Court of Appeal for Ontario

Date: July 22, 2019 Docket: C63031

Judges: Strathy C.J.O., Rouleau and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Willy Palmes Ching Appellant

Counsel:

• Howard L. Krongold and Philippe Michaud-Simard, for the appellant
• Howard Leibovich, for the respondent

Heard: March 6, 2019

On appeal from the conviction entered by Justice Leonard Ricchetti of the Superior Court of Justice, sitting with a jury, on October 3, 2013.

Rouleau J.A.:

Overview

[1] The appellant planned and deliberated the murder of his ex-wife Maria Ching. In the course of carrying out the plan to murder Ms. Ching, Ernesto Agsaulio, Ms. Ching's uncle, intervened to prevent the appellant's entry into the house where Ms. Ching was staying. A struggle ensued in the course of which the appellant mortally wounded Mr. Agsaulio.

[2] Mr. Agsaulio's intervention prevented the appellant from reaching Ms. Ching. The appellant alleges several errors in the trial judge's instructions to the jury. Central among these is the instruction on first degree murder wherein the trial judge told the jury that if it concluded that the appellant had planned and deliberated the murder of Ms. Ching, this finding could operate to raise the murder of Mr. Agsaulio from second to first degree murder provided that Mr. Agsaulio's murder was committed in the course of carrying out his plan to murder Ms. Ching.

[3] For the reasons that follow, I would dismiss the appeal but substitute a conviction for second degree murder in lieu of the conviction entered for first degree murder.

Facts

[4] The appellant had a long history of mental illness and attempted suicide. In 2009, his marriage with Ms. Ching fell apart, and on September 2, 2009, Ms. Ching moved out of their shared home and went to live with her uncle Mr. Agsaulio and his family. The appellant did not accept that the marriage may have been over and repeatedly tried to speak to Ms. Ching.

[5] In the years leading up to the murder, the appellant had been on medication for depression. On October 4, his medication was changed and he was prescribed a new drug. He was also prescribed sleeping pills. Three days later, the appellant attempted suicide by an overdose of sleeping pills and was hospitalized for three days.

[6] On October 24, the appellant tried to access Ms. Ching's email account but could not get past the security question. He was upset as he suspected that she was having an affair. Later that day, he went to a Canadian Tire store and bought a knife and a hatchet.

[7] The following day, he rented a car and drove to Mr. Agsaulio's house to see Ms. Ching. He parked a block away. The appellant's daughters, having realized the appellant was going to see Ms. Ching, called their mother to warn her. Ms. Ching then called the appellant, who was sitting in the car nearby, and told him to go home. He asked her to come outside so they could talk, which she refused to do. After she hung up, Ms. Ching told Mr. Agsaulio that the appellant was on his way.

[8] The appellant arrived and rang the doorbell. Mr. Agsaulio opened the door but refused to allow the appellant to see Ms. Ching. The appellant and Mr. Agsaulio conversed for a few minutes. The appellant then drew the knife and hatchet and began hacking and slashing at Mr. Agsaulio. Mr. Agsaulio and his son managed to restrain him and, with the help of some neighbours, he was subdued.

[9] The police arrived and the appellant was arrested for assault, as Mr. Agsaulio was still alive at that time. The appellant gave his first statement to the police on the day of his arrest, saying that he only wanted to talk to his wife and that he did not try to kill anyone. He repeatedly stated that the judge should give him a death sentence.

[10] At the end of the interview, the police officers informed the appellant that Mr. Agsaulio had died from his injuries and that he would be charged with first degree murder. The appellant asked to use the washroom. He suddenly ran toward the stairwell and attempted to fling himself headfirst over the railing. One of the police officers grabbed the appellant's waistband and hauled him back.

[11] On the next day, the appellant gave a second statement to the police. He said he had gone to the house to see his wife and not to hurt anyone. He stated that he had brought the weapons in order to threaten to hurt himself, so that Ms. Ching would get back together with him. He also stated that he had bought the knife and hatchet "a long time" ago.

