COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McIntyre, 2012 ONCA 356

DATE: 20120530

DOCKET: C52478

Goudge, Feldman and Armstrong JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Aimee McIntyre

Appellant

Catriona Verner, for the appellant

Amy Alyea and Emile Carrington, for the respondent

Heard: March 27, 2012

On appeal from the conviction entered on May 6, 2010 by Justice David Salmers of the Superior Court of Justice, sitting with a jury.

Goudge J.A.:

INTRODUCTION

[1] On May 6, 2010, in the third day of deliberations by the jury, the appellant was convicted of first degree murder in relation to the death of Karl O’Reggio.

[2] The appellant appeals her conviction.

[3] Prior to the appellant’s trial, Jonathan Ebanks and Nathan Kelly both pleaded guilty to the second degree murder of O’Reggio. Subsequently, the appellant was convicted of first degree murder on the basis that she aided or abetted Ebanks in killing the deceased.

[4] The appellant drove Ebanks and Kelly to the deceased’s apartment. Once the men entered the apartment, a scuffle ensued during which Ebanks pulled out his knife and fatally stabbed the deceased. The appellant then drove the two men away from the scene.

[5] The Crown’s theory was that the appellant aided or abetted Ebanks to commit a planned and deliberate murder.

[6] A number of issues were raised in argument in this court. It is necessary to deal with only three of them. In brief outline, they are as follows:

(1) First, in defining the elements of the murder that the appellant was alleged to have aided Ebanks to commit, the charge omitted the requirement of Ebanks’ subjective foresight of death.

(2) Second, in the context of determining the appellant’s knowledge of Ebanks’ intention to murder the deceased, the charge failed to focus the jury on whether that intention existed prior to Ebanks entering the apartment or arose only during the scuffle.

(3) Third, in addressing the post-offence conduct evidence, the charge gave the jury no help to determine which evidence could assist in determining the appellant’s level of culpability and which could not.

Taken together, in my view, the result is that the appellant did not receive a fair trial. The conviction must therefore be set aside and a new trial ordered.

THE FACTS

[7] Because there must be a new trial, I will limit my review of the evidence.

[8] The appellant had been in a romantic relationship with the deceased until shortly before his death. The relationship had deteriorated however, and shortly before the murder, the appellant became friendly with Kelly. Indeed, he had begun staying with her regularly. The appellant’s deteriorated relationship with the deceased was reflected in the acrimonious text messages exchanged between them in the days before his death. However, the appellant was not the only one upset with the deceased. Kelly was also upset with him because of the text messages that he kept sending to the appellant.

[9] On July 14, 2007, the appellant, accompanied by Natasha Visscher, her 15-year-old cousin, set out to drive Kelly to the deceased’s apartment. The Crown’s theory was that the appellant planned to have the deceased killed. The defence theory was that the purpose was for Kelly to settle the “beef” he had with the deceased so he would stop texting the appellant.

[10] En route they picked up Kelly’s friend Ebanks, whom Kelly had phoned to say he had this beef and wanted Ebanks to come along. Ebanks had a large knife with an eight inch blade known as a Wolverine claw that he put on the car seat beside him, saying that he was going to “poke” the deceased.

[11] On reaching the house where the deceased lived, the appellant parked her car and pointed the house out to the men. According to Ebanks, soon after they entered the apartment, Kelly scuffled with the deceased, who reached for a kitchen knife. At that point, Ebanks said he pulled out his own knife and stabbed the deceased six times. The two men returned to the car, which the appellant had positioned to quickly depart the scene. She drove them to her house where she helped them wash their clothes and dispose of the knife.

[12] Neither the appellant nor Kelly gave evidence. However, Ebanks and Visscher were called by the Crown. Ebanks’ evidence had many inconsistencies, particularly about what if anything the appellant said to him on the drive over about using the knife. Visscher gave evidence both about the drive over and what was said on the return trip, which left her with the impression that something had gone badly wrong in the apartment.

