COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bouchard, 2013 ONCA 791

DATE: 20131231

DOCKET: C53244

Doherty, Rouleau and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sebastien Bouchard

Appellant

Howard L. Krongold, for the appellant

Benita Wassenaar, for the respondent

Heard: September 26, 2013

On appeal from the conviction on a charge of second degree murder entered on June 11, 2009 by a jury presided over by Justice Robert Pelletier of the Superior Court of Justice, and on appeal from the imposition of a 15-year period of parole ineligibility on September 11, 2009.

Doherty J.A.:

I overview

[1] The appellant was convicted of the second degree murder of Robert Nicholson and sentenced to life imprisonment without eligibility for parole for 15 years. He appeals from his conviction and sentence.

[2] The appellant admitted that he unlawfully assaulted Mr. Nicholson and caused his death. He argued at trial that he should be convicted of manslaughter and not murder, either because the Crown had failed to prove the mens rea required for murder under s. 229(a) of the Criminal Code, R.S.C. 1985, c. C-46or because the Crown had failed to negate the statutory defence of provocation in s. 232 of the Criminal Code. The jury rejected both defences.

[3] There are essentially two grounds of appeal on the conviction appeal.[^1] Both arise out of the trial judge’s instructions to the jury. First, counsel for the defence submits that the trial judge failed to adequately review the evidence relevant to the mens rea for murder required under s. 229(a) and failed to relate, in a meaningful way, that evidence to the issues raised by the mens rea requirement. Second, counsel submits that the statutory definition of provocation in s. 232 has no relevance when considering the potential impact of the deceased’s conduct on the appellant’s state of mind at the time he killed the deceased, but that the trial judge erroneously instructed the jury that the definition did apply to the mens rea issue.

[4] I would not give effect to the first argument, but am persuaded by the second. The misdirection amounts to an error in law. Section 686(1)(b)(iii), the curative proviso, cannot be applied. I would order a new trial.

II facts

[5] The evidence at trial, although not complex, was lengthy. The appellant testified. I will focus on the evidence relevant to the appellant’s state of mind when he killed Mr. Nicholson.

[6] The appellant and the deceased, Mr. Nicholson, were former coworkers who became friends. The appellant was much younger and larger than the deceased. Both men were alcoholics.

[7] Mr. Nicholson was gay. He was sexually interested in the appellant and there was some evidence that they had engaged in sexual activity. The appellant testified that he had no sexual interest in Mr. Nicholson or homosexual activity in general. According to the appellant, he rebuffed Mr. Nicholson’s various advances, sometimes with physical force. Despite these unwanted sexual advances, the appellant testified that he and Mr. Nicholson remained friends. They often got drunk together.

[8] Mr. Nicholson invited the appellant to attend a rock concert with him in Montreal on December 4, 2005. The men lived about an hour’s drive from Montreal near Lancaster, Ontario. On the day of the concert, both men began drinking in the early afternoon as they drove to Montreal. Their consumption of beer and whiskey continued unabated prior to and during the concert. The appellant also consumed marijuana. Both men were quite drunk by the time the concert ended.

[9] The concert ended at about 11:30 p.m. and the two men headed home. The appellant was driving Mr. Nicholson’s truck. Both men continued to drink.

[10] Mr. Nicholson never made it home. His body was found late the next afternoon about 4.7 kilometres from his home in tall grass several metres from the side of the road. He had severe injuries to his face and neck.

[11] The only direct evidence of the appellant’s assault on Mr. Nicholson came from the appellant’s testimony. He described the trip home, indicating that at one point Mr. Nicholson put his hand on the appellant’s thigh, but the appellant removed it. Shortly after this incident, Mr. Nicholson told the appellant to turn onto a service road. They were near Lancaster and the appellant believed that the road led to Mr. Nicholson’s home.

[12] Just after the appellant turned onto the service road, Mr. Nicholson put his hand on the appellant’s crotch. The appellant responded by striking Mr. Nicholson on the face causing his nose to bleed. At the same time, the appellant lost control of the truck and it slid into a ditch. The appellant and Mr. Nicholson could not get the truck out of the ditch and decided to walk to Mr. Nicholson’s home.

[13] According to the appellant, the two drunken men staggered along the road arm in arm. Suddenly, Mr. Nicholson kissed the appellant on the cheek or neck and said that he loved him.

[14] The appellant testified that Mr. Nicholson’s “wet kiss” brought back disturbing memories of sexual assaults he had suffered as a young boy at the hands of a babysitter. The appellant told the jury that he “lost it”, threw Mr. Nicholson to the ground, and stomped on him several times. The appellant only stopped when he realized what he was doing.

[15] The extracts from the evidence set out below capture the essence of the appellant’s testimony concerning his state of mind:

I was like overwhelmed, like disgusted cause … just feeling his lips or the wetness on me is just … I just wanted him off me.

I know I lost it. It – I didn’t know what I was doing. At one point he was – he had me, he was on my side and the next point he was on the floor and I stomped him. So it’s --- Like I didn’t know exactly what I was doing. Once I seen that I stomped him, I stopped and said … I saw him heaving and I saw his hands move, so I … to my knowledge he was in no serious danger. I left. …

It’s just – it’s just pop the memories of the babysitter, just kissing me all over and how that repulses me, so. Once that happened, I didn’t know – I didn’t know what I was doing. I just lost it. Then I looked, he was on the floor, I stomped him. Once I seen I was doing that, I stopped. I saw he was breathing. I didn’t think he was in any immediate danger. And I certainly didn’t think that the injuries I caused him would have been fatal. I just walked. I started walking home.

[16] The appellant testified that when he left Mr. Nicholson lying beside the road, he was not concerned because he did not think that Mr. Nicholson was seriously hurt. The appellant also indicated that he could not see Mr. Nicholson’s face because it was dark. It was a cold, early December evening with the temperature dropping to about -2 degrees Celsius.

