COURT OF APPEAL FOR ONTARIO

DATE: 20200511 DOCKET: C65222

Watt, Lauwers and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Jeremy Gough Appellant

Counsel: Andrew Furgiuele, for the appellant Holly Loubert, for the respondent

Heard: October 11, 2019

On appeal from the conviction entered by Justice Joseph R. Henderson of the Superior Court of Justice, sitting with a jury, on May 17, 2017.

By the Court:

[1] The appellant was convicted of first degree murder after a trial before a judge of the Superior Court of Justice sitting with a jury. He was sentenced to life imprisonment without eligibility for parole until he has served twenty-five years of the sentence. He appeals his conviction.

[2] At the conclusion of oral argument, we dismissed the appeal. We said we would provide reasons for our conclusion. These are our reasons.

The Background Facts

[3] The appellant and deceased lived together in a common-law relationship for over nine years. The couple had two children who attended elementary school.

The Separation

[4] In mid-January, 2015, the deceased told the appellant their relationship was over. She wanted to separate and asked the appellant to leave their home.

[5] The appellant was unhappy when told of the end of their union. He insisted they reconcile their differences and continue their relationship.

[6] The appellant’s attempts at reconciliation proved unsuccessful. On January 31, 2015 he left the home and moved in with his brother.

The Early Days after Separation

[7] In the weeks immediately following their separation, the appellant and deceased remained in regular contact, mainly about their children. The appellant continued his efforts to persuade the deceased to reconsider her decision to separate. The deceased rejected his entreaties.

[8] As time passed, the appellant became increasingly jealous. He was convinced the deceased was seeing another man. Repeatedly, he asked the deceased whether she was seeing or involved with somebody else.

[9] The appellant met another woman through a dating website. Shortly thereafter, they began a casual relationship.

The Weekend of February 21-22, 2015

[10] During the weekend of February 21-22, 2015 the couple’s two children were staying with the appellant at his brother’s house. The appellant messaged the deceased about whether she would be attending a bowling tournament in which one of the children was participating on February 22, 2015. The deceased was non-committal in her response.

[11] When the deceased did not appear at the bowling tournament, the appellant phoned her. He asked her why she had not attended and told her of their child’s anger and disappointment.

[12] Later that day the appellant returned the children to the deceased’s residence. He went upstairs to play basketball with his son. When the appellant walked by the deceased’s room, he noticed two pillows on her bed. This suggested to him that someone might have slept over.

[13] After observing the pillows the appellant went down to the basement. He testified that he did so to check whether some of his possessions remained where he had left them. The Crown suggested his real purpose was to unlock the door that led from the basement to the yard, so he could surreptitiously enter the house the following day.

The Return Visit

[14] Later on February 22, 2015 the deceased contacted the appellant and asked him to return a breathing apparatus one of the children had forgotten at the appellant’s brother’s house. The appellant drove back to the deceased’s home to return the apparatus.

[15] During this visit, the appellant shovelled snow that had fallen on the deceased’s driveway, at the side of the house and on the back stairs that led to the basement door. The appellant said that he did so because he was concerned that as the snow melted, the basement area would be flooded. The Crown contended that the real reason for the shovelling was to provide the appellant with an opportunity to ensure that the basement door remained unlocked.

The Morning of February 23, 2015

[16] Shortly after 8:00 a.m. on February 23, 2015, the appellant and deceased exchanged messages and spoke on the phone. This was a school day. The deceased would take the children to school and return home around 9:00 a.m.

[17] The appellant told the deceased he would be dropping off the skating form for one of the children at the school that day. He asked about a helmet for their child since one was required for skating. He told the deceased, in a somewhat raised voice, to look in the basement for the helmet.

[18] The appellant decided he would take the form to the school before classes began. He then asked his girlfriend, who was with him at his brother’s house, whether she wanted anything for breakfast from Tim Hortons. He agreed to pick up a coffee and bagel for her. According to the appellant’s girlfriend, he left the house wearing a Blue Jays jacket.

[19] The appellant drove off but forgot to bring the skating form with him. The deceased lived near the school. The appellant drove by her house to see whether anyone was at the house with her.

