Court of Appeal for Ontario

Date: October 1, 2019 Docket: C61422

Justices: Lauwers, van Rensburg and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Loujack Café Appellant

Counsel:

• Kristin Bailey and Jessica Zita, for the appellant
• Elise Nakelsky, for the respondent

Heard: April 25, 2019

On appeal from the conviction entered by Justice James Ramsay of the Superior Court of Justice, sitting with a jury, on August 24, 2015.

Trotter J.A.:

A. Introduction

[1] Loujack Café was convicted of the first degree murder of George Washington Burnett, contrary to s. 235(1) of the Criminal Code, R.S.C. 1985, c. C-46. He appeals his conviction.

[2] The appellant and Mr. Burnett were neighbours and acquaintances. One afternoon, the appellant let himself into Mr. Burnett's home and viciously attacked him with knives and a blunt object (possibly a rock or brick). The appellant disposed of his shoes and clothes in a dumpster. He subsequently sent text messages to friends in which he boasted about the killing. He wrote incriminatory rap lyrics and posted photographs of the crime scene on his Facebook page.

[3] The appellant's online activity caused the police to link him to Mr. Burnett's murder. The appellant eventually provided a full confession. He said that he killed Mr. Burnett in order to mock or insult God. In his trial testimony the appellant again admitted the killing, but this time blamed it on obedience to voices in his head.

[4] The sole issue at trial was whether the murder was planned and deliberate. The appellant submits that the trial judge erred in his instructions on the elements of second degree and first degree murder. He further argues that the trial judge erred in his instructions on the appellant's after-the-fact conduct. The following reasons explain why I would dismiss the appeal.

B. Factual Overview

(1) Introduction

[5] To provide a proper framework for the discussion of the issues on appeal, it is necessary to provide further detail about some of the evidence adduced at trial.

[6] Mr. Burnett lived in a house in Hamilton, Ontario. The appellant lived in a rooming house directly behind Mr. Burnett's home. Mr. Burnett was 82 years old. His health was in decline. He converted his dining room into a bedroom in order to avoid using the stairs. Mr. Burnett was a religious man who often sat on his porch and engaged passers-by in conversation. He and the appellant had conversations about religion. On Sunday, September 4, 2011 Mr. Burnett went to church and then returned home. He was found dead in his house two days later.

[7] Mr. Burnett suffered 46 knife wounds, three fractured ribs, as well as three blunt force injuries to his head that were consistent with being struck by a brick or a rock. A large knife was found near the fold of his neck. A second bloody knife was found on the kitchen counter just above the cutlery drawers. This knife was broken. There were bloody footprints on the kitchen floor and along the hallway to the front door, from which the perpetrator left the house.

[8] When Mr. Burnett's body was discovered, the appellant was among the people watching outside. The police took the appellant's name for follow-up. However, the appellant proved elusive. He did not cooperate with police efforts to follow up with him, even though an officer, Detective Easto of the Hamilton Police Service, left a business card for him at his residence. In late November of 2011, during an unrelated police investigation, another police officer came across one of the appellant's Facebook pages. He had posted a photo of Det. Easto's business card with the caption: "The coroners and homicide be asking me questions now…no witnesses no fingerprints no evidence…unsolved murder cases."

[9] The police soon found the appellant. He agreed to an interview, which occurred on December 1, 2011. He denied involvement in the murder. He was released, but was arrested the following month, at which time he confessed. The appellant's statements are discussed below.

(2) The Appellant's Conduct After the Offence

(a) Facebook Posts and Rap Lyrics

[10] After their initial interview with the appellant, the police discovered more incriminatory Facebook posts, including photographs and rap lyrics related to devils, demons, the demise of God, and the homicide. Among the photographs were images of the deceased, taken before the police had arrived on the scene. There was a photo of the soles of the appellant's shoes, a photo of the appellant posing, with a smile, at the rear of Mr. Burnett's home (after the murder), and another of a glove over a figure (presumably Mr. Burnett) with the caption "meet the Beast, the new God".

[11] On January 27, 2012, the appellant was arrested. He had several papers in his pockets which contained handwritten rap lyrics. Some of the lyrics seemed to relate to the murder, including the line: "Red, red, red rum, why's my hands covered in dead man's blood."

