R. v. Stiers, 2010 ONCA 382

CITATION: R. v. Stiers, 2010 ONCA 382

DATE: 2010-05-26

DOCKET: C43142

COURT OF APPEAL FOR ONTARIO

Sharpe, LaForme and Rouleau JJ.A.

BETWEEN

Her Majesty The Queen Respondent

and

Kevin Stiers Appellant

James Lockyer and Richard Posner, for the appellant

Jamie Klukach and Holly Loubert, for the respondent

Heard: February 23, 2010

On appeal from the conviction imposed by Justice T. Patterson of the Superior Court of Justice, sitting with a jury, dated December 17, 2004.

Sharpe J.A.:

[1] The appellant was convicted of first degree murder and sentenced to life imprisonment with no eligibility for parole for twenty five years.

[2] On the night of the incident, the appellant claims to have been drinking heavily and to have taken two Percocet pills. The deceased, nineteen year old Glen Ivancic, was unknown to the appellant and the two had never met until three to five minutes prior to the fatal stab wound inflicted by the appellant that caused Ivancic’s death.

[3] Their interaction began when Ivancic yelled insulting remarks at the appellant and the appellant’s girlfriend and then bettered the appellant in an initial fistfight. The appellant left the scene of the fight but returned within minutes with a knife. Another fight ensued involving the appellant, Ivancic and Ivancic’s male companion, Justin Banwell. The Crown alleged that the appellant inflicted the fatal knife wound at the outset of this second fight, while Ivancic was seated in the passenger seat of the car being driven by Banwell. The appellant admitted stabbing Ivancic. However, he testified that he only did so in self-defence. According to the appellant, he first struck Ivancic with his fist. Ivancic got out of the car, tackled the appellant to the ground, and held him down. The appellant says that he was then attacked, both by Ivancic’s punches and by Banwell, who kicked him several times in the head. It was only then that, fearing for his life, he used the knife to stab Ivancic.

[4] The central defence advanced at trial was self-defence. Failing self-defence, the defence took the position that the appellant lacked the requisite intent for murder due to the consumption of drugs and alcohol, anger and fear, while also relying on provocation.

[5] After a two-month jury trial, the appellant was convicted of first degree murder. He raises grounds of appeal relating to the Crown’s re-examination of Banwell and use of his out-of-court statements, and the adequacy of the judge’s instructions relating to post-offence conduct, provocation, and planning and deliberation. The appellant also submits that the first degree murder verdict is unreasonable.

[6] For the following reasons, I would set aside the conviction for first degree murder and substitute a conviction for second degree murder, but otherwise dismiss the appeal.

Facts

[7] On September 26, 2003, the appellant, then 23 years old, worked all day as a painter and then had dinner with his family. During the evening, he purchased a “six-pack” of beer, drank four bottles and then went to see his mother and brother at the Legion where he consumed several more bottles of beer. He also took a Percocet tablet for his sore back. Upon returning home from the Legion, he struck his head on the floor of the lobby of his apartment building during a friendly wrestling match with his brother, took another Percocet tablet and had two more bottles of beer.

[8] The appellant was annoyed with his girlfriend, Chanelle Guitard, who had gone out for the night with some friends. When she returned after 1:30 am, they went for a walk and made their way to an alley by a Wendy’s restaurant next to their apartment building. The appellant testified that, as was his habit, he carried a knife when he left the apartment. They settled their differences and began to hug and kiss.

[9] Ivancic and Banwell had both consumed beer and marijuana earlier in the evening. Ivancic was irritated and on edge because of an insult received from an acquaintance shortly before their encounter with the appellant. They proceeded towards the Wendy’s drive-through in a car driven by Banwell. When they saw the appellant and his girlfriend kissing, Ivancic yelled: “Give it up to him right now”, or words to that effect. The appellant approached the vehicle and asked what the problem was. Ivancic got out of the car, angry words were exchanged, and a fight ensued. There was conflicting evidence as to precisely how the fight started or who was the main instigator. Ivancic, a larger man, quickly got the better of the appellant. He pulled the appellant’s shirt over his head, punched the appellant several times in the head and threw him forcefully to the ground. Banwell joined in the attack and pushed the appellant to the ground a second time. Ivancic continued to strike the appellant in the head.

[10] The appellant suffered several hard blows to his head and torso. Neither Ivancic nor Banwell were injured. The appellant was very angry and upset at having been beaten up in front of his girlfriend. In one but not both of his statements to the police, Banwell stated that the appellant threatened to “shank” or “stab” Ivancic. At trial, Banwell could not recall that statement and the Crown sought and obtained a ruling admitting the police statement under the principled exception to the hearsay rule. The appellant and his girlfriend denied that there had been any such threat.

[11] The appellant returned to his apartment and sought the assistance of his brother. His brother was intoxicated and failed to respond. The appellant got a steak knife from the kitchen and admitted that he told his mother “I didn’t deserve that. I’m going to pay this motherfucker back.” His brother’s girlfriend testified that he said “he’s gonna pay” or “he’s gonna get what he deserves”, but he denied making that statement. He did not heed his mother’s advice to leave things as they were and returned to the Wendy’s, according to his version, with the knife concealed down the front of his jogging pants. The appellant testified that it was his intention to produce and wave the knife to scare Ivancic and Banwell if they attacked him again.