[17] The appellant walked home, a distance of 2.2 kilometres. He arrived home at about 3:00 a.m. He had tea prepared by his mother and said nothing about the altercation. The appellant noticed blood on his boots and tried to wash it off. The boots were subsequently seized and tested. DNA testing showed that the blood belonged to Mr. Nicholson.

[18] The police found Mr. Nicholson’s body at about 5:00 p.m. that afternoon. They located his abandoned truck in a ditch about 1.2 kilometres away.

[19] The police noted a pool of blood about a metre from Mr. Nicholson’s feet and a second pool of blood under his head. The injuries to Mr. Nicholson’s face were so severe that the police could not identify him from his driver’s licence photo.

[20] According to the appellant, he heard about Mr. Nicholson’s death on the news sometime in the next day or so. He wondered whether Mr. Nicholson had died from the injuries he had inflicted or from exposure.

[21] The post-mortem examination revealed extensive facial injuries caused by at least two significant blows to the face. Mr. Nicholson had various other minor bruises, but no defensive wounds on his hands or arms.

[22] Mr. Nicholson had extensive damage to his neck. A great deal of force had been applied to the front of his neck with something having a broad based surface. Mr. Nicholson had hemorrhaging in his neck muscles, damage to adjacent cartilage, and fractures of his thyroid, hyoid, and cricoid bones. His windpipe was also severely damaged.

[23] The pathologist opined that significant pressure had been applied to the deceased’s neck to cause the injuries observed on the post-mortem. She could not say how long Mr. Nicholson remained conscious without knowing the nature of the force applied and, specifically, whether it was applied consistently over a specific period of time. Depending on the length of time the neck was compressed, Mr. Nicholson could have lost consciousness within five to 10 seconds.

[24] At the time of his death, the deceased had a blood alcohol content of .386% (386 mg of alcohol in 100 mL of blood), a level high enough to kill someone who, unlike Mr. Nicholson, was not a habitual abuser of alcohol. Mr. Nicholson had been drinking continually over several hours before his death.

[25] The toxicologist was also questioned about the appellant’s blood alcohol content. He was asked to assume that the appellant had consumed some 13 beers and 21 ounces of liquor over a 12-hour period. This amount was consistent with the appellant’s evidence. The toxicologist testified that, accepting the assumption about the amount the appellant drank and taking into account the different ways in which the body can eliminate large quantities of alcohol, the appellant’s blood alcohol content would have been between .280 and .340% when he killed Mr. Nicholson.

[26] The toxicologist described the various ways in which alcohol consumption can affect individuals. He described the phenomenon of “functional tolerance”, whereby habitual heavy drinkers, like the appellant, can perform various tasks such as driving and walking despite being very intoxicated. In the toxicologist’s opinion, alcohol consumption did not cause violence. It could, however, affect perceptions and lower inhibitions in ways that may cause a misperception of or an overreaction to the conduct of another.

[27] The police first interviewed the appellant a day or two after Mr. Nicholson’s body was found. The appellant lied to the police, telling them that Mr. Nicholson was fine when he had left him and that he had nothing to do with his death. He also made no mention of any improper sexual advances. At trial, the appellant indicated that he had lied to the police because he was afraid and did not want to be arrested. The appellant had a significant criminal record.

III the issues at trial

A: Mens Rea

[28] To convict of murder, the Crown had to prove either that the appellant intended to kill Mr. Nicholson (s. 229(a)(i)), or that he intended to cause Mr. Nicholson bodily harm knowing that death was likely, and was reckless as to whether death would ensue (s. 229(a)(ii)). On this evidence, the mens rea issue came down to this question: had the Crown proved beyond a reasonable doubt, either that the appellant meant to kill Mr. Nicholson when he stomped on his head and neck, or that the appellant knew that it was likely that his actions would kill Mr. Nicholson?

[29] The Crown relied heavily on the nature of the assault perpetrated by the appellant as evinced by Mr. Nicholson’s extensive head and neck injuries. The Crown argued to the jury that a person who kicked and stomped on the prone body of another to the extent necessary to inflict the injuries suffered by Mr. Nicholson and left that person lying, apparently unconscious, in a remote area in the dead of an early winter evening, either intended to kill that person or knew that his death was a probable consequence.

[30] The defence, in arguing that the Crown had failed to prove the necessary intent, focused on the appellant’s evidence. The defence pointed to the appellant’s evidence as to his reaction to the “wet kiss” and to the evidence of the appellant’s consumption of large amounts of alcohol and marijuana in the hours before the assault. The defence relied on the expert evidence as to the potential effect of that amount of alcohol and drug consumption on one’s ability to accurately perceive events and foresee the consequences from one’s actions.

B: Provocation

[31] The appellant also relied on the statutory defence of provocation found in s. 232. That defence reduces what would otherwise be murder to manslaughter. The availability of the provocation defence depended entirely on the appellant’s testimony.

[32] Counsel at trial argued that Mr. Nicholson’s “wet kiss” and the words “I love you” were capable of constituting a wrongful act or insult within the meaning of s. 232(2). Counsel argued that the appellant’s evidence provided a basis upon which the jury could have a doubt as to whether the appellant acted “on the sudden and before there was time for his passion to cool”: Criminal Code, s. 232(2).

[33] The Crown argued that there was no “air of reality” to the statutory defence of provocation and that it could not be left with the jury. The trial judge rejected this submission and instructed the jury at length on the statutory defence of provocation. No objection is taken to that instruction on this appeal.

IV the grounds of appeal

A: Did the Trial Judge Adequately Review the Evidence and Relate it to the Mens Rea Issue?

