COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Downs, 2014 ONCA 20

DATE: 20140113

DOCKET: C53767

MacPherson, Rouleau and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey William Downs

Appellant

Michael Lacy and Julianna Greenspan, for the appellant

Susan Magotiaux, for the respondent

Heard: October 9, 2013

On appeal from conviction entered by Justice M.J. Nolan of the Superior Court of Justice, sitting with a jury, dated on March 11, 2010 and the sentence imposed on May 25, 2010.

Rouleau J.A.:

INTRODUCTION

[1] This was a difficult trial for the judge and jury. It was acknowledged that the appellant was suffering from schizophrenia, and that on February 18, 2008, he brutally killed Joseph Kearley and injured Bruno De Bortoli. The central issue for the jury was whether, when the appellant caused the death and injuries, his mental disorder was such that he did not appreciate the nature and quality of his actions or did not know that they were morally wrong. If so, the appellant ought to be found not criminally responsible (NCR).

[2] The experts who testified at trial were divided in their opinions. The jury weighed these competing opinions and concluded that the appellant was not NCR. The appellant appeals, arguing that errors were committed by the trial judge in the handling of the trial and in the charge to the jury. The appellant argues that the finding that he was criminally responsible is unreasonable and unsupported by the evidence. The appellant also argues that errors in the trial judge’s instructions respecting mens rea warrant ordering a new trial.

[3] Given the divided opinion of the experts and the well documented mental illness of the appellant, it is clear that the NCR issue could well have gone either way. In my view, however, the trial judge worked very hard to ensure that the trial was conducted properly and that the case was put fairly to the jury. The instructions to the jury are correct. Although much of the medical evidence could well have supported an NCR finding, there was also medical evidence supporting the jury’s conclusion. For the reasons that follow I would, therefore, dismiss the appeal.

FACTS

The assault

[4] In the early hours of the morning of February 18, 2008, the appellant violently assaulted and killed 74 year old Joseph Kearley. In the course of that assault, the appellant also attacked three other men, including 65 year old Bruno De Bartoli who suffered significant injuries.

[5] The appellant and the victims were residents of the Marentelle Rest Home in Windsor. The appellant was 35 years old and living at the rest home because he suffered from schizophrenia.

[6] Staff were alerted to the beating when they heard loud thudding coming from upstairs. After a few minutes, they went upstairs to investigate and saw Mr. Kearley lying still on the floor in the hallway with blood covering his face. Mr. De Bartoli was behind him. The appellant was standing over Mr. Kearley punching him repeatedly and stomping on his face. The staff ran downstairs and called 911.

[7] Mr. Kearley had multiple significant blunt force injuries on his head, face and neck. His skull and jaw were fractured in 10 places. His ribs were fractured in 10 places. He had no defensive wounds. There was obvious and significant injury to his face and blood coming from his mouth, ears and nose. The pathologist could not determine the exact mechanism of death but found that he died from blunt force trauma with possible contributions of lack of oxygen, strangulation from the injuries to the throat and massive blood loss.

The arrest and interview

[8] When the police arrived, they found Mr. Kearley lying in the hallway. The appellant was standing barefoot in the hall with blood on his ankles and hands. As the police put him under arrest, the appellant said: “I am sorry. That was bad of me. I hurt those people.” Later, when the police cautioned the appellant, he said: “I want to go back to prison.” He remained calm and cooperative while he waited with Constable Tanner to be transported. One member of the rest home staff said he looked kind of “somewhere else” and was whispering to himself.

[9] As the appellant was being walked out of the home, another resident made a comment, something like “I hope you get it up the ass everyday with no lube.” The appellant responded “I’ll be back here in a coupla days buddy.”

[10] Officers found the appellant to be calm and compliant during booking. He was later observed talking to himself in his cell in a calm but loud voice. No one could hear particular words.

[11] When the appellant was asked if he knew why he was in the police station, he responded “I hurt some people. First degree murder. I am going to Kingston Penitentiary, but I have some stops along the way. I am going to die in prison from AIDS. I’m going to get out just before I die. I am going to grow some wings and fly.”