[12] The appellant returned to Wendy’s within a matter of minutes after the first fight. Ivancic and Banwell had paid for their order but they still had not collected it. As they sat in the car waiting, the appellant came up to the passenger side of their car. He testified that he struck Ivancic with his fist through the open passenger side window. The Crown’s theory was that the appellant stabbed Ivancic at that point, first in the neck and then in the chest.

[13] Ivancic got out of the car and tackled the appellant to the ground. He held the appellant down and struck him in the face with his fist. The appellant attempted to knee Ivancic in the groin. Banwell joined the fight by delivering several hard kicks to the appellant’s head. I will explain Banwell’s evidence of why he entered the fray and when he realized that Ivancic had been stabbed in greater detail below. A witness at Wendy’s heard someone – she thought was Banwell – scream “I’ll kill you”. The appellant testified that it was not until Banwell was kicking his head that, fearing for his life, he took the knife from his pants and slashed at Ivancic.

[14] Ivancic got off the appellant to return to the car. The appellant bear-hugged Ivancic from behind and the two fell to the ground. The appellant got up but Ivancic remained on the ground on his stomach.

[15] Banwell turned Ivancic over and saw that he had been stabbed in the chest. A pathologist testified that Ivancic would have died from the stab wound that pierced his heart within 30 to 90 seconds from the time it was inflicted. Ivancic also suffered from a cut to his neck and injuries to his hands consistent with having punched someone. He also had a bruised bladder consistent with the appellant’s attempt to knee him in the groin. The appellant suffered extensive injuries to his neck, head, wrist and elbow and bruises to his body. Banwell’s vehicle showed spray and droplets, possibly blood, on the inside of the passenger door but those spots were not tested and no DNA samples were taken.

[16] The Crown led considerable evidence of the appellant’s after-the-fact conduct, including the following:

• After the stabbing, the appellant returned to his apartment, showered, and put his bloody clothes in a bag, while also putting on the clean clothes laid out by his mother at his request. The appellant left the apartment telling Guitard he was going to a tree house he had built in the woods;

• As it was too cold at the tree house, he proceeded to a friend’s house where he had another shower and laundered his clothes;

• The appellant called Guitard and asked her to come to the friend’s house. He later called his boss and told him that he did not recall what had happened. The boss told him that Ivancic was dead. The appellant asked the boss to come to the friend’s house with his pay check and not to tell anyone where he was;

• When the police arrived, the appellant attempted to hide in the basement; and

• A witness testified that she received a wrong-number phone call from an excited unidentified male, shouting the following: “Redline, Redline” And “ You gotta pick us up. They’re going to get us for murder.” Redline is a massage parlour with the same phone number as that of the witness, except for one digit. The appellant’s distant cousin worked at Redline. The appellant had not seen his cousin for two months and he denied knowing the Redline phone number or making any such call.

[17] The appellant testified that he consumed at least 14 beers throughout the evening. A toxicologist testified that, based upon the appellant’s account of the beer he had consumed, his blood/alcohol concentration would be 345-395 mg/100 ml, a level at which his ability to reason and process information would be significantly impaired and that unconsciousness or memory loss would be likely. The Crown took the position that the appellant’s clear and detailed recollection of the events was inconsistent with his having consumed that much alcohol. Guitard testified that the appellant was not falling over or slurring his words, but that she could tell he was drunk. However, she also adopted her statement to the police where she said that she could tell he was drinking but, “I wouldn’t say that he was drunk enough to not know what he was doing”.

Issues

[18] The appellant raises the following grounds of appeal:

1. That the trial judge erred by

a. allowing the Crown to re-examine Banwell on a prior statement he made as to when he first saw blood on Ivancic; and

b. failing to properly instruct the jury on that evidence.

2. That the trial judge’s jury instruction was deficient on the following grounds:

a. the relevance of post-offence conduct;

b. the sufficiency of the instruction as to provocation; and

c. the sufficiency of the instruction on planning and deliberation;

3. That the verdict of first degree murder was unreasonable.

[19] In oral argument, Mr. Lockyer abandoned two grounds of appeal raised in his factum, namely, that certain passages in Crown counsel’s closing address undermined the appellant’s right to a fair trial and that the trial judge’s instruction on self-defence was deficient.

Analysis

1. Re-examination of Justin Banwell

[20] Banwell was a crucial but difficult witness for the Crown. His ability to recall and narrate the events of the evening of the alleged murder was uncertain, shaky and inconsistent. Banwell had given three prior accounts of the event. The first was given to the police early in the morning following Ivancic’s death, on September 27, 2003. That statement was video-taped but it was not made under oath. Banwell’s second statement was given the next day, on September 28, 2003, when he provided police with a sworn video-taped statement. His third pre-trial statement was his evidence at the preliminary inquiry.

