COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smith, 2014 ONCA 324

DATE: 20140425

DOCKET: C51732

Laskin, Rosenberg and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael James Smith

Appellant

Mark Halfyard and Victoria Rivers, for the appellant

Andreea Baiasu, for the respondent

Heard: October 30, 2013

On appeal from the conviction entered on June 24, 2009 by Justice Peter B. Hockin of the Superior Court of Justice, sitting with a jury.

Laskin J.A.:

A. Overview

[1] The appellant Michael Smith was convicted of the first degree murder of his estranged wife Eugena Smith.

[2] The appellant and his wife were married in 2000 and had a daughter who was born in 2003. By early 2007, however, the marriage had broken down. On June 3, 2007, Eugena asked for a "legal separation." Four days later, in the early morning of June 7, the appellant went to her house unannounced and strangled her to death while she lay sleeping in bed with their daughter.

[3] The Crown's theory was that the appellant was obsessed with getting Eugena back and that if he could not be with her, then no one could. He went to her house to have sex with her one last time and then to kill her.

[4] The appellant testified that he went to see Eugena to talk to her about a Facebook message she had sent a few hours earlier. She "freaked out" when he woke her up. So, he put his hand on her mouth to quiet her while he rocked the bed to lull their daughter back to sleep. Three or four minutes later, he realized his hand was on Eugena's throat and she was dead. Distraught, he took their daughter to his parents' house, returned to Eugena's house, and then after trying to commit suicide, had sex with her dead body.

[5] The trial judge instructed the jury that they could find the appellant guilty of first-degree murder on any one of three bases: the appellant's murder of his wife was planned and deliberate (s. 231(2) of the Criminal Code); the appellant murdered Eugena while committing the offence of criminal harassment (s. 231(6) of the Criminal Code); or the appellant murdered Eugena while sexually assaulting her (s. 231(5)(b) of the Criminal Code).

[6] The appellant advances three grounds of appeal. His first and principal ground is that a verdict of first degree murder under either s. 231(2) or s. 231(6) of the Code would be unreasonable because the evidence does not support a finding of planning and deliberation or criminal harassment. Although a finding of first degree murder under s. 231(5)(b) was supportable, we do not know on which of the three bases the jury convicted the appellant. Accordingly, the verdict of first degree murder cannot stand.

[7] Second, the appellant argues that the printed "decision tree" given to the jurors was misleading because it misstated the elements of criminal harassment. Third, the trial judge erred by failing to give a proper W.(D.) instruction on the burden of proof and the assessment of the appellant's evidence. The appellant asks that we set aside his conviction and either order a new trial or substitute a verdict of second degree murder.

[8] The Crown responds that the verdict of first degree murder was reasonable on any of the three bases left with the jury, but was especially compelling under s. 231(5)(b), as the evidence was overwhelming that the appellant murdered Eugena while committing a sexual assault. The Crown further says that the decision tree did not mislead the jury because they were told that it did not state the elements of any offence, but was given to them merely as a flow chart to aid their deliberations. Finally, the Crown says that the trial judge properly explained to the jury the Crown's burden of proof and how to assess the appellant's evidence. The Crown asks that the appeal be dismissed. If, however, the appellant succeeds on any of his grounds of appeal, the Crown seeks a new trial on first degree murder.

B. Relevant Background Evidence

(a) The parties' marriage and its breakdown

[9] The appellant and Eugena met in 1998, married in 2000, and had a daughter, Jaydn, in 2003. In 2006 they bought a house at 9 Balaclava Street in St. Thomas. However, soon after, the marriage began to unravel. In January 2007, Eugena asked the appellant to move out, which he did. He blamed the separation on his co-worker Tim Veal, who he suspected was having an affair with Eugena.

[10] One-and-a-half months later, Eugena asked the appellant to move back home, but soon asked him to leave again because she could no longer trust him. On March 9, they signed a separation agreement. The agreement named Eugena the primary caregiver for Jaydn.