(i) The Functional Approach to Jury Instructions

[34] A trial judge, in his or her closing instructions, must identify the factual issues to be addressed by the jury, set out the applicable legal principles, describe the respective positions of the parties, and review the evidence relevant to the factual issues in a way that will assist the jury in understanding the potential significance of the evidence to those issues and to the parties’ positions in respect of those issues. This difficult task is well summarized in R. v. Almarales, 2008 ONCA 692, 237 C.C.C. (3d) 148, at para. 60:

Jury instructions should equip jurors to decide the case the parties have presented to them for a decision. From these instructions, the jurors, the decision-makers of the parties’ choice, must understand the issues of fact that require their decision, as well as the legal principles that govern and the essential features of the evidence that inform that decision. The instructions must also leave the jurors with a firm understanding of the positions of the parties. [Citation omitted.]

[35] The adequacy of a jury instruction depends entirely on whether, in the context of the given case, that instruction fulfilled its assigned purpose. The question is not how the trial judge went about his or her task, but whether he or she achieved the purpose of the instruction: Almarales, at para. 61; R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 13; R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146, at pp. 163-64; and R. v. Minor, 2013 ONCA 557, at para. 77.

[36] The functional approach to assessing the adequacy of a jury instruction requires that the instruction be examined in the context of the trial in which the instruction was given. This contextual examination has taken on more significance in light of the way in which jury instructions are now commonly prepared and delivered, at least in most serious criminal jury trials in Ontario. It is increasingly rare for trial judges to prepare their instructions without input from counsel and for counsel to hear those instructions for the first time as they are delivered, sometimes over several hours and sometimes quite quickly. Counsel’s reaction to the jury instructions, or more often his or her failure to react, has to be measured against counsel’s opportunity to respond to the instructions.

[37] Present-day jury instructions in most longer cases are usually the product of extensive pre-charge discussions among the trial judge and counsel for the defence and the Crown. In those discussions, counsel are invited to comment on all aspects of the proposed jury instruction, including the manner in which the trial judge proposes to describe the issues, the position of the defence, and the evidence relevant to the issues and the defence’s position. Often the instructions are revised and then revised again. By the time the trial judge is ready to instruct the jury, counsel will have had a full opportunity to set out their positions on the proposed instructions and will usually have copies of the instructions that will be delivered.

[38] When the trial judge’s instructions are consistent with the instructions worked out by counsel and the trial judge in the pre-charge conference, and counsel has no objections after the charge is delivered, it is an understatement to describe counsel’s silence as merely “a failure to object”. It is more accurate to say that counsel’s silence indicates that he or she was satisfied with the instructions.

[39] I do not suggest that the defence position at trial forecloses arguments on appeal that the trial judge did not adequately set out the issues or the defence position, or did not adequately review the evidence and relate it to the defence position. That argument can be made on appeal regardless of the position taken at trial and may succeed despite the position taken at trial. However, the fact that counsel for the accused, the person most sensitive to the position of the defence and the evidence relevant to the defence, had a full opportunity to participate in constructing the jury instruction and was ultimately content with the manner in which the defence and evidence relevant to the defence were put to the jury, must be a significant factor in assessing the adequacy of the instruction.

[40] Take, for example, an argument on appeal about the failure to review the evidence relevant to the defence. Evidence relevant to an issue can be reviewed in minute detail or more generally by reference to topics or relevant areas of the evidence. Neither type of review is inherently right or wrong. If a trial judge, after full consultation with counsel, and with counsel’s at least tacit approval, settles on one method, it would be a rare case where an appeal would be allowed on the basis that the other method of reviewing the evidence was essential to a proper jury instruction.

[41] This trial judge worked diligently with counsel in the pre-charge conference to produce an instruction that was comprehensive, comprehensible, and satisfactory to both counsel. He had provided counsel with a written draft of his proposed instruction. Counsel had a full opportunity to review the draft and make submissions suggesting changes. The trial judge made some changes in the instructions. Counsel had no objections to the final version of the trial judge’s written instructions.

[42] When the time came to instruct the jury, counsel knew exactly what the trial judge was going to say. He followed almost verbatim the written instructions developed during the pre-trial discussions. After the trial judge had completed his instructions, he gave the jury written copies of those instructions to assist during their deliberations. With minor exceptions that are irrelevant to the issues raised on appeal, counsel had no objection to the instructions. One must conclude that experienced defence counsel was satisfied with the way the trial judge put the defence case and, in particular, with the way in which the trial judge reviewed the evidence and related it to the defence position.

[43] The trial judge also gave the jury a copy of his 155-page witness-by-witness summary of the evidence prepared during the trial. He instructed the jurors that they could use the summary, if they saw fit, to help them in recalling the substance of the evidence. He made it clear that his notes were not evidence and that it was ultimately the jurors’ recollection of the evidence that must guide their deliberations.

[44] Counsel knew before the end of the trial that the trial judge intended to provide the jury with his summaries of the witnesses’ evidence. Counsel had copies of those summaries and the trial judge invited them to bring any concerns they had to his attention. At no time did counsel raise any concerns or object to the jury receiving copies of the judge’s summaries of the evidence. On appeal, counsel acknowledged that the summaries were detailed, balanced, and accurate.

[45] Counsel for the appellant is critical of the trial judge for providing his lengthy summary of the evidence to the jury, but does not argue that the trial judge committed reversible error in doing so. Counsel submits, however, that the summaries did not relieve the trial judge of his obligation to review the evidence with the jury in a way that will relate the evidence to the issues and the positions of the parties. I agree with counsel’s submission. At most, the written summaries of the evidence might have been used by the trial judge to assist in providing a fair and effective review of the evidence as it related to the issues and the respective positions of the parties. The trial judge did not use the summaries for that purpose, but simply left them with the jury. The adequacy of the trial judge’s review of the evidence and of his relating of the evidence to the issues and the parties’ positions stands or falls on what he said to the jury.

