Her Majesty the Queen v. Srun

[Indexed as: R. v. Srun]

Ontario Reports

Court of Appeal for Ontario

Hoy A.C.J.O., Watt J.A., and Then J. (ad hoc)

May 31, 2019

146 O.R. (3d) 307 | 2019 ONCA 453

Case Summary

Criminal law — Evidence — Hearsay — Accused seeking to have exculpatory parts of out-of-court police statement of co-accused admitted as evidence for accused at trial — Trial judge ruling that statement was admissible only in relation to co-accused — Accused's appeal dismissed — Exculpatory parts of accused's statement not being admissible under principled exception to hearsay rule in circumstances of this case — Exculpatory evidence constituting double hearsay — Evidence not satisfying requirements of either procedural or substantive reliability.

Criminal law — Murder — Mens rea — Accused charged with murder and attempted murder as principal under s. 21(1)(a) of Criminal Code — Co-accused charged with manslaughter and aggravated assault as parties under s. 21(2) — Trial judge initially telling jury that s. 21(2) applied to "all counts" but later telling jury that his instructions on s. 21(2) applied only to counts of manslaughter and aggravated assault — Trial judge's inadvertent misstatement that s. 21(2) applied to all counts being harmless as it was clear to jury that accused was charged as principal — Trial judge not erring in failing to give rolled up instruction to jury despite evidence of intoxication — Criminal Code, R.S.C. 1985, c. C-46, s. 21.

Facts

The accused was charged with murder and attempted murder. It was the Crown's position at trial that the accused's liability was that of a principal under s. 21(1)(a) of the Criminal Code. Four co-accused were charged with manslaughter and aggravated assault as parties under s. 21(2) of the Code and were acquitted. The accused was convicted. He appealed.

Decision

Held, the appeal should be dismissed.

In his charge to the jury, the trial judge initially said that s. 21(2) of the Code applied to "all counts". Later in his charge, he told the jury that the instructions on s. 21(2) applied only to the counts of manslaughter and aggravated assault, with which the accused was not charged. The trial judge accurately reviewed the mental elements in s. 229(a) of the Code. The jury would have also appreciated that only the accused was the only one charged with murder and attempted murder and that the Crown's case was that he alone stabbed the victims. In the circumstances, the trial judge's inadvertent misstatement that s. 21(2) applied to "all counts" was a harmless error. The fact that Crown counsel, in describing the elements in s. 229(a)(iii) in his closing address, failed to include the knowledge component -- "means to cause him bodily harm that he knows is likely to cause his death" -- was also harmless, as the trial judge accurately described the mental element in murder under s. 229(a).

The trial judge directed the jury on intoxication, but found that there was no air of reality to self-defence and did not instruct the jury on the statutory partial defence of provocation. The trial judge did not err in failing to give a rolled up charge in his final jury instructions that included references to the evidence of intoxication and the provoking conduct of the deceased that, even if it did not amount to provocation, may have produced in the accused a state of excitement, anger or disturbance such that he might not have contemplated the consequences of his conduct. While the rolled up instruction underscores the general direction that factual determinations are to be made after consideration of the cumulative effect of the whole of the evidence bearing on the issue, an express instruction is not the only way to ensure the jury's understanding on that point. A rolled up charge is not mandatory in every jury instruction. Moreover, the impact of the non-direction depends significantly on the evidentiary foundation for the instruction. In this case, there was no evidence in the form of contemporaneous out-of-court statements, police interviews, or in-court testimony to afford a window into the accused's mental state. Finally, the jury instructions in this case, taken as a whole, repeatedly emphasized the obligation to consider all the evidence.

