COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Angelis, 2013 ONCA 70

DATE: 20130201

DOCKET: C53313

Laskin, Goudge and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Demetrios Angelis

Appellant

Howard L. Krongold, for the appellant

Kimberly Crosbie, for the respondent

Heard: December 11, 2012

On appeal from the conviction entered on October 30, 2010 by Justice Robert J. Smith of the Superior Court of Justice, sitting with a jury.

Laskin J.A.:

A. introduction

[1] The appellant, Demetrios Angelis, was charged with the second degree murder of his wife, Lien. He accepts that he caused her death during a physical altercation. The two principal issues at trial were whether he acted in self-defence, and whether he had the intent to commit murder.

[2] After a 12-day trial before Smith J. and a jury, during which the appellant testified in his own defence, he was found guilty of second degree murder. He was sentenced to life imprisonment, without eligibility for parole for 12 years. He appeals his conviction.

[3] There are two principal issues on the appeal: first, whether the trial judge erred by refusing to leave the defence of provocation with the jury; and second, whether the trial judge erred in his instructions to the jury on the appellant’s post-offence conduct.

[4] On the first issue, the trial judge ruled that, as the appellant had testified he was not angry when he killed his wife, the subjective element of the test for provocation was not met and the defence had no air of reality. The appellant submits that the trial judge’s ruling was wrong because there was other evidence, both direct and circumstantial, from which a properly instructed jury, acting reasonably, could find that provocation was made out. The appellant and the Crown agree that if this first ground of appeal is successful, we ought to substitute a verdict of manslaughter.

[5] On the second issue, the trial judge instructed the jury that they could take into account the appellant’s post-offence conduct in determining whether the appellant intended to kill his wife. The appellant submits that this instruction was wrong because the appellant’s post-offence conduct was equally consistent with a finding of manslaughter as it was with a finding of murder. He argues that the trial judge should therefore have instructed the jury that the evidence of post-offence conduct had no probative value on whether he had the intent for murder. The appellant further submits that the trial judge should have specifically cautioned the jury about relying on his strange behaviour after his wife died as a basis to infer his guilt. If this second ground of appeal succeeds, the appellant asks for a new trial because the trial judge’s charge on post-offence conduct may have affected the jury’s assessment of both his intent and the defence of self-defence.

[6] I would give effect to both grounds of appeal. The defence of provocation had an air of reality; and the appellant’s post-offence conduct was not probative of whether he had the requisite intent for murder. The appellant is entitled to a new trial on his second ground of appeal, and I would so order.

B. background facts

[7] As I would order a new trial, I will provide only a brief summary of the pertinent facts. On Sunday morning, June 8, 2008, Lien Angelis died during a struggle with the appellant. The struggle took place in front of their two young children in the living room of their small apartment. The deterioration in the parties’ marriage in the months before Lien died, and the appellant’s conduct after her death are relevant to the two main grounds of appeal.

(1) The parties’ marriage and its breakdown

[8] The appellant and Lien met at university in 1990, and were married in 1992. They both became federal civil servants and lived in Ottawa. Neither had a criminal record or any history of violence, and there had been no history of abuse in their relationship.

[9] However, in April 2008, the marriage began to break down. A precipitating incident was the appellant’s discovery that his wife had been having a covert affair with another man for 13 years. Over the next two months, the relationship became highly acrimonious. Lien was not interested in reconciling; she wanted a divorce. Both parties consulted family law lawyers and prepared for a bitter custody battle. In late May, the appellant served Lien with court papers seeking temporary sole custody of the children. A hearing date was set for early July.

[10] Although tensions escalated after April, neither party was willing to move out of the apartment or leave the children. By May, Lien had stopped speaking to the appellant directly, and would communicate with him only through their 8-year old daughter, Nicki.

(2) Lien’s state of mind in the months before she died

[11] There was some evidence led at trial that in the months before she died, Lien tried to uncover incriminating evidence about the appellant, and tried to provoke him to act badly – “push my buttons”, as he said in a letter to his family law lawyer.

[12] For example, at the end of May, Lien started videotaping the appellant as he went about his daily activities in the apartment. Apparently, Lien was trying to capture incidents where the appellant mistreated the children in order to advance her claim for custody.