[46] Before turning to the content of the jury instruction, I would add a word of caution about leaving the jury with a lengthy summary of the evidence prepared by the trial judge. I think there is a risk, whatever the jury might be told, that the jury could be overwhelmed by a trial judge’s lengthy and detailed written summary of the evidence. The jury could take that summary as the last word on the evidence and forego, to some degree at least, its own rigorous review of the evidence: R. v. Yumnu, 2010 ONCA 637, 260 C.C.C. (3d) 421, at paras. 356-63; and R. v. Henry, 2003 BCCA 476, 179 C.C.C. (3d) 307, at paras. 57-59. Trial judges should be hesitant to provide their own written summaries of the evidence to a jury, without the agreement of the defence and the Crown.

(ii) The Content of the Jury Instruction

[47] Turning to the jury charge, the trial judge began the relevant instructions with a description of the mens rea required by both ss. 229(a)(i) and 229(a)(ii). He instructed the jury that to convict, the jury had to be unanimously satisfied that the Crown had proved one or the other of the requisite mens rea beyond a reasonable doubt.

[48] The trial judge moved from a description of the state of mind required to establish murder to the evidence relevant to the appellant’s state of mind. He directed the jury to consider the evidence as a whole when determining whether the Crown had proved the required state of mind. The trial judge next identified various parts of the evidence which had potential relevance to the appellant’s state of mind.

[49] The trial judge identified five areas of the evidence:

• the evidence of the cause of death and the pathologist’s evidence about the number of blows struck;
• the evidence of the relationship between Mr. Nicholson and the appellant in the months before the homicide;
• the events that transpired between the appellant and Mr. Nicholson immediately before the appellant killed Mr. Nicholson;
• the evidence of the appellant’s alcohol consumption and the expert evidence of the toxicologist as to the effect of that alcohol consumption; and
• the appellant’s evidence of what he did and did not do in the hours immediately after the homicide.

[50] The trial judge identified the relevant parts of the evidence more than once, but he did not review the content of any of the evidence in any detail. For example, the trial judge referred to the evidence of the number of blows struck as relevant to the appellant’s state of mind, but did not review the details of that evidence. Similarly, the trial judge referred to the events that transpired between Mr. Nicholson and the appellant immediately before the homicide, as relevant to the appellant’s state of mind, but did not review the details of those events as described by the appellant. He specifically did not mention the appellant’s evidence about his reaction to the “wet kiss” and Mr. Nicholson’s statement that he loved the appellant.

[51] The mens rea issue was a simple one. The evidence was far from complicated. The competing positions of the parties were obvious and easy to understand. The bulk of the evidence relied on by the defence came from the appellant. That evidence would no doubt be fresh in the jury’s mind and its relevance to the mens rea issue was obvious. Experienced counsel got the instruction he wanted. Sometimes, from the defence perspective, the less said about the details of the evidence, the better.

[52] The trial judge could have gone into more detail about the evidence. He probably would have, had counsel asked him to do so. I cannot accept that the trial judge’s failure to review the evidence in more detail or to specifically relate the details of the evidence to the mens rea issue resulted in reversible error in the context of this case.

[53] I would not give effect to this ground of appeal.

B: Did the trial judge misdirect the jury as to the application of the statutory defence of provocation to the evidence relevant to the mens rea issue?

[54] The appellant’s evidence that Mr. Nicholson kissed him and said “I love you” and his evidence describing his reaction to Mr. Nicholson’s actions were relevant both to the mens rea issue and to the statutory defence of provocation. The evidence was relevant to the mens rea issue because the appellant testified that the actions of Mr. Nicholson caused him to “lose it” and assault Mr. Nicholson without regard to the consequences of his actions. The jury had to consider that evidence in determining whether the Crown had proved beyond a reasonable doubt that the appellant intended to kill Mr. Nicholson or foresaw his death as the probable consequence of the assault.

[55] The same evidence was relevant to the statutory defence of provocation. That defence serves as a partial excuse, reducing what would otherwise be murder to manslaughter. The defence is said to rest on the law’s compassion for human infirmity. People can be pushed to murder. In the very limited circumstances captured by s. 232, society accepts that provocation will reduce murder to manslaughter: R. v. Hill, 1986 CanLII 58 (SCC), [1986] 1 S.C.R. 313, at pp. 323-24.

[56] For obvious policy reasons, a partial defence to murder based on the loss of self-control must be narrowly circumscribed. The wrongful act or insult said to have caused the loss of self-control must be sufficient to deprive an ordinary person of self-control. The accused must also have in fact been provoked by the alleged act or insult and, finally, the accused’s actions must have been on the sudden before there was time for his or her passion to cool. These three requirements place strict limitations on the availability of the statutory defence of provocation.

[57] The trial judge explained to the jury that the concept of provocation in the context of the statutory defence of provocation had a specific legal meaning that was narrower than the generally understood notion of provocative conduct:

You may have heard or you might have used the expression, “I was provoked” and we know what that means, you were pushed to the limit, you were egged on, we all have different definitions of it, it is a word we use in English all the time, but in the legal sense of reducing murder to manslaughter, provocation has a specific definition in the Criminal Code, and I will read it to you and explain it to you in just a moment.

[58] He went on to describe the specific elements of the definition of “provocation” available under the Criminal Code:

So it is not quite as simple as saying ‘I was provoked’, there are certain standards that are required. They are set out by the Criminal Code. And just before we leave this issue, those standards are, was there a wrongful act or insult? Was it sufficient to deprive an ordinary person of their self-control? Was Mr. Nicholson’s wrongful act or insults sudden? And did Mr. Bouchard act suddenly before regaining control? Those are the questions. …

[59] No complaint is, or could be, taken with the trial judge’s instruction on the defence of provocation as set out in s. 232. The appellant submits, however, that the trial judge effectively told the jury that the narrow statutory definition of provocation must also be used in considering the appellant’s evidence about the effect of Mr. Nicholson’s conduct on his state of mind at the relevant time.