Issues

[12] The appellant raises three grounds of appeal:

1. the trial judge erred by instructing the jury that the appellant could be guilty of first degree murder if he planned and deliberated to kill Ms. Ching and killed Mr. Agsaulio during the execution of his plan;

2. the trial judge ought to have given a "no probative value" instruction concerning the appellant's attempt to jump over the railing; and

3. the trial judge misdirected the jury on the use of the appellant's conflicting statements.

Analysis

(1) The Instruction on First Degree Murder

[13] The trial judge instructed the jury that it could find the appellant guilty of first degree murder, second degree murder, or manslaughter, or that it could find that the appellant was not criminally responsible ("NCR") on account of mental disorder. The appellant only takes issue with the trial judge's instruction on first degree murder.

[14] In his charge, the trial judge told the jury that, in order to find the appellant guilty of first degree murder, it had to be satisfied beyond a reasonable doubt of each of the following elements:

1. the appellant committed an unlawful act;
2. the unlawful act caused Mr. Agsaulio's death;
3. the appellant had the specific intent required for murder;
4. the appellant had planned and deliberated the murder of Ms. Ching; and
5. during the course of carrying out the plan to murder Ms. Ching, Mr. Agsaulio was killed.

[15] The Crown maintains that the instruction was in accordance with the Supreme Court of Canada's direction in R. v. Droste, [1984] 1 S.C.R. 208. According to its submission, Droste established that an accused must have the requisite intent for murder and that the murder must be preceded by planning and deliberation in order to be guilty of first degree murder. The identity of the victim is irrelevant. The wording of the trial judge's charge to the jury closely tracks the concluding paragraphs of the court's reasons in Droste and, in the Crown's view, is proper.

[16] The appellant submits that, in the absence of a finding that Mr. Agsaulio's murder itself was planned and deliberated, he could not be found guilty of the first degree murder of Mr. Agsaulio.

[17] For the reasons that follow, I agree with the appellant's submission. A finding that the appellant had planned and deliberated the murder of Ms. Ching and that Mr. Agsaulio's murder was committed while carrying out that plan does not satisfy the statutory requirement for first degree murder. As I will explain, the trial judge's reliance on Droste for the wording of his charge to the jury was misplaced.

[18] Murder is defined in s. 229 of the Criminal Code, R.S.C. 1985, c. C-46. Section 229(a) provides the following:

Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

[19] Section 229(b) provides that a culpable homicide is murder where the intent required in s. 229(a) is present but, by accident or mistake, a person other than the intended victim is killed. For the application of this provision, the fact that the ultimate victim was never intended to be killed is irrelevant. The section is commonly referred to as the "transferred intent" provision.

[20] Section 231 of the Criminal Code sets out the requirements for a murder to constitute first degree murder. As explained in R. v. Farrant, [1983] 1 S.C.R. 124, at p. 140, this provision does not create a separate substantive offence, but classifies murder into two categories: first degree murder and second degree murder. The subsection that is relevant to the present case is s. 231(2), which provides the following:

Murder is first degree murder when it is planned and deliberate. [Emphasis added.]

[21] In my view, the text of s. 231(2) is quite clear. It is the murder that was planned and deliberate that can be raised to first degree murder. In this case, the murder referred to in the section, the "it", is the murder of Mr. Agsaulio. For his murder to constitute first degree murder, it must have been planned and deliberate.

[22] The charge to the jury did not ask the jurors to consider whether Mr. Agsaulio's murder had been planned and deliberate. The charge only asked them to consider whether Ms. Ching's murder had been planned and deliberate and whether Mr. Agsaulio was killed in the course of the execution of that plan. The fact that Ms. Ching's murder was planned and deliberate, however, does not satisfy the requirement of s. 231(2). Her murder was not carried out and cannot qualify as the "it" in s. 231(2).