The Approach

[20] The appellant parked on a street near the deceased’s home where his vehicle would not be visible from her house. Rather than a Blue Jays jacket, surveillance footage showed the appellant wearing a large black jacket and a dark hood pulled over a black hat. He also wore a backpack. The Crown theory was that he did so, so that he would blend in with others in the neighbourhood and not be recognized by the deceased if she drove by when taking the children to school.

[21] The appellant testified that he walked from his car to the front door of the deceased’s home. He knocked and was let inside by the deceased.

[22] After the body of the deceased had been found later on February 23, 2015, investigators found a set of footprints in the snow. Footprints led through the backyard of a neighbour’s property immediately behind the deceased home up to and over a fence separating the two properties. The footprints resumed in the backyard of the deceased’s home and continued towards the stairs to the back door of the basement.

The Death of the Deceased

[23] The body of the deceased was found on the basement floor steps away from the back door leading from the basement to the yard.

[24] The deceased suffered 8-10 blunt force injuries to her scalp. These wounds caused significant blood loss and would have resulted in her death within a few minutes. In addition, the deceased had been stabbed in the back 24 times, likely when she was already dead.

[25] A blood spatter analyst testified that the deceased’s blunt force injuries occurred in two separate places in the basement. Some were inflicted in the hallway between the laundry room and back door while the deceased was on all fours. Others took place in the laundry room itself while the deceased was laying down. Significant amounts of blood spatter were visible on all surfaces within the vicinity of the attacks.

[26] In the deceased’s bedroom, police found that her bedside table had been overturned and ransacked. One of the murder weapons, a large bloodied kitchen knife, was found beside the overturned table. In the kitchen, police found the deceased’s iPhone. Its screen had been smashed.

[27] In his testimony at trial, the appellant explained that after the deceased opened the front door, he told her that he wanted to talk. She let him into the house. He asked several times whether she was seeing someone. Eventually the deceased admitted she was. She explained that if the person she was seeing got a new job elsewhere, she might move away with him and take the children with her. The appellant asked her how he would see the children if the deceased moved away. She replied that how he would see the children was his problem. Then she laughed.

[28] When the deceased made the comment about moving away with the children, the appellant said he “snapped”. He did not intend to kill the deceased. Overcome with emotion because of a previous experience with a former spouse moving away and taking their child with her, the appellant grabbed a fish bonker and hit the deceased on the head. She fell down the stairs to a landing. There, he hit her two or three more times. She fell down the balance of the stairs to the basement floor. In a rage, he hit her again. He saw blood on the walls and in the deceased’s hair. He put the fish bonker in his hoodie, walked back upstairs and left the house.

[29] The appellant claimed no memory of holding a knife or of stabbing the deceased. He believed that he blacked out as had happened to him in the past.

[30] Forensic investigation of the stairs and staircase area revealed a relative lack of blood and blood spatter on the staircase. Several items on the stairs, including a snow shovel, cardboard box and the deceased’s boots, appeared undisturbed.

The Post-Incident Conduct [1]

[31] According to a surveillance video, the appellant returned to his car at 9:25 a.m. Another video recorded his entry at a Tim Hortons at approximately 9:43 a.m. where he picked up coffee and a bagel for his girlfriend. Before entering Tim Hortons, the appellant removed a sweatshirt he was wearing. Once inside, he washed his hands and face in the washroom. He changed clothes again at his brother’s house because he was going to pick up some furniture for his girlfriend.

[32] Later in the morning, the appellant sent two texts to the deceased asking whether she had found a hockey helmet for the skating trip and explaining that he had dropped off the skating form at the school. He testified that he sent the first text because he wasn’t sure whether the deceased was dead and the second, by which time he assumed she was dead, to cover his tracks.

[33] The appellant and his girlfriend dropped off the skating form at the children’s school shortly after noon on February 23, 2015. The form suggested the child was not scheduled to go skating until March 4, 2015.

The Trial Proceedings

[34] At trial, there was no dispute that the appellant unlawfully killed the deceased. The contested ground was the legal character of the unlawful killing. The Crown said it was a planned and deliberate first degree murder. The defence contended it was manslaughter because the appellant did not intend to kill the deceased or, if he did, the statutory partial defence of provocation applied.

[35] Before closing addresses, counsel discussed with the trial judge the manner in which counsel could refer to the evidence of post-incident conduct in their closing addresses and what, if anything, the trial judge would say about this evidence in his charge.

