COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rodgerson, 2014 ONCA 366

DATE: 20140508

DOCKET: C56484

Doherty, Feldman and MacPherson JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Rodgerson

Appellant

Catriona Verner, for the appellant

Megan Stephens, for the respondent

Heard: December 11, 2013

On appeal from the conviction entered by Justice J. Bryan Shaughnessy of the Superior Court of Justice, sitting with a jury, on October 28, 2011, and the sentence imposed on December 6, 2011.

Doherty J.A.:

I

[1] The appellant was charged with first degree murder and convicted of the included offence of second degree murder. The trial judge imposed a sentence of life imprisonment without eligibility for parole for 14 years. The appellant appealed his conviction and sentence.

[2] For the reasons that follow, I would hold that the trial judge misdirected the jury on the use it could make of the appellant’s post-offence conduct. The error is fatal to the conviction. I would order a new trial on the charge of second degree murder. I do not reach the sentence appeal.

II

[3] The appellant killed Amber Young. The two met at a bar and several hours later walked to the house where the appellant lived. Both were intoxicated. Ms. Young had also consumed various prescription drugs. According to the appellant, Ms. Young gave him some ecstasy while they were at the bar. He also smoked marijuana at the bar.

[4] The appellant’s roommate arrived at the house shortly after the appellant and Ms. Young. He described the appellant and Ms. Young as “stoned”. The appellant made a gesture to the roommate indicating he hoped to have sexual intercourse with Ms. Young. The roommate left the house and did not return until around noon the next day.

[5] The appellant testified. His version of the events that occurred after his roommate left provided the basis for the defences advanced at trial and can be summarized as follows.

[6] Shortly after the roommate left, the appellant and Ms. Young had consensual intercourse in the living room. A short time later, they went into the bedroom to continue their sexual activity. While in the bedroom, Ms. Young repeatedly referred to the appellant owing her $5. The appellant responded by referring to Ms. Young as a “whore”. She became incensed and attacked him with a knife, striking him at least twice. The appellant punched Ms. Young in the face and she fell backward. He tried to escape the bedroom but could not get the door open. Ms. Young renewed her attack. She stabbed the appellant in the back more than once. They grappled and fell to the floor. The appellant managed to get on top of Ms. Young and reached across her body, grabbing the wrist of the hand in which Ms. Young was wielding the knife. Although the appellant did not realize it, his arm pressed down on Ms. Young’s neck, nose and face, inadvertently cutting off her air supply. She quickly lost consciousness and died. The appellant thought Ms. Young had passed out and he tried to drag her outside, but he became sick to his stomach and eventually passed out in the bathroom.

[7] The appellant awoke the next day around noon and discovered that Ms. Young was dead. After speaking to his roommate, the appellant decided to get rid of Ms. Young’s body and clean up the house. He testified he was still impaired from the night before. The appellant was concerned that he could be blamed for Ms. Young’s death. His roommate did not want the police around the house because he feared that they would discover the marijuana he and the appellant were growing in the basement.

[8] That evening under the cover of darkness, the appellant buried Ms. Young face down in a shallow grave he had dug in the backyard behind the garage. The appellant stripped off Ms. Young’s clothing and jewellery and poured bleach he had purchased earlier that day over her body. He testified that he used the bleach to cover the smell from the body.

[9] Over the next two days, the appellant made extensive efforts to clean up the blood in the house and remove anything from the house that might be connected to Ms. Young or to the homicide. Despite his efforts, the police discovered a great deal of forensic evidence when they examined the scene.

[10] I will not review the forensic evidence in detail, although I will refer to some of it when considering the argument that the trial judge erred in his instructions to the jury on the potential evidentiary value of the appellant’s post-offence conduct. It is sufficient for present purposes to observe that the Crown and defence urged the jury to take very different views of that evidence, especially when considered in combination with the evidence of the pathologist who performed Ms. Young’s post-mortem examination.

[11] The defence argued that the forensic evidence was consistent with the appellant’s description of a short altercation in the bedroom near the door, during which he was attacked and stabbed by Ms. Young, punched her once in the face, and while attempting to defend himself against the attack, inadvertently smothered Ms. Young by placing his arm across her nose and mouth.

[12] The Crown argued that the forensic evidence supported a finding that there had been a violent bloody struggle in the bedroom and possibly in the living room. Ms. Young’s blood was located at several places within the bedroom. The Crown argued that the forensic evidence established that she must have been struck several times at different places in the bedroom. Two bloody handprints belonging to Ms. Young found near the floor on the wall of the bedroom suggested that she had been on the floor or on her knees when she pressed her bloody hands against the wall.

[13] The Crown also contended that although the pathologist could not isolate a specific cause of death, his post-mortem examination revealed that Ms. Young had extensive head and facial injuries. The pathologist testified that Ms. Young was struck in the head and face more than twice.

[14] The appellant’s roommate spoke to the police about two days after Ms. Young’s death. After speaking to the roommate, the police went to the appellant’s house to execute a search warrant for drugs. When they arrived, the appellant fled, but was quickly captured. At trial, he indicated that he ran from the police because he thought they were intruders who were at the house to steal the marijuana he and his roommate were growing.

[15] One of the arresting officers testified that as the appellant was being subdued, he said, “I didn’t do it, it wasn’t me.” The appellant denied making that statement.

[16] The appellant later gave a statement to the police in which he denied any involvement in Ms. Young’s death and suggested that his roommate may have been involved. The appellant admitted in his evidence that he lied to the police in his statement.

[17] At trial, the Crown took the position that the appellant was guilty of first degree murder under s. 231(5) of the Criminal Code. The Crown argued that the appellant had murdered Ms. Young in the course of committing or attempting to commit a sexual assault and/or a forcible confinement.

[18] It was the appellant’s position that he acted in self-defence. This position was advanced primarily through the appellant’s own description of the relevant events. Defence counsel also elicited evidence that Ms. Young, who was about the same size as the appellant, could be a very violent person when intoxicated. In addition to the self-defence claim, the appellant argued that he had not intended to kill Ms. Young or cause her bodily harm that he knew was likely to cause death. The appellant maintained that Ms. Young’s death was accidental, both in the sense that he had not meant to put his arm across her nose and mouth and interfere with her breathing, and he had not intended to kill her or cause her bodily harm that was likely to cause her death. The trial judge also put the defence of provocation to the jury.

[19] The verdict of not guilty of first degree murder but guilty of second degree murder indicates that the jury was not satisfied that the Crown had proved that the appellant murdered Ms. Young in the course of committing or attempting to commit sexual assault or unlawful confinement. The Crown does not appeal from that acquittal.