[11] Although the appellant rented an apartment, he spent a fair amount of time at 9 Balaclava. He described himself as "Mr. Mom" – he did household chores and prepared meals while Eugena worked.

(b) The appellant's Facebook profile

[12] The appellant was increasingly anguished about the separation. So, he created a Facebook profile under a pseudonym, Jeremy Spencer, whom the appellant portrayed as a recently divorced man, to find out "what [Eugena] felt." After Eugena accepted Spencer's "friend request" he sent her a message asking for relationship advice. They then exchanged several messages. Through his profile on Facebook, the appellant could read Smith's comments about her intention to leave him. Eugena figured out the Facebook ruse and told her friends that the appellant was using the name Jeremy Spencer to get information about her.

(c) June 3-7, 2007

[13] On June 3, Eugena told the appellant that she wanted a "legal separation." After she told him, he sent her several text messages. In the last one he said "Finally had a good cry. Goodbye my love."

[14] However, Eugena was not convinced the appellant had accepted that their marriage was over. On June 4, she wrote "Spencer" a Facebook message saying, "Told him last night the separation is what I need to do, make it official. He is convinced he will wait for me to come around."

[15] On June 6, the appellant was at 9 Balaclava all day. He left around 10:00 p.m. Eugena's brother came over that day as well. He was planning to move in with his sister to share expenses.

[16] On June 7 at 2:32 a.m., Eugena posted her last message to Jeremy Spencer. The message ended with some pointed advice: "DON'T PUSH her. Step back – live YOUR life for a while. …U R trying too hard!!! Take charge of U and YOUR life Not HER LIFE!"

[17] The appellant read the message at 4:25 a.m. on June 7. He then went to 9 Balaclava, let himself in the back door and climbed into the bed where Eugena and Jaydn lay sleeping. Eugena woke up and "freaked out," so the appellant put one hand on Eugena's mouth and the other on her neck to prevent her from waking Jaydn. However, he testified that Jaydn woke up and he told her, "it's okay I just want to talk to mommy … lay down, go back to sleep." The appellant said that he rocked the bed with his hips to help Jaydn fall asleep. Three or four minutes later he realized Eugena was dead.

[18] The appellant took Jaydn out of the bedroom and drove her to his parents' house. He testified that he then returned to 9 Balaclava and tried to commit suicide by ingesting Benadryl, Tylenol, Robaxisal, and Toradol tablets. He said that he thought he was dying so he decided to "make love" to Eugena one last time.

(d) The Crime Scene and the Forensic Evidence

[19] At 6:40 a.m. on June 7, two police officers entered 9 Balaclava. They found Eugena and the appellant lying naked in bed. Eugena did not have a pulse; the appellant was breathing, but appeared unresponsive. He was holding a cell phone in his hand, later determined to be Eugena's cell phone, which he had used to make several phone calls.

[20] The forensic examination of Eugena showed blood in her genital area and on her inner thighs. Dr. Shkrum, the forensic pathologist who performed the autopsy, concluded that the cause of death was strangulation through pressure applied to the neck. However, he could not identify the mechanism by which the neck was compressed. He did say, though, that a scenario in which the perpetrator strangled the victim by placing one hand on her mouth and another hand just below her head would not account for the injuries on the neck.

[21] Dr. Peck from the Centre of Forensic Sciences testified about his analysis of bodily fluids and DNA. Swabs from Eugena's vagina and external genitalia contained both blood and semen. The rectal swab also contained blood, and though it was not positive for semen, it was positive for the chemical P30, which is found in semen and only rarely in non-semen samples.

[22] The appellant's DNA was found on the oral swab taken from inside Eugena's mouth. Eugena's DNA was found in the blood on the appellant's penis and on the inside fly of his jeans.

(e) The Hospital Examination of the Appellant

[23] As the appellant appeared unconscious when the police arrived at 9 Balaclava, he was taken to the emergency room of the local hospital. The doctor who first examined him said that though the appellant was initially unresponsive, within minutes he became fully conscious.