The Crown at trial tendered an out-of-court police statement by a co-accused, H, and sought to use it only in connection with its maker. Defence counsel sought to have the exculpatory parts of H's statement admitted as evidence for the accused, but did not seek to have that evidence admitted under the principled exception to the hearsay rule. The other co-accused opposed the accused's proposed use of parts of H's statement. The trial judge ruled that H's statement was admissible only in relation to H. The Supreme Court of Canada has ruled that an accused may seek to have the out-of-court statements of a co-accused admitted for their truth under the principled exception to the hearsay rule. However, the exculpatory parts of H's statement would not have been admissible under the principled exception. The exculpatory evidence was double hearsay. Assuming that the necessity requirement was met because H was not a compellable witness at the accused's request, the proposed evidence did not satisfy the requirements of either procedural or substantive reliability. Relaxation of the rigours of the hearsay rule would not assist the accused, as relaxation of the rule does not mean that the reliability requirement is abandoned.

The Background Facts

The Party

In general terms, the controverted issue at trial was the nature and extent of the appellant's culpability. As the principal, did his conduct constitute second degree murder and attempted murder, as the Crown contended, or manslaughter and aggravated assault, as the appellant argued?

The Century Palace Restaurant is located in the Century Plaza Mall. The restaurant does not have a video surveillance system but several cameras are installed at different locations around the mall. Some blind spots exist but much of the activity that takes place in the corridors is captured by the cameras.

The doors of the Century Palace Restaurant open to one of the corridors in the mall. Two surveillance cameras record activity in the immediate vicinity of these doors.

One Saturday evening in mid-October a few years ago, several people attended a party at the restaurant. Admission required purchase of a ticket and included a meal, live entertainment and drinks. Guests included families and friends, among them the appellant, the co-accused, the deceased and his wife and the second victim, Mao Kim.

The Relationship of the Parties

There was little evidence about the relationship between the appellant and his friends, on the one hand, and the deceased and his friends, on the other. Any altercations or confrontations that may have occurred among the guests prior to the stabbings of the deceased and Mao Kim were not between the appellant, the deceased or any of their friends.

By all accounts, the deceased, who was a large man, became quite drunk. He became involved in a verbal dispute with the organizer of the event. The dispute never became physical and had settled before any altercation began between the appellant and the deceased.

The Altercation Begins

Later in the evening, the appellant emerged from the restaurant. He was holding one or two beer bottles. He approached a group of men that included the deceased and Mao Kim. The appellant asked, "Who is Mao?". The deceased moved forward, spread his arms and pushed the appellant. The men exchanged words. A fight began shortly after the appellant struck the deceased on the head with one or two bottles of beer. Others from each group joined the fray.

The Fight

Several persons who attended the party testified about the circumstances in which the deceased and Mao Kim were stabbed. The appellant did not testify or call any witnesses.

Mao Kim testified that he was hit on the head with a beer bottle, then stabbed. The only person he saw with a knife was the appellant who pursued both him and the deceased. At first, Kim thought he had been stabbed with a beer bottle. But later, after two surgeries, he concluded that the weapon must have been a knife.

Vanny Phann, a friend of the deceased and Mao Kim, saw the appellant hit Kim on the head with a beer bottle then become involved in the fight with the deceased. Phann and Kim began to run away pursued by the appellant who stabbed Kim in the abdomen with a knife that resembled a "military" knife with a small blade.

Sammy Mean, a guest at the party who knew both the appellant and deceased, saw the appellant walk out of the restaurant into the corridor. He was carrying two beer bottles behind his back. He hit the deceased with the beer bottles. The deceased stumbled. The appellant then stabbed the deceased in his side with a knife he had in his left hand.

Rin Ken, who is Vanny Phann's aunt, decided to leave after the deceased argued with the event organizer. She saw Kim struck on the head, and that he had been stabbed in the stomach. She later saw a man open a folding knife. She then saw the deceased had been stabbed.

The Aftermath

The deceased, Kim and Phann ran in different directions in the mall after the fight. The deceased, clutching his side, headed south towards the vestibule, the appellant in pursuit of him. Both the deceased and Kim were taken to hospital in the back of a pickup truck.

The Video Surveillance Evidence

A central feature of the evidence adduced at trial was a three-minute segment recorded on various surveillance cameras throughout the mall, as well as a series of still photographs taken from the videos showing the appellant's involvement. The appellant is clearly visible because of the distinctive white shirt and baseball cap he was wearing that evening.