[12] When the appellant was asked if he wanted to call a lawyer, he initially said no and said “I’ll just go to prison. I don’t need a lawyer.” When asked whether he understood the charge and what a lawyer does, the appellant responded “Murder one, and a lawyer represents you.” The appellant later agreed to talk to counsel and, after two unsuccessful attempts, was able to speak to a lawyer.

[13] During his booking and processing, the appellant complained that his wrist was broken. He told an officer “My wrist hurts. I hurt it hurting somebody else.” He told police “I hit some guys in the face and they were bleeding.” The appellant was later taken to the hospital for x-rays and, while at the hospital, was heard to say “Can’t believe the mess I’m in.” At various points he was seen talking or mumbling to himself and staring straight ahead. After taking his medical history, the doctor gave him medication for his schizophrenia. After seeing the doctor he told the police “My ankles are broken. I can’t walk. They put me in a room. I couldn’t breathe. I couldn’t stand. I couldn’t even piss.” When the police reminded him that he had been walking in the cell, he responded “Okay, forget it then.”

[14] Upon his return to the police station, the appellant was asked where the blood on his hands and feet came from. The appellant originally responded that it was his blood but after being asked if he was injured, the appellant responded that he “hit some guys in the face.”

[15] After speaking with counsel, the appellant gave a video-taped statement. The statement was played at trial and was the subject of comment by the experts. The appellant was able to give accurate information about himself and his family and background and his diagnosis of schizophrenia. He at times indicated that he hurt people and they provoked it and at other times he denied hurting people. He did not know why he had beaten the victims. He acknowledged asking for cigarettes and being denied. He said he felt bad for himself. He was at times unresponsive and also said he was dizzy and wanted to lie down and to see a psychiatrist.

[16] In the course of the video-taped statement, the appellant did not mention God or any hallucinations or delusions. Detective Thomson testified at trial and said he thought that the appellant was exaggerating the situation and putting on an act in some parts of the statement. He agreed, however, that contradictions in a police interview were common.

Psychiatric history

[17] It was acknowledged at trial that the appellant had been suffering from schizophrenia since about the year 2000. Two of his treating psychiatrists, Dr. Velehorschi and Dr. Villella and a nurse, Ms. Aussant, testified regarding the appellant’s treatment. Their evidence was to the effect that he had a history of delusions, including religiously themed thoughts, and that at times the appellant believed that God had directed him to do things or influence his actions and thinking. It was also noted that compliance with medications was a fairly common problem for the appellant and that missed medication could potentially destabilize him. All three testified that they did not believe the appellant to be malingering his symptoms.

[18] It was accepted that the appellant had experienced symptoms of schizophrenia in the weeks before the attack. In January of 2008, the appellant locked three residents in their rooms at the rest home. He was acting in a violent and uncontrolled manner but was cooperative when police arrived. On February 4, the rest home staff took the appellant to the hospital because of bizarre and disruptive behaviour.

[19] On February 12, 2008, the appellant visited the psychiatrist for a follow-up where his medications were changed. He was also referred to an intensive community treatment program.

[20] In the period preceding the offence, staff at the home had become concerned about the appellant. The owner of the rest home, Ms. Zebic, thought that the appellant was “not in his right mind,” and rest home staff noted that he was talking to himself and pacing.

Jail Assessment

[21] The appellant was seen by a nurse at the jail on the day of the offences. He appeared to the nurse to be disoriented and he reported hearing voices but did not mention God. He was agitated and did not want to answer questions. The nurse put him on suicide watch.

[22] On February 21, 2008, the appellant was seen by Dr. Child and was found to be speaking rationally and normally. He was on medication at the time.

Appellant’s Evidence

[23] The appellant testified that his medications were “screwed up” and that he did not feel together in his brain during the time leading up to the offences. He was able to recall some of the events in question. He testified that he could not sleep that night because of changes to his medication. At some point, while in bed, he heard an animal-like figure in a tree outside the rest home. He testified that he believed this was God and, as a result he felt scared and was shaking. When he left his room and went to the common room, he saw lettering and numbering on the walls. With respect to why he started kicking and hitting Mr. Kearley, the appellant could only explain that he “was supposed to meet God that night”, “to be closer to God,” and “because God told [him] to do it.”

[24] The appellant acknowledged that Mr. Kearley had not provoked him. He acknowledged that he may have said that Mr. Kearley was a bum or was going to hell but he nonetheless liked Mr. Kearley and thought of him as a friend. He may have asked Mr. Kearley for cigarettes before the attack.