[13] On June 7, the day before she died, Lien invited her boyfriend over to steal the hard drive in the appellant’s computer – again hoping to find some discreditable conduct that would help her in the custody fight.

[14] And, throughout this period, Lien was preoccupied with money. The appellant says that during the marriage he used virtually all of his income to pay the family’s household expenses. Lien’s earnings went into investments in her name and RESPs for the children. She accumulated over $100,000. She told co-workers that she was divorcing the appellant because he spent too much, and that she was not going to let him get her money in the divorce.

[15] Understandably, the appellant described the atmosphere in the apartment as “unbearable.”

(3) The fatal struggle on Sunday June 8

[16] The appellant was planning to take his children to church that morning. Indeed that day, Nicki was to graduate from Sunday school.

[17] The evidence is conflicting on what precipitated the physical fight between Lien and the appellant that ended in Lien’s death. According to Nicki, her parents were fighting about money. According to the appellant, Lien and Nicki had been arguing. The appellant tried to intervene, clad only in his boxer shorts as he was getting dressed for church.

[18] The struggle that ensued was brief, but violent. The appellant said that Lien suddenly attacked him. She scratched him on his face, lips, chest and torso; and she clawed his penis, drawing blood, and causing pain in his groin. The appellant, in turn, tackled Lien, straddled her and tried to restrain her arms. Lien told Nicki to call the police, but Nicki was too afraid to do so. Nicki said that at one point the appellant covered her mother’s mouth with his hand; the appellant said that if he covered Lien’s mouth, it was only in passing.

[19] Lien ended up on the floor either on her stomach (the appellant’s account) or on her back (Nicki’s account). The appellant was on top of her, straddling her again, and pinning her arms down. Then Lien suddenly stopped breathing. It was apparent to the appellant that his wife was dead.

[20] Lien weighed 95 pounds and was 4 feet 9 inches tall; the appellant weighed 150 pounds and was 5 feet 6 inches tall. The pathologist could not determine the specific mechanism of death, but thought asphyxiation (deprivation of oxygen) was a possibility. Asphyxiation can result from smothering (obstruction of the airways), strangulation, or burking (sitting on the chest or upper back and interfering with respiration), or a combination of these three mechanisms. Regardless of the mechanism, the pathologist testified that once the air supply is blocked, unconsciousness comes very rapidly, likely in less than a minute, and death occurs quickly afterwards.

[21] The appellant testified that he was not angry during this struggle. He did not intend to hurt Lien or to cause her death. His intent was to stop her from hurting him.

[22] The Crown urged the jury to find that the appellant had intentionally killed Lien in a fit of sudden rage.

(4) The appellant’s post-offence conduct

[23] The appellant’s post-offence conduct, relied on by the Crown and the subject of the trial judge’s charge, can be viewed in two categories.

[24] In the first category is the appellant’s inaction immediately after becoming aware that his wife had died. Although the appellant is a trained nurse, he did not administer CPR to try to revive Lien. Nor did he call 911. He testified that he was in shock.

[25] In the second category is the appellant’s behaviour in the three or four hours after Lien died. He folded the living room carpet over her and dragged her body into the master bedroom. He said that he did so to prevent his son, Theo, from touching his mother. The appellant then put his wife’s makeup on to hide his injuries. He laid out six pairs of his underwear in the bathroom. He claimed that he did so because blood from his penis kept soaking through each pair.

[26] The appellant then collected the children and took them to church. He said that he wanted to “find some sense of maybe normalcy in an abnormal situation.” Nicki received her certificate for graduating from Sunday school. The appellant took communion with Theo in his arms. While at church the appellant telephoned his brother in Montreal to arrange for him to get the children. His brother wanted a contact person in Ottawa so the appellant phoned his family law lawyer, but could not reach her.

[27] About an hour and twenty minutes after leaving his apartment, the appellant returned. Once home, he retrieved some Christmas presents he had previously bought for the children and gave them to Nicki and Theo. He said that he did so because he thought he might be separated from them for some time.

[28] At around 2:10 p.m., about an hour and a half after returning home and between three and four hours after Lien died, the appellant called 911. When he reported his wife’s death to the operator, his tone of voice was calm and casual. During their deliberations, the jury twice asked for the recording of this call to be played for them aloud in court.

