COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hill, 2015 ONCA 616

DATE: 20150915

DOCKET: C55423

Doherty, Gillese and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kent Hill

Appellant

Timothy E. Breen, for the appellant

Tracy Kozlowski, for the respondent

Heard: July 23, 2015

On appeal from the conviction entered by a jury presided over by Justice P. Hambly of the Superior Court of Justice on December 2, 2010 and the sentence imposed on July 28, 2011.

Doherty J.A.:

overview

[1] The appellant strangled Tashina General on January 22, 2008. He was charged with second degree murder. The appellant pled guilty to the included offence of manslaughter. The Crown rejected the plea and the trial proceeded on the charge of second degree murder. The jury convicted. The trial judge sentenced the appellant to life imprisonment without eligibility for parole for 15 years. The appellant appeals conviction and sentence.

[2] The appellant testified at trial and admitted that he had choked Ms. General and caused her death. He advanced two defences. First, the appellant argued that the Crown had not proved beyond a reasonable doubt that he had the necessary intent for murder as defined in s. 229(a) of the Criminal Code. Second, the appellant argued that if the Crown had proved the requisite intent, his offence should be reduced to manslaughter by the operation of the partial defence of provocation as defined in s. 232(1) of the Criminal Code. Clearly, the jury rejected both defences.

[3] Counsel for the appellant argues that the trial judge erred in his jury instructions on intent and the defence of provocation. Counsel also submits that the Crown improperly cross-examined the appellant on the appellant’s prior statement to the police.

[4] I see no merit in the complaint about the Crown’s cross-examination of the appellant. I am, however, satisfied that there is merit to the other two grounds of appeal. I would allow the appeal and order a new trial on the charge of second degree murder for the reasons that follow.

[5] I do not reach the sentence appeal.

the evidence

[6] The appellant was 20 years old in January 2008. He lived with his family on the Six Nations Reserve and attended college in the United States. Several witnesses testified that the appellant had an excellent reputation in his community. He was a good athlete and a role model for others. He was known to be considerate, non-violent and kind.

[7] Ms. General, who was 21 years old in January 2008, lived on the Six Nations Reserve with her mother and brother. They were a close family. Ms. General worked part-time.

[8] The appellant and Ms. General knew each other for a number of years before January 2008. They were involved in a casual sexual relationship for about three years. The appellant had a girlfriend at the time and Ms. General had a boyfriend.

[9] In November 2007, Ms. General learned that she was pregnant. She initially thought that her boyfriend was the father, but by January 2008, had come to believe that the appellant was the father. Ms. General told friends that she had spoken to the appellant about the pregnancy and he did not want her to have the baby. According to the witnesses, the appellant told Ms. General that he had definite plans for his future, including university, and that a baby would ruin those plans.

[10] The appellant testified that when Ms. General told him he was the father of her baby, he asked her to get a DNA test to confirm the paternity. He said that Ms. General seemed prepared to raise the child herself, although she told him she needed his signature on a birth certificate so that the baby could be a status member of the Six Nations Reserve. The appellant also indicated that he was prepared to help out with the baby if he could.

[11] On January 22, 2008, the appellant was home from college and he and Ms. General agreed to meet to talk about the pregnancy. He picked her up at her home and they drove to his house. At some point in the late afternoon or early evening as they were leaving, the appellant strangled Ms. General causing her death. The appellant buried Ms. General’s body in the bush near his home the next day. Ms. General’s mother reported her missing on the January 23rd. Her body was not found until April 25, 2008.

[12] The appellant gave two different versions of the events culminating in Ms. General’s death at his home on January 22, 2008. He gave the first version in a statement to the police made after his arrest on April 28, 2008, and the second version when he testified.

[13] In the first version, the appellant told Detective Bickerton that as he and Ms. General were leaving his house, she tripped and fell down a step, landing on her knee or shin. The appellant told the officer that Ms. General looked at him and said, “If this baby’s like, this baby’s gone, it’s your fault, I’m telling everyone it was you”.

[14] The appellant told Detective Bickerton that he intended to take Ms. General home, but she insisted on going to a friend’s home indicating “she’ll tell her what happened”. The appellant continued: “And then I guess everything just, everything just hit me at once”.

[15] The officer asked “what happened next?” and the appellant replied:

I don’t know, I just grabbed her and I don’t know I just like start choking her and I don’t know like I wanted to stop then I don’t know I just felt like it was um, I had gone too far … no matter what I did at that point nothing could help me.

[16] Later in the statement, Detective Bickerton asked the appellant to explain how he had choked Ms. General. That question led to the following exchange:

(Kent HILL) Um, ah, I’m tryin’ to remember. Um, I just like, my thumbs were like this.

(Det BICKERTON) With your thumbs?

(Kent HILL) Yeah.

(Det BICKERTON) With your hands up to her throat?

(Kent HILL) Yeah.

(Det BICKERTON) I mean you’re a big strong guy and things probably didn’t last too long. How long do you think it, the whole thing lasted?

(Kent HILL) Like three minutes or something like that.

(Det BICKERTON) Three minutes?

(Kent HILL) Maybe yeah.

[17] In his trial version of the events, the appellant testified that he and Ms. General spent the afternoon at his home. They talked about her pregnancy. They were getting along well until Ms. General said she wanted to have sex with the appellant and he declined. According to the appellant, Ms. General’s mood changed at that time. They decided to leave the appellant’s home and return to Ms. General’s home at about 5:30 p.m.

[18] As the appellant and Ms. General were leaving his home, she fell down the flight of steps from the porch at the back of the home. Ms. General told the appellant that if she lost the baby, she would tell everyone that he had thrown her down the steps. She was screaming obscenities at him and he could not calm her down.