[23] The circumstances in this case are quite different from the ones in Droste. In Droste, the transferred intent provision of the Criminal Code, s. 229(b), was used as the basis for the finding of first degree murder. In that case, the appellant's children were killed by accident or mistake as he was trying to kill his spouse. The court reasoned that, since the intent needed to make the culpable homicide of his children a murder was the transferred intent to kill his wife, the same reasoning should apply to the planning and deliberation. Since the appellant had planned and deliberated the murder of his wife, the murder could be raised to first degree murder. The mens rea element needed for first degree murder that attached to the intended victim effectively transferred to the unintended ones. In the present case, the transferred intent provision was not argued or applied.

[24] I do not, as the Crown suggests, accept that a proper reading of Droste confirms the broad proposition that the identity of the victim is irrelevant to classify the murder as first degree and all that is required is that the murder takes place in the course of carrying out the original plan. The reasons in Droste must be read while keeping in mind that the court was dealing with an accused who was found guilty of murder pursuant to s. 229(b), the transferred intent provision.

[25] The confusion flows from a reading, out of context, of the final paragraph of the reasons of Dickson J. (as he then was) in Droste. In that paragraph, he states:

In the result, whether one approaches the question on an analysis of the relationship of [s. 231(2)] to the substantive offence in [s. 229(b)], or on the basis of the underlying policy rationale of [s. 231(2)], or, even if it were relevant, on the basis of transferred intent, one arrives at precisely the same conclusion: planning and deliberation with relation to the killing of a specific person makes the offence first degree murder when in the course of carrying out the plan the accused in fact kills someone else: at p. 223.

[26] I acknowledge that, read literally and denuded of its context, the last part of the paragraph suggests that if an accused commits the murder of person B at any point in the course of carrying out the planned and deliberate murder of Person A, the murder of person B would constitute first degree murder. I might conclude that it would not matter that person A was not killed nor that the accused never even reached the point where a physical attack on person A occurred. Considered in light of the reasons as a whole, however, it is apparent to me that the phrase "when in the course of carrying out the plan" should be read as "when in the course of carrying out the plan, he caused the death of the victim by accident or mistake". This reading is consistent with Martin J.A.'s reasons in the court below. In R. v. Droste (1981), 34 O.R. (2d) 588 (C.A.), at p. 592, Martin J.A. explained that the trial judge properly instructed the jury that, in order to find the accused guilty of first degree murder, it had to be satisfied beyond a reasonable doubt that,

the appellant's intention to kill his wife was planned and deliberate and that in the course of carrying out that intention he caused the death of the children by accident or mistake.

[27] The Court of Appeal and the Supreme Court of Canada were both saying, in Droste, that where the transferred intent provision provides the basis of the murder conviction, the transferred intent should logically operate to supply the planned and deliberate requirement of s. 231(2). In other words, where person B is killed while the accused was carrying out the planned and deliberate killing of person A such that the transferred intent provision in s. 229(b) applies to make the killing a murder, the plan was, in effect, executed and it is only by accident or mistake that someone else died. As the planned and deliberate murder was executed, it attracts the higher level of moral culpability required for first degree murder.

[28] As explained by Dickson J., the mens rea required for murder under s. 229(b) is "intending the death or grievous bodily harm likely to cause death, to person A": Droste, at p. 221. The actus reus is causing the death of person B. When applying s. 231(2) to determine whether the murder is first or second degree, the "it" in s. 231(2) is the s. 229(b) murder and it is the mens rea for that offence that must be considered. This means that the element of planning and deliberation required by s. 231(2) to elevate the murder to first degree "must be related to the specific mens rea of the applicable section": Droste, at p. 222. In other words, the mens rea on which the murder is grounded must be the same mens rea that elevates the murder to first degree pursuant to s. 231(2). The accused must have executed the murder he planned and deliberated, and it is only by accident or mistake that an unintended person was the victim.