C. discussion

(1) The trial judge erred by refusing to leave the defence of provocation with the jury

[29] Under s. 232(1) of the Criminal Code, murder may be reduced to manslaughter if the person who committed the murder “did so in the heat of passion caused by sudden provocation.” Section 232(2) defines provocation as “[a] wrongful act or insult … sufficient to deprive an ordinary person of the power of self-control ... if the accused acted on it on the sudden and before there was time for his passion to cool.”

[30] From the statutory definition, it is evident that provocation has both an objective and subjective element. The Supreme Court considered these elements in R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 23, citing with approval the following passage from Cory J.’s majority judgment in R. v. Thibert, 1996 CanLII 249 (SCC), [1996] 1 S.C.R. 37, at para. 4:

First, there must be a wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power of self-control as the objective element. Second, the subjective element requires that the accused act upon that insult on the sudden and before there was time for his passion to cool. [Emphasis in original omitted.]

[31] In this case, the trial judge ruled that the objective element of provocation had an air of reality. Lien’s clawing of the appellant’s penis was a wrongful act sufficient to deprive an ordinary person of the power of self-control. On appeal, the Crown does not challenge this aspect of the trial judge’s ruling. However, the trial Crown argued and the trial judge agreed that the subjective element of the provocation defence had no air of reality because the appellant testified that he was not angry after Lien attacked him.

[32] This ruling is wrong in law. The air of reality test requires a trial judge to leave a defence with a jury where there is evidence upon which a “reasonable jury acting judicially” could find that it succeeds: R. v. Tran, at para. 41. In making this determination, a trial judge must examine “the totality of the evidence”: R. v. Krasniqi, 2012 ONCA 561, 295 O.A.C. 223, at para. 52.

[33] Although an accused’s testimony is an important consideration in assessing the viability of a provocation defence, the trial judge should always consider any other evidence capable of supporting an inference of sudden rage or loss of control. Even where an accused denies being angry at the time of the offence, if there is other evidence on which a jury could find provocation was made out, the trial judge must leave the defence with the jury.

[34] For example, in this case, the jury may have rejected the appellant’s testimony that he was not angry, and accepted other evidence about the altercation suggesting that he had, in fact, lost control when Lien attacked him: R. v. Gill, 2009 ONCA 124, 241 C.C.C. (3d) 1, at paras. 17-19. The trial judge was thus not justified in withdrawing the defence from the jury solely on the basis of the appellant’s disavowal of anger. Instead, he was required to consider whether there was any evidence before the jury, from the appellant’s mouth or otherwise, establishing the subjective element of the defence.

[35] I think that there was, for two reasons: the position taken by the Crown, and the other pieces of evidence, direct and circumstantial, that gave an air of reality to the defence.

(a) The Crown’s position at trial

[36] The Crown’s position at trial was that the appellant intended to kill his wife because he was angry. I accept, as Ms. Crosbie contends, that anger alone does not make out the defence of provocation. Anger may fuel cold blooded revenge, which is the antithesis of a loss of control. But anger may also fuel sudden rage, a loss of control, inflamed passions, a killing in the heat of the moment before regaining control of oneself. However phrased, when an accused acts in this latter fashion, the provocation defence has an air of reality: R. v. Krasniqi, at para. 51.

[37] The Crown repeatedly suggested to the appellant in cross-examination that he was extremely angry and that, in the midst of the struggle, he wanted his wife dead. In her closing address to the jury, the Crown again forcefully argued that the appellant meant to kill Lien because he was enraged. For example, she made the following comments to the jury:

• “I submit to you that Mr. Angelis killed his wife and he meant to. That was his intent. He was enraged.”

• “…we’re getting to this issue here of rage.”

• “…I would submit to you that Mr. Angelis’ state of mind in the weeks and days leading up to the murder was that building up to anger and ultimately, to rage.”

• “You can find him guilty of murder even if you find that the intention to kill her happened during the assault. This is not a situation where you need to find that he formulated some intent to kill her at any time prior to this happening … Intent can be formed very quickly before or even during the offence…”

[38] And the Crown ridiculed the appellant’s claim that he was not angry. She said: “He never feels anger. He only feels shock. It’s unexpected. He never feels anger. That makes no sense. Who wouldn’t feel anger?”