[20] The conviction on the charge of second degree murder indicates that the jury was satisfied that the Crown had proved that the appellant had killed Ms. Young with one of the culpable states of mind described in s. 229(a). The jury was also satisfied that the Crown had negated the defences of self-defence and provocation.

III

[21] The appellant advanced four grounds of appeal. All arise out of the trial judge’s instructions. Three relate to the instructions on the issue of the intent necessary for murder and one targets the instructions on self-defence.

A: The Instruction on the Intent Required under Section 229(a)(ii)

[22] Counsel for the appellant submits that the trial judge misstated the foreseeability requirement in s. 229(a)(ii) when he told the jury that the Crown had to prove that the appellant “saw the likelihood that Amber Young could die from the injury”. As counsel correctly observes, s. 229(a)(ii) requires that an accused foresee death as the “likely” consequence of the bodily harm inflicted by the accused. She submits that a realization of a likelihood that death could occur is a lesser culpability requirement than knowledge that death is likely to occur. The difference, if any, seems slight.

[23] The trial judge’s instruction appears to conflate the foreseeability requirement in s. 229(a)(ii) (“likely to cause death”) and the largely redundant requirement of recklessness in s. 229(a)(ii) (“is reckless whether death ensues or not”): see R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146, at pp. 154-55; R. v. Moo, 2009 ONCA 645, 247 C.C.C. (3d) 34, at paras. 45-48.

[24] The impugned instruction was given in the course of the trial judge’s description of the elements of self-defence, although a similar brief passage also appears in his instructions on intoxication. However, in the part of the instruction dealing specifically with the state of mind required for murder, the trial judge on at least three occasions correctly set out the foreseeability requirement in s. 229(a)(ii), telling the jury that the Crown had to prove that the appellant foresaw Ms. Young’s death as the probable consequence of his assault on her.

[25] If, as in this case, different parts of the trial judge’s instructions are said to convey different descriptions of the requirements of s. 229(a)(ii), counsel for the appellant will demonstrate misdirection if, having regard to the charge as a whole, the court is satisfied that the jury would not have understood that foresight of the probability of Ms. Young’s death was an essential component of the definition of murder under s. 229(a)(ii): see R. v. MacDonald, 2008 ONCA 572, 92 O.R. (3d) 180, at para. 49.

[26] I am satisfied that the trial judge’s repeated, correct and clear instruction, given in the course of the instructions specifically referable to the state of mind required for murder, avoided any realistic possibility that the jury may have been confused or misled by the earlier and arguably slightly different instructions given in the context of the self-defence instruction. In coming to this conclusion, I take into account the straightforward nature of the foreseeability requirement as described in s. 229(a)(ii). Unlike some of the other concepts that the trial judge had to explain to this jury, the foreseeability requirement in s. 229(a)(ii) is readily explainable and understandable. Defence counsel’s failure to object to the instruction supports the view that, considered as a whole, the instructions adequately conveyed the mental state required to prove murder under s. 229(a).

B: The Instruction on the Common Sense Inference

[27] The second argument advanced on behalf of the appellant proceeds from the premise that the trial judge told the jury that it could “assume” that the appellant intended to cause Ms. Young’s death if the jury was satisfied that the appellant’s actions in fact caused Ms. Young’s death. I do not think that the trial judge’s instructions can be read in this way.

[28] The appellant’s state of mind arose in the context of several issues that had to be explained to the jury. In doing so, the trial judge made several references to the common sense inference that a sober and sane person usually intends or means to cause the “predictable consequences” of his actions. The trial judge explained that this inference might assist the jury in determining the appellant’s state of mind.

[29] The trial judge did not suggest to the jury that the common sense inference was available merely because the appellant had caused Ms. Young’s death, an undisputed fact. Rather, the trial judge tied the inference to the “predictable consequences” of the appellant’s actions. As the instructions made clear, it was for the jury to decide what the appellant had done that led to Ms. Young’s death and what the “predictable consequences” of his actions were. It was a central theme of the defence that the appellant had not meant to restrict Ms. Young’s breathing and that her death was not a “predictable consequence” of his actions. This theme could not possibly have been lost upon the jury.

[30] The trial judge told the jury that the common sense inference he had described was not mandatory, but only permissible. He told the jury that in considering whether to draw that inference, the jury must “take into account all of the evidence”. The trial judge followed that instruction with a detailed review of the appellant’s evidence, including his evidence describing his actions that led to Ms. Young’s death. The trial judge also tied the common sense inference to the evidence of the appellant’s alcohol and drug consumption. He said:

In determining whether, in all the circumstances, it is proper to draw this permissible inference that Jason Rodgerson intended the natural consequences of his actions, you must take into account all of the evidence, including the evidence that the accused may have been in an impaired or reduced mental condition at the time of the killing. The evidence may, of course, rebut that common sense inference. If after a consideration of all of the evidence, you are left with a reasonable doubt as to whether or not it is appropriate to draw the inference that Jason Rodgerson intended the natural consequences of his actions, then you must not draw that inference.

[31] I see no misdirection in the instruction. The jury was told to consider all of the evidence, including the manner in which Ms. Young died in determining whether the common sense inference would assist in the determination of the appellant’s intent. Nor, in my view, does the failure of the trial judge to specifically articulate the defence arguments in the context of the common sense inference instruction constitute non-direction amounting to misdirection. The defence position came through loud and clear in the course of the trial judge’s instructions. His failure to expressly connect that position to the common sense inference instruction does not constitute an error.

C: The Self-Defence Instruction

[32] The trial judge told the jury that self-defence as defined in s. 34(1), s. 34(2) and s. 35 was potentially applicable.[^1] He outlined the essential components of each of the provisions. The issue raised on appeal is relevant to self-defence as described in s. 34(2) and s. 35, but not s. 34(1).

[33] When instructing on s. 34(2), the trial judge told the jury that the defence was not available if the Crown proved beyond a reasonable doubt that the appellant did not reasonably fear that Ms. Young would kill or seriously injure him. In the course of explaining this instruction, the trial judge said:

Jason Rodgerson was on his own premises when these events occurred. There is no obligation on a person who is in his own premises to retreat from an attacker. However, the matter of retreat is a factor to consider. [Emphasis added.]