[13] The appellant’s level of culpability for the murder of the deceased was the central issue at trial. The Crown’s theory was that the appellant was guilty as charged of first degree murder for aiding or abetting a planned and deliberate murder. The theory of the defence was that the appellant was at most guilty of manslaughter. The charge also left second degree murder with the jury. The case was therefore legally complex, with an understanding of the distinction between the levels of culpability required for each offence being of fundamental importance.

ANALYSIS

First Issue: Ebanks’ subjective intention

[14] The trial judge correctly told the jury that the only route to the conviction of the appellant for first degree murder was to find that she aided or abetted Ebanks to commit the planned and deliberate murder of the deceased.

[15] This required that the jury be satisfied beyond a reasonable doubt (1) that the appellant knew that Ebanks intended to murder the deceased, (2) that she intended to, and did in fact aid or abet him in doing so, and (3) that the murder was to her knowledge, planned and deliberate.

[16] The first of these steps required the jury to address two questions. Was Ebanks’ intention sufficient for murder, and secondly, what was the appellant’s knowledge of that intention? This issue focuses on the first of these two questions.

[17] For the jury to find that Ebanks had the requisite intention to murder the deceased, they had to conclude that, when Ebanks stabbed the deceased, he intended to kill him, or meant to cause the deceased bodily harm that Ebanks knew was likely to kill the deceased and was reckless whether the deceased died or not. This subjective intention is a constitutional requirement for murder: see R. v. Martineau, 1990 80 (SCC), [1990] 2 S.C.R. 633.

[18] In my view, the charge fails to task the jury with this requirement. In the critical section of his charge, the trial judge instructed the jury in detail about aiding or abetting a murder. As part of this, the trial judge described that the Crown must prove that the appellant knew that Ebanks intended to murder the deceased. He put Ebanks’ intention this way:

To prove second degree murder on either or both of the aiding or abetting modes of participation, the Crown must prove beyond a reasonable doubt that Ms. McIntyre actually knew that Jonathan Ebanks intended to kill Karl O’Reggio or cause Karl O’Reggio bodily harm that would likely kill Karl O’Reggio and not care whether or not Karl O’Reggio died. [Emphasis added.]

[19] This language was then immediately repeated twice more. These were the only references to Ebanks’ intention necessary for the appellant’s conviction as an aider or abetter of murder. It conveyed to the jury that Ebanks could be found to have the intention necessary for murder if he intended to cause bodily harm to the deceased that would likely kill him, whether or not Ebanks knew that this was likely. In other words, this instruction permitted the jury to find that Ebanks murdered the deceased without having the subjective intention required by law.

[20] The charge thus laid out a roadmap to convict the appellant of aiding or abetting Ebanks to murder the deceased that did not require the jury to find that Ebanks had the subjective intention required for murder.

[21] It is true that at an earlier point in the charge the trial judge, almost in passing, correctly described the subjective intention required for a finding that Ebanks murdered the deceased. However, that was not done in the context of the discussion of what was necessary to find the appellant guilty of aiding or abetting the murder which was the basis for the appellant’s conviction.

[22] When it came to consider aiding or abetting, the direction concerning Ebanks’ intention would have erroneously directed the jury away from the evidence of Ebanks’ subjective intention in using his knife and what using it to “poke” the deceased could have meant. Rather, the question the jury was invited to address was whether, objectively, poking the deceased with this knife would likely kill him. This could well have focused the jury on the knife itself with its eight-inch Wolverine claw blade, (which they took to their jury room), rather than on Ebanks’ subjective intention.

[23] This error in the aiding or abetting section of the charge was an error of law. The trial judge told the jury quite properly that it was to take the law from him. That included this error. Moreover, the jury was given copies of the charge. In this context, this error could well have had a serious impact on the jury’s verdict: see R. v. Poitras (2002), 2002 23583 (ON CA), 57 O.R. (3d) 538 (C.A.) at para. 48. Given the nature of the error, the lack of objection by counsel is of no moment: see R. v. Austin (2006), 2006 39077 (ON CA), 214 C.C.C. (3d) 38 (Ont. C.A.).

[24] In summary, there was an error of law in the charge that could have had a significant impact on the verdict.