[39] The Crown’s argument that the appellant became enraged immediately before or during the struggle suggests that there was some evidentiary basis for finding that he was provoked. A Crown cannot argue to the jury a speculative position not founded on the evidence. That would be improper: R. v. Boudreau, 2012 ONCA 830, at para. 16. By making these comments, the Crown thus implicitly acknowledged that there was evidence to show the subjective element of provocation could be made out.

[40] Moreover, it seems to me that the Crown cannot have it both ways. It cannot go to the jury and argue that the appellant killed his wife because he became suddenly enraged, and yet object to the defence of provocation being left with the jury. That is simply unfair.

(b) Evidence showing that the subjective element of provocation had an air of reality

[41] Apart from the Crown’s position, there was evidence, both direct and circumstantial, from which a jury could conclude that the subjective element of provocation was made out. In other words, there was evidence that suggested the appellant lost control of his senses and, before regaining control, killed his wife in a sudden rage. This evidence included the following:

The testimony of David Kenny. Mr. Kenny was a neighbour who lived down the hall from the appellant’s apartment, over 60 feet away. He testified that on the morning of Lien’s death, he heard shouting from another apartment and a male voice yell what sounded like the word “bitch”. As the Crown argued to the jury: “Is there a word that is more evocative about how a man could feel about a woman than the word ‘bitch?’” Kenny told the police that if it was “only about a minute” between the time the shouting started and ended. Kenny’s testimony is therefore credible evidence that the appellant acted out of sudden rage.

The witnesses to Lien’s death. The appellant killed his wife in front of their two children. Yet the appellant undeniably loved his children and was their primary caregiver. For him to have done what he did in front of his children suggests that he was not in control when he killed Lien.

The context of the relationship and the nature of Lien’s acts. By June, the relationship between the appellant and Lien had become highly acrimonious and overlaid with strong emotions on both sides. To repeat the appellant’s description, the atmosphere had become “unbearable”. Yet, the appellant and his wife and their children continued to live together in their apartment. In that context, Lien attacked the most intimate part of the appellant’s body. It would not be hard to infer that in this context, the clawing of the appellant’s penis caused him to lose control and suddenly turn on his wife.

The appellant’s nature. It is hard to understand why a mild mannered civil servant with no history of violence or abuse in his relationship with his wife would turn on her in an instant and then panic after – unless he acted out of sudden rage.

The suddenness of the attack and the brevity of the encounter. The appellant was unprepared for what occurred. He was getting ready to go to church. Both his evidence and Kenny’s evidence suggest that what occurred happened “fast”. Indeed, it was for this reason that the Crown suggested to the jury the appellant’s intent to kill could have formed suddenly during the course of the struggle. Equally plausible, the appellant could have suddenly become so enraged that he killed his wife before his anger subsided.

[42] Thus, there was an air of reality to the defence of provocation. The trial judge erred by refusing to leave this defence with the jury. Accordingly, the appellant’s conviction for second degree murder cannot stand. The appellant and the Crown agree that this error, standing alone, leads to a substituted verdict of manslaughter. However, the trial judge also erred in his charge to the jury on the appellant’s post-offence conduct.

(2) The trial judge erred in his charge to the jury on the appellant’s post-offence conduct

(a) The charge and the parties’ positions on appeal

[43] Because the jury could not consider provocation, the appellant’s intent became the central issue in the case. If the jury was satisfied that the appellant had the intent to kill, then his defence of self-defence could not succeed. A conviction for murder was inevitable.

[44] The trial judge repeatedly instructed the jurors – no less than eight times – that they could use the appellant’s post-offence conduct to decide whether the appellant intended to kill his wife. The critical portion of his charge is as follows:

Evidence of what a person said, did or did not do after an offence was committed may help you decide whether the accused intended to kill his wife Lien. It may help, or it may not.

What a person said, did or did not do after an offence was committed may indicate that he acted in a way which, according to human experience and logic, is consistent with the conduct of a person who intended to commit the offence and inconsistent with the conduct of someone who did not intend to do so. On the other hand, there may be another explanation for what Demetrios Angelis said, did or did not do afterwards, which was something unconnected with his intention to commit the offence charged.