[24] Throughout the morning, three doctors examined the appellant. None believed his life was ever at risk. His blood tests showed only modestly elevated levels of Tylenol, and there was no evidence of an overdose on any other medication.

C. Analysis

First Issue: Does the evidence support a finding of planning and deliberation or criminal harassment?

[25] The appellant submits that a finding of first degree murder under s. 231(2) or s. 231(6) of the Criminal Code would be unreasonable because there was no evidence to support a finding of planning and deliberation or criminal harassment. The Crown submits that there was ample evidence to support either finding.

[26] The test for an unreasonable verdict is well established. Here, the appellant must show that a properly instructed jury, acting judicially, could not reasonably have rendered a verdict of a planned and deliberate murder or a murder while committing the offence of criminal harassment.

[27] Two points relevant to this appeal flow from this test. First, the reasonableness of the verdict has to be assessed on the evidence as a whole. And, second, though the appellant can point to innocent explanations for individual pieces of evidence, he cannot succeed on this ground of appeal if competing explanations are available from which one can reasonably infer planning and deliberation or criminal harassment.

[28] I now turn to the two specific questions raised under this ground of appeal.

(1) Does the evidence reasonably support a finding of planning and deliberation?

[29] Under s. 231(2) of the Criminal Code, a murder that is planned and deliberate is a first degree murder. Planned means that the accused must have a previously formulated scheme; deliberate means slow in deciding, cautious, not impulsive. The accused's plan need not be complicated but if the murder is committed on sudden impulse without consideration, it will not be a planned and deliberate murder, even though it is an intentional killing.

[30] The appellant submits that the evidence does not reasonably support a finding that his killing of Eugena was planned and deliberate. Far from planning to kill his wife, he wanted to get back together with her. When he read her Facebook message in the early morning hours of June 7, he wanted to go over and discuss it with her, hoping that their discussion would lead to reconciliation.

[31] That is perhaps one view of the evidence. However, a far more reasonable view is that the appellant's murder of Eugena was indeed planned and deliberate. After Eugena asked for a separation, the appellant became obsessed with getting her back. He was also sexually obsessed with her. And he was tormented by her suspected affair with his co-worker Tim Veal. His torment escalated when Eugena asked for a final separation. The appellant then realized that the marriage he desperately wanted to save was over. He could not bear losing Eugena. He decided that if he could not be with her, no one could. He drove over to her house in the early morning of June 7 to have sex with her one final time and then to murder her.

[32] The following list of considerations and supporting evidence, viewed cumulatively, reasonably support the inference that the appellant's murder of his wife was planned and deliberate.

(a) After Eugena asked for a separation in January 2007, the appellant was obsessed with getting her back. He called Eugena's father and aunt, with increasing frequency, to talk about his marriage and how to make it work. As late as June 2, he asked Eugena's friend Deanna Mizon if she had any ideas about how to get Eugena back.

The appellant also went on Facebook using a pseudonym, Jeremy Spencer, to see if he could secretly find out how Eugena felt about him. After she accepted his "friend" request, they exchanged Facebook messages in which, under the guise of seeking relationship advice, the appellant tried to find out Eugena's feelings about their separation.

(b) The appellant was sexually obsessed with Eugena. He admitted to Deanna Mizon that after he separated from Eugena he went back to the house and peeked under the covers as she was sleeping. He kept photos of Eugena, semi-naked. And he made remarks to an acquaintance that showed his obsession with Eugena's appearance.

(c) The appellant was tormented by Eugena's suspected affair with Tim Veal. He told Eugena's father that he had access to phone records and could tell whether Eugena had called Tim or he had called her. He tried to install a key logger on her Mac computer so he could monitor her emails. And he exchanged several MSN messages with Tim Veal about his interference in the marriage. In one of the messages, the appellant lamented that he could not trust Eugena anymore.