[25] The appellant testified that he did not know what he was doing when he was kicking Mr. Kearley. He said that he did not believe it was wrong at the time and did not know he was going to kill Mr. Kearley. The appellant had no recollection of the other assaults he committed and did not really remember being arrested or making various statements to police.

Expert Assessments

[26] The court ordered assessment was conducted by a psychiatrist, Dr. Komer. He met with the appellant approximately 20 times during the 60 day NCR assessment conducted in 2008. Dr. Komer found the appellant difficult to assess. He confirmed that the appellant was suffering from schizophrenia and did not think that the appellant was malingering, although he agreed that this was a possibility. He concluded that the appellant’s illness was active at the time he committed the offences. Dr. Komer’s opinion was that the appellant likely appreciated the nature of his acts but lacked an understanding of wrongfulness. He concluded that the appellant was likely NCR on account of his mental disorder when he committed the offences.

[27] Dr. Litman is a psychologist who assessed the appellant as part of Dr. Komer’s clinical team. Dr. Litman conducted two psychometric assessments of the appellant and interviewed him once. Dr. Litman was unable to testify at trial but his report was read in and relied upon by Dr. Komer. Dr. Litman concluded that the appellant was likely not criminally responsible but found that he was malingering psychiatric symptoms.

[28] The Crown sought and obtained a second opinion on criminal responsibility. The assessment was carried out by Dr. Dickey, a psychiatrist. Dr. Dickey met with the appellant three or four times for a total of around two hours. He reviewed the opinions of Dr. Komer and Dr. Litman as well as police files. Dr. Dickey was “unable to conclude that [the appellant] would clearly qualify for a defence of not criminally responsible.” Dr. Dickey acknowledged that he was not far off from Dr. Komer’s opinion. However, he did not see evidence of florid and active symptoms of schizophrenia around the time of the offence that would impact on the appellant’s appreciation of the wrongfulness of his acts. He found that the changing nature of the reported hallucinations of God in the trees, including the form, colour, time and character of the alleged hallucinations strongly supported the conclusion that the appellant was malingering in his post-defence assessments. The appellant had not reported any religious hallucinations in his many statements to police and had not mentioned seeing God in the trees or feeling compelled by God to kill or beat anyone until April 8, almost two months after the offences.

[29] Dr. Wright is a forensic psychologist who assessed the appellant as part of Dr. Dickey’s team. Dr. Wright met with the appellant for 2.5 hours and reviewed case records. Dr. Wright concluded that it was “quite unlikely” that the appellant lacked knowledge of moral wrongfulness of his acts. Dr. Wright opined that the appellant was malingering symptoms of a mental disorder because some of the appellant’s descriptions of his hallucinations were inconsistent.

[30] In his cross-examination of Dr. Wright, defence counsel highlighted a number of records that Dr. Wright had not been aware of when he formed his opinion. These included hospital records showing that the appellant had reported thinking another resident had a knife in the weeks before the offence, reports regarding treatment the appellant had received in the years prior to the offence that emphasized his history of religious preoccupation, hospital records from February 4, 2008 referring to auditory hallucinations and talking to God, medication logs and some of the appellant’s utterances in police custody. Dr. Wright testified that, even with all of this new information, his overall opinion that the appellant was criminally responsible did not change.

[31] As to the appellant having reported that God had directed him, Dr. Wright testified it was unusual that the appellant had a delusion so strong as to compel him to commit these offences and yet, did not remember the specifics of the delusion. Dr. Wright thought that it was unusual that the appellant would be labouring under such a fixed delusion and yet made no mention of the delusion or religious themes whatsoever in the police interviews and statements.

Trial Proceedings

[32] The appellant admitted the actus reus of the killing and the aggravated assault. He argued that he was not criminally responsible by reason of his mental disorder. The Crown admitted that the appellant suffered from a mental disorder but argued that he was criminally responsible and had the necessary mens rea for second degree murder and aggravated assault.

[33] The jury was instructed to accept that the actus reus had been proven and that their task was to determine criminal responsibility on a balance of probabilities standard. They were told that the onus was on the appellant to show that he was NCR. If they found that the appellant did not meet this onus, then the jury was to consider the intent for murder and aggravated assault. That intent had to be established beyond a reasonable doubt.