You have heard evidence that after the offence charged was committed, the accused did not attempt to resuscitate Lien or immediately call 9-1-1, but rather, rolled Lien’s body into the carpet and dragged her body into the bedroom. The accused admitted that he was trained as a nurse and that he admitted that he knew how to administer CPR, but did not do so. Nicki testified that the accused told her and Theo that mommy was dead, that it was okay to be sad and to cry, that he could go to jail for a long time and that he would give them presents to make them happy. The accused then got dressed, dressed the children, took the children to Sunday school. He only called 9-1-1 at approximately 2:10 p.m., after attending church on Sunday afternoon, after making three calls to his brother, one from a pay phone, and two calls to his Family law lawyer, and after he had been at the apartment for an hour and 30 minutes. You heard a tape recording of the accused when he spoke for some time with the 9-1-1 dispatcher, which you can consider as evidence of the accused’s mental state at that time.

The evidence of what the accused said, did or did not do after Lien died is not disputed. You must next consider whether this was because Demetrios Angelis was conscious of intentionally killing his wife or for some other reason. You must be careful not to immediately conclude that what he said, did or did not do was because he was conscious of intentionally killing his wife.

You must not use this evidence about what Demetrios Angelis said, did or did not do afterwards in deciding or helping you decide that Demetrios Angelis intended to kill Lien unless you reject any other innocent explanation for it.

If you find that what Demetrios Angelis said, did or did not do afterwards was because he was conscious of having intentionally killed Lien, you may consider this evidence, together with all of the other evidence, in reaching your verdict.

On the other hand, if you do not find that Demetrios Angelis said, did or did not do those things because he was conscious of intentionally killing Lien, then you must not use this evidence in helping you decide that Demetrios Angelis committed the offence charged. [Emphasis added.]

[45] The appellant’s submission that the trial judge erred in giving these instructions rests primarily on two grounds. First, the appellant submits that the instructions invited the jury to infer a specific intent to kill “on an unsound, impermissible basis” – his post-offence conduct. He argues that his behaviour after his wife died was equally consistent with murder and manslaughter, and therefore could not be probative of his intent at the time of the offence. The appellant accepts that the jury was entitled to use his post-offence conduct to determine whether he had committed a culpable act, potentially undermining his claim of self-defence; however, he submits that they were not entitled to use it to infer his degree of culpability.

[46] Second, he submits that the trial judge should have cautioned the jury about relying on the post-offence conduct evidence at all. He contends that his strange demeanour in the wake of Lien’s death is the type of evidence that has “highly suspect probative value and [is] easily misinterpreted”: R. v. Bennett (2003), 2003 CanLII 21292 (ON CA), 67 O.R. (3d) 257,at para. 147. The judge was therefore obliged to specifically instruct the jury not to draw any inference from it or, at the very least, to exercise caution before relying on it.

[47] The appellant acknowledges that defence counsel failed to object to these instructions at trial. However, he contends that because the errors went to the central issue at trial, the conviction cannot stand.

[48] The Crown submits that the post-offence conduct principally relied on by the trial Crown was the appellant’s failure to perform CPR on Lien or immediately call 911 – what I have described as the first category of the appellant’s post-offence conduct. She argues that this is the type of post-offence conduct from which a jury can properly infer an intent to kill. The Crown further submits that the trial judge did caution the jury that “there may be another explanation for what [the appellant] said, did or did not do afterwards, which was something unconnected with his intention to commit the offence charged.” This general caution was adequate to prevent the jurors from placing undue weight on evidence of the appellant’s behaviour after his wife died.

[49] Alternatively, the Crown submits that even if the trial judge erred in his instructions, no miscarriage occurred, and we should apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code.

[50] I agree with the appellant that the trial judge erred by telling the jury that they could infer from the appellant’s post-offence conduct that he had the intent to kill his wife. I also agree with the appellant that the error was neither harmless nor the result of a tactical decision by defence counsel. Therefore, I would not apply the proviso, despite the absence of an objection at trial.

(b) The use of post-offence conduct to determine culpability: general principles

[51] An accused’s post-offence conduct is generally admissible to show that the accused acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person: R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 34 O.R. (3d) 620 (C.A), at p. 629.

[52] However, evidence of post-offence conduct may be susceptible to jury misuse, especially when, as in this case, the accused has admitted to committing the actus reus of an offence and the Crown is relying on the post-offence conduct to demonstrate a specific level of intent. Although this evidence will often be prejudicial to the accused, it will rarely have any significant probative value going to the accused’s state of mind during the commission of the criminal act. That people will generally behave one way after they kill someone purposefully and another way after they kill someone accidentally is often a dubious assumption.