On the video, the appellant approached a small group of people standing outside the restaurant, talking. The group included the deceased, his wife, Mao Kim and Vanny Phann. The appellant spoke to them for several seconds. The appellant had a beer bottle in one hand and possibly some other object in his other hand. He put both hands behind his back, then stepped back as the deceased spoke to him gesticulating with his (the deceased's) arms wide open.

Within ten seconds, the appellant struck the first blow in the direction of the deceased and Kim. Beer spilled on the floor. The appellant and deceased moved out of camera range. Other fights started. Within seconds, blood spattered on glass doors from the direction in which the appellant and deceased had headed. The deceased stumbled back into the frame covered in blood on the right side of his shirt. Knocked down by a co-accused, the deceased regained his feet and headed towards an exit, a trail of blood behind him.

The appellant followed the deceased down a hallway pointing towards him with what appears to be a knife in his hand. Seconds later, the appellant caught up to the deceased. Further contact appears to have taken place before the appellant is restrained by his friends and led back towards the restaurant, his shirt covered in blood. One of his friends takes the knife from the appellant, wipes it off, folds it up and puts it in his pocket.

The Cause of Death

The deceased suffered three head wounds. One was the result of blunt force trauma, and two were incised wounds, cuts caused by a sharp instrument. He also suffered a large incised wound to the inside of his right arm. This wound was significant because it completely severed the brachial artery and vein, causing significant blood loss. The pathologist also noted three stab wounds to the right side of the deceased's back, chest and torso.

The pathologist concluded that the stab wounds had likely been caused by a knife, which penetrated the chest to the right lung. Two of the wounds perforated the deceased's diaphragm and his liver. The cause of death was blood loss from the sharp force injuries to the right arm and torso, each of which could have caused the deceased to die from blood loss.

The Grounds of Appeal

The appellant advances four grounds of appeal. Each has to do with what is said to be an error or omission in the final instructions to the jury. As I would paraphrase them, the complaints are that the trial judge erred:

(i) in instructing the jury on the mental element in murder under s. 229(a) of the Criminal Code, R.S.C. 1985, c. C-46;

(ii) in failing to give a "rolled up" instruction to the jury;

(iii) in failing to instruct the jury that it could rely on the statement made by the co-accused Kimsan Heang in his police interview, entered as part of the case for the Crown, in deciding the appellant's case; and

(iv) in misapprehending the evidence of Rin Ken upon reviewing it in the charge to the jury.

Ground #1: The Mental Element in Murder

The Background Facts

This ground of appeal alleges error in the trial judge's final instructions to the jury about the mental element the Crown was required to prove to establish the appellant's guilt of murder under s. 229(a).

The nature of the error alleged does not require any further reference to the evidence adduced at trial, but a brief canvass of the positions taken by counsel at trial and what the trial judge told the jury on the issue will be of service for the discussion that follows.

The Pre-Charge Conference

At the pre-charge conference prior to closing addresses, the trial judge provided copies of the final instructions he proposed to give to the jury. He then invited submissions from counsel about those instructions.

The trial Crown (not Ms. Baiasu) took the position that the appellant's liability on the counts of second degree murder and attempted murder, on which he alone was charged, was that of the principal under s. 21(1)(a) of the Criminal Code. The Crown sought an instruction on s. 21(2) on the included offence of aggravated assault on the count charging attempted murder.

Trial counsel for the appellant (not Mr. Lockyer or Ms. Taché-Green) agreed that the jury should be instructed on the bases of liability suggested by the Crown.

The Closing Addresses of Counsel

In his closing address, the Crown invited the jury to find that the appellant hit the deceased over the head with beer bottles then repeatedly stabbed him with a knife. It was the Crown's position that the appellant was the principal in both counts with which he was charged and that the evidence established the mental element required for a finding of guilt on each.

Defence counsel took some issue about the adequacy of the evidence to establish the identity of the appellant as the person responsible for both stabbings, but acknowledged that the jury might well find that requirement proven beyond a reasonable doubt. He invited the jury to find the appellant not guilty of the offences charged, but guilty of the included offences of manslaughter and aggravated assault.

