COURT OF APPEAL FOR ONTARIO

DATE: 20200522 DOCKET: C64615

van Rensburg, Miller and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Jessy Herlichka Appellant

Counsel: Delmar Doucette, Zahra Shariff and Nicolas Rouleau, for the appellant Amy Alyea, for the respondent

Heard: January 15, 2020

On appeal from the conviction entered on May 1, 2015 by Justice Alfred J. Stong of the Superior Court of Justice, sitting with a jury.

Fairburn J.A.:

A. Overview

[1] Lorraine Ashkanase worked at Dino’s Restaurant. She and her coworkers were in the process of closing the restaurant for the night when Jessy Herlichka, the appellant, and Paul McClung approached the back door. Claiming that he wanted “salad”, the appellant attempted to open the door.

[2] Ms. Ashkanase’s partner, Andrew Mixemong, was waiting outside of the restaurant for her to finish work. When he saw the disturbance, he approached the appellant and Mr. McClung, telling them that there were no salads and to get away from the door. Over the next several minutes, the appellant punched, kicked, and stomped on Mr. Mixemong so badly that he died in the hospital a few hours later. Mr. McClung stood by, encouraging the appellant and ensuring that other horrified onlookers remained at bay.

[3] The appellant and Mr. McClung were tried together before a jury on the charge of second-degree murder. As the appellant pled guilty to manslaughter on the first day of trial, the jury had only one issue to focus upon in relation to the case against him: did the appellant have the requisite state of mind for murder? The appellant said that his degree of intoxication should have given rise to a reasonable doubt as to whether he formed that state of mind. The jury disagreed, returning a verdict of guilty to second-degree murder. Mr. McClung was convicted of manslaughter.

[4] This appeal is brought by Mr. Herlichka alone. Accordingly, these reasons focus upon the case against him.

[5] The appellant suggests that the trial judge erred in three respects in that he:

(a) gave flawed instructions on the defence of intoxication;

(b) refused to qualify a proposed defence expert in a specific area of expertise; and

(c) provided an inadequate curative instruction after a Crown witness suggested that the appellant murdered Mr. Mixemong.

[6] For the reasons that follow, I would dismiss the appeal.

B. First Ground of Appeal: The Instructions on Intoxication

(1) Overview

[7] As the unlawful killing by the appellant was not in dispute, the central issue for the jury’s determination was whether he had the state of mind for murder pursuant to either s. 229 (a)(i) or (ii) of the Criminal Code, R.S.C. 1985, c. C-46. There was evidence supporting both paths to the intention for murder: (a) a specific intention to kill Mr. Mixemong (s. 229(a)(i)); and (b) an intention to cause Mr. Mixemong bodily harm that the appellant knew was likely to cause death and being reckless whether death ensued (s. 229(a)(ii)). The Crown did not need to prove both paths and the jurors did not have to agree on the same path. Provided that each juror was satisfied that one of those paths had been proven beyond a reasonable doubt, then a second-degree murder conviction would be the only available verdict. If the jurors had a reasonable doubt in relation to both paths to intention, then a manslaughter conviction would be the only available verdict.

[8] The appellant ran a straight intoxication defence. There was no dispute at trial that he was intoxicated at the time. Rather, the dispute was over the degree of his intoxication and the effect that it had on his state of mind. The appellant maintained that he was so intoxicated by alcohol and drugs that there was a reasonable doubt as to whether he formed the state of mind for murder. Indeed, as will be discussed later, the appellant went so far as to suggest to the jury that he was so intoxicated that he was incapable of forming that state of mind.

[9] On appeal, the appellant argues that the trial judge erred in a number of respects in his instructions to the jury on the defence of intoxication and how it interacts with the state of mind for murder. Before turning to the alleged errors made by the trial judge with respect to the defence of intoxication, I first review the evidentiary context relating to the appellant’s degree of intoxication and its impact on his state of mind.

(2) Evidence Relevant to Level of Intoxication and State of Mind

[10] Multiple sources of evidence were capable of shedding light on the appellant’s level of intoxication and its impact on his state of mind at the time of the offence.

[11] For instance, the injuries suffered by Mr. Mixemong had the potential to inform the question of state of mind for murder. They demonstrated the brutality of the attack, both in terms of the sheer force of the blows and the spread of the attack over different parts of the body, which spoke to the appellant’s foresight of likely death under s. 229(a)(ii). Those injuries included, but are not limited to:

(a) extensive fracturing of the upper and lower jawbone area, with the upper maxilla, which the teeth insert into, having come completely disconnected from the skull;

(b) bruising and lacerations to the head;

(c) patterned imprints on the skin of the face and chest;

(d) multiple broken and displaced ribs, one of which perforated the victim’s diaphragm;

(e) significant damage, including tears, to the mesentery attaching to the abdomen and to which the intestines are attached; and

(f) 1.2 litres of blood flowing freely in the abdomen.

[12] As well, some of the interaction at the back door of the restaurant was caught on videotape, as was a significant portion of the beating. This video allowed the jurors to see for themselves the appellant’s level of coordination during the offence and the length of time over which it occurred, both of which could inform his state of mind at the time of the attack.

[13] Much of the attack was also caught on a 9-1-1 recording, allowing the jurors to listen to the terrified reactions of onlookers to the events and their pleas to the appellant to stop the attack.