[19] The appellant and Ms. General walked towards his vehicle. Ms. General slipped and fell a second time about five feet from the car. She said, “I’m telling Shannon [her friend] what you did to me”. The appellant testified that Ms. General was frantic, angry and continued to hurl obscenities at him. Ms. General then struck the appellant with her right hand across the face, knocking his glasses off. He testified that he put his hands on Ms. General’s shoulders to restrain her, but she continued to strike out and swear at him.

[20] The appellant testified that he “snapped”. He could not remember what he did next, but he recalled his hands being around Ms. General’s neck and releasing his grip on her neck. She was lying motionless on the ground and did not have a pulse.

[21] The appellant took Ms. General’s body into the barn on his property and covered it. He went back to his house, washed up and went over to a cousin’s home for the night. The next day, the appellant returned to his home, removed most of the clothing from Ms. General’s body, put her body in a sleeping bag, and dragged it into the bush near his house. The appellant dug a grave and buried Ms. General’s body. He eventually burned the sleeping bag and Ms. General’s clothing.

[22] The appellant lied to various people about Ms. General’s whereabouts. In early March 2008, Ms. General’s mother learned that the appellant had visited Ms. General on the day she disappeared. She spoke with the appellant and asked about her daughter’s whereabouts. The appellant told her that he had visited Ms. General and that they had driven around for a while. She then asked the appellant to drop her off near to where she worked. The appellant told Ms. General’s mother that he had not seen her since.

[23] The police spoke to the appellant on March 16, 2008. He confirmed that he had seen Ms. General on the day she disappeared and that they had discussed her pregnancy. She told him that he was the father. The appellant indicated he doubted that he was the father. The appellant told the police that he had dropped Ms. General off near the pizza shop where she worked. He had not seen her since.

[24] The appellant spoke to the police again on March 20th and April 7th. He basically repeated the story he had told the police on March 16th. He added more detail about his casual sexual relationship with Ms. General. He told the police that he doubted that he was the father of her child because he had worn a condom. He also described Ms. General as promiscuous and identified other people who had sex with her. In the April 7th meeting with the police, the appellant was specifically asked whether he had harmed Ms. General. He replied, “no way”.

[25] In late March, the appellant sent an email to his former girlfriend in which he set out a rather elaborate lie concerning his contact with Ms. General immediately before she disappeared. He portrayed himself as having been abandoned by his former girlfriend, and as a friend who was prepared to lend a sympathetic ear to Ms. General’s troubles. The appellant told his former girlfriend that Ms. General had changed her mind about speaking to the appellant and that he had dropped her off at her request.

[26] In early April, the appellant forged a letter purportedly from Ms. General to her mother. He left the letter in a neighbour’s mailbox with directions that it should be delivered to Ms. General’s mother. In the letter, the appellant, pretending to write as Ms. General, apologized to her mother for leaving suddenly, indicating that she was fine, but would not be home for a while. The neighbour who received the letter called the police and turned the letter over to them.

[27] After the police discovered Ms. General’s body, the appellant knew he would be arrested. He fled, but was arrested the next day in North Bay.

[28] The appellant offered various explanations for his conduct between Ms. General’s death and his eventual arrest. He testified that immediately after strangling Ms. General, he could not believe what had happened. By the next day, he was remorseful and afraid that his actions would bring dishonour on his family. The appellant also acknowledged that he was afraid of being questioned by the police and charged with the homicide.

[29] The pathologist who performed the autopsy on Ms. General’s body could not give a precise opinion as to how long the appellant had applied force to Ms. General’s neck. Based primarily on the bruising to the neck, he concluded that it was most likely that the force was applied for between two and four minutes. He agreed that this was a “broad estimation”.

[30] The post-mortem revealed bruising on Ms. General’s legs consistent with her falling or being pushed to the ground. The appellant’s DNA was found under Ms. General’s fingernails.

[31] The post-mortem confirmed that Ms. General was pregnant. DNA from the appellant was consistent with the DNA profile of the fetus.

the conviction appeal

A. The Cross-Examination of the Appellant

[32] The appellant gave a 1½ hour videotaped statement to Detective Bickerton, the investigating officer, shortly after his arrest on April 28, 2008. In the interview, Detective Bickerton presented himself as very sympathetic to the appellant’s position. The officer explained that he used a “blame the victim” technique to encourage the appellant to talk about what had happened.

[33] The appellant eventually described strangling Ms. General by the car after they had left his house. He described how he put his hands around Ms. General’s throat and applied pressure. Despite being given opportunities to do so by Detective Bickerton’s questions, the appellant made no reference in the course of the lengthy interview to any verbal abuse or physical assault by Ms. General.

[34] The admissibility of the statement was not challenged at trial.

[35] In his examination-in-chief, the appellant described at length Ms. General’s assaults and abusive language that immediately preceded the strangulation. He also professed to have no recollection of the actual strangulation.

[36] Counsel for the appellant (not Mr. Breen), during examination-in-chief made two or three references to the appellant’s statement to Detective Bickerton on April 28th. The most significant occurred in an exchange near the end of the examination-in-chief:

Q. Why, in your confession to the police, I know it’s not terribly detailed, but you don’t mention in there about Tashina [Ms. General] striking you in the face? Why is that?

A. I did not think that made any relevance because at the time I was 6’3”, 215 pounds. Like I, I’m a very athletic person and she was a lot smaller than me. I, I didn’t think that made any relevance.

[37] Not surprisingly, much of the appellant’s cross-examination focused on the many statements the appellant had made to the police and others denying any involvement in Ms. General’s death. That cross-examination included extensive references to the appellant’s April 28th confession to Detective Bickerton. The appellant acknowledged that when he spoke to Detective Bickerton, he was “pouring his heart out” and wanted to tell the truth so that Detective Bickerton would understand exactly what happened.