[34] Counsel for the appellant submitted that the above instruction is contrary to this court’s holdings in R. v. Forde, 2011 ONCA 592, 277 C.C.C. (3d) 1, and R. v. Docherty, 2012 ONCA 784, 292 C.C.C. (3d) 465. In both cases, the court held that an accused who is in his own home is not obliged to retreat in the face of an attack to take advantage of self-defence as set out in s. 34(2): see Forde, at paras. 42-43; Docherty, at para. 21. More importantly for this appeal, those cases also held that the failure to retreat is not a relevant factor in considering the application of s. 34(2): Forde, at paras. 54-55; Docherty, at paras. 70-71.

[35] Counsel correctly identifies the ratio of Forde and Docherty. The difficulty with her submission is that the trial judge did not tell the jury that the appellant’s failure to retreat was a relevant consideration under s. 34(2). Instead, he told the jury that the “matter of retreat” was a factor to consider when assessing self-defence under s. 34(2).

[36] The appellant had testified that he tried to retreat from the bedroom when attacked by Ms. Young. However, he could not get the bedroom door open and had to turn and defend himself against Ms. Young’s continued attack. It was during that defence that the appellant applied what turned out to be fatal force. The trial judge reminded the jury of this part of the appellant’s testimony when he was reviewing the evidence relevant to the self-defence claim under s. 34(2).

[37] The trial judge’s instruction that the appellant’s efforts to retreat were relevant to s. 34(2), as opposed to an instruction about the irrelevance of the failure to retreat, benefitted the appellant and was consistent with the position taken by defence counsel in his address to the jury. Counsel took no exception to the instruction about the relevance of “the matter of retreat” at any time during the extensive pre-charge discussions that eventually produced the instructions given to the jury. No doubt, counsel appreciated that the instruction assisted the defence.

[38] Counsel for the appellant also characterized the Crown’s closing as “misleading” because Crown counsel suggested that the failure to retreat was relevant under s. 34(2). This submission loses much of its force in light of my rejection of the submission that the trial judge told the jury that the failure to retreat was relevant to s. 34(2). In any event, Crown counsel’s comments did not suggest that the failure to retreat was relevant to s. 34(2). Crown counsel contrasted the appellant’s evidence of his response when he believed his life was in danger when the police, who he thought were robbers, arrived at his home – he ran for his life – with the appellant’s evidence of his reaction when he believed his life was in danger from the knife-wielding Ms. Young – he stayed and fought. Crown counsel made this argument in the course of a lengthy challenge to the credibility of the appellant’s version of events. The submission, whatever its persuasive value, was appropriate and available on this record.

[39] Counsel further argued that the trial judge wrongly “implied” that the failure to retreat from his home was relevant to the appellant’s claim of self-defence under s. 35. That defence, a more limited defence than the defence provided in s. 34(2), is available to an accused who is the initial aggressor or provokes the initial assault: see R. v. McIntosh, 1995 CanLII 124 (SCC), [1995] 1 S.C.R. 686, at paras. 62-63, 79-80, per McLachlin J., in dissent, but not on this issue. Understandably, there are significant restrictions on the availability of the defence of self-defence if an accused has precipitated the attack by assaultive or provocative conduct. One of those restrictions is set out in s. 35(c), which requires that an accused must have:

…declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose.

[40] Retreat to the extent “feasible” is a specific element of the defence of self-defence as described in s. 35. Nothing in the language of the section suggests that the retreat requirement is inapplicable if the accused, who is the initial aggressor or has provoked the assault, is in his own home. The policy reasons that render retreat an inappropriate requirement when a person is attacked in his own home have much less force if the homeowner has provoked the attack by his assaultive or provocative conduct.

[41] The trial judge instructed the jury on the requirement in s. 35(c). He also reviewed the evidence relevant to retreat, including the appellant’s testimony that he tried to retreat, but was unable to open the door, at which point he was forced to defend himself from the oncoming, knife-wielding Ms. Young. The instruction was fair and accurate.

[42] In summary, the trial judge properly instructed the jury on the relevance of the evidence of the appellant’s attempted retreat as it related to s. 34(2). He also properly instructed the jury on the requirement in s. 35(c) that the appellant decline further conflict and quit or retreat from it as far as was feasible to avail himself of the defence of self-defence described in s. 35.

D: The Instruction on Post-Offence Conduct

(i) Overview

[43] The fourth ground of appeal arises out of the trial judge’s instructions as to uses the jury could make of the appellant’s post-offence conduct. That conduct falls into three categories:

• The appellant’s efforts to dispose of Ms. Young’s body, including digging a grave, stripping her body, removing her jewellery, burying her body, and pouring bleach over her body in the grave;
• The appellant’s efforts to clean-up the scene of the homicide and remove all evidence connecting Ms. Young to the house; and
• The appellant’s attempted flight and his lies to the police, both when he was first arrested and in the later interview, when he claimed he was not involved in Ms. Young’s death and suggested that his roommate was involved.

[44] The trial judge told the jury that the evidence of the appellant’s post-offence conduct had five potential uses:

(i) to assist the Crown in proving that the appellant had not acted in self-defence;

(ii) to assist the Crown in proving that the appellant had not accidentally caused Ms. Young’s death;

(iii) to assist the jury in assessing the credibility of the appellant’s testimony;

(iv) to assist the jury in assessing the extent to which the appellant was affected by the consumption of alcohol and/or drugs; and

(v) to assist the Crown in proving that the appellant had the state of mind required for murder under s. 229(a).

(ii) Arguments

[45] Counsel for the appellant does not take issue with the potential uses of the evidence set out in (i) to (iv). She submits, however, that none of the post-offence conduct could assist the jury in determining whether the Crown had proved that the appellant had the state of mind required for murder under s. 229(a). Counsel argues that the post-offence conduct was as consistent with the appellant having unlawfully but unintentionally caused Ms. Young’s death, making him guilty of manslaughter, as it was with the appellant having killed Ms. Young with the state of mind required for murder under s. 229(a). As the conduct was equally consistent with murder and manslaughter, the jury should have been told that the post-offence conduct could not assist in determining whether the appellant had the state of mind required for murder: see R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, at p. 145; R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at paras. 53-55.

[46] Counsel for the appellant further argues that not only did the trial judge err in failing to give a limiting instruction as to the use of the post-offence conduct, he exacerbated his error by instructing the jury that it could consider all of the post-offence conduct as evidence of intent. In fact, counsel submits that the trial judge left the post-offence conduct as the primary, if not the exclusive, evidentiary basis upon which the jury could make a finding that the appellant had the requisite state of mind for murder. Finally, counsel submits that this misdirection goes to the heart of the trial judge’s instructions on the question of intent, a central issue at trial. Counsel points to trial counsel’s pre-charge objection to this part of the post-offence conduct instruction as indicative of the significance of the error.