[60] The statutory definition of provocation in s. 232 has no application when considering the impact of a deceased’s conduct on an accused’s state of mind for the purpose of determining whether the Crown has established the requisite mens rea: see R. v. Flores, 2011 ONCA 155, 269 C.C.C. (3d) 194, at paras. 72-76, 83-86. In the context of the mens rea inquiry, the appellant’s evidence about what Mr. Nicholson did and his reaction to Mr. Nicholson’s conduct formed part of the evidence relevant to the appellant’s state of mind regardless of whether the evidence fell within the scope of the statutory definition of provocation.

[61] The distinction between conduct of a deceased relevant to an accused’s state of mind and conduct that may qualify as provocation under s. 232 is especially important where there is evidence of intoxication. To qualify as provocation under s. 232, the jury must be satisfied that the conduct was sufficient to deprive an ordinary person of self-control. In making that assessment, the jury does not take into consideration the alcohol consumption of the particular accused, but instead looks at the hypothetical ordinary sober person’s response to the alleged provocation: see Hill, at pp. 328-29. If the alleged provocation could not deprive an ordinary person of self-control, the conduct cannot meet the statutory definition of provocation.

[62] However, potentially provocative conduct that fails the ordinary person test and, therefore, cannot qualify as provocation under s. 232, must still be considered by a jury in assessing whether an accused had the necessary mens rea. In the context of the mens rea inquiry, the accused’s intoxication could potentially play a significant role in support of the claim that a deceased’s conduct caused the accused to act without regard to the consequences and without the necessary mens rea.

[63] My review of the instruction satisfies me that the trial judge did tell the jury that the narrow statutory definition of “provocation” applied in assessing the impact of the deceased’s allegedly provocative conduct on the appellant’s mens rea. Two passages from the instructions lead me to that conclusion.

[64] First, the trial judge, in the course of his instruction on the mens rea issue, said:

So you have to consider all of the evidence in trying to determine the accused state of mind. And it will include evidence of intoxication and might equally be influenced by the issue of provocation, which I am going to speak to you about in just a moment. [Emphasis added.]

[65] Having alerted the jury to the possible relevance of “provocation” to the mens rea issue, and having alerted the jury to the upcoming instruction on provocation, the trial judge turned almost immediately to the statutory definition of “provocation”. He proceeded to explain the specialized meaning of that word at some length. During his explanation, it was clear that the conduct referred to by the trial judge as potentially provocative consisted of Mr. Nicholson’s “wet kiss” and his statement that he loved the appellant.

[66] Second, after a careful instruction on the statutory defence of provocation and a brief reference to the appellant’s post-offence conduct, the trial judge returned to the mens rea question:

Finally you have been advised on the issues of intoxication and provocation. If you reject these defences individually, you should nonetheless consider the cumulative or the combined effect of the evidence of intoxication and provocation, along with all the other evidence in deciding whether the Crown has proved beyond a reasonable doubt that the accused had either the intent to cause Mr. Nicholson’s death or the intent to cause injuries which he knew was likely to cause death and was reckless about whether or not death ensued. [Emphasis added.]

[67] In this passage, the trial judge was attempting to alert the jury to the need to consider the cumulative effect of the evidence on the issue of the appellant’s state of mind. However, in my view, the jury would understand that the word “provocation” had only the specialized statutory meaning that the trial judge had explained in detail immediately before this instruction. The jury would not, in my view, understand that the appellant’s evidence about what Mr. Nicholson did and said and the appellant’s response to those actions was relevant to the appellant’s state of mind even if it did not qualify as provocation under the statutory definition.

[68] The Crown contends that any potential confusion arising out of these two references to provocation was overcome by the trial judge’s earlier indication to the jury that it could consider the actions of the deceased immediately before the homicide in determining whether the appellant had the necessary mens rea. Crown counsel argues that the jury would understand that this was a reference to the appellant’s testimony that Mr. Nicholson kissed him and said that he loved him and that this caused the appellant to “lose it”.

[69] The Crown’s submission is not without merit. However, the trial judge’s somewhat cryptic and oblique reference to the deceased’s allegedly provocative conduct in the context of reviewing the areas of the evidence relevant to the mens rea issue is overborne by the detailed review of that evidence in the context of the defence of provocation and the express instruction to the jury that provocation had a specialized and narrow legal meaning. With respect, on this instruction the jury could well have understood that Mr. Nicholson’s allegedly provocative acts and the appellant’s reaction to them had relevance to the mens rea issue only if they met the narrow legal definition of provocation in s. 232. This constitutes misdirection.

[70] The misdirection was significant. The appellant’s conduct was, on his own evidence, heavily influenced by his alcohol and marijuana consumption. As explained above, conduct can pass the statutory definition of provocation only if it was sufficient to cause an ordinary person to lose control. A jury does not consider alcohol consumption in making that judgment. This jury may well have determined that the statutory defence of provocation was not available as the alleged provocative conduct would not have caused an ordinary person to lose control. Based on this instruction, the jury would have used the same statutory definition of provocation in considering the impact, if any, of Mr. Nicholson’s conduct on the appellant’s state of mind. The jury may well have discounted the evidence entirely on the mens rea issue because in the jury’s view, Mr. Nicholson’s conduct would not have caused an ordinary person to lose self-control. However, in the context of the mens rea inquiry, the impact of the conduct on an ordinary person was not the issue. The mens rea inquiry is subjective and looks to the actual effect of Mr. Nicholson’s conduct on the accused’s state of mind having regard to all of the other evidence, particularly his alcohol and marijuana consumption.

