relevant. The trial judge’s task is to review the essentials of that evidence and to relate it to the issue to which it is relevant. A legal instruction combined with a contemporaneous review of the evidence on the issue seems more likely to assist the jurors in their decision-making than an instruction that segregates what must be proven from what is used to prove it.
[177] The practice of combining legal instruction and focused evidentiary review into an integrated whole, the method for which the Ontario Specimen Jury Instructions (Criminal) provides, ensures what a separate review of the evidence does not achieve in most cases: an issue specific relation of the evidence. Further, such a procedure is more apt to reduce the volume of evidence references, confining them to the essentials, eliminating the peripheral and concentrating more on quality than quantity.
[178] I wish to emphasize that nothing said here is meant to compress jury instructions into a formula, or to replace substance with form, or to insist that juries be perfectly rather than properly instructed. Nor do I suggest that there is but one way for trial judges to discharge their obligations to review the essential parts of the evidence and to relate it to the issues so that the jury may appreciate its value and effect. The procedure suggested here, however, seems more likely to advance at once two legitimate goals of jury instructions: better education of jurors to assist informed decision-making and meaningful compliance with controlling precedent.
[179] In this case, however, I am not prepared to say that the procedure followed, which briefly separated the evidentiary review from the discussion of the essential elements of the offence charged and defences raised, constituted a failure to relate the essential features of the evidence to the issues that required decision, misled or confused the jury or otherwise compromised the fairness of the appellant’s trial.
[180] This ground of appeal fails.
IV CONCLUSION
[181] For these reasons, I would dismiss the appeal.
RELEASED: July 3, 2009 "KNF"
"David Watt J.A. "
"I agree K. Feldman J.A."
- This judgment is released under s. 123(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Borins J.A., who died on June 13, 2009, did not participate in this decision.