[38] In the course of the cross-examination, Crown counsel confronted the appellant with the absence of any reference in the statement to Ms. General repeatedly swearing at the appellant and hitting him in the face immediately before he strangled her. The appellant responded that he was “traumatized” and “very emotional” while giving the statement. He indicated that the statement omitted many details.

[39] Crown counsel also cross-examined the appellant about the detailed description of the strangulation he had given in the statement. The appellant insisted that he could not recall those details at trial, but could only remember letting go of Ms. General’s neck. He also could not recall whether Ms. General fought back while he strangled her. Eventually, the appellant testified that he did not lie in his statement to Detective Bickerton, but that “there’s a lot left out”.

[40] Ultimately, the Crown suggested to the appellant that his evidence was significantly different than his statement to Detective Bickerton because he was attempting to put himself in a much better light than he had when he confessed to Detective Bickerton. The appellant denied that suggestion.

[41] There was no objection to any part of Crown counsel’s cross-examination of the appellant on his April 28th statement to Detective Bickerton.

[42] On appeal, counsel submits that the cross-examination amounted to an invitation to the jury to use the accused’s silence either as evidence of guilt or to impeach the credibility of his trial testimony. Counsel submits that an accused’s failure to provide details in a statement to the police amounts to the exercise of the right to silence and that cross-examination about the failure to provide such details is the same as cross-examination on the exercise of the right to remain silent.

[43] With few exceptions, an accused’s exercise of his right to silence when questioned by the police cannot be used as circumstantial evidence of guilt or to impeach the credibility of the accused’s trial testimony: R. v. Turcotte (2005), 2005 SCC 50, 200 C.C.C. (3d) 289, at paras. 46-58 (SCC); R. v. Palmer, 2008 ONCA 797, [2008] O.J. No. 4753, at para. 9. An accused who testifies can, however, be cross-examined on prior inconsistent statements, assuming those statements are admissible: R. v. Paris, 2000 CanLII 17031 (ON CA), [2000] O.J. No. 4687, at para. 41. Cross-examination on a prior inconsistent statement may be used to impeach the credibility of the accused, or in an attempt to have the accused adopt the prior statement as true.

[44] Counsel for the appellant submits that cross-examination on inconsistencies between a prior statement and trial testimony cannot extend to cross-examination on omissions from the prior statement. On this approach, Crown counsel’s cross-examination of the appellant about his failure to mention Ms. General’s verbal abuse and assault would infringe the appellant’s right to silence, but Crown counsel’s cross-examination on the inconsistency between the appellant’s recollection of the act of strangling Ms. General in his statement and his inability to recall any of those details at trial would be appropriate.

[45] With respect, the distinction counsel attempts to draw is not tenable. Omissions can be integral to the existence of material inconsistencies between two versions of events. An account of an event which leaves out important details may be viewed as inconsistent with a subsequent account that includes those details.

[46] The propriety of cross-examination on a prior statement made by an accused to the police turns on the purpose of the cross-examination. If the cross-examination is designed to challenge the credibility of an accused’s testimony based on inconsistencies between that testimony and a previous version of events provided by the accused, the cross-examination is appropriate. If, however, the cross-examination invites the trier of fact to draw an adverse inference from the accused’s silence when questioned by the police, the cross-examination is inappropriate. Sometimes, both purposes may be in play. A trial judge can refuse or limit cross-examination on the prior statement when there is a legitimate concern that the cross-examination may trespass improperly on the accused’s right to silence. The trial judge may also give a limiting instruction cautioning against misuse of the right to silence if the cross-examination merits that instruction.

[47] This cross-examination presented no risk that the jury would draw an adverse inference from the appellant’s silence when questioned by Detective Bickerton. The Crown did not suggest he remained silent about anything. The cross-examination forcefully suggested that the appellant’s trial version of the relevant events was significantly different from his initial version given to Detective Bickerton in two important respects. First, the trial version introduced a basis for a provocation claim that was entirely absent from the version given to Detective Bickerton. Second, the trial version excluded the appellant’s description of the actual strangulation as provided in his first version of the events. That description could go a long way to supporting the Crown’s claim that the appellant intended to kill Ms. General. These significant differences provided ample ground for the Crown’s argument that the appellant’s testimony was fabricated in an effort to avoid the full force of the confession he had given to Detective Bickerton. The cross-examination did not invite the jury to draw any inference from the appellant’s silence.

[48] The cross-examination of the appellant on his failure to mention Ms. General’s verbal and physical abuse in his initial statement can be justified on a second basis. Counsel for the appellant chose to specifically ask the appellant why he did not mention Ms. General’s conduct in his statement to the police. The appellant gave an explanation for his failure to mention Ms. General’s conduct (supra, para. 35). Counsel’s question opened the door to cross-examination challenging the appellant’s explanation for not mentioning Ms. General’s conduct.

B. The Instruction on Intent

[49] Counsel for the appellant submits that the trial judge made two errors in his instructions on intent. First, he wrongly told the jury that the appellant’s conduct after he strangled Ms. General, including the burial of the body and the many lies told to the police and others by the appellant, could support an inference that the appellant intended to kill Ms. General, or intended to cause her bodily harm that he knew was likely to cause her death. Counsel submits that while the appellant’s conduct provided strong evidence that he had unlawfully caused Ms. General’s death, it could not support a further inference that he had the mens rea required for murder when he strangled Ms. General. Counsel contends that this error was particularly significant. The appellant’s conduct after the homicide was largely unchallenged and placed the appellant in a very bad light. Counsel submits that, based on the instruction given by the trial judge, the jury may well have improperly used that unchallenged discreditable conduct to find that the appellant had the necessary intent for murder.