[71] There was no objection to this part of the instruction. For the reasons outlined above (at paras. 37-40), I take counsel’s silence to indicate that he was satisfied with the instruction. However, I draw a distinction between a trial judge’s instructions on matters such as the defence and evidence relevant to the defence, and the trial judge’s instructions on pure matters of law. I think counsel’s position as to the adequacy of an instruction on a matter of law is of less significance than counsel’s position on matters relating to the defence and the review of the evidence. An error in law is an error in law regardless of counsel’s position. If this court is satisfied that the jury was misdirected on a question of law, the Criminal Code dictates that the appeal must be allowed unless the Crown can establish that the error occasioned no substantial wrong or miscarriage of justice. Counsel’s failure to object has some limited relevance to the curative proviso analysis: see R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 44; and R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at paras. 37-38.

[72] The misdirection in this case was potentially significant. It could well have eliminated an important part of the appellant’s evidence from the jury’s consideration on the mens rea issue. Nor, can the Crown’s case be described as overwhelming. The proviso cannot be applied: see R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505.

V conclusion

[73] I would allow the appeal, quash the conviction, and order a new trial on the charge of second degree murder.

“Doherty J.A.”

“I agree P. Lauwers J.A.”

Rouleau J.A.: (Dissenting)

OVERVIEW

[74] I have had the benefit of reading my colleague’s reasons and, with respect, I disagree. For the reasons that follow I would dismiss the appeal.

[75] My colleague has concluded that the trial judge misdirected the jury with respect to the issues of mens rea and the statutory defence of provocation. On the basis of two passages from the trial judge’s instructions to the jury, my colleague concludes that the jury “could well have understood that Mr. Nicholson’s allegedly provocative acts and the appellant’s reaction to them had relevance to the mens rea issue only if they met the narrow legal definition of provocation in s. 232.” As a result, my colleague is of the view that a new trial is necessary.

[76] I reach a different conclusion. The structure and chronology of the charge, including the clear distinction made between evidence of provocation and the defence of provocation, would have adequately conveyed to the jury that all of the evidence, including the allegedly provocative acts of the deceased and the appellant’s reaction to them, was to be taken into account when deciding the issue of mens rea. The passages that trouble my colleague must be read in the context of the entire charge. The trial judge explained that the mens rea was the only element of murder the jury had to decide. He explained the two possible mens rea for murder. He repeatedly explained that in determining the appellant’s state of mind, the jury should consider “all of the evidence,” including the events that took place immediately before Mr. Nicholson’s death as well as the appellant’s intoxicated state. He also made it clear that the jury was to consider the statutory defence of provocation only after they had decided the issue of mens rea, and only if they had determined that the appellant possessed one of the two states of mind required for murder. The trial judge explained the statutory defence of provocation. He concluded with a rolled-up charge, reminding the jury that they should consider the cumulative effect of the evidence of intoxication and provocation along with all the other evidence on intent even if they rejected the defences of intoxication and provocation. In sum, the trial judge never instructed the jury that they could not consider the allegedly provocative acts, or the appellant’s reaction to them, in deciding the issue of intent. In my view, his instruction would have impressed upon the jury to do the opposite.

THE ISSUES

[77] The evidence at issue is as follows. The appellant testified that he was intoxicated on the night in question. He testified that the deceased, Mr. Nicholson, kissed him and told him that he loved him. He testified that he was “overwhelmed” and “disgusted,” and that the actions of Mr. Nicholson caused him to “lose it” and assault Mr. Nicholson. The appellant’s trial counsel explained in final submissions that when this happened, the appellant:

has the flash to the abuse that he had suffered as a child … it all came back. And in his intoxicated state, he reacted instinctively. He did not think things through. His reaction was just to lose it … There is no rational thought going through his mind up to this point. It has been an instant reaction to what went through his head when [Mr. Nicholson] planted that wet kiss on him.

[78] The jury could have relied upon the evidence relating to Mr. Nicholson’s allegedly provocative acts, and the appellant’s reaction to them, in one of two ways. First, the evidence could have supported the appellant’s position that, because of the childhood abuse he suffered, he reacted instinctively to the relatively harmless actions of Nicholson and did not, therefore, have the requisite intent for murder. If the jury rejected this position and found that the appellant had the intent required for murder, they could have considered the same evidence for the purpose of deciding whether the statutory defence of provocation should apply.

ANALYSIS

i. The mens rea issue

[79] In the portion of his charge dealing with the elements of the offence of murder, the trial judge explains to the jury that the mens rea was the only element of murder they had to decide, the other elements having been conceded. As noted by my colleague, the mens rea issue in this case was a simple one. The trial judge correctly explained the two possible mens rea for murder. With respect to the evidence the jury should consider when deciding the issue of mens rea, the trial judge instructs:

• you should consider all of the evidence;
• you will want to consider the relationship between the accused and the deceased and their prior contacts and association;
• you will want to consider what the accused and the deceased were doing earlier that day and immediately before the accused caused Mr. Nicholson’s death. So the events leading up to the ultimate event, you might find quite revealing on what Mr. Bouchard intended or did not intend or for that matter, was able to intend;
• you will want to consider any other factor and surrounding circumstance that you find relevant on the issue of what the accused intended when he caused Mr. Nicholson’s death. You are not limited to any one consideration;
• all of these things and the circumstances in which they happened may shed light on Mr. Bouchard’s state of mind;
• The surrounding circumstances can be very revealing. But that is simply one way for you to determine a person’s actual state of mind, what he or she actually meant to do. It is a conclusion that you may only reach, however, after considering all of the evidence.

In addition to these references, there are several other references to the need for the jury to take all of the facts and circumstances into account when determining the mens rea issue. The trial judge clarifies that the jury’s consideration of “all of the evidence in trying to determine the accused state of mind…will include evidence of intoxication and might equally be influenced by the issue of provocation, which I am going to speak to you about in just a moment.”