[21] There were significant differences between these prior statements and Banwell’s evidence at trial, where he was unable to recall important details of the events in question. As a result, all three prior statements were the subject of considerable attention at trial. The trial Crown, no doubt anticipating Banwell’s uncertainty on crucial points, began his examination-in-chief of Banwell by reminding him of his three prior statements and by suggesting that he might well be asked to refer to them as the examination proceeded.

[22] On one point, Banwell was consistent throughout: he never saw the appellant’s knife. However, he gave varying accounts as to when he first saw blood on Ivancic and as to when he first realized that Ivancic had been stabbed. This was obviously an important issue: the Crown advanced the theory that the appellant stabbed Ivancic before the second fight began, while the defence maintained that Ivancic was only stabbed when the appellant was being held on the ground by Ivancic and kicked in the head by Banwell.

[23] Banwell testified that when the appellant came back after the first fight, he approached the car and started “hitting” Ivancic through the open window. When asked to be more precise, he stated:

I don’t remember too many details. I just remember it was kind of fast, and I wasn’t really looking at it that carefully, but it was just general hitting. I couldn’t really tell you. I don’t remember.

[24] At that point, the jury was excused and Crown counsel reviewed with the trial judge the three pre-trial statements made by Banwell relating to the issue of when he first saw blood or realized that Ivancic had been stabbed. Crown counsel read to the judge the very passage from Banwell’s September 27 statement that was eventually put to Banwell in re-examination and that forms the subject of this ground of appeal:

Q. Glen’s got his window down, or, what?

A. Yeah, he’s, like, “You son-of-bitch”. And then he goes, like, that. Like, that’s all I see. I don’t – I don’t know when he got stabbed. I think he got stabbed then, though, ‘cause lots of blood started coming out then. And they – when Glen – after Glen got stabbed, he was fighting the guy, and – um – they were just – they were just rolling around and…

[25] However, Crown counsel decided at that point not to put that particular statement to the witness. He explained to the trial judge: “I don’t actually think that [it] is appropriate to refresh memory on, on the point that I’m raising, but just so Your Honour has some vantage point” .

[26] When proceedings resumed the next day, Crown counsel took Banwell to the evidence he gave at the preliminary inquiry. After reading the transcript, Banwell described the blow struck by the appellant through the car window as “sort of like jab, punching kind of motion”. He then described how Ivancic got out of the car, tackled the appellant to the ground, got on top of the appellant and hit him a couple of times. At that point, Banwell testified that he thought that there was something wrong with Ivancic, that his “body was kind of limp”. Banwell said that he then delivered about five hard kicks to the appellant’s face. Ivancic then got up to go back to the car and the appellant bear-hugged him from behind. Banwell described hitting the appellant on the back of the head with several hard punches. According to Banwell, Ivancic then fell to the ground on his stomach with the appellant on top. The appellant got up but Ivancic did not. Banwell testified that he then nudged Ivancic with his foot to get him up and then tried to pick him up. Her further testified: “and then I – actually, I turned him over, and that’s when I saw like, a bloodstain on his chest”, which he described as a six to eight inch circle.

[27] In examination-in-chief, Banwell could not recall the appellant threatening to “shank” or “stab” Ivancic. The Crown brought an application to have portions of the September 28 sworn statement admitted as past recollection recorded pursuant to the principled approach to hearsay. After conducting a lengthy voir dire during which all three of Banwell’s prior statements were thoroughly canvassed, including Banwell’s various accounts of when he first saw blood or realized that Ivancic had been stabbed, the trial judge ruled that portions of the September 28 statement should be admitted. Those portions included Banwell’s recollection that, after the first fight, the appellant said “I’m gonna shank you or something”; “something about stabbing him”; “I’ll get you stabbed or I’m gonna stab you or something along those lines”; but nothing about when Banwell first saw blood or realized that Ivancic had been stabbed during the second fight.

[28] An edited videotape containing those portions was played for the jury and Banwell’s examination-in-chief continued. Crown counsel concluded his examination-in-chief by asking Banwell the following: “when is the first time that you are aware of blood in relation to Mr. Ivancic?” Banwell first answered that it was probably when he turned Ivancic over on the ground. He then testified that he had seen blood earlier when he entered the fray by kicking the appellant in the head, which he assumed came from the appellant, when Ivancic was on top of the appellant. He added that, in hindsight, it could have been Ivancic’s blood that he saw at that point.

[29] Defence counsel used Banwell’s prior statements to point out several inconsistencies in his evidence. Banwell said nothing to the police on September 27 about the appellant’s threat to shank or stab Ivancic after the first fight. At the preliminary inquiry, he testified that the appellant struck Ivancic two or three times, not four or five times. He agreed that on September 28, he told the police that the first time he saw blood was when Ivancic was on his stomach. In his September 28 statement, he also told the police that he could not tell that Ivancic was hurt when he was on top of, and fighting, the appellant and that he thought Ivancic was going to “get up and kick this guy’s ass”.