[50] The appellant also submits that the trial judge failed to instruct the jury that even if it rejected the statutory defence of provocation, it was still required to consider the evidence of Ms. General’s alleged provocative acts and the appellant’s reaction to those acts in deciding whether the Crown had proved the requisite intent beyond a reasonable doubt.

(i) Intent and after-the-fact conduct

[51] At trial, the Crown did not take the position that the appellant’s post-homicide conduct was relevant to the appellant’s state of mind when he killed Ms. General. The Crown argued that the conduct was relevant to the appellant’s credibility as a witness and to rebut the evidence of good character called by the appellant. The defence agreed with the position taken by the Crown.

[52] The trial judge, however, decided that the evidence of the appellant’s post-offence conduct was relevant to the issue of intent. Under the heading “The Post-Offence Conduct”, the trial judge referred the jury to the evidence that the appellant had hid Ms. General’s body in the barn immediately after killing her, buried her body the next day, and told various lies to several people, including the police, about Ms. General’s whereabouts. He then told the jury:

The evidence of what Kent Hill did and said after he killed Tashina General is not necessarily evidence of intent to murder …

… Whether what Kent Hill did and said after he killed Tashina General were attempts by him to conceal his involvement in assaulting her and killing her, as opposed to killing her with the intent which makes the killing murder, is for you to decide. You must not let your natural disapproval of what Kent Hill did and what he said, to influence you in the use of this evidence to decide the central issue of whether or not he had the intent as defined in the law, to murder Tashina General. You must look at this evidence in the context of all of the evidence.

[53] This instruction echoed an earlier more general instruction in which the trial judge told the jury that in considering the appellant’s intention at the time he killed Ms. General, the jury should consider the appellant’s conduct “before, at the time, and after the unlawful act that caused Tashina General’s death”.

[54] The appellant went to some lengths in the hours, days, weeks and months following Ms. General’s death to hide the fact that she was dead and that he had killed her. His conduct strongly supported the inference that he had unlawfully caused her death. Did it also support the further inference that he did so with the state of mind required for murder under s. 229(a)?

[55] The Crown, on appeal, presents two alternative arguments to support the relevance of the appellant’s post-offence conduct to his state of mind at the time he killed Ms. General. The Crown argues that, as a matter of common sense and human experience, a jury could infer that the appellant buried Ms. General’s body in an effort to destroy evidence that could show the nature and extent of Ms. General’s injuries. The nature and extent of those injuries could support the Crown’s case on the issue of intent: see R. v. Rodgerson, 2015 SCC 38, [2015] S.C.J. No. 38, aff’g 2014 ONCA 366; R. v. Teske, 2005 CanLII 31847 (ON CA), [2005] O.J. No. 3759 (C.A.).

[56] The Crown also submits that the appellant’s burial of Ms. General’s body and his numerous lies about her whereabouts could reasonably support the inference that the appellant was motivated by a desire to avoid the responsibility of parenthood. The appellant’s motive dictated not only that he kill Ms. General, but that he make her disappear. On the Crown’s argument, if the body was found, tests would demonstrate that the appellant was the father of the unborn child, thereby revealing his motive to kill Ms. General and potentially identifying him as the killer. The Crown submits that as evidence of motive is relevant to intent, evidence of an attempt to hide that motive must also be relevant to intent.

[57] I do not agree that the appellant’s conduct in hiding and then burying the body could be seen as an effort to destroy evidence capable of showing the nature and extent of the injuries which in turn were capable of supporting an inference of intent. This was not a situation like Rodgerson in which the evidence of the injuries to the body, which the accused attempted to destroy as well as bury, and the blood at the scene, which the accused attempted to clean up, suggested a multi-blow attack consistent only with the intention required for murder under s. 229(a). In this case, the condition of the body indicated that Ms. General had been strangled and little else. The bruising on the neck did allow the pathologist to provide a broad estimate as to the length of time over which the appellant applied force to Ms. General’s neck. That opinion was potentially significant on the issue of intent. It is, however, farfetched to suggest that the appellant was aware of and appreciated the significance of the bruising and took steps to hide the body to avoid discovery of the telltale bruising.

[58] As with any inference-drawing process, the primary facts are crucial. It would be unreasonable to infer from the primary facts in this case that the appellant hid and buried the body to conceal the nature and extent of the bruising on Ms. General’s neck.

[59] There is more substance to the Crown’s second argument. Evidence of motive is relevant to identity and to intent: see R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at paras. 113-17. Evidence of motive can be particularly significant when deciding whether an admitted unlawful killing amounted to murder or manslaughter.

[60] Evidence that the appellant was the father of Ms. General’s unborn child was an important piece of evidence, relied on by the Crown to establish the motive alleged by the Crown for the homicide. The burying of the body by the appellant and his attempt to lead others, including Ms. General’s mother, to believe she was still alive might reasonably support the inference that the appellant knew that the discovery of the body would reveal his motive for killing Ms. General and thereby implicate him in the murder.

[61] Although Crown counsel’s argument connecting some of the appellant’s after-the-fact conduct to intent through proof of motive has merit, it does not assist the Crown on the appeal. The trial judge did not leave the appellant’s after-the-fact conduct with the jury on the limited basis now suggested by the Crown. He invited the jury to consider the after-the-fact conduct that he identified (hiding the body, burying the body, lying to various people) as evidence of intent without any explanation or qualification. This non-direction is identical to the error identified in Rodgerson, at para. 28. The trial judge’s open-ended invitation to the jury to consider the appellant’s after-the-fact conduct as evidence from which it could infer the requisite intent for murder constituted an error in law.