The Charge to the Jury

The case for the Crown against the appellant on the counts of second degree murder and attempted murder was that he was the sole principal, the person who actually committed each offence to borrow the language of s. 21(1)(a) of the Criminal Code. Only the appellant was charged with these two counts.

The case for the Crown against the four co-accused, who were charged with manslaughter and aggravated assault, was that each was guilty as an aider, an abettor, or a participant in a common unlawful purpose under s. 21(2) in pursuit of which the offences charged were committed.

In a portion of the charge headed "Modes of Participation", the trial judge gave general instructions about each mode of participation in an offence that s. 21 describes:

• principal;
• aiding;
• abetting;
• common purpose.

In his discussion of liability as a principal, the trial judge said:

Sinhem Srun is charged alone with the second degree murder of Vandin Svay and attempted murder of Mao Kim. He can only be a principal participant in those allegations.

After he had provided general instructions about aiding and abetting, which he said were only applicable to the counts charging manslaughter and aggravated assault, and thus did not apply to the appellant, the judge turned to s. 21(2) and concluded: "This applies to all counts."

The trial judge then expanded somewhat on his instructions on aiding and abetting before he returned to some additional directions on s. 21(2). This time, he told the jury that the instructions on s. 21(2) applied only to the counts of manslaughter and aggravated assault -- counts two and four in the indictment -- with which the appellant was not charged. These instructions contained no reference to the counts of murder and attempted murder or to the appellant.

In his instructions on count one, in which the appellant alone was charged with second degree murder, the trial judge described the essential elements of the offence in a series of three questions. After accurately reviewing the mental elements in s. 229(a), the trial judge continued:

With murder, the person must have actual knowledge to his satisfaction that another in the group would likely continue the acts of assaulting Mr. Svay to the point of causing death. Subjective means that the defendant had to know; in this case, Mr. Srun. And he is alleged to be the principal.

The trial judge then explained to the jury how they could determine the appellant's state of mind from the evidence adduced at trial:

To determine Sinhem Srun's state of mind, what he meant to do, you should consider all the evidence. You should consider:

-- what he did or did not do;

-- what he -- how he did it or did not do it; and

-- what he said or did not say.

You should look at Mr. Srun's words and conduct before, at the time and after the unlawful act that caused Mr. Svay's death. All these things and the circumstances in -- in which they happened may shed light on Mr. Srun's state of mind at the time. They may help you decide what he meant or didn't mean to do. In considering all the evidence, you use your common sense.

After instructing jurors on the issue of intoxication and how it related to proof of the mental element in murder, the trial judge described the verdict choices available to the jury, depending upon their conclusion about the persuasive effect of the evidence on the issue:

If you are not satisfied beyond a reasonable doubt that Mr. Srun had either the state of mind required to make an unlawful killing of Vandin Svay, murder, you must find Mr. Srun not guilty of second degree murder but guilty of manslaughter.

If you are satisfied beyond a reasonable doubt that Mr. Srun had either state of mind to make his unlawful killing of Vandin Svay murder, you must find Mr. Srun guilty of second degree murder as charged.

The Arguments on Appeal

The overarching submission of the appellant is that the final instructions on the mental element in murder under s. 229(a) were erroneous in three respects. The trial judge left the impression that the appellant could be convicted of murder and attempted murder as a s. 21(2) party without proof of subjective knowledge of death. The instructions were so confusing that the jury could not have ascertained its true task on the counts of second degree murder and attempted murder. And this confusion was further exacerbated when the trial judge failed to correct erroneous statements about the mental element made by Crown counsel in his closing address.

The appellant begins by pointing out that the trial judge opened his discussion of s. 21(2) by telling the jury that the section applied to all counts. When the judge elaborated on the essential components of s. 21(2), in particular, the knowledge requirement, he instructed the jury that knowledge could be proven on the basis that the accused knew or should have known that another participant in the common unlawful purpose would probably cause the death of another person. This, the appellant says, was prejudicial misdirection since the Crown was required to prove actual knowledge that another would intentionally kill the deceased.