[34] The jury found that the appellant had not made out a defence of NCR and convicted him of second degree murder and aggravated assault.

ISSUES

[35] There are four issues raised in this appeal:

1. was the verdict reasonable and supported by the evidence?

2. did the trial judge err by failing to adequately instruct the jury on the steps to follow in their analysis and on the proper use of protected statements in that analysis?

3. did the trial judge err by instructing the jury that they could use evidence of alleged malingering to infer that the appellant had the intent to kill? and

4. did the trial judge err by telling the jury that the appellant’s ability to recall the events was relevant in determining whether he was NCR at the time of the offences?

1) Was the Verdict Reasonable and Supported by the Evidence?

[36] Determining whether a person who suffers from a mental illness is criminally responsible for his actions and is capable of having the subjective foresight required to be convicted of second degree murder is, by its very nature, very difficult for juries to assess. In the appellant’s submission, judicial experience has taught us that there are greater risks of miscarriages of justice in cases of this nature making them ripe for appellate review through an assessment of the reasonableness of the verdict.

[37] The Supreme Court of Canada commented on this issue in R. v. Molodowic, 2000 CSC 16, 2000 SCC 16, [2000] 1 S.C.R. 420, at para. 13:

This … is a case in which the weight of judicial experience must be brought to bear on the assessment of the reasonableness, as a matter of law, of the conclusion reached by the jury. There is a real danger, which manifested itself here, that a jury will be unduly sceptical of a “defence” that is often perceived as easy to fabricate and difficult to rebut. This is particularly so when the actions of the accused present a large component of rationality, as they do in a case such as this where it is conceded that the appellant knew what he was doing and realized that his actions were prohibited by law.

[38] In the appellant’s view, the jury’s conclusion in this case was, as it was in Molodowic, the product of an unreasonable verdict.

[39] The appellant argues that on a reasonable assessment of the evidence as a whole, it is clear that the appellant had established on a balance of probabilities that he was not criminally responsible. Any other finding was simply legally unreasonable.

[40] The appellant also points to three errors that compromised the jury’s ability to arrive to a just result, and no doubt contributed to their having reached an unreasonable verdict:

i. the Crown led evidence that was contrary to the agreed facts that the appellant was suffering from a major mental illness (schizophrenia) and that there was no animosity between the appellant and the deceased;

ii. the trial judge’s instructions did not adequately convey to the jury the fact that Dr. Wright’s evidence was minimally probative and entitled to little weight; and

iii. it was inappropriate for the Crown to repeatedly display to the jury the graphic photos of the murder particularly in light of the defence’s admission that the appellant had caused the death of Mr. Kearley.

[41] I will deal with each of these three points in turn.

i. Did the Crown lead evidence contrary to the agreed statement of facts?

[42] Prior to trial, the parties had worked out an agreed statement of facts. It included the fact that the appellant was suffering from a major mental illness (schizophrenia) and that, prior to the offences, there were “no known difficulties or arguments” between the appellant and the victims. The appellant argues that the Crown, in its submissions and in the evidence led at trial, undermined these agreed statements. This would have confused the jury and have suggested to them that the appellant was motivated by animus and, further, that he was a malingerer who did not in fact suffer from schizophrenia.

[43] I do not view the evidence led by the Crown or its submissions to be contrary to or to undermine the agreed statement of facts. I agree that a good deal of evidence was led that suggested that the appellant may be malingering in the sense of exaggerating or feigning particular symptoms of schizophrenia. It was, however, never suggested that he did not suffer from the condition. By stating that the appellant “may have amplified or created symptoms of his mental illness”, the trial judge was not suggesting that the admitted diagnosis was wrong. The issue for the jury was not whether the appellant was schizophrenic; it was whether some of the symptoms he described to the psychiatrist and in his testimony at trial were exaggerated or real.

[44] With respect to the issue of animus, the evidence relied on by the appellant is testimony from a witness who recalled that the appellant had referred to one of the victims as a bum and suggested that the assault may have been over a victim’s refusal to share his cigarettes. This evidence does not contradict the agreed statement of facts. It does not suggest that there were “known difficulties or arguments” prior to the commission of the offences.