(b) Text Messages

[12] In the weeks after the murder of Mr. Burnett, the appellant sent text messages to friends in which he claimed responsibility for the murder and boasted about it. On September 15, 2011 he sent the following texts:

• So how u feel seeing real life murder after the fact face pics nigga?
• Second murder of the year belongs to me my nigga what you on lmao goodnight.
• Second murder of the year belongs to me my nigga and i laugh cause we got 9 months in.
• Shit was all over the news second m of the year 9 mnths in lol and guess who got the only pics of the m scene.
• Yeah search up george washington burnett if u need an m1 done holla at me fam … lol a joke i aint do that.

On September 16, 2011, the appellant sent the following text message:

• Whent from a soldier to a killing g rest in peace George B he was a straight o g. [i.e., an old school gangster]

On September 26, 2011, the appellant sent the following text to another contact:

• Zod tell me how to solve a murder scene no fingerprints no witnesses no evidence just a dead body with several holes in it? Ima predator and i pray on singularities. I Can show u how its done anytime.

(c) Asking Others to Lie

[13] On April 12, 2012 the appellant wrote (but did not send) a "kite" letter (i.e., a contraband letter between inmates) to his friend, Mwanza, asking him to lie to the appellant's lawyer. In the letter, the appellant said that Mwanza was his alibi. He told Mwanza to say that they saw two "Zoba mountalay's" (i.e., two stupid white people) run out of the back of "the old man's crib" and then gave "their bricks to us then they made a right out of sight." Mwanza was also asked to say that the appellant went inside to look in "on the old man", was in his home for 30 seconds, and then came out to report that Mr. Burnett was watching television.

[14] While in custody, the appellant phoned his girlfriend, Isabelle Roy, and asked her to lie in court by saying that "the beast" was the appellant's drug dealer. At trial the appellant testified that "the beast" was one of the voices that he heard.

(d) Letter to the Trial Judge

[15] In February 2014, over a year before the trial started, the appellant sent a letter to the trial judge. The appellant explained that, although he told police officers he heard voices, he in fact did not hear voices. He attributed his misstep to the "Detective's 5 hours of mental abuse." At trial, the appellant testified that he heard voices; indeed, they commanded him to kill Mr. Burnett.

(3) The Appellant's Statements

[16] The appellant gave his first statement on December 1, 2011. He denied any involvement in Mr. Burnett's killing. However, he said that Mr. Burnett was a religious man. The appellant suggested that the murder was committed by white supremacists.

[17] On the day of his arrest, January 27, 2012, the appellant provided a second statement. It was a full confession. The appellant told the police that he heard voices every day. He started hearing voices after a head injury a few years earlier. The voices made fun of him, challenged him, and called him small and "insufficient". One voice proclaimed itself to be God.

[18] The appellant told the police: "[Y]es, I did murder George Washington Burnett. Yeah, that's not a lie. I'll confess it to you." He killed Mr. Burnett "out of anger towards God … because he [Mr. Burnett] said he was a man of God right, he was a church man". When he saw that Mr. Burnett had left his back door open, he took advantage of the situation "to repay God".

[19] The appellant said that he went to his own room and got dressed in "certain clothes" and he wore gloves from work. The appellant said that he took a knife and got two knives from Mr. Burnett's kitchen. The appellant then described how and where he stabbed Mr. Burnett; this description was largely consistent with the state in which Mr. Burnett was found. The appellant said that he took a photo of Mr. Burnett "to mock God … and I told myself I was going … to do it in front of people's faces."

[20] The appellant explained that, in addition to taking his own knife, he had a "secondary weapon … it was like a rock or something in a plastic bag". The appellant said that he stabbed Mr. Burnett in the neck and he got up. He then swung the bag with a rock in it and hit Mr. Burnett in the head. Because his knife broke, the appellant retrieved two knives from the kitchen and went back to continue the attack. He said, "I knocked him back down on the bed … and completed the job."

[21] As discussed below, the appellant focuses on certain aspects of this statement to suggest that, when he was preparing to go to Mr. Burnett's home, he did not plan to kill him.

[22] For example, the appellant told the police: "It was very quick. I made sure it was quick, 'cause I, I, I did it very – on the point. I didn't really – it was – I didn't go in there to assault him, I went in there with the mind to, you know, finish him. And that's the truth. And that's all I wanted to get off my chest you know."