(d) The appellant became increasingly depressed and desperate about his situation after Eugena told him on June 3 that she wanted a final separation. In addition, Eugena's brother testified that he told the appellant that he was moving in with her – a development about which the appellant was unhappy. On June 6, the appellant told Eugena's father that he could not take it anymore and was driving around feeling very down. He phoned Eugena's aunt to tell her how depressed he was because Eugena had made a final decision and there was no hope for their marriage. He did not know how he could live without her.

(e) The appellant made several statements in the days leading up to June 7, probative of both planning and deliberation. He told Eugena that he could murder someone using a lethal, yet untraceable, mixture of nicotine and caffeine. Eugena told her friend that she interpreted this as a threat that the appellant could kill himself, or her. When she told the appellant on June 3 that she wanted a final separation, he texted her that he wished they could be together one more time.

He told Deanna Mizon, "Eugena wants her life private and I don't want to lose Jaydn. I don't know what I would do to her." On the morning of June 6, he sent Ms. Mizon a Facebook message from Jeremy Spencer, "I don't want to be doing this but don't want to just make a person disappear. What do you suggest?" And on the morning of June 7, he called Eugena's father and said simply, "this is goodbye".

(f) Although Eugena's Facebook message sent in the early morning of June 7 in substance told the appellant to "back off", he nonetheless went over to her house after he read it. He did so unannounced, climbed into Eugena's bed while she was sleeping, and put one hand on her mouth and the other on her throat.

(g) The appellant made two statements around the time of Eugena's death that were also probative of planning and deliberation. Right after killing Eugena, he called her aunt and said "I wish I could have been stronger. I listened to my mind. Eugena is dead." He used Eugena's cell phone to unsubscribe her from Tim Veal's status updates on Facebook, and drafted a text message saying, "don't count on hearing from either of us again." Although the appellant contends that conduct after a killing cannot support an inference of planning and deliberation, common sense and case law suggest otherwise: see R. v. Poitras (2002), 2002 23583 (ON CA), 57 O.R. (3d) 538 (C.A.); and R. v. Penney, [2004] O.J. No. 5914 (S.C.).

(h) Months after the killing, while in custody at the Royal Ottawa Hospital, the appellant made a statement to nurses, suggestive of a planned and deliberate murder. He said, "I know I probably shouldn't say this, but like the thought of choking someone and having sex with them makes me horny, but I feel like I'm betraying my wife's memory."

[33] From all of this evidence, a jury could reasonably infer that the appellant's murder of his wife was planned and deliberate. Therefore, a verdict of first degree murder on the basis of planning and deliberation would not be unreasonable.

(2) Does the evidence reasonably support a finding of criminal harassment?

[34] To obtain a conviction for first degree murder under s. 231(6) of the Code, the Crown had to prove beyond a reasonable doubt the underlying offence of criminal harassment under s. 264, and the added mental element under s. 231(6). Section 264 has two branches: the Crown had to show that the appellant engaged in harassing conduct by repeatedly following or communicating with Eugena, or watching her or engaging in threatening conduct towards her; and that this harassing conduct caused her to fear for her safety. Section 231(6) required the Crown to show that the appellant intended to cause Eugena to fear for her safety.

[35] The first branch of s. 264 is not contentious. The appellant monitored Eugena's phone calls, tried to install tracking devices on her computer, tried to break into her email and MSN accounts, used a pseudonym on Facebook to communicate with her, and even went to her house at night to look at her under the covers while she was sleeping. This was unquestionably harassing conduct.

[36] However, the appellant submits that there was no evidence to support a finding under the second branch of s. 264 because Eugena was unaware of most of his harassing conduct. Moreover, he argues that his conduct did not cause her to fear for her safety because she allowed him to work at the house, did not ask for his house key back, and continued to exchange messages with him on Facebook, knowing that he was Jeremy Spencer.