The effect of the trial judge's misdirection was exacerbated, the appellant argues, by what Crown counsel said in his closing address about the state of mind required for murder. In describing the elements in s. 229(a)(ii), Crown counsel failed to include the knowledge component -- "means to cause him bodily harm that he knows is likely to cause his death" -- in his submissions. This is wrong and has the effect of leaving liability for murder to be determined on a more expansive basis than the law requires. The Crown's misstatement was not corrected by the trial judge's proper s. 229(a)(ii) instruction because it was followed by an incomprehensible instruction on common purpose. The trial judge aggravated the prejudice that the misstatement caused by repeating the Crown's submission when outlining the position of the Crown in his charge to the jury.

The appellant concludes that in a case in which the nature of the injuries inflicted said little about the assailant's state of mind, the instructions on the mental element to prove the appellant's guilt of second degree murder were erroneous and so confusing as to leave the jury in a state of uncertainty about the precise standard they were to apply in resolving the single controverted issue on this count at trial. The failure of trial counsel to object on this ground does not convert what was wrong into something that was right.

The respondent begins with a reminder that we should not focus on a handful of words removed from their surroundings, but rather consider the charge as a whole, along with the decision tree provided to the jury, the positions advanced by counsel and the evidence adduced at trial. When this is done, as the authorities require, the instructions meet the standard required of them: proper, not perfect.

The final instructions, the respondent says, make it clear that s. 21(2) was not a basis upon which the appellant could be found guilty of either second degree murder or attempted murder. He could only be found guilty on those counts with which he alone was charged as a principal, the person who actually committed the offence. The parties' provisions, the judge explained to the jury, applied only to the counts of manslaughter and aggravated assault, counts two and four in the indictment, with which the appellant was not charged.

The respondent acknowledges that the trial judge misspoke when he said to the jury that s. 21(2) applied "to all counts". But the balance of the charge made it clear that:

(i) the liability of the appellant on counts one and three -- murder and attempted murder -- was as a principal only; and

(ii) the liability of those charged in counts two and four -- manslaughter and aggravated assault -- was as parties, that is to say, as aiders, abettors or participants in a common unlawful purpose.

Besides, the instructions on the essential elements of second degree murder and attempted murder were limited to the appellant as principal and contained not a whisper of any other mode of participation.

In addition to the trial judge's instructions, the respondent continues, the decision trees provided to the jury as deliberation aids confirmed that the appellant's liability for murder and attempted murder was to be assessed as principal, not as a party. And for the co-accused on counts two and four, as parties, not as principals.

The respondent accepts that the trial Crown misstated the mental element in murder in his closing address to the jury. But the trial Crown told the jury, as did the trial judge, that the jury was to take its instructions on the law from the judge, not from counsel. And the trial judge accurately described the mental element in murder under s. 229(a) despite the inclusion of a statement that reflected error.

The Governing Principles

The principles that govern our decision on this ground of appeal are not controversial. Some have to do with the standard we are to apply when reviewing jury instructions for errors. Others are concerned with instruction content, in other words, the substance of what must be said about the mental element in murder as defined in s. 229(a), and the modes of participation contained in s. 21 of the Criminal Code.

The entitlement of the parties in a criminal trial is that the jury be properly instructed. Perfection is not the standard against which we test jury instructions: R. v. Jacquard, [1997] 1 S.C.R. 314, [1997] S.C.J. No. 21, at para. 2.

Our review involves a functional approach. We test the instructions to determine whether, taken as a whole, they properly equipped the decision-maker to render a true verdict on the evidence adduced and the positions advanced at trial: R. v. Calnen, [2019] S.C.J. No. 6, 2019 SCC 6, 430 D.L.R. (4th) 471, at para. 8; R. v. Bailey, [2016] O.J. No. 3508, 2016 ONCA 516, 339 C.C.C. (3d) 463, at para. 42. We also must bear in mind that a jury charge does not take place in splendid isolation, but rather in the context of the trial as a whole. And so, appellate review of the adequacy of jury instructions in fulfilling their function encompasses consideration of the addresses of counsel, which may fill in some gaps in the charge: R. v. Daley, [2007] 3 S.C.R. 523, [2007] S.C.J. No. 53, 2007 SCC 53, at para. 58; R. v. Salah, [2015] O.J. No. 237, 2015 ONCA 23, 319 C.C.C. (3d) 373, at para. 112.