Second Issue – The appellant’s knowledge of Ebanks’ intention

[25] The trial judge correctly charged the jury that a necessary step on the path to convicting the appellant for aiding or abetting a planned and deliberate murder was that the appellant knew that Ebanks’ intention was to murder the deceased.

[26] However, the trial judge offered the jury no further guidance on this issue, a vital one to determine the appellant’s level of culpability. On the facts of this case, that presented two problems.

[27] First, the appellant’s knowledge of Ebanks’ intention was dependent on when that intention was formed. If his intention to kill the deceased was formed only after he entered the deceased’s apartment, she could not have known of it. If, on the other hand, Ebanks’ intention was formed earlier, the appellant could have known of it. Nowhere does the trial judge articulate this for the jury. The charge does not tell the jury that a necessary (although not sufficient) precondition to deciding if the appellant knew of Ebanks’ intention, was to determine when it was formed, before or after he entered the deceased’s apartment.

[28] The necessity to determine when Ebanks formed his intention might be said to be implicit in the instruction that conviction required a finding that the appellant knew of his intention. However, the importance of failing to be explicit about when Ebanks formed his intention was greatly increased by the trial judge’s failure to give the jury any assistance concerning the evidence that could assist them in deciding that question. In the context of this case, an adequate jury charge required more.

[29] There can be no doubt that the assessment of the adequacy of jury instructions requires a functional approach. In R. v. Cooper, 1993 147 (SCC), [1993] 1 S.C.R. 146, at p. 163, Cory J. described the appellate task this way:

At the end of the day, the question must be whether an appellate court is satisfied that the jurors would adequately understand the issues involved, the law relating to the charge the accused is facing, and the evidence they should consider in resolving the issues.

[30] The task of relating the evidence relevant to a particular issue, need not require lengthy repetition of large parts of the evidence. Rather, the jury is assisted by identifying the issue, and indicating what parts of the evidence may support the respective positions of the parties on that issue. In R. v. MacKinnon, 1991 7358 (ON SC), [1999] 3 O.R. (3d) 378 (C.A.), at pp. 386-387, Doherty J.A. offered this description of the task:

I mean references to the evidence which are sufficient in the context of the case and the entirety of the charge to alert the jury to the particular parts of the evidence which are significant to particular issues and to the positions taken by the parties on those issues.

[31] There was evidence to suggest that Ebanks’ intention to murder the deceased was formed before the appellant dropped Ebanks and Kelly off at the deceased’s apartment. This included Ebanks’ display of his knife in the car on the drive over, the reference to poking the deceased with the knife, and the beef his friend Kelly had with the deceased.

[32] There was also evidence to suggest that Ebanks’ intention only arose once he entered the apartment. Ebanks testified to this effect. It was only a short drive from where Ebanks joined them to the deceased’s apartment, with little opportunity for Ebanks to develop an intention to kill the deceased or share it with the appellant. Visscher said she heard no discussion on the drive of any intention to kill the deceased or cause him serious bodily harm.

[33] It is no answer to say that the trial judge included in the charge the summary of positions submitted by both parties where some of this evidence is touched on. In their summaries, neither counsel was purporting to discharge the task required of the trial judge that I have described. Nor could they relieve the trial judge of his obligation to perform this task: see R. v. MacKinnon, supra, at p. 387.

[34] In summary, it was important to bring squarely to the jury’s attention the question of when Ebanks’ intention was formed, and to assist the jury with those parts of the evidence that might help them with that issue. Only if Ebanks’ intention was formed at a time when the appellant could have known of it could the question of whether she in fact knew of his intention be considered. The appellant’s level of culpability, the central issue in the trial, turned on the answer to that question.

[35] In my view, the failure of the charge to focus the jury on when Ebanks’ intention was formed, as an essential part of the reasoning process, and the failure to assist the jury with the evidence relevant to that issue was a non-direction amounting to an error of law in the circumstances of this case.

Third Issue – Post-offence conduct

[36] The third issue raised by the appellant was the trial judge’s treatment of the evidence of the appellant’s post-offence conduct.

[37] The Crown placed significant emphasis on this evidence as being important in determining the appellant’s level of culpability.