[30] Defence counsel pressed Banwell on the issue of when he first saw blood or realized that Ivancic had been seriously injured. He answered that he recalled seeing blood when Ivancic was on top of the appellant, blood that was “dripping down” and “flowing like syrup”, but that he was not sure whether the blood was coming from the appellant or Ivancic. For the purposes of the ground of appeal, the crucial portion of the cross-examination reads as follows:

Q. The officer asked you if you could see any blood around Glen, correct?

A. Mm-hmm.

Q. You were allowed to take your time before you answered, correct?

A. Yes.

Q. You said he was on his stomach?

A. Yes.

Q. All right, and you couldn’t – basically, you couldn’t see any blood, right?

A. No.

Q. All right, but you never said anything about seeing blood dripping or anything like that before, right?

A. Yeah, but it’s something – it’s something that kind of burned in my memory.

Q. But, you don’t recall it here, eh?

A. No, but I’ve been over it numerous times, and at that point, I was trying to get it out of my head whether I liked it or not, but there’s a lot of stuff that does come back when you – when you have time to really think about it.

[31] After further cross-examination, Barnwell agreed that until he turned Ivancic over, he did not realize that there was anything seriously wrong with him nor that he had been stabbed until he saw the stab wound after turning him over.

[32] Crown counsel re-examined Banwell on a number of points not at issue on this appeal and then turned to the portion of Banwell’s September 27 statement to the police, quoted above at paragraph 24. Defence counsel objected by pointing out that this was improper re-examination. The Crown argued that the defence had opened the door to this line of questioning by alleging recent fabrication with the following question: “All right, but you never said anything about seeing blood dripping or anything like that before, right?” The trial judge allowed the Crown to continue on the basis that this “was a piece of [the] puzzle” that the jury should know, and that it flowed from the cross-examination.

[33] Crown counsel then played the passage from the video set out above at paragraph 24, and the following questions and answers ensued:

Q. Did you hear that, sir?

A. Yes.

Q. Did you indicate at any time to the police whether or not you saw blood prior to the rolling him over?

A. I don’t remember if I did, ‘cause I don’t remember if I remembered that at that point.

Q. Can you please explain that last answer?

A. All right. Well, I remember something like that now, but I don’t know if I said it then, because I didn’t have – I didn’t – I don’t – I think I forgot about that.

Q. Did you just tell the police that in that video statement?

A. Just then?

Q. Yes?

A. Uh….

Q. Was that you in the video?

A. Yes, that was me in the video.

Q. Is that the answer that you gave?

A. No, I don’t think so.

Q. Okay, can you help with me that? In the video that we just saw there?

A. Yeah.

Q. Is that someone else answering than you?

A. No, that was me.

[34] The appellant submits that the trial judge erred, first by allowing the Crown to re-examine Banwell on a prior statement he made as to when he first saw blood on Ivancic; and second, by failing properly to instruct the jury on how to treat that evidence.

(a) Did the trial judge err by allowing the Crown to re-examine on this statement?

[35] The appellant submits that Crown counsel was clearly aware of the statement and that he must have made a strategic decision to hold it back during examination-in-chief in order to gain an advantage by using it in re-examination and thereby having the last word. In any event, the appellant submits that the Crown gained an unfair advantage by being allowed to re-examine on the September 27 statement.

[36] In my view, the submission that the Crown deliberately held back the September 27 statement to use on re-examination in order to gain a strategic advantage is not supported by the record. As I have already noted, Crown counsel made the trial judge aware of the statement when he referred to it earlier during submissions but indicated that he did so only by way of background, and stated that he did consider it to be appropriate at that point in the trial to use the statement to refresh Banwell’s memory. I have no reason to doubt the sincerity of that submission. It amounted to a concession that the Crown could not use the statement unless something else transpired.

[37] In the end, something else did transpire, namely the defence cross-examination of Banwell. In my view, it was open to the trial judge to find that the tenor of the cross-examination and, in particular, the passage I have quoted, evidenced that Banwell had never told the police that he had seen blood from Ivancic until the very end when he rolled Ivancic over. Defence counsel had taken Banwell through a detailed review of the various statements he had made in an attempt to make that point. The detailed review did not, however, include the passage from the September 27 statement where Banwell told the police that he had seen blood earlier. This could have left the jury with an incorrect impression as to the tenor of Banwell’s statements to the police. Crown counsel had initially refrained from leading the September 27 statement because he felt that it would not be proper to do so during Banwell’s examination-in-chief, but the situation changed as a result of the cross-examination.

[38] In the words of Martin J.A.’s oft-cited judgment in R. v. Moore (1984), 1984 CanLII 3542 (ON CA), 5 O.A.C. 51 (C.A.) (leave to appeal to S.C.C. refused, [1985] S.C.C.A. No. 248) at p. 70, re-examination ordinarily “must be confined to matters arising in cross-examination” although the trial judge does have the discretion to allow the facts to be introduced and afford the opposite party the right to cross-examine on any new facts. The law on this issue was recently explained by Watt J.A. in R. v. Candir (2009), 2009 ONCA 915, 257 O.A.C. 119, at para. 148:

It is fundamental that the permissible scope of re-examination is linked to its purpose and the subject-matter on which the witness has been cross-examined. The purpose of re-examination is largely rehabilitative and explanatory. The witness is afforded the opportunity, under questioning by the examiner who called the witness in the first place, to explain, clarify or qualify answers given in cross-examination that are considered damaging to the examiner’s case. The examiner has no right to introduce new subjects in re-examination, topics that should have been covered, if at all, in examination in-chief of the witness. A trial judge has a discretion, however, to grant leave to the party calling a witness to introduce new subjects in re-examination, but must afford the opposing party the right of further cross-examination on the new facts. [Citation omitted.]