[45] There was not, in my view any attempt by the Crown to resile from the agreed statement of facts.

ii. Did the trial judge’s instructions adequately signal the weaknesses associated with Dr. Wright’s evidence?

[46] The appellant argues that, in the course of cross-examination, it was shown that, in preparing his report and reaching his opinion, Dr. Wright failed to take into account important and relevant information. In the appellant’s submission, the trial judge’s instruction was insufficient to protect against the possibility that the jury would place undue weight on Dr. Wright’s evidence. The trial judge’s instruction simply noted for the jury that the appellant had shown that “there were certain facts of which he had not been made aware before when he had formed his opinion. You could determine the weight to be put on that evidence.”

[47] I see no error in the trial judge’s treatment of Dr. Wright’s evidence. The weaknesses in Dr. Wright’s evidence, including his failure to review many psychiatric and medical records, were emphasized in the appellant’s closing arguments and, as noted above, the trial judge cautioned the jury accordingly. In other parts of her charge, the trial judge referenced the appellant’s submission that Dr. Komer’s evidence should be given more weight because of the greater contact he had with the appellant and because he would know the appellant much better than Dr. Wright. No more was requested by trial counsel and no more was required.

iii. The use of the photographs

[48] The Crown initially sought to admit over 600 photos of the crime scene, autopsy and the injuries to the victims. During a pre-trial motion, the appellant challenged approximately 60 of the photos and was successful in having all but three excluded. Ultimately, approximately 200 photographs were filed in a binder as an exhibit at trial.

[49] Several of the photos of the crime scene and of the deceased were graphic, and viewing them may have made the jury uncomfortable. The Crown showed them to the jury four times through various witnesses. In the appellant’s view, there was no reason to do so in light of the appellant’s admission that he had caused the death and, in any event, any relevance was outweighed by the prejudicial impact of showing them to the jury. The appellant argues that the photos would have inflamed and alienated the jury.

[50] The Crown notes, correctly in my view, that there was a ruling that the photographs were relevant and admissible as they allowed the jury to assess the sustained and vicious nature of the attack. This went on the one hand to support the Crown’s position that intent could be inferred from the sustained and purposeful violent course of conduct. On the other hand, it also supported the appellant’s submission that the severity of the aggression was consistent, in Dr. Komer’s view, with the lack of criminal responsibility.

[51] No appeal was taken from the judge’s ruling on admissibility. Further, the trial judge closely monitored the showing of the photos to the jury, ensuring that repetitive showing was limited and that the photos not be displayed on the screen any longer than necessary. While it is unfortunate that the jury was exposed to such violent images, there is no reason to assume that the jury would have been inflamed and would not have applied the law dispassionately, as they were required to.

iv. Was the verdict reasonable?

[52] I acknowledge that there was considerable evidence led at trial tending to show that the appellant was not criminally responsible at the time he committed the offence. He was schizophrenic, his mental health had shown signs of deterioration in the period leading to the offence and some of the experts supported a finding of NCR. Further, Dr. Wright’s contrary opinion was certainly weakened in cross-examination and the jury heard a good deal of evidence suggesting that Dr. Wright’s conclusion that the appellant was malingering was simply wrong.

[53] In other words, a jury could very well have ruled in the appellant’s favour.

[54] However, there was evidence, including expert evidence, going the other way. It was by no means an overwhelming case for either party. Faced with differing expert opinions on the NCR issue, the jury had a difficult decision to make. Nevertheless, it was the appellant’s burden to establish that he was NCR, and the jury was entitled on this record to find that he had not met that burden. The appellant has not shown any error in the trial judge’s careful treatment of the evidence and her charge on this issue. There is no basis for this court to intervene.

2) Instructions to the jury on the steps to follow in their analysis and on the proper use in that analysis of protected statements

[55] This case proceeded as a one stage, blended jury trial. The jury had two principal tasks. First, they had to determine whether, on a balance of probabilities, the appellant had established that he was NCR. If they concluded that the appellant had not met his burden, the jury was then to move on to the second stage of determining whether the appellant had formed the specific intent for murder.

[56] It was incumbent on the trial judge to properly instruct the jury on the distinction between the two steps, including the differences in the onus and burden of proof, and on the evidence that could and could not be used by the jury in reaching their decision on both of these steps. In the appellant’s submission, the trial judge’s instruction did not provide the jury with sufficient guidance on how to carry out its analysis.