[62] The error was potentially significant. Intent was one of two live issues at trial. Given the nature of the after-the-fact conduct, a jury could easily have concluded that the appellant acted in a callous and calculating manner for over three months in an attempt to avoid responsibility for his actions. A jury could further conclude that the callous and calculating nature of the conduct was consistent with the conduct of a murderer as opposed to someone who had not intended to kill Ms. General. Absent a proper instruction, a jury may well have improperly inferred from the nature of the accused’s conduct after Ms. General’s death that he killed her with the intent required for murder.

(ii) The failure to relate the evidence of provocation to the issue of intent

[63] Apart from his instruction that some of the appellant’s after-the-fact conduct was relevant to intent, the trial judge did not relate any of the evidence to the issue of intent. He did tell the jury that it could conclude that the appellant intended the natural consequences of his actions when he strangled Ms. General. He also told the jury that it was the defence position that the appellant had “snapped” and had not meant to cause death or bodily harm.

[64] Counsel for the appellant submits that the trial judge should have told the jury that the appellant’s evidence that he “snapped” in reaction to Ms. General’s verbal abuse and physical assault was evidence that the jury must consider in determining whether the appellant had the necessary intent for murder. Counsel submits that the appellant’s evidence concerning his response to Ms. General’s provocative acts was logically relevant to his state of mind when he caused her death. Counsel further submits that it was necessary for the trial judge to specifically link that evidence to the issue of intent because the trial judge did specifically relate that evidence to the statutory defence of provocation. Counsel argues that without an instruction indicating that the evidence was also relevant to intent, the jury may well have viewed that evidence as relevant only to provocation. The provocation defence, of course, assumes that the appellant had the requisite intent for murder.

[65] This court has held that if evidence is relevant to a specific defence like provocation, but also relevant to the issue of intent, the trial judge should make both potential uses of the evidence clear to the jury: R. v. Fraser (2001), 2001 CanLII 8611 (ON CA), 56 O.R. (3d) 161, at paras. 25-26 (Ont. C.A.); R. v. Flores, 2011 ONCA 155, 269 C.C.C. (3d) 194, at paras. 72-85. In Flores, Watt J.A., at para. 75, explained why evidence relevant to both intent and a discrete defence should be related separately to both issues by the trial judge:

In the end, whether by express words or otherwise, what jurors must understand is that, in deciding whether the prosecutor had proven either state of mind essential for an unlawful killing to be murder, they must consider all of the evidence that sheds light on the accused’s state of mind at the time of the killing, even if they have rejected the specific defence, justification or excuse to which that evidence is also relevant.

[66] The trial judge should have specifically told the jury that apart from the defence of provocation as he had explained it to them, the jury should consider the appellant’s evidence concerning his response to Ms. General’s alleged verbal and physical abuse when determining whether the appellant had the requisite intent for murder.

C. The Provocation Instruction

(i) Was the defence available on the evidence?

[67] Before turning to the alleged errors in the instruction on provocation, I will address the Crown’s argument that any errors in the instruction are irrelevant as the defence should not have been left with the jury. The Crown contends that there was no “air of reality” to the defence as that term was explained in R. v. Pappas, 2013 SCC 56, [2013] 3 S.C.R. 452, at para. 21:

The question is whether a properly instructed jury, acting reasonably, could be left in a state of reasonable doubt as to whether the accused is guilty of murder on the basis of the defence of provocation. There must be an evidential foundation for both the objective and subjective elements of the defence, which s. 232(3) of the Criminal Code states are questions of fact.

[68] The limited weighing of the evidence contemplated by the air of reality test requires that the trial judge determine whether the evidence viewed as a whole is reasonably capable of supporting a credible narrative of events that would warrant an acquittal on the charge of murder by a jury properly instructed on the elements of provocation. A credible narrative does not exist where the only evidence of provocation consists of isolated shreds of evidence ripped from the context of the narrative as a whole.

[69] The appellant’s trial evidence, and to a lesser extent parts of his statements to Detective Bickerton, provided an evidentiary basis upon which a jury could have a reasonable doubt as to whether the appellant, in strangling Ms. General, acted on the sudden in response to the unanticipated verbal and physical abuse from Ms. General. His evidence provided a basis upon which the jury could conclude that the provocative conduct came upon the appellant on the sudden and that he reacted immediately to the provocative conduct: see Pappas, paras. 34-38.

[70] The Crown’s submission that there is no air of reality to the provocation defence is strongest in respect of the objective component of that defence. One is hard pressed to conclude that an ordinary person of the appellant’s age and in the circumstances of the appellant would lose control and kill Ms. General because of the relatively minor assault and insults directed at him by her. However, as pointed out in Pappas, at para. 33:

What would suffice to cause an ordinary person to lose self-control is a question of degree that the jury is well placed to decide, and which, in cases of doubt should be left to the jury.

[71] I would characterize this as one of those “cases of doubt”. Unless the jury entirely rejected the appellant’s testimony, the defence of provocation was available.

(ii) The alleged errors in the provocation instruction

[72] The appellant alleges five errors in the trial judge’s instruction on provocation. Most of the submissions target the trial judge’s response to the jury’s question seeking clarification of the definition of “loss of self-control” as it related to the “ordinary person test”. Three of the submissions can be addressed summarily.

[73] The appellant’s contention that the trial judge’s response to the question reversed the burden of proof on provocation ignores the trial judge’s repeated correct instructions on the burden in his initial charge. The jury’s question was not addressed to the burden of proof. Nor was the answer. The jury would not have been misled as to the burden of proof by the trial judge’s response to their question.