[47] Crown counsel submits that the trial judge properly instructed the jury that the post-offence conduct was relevant to the issue of the appellant’s intent when he caused Ms. Young’s death. Counsel describes the following chain of reasoning which she argues was available on the evidence. First, the jury could conclude from the post-offence conduct relating to the disposal of the body and the attempted clean-up of the house that the appellant had gone to significant lengths to try and destroy evidence of the extent of Ms. Young’s injuries and evidence that could reveal the nature and extent of the struggle in the house. Second, the jury could infer from the first finding that the appellant had hid the body, attempted to destroy evidence on the body and destroyed evidence at the scene because he believed that the condition of the body and the scene would show that Ms. Young died after a prolonged and bloody battle during which she was struck in the face several times. Third, if the jury drew the second inference, it could further infer that in fact the death had occurred after a bloody struggle and beating. Fourth, and finally, the jury could infer from the prolonged struggle and beating that the appellant had intended to either kill Ms. Young or cause her bodily harm that he knew was likely to cause her death and was therefore guilty of murder.

[48] Crown counsel’s argument on appeal is consistent with the argument made by the Crown at trial and accepted by the trial judge as the basis for his instruction that post-offence conduct was relevant to the issue of the appellant’s state of mind. To paraphrase the Crown’s submissions to the jury, the post-offence conduct showed not only that the appellant had killed Ms. Young, but also how he had killed her. The manner in which the appellant had killed Ms. Young could shed valuable light on his state of mind when he killed her: see R. v. Teske (2005), 2005 CanLII 31847 (ON CA), 32 C.R. (6th) 103 (Ont. C.A.), at paras. 81-87; R. v. Panghali, 2012 BCCA 407, 328 B.C.A.C. 256, at paras. 61-66. The Crown’s submissions at trial and on appeal do not distinguish among the various categories of post-offence conduct. The arguments are, however, directed primarily at the appellant’s efforts to hide the body and destroy evidence.

[49] Crown counsel acknowledges that other inferences were available from the post-offence conduct. She submits that the trial judge not only brought those alternative explanations for the post-offence conduct to the jury’s attention, but told the jury that it must “reject” those explanations before it could use the post-offence conduct to support the case for the Crown. This instruction was combined with a repeated caution concerning “the potential danger” in using post-offence conduct to infer guilt. Crown counsel submits that the instructions, considered in their entirety, described a cautious and restrained approach to the use of the post-offence conduct.

(iii) Analysis

[50] Post-offence conduct is potentially circumstantial evidence of a fact in issue. Its relevance depends on whether, considered in the context of the rest of the evidence, the issues raised at trial and the positions of the parties, it makes the existence or non-existence of a fact in issue more likely: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433 (White #2); R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 34 O.R. (3d) 620 (C.A.), at pp. 628-29; R. v. P.J.B., 2012 ONCA 730, 298 O.A.C. 267, at para. 74; R. v. J.A.T., 2012 ONCA 177, 288 C.C.C. (3d) 1, at paras. 142-43. Like all circumstantial evidence, post-offence conduct may be relevant to some issues and not to others. Relevance to one material issue is generally a ticket to admissibility.[^2] Thus, evidence of flight from the scene of an assault is relevant to the issue of identity as it is more likely that the individual who fled the scene was the perpetrator of the assault. Evidence of flight is, however, irrelevant to the nature of the assault inflicted as flight does not make it more likely that the person who fled stabbed rather than struck the victim: see Arcangioli. Like other evidence, if evidence of post-offence conduct is relevant to one fact in issue but not to others, a limiting instruction to the jury may be necessary.

[51] Post-offence conduct need not point to only one reasonable inference to be relevant and admissible to prove a fact in issue. If the inference urged by the Crown is reasonably available, the post-offence conduct will be left with the jury who, after considering any competing inferences available, will determine what effect, if any, should be given to the post-offence conduct evidence: R. v. Allen, 2009 ABCA 341, 15 Alta. L.R. (5th) 1, at paras. 67-68, aff’d, 2010 SCC 42, [2010] 2 S.C.R. 648.

[52] Could the evidence of the appellant’s actions said to constitute post-offence conduct reasonably support the inference of intent urged by the Crown? That question must be addressed in respect of each of the three categories of post-offence conduct. It does not follow that, because some post-offence conduct is reasonably capable of supporting an inference supportive of the existence of the necessary intent, all post-offence conduct is relevant to that issue.

[53] I begin with the evidence of the appellant’s flight from the police and his false denials of any involvement in Ms. Young’s death, both upon his arrest and in his later police interviews. That evidence was clearly relevant to certain issues at trial. For example, the flight and lies could be considered in assessing the self-defence claim: see Peavoy, at pp. 631-32. Evidence that the appellant fled the scene and lied to the police would support the inference that he had acted unlawfully when he caused Ms. Young’s death and, more specifically, that he had not acted in self-defence.

[54] That same evidence could not, however, as a matter of common sense and human experience, shed any light on the appellant’s state of mind when he unlawfully caused Ms. Young’s death. It cannot be said that the person who kills with the state of mind required for murder is more likely to flee and lie to the police than is the person who unlawfully kills without the state of mind required for murder. Several cases in this court have held exactly that: see R. v. Wiltse (1994), 1994 CanLII 822 (ON CA), 19 O.R. (3d) 379 (C.A), at pp. 384-85; R. v. Marinaro, 1996 CanLII 222 (SCC), [1996] 1 S.C.R. 462, adopting dissent of Dubin C.J.O., (1994), 1994 CanLII 1470 (ON CA), 95 C.C.C. (3d) 74 (Ont. C.A.), at pp. 81-82; Peavoy, at pp. 630-31; R. v. Figueroa, 2008 ONCA 106, 232 C.C.C. (3d) 51, at paras. 33-43. See also, R. v. Feng, 2012 BCCA 153, 319 B.C.A.C. 151, at paras. 33-39. The reasoning in those cases applies to the evidence of the appellant’s flight and lies to the police.

[55] The trial judge referred to the appellant’s post-offence conduct several times during his jury instructions. He first referred to the post-offence conduct in explaining in general terms how the jury could use post-offence conduct as evidence. In this part of his instructions, the trial judge distinguished between evidence of the appellant’s flight and his initial denial of responsibility upon arrest, and his subsequent lies to the police during questioning. He included the flight and initial lie with the other post-offence conduct describing the hiding of the body and the clean-up of the murder scene. He characterized the subsequent lies to the police as a specific kind of post-offence conduct which he referred to as “fabricated explanations”.