[57] Further, the appellant argues that the trial judge erred in her instructions relating to the use that could be made of protected statements made by the appellant to the medical personnel who assessed his mental health. The appellant had made various utterances while on the assessment ordered by the court pursuant to s. 672.11 of the Criminal Code. These statements are deemed to be “protected” by operation of s. 672.21 of the Criminal Code. Although the appellant consented to the admission of these statements for the purpose of assessing whether he was NCR, the appellant argues that this evidence could not be used by the jury in determining whether the Crown had proven intent.

i. The adequacy of the instruction to the jury on the steps of analysis required

[58] The steps of analysis portion of the charge is modelled after the Ontario specimen jury instructions. In her instructions, the trial judge told the jury that they were first to consider the criminal responsibility of the appellant on a balance of probabilities standard, and that on this issue the onus was on the appellant. She reminded the jury that mental disorder was admitted and then explained the law relating to an NCR determination. She also reviewed some of the relevant evidence.

[59] After this review, the trial judge moved to the second stage of considering intent for murder and aggravated assault. The trial judge instructed that here, the onus was on the Crown, and that intent had to be proven beyond a reasonable doubt. The trial judge was careful to ensure that the jury understood that the appellant’s mental condition remained relevant. She told the jury: “Evidence of mental illness or mental disorder, falling short of a finding that he is not criminally responsible, should be considered along with all the other evidence in determining whether Mr. Downs had the intent required for murder ….”

[60] The trial judge’s review of the evidence and guidance as to how the jury should carry out their analysis of the issues was proper and would not, as the appellant suggests, have confused the jury. “So long as the evidence is put to the jury in a manner that will allow it to fully appreciate the issues and the defence presented, the charge will be adequate”: C. Granger, The Criminal Jury Trial in Canada, 2nd ed. (Scarborough: Carswell, 1996), at p. 249, cited with approval in R v. Daley, 2007 SCC 53, at para. 57. In this case, given that intent had to be determined on the whole of the evidence, including evidence of mental condition but excluding the protected statements, it was not an error to mention both criminal responsibility and intent when reviewing particular portions of evidence, as suggested by the appellant. Other than the protected statements, the evidence on mental state was relevant to both issues. Further, the trial judge was careful to give the jury the defence counsel’s theory along with relevant supporting points of evidence highlighted in exactly the form created by defence counsel. This would have helped ensure that the jury understood the appellant’s position as well as the steps required to determine the two legal issues.

ii. The limited use that could be made of protected statements

[61] As set out earlier, utterances made by an accused in the course of a court-ordered assessment pursuant to s. 672.11 of the Criminal Code are presumptively inadmissible at an accused’s trial. The appellant consented to the “protected” statements being admitted for the limited purpose of assessing whether he was NCR. The appellant acknowledges that the trial judge correctly instructed the jury that they could not consider the protected statements to determine whether the appellant had the requisite intent to commit murder. The appellant argues, however, that the trial judge undermined this instruction by telling the jury that they could consider the appellant’s after-the-fact conduct and motive in deciding whether the Crown had proven mens rea. In the appellant’s submission, this instruction, when combined with the Crown’s submission that the appellant was angry, unhappy at the home and was malingering, would have confused the jury. This, the appellant explains, is because the evidence of anger, unhappiness and malingering could, almost exclusively, be found in the protected statements.

[62] I would not give effect to this ground of appeal. Contrary to the appellant’s submission, there is considerable evidence in the record beyond the protected statement that supports the inference that the appellant was unhappy and angry at the home. I also disagree with the suggestion that the Crown relied on the appellant’s malingering to show intent. The Crown did not rely on the protected statements but rather relied on the post-arrest statements and conduct of the appellant, including evidence of malingering, to support its submission that the appellant was aware of his actions as well as their wrongfulness, thereby establishing criminal responsibility. The jury was not told that it could use the appellant’s malingering, months after the offence, to demonstrate intent. To establish intent, the Crown relied principally on the violent nature of the offences as well as utterances made by the appellant that were admitted on consent.

[63] There was no unfairness in the way the Crown sought to use the protective statements or in the trial judge’s instructions. The jury would have understood the limited use to which they could be put.