[29] In Droste, the intent to kill Ms. Droste provided the mens rea necessary under s. 229(b) to make the killing of the children a murder. That mens rea, the intent to kill Ms. Droste, was therefore the killing that, pursuant to s. 231(2), had to be planned and deliberate in order to raise the children's murder to first degree. In the present case, the jury found that the appellant intended to kill Mr. Agsaulio. This was the mens rea supporting the appellant's conviction for murder pursuant to s. 229(a). The planning and deliberation, however, was in respect of a different intended killing, the killing of Ms. Ching. The plan to kill Ms. Ching never reached the point where the appellant executed the killing. Ms. Ching remained on the second floor of the house well beyond the reach of the appellant. One will never know whether, had the appellant been allowed into the house, he would have carried out his plan.

[30] Contrary to the Crown's submission, there is a sound policy reason for concluding that an accused who intentionally kills person B when in the course of carrying out the planned and deliberate murder of person A will be guilty of second degree murder, whereas an accused who accidentally or mistakenly kills person B when person A was the target will be convicted of first degree murder. This result reflects the fact that in the first case the actual killing may well have been impulsive while in the second, it was the result of a planned and deliberate act.

[31] This interpretation is supported by existing case law. For example, in R. c. Belzil, [1989] R.J.Q. 1117 (C.A.), the Quebec Court of Appeal substituted convictions for second degree murder on an appeal from convictions for first degree murder. In that case, three co-accuseds planned to kill Mr. Désormiers. As one of the co-accused, Mr. Dubeau, was carrying out the planned killing of Mr. Désormiers, a second co-accused, Mr. Lavoie, killed another person, Mr. Bourassa, who tried to intervene. On appeal, the court concluded that the killing of Mr. Désormiers was first degree murder as it had been planned and deliberate. The murder of Mr. Bourassa, however, constituted second rather than first degree murder. The court found that the "transferred intent" situation that existed in Droste could not be used. It was Mr. Bourassa's intervention and not the plan to kill Désormiers that led to Mr. Bourassa's death. His death was never planned by the co-accused. As the court explained:

[M]ême si les accusés étaient prêts à tuer d'autres personnes si nécessaire, le seul meurtre planifié était celui de Désormiers. Ce n'est aucunement l'acte planifié visant à tuer Désormiers qui causa la mort de Bourassa. La mort de ce dernier découle d'un acte totalement différent, d'un auteur différent: at p. 1129.

[32] Moreover, this court's decision in R. v. Dipchand, [1991] O.J. No. 1775 (C.A.), leave to appeal abandoned, [1991] S.C.C.A. No. 479, has some similarity to the present case. In Dipchand, the trial judge directed the verdict of acquittal from the charge of first degree murder of the accused's sister-in-law, Ms. Ramdai. The Crown appeal was allowed. On appeal, the court found that the record allowed for two routes to first degree murder of Ms. Ramdai. First, there was evidence upon which a jury properly instructed could in fact find that the respondent had planned and deliberated to kill Ms. Ramdai. It is, however, the second route to reaching a verdict of first degree murder that is of interest. The court determined that it was open to the jury to find that the accused had planned and deliberated to kill his wife and that the plan also included the plan to kill any person who tried to stop him from carrying out the plan to kill his wife. Implicit in the decision, therefore, is that the jury would have to have been instructed in that regard. The jury would be told that, in order to find the accused guilty of first degree murder, it would have to find that the plan was not simply a plan to kill his wife, but also that the accused planned and deliberated the killing of any person who got in his way. No such instruction was given in the present case.

[33] In its submissions, the Crown relied on two cases in support of its interpretation of Droste: R. v. Nygaard, [1989] 2 S.C.R. 1074 and R. v. Kluke (1987), 22 O.A.C. 107 (C.A.). The Crown maintains that these cases confirm that where a murder is planned and deliberated, the identity of the victim is irrelevant.

