Court of Appeal for Ontario

CITATION: R. v. Beausoleil, 2011 ONCA 471

DATE: 20110622

DOCKET: C48999

Simmons, Rouleau and Karakatsanis JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Beausoleil

Appellant

Philip Campbell and Vanora Simpson, for the appellant

Gillian Roberts, for the respondent

Heard: March 9, 2011

On appeal from the conviction entered by Justice Paul U. Rivard of the Superior Court of Justice, sitting with a jury, on November 26, 2007.

By the Court:

[1] The appellant appeals from his conviction for second degree murder.

[2] During the late evening of February 27, 2006 and just into the early morning of February 28, 2006, the appellant and five friends were drinking in an apartment in Toronto. The appellant and his close friend, Ryan Horlock, became involved in an argument. The argument became physical – involving at least pushing and shoving – and others intervened to separate the two young men on more than one occasion. The appellant was described as being angry. When Mr. Horlock left the apartment, the appellant followed him down the hall to the 8^th^ floor elevator lobby and stabbed him once in the chest with a kitchen knife. The single stab wound transected Mr. Horlock’s heart. Although he was able to take the elevator downstairs and walk outside before collapsing, he died on the operating table a few hours later.

[3] There was no dispute at trial that it was the appellant who stabbed Mr. Horlock. The only issue was whether the appellant had the requisite intent for murder. The appellant’s four other friends testified at trial; the appellant did not.

[4] The evidence at trial indicated that the six young men consumed about 44 bottles of beer and close to 50 ounces of rum between about 10:15 p.m. on February 27, 2006 and just before 1 a.m. on February 28, 2006. All agreed that the appellant was one of the heavier drinkers during the evening – meaning that he likely consumed more than 16 drinks in under three hours.

[5] The defence theory at trial was that the appellant and the victim were extremely close friends and that whatever issues they may have been arguing about would not have prompted the appellant to want to kill his friend. The defence contended that the appellant stabbed Mr. Horlock because he was drunk – so drunk he could not foresee the likelihood of death ensuing as a consequence of his actions. The defence also pointed to the relatively minimal force of the blow and the absence of follow-up blows as demonstrating the absence of an intent to kill.

[6] The Crown’s theory was that the appellant was so angry at the victim immediately prior to the stabbing that he was literally frothing at the mouth – and shouting words along the lines of “you shouldn’t have fucked with me” or “you shouldn’t have messed with me”. According to the Crown, the appellant’s conduct in immediately cleaning the knife following the stabbing and in crafting lies about who he was and what he was doing when he later encountered the police demonstrated that he was lucid enough to form the intent for murder.

[7] The appellant raises two main issues on appeal:

i) Did the trial judge err in failing to provide a limiting instruction concerning the use of bad character evidence?

ii) Did the trial judge err in his instructions to the jury concerning mens rea and intoxication?

[8] For the reasons that follow, we would dismiss the appeal.

1. Did the trial judge err in failing to provide a limiting instruction concerning the use of bad character evidence?

(i) Background

[9] The bad character evidence adduced at trial consisted of evidence relating to the appellant’s lifestyle (such as evidence of the appellant’s frequent and heavy consumption of alcohol and drugs and fraudulent receipt of welfare cheques at an address at which he did not reside) as well as evidence of other criminal activity on the part of the appellant. The latter evidence consisted largely of evidence arising from encounters between the appellant and the police shortly after the stabbing.

[10] Within an hour of Mr. Horlock’s death, a police officer encountered the appellant in the stairwell between the eighth and ninth floors of the apartment building. The appellant gave a false name and also claimed that he did not have any identification. After the officer noticed the appellant’s wallet in his pocket, the appellant admitted that he had lied about his name and acknowledged he should not have. He said he was going to an apartment on the eighth floor to buy marijuana.

[11] The officer and his partner determined that the appellant was subject to a conditional sentence order and a bail order. Both orders prohibited the appellant from consuming alcohol and required that he abide by a curfew. The officers arrested the appellant for breaching the two orders.

[12] According to the officers, once arrested, the appellant became aggressive and confrontational. He told the officers his lawyer would “eat [them] alive”. He claimed that he was “21 and one in court” and that “Judge Sheppard won’t do anything to [him].” The appellant also called the officers offensive names, kicked one of them and, as a result, had to be restrained.

[13] At the police station, the appellant boasted, “54 Division has never made anything stick on me”. As a result of kicking one of the officers while at the apartment building, the appellant was charged with assault police.

[14] Defence counsel at trial did not object to the admissibility of any of the foregoing evidence, effectively acknowledging that it was admissible to permit an understanding of the unfolding of events on the night in question and of the appellant’s pattern of alcohol and drug consumption – and also to assist in assessing the appellant’s level of intoxication.