[74] The appellant submits that the trial judge misstated the evidence in his response to the jury. The trial judge’s indication that the only evidence of what the appellant did in response to the alleged provocative conduct of Ms. General came from the respondent’s statement was not an unfair description of the state of the evidence. In his trial testimony, the appellant purported to have no recollection of what he did in response to Ms. General’s verbal and physical abuse. His first recollection was releasing his grip from her throat.

[75] The appellant’s submission that the trial judge’s response to the jury’s question wrongly described provocation as negating intention cannot be accepted. In the impugned passage, the trial judge simply reminded the jury that it was the Crown’s position that the appellant had never lost control and had intentionally choked Ms. General. This brief articulation of the Crown’s position would not have confused the jury as to the operation of the defence of provocation.

[76] Two arguments arising out of the provocation instruction require a more detailed analysis. The trial judge told the jury that in considering whether the ordinary person would have been deprived of the power of self-control by the alleged provocative acts, the jury should endow that ordinary person with the same physical makeup as the appellant, and should consider the relative sizes of the appellant and Ms. General. The appellant was 6’2”, 215 pounds and a well-conditioned athlete. Ms. General was 5’5” and weighed 140 pounds.

[77] Counsel submits that the trial judge erred in instructing the jury that the appellant’s size and physical condition, as well as the relative sizes of the appellant and Ms. General were relevant to a determination of whether the ordinary person would have lost control. He contends that this instruction, especially when coupled with the Crown’s closing argument in which Crown counsel urged the jury to consider the reasonableness of the appellant’s response to the alleged provocative acts, would suggest to the jury that the provocation defence was available only if the response to the provocation was justified or at least proportional to the provocative conduct. Counsel argues that killing under provocation can be the antithesis of a proportional response and still fall within the partial defence created by s. 232: e.g. see R. v. Squire (1975), 29 C.C.C. (2d) 219, at 234 (Ont. CA.), rev’g on other grounds (1976), 1976 CanLII 26 (SCC), 29 C.C.C. (2d) 497 (SCC), contra Mancini v. D.P.P., [1942] A.C. 1 at 9.

[78] The ordinary person or objective component of the provocation defence is embedded in the language of s. 232(2) which requires that the provocative act must “be sufficient to deprive an ordinary person of the power of self-control”. This objective component of the defence imposes a minimum standard of self-control on all members of the community and seeks to reflect the fundamental values that animate and order Canadian society: R. v. Hill, 1986 CanLII 58 (SCC), [1986] 1 S.C.R. 313, at paras. 17-18; R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at paras. 30-34; R. v. Cairney, 2013 SCC 55, [2013] 3 S.C.R. 420, at para. 37.

[79] The ordinary person, for the purposes of s. 232(2), is a sober person of “normal temperament” who is not exceptionally excitable or pugnacious: R. v. Hill, at para. 34. The ordinary person also assumes any general characteristic of the accused that is relevant either to the level of self-control expected of a normal person, e.g. age, or to the significance of the provocation in question, e.g. race if the provocative act is a racial slur.

[80] The impact of the provocative act on the ordinary person must also be contextualized, meaning it must be considered in the context of the circumstances faced by the accused. The question is – would an ordinary person, placed in the circumstances of the accused, be deprived of the power of self-control? The circumstances for the purposes of the ordinary person inquiry include any factor relevant to the gravity of the provocation: R. v. Hill, paras. 35-37; R. v. Cairney, at para. 38; K. Roach, Criminal Law, 5th ed., Owen Law Inc. 2012, at p. 418.

[81] The trial judge told the jury:

In this case an ordinary person would be someone of the same age and gender as Mr. Hill, who shares with him those other characteristics that would give the wrongful act or insult a special significance in the circumstances. The ordinary person would also be one who has experienced the same series of acts or insults as Mr. Hill, and shares the past history and relationship between Mr. Hill and Tashina General.

[82] This instruction contextualizes the ordinary person standard in accordance with Hill and subsequent cases from the Supreme Court of Canada. However, the trial judge went on to say:

Even if you accept Mr. Hill’s evidence, you will consider whether the ordinary person who is 6’2”, 215 pounds and a well-conditioned athlete, would lose his self-control because of the conduct of a woman who is 5’5” and 140 pounds.

[83] In response to the jury’s question, the trial judge again referred to the appellant’s size and athletic prowess:

If you accept that immediately before his doing this, that Tashina General did and said the things he said she did and said, the question for you to decide is whether this conduct was sufficient to deprive an ordinary person of Mr. Hill’s objective characteristics, namely, male, age 20, 6’2” 215 pounds, and a well-conditioned athlete, to lose self-control and to do the things that he told Detective Bickerton he did.

[84] The general characteristics of an accused, which should be attributed to the ordinary person and the factors that will affect the gravity of the provocation for the purposes of the ordinary person test, will depend on the specifics of the evidence in each case. The loss of control essential to a provocation claim will in most cases be the product of extreme anger or rage. On occasion, the loss of control will flow from extreme fear or a combination of fear and anger: see G. Williams, Textbook of Criminal Law, (1978) Stevens and Sons London, at p. 477. The appellant’s provocation claim had nothing to do with any alleged fear of Ms. General. This was a pure rage-based provocation claim. The characteristics to be attributed to the ordinary person and the factors to be taken into account in assessing whether an ordinary person would have lost control must have regard to the nature of the provocation claim advanced by the appellant.

[85] The appellant’s size and athletic ability are not characteristics that have any inherent relevance to the degree of self-control expected of an ordinary person. Large people or good athletes are not expected to have more or less self-control than small people who are not athletic.

[86] It is unnecessary to fix the ordinary person with the appellant’s size and athletic ability to properly assess whether the alleged provocative conduct was sufficient to cause an ordinary person to lose the power of self-control.