[23] Later in the interview, when the appellant was asked what he was thinking when he went into his own apartment, he said: "Now I wanted to go take advantage of him … I wanted to hurt him." The appellant denied robbing Mr. Burnett. The officer queried the appellant's intention in entering Mr. Burnett's house, asking, "[J]ust to hurt him?" The appellant confirmed, "It was just to hurt him." Finally, when asked about how he felt after he had killed Mr. Burnett and taken photos of him, the appellant said, "I laughed at God … I was like, you were talking shit and then I killed him."

[24] The appellant recalled stepping in blood. He took photos of the soles of his shoes. He left through the front door because he knew that it would lock from the inside. The appellant told the police that he got rid of his gloves, shoes, and some of his clothing, as well as his cellphone. He placed them in a dumpster in "a random area" of town. The appellant posted photographs to his Facebook page because the voices were still bothering him and he was insulting God.

[25] Many of the details in this statement had never been released to the public. The police had withheld certain aspects of their investigation from the media.

[26] The appellant made further statements (on February 7, 2012; February 28, 2012; and January 18, 2013) claiming that he had falsely confessed. At trial, he disavowed these protestations of innocence.

(4) The Appellant's Testimony at Trial

[27] The appellant testified and admitted that he killed Mr. Burnett. He knew Mr. Burnett to be a religious man. They had religious conversations in the past. He attributed his attack on Mr. Burnett to voices in his head. The appellant said that Mr. Burnett had left his door open. The appellant snuck inside and saw Mr. Burnett lying on his bed. The voices told him, "Kill him or die now". During the attack, the voices continued and said: "Stop fuckin' around; kill him or, or die". The voices also instructed him to do other things, including: taking photographs of the deceased; closing the back door and leaving through the front door; disposing of his clothes and shoes in a dumpster; writing the kite letter to Mr. Mwanza; and taking a selfie with Det. Easto's business card and posting it online. The voices also told him that he was the chosen one, who was above the law, and that the voices were protecting him. In short, the appellant admitted to everything contained in his confession, except those aspects that pointed to planning and deliberation, such as bringing his own gloves, knife, and a rock or brick in a bag.

C. The Instructions on Liability for Murder

(1) Introduction

[28] The appellant argues that the trial judge's instructions on the definition of murder in s. 229(a)(ii), as well as planning and deliberation in s. 231(2), were flawed. In his factum, the appellant argued that the trial judge's error in relation to s. 229(a)(ii) required a new trial. However, this position changed by the time of the oral hearing of the appeal. No longer was it alleged to be fatal. Instead, it was argued that the flawed explanation of s. 229(a)(ii) had a serious impact on the appellant's liability for first degree murder, based on a theory of the case that was not relied upon by either party at trial.

(2) The Theories at Trial and the New Theory on Appeal

[29] At trial, defence counsel relied on the appellant's testimony and downplayed his January 27, 2012 statement, which evidenced planning and deliberation. He submitted that the appellant's version at trial pointed to a murder that was spontaneous, not planned and deliberate. The defence emphasized that the appellant was following voice commands when he killed Mr. Burnett; he was not attempting to mock God, as the appellant had said in his statement to police.

[30] In its closing address, the Crown relied on the appellant's January 27, 2012 statement in which he said that, having noticed Mr. Burnett's door was open, he went home to make certain preparations. The appellant then returned to Mr. Burnett's home to carry out his plan to "take advantage of", "finish", or "hurt" Mr. Burnett, in order to mock God. The Crown said, "The elements of planning and deliberation are, in this case, pre-arming himself, suiting up back in his apartment, wearing gloves, and entering the house with the pre-existing intention to kill. This is all evidence of a simple plan."

[31] Essentially, the dispute at trial came down to the following: if the appellant formed his plan to attack Mr. Burnett in his apartment before entering Mr. Burnett's home, he would be guilty of first degree murder; if the jury had a doubt about this part of the narrative, and concluded that the appellant formed an intention to hurt Mr. Burnett only after he entered his home, the appellant would be guilty of second degree murder.

[32] For the first time on appeal, the appellant argues that some of the utterances from the appellant's January 27, 2012 statement (reproduced in paras. 22-23, above) suggest that, when he was in his room, the appellant may only have planned to hurt Mr. Burnett, not to kill him. Based on this new theory, the appellant contends that the trial judge's instructions on s. 229(a)(ii) were flawed in a way that led to an erroneous guilty verdict on first degree murder. Moreover, the appellant now argues that his statement – "I didn't go in there to assault him, I went in there with the mind to, you know, finish him" – was ambiguous. The appellant submits that the jury could have understood the words "go in there", not to mean entering Mr. Burnett's house, but as a reference to the appellant's state of mind when he went into Mr. Burnett's kitchen to retrieve knives. The appellant submits that this brief plan was incapable of amounting to planning and deliberation. I would reject both arguments.