Section 229 of the Criminal Code defines the mental or fault element which must accompany an unlawful killing to make the offence committed murder. Among those definitions is s. 229(a)(ii), which includes three components:

• intention;
• knowledge or foresight;
• recklessness.

The vital or essential element is that of intending to cause bodily harm of such a grave and serious nature that the accused knew was likely to cause the victim's death, yet persisting in the assault despite knowledge of that risk. Recklessness is almost an afterthought: R. v. Nygaard, [1989] 2 S.C.R. 1074, [1989] S.C.J. No. 110, at pp. 1087-88 S.C.R.; R. v. Cooper, [1993] 1 S.C.R. 146, [1993] S.C.J. No. 8, at pp. 154-55 S.C.R. This state of mind is subjective, not objective.

Since the trial judge told the jury at one point in his instructions that s. 21(2) applied to all counts, something should be said about the role of the subsection in establishing an accused's culpability for an offence.

It is well-known that s. 21 of the Criminal Code abolishes the common law distinction between principals and secondary parties. The section renders anyone who participates in a crime in any manner described in the section as "a party to an offence": R. v. Simon (2010), 104 O.R. (3d) 340, [2010] O.J. No. 4723, 2010 ONCA 754, 263 C.C.C. (3d) 59, at para. 37, leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 459.

A person may become a party to an offence under either s. 21(1) or s. 21(2). But the sections are different.

Persons who participate in the offence actually committed, whether as a principal, or as an aider, or an abettor, have their culpability determined under s. 21(1): Simon, at para. 39. But this is not so for those whose guilt falls to be decided under s. 21(2).

Section 21(2), the authorities teach, extends liability for crime in two respects. The first concerns the persons, the second the offence. The defining feature of s. 21(2) is participation in a common unlawful purpose. Or in the language of the section forming "an intention in common to carry out an unlawful purpose and to assist each other therein": R. v. Simpson, [1988] 1 S.C.R. 3, [1988] S.C.J. No. 4, at p. 15 S.C.R.; Simon, at para. 40.

Section 21(2) extends liability to persons whose participation in the offence actually committed would not be captured by s. 21(1). But these persons must have participated in the original common unlawful purpose with others and either knew or, in most cases, should have known that one or more of the other participants in the original purpose would likely commit the offence in pursuing their original purpose: Simon, at para. 41.

Section 21(2) extends liability to persons for offences committed by others. The offence to which s. 21(2) extends liability is not the "unlawful purpose" to which the subsection refers. The offence is a different crime. It is a crime that a participant in the original "unlawful purpose" actually commits in carrying out that purpose. In other words, it is a crime incidental or collateral to that original unlawful purpose. The purpose must be different from the offence committed: Simpson, at p. 15 S.C.R.; Simon, at para. 42.

Section 21(2) also contains a knowledge or foresight component expressed in the alternative: "knew or ought to have known". In other words, knowledge or foresight may be established on a subjective or objective basis. Despite these statutory alternatives, when the offence committed is murder, the knowledge or foresight element may only be satisfied by proof that the accused actually foresaw or actually knew that another participant in the common unlawful purpose would kill another with either state of mind necessary to make the killing murder: R. v. Laliberty, [1997] O.J. No. 2808, 117 C.C.C. (3d) 97 (C.A.), at paras. 35-36; see, also, R. v. Ferrari, [2012] O.J. No. 2649, 2012 ONCA 399, 287 C.C.C. (3d) 503, at para. 61.

Unlike s. 21(1)(a), which deals with persons who actually commit an offence, s. 21(2) and its components:

• agreement or purpose
• offence
• knowledge

extend liability to persons for offences committed by others: Simon, at paras. 40-43.

The Principles Applied

Despite the unwarranted intrusion of s. 21(2) into the instructions on second degree murder and attempted murder by the reference to its application "to all counts", as well the somewhat muddled passage on the mental element, I would not give effect to this ground of appeal for several reasons.