[87] Finally, the difference in size between the appellant and Ms. General is not a factor that is necessary to a proper understanding of the potential effect of the provocative conduct on the “ordinary person”. Were this a case in which the alleged loss of control by the appellant was at least partially fear-based, the relative sizes of the provocateur and the appellant may have been relevant to a consideration of whether the ordinary person would have lost control. However, this provocation claim was entirely rage-based. In my view, the relative sizes of the appellant and Ms. General did not have any relevance in the circumstances of this case to an assessment of the impact of the alleged provocative conduct on the ordinary person component of the provocation test.

[88] The trial judge erred in referring to the appellant’s size and athletic ability and the difference in size between the appellant and Ms. General when instructing the jury on the ordinary person component of the provocation defence. There is merit to the submission that by inviting the jury to compare the respective size of the appellant and Ms. General as part of the ordinary person test, the jury may have taken the trial judge to be instructing them that the reasonableness or even justifiability of the appellant’s response to Ms. General’s provocative acts was a relevant consideration in the application of the ordinary person test. Unlike some defences, e.g. self-defence and duress, provocation does not measure the conduct of the accused against standards of reasonableness or proportionality: R. v. Tran, at para. 22; W. Renke, “Calm like a Bomb: An Assessment of the Partial Defence of Provocation” (2010), Vol. 47 No. 3 Alta. L. Rev. 729 at p. 746; R. v. Timoti, [2005] NZSC 37, at paras. 33-43. It was certainly no part of the appellant’s provocation claim that he acted reasonably or with justification. The instruction may have undermined the provocation defence by inviting the jury to measure the viability of that defence against the justifiability or reasonableness of the appellant’s conduct.

[89] The appellant’s last argument advanced in relation to the provocation instruction focuses on the very last words that the trial judge said to the jury in response to their question about provocation. His instructions are quoted above (para. 83). For convenience, I will repeat them here:

If you accept that immediately before his doing this, that Tashina General did and said the things he said she did and said, the question for you to decide is whether this conduct was sufficient to deprive an ordinary person of Mr. Hill’s objective characteristics, namely, male, age 20, 6’2” 215 pounds, and a well-conditioned athlete, to lose self-control and to do the things that he told Detective Bickerton he did.

[90] Counsel for the appellant submits that the trial judge erred in telling the jury that the ordinary person test required that the provocative conduct be sufficient to cause an ordinary person, not only to lose self-control, but “to do the things that he [the appellant] told Detective Bickerton he did”. He submits that s. 232(2) speaks only to the ordinary person’s loss of control and does not require the jury to consider whether the ordinary person, having lost control, would have done exactly what the accused did. Counsel contends that the ordinary person test is intended to protect against affording a defence to persons whose conduct does not conform to the minimum level of self-control expected of everyone in the community. He argues that the purpose of the objective component of the provocation test is fully served once it is determined that the provocative act was sufficient to deprive an ordinary person of the power of self-control. What the ordinary person would have done having lost control, counsel argues is both irrelevant and unknowable.

[91] Counsel relies on two authorities from this court: R. v. Carpenter (1993), 1993 CanLII 8591 (ON CA), 83 C.C.C. (3d) 193, at 197 (Ont. C.A.); R. v. Keller, [1993] O.J. No. 2101, at paras. 19-20 (Ont. C.A.). In Carpenter, Austin J.A. said, at p. 197:

The “ordinary person” test is directed to loss of control, not the conduct flowing from that loss of control. The question is not whether an ordinary person would have done as the accused did, but whether an ordinary person would have lost the power of self-control.

[92] The model jury instruction provided in Watt’s Manual of Criminal Jury Instructions (2d edition), at p. 1235, is consistent with these authorities:

The question is not whether the ordinary person would have lost his/her self-control and end up doing exactly what (N.O.A.) did in this case. In other words, what is important is the loss of self-control, not the precise form it took.

[93] At common law and under English legislation, jurors are routinely told to consider whether the ordinary person would have reacted to the provocative conduct “as the accused did”: D.P.P. v. Camplin, [1978] A.C. 705, at 718, Homicide Act, 1957, 5 and 6 Eliz. Ch. 11, s. 3; see also Coroner’s and Justice Act, 2009, c. 29, s. 54. Unlike the English legislation, s. 232(2) does not specifically require that the ordinary person, having lost control, act as the accused acted. The focus is on the loss of control. The distinction may be important in a case in which the reaction of the accused to the provocative conduct is particularly extreme. A jury told to consider whether the ordinary person would have acted as the accused did might find against the accused on the basis that while the ordinary person may have lost control and murdered the victim, the ordinary person would not have engaged in the extreme acts of violence perpetrated by the accused.

[94] I do not, however, read the authorities from this court, or the model jury charge, as suggesting that any level of loss of self-control by the hypothetical ordinary person would satisfy the ordinary person component of the provocation test: see R. v. D.L., 2005 ONCJ 343, [2005] O.J. No. 3182, at para. 26. For example, if the provocative conduct was sufficient to cause an ordinary person to lose control to the extent that the ordinary person would verbally abuse the author of the provocative conduct, that degree of loss of control could not satisfy the ordinary person component of the provocation test in s. 232. The question for the jury in applying the ordinary person test is not whether the ordinary person would have done the same thing that the accused did, but whether the provocative conduct would be sufficient to cause an ordinary person to lose control to the degree that the ordinary person would form the necessary intention for murder under s. 229(a) and act on that intention.