(3) Instructions on Second Degree Murder

[33] Section 229(a) of the Criminal Code defines murder as follows:

229. 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. [Emphasis added.]

[34] The trial judge's instructions on the elements that must be proved for second degree murder were brief:

Now, I'm going to talk about the elements of the offence. Mr. Café is charged with first degree murder. For you to find him guilty of murder, the Crown must prove beyond a reasonable doubt that: Mr. Café caused the death of George Burnett; that he caused Mr. Burnett's death unlawfully; and, that Mr. Café had the state of mind required for murder.

The requisite state of mind is either, intent to kill, or intent to cause serious bodily harm that one knows is likely to cause death, not caring whether death ensues or not. In addition, to be found guilty of first degree murder, the Crown must prove that the murder was planned and deliberate on Mr. Café's part. [Emphasis added.]

[35] Consistent with the competing theories of counsel, the trial judge addressed liability for second degree murder later in his instructions, when he said:

Mr. Café testified that he stabbed Mr. Burnett to death. It is implicit in his evidence that he meant to kill him and that there was no lawful justification for killing him. He said that he killed Mr. Burnett because the voices in his head told him to do so. He knew that it was against the law but he was answering to higher justice, a human justice.

He has therefore admitted to committing second degree murder. You may, then, move straight to the contentious issue. Has the Crown proven beyond a reasonable doubt that the murder was planned and deliberate ? [Emphasis added.]

The trial judge then instructed the jury on planning and deliberation, which is discussed below.

[36] The appellant submits that, by virtue of the underlined portion of the instruction (in para. 34, above) – "that one knows" – the jury was not properly instructed on the requirement of subjective foresight of death in s. 229(a)(ii) of the Criminal Code. The appellant submits that the phrase "that one knows is likely to cause death" could have left the jury with the impression that guilt for second degree murder is based on an objective standard, rather than the actual state of mind of the appellant. I disagree.

[37] The trial judge's instructions on second degree murder were not erroneous. It must be clear to the jury that to convict under s. 229(a)(ii), the accused must intend to cause serious bodily harm which he or she subjectively knows is likely to cause death: see R. v. Nygaard, [1989] 2 S.C.R. 1074, at pp. 1087-88; R. v. Cooper, [1993] 1 S.C.R. 146, at pp. 155-56.

[38] The trial judge's phrase – "that one knows is likely to cause death" – adequately conveyed this subjective standard. One can find examples of courts referring to the mental element in s. 229(a)(ii) in similar language: see, e.g., Nygaard, at p. 1083; R. v. Boyd (1999), 118 O.A.C. 85, at para. 16.

[39] It would have been preferable for the trial judge to instruct the jury that the requisite state of mind is either the intent to kill, or the intent to cause serious bodily harm that " he [or Mr. Café] " knew was likely to cause death. This is the recommended approach in David Watt, Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), at p. 657. However, the trial judge's use of language in this case was not problematic.

[40] The appellant relies heavily on this court's decision in R. v. McIntyre, 2012 ONCA 356, 291 O.A.C. 359. McIntyre was found guilty of first degree murder on the basis that she was an aider or abettor in a murder committed by Jonathan Ebanks. In his instructions on party liability, the trial judge instructed the jury as follows:

To prove second degree murder on either or both of the aiding or abetting modes of participation, the Crown must prove beyond a reasonable doubt that Ms. McIntyre actually knew that Jonathan Ebanks intended to kill Karl O'Reggio or cause Karl O'Reggio bodily harm that would likely kill Karl O'Reggio and not care whether or not Karl O'Reggio died. [Emphasis added by Goudge J.A.]

[41] The appellant submits that the same error was made in this case. It was not. In McIntyre, the trial judge failed to provide any link between the likelihood of death and Ebanks's state of mind. It would have been open to the jury to conclude that Ms. McIntyre was guilty based on her knowledge of Ebanks's intention to cause serious bodily harm, even if Ebanks did not know the harm was likely to be fatal: at para. 19. The same error was identified in R. v. Zoldi, 2018 ONCA 384, 360 C.C.C. (3d) 476, at paras. 26-29, 39-40 (also involving party liability).