[37] I do not agree with this submission. The evidence of Eugena's girlfriends shows that Eugena was well aware of much of the appellant's harassing conduct and that this conduct worried, upset, and scared her. That she did nothing about it, continued to communicate with the appellant, let him come to the house, and even let him work there, is, as the appellant argues, open to the inference that she did not fear for her safety. But this evidence is open to the competing inference that though Eugena feared for her safety, she was even more fearful the appellant would do something drastic if she pushed him further away.

[38] A most telling piece of evidence is her conversation with her friend Amanda Harding just days before she was killed. She told Ms. Harding of the appellant's threat he could kill someone with a lethal mixture of caffeine and nicotine. Eugena was crying and upset when she related the appellant's threat to Ms. Harding. She was afraid that if she left the appellant, he would kill himself, or her.

[39] I am satisfied that the jury could reasonably infer from the evidence that the appellant's harassing conduct caused Eugena to fear for her safety.

[40] That leaves the added mental element under s. 231(6). The appellant contends that there was no evidence from which the jury could infer he intended to cause Eugena to fear for her safety. I do not agree with the appellant's contention.

[41] The case law shows that a single act can amount to criminal harassment: see R. v. Kosikar (1999), 1999 3775 (ON CA), 138 C.C.C. (3d) 217 (Ont. C.A.), at para. 26, leave to appeal to S.C.C. refused, [1999] S.C.C.A. No. 549. By extension, the added mental element in s. 231(6) of the Code can also be inferred from a single act. That single act occurred in the early morning of June 7, 2007. Eugena's Facebook message to Jeremy Spencer told the appellant not to push her; to step back; to take charge of his life, not hers. Yet on reading this message, the appellant went to Eugena's house in the middle of the night, did not tell her he was coming, and climbed into her bed while she was sleeping. From this evidence, the jury could reasonably infer that the appellant intended to cause his wife to fear for her safety and that he realized his actions would do so. That she did fear for her safety is borne out by his testimony that "she freaked out." That she was right to be afraid is borne out by the appellant's response to her reaction: he put one hand on her mouth and the other on her throat.

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

Second Issue: Did the decision tree mislead the jury?

[43] The trial judge gave the jurors a printed decision tree to take with them to the jury room during their deliberations. The decision tree specified that to decide whether the appellant was guilty of first degree murder under s. 231(6), the jury had to answer two questions. First, did the appellant commit the offence of criminal harassment? If the answer to this question was yes, did the appellant murder Eugena Smith while committing the offence of criminal harassment?

[44] The appellant submits that what was missing from the decision tree was the added element the Crown must prove to convict him under s. 231(6) of the Code: that he intended to cause Eugena to fear for her safety. The appellant argues that the trial judge's instructions in his charge did not compensate for this shortcoming in the decision tree, especially as the charge was given orally, while the decision tree was printed and available to the jurors during their deliberations. The appellant points out defence counsel at trial objected to the omission in the decision tree of a question on the mental element under s. 231(6), but the trial judge refused to add this question.

[45] I would not give effect to the appellant's submission. Twice, the trial judge told the jury that the decision tree was merely a flow chart to aid their deliberations, that it did not contain the elements of the offences, and that he would instruct them on those elements. He said:

Now this is sort of a flowchart and it may be an assist for you when you go back to your room. Now, I am going to come in a moment to discuss the essential elements of the definition of murder and first degree murder. What this document does not do is define that for you. So, do not think that, in these questions, is what this case is all about, it is simply a flow. Do you understand that? I will discuss, in a moment, unlawful act, the intention for murder, sexual assault and harassment and so forth in some detail. You can see looking at the document the detail is not there but you must incorporate completely the definitions as I give them to you. Life in this case is not so simple as to think you can simply answer these questions. It helps you go through it but it does not give you the essential elements, the meaning of the essential elements of murder, planning and deliberation, sexual assault, series of events and so on and so forth. Understood? Okay.