[15] However, defence counsel did object when the Crown sought to call a witness to identify Judge Sheppard as the judge who had imposed the conditional sentence order on the appellant. Defence counsel submitted that this was inadmissible bad character evidence. The trial judge agreed. He ruled that the Crown could make its point that the appellant was lucid enough shortly after the stabbing to remember the name of a Toronto judge simply by adducing evidence that there is a Judge Sheppard who presides over criminal matters in Toronto. In this regard, the trial judge held that it was unnecessary for the Crown to emphasize that the appellant was subject to a conditional sentence order.

(ii) The appellant’s position on appeal

[16] The appellant submits that the evidence indicating that he was subject to a conditional sentence order and therefore had a criminal record, together with the evidence of other criminal activity (breaching court orders, assaulting a police officer) and his claims of beating criminal charges, was highly prejudicial in that it solidified his image as a dissolute and criminal character.

[17] According to the appellant, a limiting instruction concerning the permissible and impermissible uses of the bad character evidence was mandatory in this case to caution the jury against using such evidence to reason that the appellant was more likely to have intended to kill Mr. Horlock because he is a bad man. Such an instruction would also guard against the possibility that the jury would find the appellant guilty of second degree murder to punish him for other crimes he had committed but for which he had not been held accountable.

[18] The appellant points out that this evidence was repeated over and over again, by the Crown in her closing and by the trial judge in his charge, as supporting the Crown’s theory that the appellant was lucid. The appellant argues that, in the absence of a proper caution, the jury would have no way of knowing they could not resort to propensity reasoning to find the appellant guilty of second degree murder.

(iii) Discussion

[19] Although we agree that the trial judge should have held a formal pre-charge conference at which he canvassed with counsel the need for a limiting instruction of any kind in the circumstances of this case[^1] and that giving a standard bad character evidence limiting instruction would have been appropriate, we do not accept the appellant’s submission that the failure to give such an instruction constitutes reversible error on the facts of this case.

[20] This court has held on other occasions that such an instruction “is not necessary in every case”: R. v. C.B. (2008), 2008 ONCA 486, 237 O.A.C. 387 (C.A.) at para. 35. The requirement for such an instruction will depend on a variety of circumstances, including the nature and extent of the bad character evidence in issue[^2]; the issue(s) at the trial to which the bad character evidence is properly relevant[^3]; the likelihood that such an instruction will confuse the jury[^4] or unnecessarily draw attention to the discreditable conduct[^5]; and other factors affecting the extent of the risk that such evidence will be used improperly[^6].

[21] On the facts of this case, we see no realistic possibility that the evidence in issue would be used improperly by the jury to assist them in concluding that the appellant was guilty of second degree murder as opposed to manslaughter because he is a bad man.

[22] The evidence in issue is not similar fact evidence and it was not being used to support directly an inference that the appellant committed the offence of second degree murder. In particular, the issue in this case was not whether the appellant stabbed the victim; rather, it was whether the appellant formed one of the requisite intents for second degree murder. The evidence of the appellant’s involvement in other discreditable conduct sheds no real light on that issue through propensity reasoning or otherwise.

[23] In the circumstances of this case the fact of the appellant’s involvement in other discreditable conduct was essentially incidental to the purpose for which the evidence of such conduct was admitted – to demonstrate the appellant’s lucidity – or lack of lucidity

– at a time proximate to the stabbing. And neither the trial judge nor counsel suggested to the jury that it could be used for any purpose other than assessing the appellant’s lucidity.

[24] Importantly, the evidence did not disclose the nature of the appellant’s past criminal conduct – if anything, the fact that the appellant did not receive an actual jail sentence for his past misdeed(s) would have led the jury to conclude that the past conduct was not nearly as serious as culpable homicide. And the evidence of the appellant’s current criminal conduct, consisting of drug use, possible welfare fraud, breaching a curfew, breaching an alcohol prohibition and kicking a police officer while drunk, was essentially trivial by comparison to the offence of second degree murder.

[25] We acknowledge that the evidence concerning the appellant’s interactions with the police did portray him as a somewhat volatile and rather belligerent drunk. However, as we have said, those interactions were relatively benign by comparison to his conduct in stabbing his friend. Moreover, particularly in the light of the evidence of the altercation between the two young men immediately prior to the stabbing, we see no air of reality to the notion that the jury would have resorted to some form of propensity reasoning relating to the appellant’s character while drunk to determine his state of mind at the time of the killing.

[26] In the circumstances, we see no realistic possibility that the fact of undisclosed prior criminal conduct that did not result in a jail sentence or of current relatively trivial criminal conduct would have led the jury to reason that the appellant formed one of the requisite intents for murder in relation to his good friend

[27] As for the appellant’s drunken boast of being “21 and one in court”, in our view, the jury would have seen it for what it was – a drunken boast. Once again, we see no realistic possibility that the jury would conclude based on that statement that there was a need to punish the appellant for past misdeeds by convicting him not just of manslaughter but of second degree murder.