The Pre-Charge Discussion

[36] As the discussions began, the trial Crown (not counsel on appeal) contended that the evidence of post-incident conduct – the trip to Tim Hortons, the text messages about skating and the delivery of the skating form – were all part of the plan formulated by the appellant prior to the killing to distance himself from involvement in it. The plan to carry out these activities was made in advance of the killing and executed thereafter. This evidence was thus relevant to prove the killing was intentional and a planned and deliberate murder.

[37] The initial comments of defence counsel (not counsel on appeal) focused on the need for a caution to jurors about the dangers of placing any reliance on evidence of the appellant’s demeanour after the killing.

[38] When the pre-charge discussion resumed the following week, the trial Crown focused her submissions on the post-incident activities of the appellant as the implementation of a plan made in advance of the killing, and their consequent relevance to the planned and deliberate nature of that killing. The trial judge expressed concern about an instruction on use of evidence of post-incident conduct drawing too much attention to a “small piece of evidence”. The trial Crown acknowledged this danger and said it may be best if the trial judge made no comment about the evidence.

[39] Defence counsel added their concern about the danger that an instruction on post-incident conduct might result in the jury’s assigning too much importance to evidence with no real probative value.

The Ruling of the Trial Judge

[40] Prior to closing addresses, the trial judge ruled on the use that counsel could make of the evidence of post-incident conduct in their closing addresses and what he would say about it in his charge to the jury.

[41] The trial judge was satisfied there was no evidence that fell within the classic paradigm of evidence of post-incident conduct; thus he would not provide the “standard charge” on the issue. However, the judge was satisfied that the jury could use the evidence that, after killing the deceased, the appellant:

i. went to Tim Hortons; ii. messaged the deceased; and iii. dropped off the skating form at school

as evidence that the killing was planned and deliberate. These activities had been planned in advance.

[42] The trial judge declined to give the jurors a specific instruction about their use of evidence of post-incident conduct or a no probative value instruction about that evidence. He concluded:

That being said, it would be unwise for me to specifically focus on this evidence in my instructions to the jury. The post-incident conduct here may be useful to the jury and it may not. They can certainly consider it. Counsel are free to make submissions to the jury in their closing statements as to how the jury can use this evidence. I can then reference their submissions when I explain the theory of the Crown and the theory of the defence to the jury. For those reasons, I will not be giving a specific instruction on post-incident conduct to the jury.

[43] The trial judge did not instruct the jury on its use of evidence of post-incident conduct, nor tell the jury that the evidence was of no value to them in their deliberations.

The Closing Addresses of Counsel

[44] Defence counsel addressed the jury first. She briefly mentioned the evidence of post-incident conduct and proposed an explanation: the appellant “wanted to make things look normal so that no one would suspect him”.

[45] The trial Crown referred to the evidence of post-incident conduct on a few occasions in his closing address. On each occasion, he linked it to evidence of the arrangements made by the appellant in advance of the killing. What occurred thereafter was neither more nor less than the execution of a plan made beforehand.

[46] Defence counsel did not object to the closing address of the trial Crown.

The Appeal

[47] In this court, the appellant advances two grounds of appeal. Both relate to the evidence of the appellant’s post-incident conduct. In brief compass, that evidence consists of:

i. the attendance at Tim Hortons; ii. the messages about skating; and iii. the delivery of the skating form.

[48] The appellant submits that none of this evidence was relevant to either of the material issues at trial: the appellant’s intent and whether the killing was planned and deliberate.

[49] Accordingly, the appellant says, the trial judge erred in permitting the Crown to rely on the post-incident conduct evidence in its closing address to the jury. The trial judge’s error was compounded by his failure to provide a limiting instruction, particularly given the Crown’s repeated references to the post-incident conduct in his closing address. In combination, these errors permitted the jury to find that the appellant committed murder and planned and deliberate first degree murder on the basis of evidence that was not admissible on either issue. A new trial is required.

Analysis

[50] As we explain, both claims of error fail.

[51] In cases where evidence of post-incident conduct is tendered to prove an essential element of the Crown’s case, its admission is governed by general evidentiary principles. The evidence must be relevant to a material issue at trial. It must be admissible. And its probative value must outweigh its prejudicial effects: R. v. Adan, 2019 ONCA 709, at para. 65.