[46] And then later in this charge he returned to the decision tree:

Now the decision tree, to go back to it, is a helpful guide and will provide a framework for the step-by-step process which I tell you you should follow at arriving at a verdict in relation to Mr. Smith. To repeat, however, it does not contain the essential elements. I have defined those for you. That is what I have been talking about for the last hour-and-a-half or so. To repeat, this is not meant to be, this charge, in any sense a test of your memory. If you wish that I repeat something later then you can ask that in the form of a question or instruction on a piece of paper, written and handed to Madam Constable and I am happy to oblige.

[47] In addition, at least three times in his charge, the trial judge instructed the jury on the mental element the Crown must prove under s. 231(6). For example, he told them:

And finally, it must be established beyond a reasonable doubt that the accused knew that Eugena Smith was harassed and he intended or meant her to fear for her safety. All of these elements of the offence must be established beyond a reasonable doubt.

[48] Finally, in a brief recharge on criminal harassment, at the defence's request, the trial judge reminded the jury that the appellant testified he went to see his wife in the early morning of June 7 to discuss her Facebook message. This recharge reinforced the appellant's position that he had no intention of harming or scaring Eugena.

[49] For these reasons, I conclude that the decision tree did not mislead the jury. Accordingly, I would not give effect to this ground of appeal.

Third Issue: Did the trial judge err by failing to give a proper W.(D.) instruction?

[50] The Supreme Court of Canada's judgment in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, has likely been cited more often than any other case in Canadian criminal law. In that judgment, at p. 758, Cory J. proposed a three-step formula for assessing credibility:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[51] The purpose of this formula is to ensure that triers of fact – judges and juries – apply the reasonable doubt standard and do not find an accused guilty because they prefer the evidence of the Crown to that of the accused.

[52] Many judges recite the W.(D.) formula word for word in their jury charges. However, as recent case law has shown, a precise incantation of the W.(D.) formula is not required. What is required is that, in their charges, judges explain the substance of W.(D.) to the jury.

[53] The trial judge in this case did not give a standard W.(D.) instruction to the jury. Although acknowledging that a standard instruction was not necessary, the appellant nonetheless submits that the instructions the trial judge did give did not convey the substance of W.(D.) to the jury. They did not, the appellant contends, explain the second and third steps in W.(D.), and in particular, did not explain how the jury should assess his evidence.

[54] I do not agree with the appellant's submission. This case did not lend itself to a standard W.(D.) instruction, because even if the appellant's evidence raised a reasonable doubt, he was not entitled to an acquittal. In his evidence, he acknowledged that he strangled his wife. Thus, at the very least, even on his own evidence that he did not do so intentionally, he was guilty of manslaughter.

[55] The trial judge recognized the inapplicability of a standard W.(D.) instruction and therefore appropriately decided the substance of W.(D.) had to be explained differently to the jury. The trial judge did this in two ways.

[56] First, he instructed the jury on the presumption of innocence and the Crown's burden to prove the case against the appellant beyond a reasonable doubt. In doing so, he expressly told the jury that "rejection of the accused's evidence is not evidence of guilt":

In this case Mr. Smith gave evidence and so I have this instruction for you with respect to his evidence from the witness box. When he gave evidence he was under no obligation to do so. However, when a person charged with a crime gives evidence he is no different from any other witness. My earlier instruction on how you may approach the assessment of a witness on credibility and reliability applies with equal force to the evidence of the accused from the witness box. Like other witnesses, you may believe some, none or all of what he said. In other words, you will consider the evidence of Mr. Smith by applying the same approach to his credibility as you will with the other witnesses. I remind you, however, that there is no obligation on the accused to prove anything whether the accused gives evidence or not. Rejection of the accused's evidence is not evidence of guilt. The obligation is always on the Crown to prove its case beyond a reasonable doubt.

[57] The trial judge then elaborated on how to assess the appellant's evidence and on the Crown's burden of proof:

Issues of credibility and the proper inferences to be drawn arise between the Crown and the accused in this case. In arriving at your verdict you should know that your obligation does not include having to make the choice of accepting the Crown evidence or the defence evidence. The reason for that is this. An either or approach might exclude the possibility that you may not accept as true the defence but from that evidence be left, nonetheless, with a reasonable doubt. The either or approach may exclude the legitimate possibility that the events of June 6th and 7th occurred in a different way [than] has been suggested by the Crown or by the defence. The issue is not which version is true but whether, on all the evidence including the evidence of the accused and Dr. Booth, the Crown has proved beyond a reasonable doubt the offence charged.