[56] The trial judge instructed the jury that it could use the post-offence conduct, including the appellant’s flight and his initial lie, as evidence of the appellant’s guilt. After outlining the evidence, he said:

On the other hand, if you find Jason Rodgerson actually did or said what he is alleged to have done or said after the offence was committed, you must go on to consider next whether this was because Jason Rodgerson was conscious of having committed an offence, including the offence charged, or for some other reason.

If you find that Jason Rodgerson actually did or said what he is alleged to have done or said after the offence was committed, you must be careful not to immediately conclude that he did or said so because he was conscious of having committed an offence or the offence charged. [Emphasis added.]

[57] The trial judge reviewed the appellant’s various explanations for his post-offence conduct, including his flight and his evidence denying he made the statement attributed to him by the arresting officer. The trial judge then reminded the jury that if, and only if, it was satisfied that the appellant did the things the trial judge described as post-offence conduct “because he was conscious of having done what is alleged against him”, could the jury use that evidence in reaching its verdict.

[58] The trial judge gave a very similar instruction concerning the appellant’s false statements to the police during questioning. He told the jury that before using those statements to assist the case for the Crown, the jury must find that the statements were deliberately fabricated and must reject the appellant’s explanation for making the statements. He ultimately told the jury that evidence of the appellant’s “fabricated explanations” could be used:

[i]n deciding whether Crown counsel has proven the guilt of Jason Rodgerson beyond a reasonable doubt.

[59] At no point in his instructions on the evidentiary use of post-offence conduct did the trial judge distinguish between the use of that evidence to establish liability for an unlawful killing (manslaughter) and the use of that evidence to prove the intent required for murder. Instead, the trial judge referred to the evidence as potentially probative of the appellant’s commission of “an offence, including the offence charged”.

[60] The trial judge returned to the post-offence conduct when instructing the jury on the intent required for murder under s. 229(a). After setting out the requirements of s. 229(a) and explaining that the appellant’s state of mind was to be determined by inferences drawn from the evidence, the trial judge turned to the evidence. He began with this instruction:

You should look at Jason Rodgerson’s words and conduct before, at the time and after the unlawful act that caused Amber Young’s death. All of these things, and the circumstances in which they happened, may shed light on Jason Rodgerson’s state of mind. They may help you decide what he meant or didn’t mean to do. [Emphasis added.]

[61] The trial judge summarized the appellant’s evidence and said:

There is also the post-offence conduct which I have outlined to you previously as well as the fabricated explanation instruction I gave you.

The trial judge next reviewed the post-offence conduct, including the appellant’s utterances to the police upon his arrest.

[62] Very shortly after the instructions on the issue of intent summarized above, the trial judge gave separate instructions on the “defence” of intoxication as it related to the issue of intent. In the course of doing so, he once again told the jury that it could consider the post-offence conduct, including the “fabricated explanation” to the police, in determining whether the Crown had proved the state of mind required for murder.

[63] Having regard to the general instructions on the evidentiary use of post-offence conduct, the instructions aimed specifically at the issue of the state of mind required for murder under s. 229(a) and the instructions on intoxication, I am satisfied that this jury must have understood that the appellant’s flight from the police, his lies to the arresting officer, and his subsequent lies to the police were potentially probative of the appellant’s state of mind at the time he killed Ms. Young. The jury would have understood that it could, if it rejected the various explanations for the conduct, use the flight and the lies as evidence that the appellant either intended to kill Ms. Young or intended to cause her bodily harm that he knew was likely to cause death. That inference was simply not available from the evidence of the appellant’s flight and lies to the police. Nothing in that conduct, considered on its own or in the context of the rest of the evidence, could reasonably permit the jury to infer that the appellant had acted not only unlawfully in killing Ms. Young, but also with the state of mind required for murder.

[64] The misdirection as to the potential use of the appellant’s flight and lies to the police amounts to an error in law. I will consider the effect of that error after examining whether the evidence of the other post-offence conduct was properly left with the jury as relevant to the appellant’s state of mind.

[65] As indicated above, relevance is a case-specific inquiry that can only be undertaken in the context of the entirety of the evidence, the issues raised and the positions taken by the parties at trial. In this case, the expert forensic evidence called by the Crown provides essential context for the determination whether the post-offence conduct involving the attempts to hide the body and clean the scene could support an inference that the appellant had the state of mind required for murder when he killed Ms. Young.

[66] The Crown’s expert evidence could not provide a definitive opinion as to the nature of the struggle that went on between Ms. Young and the appellant before her death. Nor could the Crown’s expert pathologist offer a firm opinion as to the number of blows Ms. Young suffered. However, I think the jury could reasonably interpret that expert evidence as inconsistent with the appellant’s description of a relatively brief struggle limited to an area by the door of the bedroom during which he struck Ms. Young in the face only once. The jury could, based on the expert evidence, conclude that a significantly more prolonged and bloody struggle had occurred in various parts of the bedroom and perhaps even in the living room, during which time Ms. Young was struck in the face more than twice by the appellant.

[67] I do not suggest that the Crown’s expert evidence necessarily compelled the conclusions outlined above. The evidence was open to different interpretations and its ultimate value to the respective positions of the Crown and the defence depended on the jury’s assessment of it. My point here is only that the jury could have accepted the evidence as supporting the Crown’s position that there was a substantial struggle during which the appellant struck Ms. Young in the head more than twice.

[68] If the jury accepted the view of the expert evidence urged by the Crown, the jury could have found that there was a significant struggle during which the appellant had struck Ms. Young on the face or head more than twice. The jury could also have inferred that the appellant attempted to hide the body and destroy evidence at the scene because the injuries to the body and the blood at the scene would reveal an assault consistent only with an intention to cause bodily harm that would likely cause death. If, and only if, the jury first found a struggle and an assault beyond that described by the appellant, could the appellant’s post-offence conduct in relation to the body and the scene potentially support the Crown’s case on the issue of intent.

[69] In coming to the view that the evidence could potentially assist the Crown on the issue of intent, I reject the appellant’s submission that the expert evidence was incapable of supporting findings that there had been a prolonged struggle and that Ms. Young had been struck in the head at least twice. While undoubtedly the defence cross-examination of the experts presented a very different view of that evidence, the interpretation of the experts’ testimony was ultimately for the jury.

[70] My conclusion that the post-offence conduct relating to the attempts to hide the body and destroy evidence were potentially probative of the appellant’s state of mind at the time he killed Ms. Young does not decide this ground of appeal against the appellant. Counsel submits that even if the evidence was potentially probative on the issue of the appellant’s state of mind, its relevance to that issue was not self-evident. Counsel submits that in the circumstances of this case, the trial judge had to explain to the jury how the evidence of the post-offence conduct could have potential probative value on the issue of the appellant’s state of mind. Counsel contends that in this case the trial judge’s obligation to relate the evidence to the issues required an explanation as to how the post-offence conduct could be probative on the issue of intent.