[42] Unlike McIntyre and Zoldi, the jury in this case was not required to consider the relative states of mind of a putative principal and an aider or abettor, a scenario that risks overlooking the compounded subjective elements in s. 229(a)(ii).

[43] The circumstances of this case made the instruction straightforward. Mr. Burnett was killed by one person, acting alone. The identity of the killer was beyond dispute. The trial judge's words – "The requisite state of mind is either, intent to kill, or intent to cause serious bodily harm that one knows is likely to cause death" – could only have been interpreted as referring to the appellant's state of mind, both in terms of the intent to kill or cause serious bodily harm, as well as knowledge that the serious bodily harm was likely to cause death. Thus the jury was clearly instructed that liability for second degree murder is subjective.

[44] Second, even if the trial judge's instruction had been erroneous, s. 229(a)(ii) was not realistically in play. The evidence at trial established beyond all doubt that the appellant intended to kill Mr. Burnett. All counsel and the trial judge proceeded on the basis that the killing was intentional and that, if believed, the appellant's January 27, 2012 statement pointed to a plan to kill; his evidence at trial suggested a killing that was spontaneous and inspired by voice commands – but intentional nonetheless. In his closing address, defence counsel stated that "the intent to kill is clearly evident and proven". He repeatedly acknowledged this point. And although he complained that the trial judge's charge was "rapid", defence counsel did not object to the trial judge's instructions on second degree murder. This was undoubtedly due to the fact that the requisite intent for second degree murder was satisfied under s. 229(a)(i), and s. 229(a)(ii) was not at issue.

(4) The Instructions on Planning and Deliberation

[45] I am not persuaded that the trial judge erred in his instructions on planning and deliberation. His instructions were properly tailored to the live issues at trial, as framed by the positions of the Crown and the defence.

[46] The trial judge explained first degree murder in the following passage:

Murder is first degree murder if it is planned and deliberate. Planning and deliberation are two distinct things and the Crown has to prove both.

A plan is a calculated scheme or design that has been carefully thought out and the nature and consequences of which have been considered and weighed. It does not need to be complicated. It may be a very simple one, and the simpler it is, perhaps the easier it is to formulate.

The important element as far as time is concerned, is the time involved in developing a plan. Once you've developed a plan you could execute it immediately or you could wait some time before doing so. Deliberate means considered, not impulsive, slow in deciding and cautious. It implies that the accused must take time to weigh the advantages and disadvantages [of] his intended action.

[47] The trial judge referred to planning and deliberation later in his instructions. He said:

Mr. Café is guilty of first degree murder only if the murder was planned and deliberate. If you have a reasonable doubt on this question, then Mr. Café is only guilty of second degree murder. The evidence that relates specifically to planning and deliberation may be summarized as follows, although it is for you to say what evidence is important.

[48] The trial judge reviewed the appellant's evidence in which he spoke of voices commanding him to kill Mr. Burnett. He provided the jury with the W.(D.) instruction at this juncture: R. v. W.(D.), [1991] 1 S.C.R. 742.

[49] The trial judge then reviewed the appellant's January 27, 2012 statement, concluding with the following: "Mr. Café also said, 'I didn't go in there to assault him, I went in there with the mind, you know, to finish him.' That is direct evidence of planning and deliberation. To what extent you act on it, is up to you."

[50] Defence counsel objected to this passage, arguing that it was taken out of context, omitting other statements that were not necessarily consistent with planning and deliberation. The trial judge re-instructed the jury and reminded them to consider all of the things said by the appellant on January 27, 2012, including: "I wanted to go take advantage of him"; "I wanted to hurt him … because he was a man of God, and God is, uh, has been causin' me trouble."

[51] Defence counsel's request that the utterance "I went in there to finish him" be placed in its proper context was appropriate, and the trial judge was right to provide further instructions. However, it was not incumbent upon the trial judge to go further and instruct the jury that it was precluded from finding the appellant guilty of first degree murder on the basis of the "finish him" utterance alone. It was for the jury to draw inferences from the evidence as a whole: see R. v. McGregor, 2019 ONCA 307, 145 O.R. (3d) 641, at para. 100. It was not the trial judge's role to foreclose lines of reasoning the appellant found unfavourable to his position. Moreover, the jury would not have thought that it could convict the appellant of first degree murder based on a plan to kill formed at the time the appellant fetched knives from the kitchen, moments before the attack was completed. As noted in para. 30 above, the Crown's theory of first degree murder rested on a plan to kill Mr. Burnett that was conceived before the appellant entered his house. This was also the understanding of the defence and the trial judge.