[39] I do not agree with the characterization of the cross-examination as suggesting “recent invention” on Banwell’s part and, before us, the respondent did not seek to justify the re-examination on that basis. However, it is my opinion that the re-examination may be properly justified as having been linked to its rehabilitative and explanatory purpose and to the subject-matter on which the witness has been cross-examined. The cross-examination canvassed Banwell’s statements to the police in some considerable detail and suggested that Banwell had never told the police that he saw blood before he turned Ivancic over. This was not a full and accurate picture of the statements Banwell had made. In my view, the trial judge was entitled to conclude that the cross-examination had opened the door to the Crown’s request to put the September 27 statement to Banwell on re-examination, in order to avoid a situation where the jury would be left with a partial and misleading appreciation of the tenor of Banwell’s statements to the police on this crucial issue. I agree with the respondent that the re-examination was properly permitted to correct the erroneous impression, left after the cross-examination, that Banwell had never said he saw blood before rolling Ivancic over.

[40] I am not persuaded that there was any error or trial unfairness arising from the re-examination and, accordingly, I would not give effect to this ground of appeal.

(b) Instruction as to the evidence given by Banwell in re-examination

[41] The appellant submits that the trial judge failed to provide the jury with an adequate instruction as to the use it could make of the September 27 statement.

[42] I start my analysis of this issue by referring to what occurred in the pre-charge conference the trial judge conducted in order to review his draft charge. Initially, defence counsel took the position that Banwell had not adopted the September 27 statement and that the jury should be instructed that it was therefore not admissible for the truth of its contents. However, defence counsel eventually agreed that Banwell’s statement, “Well, I remember something like that now”, was capable of supporting a finding that he had adopted his prior statement. If “there is an evidentiary basis on which the trier of fact could conclude that the [witness] adopted the statement”, the determination of whether a witness adopted all or any part of a prior statement is matter for the trier of fact: R. v. Toten (1993), 1993 CanLII 3427 (ON CA), 14 O.R. (3d) 225 (C.A.), at p. 242. At the pre-charge conference, defence counsel acknowledged that the issue of whether Banwell recalled making the statement or was recalling the incident itself was a question for the jury.

[43] While the trial judge did not explicitly charge the jury on the issue of whether Banwell had adopted the September 27 statement in re-examination, he properly instructed the jury with respect to prior inconsistent statements, generally:

Whatever you choose to make of the differences, you can only use the testimony given under oath in this trial as evidence of what actually happened. You cannot use the earlier statement as evidence of what actually happened, unless you are satisfied the witness accepted it as true while in the witness box. Even then, like the evidence of any witness, it is for you to say whether or how much you will believe of, or rely upon it in reaching your decision. However, there are exceptions to what I have just told you concerning Justin Banwell, Janice Stiers, and Pam Garrod.

[44] The trial judge then went on to explain to the jury how it should deal with the evidence of the three named witnesses with respect to statements they had reported being made to them by the appellant.

[45] Clearly, Banwell’s evidence as to when he saw blood or when he realized that Ivancic had been stabbed was problematic. He was examined and cross-examined on his various prior out-of-court statements and he was shown to be unable to give a consistent account of the incident. The trial judge’s instruction must be considered in the light of what was said during the pre-charge conference and what was said by both counsel during their closing submissions. Crown counsel invited the jury to find that Banwell had adopted the statement, thereby reinforcing the need for the jury to find that he adopted it before relying upon it for the truth of its contents. I find it significant that in his closing address, defence counsel quoted verbatim the disputed passage from the September 27 statement, as well as the portion of the re-examination relied upon by the Crown as amounting to an adoption of the statement. Defence counsel used this apparent contradiction to attack Banwell’s evidence in the following terms:

What accounts for this person’s amazing, I would submit to you, memory or lack thereof. Is he now claiming to forget, consistently claiming to forget what he has previously said which is not true as a convenient way out of a conflict. Conflict between loyalty, a conflict with the truth, a conflict with what was previously said, a conflict with reality that I previously addressed with you.

[46] This passage, when read in tandem with defence counsel’s earlier pre-charge conference concession that the issue of adoption was one for the jury, coupled with an absence of any objection to the charge, fortifies my view that the appellant was not prejudiced by the manner in which the trial judge dealt with the September 27 statement. The defence decided to confront the issue of Banwell’s various out-of-court statements head-on. It further elected to fight the issue of when the appellant stabbed Ivancic on the basis that Banwell was so unsure of what had transpired and equally inconsistent in his various accounts of what had happened, with a view to demonstrating that his evidence was simply unreliable. Thus, from the defence’s perspective, the issue was not whether Banwell had adopted the impugned statement. Instead, the defence decided to use the statement as yet another instance of Banwell’s inability to give a consistent account of the events.