[28] Defence counsel at trial neither requested the instruction contended for on appeal nor objected to the failure to give such an instruction. In our view, this supports our conclusion that such an instruction was unnecessary in the circumstances—no one at this trial perceived a realistic possibility that the jury would use the discreditable conduct evidence improperly to assist it in finding the appellant guilty of second degree murder.

2. Did the trial judge err in his instructions to the jury concerning mens rea and intoxication?

[29] The appellant raises four issues under this heading:

i) The trial judge erred by instructing the jury to consider the “defence of intoxication” after making a finding of mens rea for second degree murder;

ii) The trial judge failed to give a sufficient instruction concerning the impact of alcohol consumption on the permissible inference that a sane and sober person intends the predictable consequences of their acts;

iii) The trial judge erred in his instructions on motive; and

iv) The trial judge failed to adequately review the evidence and relate it to the issues of mens rea and intoxication.

(i) The trial judge erred by instructing the jury to consider the “defence of intoxication” after making a finding of mens rea for second degree murder.

[30] We agree that the trial judge made an obvious error in dealing with the issue of intoxication. In particular, the trial judge failed to insert the standard instructions on intoxication into the standard instructions on intent for second degree murder in the location recommended in Watt J.A.’s Ontario Specimen Jury Instructions (Criminal) (Toronto: Thomson Carswell, 2002). Instead, the trial judge read the standard instructions on intoxication after reading the standard instructions on intent. Further, before reading the instructions on intoxication, the trial judge said the following, which does not form part of the specimen instructions:

If you are not satisfied beyond a reasonable doubt that [the appellant] had either state of mind required to make his unlawful killing of Ryan Horlock murder, you must find [the appellant] not guilty of second degree murder but guilty of manslaughter. If you are satisfied beyond a reasonable doubt that [the appellant] had either state of mind to make his unlawful killing of Ryan Horlock murder, you must consider the defence of intoxication. [Emphasis added.]

[31] At first blush, the effect of this error appears to be that the trial judge invited the jury to consider the effect of the appellant’s alcohol and drug consumption on his state of mind after the jury reached the conclusion that the appellant possessed one of the requisite intents for murder. Such an instruction makes no sense, because the jury is required to take into account the effect of alcohol and drug consumption as part of determining whether an accused had one of the requisite intents for murder.

[32] That said, taking account of the trial judge’s general instruction on intent, we are not persuaded that the trial judge’s error in the placement of the intoxication instructions constitutes reversible error in the circumstances.

[33] In giving his general instructions on intent, which preceded the erroneous instruction set out above, the trial judge instructed the jury to consider the whole of the evidence and also specifically instructed them to consider “the opinions of the experts who testified about the impact of alcohol on one’s mental functioning.”

[34] In the face of these instructions, the jury must inevitably have considered all of the evidence relating to intoxication when determining the question of the appellant’s intent. Although these instructions did not capture all of the subsequent instructions on intoxication, in our view, they were sufficient to alert the jury to the fact that they were required to consider the evidence of intoxication before making a finding concerning the appellant’s intent.

(ii) The trial judge erred by failing to give a sufficient instruction concerning the impact of alcohol consumption on the permissible inference that a sane and sober person intends the predictable consequences of their acts

[35] Both in the course of his general instructions on intent and his subsequent instructions on intoxication, the trial judge gave the jury a standard instruction concerning the permissible inference that a sane and sober person intends the consequences of their acts.

[36] The first reference to the permissible inference appears in the general instructions on intent. In that instance, in addition to telling the jury it was not a conclusion that they must reach, the trial judge said:

It is a conclusion that you may only reach, however, after considering all of the evidence.

[37] Later, when dealing with the permissible inference in the instructions on intoxication, the trial judge said:

It is a conclusion you may only draw after considering all of the evidence including evidence about [the appellant’s] consumption of alcohol and drugs.

[38] Relying on R. v. Seymour, 1996 CanLII 201 (SCC), [1996] 2 S.C.R. 252 at para. 23, the appellant argues that the trial judge erred by failing to specifically instruct the jury that evidence of intoxication may rebut the permissible inference.

[39] However, in its subsequent decision in R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, the Supreme Court explained that the critical issue is not whether particular words were used in the charge, but rather whether the charge adequately conveyed to the jury that the central question is whether the accused’s degree of intoxication affected his ability to foresee the consequences of his actions.

[40] In this case, in our view, it would have been clear to the jury that they had to consider the evidence of the appellant’s level of intoxication in assessing whether he possessed one of the requisite intents for murder at the time of the stabbing.