[52] As for the other new argument raised on appeal, there is no merit in the appellant's submission that he may have been convicted of first degree murder based on a plan to merely hurt Mr. Burnett. As discussed above, it was common ground at trial that the January 27, 2012 statement pointed to an intent to kill. Defence counsel submitted that the decision to kill was spontaneous because it had just been commanded by the voices. Liability for first degree murder predicated on a s. 229(a)(ii) killing was not a live issue. It is clear that the appellant was found guilty of first degree murder because the jury was satisfied beyond a reasonable doubt that the appellant went into Mr. Burnett's house with the intention of killing him. Had the trial judge also outlined a route to first degree murder based on s. 229(a)(ii), it would have had the effect of expanding, not narrowing, the appellant's liability exposure for first degree murder.

[53] I would dismiss this ground of appeal.

D. After-the-Fact Conduct

(1) Introduction

[54] As set out above, the Crown relied heavily on the appellant's conduct after he killed Mr. Burnett, including his text messages and internet activity, which contained his rap lyrics. The appellant argues that the trial judge erred in two respects in dealing with this body of evidence. First, he submits that the judge erred in ruling that some items of after-the-fact conduct were relevant to planning and deliberation. Second, he argues that the trial judge failed to provide the jury with adequate assistance on how to deal with this body of evidence. I would reject both arguments.

(2) Admissibility

[55] The admissibility of after-the-fact conduct evidence, and the use to be made of it by the trier of fact, depends on the nature of the evidence, the issues in the case, and the positions of the parties. Sometimes, this type of evidence may be probative of a person's participation in a crime, but of no value in determining the that person's level of culpability. In other cases, "as a matter of common sense and human experience, the evidence will be capable of supporting an inference that an accused had a particular state of mind": R. v. MacKinnon (1999), 43 O.R. (3d) 378 (C.A.), at pp. 383-84; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 42; and R. v. S.B.1, 2018 ONCA 807, 143 O.R. (3d) 81, at paras. 68-71. This court recently confirmed that evidence of after-the-fact conduct may assist a jury in distinguishing between different levels of culpability, including second degree and first degree murder: McGregor, at para. 102; R. v. Adan, 2019 ONCA 709, at para. 69, citing R. v. Calnen, 2019 SCC 6, 374 C.C.C. (3d) 259, at para. 119, per Martin J. (dissenting, but not on this point); R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 20; and R. v. Jackson, 2016 ONCA 736, 33 C.R. (7th) 130, at para. 20.

[56] In MacKinnon, at para. 15, Doherty J.A. wrote that the after-the-fact conduct evidence adduced in that case, in the context of the evidence viewed in its entirety, supported the inference that the appellants "had done exactly what they had planned to do … commit a robbery and shoot Mr. Chow." The same line of reasoning was utilized in R. v. Aravena, 2015 ONCA 250, 323 C.C.C. (3d) 54, at paras. 129-30, leave to appeal refused, [2015] S.C.C.A. No. 497. In both cases, evidence of after-the-fact conduct was left to the jury to consider on the issue of whether the murders were planned and deliberate. In this case, the Crown relied on some aspects of the appellant's after-the-fact conduct for the same purpose.

[57] Before counsel delivered their closing addresses, the trial judge ruled that the following items of evidence were only probative of whether the appellant committed the offence: the kite letter; the appellant's disposal of his clothing and the rock (if there was one); and his discussion with Ms. Roy about the "beast". However, the trial judge held that the photographs that the appellant posted on his Facebook page, as well as his texts about the murder, some of which purported to mock God, were relevant to planning and deliberation. As the trial judge stated:

As in Aravena, they could show that the accused did what he intended to do. They could show that he was telling the truth when he told the police that his motive was to mock or insult God, as opposed to obeying God, which could be relevant on the question of whether he chose Mr. Burnett for a particular purpose ahead of time and therefore planned and deliberated on his murder. It is only relevant on that basis, and I think the jury will also have to be told that carefully, that that's the only way they can use it.