[47] If there was any shortcoming in the trial judge’s instruction – and I am not persuaded that there was – given the manner in which the defence proceeded at trial, I am not persuaded that the appellant suffered any prejudice.

[48] Accordingly, I would not give effect to this ground of appeal.

2. Adequacy of jury instructions

(a) Provocation

[49] The appellant submits that the trial judge’s instruction on provocation was inadequate because it failed to relate the evidence of intoxication and how it could impact on the issue of whether the appellant had “acted on the sudden before his passion cooled”: see R. v. Olbey, 1979 CanLII 61 (SCC), [1980] 1 S.C.R. 1008, at p. 1022.

[50] The trial judge did instruct the jury that, to consider the subjective branch of the test for provocation, “you must take into account Kevin Stier’s mental, emotional and physical condition.” This was immediately preceded by a detailed instruction on the relevance of intoxication to the appellant’s mental state. That instruction specifically related the relevance of intoxication to provocation in the following fashion:

You should consider this evidence [of intoxication] as well, apart altogether from what I’ll tell you later about provocation not just by itself on the particular issue to which it relates, but altogether, and along with other evidence that might suggest that Kevin Stiers acted instinctively, or 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 Glen Ivancic murder.

[51] In my view, read as a whole and in the context of this case, the trial judge provided the jury with an adequate instruction on the relevance of intoxication to provocation.

[52] Accordingly, I would not give effect to this ground of appeal.

(b) Post-offence conduct

[53] As I have indicated, the Crown led a significant body of evidence relating to the appellant’s conduct following the stabbing as circumstantial evidence of his guilt. The appellant submits that the trial judge’s instructions to the jury on the relevance of this evidence were inadequate, as the trial judge failed to instruct the jury that while the post-offence conduct could be probative of the appellant’s participation in an unlawful homicide, it had no probative value on the determination of his level of culpability.

[54] The trial judge instructed the jury as follows:

If you find that Kevin Stiers did in fact do or say these things, you should consider next whether this was because Kevin Stiers committed the offense charged or for some other reason.

If you find what Kevin Stiers said or did afterwards is consistent with him being conscious of having done what is alleged against him, 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 Kevin Stiers said or did those things for that reason, you must not consider this evidence in that way. It is for you to decide based on the evidence as a whole whether Kevin Stiers’ after the fact conduct is not attributable to the charge but that, for example, he 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 whether the weight, if any, such evidence should be accorded in your final determination of guilt or innocence.

[55] It is well-established that, where an accused person has been charged with a more serious offence, such as first degree murder, evidence of flight or other like conduct may be probative of the individual’s commission of an unlawful homicide but is not ordinarily probative of his level of culpability and, hence, has no probative value as to whether the offence was a first or second degree murder or manslaughter: see R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129; R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72; R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 34 O.R. (3d) 620 (C.A.).

[56] However, the relevance of evidence of post-offence conduct will depend upon the nature of the conduct, the facts sought to be inferred from it, the positions advanced by the Crown and the accused, and the totality of the evidence. Further, it follows that “no prefabricated rule stamps certain kinds of after-the-fact conduct as always or never relevant to a particular fact in issue”: see R. v. Cudjoe (2009), 2009 ONCA 543, 251 O.A.C. 163, at paras. 78-79; R. v. Figueroa (2008), 2008 ONCA 106, 233 O.A.C. 176 (C.A.), at paras. 34-35. Accordingly, it has been held that where the accused’s mental state is in issue, for example, through evidence of intoxication, evidence of the accused’s after-the-fact conduct could support an inference that, despite intoxication, the accused did have sufficient awareness to form the requisite intent for murder: see Peavoy, at pp. 631-32.

[57] I agree with the respondent that this was not a case for an instruction that the evidence of after-the-fact conduct had “no probative value”. The after-the-fact conduct evidence was relevant in two ways. First, as the appellant relied on self-defence as a way to excuse the killing, his after-the-fact conduct could be used to infer his awareness of having committed a culpable homicide. Second, the evidence of the appellant’s purposeful conduct after the offence was probative of his mental state and capacity immediately following the stabbing and, therefore, was arguably relevant to the issue of his capacity to form the requisite intention for murder or to commit a planned and deliberate murder.

[58] The more difficult question is whether the trial judge should have given a more nuanced instruction explaining the relevance of the after-the-fact conduct on an issue-by-issue basis.

[59] The appellant relies on the decision of this court in Peavoy, where Weiler J.A., writing for herself and Doherty and Moldaver JJ.A., stated the following, at pp. 631-32:

Given the appellant’s admission that he had stabbed Mr. George, the after-the-fact circumstantial evidence had no relevance with respect to the commission of the physical act. Although the appellant admitted to stabbing the deceased, he did not admit that he had committed any culpable act but testified that he had acted in self-defence. In these circumstances, the after-the-fact conduct was some evidence from which, along with other evidence, the jury could infer that the appellant was aware he had committed a culpable act and had not acted in self-defence. If the jury concluded that the appellant had committed a culpable homicide, the evidence could not be used as evidence that the appellant intended to commit murder as opposed to manslaughter. However, because the defence contended that the Crown had not proven the requisite intent for murder due to the appellant’s drinking throughout the day and at the time of the killing, the after-the-fact conduct could be used in support of the inference that, despite the appellant’s intoxication, he had sufficient awareness to have formed the requisite intent for murder. The evidence suggested a relatively high level of cognitive functioning and purposeful conduct which could be viewed as antithetical to intoxication.