[52] Determining the relevance of post-incident conduct evidence “is necessarily a case-by-case, ‘fact-driven exercise’”: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 108, per Martin J. (dissenting, but not on this point). In some cases, this evidence may be relevant to the issue of intent and to distinguish between different levels of culpability: Calnen, at para. 119, per Martin J. (dissenting, but not on this point). In others, it may be used to prove that a murder was planned and deliberate: R. v. MacKinnon (1999), 132 C.C.C. (3d) 545 (Ont. C.A.), at paras. 14-15; R. v. Poitras (2002), 57 O.R. (3d) 538 (C.A.), at para. 11; R. v. Azzam, 2008 ONCA 467, 91 O.R. (3d) 335, at paras. 46, 49; and R. v. Khan, 2007 ONCA 779, 230 O.A.C. 174, at para. 5.

[53] Despite its reception, evidence of post-incident conduct may pose unique reasoning risks. The separation in time of the events which form the subject-matter of the charge may make it more difficult to ground the inference that the murder was planned and deliberate. The evidence may have a veneer of cogency disproportionate to its true probative value. It may spur speculation, spawn imprecise reasoning and encourage decision makers, such as an untutored jury, to jump to dubious conclusions: Calnen, at para. 116, per Martin J. (dissenting, but not on this point).

[54] In many cases, the nature and magnitude of these risks will require a specific cautionary instruction to the jury. The content of such an instruction will depend on the “specific risks posed by the particular type of after-the-fact conduct at issue in any given case”: Calnen, at para. 119, per Martin J. (dissenting, but not on this point). On appeal, “the test is whether the jury was properly, not perfectly, instructed”: Calnen, at para. 9.

[55] An application of these principles to the appellant’s case belies his claims of error. The evidence was properly admitted. And the jury was adequately equipped to decide the case “according to the law and the evidence”: Calnen, at para. 8.

[56] First, this is not a case in which the evidence of post-incident conduct was required to bear the entire burden of proving that the unlawful killing of the deceased constituted planned and deliberate murder. As the evidence adduced at trial revealed, this was a calculated scheme or design to surreptitiously gain entry to the deceased’s home while she was alone. The appellant was disguised and had with him changes of clothing. He had set up a plan in advance to make it appear as an ordinary day in his life, thereby distancing him from any connection to the deceased’s death. He executed that plan.

[57] Second, in this case there exists a positive link between the appellant’s pre-offence and post-incident conduct such that the reasoning risks posed by evidence of post-incident conduct on its own are substantially attenuated, if not eliminated. The appellant’s actions were set up before and executed after the killing, as part of a continuous course of conduct. The concerns that underpin the requirement of a limiting or cautioning instruction are not present here.

[58] Third, as we have seen, there is no per se or bright line rule that evidence of post-incident conduct cannot be used to prove an accused’s state of mind during the commission of an alleged crime. More particularly, evidence of post-incident conduct may assist in proving that an unlawful killing was murder and that the murder was planned and deliberate. Provided the evidence of post-incident conduct is relevant to these issues, does not offend any exclusionary rule of the law of evidence and that its probative value exceeds its prejudicial effect, the evidence may be received for these purposes. The evidence in this case met those requirements. It was available for that use here and the Crown was entitled to invoke it for that purpose. That the trial judge did not instruct the jury accordingly is an omission about which the appellant cannot complain.

[59] Fourth, two experienced trial counsel did not object either to the closing address of the Crown or to the judge’s charge on this issue. While not dispositive, this failure affords some indication that counsel did not consider that either was prejudicial to the appellant’s defence or otherwise rendered his trial unfair: R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 38.

[60] Finally, we are satisfied that the jury was properly instructed and left to decide the case on a proper legal foundation.

DISPOSITION

[61] For these reasons, the appeal from conviction was dismissed.

Released: “DW” May 11, 2020

“David Watt J.A.”

“P. Lauwers J.A.”

“David M. Paciocco J.A.”

[1] The term “post-incident conduct” is used in these reasons to avoid the potential prejudice associated with the label “post-offence conduct”, which presumes the commission of an offence: see R. v. Adamson, 2018 ONCA 678, 364 C.C.C. (3d) 41, at para. 55 n.1; R. v. Samuels (2005), 196 C.C.C. (3d) 403 (Ont. C.A.), at paras. 44-45.