First, it would not be lost on a contemporary Canadian jury that the appellant was the only person charged with second degree murder and attempted murder. All the parties in the trial said so. And so did the indictment of which the jury had a copy. The case presented against him by the Crown, and argued by both the Crown and defence counsel, was that the appellant was the person who stabbed both the deceased and Mao Kim, killing one of them, and seriously injuring the other. Said in another way, the trial proceeded on the basis that it was the appellant and only the appellant who actually committed the offences with which he, and he alone, was charged. None of the six separate jury addresses contained any suggestion that the appellant was anything other than the principal, the one and only principal.

Second, in introducing his instructions about modes of participation, the trial judge, in explaining the liability of a principal said:

Sinhem Srun is charged alone with the second degree murder of Vandin Svay and attempted murder of Mao Kim. He can only be a principal participant in those allegations.

Third, in his instructions on the specific counts of second degree murder and attempted murder in which the appellant alone was charged, the trial judge explained what the Crown had to prove beyond a reasonable doubt to establish the appellant's guilt. The trial judge converted the essential elements of each offence, all of which were the subject of legally correct instructions, into questions for the jury to consider and advised them of the verdict and further deliberation consequences of the decisions available to them on each issue. Throughout these instructions, the appellant's participation was left as a principal, the sole principal. No instructions were given about any other mode of participation, including s. 21(2), on these two counts.

Fourth, the decision trees provided to the jury as deliberation aids on the counts of second degree murder and attempted murder duplicated the questions posed for the jury in the charge. Although decision trees are not themselves legal instructions, they made it plain and obvious in diagrammatic form that the appellant's liability was as a principal and only as a principal. In this respect, the decision trees in connection with the co-accused, charged jointly with manslaughter and aggravated assault, make it equally obvious that their liability was to be resolved as aiders, abettors or s. 21(2) parties.

Fifth, by contrast to the instructions on the counts of second degree murder and attempted murder requiring proof of the appellant's participation as the sole principal, the instructions on the joint counts of manslaughter and aggravated assault, limited consideration of the liability of the co-accused to aiding, abetting, and s. 21(2).

Sixth, the substantive instructions on s. 21(2) referred specifically to counts two and four, the counts charging the four co-accused but not the appellant jointly with manslaughter and aggravated assault. These instructions made no reference to the offences of second degree murder and attempted murder, by name or count number.

In the end, I am satisfied that the inadvertent misstatement that s. 21(2) applied to "all counts", which attracted no objection at trial, and the issues related to the Crown's misstatement on s. 229(a)(ii), were harmless errors, devoid of any prejudicial potential. No harm. No foul.

Ground #2: The "Rolled Up" Instruction

This ground of appeal also alleges error in the charge to the jury, but this time because of something not said. The focus once again is on the mental or fault element in murder, more specifically, about something, the appellant says, the jurors should have been directed to take into account in assessing the adequacy of the Crown's proof of the mental element but were not invited to do so.

This claim of error does not require further reference to the evidence about the circumstances of the offences charged, but is informed by brief mention of the positions of the parties at trial and the instructions of the trial judge about how the jury was to approach proof of the mental element in murder.

The Positions of the Parties at Trial

At a pre-charge conference, defence counsel sought instructions on intoxication, self-defence and provocation. He also asked the trial judge to provide a "rolled up" instruction to the jury, including reference to evidence of intoxication and provocation.

The trial Crown agreed that intoxication should be left to the jury. He submitted that if the trial judge concluded that the statutory partial defence of provocation had an air of reality, then a "rolled up" charge could include reference to provocation.

The trial judge concluded that there was no air of reality to self-defence. He did not instruct the jury on the statutory partial defence of provocation.

The Jury Instructions

The trial judge instructed the jury on how to determine whether the Crown had proven the mental element necessary to make an unlawful killing murder. The relevant excerpt appears at para. 41 of these reasons.