[34] The Crown directed us to p. 1087 of Nygaard, where the court stated the following:

In Droste v. The Queen, the issue was whether the planning and deliberation to kill A which resulted in the killing of B should be classified as murder in the first degree. It was found that the requirement of planning and deliberation was a requirement that related to the intention to take a human life and not to the identity of the victim. On the facts of that case there could be no doubt that Droste meant to cause death to a human being and planned and deliberated the death of a human being. In the result, Dickson J. (as he then was) writing on behalf of the Court concluded that [s. 231(2)] could operate in conjunction with [s. 229(b)] to sustain a first degree murder conviction. However, that decision centred on requirements of a section of the Code that are different from [s. 229(a)(ii)]. The Droste decision cannot be determinative of the issue in the case at bar.

[35] The first portion of the passage from Nygaard could support the Crown's position. When the paragraph is read as a whole, however, it is clear that the court recognized that the application of Droste was restricted to murders based on s. 229(b).

[36] The Crown also argued that Kluke stands for the proposition that, provided there is a planned and deliberate killing, the identity of the victim does not matter. It relied, in particular, on para. 26 of Kluke where the court explained the following:

If the appellant had the requisite intent under s. [229(a)], the killing would constitute murder regardless of his previous knowledge of the ultimate identity of his victim. If that intent was preceded by planning and deliberation as defined in s. [231(2)], then the identity of the victim was irrelevant for the purpose of classifying the murder.

[37] This statement must also be read in context. The court in Kluke was concerned that the trial judge had instructed the jury on s. 229(b) murder in the absence of any evidence that the victim was killed by accident or mistake. The Crown sought to support the propriety of that aspect of the charge on the basis that "if the appellant planned in a deliberate way to kill any homosexual who would approach him in the park, then the identity of the person killed was irrelevant": at para 24. In other words, the planning and deliberation being discussed in the passage relied on by the Crown was a plan to kill any homosexual in the park. The target, the planned victims, were, in that case, a class of persons. The murderer need not therefore know the specific identity of the actual victim, only that the victim was in the class he set out to kill. This approach bears some similarity to the approach outline above in Dipchand, where the appellant would need to plan the killing of any person who comes in his way.

[38] Based on my reading of s. 231(2) and the case law, therefore, I have concluded that the trial judge's charge on the requirement for first degree murder was in error.

(2) The Instruction on the Suicide Attempt

[39] The trial judge instructed the jury that the appellant's post-offence conduct may or may not help it decide whether he committed the alleged offence. The trial judge then referred to the evidence that, after being told that Mr. Agsaulio died, the appellant ran from the police officers, went to the nearby railing, and started to go over it. The trial judge instructed the jury that the first step it should take was to determine whether the appellant went to the railing to commit suicide or to try to escape. The second step was to decide whether the appellant went to the railing because he was conscious of having committed the offence. The trial judge then said the following:

If you do not or cannot find that Mr. Ching did go to the railing because he was conscious of having done what is alleged against him, you must not use this evidence in deciding or in helping you decide that Mr. Ching committed the offence charged. On the other hand, if you find that Mr. Ching did go to the railing because he was conscious of having done what is alleged against him, you may consider this evidence, this post-offence conduct, together with all of the other evidence in reaching your verdict.

The trial judge did not give a limiting instruction on the use the jury could make of the appellant's post-offence conduct.

[40] The appellant argues that his apparent suicide attempt was irrelevant to his degree of culpability and the trial judge ought to have given a "no probative value" instruction or another form of limiting instruction. He had acknowledged that he killed Mr. Agsaulio unlawfully and it was clear from the evidence that the appellant suffered from severe depression. It is in that context that the appellant argues that logic and human experience would suggest that the appellant's suicide attempt was as consistent with his having unlawfully but unintentionally killed Mr. Agsaulio as it was with the appellant having intentionally killed him. As a result, the appellant submits that the trial judge erred in leaving this evidence with the jury without a limiting instruction.