It may not be necessary in all cases for a trial judge to instruct a jury as to the permissible uses of after-the-fact conduct. In the present case, however, the evidence of the after-the-fact conduct formed a significant part of the case against the appellant and there was a danger that the evidence would be misused unless the jury were properly instructed. The trial judge should have specifically told the jury that the evidence was relevant to only two issues:

– Had the Crown proved beyond a reasonable doubt that the appellant committed a culpable homicide and did not act in self-defence.

– Had the Crown proved beyond a reasonable doubt that, despite the appellant’s intoxication, he had the requisite intent for murder.

The trial judge’s non-direction combined with his failure to correct the misstatement by Crown counsel as to the use of the evidence resulted in reversible error.

[60] In the case at bar, the trial judge could have instructed the jury that the after-the-fact conduct could have a bearing on:

1. Whether the Crown had proved that the appellant had committed a culpable homicide and did not act in self-defence;

2. Whether the Crown had proved that the appellant had the requisite intent for second degree murder and had committed a planned and deliberate murder; but

it had no probative value as to

3. The appellant’s consciousness of having committed second or first degree murder, as opposed to manslaughter.

[61] It is my view that a more nuanced instruction along the lines I have outlined above would have been preferable, particularly given the tenuous nature of the case for first degree murder, a point upon which I will expand below. However, such an instruction would certainly introduce a level of complexity that the trial judge might wish to avoid. As recently noted by Watt J.A. in Cudjoe, at para. 90, an instruction along these lines may be difficult to follow or might even seem contradictory in that the jury is being told not to use the evidence to determine the accused’s level of culpability but, at the same time, to use the evidence to determine a mental state evincing the accused’s level of culpability.

[62] The after-the-fact conduct evidence did have a bearing on the appellant’s level of culpability in the event that the jury rejected self-defence and, as frequently stated, the treatment of after-the-fact conduct is highly case-specific. This necessarily implies affording the trial judge leeway in crafting an appropriate instruction. In the end, I am not persuaded that this shortcoming in the charge, standing on its own, amounts to reversible error.

[63] Accordingly, I would not give effect to this ground of appeal although it does have a bearing on my treatment of the verdict of first degree murder.

3. Unreasonable verdict

[64] As the reasonableness of the verdict has a bearing on my assessment of the adequacy of the trial judge’s instruction on planning and deliberation, I will discuss it before turning to that issue.

[65] I am not persuaded that the verdict of guilty on the first degree murder charge was unreasonable. The trial judge dismissed the defence motion for a directed verdict on first degree murder, and no appeal is taken from that ruling. There was some evidence of planning – the threat to “shank” or stab, returning home to get the knife, and returning to the scene to launch a surprise attack through the open car window.

[66] More problematic for the Crown was the element of deliberation. It is well established that the word ‘deliberate’ connotes “considered”, “not impulsive”, “slow in deciding”, “cautious” and implies that the accused must take time to weigh the advantages and disadvantages of his intended action: see [R. v. Widdifield (1961), 6 Crim. L.Q. 152 (Ont. H.C.J.)], at p. 153; R. v. Reynolds (1978), 1978 CanLII 1269 (ON CA), 22 O.R. (2d) 353 (C.A.), at pp. 362-63. The entire exchange between the time the deceased insulted the appellant and the moment the appellant inflicted the fatal stab wound upon him lasted only three to five minutes. The appellant had been drinking and he had consumed drugs. He had been badly beaten in the head in the first fight and was very angry at being shamed in front of his girlfriend. He stabbed the deceased in full view, either in the car or while he was on the ground, in a public place near a drive-through restaurant and close to his own residence. Absent self-defence, there was of course nothing in any of this to excuse his conduct, but that is not the issue.

[67] Was the evidence in this case sufficient to establish beyond a reasonable doubt that Ivancic’s death was the result of a “planned and deliberate act”? Did the appellant’s conduct exhibit a reflective and thoughtful mental process sufficient to constitute first degree murder? Could it be more readily characterized as a drink, drug and anger-fuelled impulsive reaction to an insult and a bad beating, bringing it more readily within the category of second degree murder or manslaughter? There was scarcely time for deliberation as the turmoil that produced the fatal wound, precipitated by drugs and alcohol, passion, trauma from the initial fight and anger hardly allowed for the reflective and thoughtful mental process required in order to amount to deliberation.

[68] I accept that, ultimately, these were questions for the jury to decide and I cannot say that the verdict was unreasonable. However, a verdict of first degree murder was only barely attainable on the facts of this case, thereby highlighting the importance of an appropriate instruction from the trial judge.

4. Planning and deliberation

[69] The trial judge gave the jury an appropriate explanation of the legal meaning of “planning and deliberation” for first degree murder. The appellant takes no issue with the correctness of that definition. The appellant submits, however, that the instruction was deficient, as it merely provided the jury with an abstract definition of the term but failed to instruct the jury on the application of that definition to the particular facts and context of this case.