[95] The proper approach is found in Masciantonio v. The Queen (1994-95), 183 CLR 58, at 69 (H.C.). In reference to the common law defence of provocation, the majority said:

… the conduct in question must have been capable of provoking an ordinary person to retaliation of the like nature and extent as that of the accused. The question is not whether an ordinary person, having lost his self-control, would have regained his composure sooner than the accused nor is it whether he would have inflicted a lesser number of wounds. It is whether an ordinary person could have lost control to the extent that the accused did. That is to say, the question is whether the provocation, measured in gravity by reference to the personal situation of the accused, could have caused an ordinary person to form an intention to kill or do grievous bodily harm and to act upon that intention, as the accused did, so as to give effect to it. [Emphasis added.]

[96] The same approach is favoured in New Zealand. In Timoti, at para. 46, the court, in interpreting a provision that was very similar to s. 232, said:

When s 169(2)(b) speaks of provocation which has deprived the offender of the power of self-control and has thereby induced the act of homicide, it is implicit that the act of homicide encompasses not only the physical action which caused the death but also the necessary murderous intent. It follows that for the purposes of the evaluative question the provocation must have been sufficient to cause the statutory hypothetical person to lose the power of self-control to the point of forming the necessary murderous intent as well as performing an action which caused death. In short, the provocation must have been sufficient to cause in the hypothetical person loss of self-control inducing both a murderous act and murderous intent. What is not relevant to the evaluative question is the degree of the loss of self-control beyond that point….[^1] [Emphasis added.]

[97] The Crown relies on R. v. Mayuran, 2012 SCC 31, [2012] 2 S.C.R. 162, at para. 31, to support the trial judge’s instruction. In that case, in the course of holding that there was no air of reality to a provocation defence, the court said:

Based on this record, a properly instructed jury could not conclude that an ordinary person in [the appellant’s] circumstances would be deprived of self-control when “scolded” about her level of education to such a degree that she would stab the person 45 times in a responsive rage. This, it seems to me, has absolutely no air of reality.

[98] The language in Mayuran does suggest that the jury should consider whether the ordinary person would have done the same thing that the accused did in considering the defence of provocation. Mayuran was not, however, concerned with the essential elements of the ordinary person component of the provocation test, but turned on the application of the well-known “air of reality” test to the evidence said to support a provocation instruction. The evidence that the accused stabbed the victim 45 times clearly signalled that the accused intended to kill the victim. I think the above-noted passage from Mayuran can be read as a finding that the relatively trivial nature of the unlawful conduct said to have precipitated the multiple stabbing, could not have caused an ordinary person to lose control to the point of forming the intention to murder the victim and acting on that intention. I certainly do not read Mayuran as suggesting that there may have been some air of reality to the provocation defence had the appellant stabbed the victim fewer times than she did.

[99] The closing words of the recharge could have been understood by the jury as instructing them to consider whether the ordinary person would have lost control and strangled Ms. General as the appellant did. It would have been more accurate to tell the jury that the provocative conduct must be sufficient to cause an ordinary person to lose control, form the intention for murder as described in s. 229(a), and act upon that intention, even if not necessarily in the same way as the appellant.

[100] I am satisfied, however, that the more complete instruction would not have assisted the appellant. This was not a case in which the appellant’s conduct, assuming provocation, would have been regarded as so extreme by the jury as to be beyond the reaction of the ordinary person, even if that ordinary person had been provoked and lost control. Furthermore, the more complete instruction outlined above would only have emphasized the requirement that the provocative act be such as to cause the ordinary person to lose control and form the intention to commit murder under s. 229(2). This instruction emphasizes the high degree of provocation required to give rise to the partial defence. An instruction clearly identifying the requirement that the ordinary person lose control to the point of forming the intention to commit murder could not have assisted the appellant given the relatively minor nature of the provocative conduct described by the appellant.

D. The application of the Curative Proviso

[101] Section 686(1)(b)(iii) may be applied where the Court of Appeal is satisfied that any errors in law caused “no substantial wrong or miscarriage of justice” to an accused. When there is more than one error, the effect of the errors taken together must be considered. The curative proviso can be applied if the error is so minor as to be harmless or if the evidence against an accused is overwhelming: see R. v. Mayuran, at para. 45; R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 54, at paras. 25-28.

[102] The misdirection as to the potential relevance of the appellant’s after-the-fact conduct to his intention cannot be described as minor. Absent a proper instruction, there was a real risk that the jury could look to that evidence, largely uncontested, as a significant consideration in deciding whether this was a case of murder or manslaughter. The other errors identified above were less serious than the misdirection on the after-the-fact conduct evidence. They do, however, add some weight to the appellant’s submission that the proviso cannot be applied.

[103] The case for the Crown was formidable, but not overwhelming. Having regard to parts of the appellant’s statement to Detective Bickerton, his testimony, and the character evidence, a reasonable jury, properly instructed, could have returned a verdict of manslaughter.

[104] The curative proviso cannot be applied.

E. Conclusion

[105] I would allow the appeal, quash the conviction and direct a new trial on the charge of second degree murder. I add one caveat. Nothing in these reasons is intended to predetermine, for the purposes of the retrial, the appropriate instruction on the relevance of after-the-fact conduct to the question of intent. As discussed in these reasons, the evidence may have relevance to motive and therefore indirectly to intent. It will fall to the trial judge to decide, based on the evidence and arguments at the retrial, whether there is a reasonable basis upon which some or all of the after-the-fact conduct may assist the jury in determining the issue of intent.

RELEASED: “DD” SEP 15 2015”

“Doherty J.A.”

“I agree E.E. Gillese J.A.”

“I agree D.M. Brown J.A.”

[^1]: New Zealand has abolished the defence of provocation: see Crimes (Provocation Repeal) Amendment Act 2009, s. 4. New Zealand law does, however, give trial judges a narrow discretion to impose a sentence other than life imprisonment on persons convicted of murder: see Sentencing Act 2002, s. 102.