[38] The post-offence evidence included: the appellant positioned her car for a quick getaway once the two men entered the deceased’s apartment and they then fled in her car; the appellant did nothing to assist the deceased after Ebanks said he might have killed him; the appellant helped Ebanks and Kelly to clean their clothes; the appellant helped to dispose of the knife; the appellant sent certain text messages afterwards to the deceased.

[39] For several reasons I agree that the trial judge erred in his treatment of this evidence.

[40] First, the charge would have left the jury confused. In a pre-charge ruling, the trial judge agreed that the bulk of the post-offence conduct evidence could do no more than point to the appellant’s culpability in the deceased’s killing, not to the level of her culpability. He specifically referred to the text messaging afterwards and the disposal of the knife as examples of evidence that could not assist in determining her level of culpability. In the same ruling, he held that at least two pieces of post-offence conduct evidence could help the jury to determine the appellant’s level of culpability, namely readying the car for and then effecting a quick flight, and doing nothing to assist the deceased after hearing he might have been killed. While I have real doubt that even these two pieces of evidence speak at all to the appellant’s level of culpability, that was not contested in this court.

[41] Consistent with his pre-charge ruling, the trial judge, in his charge to the jury, identified both the quick flight and the failure to assist the deceased in any way as evidence the jury could use to determine the appellant’s level of culpability. He then told the jury that most of the remaining post-offence conduct evidence did no more than point to the appellant’s involvement in the deceased’s death, not her level of culpability. He then listed specific items of post-offence conduct evidence that did not help to determine the appellant’s level of culpability.

[42] However, he concluded this part of his charge by clearly instructing the jury that they could consider, in determining the appellant’s level of culpability, any post-offence conduct evidence that they found to reflect her consciousness of having done what she was charged with:

On the other hand, if you find that anything Ms. McIntyre did or said afterwards was because she was conscious of having done what is alleged against her, you may consider this evidence, together with all the other evidence, in reaching your verdict.

[43] As a result, the jury would not have known whether it could or could not consider the post-offence conduct evidence beyond the two specified pieces of evidence in determining the appellant’s level of culpability, the central issue in the trial.

[44] If, in the face of this confusion, the jury did consider the post-offence conduct evidence other than the quick flight and the failure to assist in addressing this central issue, it ought not to have done so. Indeed in his ruling, the trial judge had essentially said so. There is no doubt that the trial judge had a legal obligation to clearly direct them to that effect. The jury had to be told that the remaining post-offence conduct evidence had no probative value on the central issue, namely the appellant’s level of culpability. The evidence was simply not probative of whether the appellant knew she was aiding a planned and deliberate murder rather than a manslaughter. It was equally consistent with both: see: R. v. Wiltse (1994), 1994 822 (ON CA), 19 O.R. (3d) 379 (C.A.), at p. 384; and R. v. White 2011 SCC 13, [2011] 1 S.C.R. 433.

[45] The best example of such evidence is the appellant’s help in disposing of the knife, which the trial judge had previously and correctly ruled was not probative of the appellant’s level of culpability.

[46] The charge compounded the difficulty by repeating the Crown’s position that disposal of the knife was probative of the appellant’s level of culpability. The trial judge should not have repeated the Crown’s position. In fact he should have cautioned the jury that it could not use that evidence this way.

[47] Finally, the part of the post-offence conduct evidence charge quoted above also exemplified the flaw described in R. v. Hall, 2010 ONCA 724, 263 C.C.C. (3d) 5 (Ont. C.A.), at paras. 141-146. It invited the jury to jump directly to the issue of guilt as a precondition to deciding the use they would make of the post-offence conduct evidence. This is to reason backwards.

[48] Taken together, these flaws in the charge on post-offence conduct amount to legal error.

[49] This could not be said to be an overwhelming case for the Crown. Given the three errors of law I have described, I would not apply the curative proviso. Nor does the Crown request that we do so. Rather, the result must be to set aside the appellant’s conviction and order a new trial.

Released: May 30, 2012 (“S.T.G.”)

“S.T. Goudge. J.A.”

“I agree K. Feldman J.A.”

“I agree Robert P. Armstrong J.A.”