In my view, the trial judge properly instructed the jury on the evidence they could consider in determining the issue of mens rea. As this Court has noted:

In the end, whether by express words or otherwise, what jurors must understand is that, in deciding whether the prosecutor has proven either state of mind essential for an unlawful killing to be murder, they must consider all of the evidence that sheds light on the accused’s state of mind at the time of the killing … (R. v. Flores, 2011 ONCA 155, at para. 76 citing R. v. Cudjoe, 2009 ONCA 543, at para. 109 [emphasis added])

When the trial judge directed the jury to consider all of the evidence in determining the issue of mens rea—including the evidence of intoxication, the events that took place immediately before Mr. Nicholson’s death, the surrounding circumstances and the issue of provocation—he appropriately directed the jury’s attention to the deceased’s allegedly provocative acts, and the appellant’s reaction to them. The trial judge never suggested that any evidence, including the evidence he described later in the section of the charge on the statutory defence of provocation, was to be excluded from the jury’s consideration of the mens rea issue.

ii. Provocation as a defence

[80] After the mens rea instruction, the trial judge explains that the jury should consider the statutory defence of provocation only if they first decide that the appellant had the requisite intent for murder. The decision tree he provided to the jury also made this clear. In this part of the charge, the trial judge explains that provocation, as a defence, is subject to specific legal requirements. From this point forward, he consistently refers to “the defence of provocation,” which should be contrasted with his earlier direction to consider all of the evidence, including “evidence of intoxication” and “the issue of provocation,” when determining the issue of mens rea.

[81] The trial judge moves on to the first element of the defence of provocation, which is whether there has been a wrongful act or insult. In this part of the charge, the trial judge tells the jury twice that “there is evidence” to be considered in deciding whether there was a wrongful act. The evidence the trial judge describes is the appellant’s testimony that Mr. Nicholson told him that he loved him and kissed him on the neck or cheek. The trial judge explains that the jury will have to decide if “behaviour of that sort could be considered a wrongful act or insult” sufficient to satisfy the first element of the defence of provocation. The trial judge instructs that if the jury decides that this evidence does not support a finding of a wrongful act, then the defence of provocation does not apply.

[82] The trial judge then explains the potential relevance of the evidence in question to the other elements of the defence of provocation.

[83] To this point, then, the trial judge had clarified the following. The evidence in question could be considered by the jury in determining the issue of mens rea. If, having considered all of the evidence, the jury found that the appellant possessed one of the required states of mind for murder, the jury would then have to consider the defence of provocation. At that stage, the evidence in question could be considered a second time to decide if the elements of the defence of provocation had been established.

[84] In my view, these instructions would not have confused the jury.

iv. The concerns with the instructions

[85] In reaching his conclusion that there was significant misdirection, my colleague relies on two passages from the instructions. I discuss each in turn. In the course of his instructions on the mens rea issue, the trial judge said:

So you have to consider all of the evidence in trying to determine the accused’s state of mind. And it will include evidence of intoxication and might equally be influenced by the issue of provocation, which I am going to speak to you about to you about in just a moment. [Emphasis added]

[86] I agree that this statement, standing alone, had the potential to confuse. Read in isolation, telling the jury that their decision on mens rea “might equally be influenced by the issue of provocation, which I am going to speak to you about in a moment” could have been misinterpreted raising the possibility that there may be some limitation on the evidence the jury was to consider when determining intent. In other words, the jury could have understood the words “which I am going to speak to you about” as meaning “subject to” what was to come. However, the impugned passage comes in the midst of clear and repeated statements that all of the evidence, including the actions and conduct of Mr. Nicholson and the appellant in the moments leading up to Mr. Nicholson’s death, was to be considered in determining the mens rea. Read in context, the impugned passage simply introduced the word provocation and left the “issue” for later.

[87] Only after completing his instructions on mens rea did the trial judge turn to the defence of provocation. As he instructed, the jury was to consider provocation as a defence only if the jury first determined that, on all of the evidence, the mens rea required for murder had been proven beyond a reasonable doubt.

[88] From that point forward the trial judge consistently labels this as the defence of provocation. The trial judge recites the evidence that might support the elements of this statutory defence. In context, therefore, the earlier reference to the “issue” of provocation would not have caused the jury to stray from what it had been told repeatedly, which was to assess the mens rea on the basis of all of the evidence led at trial.

[89] I now turn to the second passage that leads my colleague to conclude that the jury was misdirected. After his instruction on the defence of provocation, the trial judge returned to the mens rea question and provided a rolled-up charge as follows:

Finally, you have been advised on the issue of intoxication and provocation. If you reject these defences individually, you should nonetheless consider the cumulative or the combined effect of the evidence of intoxication and provocation, along with all the other evidence in deciding whether the Crown has proved beyond a reasonable doubt that the accused had either the intent to cause Mr. Nicholson’s death or the intent to cause injuries which he knew was likely to cause death and was reckless about whether or not death ensued. [Emphasis added]

[90] My colleague is of the view that the rolled-up charge, which came almost immediately after the trial judge’s instructions on the statutory defence of provocation, compounded the problem created by the first impugned passage. He argues that because of the detailed review of the evidence of provocation in the context of the explanation of the statutory defence, and the express instruction that the statutory defence of provocation has a specialised and narrow legal definition, the jury could well have understood that Mr. Nicholson’s allegedly provocative acts and the appellant’s reaction to them had relevance to the mens rea issue only if they met the narrow legal definition of provocation in s. 232.

[91] I disagree. First, I view this passage as being quite clear. It reminded the jury that even if they rejected the specialised and narrow legal definition of the defence of provocation, they “should nonetheless consider the cumulative or combined effect of the evidence of intoxication and provocation, along with all the other evidence” in assessing the appellant’s intent or mens rea. Coming as it did after the trial judge’s long explanation of the defence of provocation, the rolled-up charge ensured that the jury did not lose sight of the importance of considering all of the evidence, including the evidence of provocation, in assessing the appellant’s mens rea.