[71] I agree with this submission. A trial judge has a general obligation to identify the issues and the evidence relevant to the issues for the jury. Estey J., in R. v. Azoulay, 1952 CanLII 4 (SCC), [1952] 2 S.C.R. 495, p. at 503, put it this way:

The authorities contemplate that in the course of his charge a trial judge should, as a general rule, explain the relevant law and so relate it to the evidence that the jury may appreciate the issues or questions they may pass upon in order to render a verdict of guilty or not guilty. Where, as here, the evidence is technical and somewhat involved, it is particularly important that he should do so in a manner that will assist the jury in determining its relevancy and what weight or value they will attribute to the respective portions. It is, of course, unnecessary that the jury’s attention be directed to all of the evidence, and how far a trial judge should go in discussing it must depend in each case upon the nature and character of the evidence in relation to the charge, the issues raised and the conduct of the trial. [Emphasis added.]

[72] The obligation identified in Azoulay is a general one. It applies where the issue is intent and the evidence refers to post-offence conduct in the same way that it applies to other issues and other kinds of evidence. It is no answer to a claim that the trial judge failed to relate the evidence of the post-offence conduct to the issue of intent to demonstrate that the trial judge adequately addressed certain cautions peculiar to the use of post-offence conduct.

[73] As Azoulay makes clear, the manner in which the evidence should be related to the issues depends on the specifics of the case. In many cases, the inference from post-offence conduct to the existence of a fact in issue to which the conduct is relevant will be direct and obvious to the jury without any explanation. For example, in R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72 (White #1), the Crown relied on evidence of flight and related evidence as evidence that the accused had committed the murder. The Crown argued that the post-offence conduct constituted circumstantial evidence of identity. The defence acknowledged the flight but offered an alternative explanation for it. In that context, the inference from flight to participation in the murder was virtually automatic if the jury rejected the defence explanation for the flight. As observed by Major J., at para. 57, the jury needed no explanation as to what inferences it could draw if it rejected the accused’s explanation for the flight.

[74] The facts of this case are very different from those of White #1. The potential connection between the appellant’s conduct in hiding the body and his attempt to clean the scene of the crime and the inference as to his state of mind when he killed Ms. Young is much more indirect and dependent upon other findings of fact than was the inference of identity from flight in White #1. Unlike White #1, the inference that the appellant had the intent required for murder would not flow automatically from the post-offence conduct if the appellant’s explanation for that conduct was rejected. Indeed, the appellant’s explanation for his post-offence conduct – that he was afraid he would be blamed for Ms. Young’s death – was a neutral factor in terms of the drawing of any inference as to intent. The jury could still find intent even if it accepted the appellant’s explanation.

[75] On the evidence adduced in this case, the connection between the appellant’s hiding of the body and cleaning of the scene and his state of mind at the relevant time depended on the view the jury took of somewhat complex and nuanced expert evidence and the inferences it chose to draw from that evidence about the nature of the assault. I am satisfied that the trial judge’s obligation to relate that evidence to the issue of intent required that he give the jury some help in understanding how the post-offence conduct could assist it in determining the issue of intent. Simply telling the jury to “consider” the post-offence conduct on the issue of intent was not helpful in the circumstances of this case.

[76] Before the post-offence conduct relating to the hiding of the body and the clean-up of the homicide scene could assist the Crown in proving the appellant’s state of mind, the jury first had to be satisfied that there was a somewhat prolonged and bloody struggle during which the appellant struck Ms. Young in the head or face several times, or at least more than twice. The jury could come to that conclusion only after a careful consideration of the competing interpretations of the forensic evidence placed before it. Second, the jury had to be satisfied that the appellant had engaged in the post-offence conduct to destroy evidence that would reveal an extensive struggle and assault well beyond that admitted by him in his evidence. Again, the jury had to consider the forensic evidence as well as the appellant’s explanations.

[77] The trial judge’s only reference to the manner in which the jury could use post-offence conduct came in his general instructions on post-offence conduct as a kind of evidence. The trial judge told the jury that the evidence was relevant if it showed that the appellant “was conscious of having committed an offence, including the offence charged”. That instruction was inadequate insofar as it was directed at the use of post-offence conduct to infer the appellant’s state of mind. If the post-offence conduct showed only a consciousness by the appellant that he had “committed an offence” it had no probative value on the issue of intent. A more specific inference was necessary.

[78] In the part of the instructions devoted to the issue of the intent required for murder, the trial judge said nothing about how the jury could use the post-offence conduct in determining the appellant’s state of mind. The trial judge simply told the jury that it could consider the post-offence conduct when deciding whether the Crown had proved the required intent. The instruction told to the jury that the post-offence conduct including the burial of the body and the clean up of the murder scene could assist the Crown in proving the intent required for murder. Unfortunately the instruction gave no hint as to how the evidence could do that. In the circumstances of this case, the trial judge’s failure to relate the evidence of the post-offence conduct to the issue of intent by explaining to the jury the findings necessary before the post-offence conduct had probative value on the issue of intent constitutes non-direction amounting to misdirection.

IV

The Appropriate Order

[79] The curative proviso, s. 686(1)(b)(iii), cannot be applied. Once the jury got beyond self-defence, the appellant’s state of mind was the central issue at trial. The two errors identified above went directly to the jury’s consideration of that issue. They cannot be described as minor in the sense that they could not reasonably have affected the result. Nor was the Crown’s case overwhelming. While there was ample evidence upon which a jury could convict of second degree murder, especially if the jury accepted the Crown’s view of the experts’ evidence, that verdict was far from inevitable on this record: see R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at paras. 34-36. The appellant is entitled to a new trial on the charge of second degree murder.

“Doherty J.A.”

“I agree K. Feldman J.A.”

MacPherson J.A. (Dissenting):

[80] I have had the advantage of reading the draft reasons prepared by my colleague Doherty J.A. I agree with his analysis and conclusions on these three issues: (1) the jury instruction on the intent required under s. 229(a)(ii) of the Criminal Code; (2) the instruction on the common sense inference; and (3) the instruction on self-defence.

[81] On the fourth issue – the instruction on post-offence conduct – I agree with my colleague’s analysis and conclusion on one category of the post-offence conduct evidence. However, with respect to the other two categories of this evidence, I do not agree with his analysis, and this leads me to a different result.