[58] This passage captures the purpose and substance of W.(D.): the jury is not to reach a verdict by deciding whether they prefer the Crown's evidence or the appellant's evidence; rather, the Crown must prove on all of the evidence that the appellant is guilty beyond a reasonable doubt.

[59] Second, the trial judge instructed the jury on the substance of the first two steps in W.(D.) as he instructed them on the specific counts in the indictment. For example, on whether the murder was planned and deliberate, the trial judge told the jury that if they accepted the appellant's evidence that there was no planning or deliberation, or were left with a reasonable doubt by that evidence, they must find the appellant not guilty of a planned and deliberate first degree murder:

If you are satisfied beyond a reasonable doubt that the murder of Eugena Smith was both planned and deliberate you will have found the accused guilty of first degree murder and your deliberations will be at an end. You will have answered the question in box 3, yes. If you find planning and deliberation, as I have instructed, you answer yes, then you have found the accused guilty of first degree murder, in that event your deliberations are at an end.

However, if you accept the accused's evidence of no plan and deliberation or it leaves you with a reasonable doubt or, on all the evidence including of course his evidence and Dr. Booth's evidence, you are not satisfied beyond a reasonable doubt that the Crown has established planning and deliberation, you will have answered the question at box 3, no, that is in the negative and you will then continue to box 4, to the next step in other words, to the Crown's allegation of murder in the course of or while committing a sexual assault upon Eugena Smith. Are you with me?

[60] Similarly, the trial judge instructed the jury that if they accepted the appellant's evidence that he did not kill his wife while sexually assaulting her or were left with a reasonable doubt by that evidence, they must find him not guilty of first degree murder on that basis:

I would have thought that if you should find as a fact that either the accused strangled Eugena Smith while having sex with her or that he killed her with the idea or intention that he would return to have sex with her [then] you will have answered questions 4 (a) and (b) in the affirmative and found the accused guilty of first degree murder. It goes without saying that if you find that there was no sexual assault then he is not guilty of first degree murder. I spent most of the time in this charge talking about whether a sexual assault occurred during the course of, or while committing, or was part of a series of events.

However, if you accept as true, the accused's evidence that the sex occurred only once and the decision to have sex was made after he realized he might die or this evidence leaves you with a reasonable doubt that the killing and sexual assault were one transaction, then you will have answered box 4 in the negative and you will then move onto … the final two questions in box 5. Let me repeat that. I will go through those two statements again so that you have them straight.

[61] The trial judge omitted – I expect inadvertently – to give a similar instruction on the charge of first degree murder by criminal harassment. However I am satisfied that from the instructions I have outlined in this section of my reasons, the jury would have understood that if the appellant's evidence left them in a reasonable doubt about whether he criminally harassed Eugena or intended to cause her to fear for her safety, they must find him not guilty of murdering his wife while committing the offence of criminal harassment.

[62] I conclude that the trial judge adequately explained the substance of W.(D.) to the jury. He correctly instructed them on the assessment of the appellant's evidence and on the Crown's burden of proof. Therefore, I would not give effect to this ground of appeal.

D. Conclusion

[63] I would dismiss the appeal. The evidence reasonably supported a finding of first degree murder on the basis of a planned and deliberate murder or a murder while committing criminal harassment, as well as murder while committing sexual assault. Further, the decision tree given to the jurors was not misleading. Finally, the trial judge properly instructed the jury on the burden of proof and the assessment of the appellant's evidence.

Released: April 25, 2014 ("M.R.")

"John Laskin J.A."

"I agree. M. Rosenberg J.A."

"I agree. Gloria Epstein J.A."