[58] I see no error in the trial judge's analysis. It was tailored to the manner in which the evidence unfolded at trial, particularly how the appellant's testimony differed from his January 27, 2012 statement to the police. The posts and text messages, in which the appellant seemed pleased with himself and bragged about the killing, were capable of being evidence of motive. It was open to the jury to conclude that the evidence was more consistent with the appellant's statement (i.e., the killing was to insult God) than his trial testimony (i.e., the appellant was obeying voice commands). The evidence was consistent with someone who had achieved the goal to which he had aspired by singling out Mr. Burnett for the purpose of mocking God. As a matter of logic and common sense, the appellant's conduct was relevant to whether the murder was planned and deliberate: Aravena, at paras. 129-30.

[59] Relying on Aravena and MacKinnon, the appellant argues that his after-the-fact conduct was not sufficiently proximate in time to Mr. Burnett's murder to have any probative value. I disagree. Although both cases involved conduct that occurred in the immediate aftermath of the offences, Aravena and MacKinnon do not limit admissibility to these circumstances. This court recently acknowledged in McGregor, at para. 107, that after-the-fact conduct is "often removed temporally from the event to which it is said to relate." The probative value of the conduct derives from the logical inferences that may be drawn when situated in the context of a pre-existing motive and post-conduct pleasure in having accomplished the premeditated killing.

[60] In any event, some of the appellant's conduct did take place in the immediate aftermath. The appellant took photographs of Mr. Burnett's body before he left the scene. He also took photographs of the soles of his shoes with which he tracked Mr. Burnett's blood through the house. As the appellant said in his confession on January 27, 2012, he did it to "mock God" and "do it in front of people's faces."

(3) Instructions to the Jury

[61] The appellant argues that the trial judge's instructions on the after-the-fact conduct evidence were deficient. They failed to explain to the jury the specific and limited use of the various items of evidence that fell into this category. Specifically, the appellant submits that the trial judge should have given a no probative value instruction in relation to first degree murder. More generally, the appellant submits that the trial judge failed to focus the jury on the proper and limited use of this evidence, nor did he caution the jury to look for alternative explanations for the appellant's conduct after Mr. Burnett was killed.

[62] In McGregor, this court confirmed that in a jury trial, the trial judge must explain the permitted and prohibited uses of after-the-fact evidence. Watt J.A. observed, at para. 106, that jury instructions concerning the limited use of evidence "typically include three elements: (i) identification of the evidence to which the instruction applies; (ii) an instruction on the permitted use of the evidence; and (iii) an instruction on the prohibited use of the evidence" (emphasis in original). With after-the-fact conduct evidence, the jury must be told to take into account alternative explanations for the conduct to avoid mistaken or premature inferences of guilt: McGregor, at para. 108. In this case, the trial judge's instructions provided the jury with sufficient guidance to properly deal with this evidence.

[63] In terms of planning and deliberation, the trial judge was right not to provide a no probative value instruction for the items of evidence he ruled were relevant to this issue. With respect to the other items of evidence, that were not relevant to the appellant's level of culpability, the trial judge properly restricted the use of this evidence in the following passage:

There are three items in this category that might have helped you on the issue of whether Mr. Café committed the crime, but will not help you on the issue of planning and deliberation, and you may not use them on the issue of planning and deliberation. There are the kite that he composed for Mwanza, getting rid of his clothes, gloves and shoes and rock, if there was one, and telling Isabelle Roy to say that Beast was a drug dealer, not the creature from Revelation.

As things turn out, these items will not be important to your deliberations except that they could be considered by you, not as items of evidence, but only in connection with your assessment of the reliability of Mr. Café as a witness. As evidence, they could, at most, suggest that Mr. Café is the author of a killing, not that it was planned and deliberate. [Emphasis added.]

[64] Although his instructions were brief, the trial judge properly instructed the jury to consider alternative explanations for the appellant's after-the-fact conduct. The trial judge told the jury:

What a person does after a crime is committed may help you decide whether it is he who committed it. The conduct may suggest that the accused committed the crime, or it may be conduct of an innocent person who simply wants avoid involvement in a police investigation, or embarrassment for him, or others.

[65] The trial judge also reminded the jury of the appellant's explanations for some of his text messages, as they related to his internal struggle with the voices. The trial judge said: "Sometimes they wanted him to incriminate himself. Sometimes he rebelled against that. If you reject Mr. Café's explanation, it would be open to you to find that it was boasting." The trial judge underscored the fact that the evidence was subject to different interpretations when he said, "Again, whether you find it helpful or not, and to what extent, is up to you, and, again, this is the only way you can use this evidence."