Post-offence conduct

[82] As my colleague points out, there were three categories of post-offence conduct in issue at the trial: (1) the appellant’s efforts to dispose of Ms. Young’s body, including digging a grave, stripping her body, removing her jewellery, burying her body, and pouring bleach over the body in the grave; (2) his efforts to clean-up the scene of the homicide and remove all evidence connecting Ms. Young to the house; and (3) his attempted flight and his lies to the police.

[83] With respect to the third category, the trial judge included it in his jury instruction relating to permissible use of post-offence conduct. My colleague says:

I am satisfied that this jury must have understood that the appellant’s flight from the police, his lies to the arresting officer, and his subsequent lies to the police were potentially probative of the appellant’s state of mind at the time he killed Ms. Young. The jury would have understood that it could, if it rejected the various explanations for the conduct, use the flight and the lies as evidence that the appellant either intended to kill Ms. Young or intended to cause her bodily harm that he knew was likely to cause death. That inference was simply not available from the evidence of the appellant’s flight and lies to the police. Nothing in that conduct, considered on its own or in the context of the rest of the evidence, could reasonably permit the jury to infer that the appellant had acted not only unlawfully in killing Ms. Young, but also with the state of mind required for murder.

The misdirection as to the potential use of the appellant’s flight and lies to the police amounts to an error in law.

I agree. See also: R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, at p. 145.

[84] I turn to the other two categories of post-offence conduct. I begin with this observation: these two categories – the attempt to dispose of Ms. Young’s body and the extensive effort to clean-up a blood-spattered house – are, in my opinion, much more closely associated with the actual events of the offence than the appellant’s flight and lies, which are commonplace in many criminal cases.

[85] My colleague reaches the initial conclusion that these two categories of post-offence conduct were admissible at the trial, as the trial judge found.

[86] I agree with this conclusion. Indeed, in my view, this conclusion is, as the trial judge found, virtually inevitable in light of this court’s decision in R. v. Teske (2005), 2005 CanLII 31847 (ON CA), 32 C.R. (6th) 103.

[87] In Teske, the accused burned his wife’s body and disposed of her ashes at a remote site. The trial judge, in a judge alone trial, held that:

…the extensive nature of the conduct is probative of the level of culpability of the accused. Especially his action of disposing of her body the way he did. In my view, the post-offence conduct, in the circumstances described, show the accused had more to hide than that he had caused her death without intending to do so.

[88] This court agreed with the trial judge’s reasoning on this issue. Speaking for the court, Doherty J.A. said, at paras. 86-87:

As a matter of common sense, it is reasonable to infer that someone who destroys a body after causing the death of the person does so because he knows that the victim suffered injuries that are inconsistent with a non-intentional cause of death.

The appellant engaged in an elaborate cover-up of his wife’s killing. Faced with this evidence, the trial judge inferred that the appellant had engaged in this concerted effort to cover up his wife’s death because he had deliberately inflicted serious bodily harm likely to cause death. I think this was an eminently reasonable inference.

See also: R. v. Panghali, 2012 BCCA 407, 328 B.C.A.C. 256, at paras. 57-68.

[89] However, in my colleague’s eyes, this conclusion does not end the inquiry in this appeal. He says:

Counsel submits that in the circumstances of this case, the trial judge had to explain to the jury how the evidence of the post-offence conduct could have potential probative value on the issue of the appellant’s state of mind. Counsel contends that in this case the trial judge’s obligation to relate the evidence to the issues required an explanation as to how the post-offence conduct could be probative on the issue of intent.

I agree with this submission. …

[T]he trial judge’s failure to relate the evidence of the post-offence conduct to the issue of intent by explaining to the jury the findings necessary before the post-offence conduct had probative value on the issue of intent constitutes non-direction amounting to misdirection.

[90] With respect, I do not agree with this component of my colleague’s reasoning or with his conclusion on this issue. I say this for several reasons.

[91] First, and most importantly, my colleague’s proposed instruction about how the jury must reason on this issue is, in my view, directly contrary to the two leading decisions of the Supreme Court of Canada on this issue.

[92] In R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72 (“White 1”), a unanimous court discussed when and how a judge or jury should use evidence of post-offence conduct. The court recognized that in some cases it was appropriate to admit such evidence, but that there was a danger that “juries might jump too quickly from evidence of post-offence conduct to an inference of guilt” (para. 57). According to Major J., at para. 57:

[T]he best way for a trial judge to address that danger is simply to make sure that the jury are aware of other explanations for the accused’s actions, and that they know they should reserve their final judgment about the meaning of the accused’s conduct until all the evidence has been considered in the normal course of their deliberations. Beyond such a cautionary instruction, the members of the jury should be left to draw whatever inferences they choose from the evidence at the end of the day. [Emphasis added.]

[93] Thirteen years later, in R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 24 (“White 2”), the court, speaking through Rothstein J., specifically endorsed this passage from White 1. Rothstein J. then continued, at para. 33:

Before I proceed, it is critical to bear in mind that removing evidence from the jury’s consideration is not the only way of dealing with evidence associated with a heightened risk of jury error. It is also possible, and often appropriate, for the trial judge to warn the jury of the risks associated with certain types of evidence. The purpose of such a caution is to alert the jury to the danger, which has been recognized through judicial experience, but then to allow the properly informed jurors to evaluate the evidence with care.

[94] Then, in a separate section entitled How a Caution Can Alleviate the Risks Associated With Certain Evidence That Ought to Be Left With the Jury, Rothstein J. discussed the role of a caution in relation to post-offence conduct evidence that has been admitted during a trial. He said, at para. 56:

A warning or caution does not serve to remove the evidence from the jury’s consideration. Instead, providing a caution allows for juries to benefit from judicial experience concerning the risks associated with certain types of evidence, while respecting the jury’s competence in fulfilling its fact-finding role. The point is that once jurors are alerted to the risks that are not necessarily apparent to the average citizen, they can be trusted to properly weigh the evidence. Our jury system is predicated on the conviction that jurors are intelligent and reasonable fact-finders. It is contrary to this fundamental premise to assume that properly instructed jurors will weigh the evidence unreasonably or draw irrational and speculative conclusions form relevant evidence. [Emphasis added.]

[95] The question of the accused’s post-offence conduct was a hotly contested issue at the trial. The trial judge was completely familiar with the leading decision of this court, Teske, on admissibility and with the leading decisions of the Supreme Court of Canada on both admissibility (White 1) and caution (White 2). He explicitly, and correctly, applied them.