3) Did the trial judge err by instructing the jury that they could use evidence of alleged malingering to infer that the appellant had the intent to kill?

[64] The appellant submits that in the portion of the charge dealing with post-offence conduct, the trial judge effectively told the jury that the appellant’s post-offence conduct, including the allegation that he was malingering, could be considered in deciding whether the appellant had the necessary intent.

[65] I disagree. There is no mention at all of intent in the brief post-offence conduct instruction. The instruction on post-offence conduct was tailored to the unique circumstances of this case. Some post-offence conduct, including evidence that the appellant was malingering, may have had relevance in deciding the appellant’s NCR defence. In pre-charge submissions, the Crown expressed uncertainty, however, as to whether malingering should be referred to in the charge as an example of post-offence conduct. The trial judge indicated she was grappling with the issue but had determined that it made “some sense” to put it there. Defence counsel agreed with the proposed instruction, interjecting as follows:

It makes absolute sense because the Crown’s theory is that my client, as a result of the death of Mr. Kearley, malingered, so that he could get out of going to prison. He’s made that very clear throughout his case and his closing to the jury. That is post-offence conduct, so that is exactly where it should be, your honour.

[66] The instruction was appropriate in the circumstances and would not have resulted in the jury improperly using the post-offence evidence of malingering to infer the intent for murder.

4) Did the trial judge err by telling the jury that the appellant’s ability to recall the events was relevant in determining whether he was NCR at the time of the offences?

[67] In her charge to the jury, the trial judge instructed the jury that if they believed the appellant when he stated that he did not remember and was not conscious of hitting, punching and kicking the victims, in combination with the other evidence they accepted, the appellant would not be capable of appreciating the nature and quality of his actions and they must find him NCR on account of mental disorder. That was clearly wrong. The Crown properly requested a recharge to clarify that the ability to recall the events at a later date was not relevant. Consciousness at the time of events was, however, relevant to the appellant’s ability to appreciate the nature and consequences of his actions. For that reason the trial judge recharged the jury as follows:

As an example, if you believe [the appellant], that he does not remember and was therefore not conscious of hitting, punching, kicking or stomping Mr. Kearley or Mr. De Bortoli, at the time he did those actions, as a result of his mental disorder, in combination with the other evidence you accept, he would not be capable of appreciating the nature and consequence of his actions, then you must find [the appellant] not criminally responsible on account of mental disorder, your deliberations would be over.

Defence counsel agreed that the original charge had been an error and did not object to the proposed re-charge.

[68] On appeal, the appellant argues that, because the various statements made to the police and others on the day of his arrest showed that the appellant was able to recall the events immediately after they happened and that he was also able to recall the events during some of the assessments carried out in the ensuing months, the trial judge erred in her recharge. She should have said that the appellant’s ability to recall his actions was irrelevant in assessing the applicability of the NCR defence. In the appellant’s submission, if the jury understood that the inability to remember was a prerequisite to the appellant being able to avail himself of the defence of NCR, the recharge might have been relied on by the jury to reject the NCR defence.

[69] I acknowledge that a better example could have been selected. However, in my view there is no unfairness or disadvantage to the appellant in the recharge. Contrary to the appellant’s submission, the example did provide a basis on which the jury could find the appellant NCR. The appellant testified that he was not in control of his body at the time of the offences and could not recall the details of the killing or anything at all about the beating of the other man. In common sense terms, this evidence, if accepted by the jury, could have been interpreted as the appellant not being conscious or remembering much of what he did at the time of the offence, and therefore, that the appellant lacked the capacity for rational choice or understanding. If so, the jury could well have concluded that the appellant was NCR.

CONCLUSION

[70] This was not an overwhelming case for either party. Assessing mental disorder, capacity and intent is not a science and the lines defining them are not black and white. The jury was given the responsibility of sorting through conflicting impressions, subjective opinions and differing perspectives on what the appellant was thinking and why. The trial judge did an admirable job in her handling of the trial. The instructions she gave to the jury equipped the jurors for their task, and their conclusion was available on the evidence.

[71] For these reasons, I would dismiss the appeal.

“Paul Rouleau J.A.”

“I agree J.C. MacPherson J.A.”

“I agree G. Strathy J.A.”

Released: January 13, 2014