[66] The last sentence in the previous paragraph was a reference to the trial judge's earlier caution not to use the after-the-fact evidence as bad character evidence. This was accompanied by a caution about the rap lyrics posted online by the appellant. The trial judge told the jury:

I stress the following instruction of law. Many of the posts are offensive. Those of you whose children are too young, or too old for you to be familiar with rap lyrics, may even be shocked. You must put any such feelings aside when you consider this evidence. Again, you must not use any of feelings or conclusions about Mr. Café's character in view of these posts as evidence. You must not reason that someone who would make these posts is the sort of person who would commit the offence charged. That sort of reasoning is absolutely prohibited. It is not evidence. You must decide the case on the evidence. [Emphasis added.]

[67] In conclusion, the trial judge identified the after-the-fact evidence to which the instruction applied, instructed the jury on the permitted and prohibited uses of various items of this evidence, suggested that the jury consider alternative explanations, and cautioned against bad character or propensity reasoning. Taking a functional approach to the review of the trial judge's instructions, I am satisfied that they were adequate: Adan, at paras. 60-61; R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 62. My conclusion is bolstered by the fact that trial counsel's post-charge objections focused more on the admissibility of the evidence than the trial judge's instructions. While a failure to make a specific objection is not decisive, in this case, it is a factor I would consider in concluding that the jury was properly instructed on the use of this body of evidence: Adan, at para. 63.

[68] I would dismiss this ground of appeal.

E. Ineffective Assistance of Counsel?

[69] Before concluding these reasons, it is necessary to address a theme that was evident throughout the trial: the appellant's mental state. In his January 27, 2012 statement, the appellant referred to hearing voices, just as he did during his evidence at trial. The appellant testified that he had suffered a head injury and heard voices ever since. However, no medical evidence was adduced at trial.

[70] After the jury had returned its verdict, the trial judge thanked the jurors for their service. The trial judge then asked counsel: "Is there any reason why I should not discharge the jury at this point?" When both counsel said "no", the jury was discharged.

[71] As the trial judge was about to turn to the issue of sentence, defence counsel requested a hearing to determine whether, at the time he killed Mr. Burnett, the appellant was not criminally responsible on account of mental disorder ("NCRMD"), under s. 16 of the Criminal Code. The trial judge advised defence counsel that, given that the appellant was tried by judge and jury, only the jury could make the determination under s. 16. Defence counsel was of the view that the trial judge could decide the issue. The trial judge disagreed and imposed the mandatory life sentence for first degree murder: ss. 235(1) and 745(a).

[72] The trial judge was correct. When the jury was discharged, jurisdiction to determine whether the appellant was NCRMD did not pass from the jury to the trial judge. In these circumstances, a trial judge has no jurisdiction to interfere with the jury's verdict and the case must proceed to sentence: see R. v. Head, [1986] 2 S.C.R. 684, per Lamer J. (concurring in the result), at p. 698. Any remedy that an accused person may have is on appeal: Joan Barrett and Riun Shandler, Mental Disorder in Canadian Criminal Law (Toronto: Thomson Reuters Canada Ltd., 2006, 2017) (loose-leaf updated 2018, release 4), at pp. 4-44.3 to 4-44.7.

[73] The issue of NCRMD was raised in the Notice of Appeal as an alleged error of the trial judge, but it was not addressed in the appellant's factum. At the outset of the oral hearing, concerned about the possibility of a miscarriage of justice, members of the panel inquired into what happened at the end of the trial: see R. v. Pietrangelo, 2008 ONCA 449, 233 C.C.C. (3d) 338, at para. 78. Counsel for the appellant was asked about the effectiveness of the assistance provided to the appellant by defence counsel at trial. Experienced counsel for the appellant advised that an ineffective assistance of counsel claim would not be made, largely because, even if the missed opportunity to pursue the s. 16 issue at trial was due to a lack of competence, it was highly unlikely that evidence would have been available to substantiate the NCRMD claim. In other words, if there was a misstep in professional judgment, it was inconsequential. Satisfied with this explanation, the panel did not pursue the issue further.

F. Conclusion

[74] I would dismiss the appeal.

Released: October 1, 2019

"Gary Trotter J.A."

"I agree. P. Lauwers J.A."

"I agree. K. van Rensburg J.A."