Following those instructions, the trial judge directed the jury on intoxication, explaining that evidence of consumption of eight bottles of beer was something for the jury to consider, along with the rest of the evidence that shed light on the appellant's state of mind at the time of the offence. The rest of the evidence included the appellant's words and conduct before, at the time and after the stabbing.

The trial judge did not include what has become the typical "rolled up" instruction to the jury in his charge.

The Arguments on Appeal

In this court, the appellant contends that the trial judge erred in failing to include a "rolled up" charge in his final jury instructions. The charge should have included references to the evidence of intoxication and the provoking conduct of the deceased, and pointed out to the jury that this evidence was relevant for them to consider in assessing whether the Crown had proven the essential mental element beyond a reasonable doubt. The words and conduct of the deceased, even if it did not amount to provocation as it was then defined under s. 232(2), may have produced in the appellant a state of excitement, anger or disturbance such that he might not have contemplated the consequences of his conduct. This, in turn, might raise a reasonable doubt as to whether the appellant considered or intended the consequences of that conduct.

The appellant says that it is well-settled in this province that a jury trying a count of murder should be instructed to consider the cumulative effect of, among other things, evidence of alcohol consumption and of provocative words and conduct by the deceased or others in deciding whether the mental element required to make an unlawful killing murder has been proven beyond reasonable doubt. Its omission is fatal to the validity of the conviction.

The respondent acknowledges the propriety of including a "rolled up" charge in final instructions in appropriate cases. But the instruction is usually given, the respondent says, where the jury is charged on various discrete defences, justifications or excuses. As for example, self-defence, intoxication and provocation. Even where the statutory partial defence of provocation lacks an air of reality, evidence of an accused's anger, excitement or instinctive reaction, which can have an impact on an accused's state of mind, is relevant to proof of the mental element in murder and the jury should be so instructed. This ensures that jurors do not take a compartmentalized rather than a holistic approach to the evidence relevant to the state of mind issue.

In this case, the respondent says, there was no air of reality to self-defence, or the statutory partial defence of provocation. What is more, since the appellant did not testify or call any evidence, the record is barren of any evidence of anger, fear, excitement, instinctive reaction or mental disturbance to fund a "rolled up" instruction.

The respondent makes two further points.

The first is that there is no mandatory word formula required for a "rolled up" instruction. What must be decided is whether the charge, considered as a whole and in light of what occurred at trial, including the positions advanced by counsel, adequately tutored the jury on their obligation to consider all the evidence on the issue of the mental element. Considered in this, the proper light, the instructions fulfilled their function.

The second is that the jury had available, and were invited to review the real evidence provided by the video surveillance. This, coupled with the instructions given, which generally and specifically underscored the jury's obligation to consider all the evidence, provided the functional equivalent of a "rolled up" instruction and well equipped this jury to perform its task.

The Governing Principles

Whether either mental or fault element in s. 229(a) has been established with the required degree of certainty is a question of fact for the trier of fact to decide. In a jury trial, the jury makes this decision. And it makes this decision on the basis of the whole of the evidence adduced at trial, and by drawing reasonable inferences from that evidence. The evidence must be relevant to this material issue and properly admissible in its proof. Most often, the evidence is circumstantial. The task assigned to the jury on this issue is to assess the cumulative effect of all the evidence against the standard of proof required to determine whether it is adequate to the task or falls short of the mark. The standard of proof applies to the evidence as a whole, not to each individual item of evidence: R. v. Flores, [2011] O.J. No. 870, 2011 ONCA 155, 269 C.C.C. (3d) 194, at para. 69.

Among the items of evidence offered in proof of an accused's state of mind is evidence of things said and done by the accused and others contemporaneous with the commission of the offence and the circumstances in which those words are spoken and that conduct occurred. Routinely, judges instruct jurors to consider the cumulative effect of this evidence in determining whether either of the mental elements required by s. 229(a) has been established: Flores, at para. 70, citing R. v. Jaw, [2009] 3 S.C.R. 26, [2009] S.C.J. No. 42, 2009 SCC 42, at para. 25.

Typically, items of evidence may be relevant, material and admissible on more than one issue in a criminal trial. As for example, evidence may be relevant to a specific defence, just