[41] I disagree. I acknowledge that an accused's post-offence conduct can be probative of his or her culpability but not necessarily of the level of that culpability. As explained by this court in R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 53:

[O]rdinarily, trial judges have been obliged to instruct juries that post-offence conduct evidence cannot be used to infer that the accused committed murder rather than manslaughter.

It is not, however, always necessary for a trial judge to tell a jury both the permissible and impermissible uses of after-the-fact evidence: see R. v. Robinson, 2017 ONCA 645, 352 C.C.C. (3d) 503, at para. 63.

[42] Jury instructions must be understood as a whole and viewed in the context of the evidence led at trial and the positions advanced by the parties: see R. v. Badgerow, 2019 ONCA 374, at paras. 17-19. In the circumstances of this case, the relevance of the appellant's apparent suicide attempt related principally to his claim that he was NCR. The appellant relied on the apparent suicide attempt as evidence to support his position that he was suffering from mental illness, such that he was either NCR or incapable of forming the intent necessary for murder. For its part, the Crown pointed to the suicide attempt as evidence that the appellant was capable of processing information, was aware of the nature and consequences of his actions and thus, criminally responsible for his act.

[43] When the charge is read as a whole, the jury would have understood that the Crown and defence were both relying on this incident principally to support their respective theories regarding the appellant's capacity to understand the consequences of his actions and his capacity to form the requisite intent for murder.

[44] Notably, in the portion of the charge where the trial judge related to the jury the defence position that he was suffering from severe mental illness rendering him either NCR or incapable of forming the necessary intent for murder, the trial judge specifically referenced the appellant's attempt to jump over the railing.

[45] In my view, therefore, there is no reasonable possibility that the jury would, as the appellant alleges, have made improper use of the apparent attempted suicide in reaching its verdict. The appellant did not request a limiting instruction and he took no issue with the charge, a draft copy of which he had been provided with in advance. The appellant was in no way prejudiced by the trial judge's failure to give a limiting instruction. In the circumstances of the case, therefore, such an instruction was not necessary.

(3) The Instruction on Contradictory Statements

[46] There was evidence at trial that the appellant lied in his statements to the police, in information he gave to doctors who assessed him prior to trial, and in his trial testimony. It is well settled that, in the event that the jury found one or more of these statements to be lies, it could use them in its assessment of the appellant's credibility. Absent independent evidence of concoction, however, disbelief of the appellant could not be used as evidence of guilt: see R. v. Selvanayagam, 2011 ONCA 602, 281 C.C.C. (3d) 3, at para. 27.

[47] Independent evidence of concoction can, however, be found in the very content of the impugned statements, depending on the context in which they were made. Independent, in this sense, means that the evidence of concoction is separate from the evidence of guilt, not necessarily separate from the statements themselves. For example, where an accused has made contradictory exculpatory statements, the self-contradiction of an accused may constitute independent evidence of fabrication: see R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 288, leave to appeal refused, [2017] S.C.C.A. No. 17.

[48] The instruction to the jury on the use it could make of the appellant's inconsistent statements was a significant issue at trial. The trial judge therefore consulted counsel during pre-charge discussions and settled on the following wording for his charge:

If you conclude that Mr. Ching was not truthful to the police, psychiatrist, or this court, you cannot use that determination to conclude or assist you to conclude that Mr. Ching is guilty of an offence or that the Crown has proven an essential element beyond a reasonable doubt. The only use you can make of such a determination is to use it to determine whether to rely on all, none, or some of Mr. Ching's statements or evidence in deciding this case, or may use it to assist in determining what Mr. Ching's intentions were on October 25, 2009.

[49] The appellant submits that by telling the jury that it could use the evidence of the appellant's lies in "determining what Mr. Ching's intentions were on October 25, 2009", the trial judge was, in effect, improperly suggesting that the jury could use these lies to infer the appellant's guilt, and that it could do so absent an independent finding of concoction.