[70] As I have just explained, I do not accept the appellant’s contention that the verdict of first degree murder should be set aside as unreasonable. However, the case for first degree murder was tenuous and a careful instruction to the jury was apposite.

[71] It is significant that, well into its deliberations, the jury asked the following question, indicating uncertainty about how to apply the definition provided by the trial judge on the meaning of “planned and deliberate”:

Your Honour, we need a clarification of the definition of planned. One, does a plan by definition include a specific result that is e.g., “plan to murder,” murder being included in the plan? ... Can the plan be more generic without a result in the plan? E.g., a plan to act is a plan ...

Two, does “deliberate” include the final result of murder? Can an act be deliberate (such as deliberate bodily harm) without knowing the result? Does the final result need to be considered by the actor before the act?

[72] The jury’s question raised fundamental issues about the planning and deliberation and suggested both a failure to fully grasp the meaning of the phrase and difficulty with the application of the legal definition provided to the facts of the case to be decided. The trial judge answered the question by repeating what he had already mentioned about the definition but neither in his initial charge nor in his answer to this question did he highlight or otherwise examine the evidence the jury needed to consider in deciding the issue.

[73] In the circumstances of this case and in light of the jury’s question concerning planning and deliberation, a more careful instruction, tailored to the facts, was required. There is ample support for the proposition that it is incumbent upon the trial judge to direct the jury to the evidence bearing upon the issue of planning and deliberation, particularly where the Crown’s case for a verdict of first degree murder is weak.

[74] R. v. Frisbee (1989), 1989 CanLII 2849 (BC CA), 48 C.C.C. (3d) 386 (B.C.C.A.), leave to appeal to S.C.C. refused, [1989] S.C.C.A. No. 232, stands for the proposition that, especially where there are weaknesses in the Crown’s case that the murder was planned and deliberate, it is essential for the trial judge to assist the jury by relating the facts of the case to the legal definition of ‘planned and deliberate’. Writing for the court, Esson J.A. stated the following, at p. 428:

There was evidence which was capable of supporting a finding of planning and deliberation. On the other hand, there were weaknesses in that aspect of the Crown case and there was much in the circumstances of the killing which could create a basis for doubting that it was planned and deliberate. Of these matters, virtually nothing was said in the charge to directly relate them to planning and deliberation as distinct from intent.

[75] In R. v. Maciel (2007), 2007 ONCA 196, 222 O.A.C. 174 (C.A.), leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 258, at para. 96, Doherty J.A. stated that in a case where “the question of whether the murder was first or second degree was very much a live issue ... [i]t was essential that the trial judge draw the jury’s attention to the evidence that could assist them in distinguishing between first and second degree murder, should the jury conclude that the appellant was guilty of murder.”

[76] Related to this is the failure of the trial judge to give an explicit direction that, even if the jury found that the evidence of intoxication was insufficient to negate the intent to kill required for second degree murder, it could still negate planning and deliberation. Intoxication falling short of undermining the intent required for second degree murder is still relevant to the issue of planning and deliberation, as it may raise a reasonable doubt as to the accused’s ability to plan and deliberate or make the accused more susceptible to the commission of an impulsive act: see R. v. Wallen, 1990 CanLII 146 (SCC), [1990] 1 S.C.R. 827, at pp. 834-35.

[77] In my view, the circumstances of this case called for a careful instruction on planning and deliberation that went beyond providing an abstract legal definition, and that was specifically tailored to the facts at hand, including the evidence of intoxication.

[78] Accordingly, I would give effect to this ground of appeal.

Disposition

[79] I have concluded that the trial judge failed to provide the jury with an adequate instruction in relation to the application of the definition of “planning and deliberation” to the facts of this case. I have also found that while not an error, it would have been preferable had the trial judge provided the jury with additional guidance on the use it could make of the post-offence evidence. That shortcoming in the instruction had a bearing on whether the jury convicted the appellant of first or second degree murder. While I do not conclude that the verdict of first degree murder was unreasonable, in my view, it was tainted by the error I have identified and, given the tenuous factual basis for first degree murder, the verdict cannot stand.

[80] In its factum, the Crown takes the position that if we find that the trial judge erred on planning and deliberation, we should not order a new trial but rather substitute a conviction for second degree murder. That is precisely what occurred in Maciel.

[81] Accordingly, I would dismiss the appeal pursuant to s. 686(1)(b)(i) of the Criminal Code, which allows this court to dismiss the appeal where it is of the opinion that the appellant was not properly convicted on a count or part of an indictment but properly convicted on another count or part of the indictment, and pursuant to s. 686(3), substitute a conviction for second degree murder.

[82] Section 686(3) allows this court either to impose the appropriate sentence or to remit the matter to the trial court for sentence. The parties may arrange a conference call with me for directions as to the determination of how the matter should proceed from this point forward.

“Robert J. Sharpe J.A.”

“I agree H.S. LaForme J.A.”

“I agree Paul Rouleau J.A.”

RELEASED: May 26, 2010