[92] Further, to reach the understanding suggested by my colleague and exclude the provocation evidence from their consideration of the mens rea issue, the jury would not only have to have misunderstood or disregarded the rolled-up charge, they would also have to have ignored the clear and repeated instructions given earlier in the charge to consider all of the evidence on the mens rea issue. In my view, the jury would have understood and followed the instructions they were given. It is well-established that juries are presumed to be able to follow and apply instructions given to them by trial judges: R. v. Emms, 2010 ONCA 817, at para. 26 cited with approval in R. v. Puddicombe, 2013 ONCA 506, at para. 93; see also Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, at p. 884; see also R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at pp. 692-93.

v. The appellant’s concern with the rolled-up charge

[93] The appellant also argued that the rolled-up charge was inadequate. Our Court has clarified the standards according to which a rolled-up charge must be evaluated on appeal. An integral part of this instruction is a description, whether by content or specific detail, of the evidence to which the instruction relates: R. v. Flores, at para. 76. In this case, the trial judge adequately described the evidence by instructing the jury that if they rejected the defences of intoxication and provocation, they “should nonetheless consider the cumulative or the combined effect of the evidence of intoxication and provocation, along with all the other evidence.”

[94] The circumstances of the particular case have to be kept in mind when evaluating the adequacy of a rolled-up charge: R. v. Flores, at para. 78. In this case, the appellant conceded that he unlawfully killed the deceased. The jury was therefore faced with a limited number of live issues. These were the issue of intent (which would determine whether the unlawful killing was murder or manslaughter), and the defences of intoxication and provocation. Moreover, there is no suggestion that the jury was confused in this case, unlike the jury in R. v. Flores, which asked questions seeking clarification on the defence of provocation.

[95] Finally, to achieve the purpose of a rolled-up charge, which is to ensure that jurors do not take a compartmentalized approach to the evidence by confining their use of the evidence to a discrete defence, “a rolled-up charge must remind jurors that they must consider all of the evidence relevant to an accused’s state of mind in deciding whether the prosecutor has proven that state of mind beyond a reasonable doubt”: R. v. Flores, at para. 81 [emphasis added]. In my view, as a result of the trial judge’s repeated direction to consider “all of the evidence,” including a reminder to consider “the cumulative or the combined effect of the evidence of intoxication and provocation, along with all the other evidence” in the rolled-up charge, the jury in this trial would have understood that all of the evidence, including the evidenceof provocation, was to be considered when deciding the issue of mens rea.

[96] As is inevitably the case, the charge could have been clearer. The trial judge could have recited the particular evidence (Mr. Nicholson’s kiss and expression of love) in the rolled-up charge as part of his reminder to the jury that the evidence of provocation had to be considered in their mens rea analysis. However, the rolled-up charge came immediately following the trial judge’s explanations of the defence of provocation wherein the trial judge twice set out the alleged evidence of provocation. By the time the trial judge reached the rolled-up charge, the jury would have been well aware of the facts the judge was referring to.

[97] An accused is entitled to a properly but not perfectly instructed jury: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 2, cited with approval in R. v. Flores. As noted by my colleague, the charge was reviewed in advance by the appellant’s trial counsel and was discussed at length in pre-charge conferences with the trial judge. There were no objections to the impugned portions of the charge, either before or after they were delivered. The appellant received the charge that he wanted and, despite its imperfections, it did not amount to misdirection.

Other issues on appeal

[98] There were two other grounds of appeal. The first is that the trial judge failed to adequately review the evidence relevant to the mens rea for murder required under s. 229(a) and failed to relate, in a meaningful way, that evidence to the issues raised by the mens rea requirement. For the reasons given by my colleague, I would not give effect to this ground of appeal.

[99] The appellant also submitted that the trial judge misdirected the jury on the mens rea required by s. 229(a)(ii). As noted by my colleague, the court did not call on the Crown to respond to that submission. The appellant’s concern is that the trial judge erred in his description of the intent required for murder. On four occasions in the course of instructing the jury on mens rea, the trial judge advised the jury that the appellant must have had the “intention to cause injuries that are likely to kill.” The proper instruction is to advise that the appellant must have had the “intention to cause injuries that he knew are likely to kill”.

[100] As noted by the Crown, the jury was given the correct instruction on mens rea no less than 12 times. The fact that the trial judge misspoke in four instances would not have confused the jury and does not amount to misdirection. The correct statement of the law was also contained in the decision tree provided to the jury. In addition, the last oral instruction to the jury on the issue, given in a re-charge, contained the correct statement of the required intent. I would not give effect to this ground of appeal.

Sentence appeal

[101] During the sentencing submissions at trial, the appellant asked for a 10-year parole ineligibility period, while the Crown suggested a period in the range of 15 to 18 years. The sentencing judge imposed 15 years. On appeal, the appellant seeks a reduction to a 12-year parole ineligibility period.

[102] The appellant submits that the trial judge failed to address the mitigating effect of provocation. In the appellant’s view, even if the statutory defence of provocation was not accepted, the evidence that Mr. Nicholson’s unwelcome sexual advances precipitated the fatal assault should have been taken into account by the trial judge. The trial judge’s reasons for sentence do not, however, advert to this mitigating factor.

[103] I would not give effect to this ground of appeal. In my view, the sentence was fit and the reasons do not reveal an error in principle. It was apparent from the jury’s decision that both the alleged evidence of provocation and the statutory defence of provocation were rejected. The trial judge gave thorough and thoughtful reasons for fixing the 15-year parole ineligibility period and his failure to comment on the issue and evidence of provocation is of no moment. I see no basis to interfere.

CONCLUSION

[104] For these reasons, I would dismiss the conviction appeal, grant leave to appeal sentence but dismiss the sentence appeal.

Released:

“DEC 31 2013” “Paul Rouleau J.A.”

“DD”

[^1]: There was also a submission that the trial judge misdirected the jury on the mens rea required by s. 229(a)(ii). The court did not call on the Crown to respond to that submission and I will not address it in these reasons.