[96] In particular, the trial judge provided precisely the type of caution suggested by Rothstein J. in White 2. He told the jury:

However, I wish to caution you about a potential danger concerning post offence conduct. Post offence conduct may appear more probative than it really is, and may be, by its very nature, less reliable than it seems, or may be consistent with other less obvious explanations than the one advanced by Crown counsel. You must consider evidence of post offence conduct with care and the caution I have provided to you. I would also direct you to reserve your final judgment about Jason Rodgerson’s post offence conduct until all the evidence has been considered during your deliberations.

[97] Moreover, he followed the direction of Major J. at paragraph 57 of White 1 and alerted the jury to the fact that there may have been other explanations for the appellant’s post-offence conduct:

What a person said or did after an offence was committed may indicate that he acted or spoke in a way which, according to human experience and logic, is consistent with the conduct of a person who committed the offence and inconsistent with the conduct of someone who did not do so. On the other hand, there may be other explanations for what Jason Rodgerson said or did afterwards, such that the conduct does not assist in deciding whether he acted unlawfully or whether or not he intended to kill Amber Young.

[98] I also note that the trial judge reviewed, with clarity, care and balance, the Crown and defence positions, including the accused’s explanations, on the use the jury could make of the evidence relating to post-offence conduct.

[99] In summary, the trial judge was aware of and applied the clear jurisprudential picture of White 1 and Teske on admissibility and White 2 on an appropriate caution. With respect, my colleague’s proposed expansion of the jury charge, which would potentially require the trial judge to engage in an extensive instruction about the jury’s reasoning process, is contrary to the admonition in both White 1 and White 2: “Beyond such a cautionary instruction, the members of the jury should be left to draw whatever inferences they choose from the evidence at the end of the day”; and contrary to the philosophy of White 2: “The point is that once jurors are alerted to the risks that are not necessarily apparent to the average citizen, they can be properly trusted to properly weigh the evidence.”

[100] Second, in the context of a major, extensively canvassed post-offence conduct issue at trial, the overwhelming focus of both counsel and the trial judge was on its admissibility on the question of level of culpability. Once the trial judge made his ruling on that issue and showed counsel his draft charge, both counsel suggested only minor changes in wording. Interestingly, the words “was conscious of having committed an offence, including the offence charged”, which my colleague calls “inadequate”, were the result of a specific agreement by both counsel, explicitly accepted by the trial judge, and are the words proposed in Watt’s Manual of Criminal Jury Instructions, at p. 195. In addition, defence counsel was particularly concerned to ensure that the trial judge direct the jury that they consider all the evidence, including Mr. Rodgerson’s own explanation for the conduct. The trial judge did this. In short, counsel accepted that the standard caution about post-offence conduct evidence was both necessary and sufficient.

[101] Similarly, in the context of a major, extensively canvassed post-offence conduct issue on this appeal, the overwhelming focus of the appellant’s argument, in both the factum and oral submissions, was the admissibility issue. The secondary focus was the appropriate caution. The contents of the jury charge relating to post-offence conduct was an almost invisible issue on this appeal. Specifically, the appellant did not suggest any content that needed to be in the jury instruction on post-offence conduct in either the factum or oral submissions.

[102] My point here is a simple one. The issue – the only issue – on which my colleague proposes to allow the appeal was not an issue at the trial. On appeal, it was barely an issue, touched upon by the appellant’s counsel in, at best, a glancing fashion.

[103] Third, in my view, appellate courts should be very wary of expanding jury instructions, especially into areas (the jury’s reasoning process in this case) where counsel do not seek an expansion of the proposed instruction. A common theme of contemporary judicial and counsel discourse is that jury charges today are not as helpful to juries as in times past. That is because the modern jury charge is, especially in most murder cases, exceptionally long and complex, rendering doubtful a jury’s comprehension and comfort.

[104] In the domain presented by this appeal – the relationship between post-offence conduct and level of culpability – the law relating to admissibility and jury instructions is clear. In this case, the trial judge properly applied White 1 and White 2 and instructed the jury in accordance with the simple wisdom of those cases: “Beyond such a cautionary instruction, the members of jury should be left to draw whatever inferences they choose from the evidence at the end of the day.”

[105] Fourth, I do not think that the actual content of the instruction about the jury’s mandatory reasoning process proposed by my colleague is necessary. As I read his reasons, this content is set out in a single paragraph, paragraph 76.

[106] I would make two observations about this paragraph. First, it appears that my colleague finds “non-direction amounting to misdirection” and, therefore, reversible error on the basis of the trial judge’s failure to instruct the jury on two points – and only these two points – in the post-offence conduct section of his jury charge. Second, all of the matters set out in paragraph 76 – “a somewhat prolonged and bloody struggle”, “the appellant struck Ms. Young in the head or face several times”, “a careful consideration of the competing interpretations of the forensic evidence”, “an extensive struggle and assault”, “the appellant’s explanations” – were covered in great detail by the trial judge in his jury charge. They were at the heart of the trial and, therefore, also at the heart of the jury charge, and my colleague does not suggest that the trial judge erred in his treatment of any of them elsewhere in the charge. I am confident that a jury properly instructed on all of these matters and provided with the general caution about use of post-offence conduct evidence would not embark on a faulty reasoning process.

Proviso

[107] My conclusion is that following a three month trial, including the delivery of a 212 page jury charge, the trial judge committed a single error. He should not have admitted, on the issue of intent, the evidence of the accused’s flight and lies to the police as post-offence conduct evidence.

[108] The trial judge admitted seven items of post-offence conduct evidence in the three categories set out near the start of these reasons. Six of the items in two categories were properly admitted. Moreover, these two categories – disposing of Ms. Young’s body and cleaning-up the homicide scene – are, in my opinion, far more closely associated with the actual events of the offence than the appellant’s very brief flight and lies to the police. In short, the jury’s attention would be principally focussed on the accused’s conduct relating to his disposal of the body and efforts to clean up the scene. In these domains, the trial judge correctly admitted the relevant evidence and appropriately cautioned the jury on its use. Accordingly, I would apply the proviso in s. 686(1)(b)(iii) of the Criminal Code.

Disposition

[109] I would dismiss the appeal.

Released: “DD” “MAY 08 2014”

“J.C. MacPherson J.A.”

[^1]: These sections, and other self-defence provisions, have been repealed. Self-defence is now addressed in a single provision (s. 34): see S.C. 2012, c. 9, s. 2.

[^2]: As with any other evidence, post-offence conduct that is relevant can be excluded where its prejudicial effect outweighs its probative value: see White #2, at para. 45, per Rothstein J.