[53] Therefore, in a long line of cases, both the Supreme Court of Canada and various courts of appeal, including this court, have held that an accused’s post-offence conduct may be probative of an accused’s culpability, but not of the level of that culpability. These courts have so held because the accused’s post-offence conduct is as consistent with an inference that the accused committed manslaughter as it is with an inference that the accused had the intent for murder. Where self-defence is raised as a defence, an accused’s post-offence conduct is circumstantial evidence from which a jury can infer that the accused committed a culpable act, and thus did not act in self-defence. But, ordinarily, trial judges have been obliged to instruct juries that post-offence conduct evidence cannot be used to infer that the accused committed murder rather than manslaughter: see R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, at pp.145-146; R. v. Marinaro, 1996 CanLII 222 (SCC), [1996] 1 S.C.R. 462, adopting the dissenting reasons in (1994), 1994 CanLII 1470 (ON CA), 95 C.C.C. (3d) 74 (Ont. C.A.); R. v. Peavoy, at para. 34; R. v. White (1998), 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at p. 89; R. v. Swanson, 2002 BCCA 528, 168 C.C.C. (3d) 1, at para. 18; R. v. Rodrigue, 2007 YKCA 9, 223 C.C.C. (3d) 53, at paras. 47-49; R. v. Figueroa, 2008 ONCA 106, 232 C.C.C. (3d) 51, at paras. 35-37.

[54] Recently, in R. v. White (2011), 2011 SCC 13, [2011] 1 S.C.R. 433, the Supreme Court considered the use of post-offence conduct to support an inference of intent. Rothstein J., writing for the majority, clarified at para. 31 of his reasons that post-offence conduct should be treated like any other type of circumstantial evidence:

Given that “[e]vidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence”, the admissibility of evidence of post-offence conduct and the formulation of limiting instructions should be governed by the same principles of evidence that govern other circumstantial evidence. In particular, to be admissible, such evidence must be relevant to a live issue and it must not be subject to a specific exclusionary rule (e.g. hearsay rule); it may also be excluded pursuant to the exercised of a recognized judicial discretion, such as the discretion to exclude evidence whose prejudicial effect outweighs its probative value. These same principles also determine the need for and scope of a limiting instruction. [Internal citations omitted.]

[55] Post-offence conduct, therefore, is not subject to blanket rules. It is circumstantial evidence whose probative value depends on the nature of the evidence, the issues at trial and the positions of the parties. Thus, we do not automatically label certain kinds of post-offence conduct as always or never relevant to a particular issue. Rather, we must consider all the circumstances of a case to determine whether the post-offence conduct is probative and, if so, what use the jury may properly make of it. In the words of Rothstein J., at para. 36 of R. v. White (2011), the overriding question is this: what do “logic and human experience” suggest that a jury can legitimately or rationally infer from the accused’s post-offence conduct?

(c) The principles applied to this case

[56] In this case, the trial judge should not have invited the jury to use the appellant’s post-offence conduct to infer the level of his culpability – to infer that he was guilty of murder, not manslaughter. As a matter of logic and human experience, the appellant’s post-offence conduct could not support a rational inference of an intent to kill. That it could not do so is evident from the circumstances. The appellant and his wife had no history of violence or abuse in their relationship. Yet, they had just had a sudden and very physical altercation. The altercation occurred in front of their two children. It was brief. It left the appellant disoriented and bleeding profusely from his genitals. And when it was over he knew only two things: Lien was dead, and he had killed her.

[57] In these circumstances, logic and human experience suggest that the appellant’s post-offence conduct was as consistent with a panicked reaction to Lien’s sudden and unintended death, as it was with a panicked reaction to her sudden and intended death. Thus, the jury should not have been repeatedly instructed that they could use this evidence to decide whether the appellant had the intent for murder.

[58] Even if one were to focus on what was likely the most cogent of the appellant’s post-offence conduct – the first category, namely, his failure to administer CPR to Lien or to immediately call 911 – I am not persuaded that his conduct could rationally support an inference of an intent to kill, rather than simply an inference of having done something wrong. Indeed, recent case law from this court suggests that an accused’s failure to render assistance after learning the victim may be dead is not probative of an accused’s level of culpability: see R. v. Anthony, 2007 ONCA 609, 228 O.A.C. 272, at paras. 52-58; R. v. Cudjoe, 2009 ONCA 543, 251 O.A.C. 163, at para. 88; R. v. McIntyre, 2012 ONCA 356, 291 O.A.C. 359, at para. 40.