(iii) The trial judge erred in his instructions on motive

[41] The appellant contends that the trial judge erred in his instructions on motive by focussing on the Crown’s reliance on the disagreement between the appellant and the victim and by failing to allude to the defence’s reliance on the absence of a credible motive for the killing.

[42] The trial judge’s instructions on motive read as follows:

In this case the Crown relies on the disagreement between [the appellant] and Ryan Horlock for [the appellant] to commit the offence alleged. It is for you to decide whether [the appellant] had such a motive, or any motive at all, and how much or little you will rely on it to help you decide the case. You have heard evidence that [the appellant] said “you shouldn’t have messed with me” after walking up to Ryan Horlock at the elevator. You also heard that upon coming back into the apartment [the appellant] may have said “fuck that guy, I stabbed him”. What [the appellant] did or said might help you decide whether he is guilty or not guilty of the offence. The first thing for you to decide is whether [the appellant] did or said these things. If you find that he did not say these things, you must not consider this evidence in reaching your verdict. If you find that he did in fact say these things, you should consider next whether this was because he committed the offence charged. If so, you should consider this evidence, together with all of the other evidence, in reaching your verdict. If, however, you find that [the appellant] did or said these things for some other reason, you should not consider that as evidence of guilt.

[43] We agree with the appellant’s submission that the trial judge’s instructions concerning the use the jury could make of the appellant’s statements at the time of and immediately after the stabbing were unhelpful. As the appellant notes, there was no issue at trial that the appellant stabbed the victim. Moreover, an instruction to the jury to consider whether an accused made an after-the-fact statement because he committed the offence was not appropriate: R. v. Hall (2010), 2010 ONCA 724, 269 O.A.C. 199 (C.A.).

[44] We also agree that it may have been preferable had the trial judge set out the defence position on motive at the time of addressing the subject of motive generally. However, we note that the trial judge did set out the defence position that the appellant and the victim were best friends and that the appellant had no motive to kill his friend when reviewing the position of the defence. Although the trial judge did so in brief compass, this was a short trial that focussed on a single issue. We are satisfied that the defence position on motive would have been apparent to the jury.

(iv) The trial judge failed to adequately review the evidence favouring the defence and relate it to the issues of mens rea and intoxication

[45] We agree that the trial judge’s references to the evidence during the course of his legal instructions were cursory and that his overall review of the evidence in a witness-by-witness format was less than ideal. Nonetheless, as we have said, this was a relatively brief trial that focussed on a single issue. We are not satisfied that the manner in which the trial judge reviewed the evidence and related it to the issues in the case constitutes reversible error. Accordingly, we would not give effect to this ground of appeal.

Disposition

[46] Based on the foregoing reasons, the appeal is dismissed.

Signed: “Janet Simmons J.A.”

“Paul Rouleau J.A.”

“Karakatsanis J.A.”

RELEASED: ‘JS” June 22, 2011

[^1]: In some instances, rather than give the standard bad character evidence instruction, trial judges have instructed juries that, for example, an accused’s lifestyle should play no role in their deliberations: for example, R. v. Henderson (2001), 2001 CanLII 4540 (ON CA), 145 O.A.C. 150 (C.A.).

[^2]: For example, in R. v. C.B., evidence was led that the accused was being investigated by the Catholic Children’s Aid Society (“CCAS”) for an “unrelated matter” when his niece made allegations against him and that it was necessary to include the niece’s allegations in the file relating to the unrelated matter. This court held that the prejudicial effect of the bad character evidence was low as no information about the “unrelated matter” was disclosed. Moreover, a limiting instruction would have drawn attention to the fact that the appellant was involved with the CCAS on an “unrelated matter”.

[^3]: For example, see R. v. Merz (1999), 1999 CanLII 1647 (ON CA), 140 C.C.C. (3d) 259 at 278, in which the bad character evidence of threats was relevant to show motive, which, in turn, constituted circumstantial evidence of identity and intent. Doherty J.A. stated, “I see no reason to warn the jury against using the evidence to infer propensity and hence to infer that the accused committed the crime when the more direct and powerful inference to be drawn from that evidence is that the accused had a motive to kill Ms. Murray.”

[^4]: For example, see R. v. Merz.

[^5]: For example, see R. v. C.B.

[^6]: For example, see R. v. L.K.W. (1999), 1999 CanLII 3791 (ON CA), 138 C.C.C. (3d) 449 (Ont. C.A.). In that case, the accused was charged with 20 counts of physical and sexual abuse against his children. Evidence was led of his criminal record, which included convictions for assault, possession of burglary tools and theft under $200. This court held that although at least one of the prior offences was relevant to assessing the accused’s credibility, in the overall scheme of things, the prior convictions were relatively trivial in comparison to the offences with which the accused was charged. Moreover, it would be “fanciful to think that the jury would have used the prior convictions to infer that the appellant was the type of person likely to commit the offences in question”.