[50] The appellant argues that the impact of this error was particularly significant given that, in its closing, the Crown repeatedly told the jury that the appellant's true intention on the day in question could be inferred from his many lies.

[51] I reject this ground of appeal. The alleged untruths and lies of the appellant encompassed a great deal of evidence, some more significant than others. For example, the contradictions and inconsistencies in the appellant's trial evidence and statements he gave to police and psychiatrist with respect to his purchase of the hatchet and knife used in the attack were significant. Similarly, the various explanations the appellant gave as to what happened when he arrived at Mr. Agsaulio's house were contradictory and equally significant. Those contradictions and the circumstances in which they were told strongly supported the inference that some of the explanations proffered were concocted to avoid culpability. In the circumstances, if the jury found that the statements were lies, it was entitled to conclude that they were fabrications and draw an inference that the appellant went to the victim's house to kill his ex-wife and not, as he alleged, to threaten to kill himself.

[52] In the pre-charge discussions, the Crown requested that the trial judge give an O'Connor instruction. This would have involved telling the jury the circumstances in which the disbelief of an accused's statements could be used to support a conclusion that these statements were fabricated to deflect guilt. As part of such an instruction, however, the trial judge would have had to review the numerous inconsistencies in the appellant's trial and pre-trial statements, thereby highlighting and emphasizing the evidence suggestive of concoction.

[53] In response to the Crown's suggestion, the trial judge proposed to say something "soft enough without getting into the lies" and without having to articulate all the evidence "going back and forth". He suggested giving "maybe just a one-liner or a one paragraph". Defence counsel sensibly agreed. The impugned paragraph was later agreed to by counsel. The precise line that the jury may use the statements "in determining what Mr. Ching's intentions were on October 25, 2009" was also specifically agreed to by defence counsel after some discussion between the trial judge and the Crown.

[54] This is not a case where the trial judge acted unilaterally in deciding how to put the issue to the jury. Counsel's vetting and endorsement of the charge is a significant factor in assessing whether the jury was properly instructed. As explained by Doherty J.A. in R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, leave to appeal refused, [2010] S.C.C.A. No. 263, at para. 96:

Counsel's duty to assist the court in fulfilling its obligation to properly instruct the jury, referred to by Fish J. in R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104 at para. 49, takes on added significance where counsel has been given a full copy of the proposed instructions and an ample opportunity to vet them, and has engaged in a detailed pre-trial dialogue with the trial judge. In those circumstances, counsel's position at trial becomes very important when evaluating complaints, raised for the first time on appeal, that matters crucial to the defence were not properly addressed by the trial judge in her instructions.

[55] In the present case, counsel agreed with the charge on this issue. By accepting the jury instruction that the trial judge ultimately gave, the appellant's trial counsel made a tactical decision. It would not have served the appellant's purpose for the trial judge to provide a formal O'Connor instruction, given the damaging evidence that would necessarily have to be reviewed in this instance. As a result, I do not consider that the instruction given by the trial judge prejudiced the appellant's right to a fair trial.

Conclusion

[56] Other than with respect to the charge relating to first degree murder, I would dismiss the grounds of appeal. With respect to the instruction on first degree murder, I have concluded that the instruction was incorrect. Counsel advised the court that in such an eventuality, they had agreed that a verdict of not guilty of first degree murder and a verdict of guilty of second degree murder should be substituted. As a result, I would dismiss the appellant's conviction appeal under s. 686(1)(b)(i) of the Criminal Code and substitute a conviction for second degree murder in lieu of the conviction for first degree murder pursuant to s. 686(3) of the Criminal Code. I would ask the parties to contact the court office within thirty days to arrange a conference call with me to set a schedule for submissions on the appropriate period of parole ineligibility.

Released: July 22, 2019

"PR"

"Paul Rouleau J.A."

"I agree G.R. Strathy C.J.O."

"I agree B.W. Miller J.A."