[59] Moreover, although the Crown did focus on the first category of the appellant’s post-offence conduct, the trial judge’s instructions did not. They referred to all of the appellant’s conduct after Lien died, including the appellant’s strange demeanour in the hours following the fight. Even the Crown fairly acknowledges that the evidence falling in that second category could not, on any common sense view, be probative of whether the appellant intended to kill his wife.

[60] For these reasons, the trial judge erred when he expressly instructed the jury that they could take the appellant’s post-offence conduct into account in determining whether he intended to kill his wife. Instead, he should have instructed the jury that the appellant’s post-offence conduct was relevant only to the question whether the appellant had committed a culpable act or had acted in self-defence. And, because the appellant’s post-offence conduct was not relevant to the issue of his intent, the trial judge should have further instructed the jury this evidence had no probative value on the question whether the appellant was guilty of murder or manslaughter: see R. v. White (2011), at para. 60.

[61] I do not think it can be said that the trial judge’s erroneous instructions on the appellant’s post-offence conduct caused no substantial wrong. The erroneous instructions were potentially highly prejudicial to the appellant as they went to the central issue in the case: his intent. Therefore, even though defence counsel had the trial judge’s charge in advance and did not object to the instructions on post-offence conduct, I would not apply the proviso. Because the post-offence conduct instructions potentially affected the appellant’s claim of self-defence, this error warrants a new trial.

(d) The absence of a caution

[62] Post-offence conduct evidence may not be relevant to one issue but probative of another. For example, the appellant acknowledges before this court that a jury can legitimately infer from post-offence conduct that an accused is aware of having committed a culpable act. In this case, that inference might be capable of undermining the appellant’s defence of self-defence.

[63] However, the appellant argues that, because of the nature of the post-offence conduct in question, the trial judge should have specifically cautioned the jury against relying on this evidence at all. He contends that the conduct falling within the second category – his odd behaviour after his immediate inaction when Lien died – qualifies as “demeanour” evidence. And, he submits, because demeanour evidence is especially susceptible to juror misuse, the generalized caution given by the trial judge in this case was not sufficient. In support of his submission, he relies on the following cases: R. v. Levert (2001), 2001 CanLII 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.), at paras. 26-27; R. v. Trotta (2004), 2004 CanLII 34722 (ON CA), 190 C.C.C. (3d) 199 (Ont. C.A.), rev’d on other grounds, 2007 SCC 49, [2007] 3 S.C.R. 453, at para. 40; R. v. White (2011), at paras. 107, 133 and 138.

[64] The appellant’s demeanour after his wife died was undeniably bizarre – wrapping his wife in a carpet, putting on his wife’s makeup, taking his children to church, bringing his children back to the apartment and giving them presents bought for Christmas in the middle of June, and finally making a 911 call in a completely calm, almost detached voice. This evidence could have played a powerful role in the jury’s deliberations. Jurors tend to focus on this sort of evidence. They find it cogent and significant. It is seemingly hard to explain away. Defence counsel acknowledged as much when he characterized the appellant’s post-offence conduct as “the elephant in the room”.

[65] As I would order a new trial on the error in the trial judge’s express post-offence conduct instructions, I need not decide whether the trial judge erred by failing to specifically caution the jury about relying on the appellant’s demeanour after Lien died. It will be up to the trial judge at the new trial to determine whether a caution is called for.

(3) Other grounds of appeal

[66] The appellant argued several other grounds of appeal. It is unnecessary to consider these other grounds in view of my disposition of the two main grounds of appeal.

D. conclusion

[67] The trial judge erred by refusing to leave the defence of provocation with the jury. The trial judge also erred in his instructions to the jury on the appellant’s post-offence conduct. I would therefore allow the appeal, set aside the appellant’s conviction and order a new trial.

Released: Feb. 1, 2013 “John Laskin J.A.”

“JL” “I agree S.T. Goudge J.A.”

“I agree E.E. Gillese J.A.”