[14] In addition, there was a good deal of evidence about the appellant’s consumption of intoxicants over the course of the day leading up to the attack. The appellant’s testimony was largely consistent with what he told the defence expert - that in the lead-up to the attack he had consumed about 12 beers, large parts of a total of 100 oz. of vodka, two Percocets and four OxyNeo tablets. Other defence witnesses also testified about the appellant’s very heavy consumption of alcohol and drugs on the day in question and just prior to the killing. Importantly, both the Crown and defence experts testified that it was unlikely that the appellant could have consumed as much alcohol as he and his then girlfriend suggested at trial because, if he had, he would have been, at best, unconscious, and more likely dead.

[15] There was also evidence from eyewitnesses to the events, leading up to, during and following the attack, each of whom was able to speak to some degree about various subjects, including the appellant’s apparent ability to comprehend what was happening around him, his responsiveness to others, his ability to communicate his thoughts, and his level of physical coordination during that period of time. For instance:

(a) A young female employee of the restaurant testified about being approached by the appellant and Mr. McClung just prior to the attack. They harassed her and suggested she was an “angel”. She thought that they were only “possibly” drunk.

(b) Another witness testified that, just prior to the attack, the appellant asked to “bum a cigarette” from him, while extending his hand for a handshake. This witness testified that the appellant was not slurring his words, not falling over and had no problem communicating. He seemed only “slightly intoxicated.”

(c) Witnesses tried to physically intervene to offer assistance to Mr. Mixemong. A woman came to his assistance and told the appellant, “don’t do this, he’s an old man.” The appellant pushed the woman away and continued the attack. Mr. Mixemong’s girlfriend, who had recovered her dog’s leash from Mr. Mixemong, testified that she pounded the appellant in the back to try to get him to stop. The appellant responded by telling her that he was going to “kill [her] fucking dog.”

(d) Another witness described the attack as so brutal and prolonged that it “wasn’t just a fight, he was killing him, beating him to death.”

(e) A cyclist who was passing by testified that he saw a short man (McClung) say “let’s go”. The men then walked away but the appellant returned to kick the unconscious man a few more times in the ribs.

(f) Another witness who was waiting for his wife at the bank testified that he saw the appellant move away from the body for a bit and then return to stomp on him.

[16] Police officers also testified about the appellant’s ability to communicate, respond and perform coordinated actions at the scene of the crime. They explained that, when they arrived on the scene, the appellant walked away with a “strut”. When they ordered him to the ground, he responded with a “fuck that” and continued walking. He was able to effectively resist arrest and run away, quickly, capably and in a straight line. One of the officers testified that, while attempting to arrest him, the appellant spoke clearly, seemed strong and “quite capable”. The appellant was eventually captured and subdued, but only with the use of pepper spray.

[17] Things seemed very different once the appellant arrived at the police station. The jurors also had that video available for their consideration. During that period of time, the appellant was exhibiting clear difficulty with his movements, including difficulty standing up from the ground after he fell from the backseat of the police cruiser upon arrival at the station. The appellant refused help from the police to clean the pepper spray from his eyes. He was largely non-responsive to questioning and engaged in highly unusual behaviour, including putting his face in the toilet and stumbling around his cell. The trial Crown claimed that the difference in the appellant’s actions and appearance, between the crime scene and the police station, were accounted for by the fact that he had been pepper sprayed just prior to being taken to the police station.

[18] Defence expert Dr. Julian Gojer, a forensic psychiatrist, testified that the video from the police station suggested that the appellant was “ataxic”, meaning he did not have full control of his bodily movements. According to Dr. Gojer, this was a clear indication of an extreme level of intoxication. Although the appellant may have appeared more coordinated at the crime scene, Dr. Gojer opined that this was because of a “fight or flight” response the appellant may have been experiencing, despite the fact that he was in a “severe” state of intoxication that would have put him closer to the end of the “spectrum of severe intoxication that would have put him in a state of an automaton.”

(3) Appellant’s Objections on Appeal

[19] The appellant maintains that the sole question for the jury’s consideration was whether, taking into account the evidence of the consumption of alcohol and drugs, along with all of the other evidence shedding light on the appellant’s state of mind, the Crown had proven beyond a reasonable doubt that he had the state of mind for murder. He argues that there were three cascading errors in the jury instructions – the first in his original instructions to the jury, the second in the original decision tree, and the third in the revised decision tree and accompanying instruction - that combined to create confusion and reversible error on this point.

[20] I will address each alleged error in turn.

(a) Objection to the Original Charge

[21] The appellant maintains that the trial judge erred in his original instructions to the jury, when he departed from the standard specimen instruction on the defence of intoxication and told the jury that it was for them to decide the effect of intoxication on the appellant’s “ability” to form the intention for murder. The appellant maintains that this instruction incorrectly focused the jury on whether the appellant had the capacity to form the intention for murder, rather than whether he actually formed that intention.

[22] The appellant’s objection is rooted in the following passage from the original jury charge, where the trial judge instructed the jury as follows:

It is for you to decide the extent of the consumption of alcohol and drugs involved by [the appellant] and the effect it had on his ability to form an intention either to kill Andrew Mixemong or mean to cause him bodily harm with the foresight that the likely consequence was death, and was reckless whether death ensued or not. [Emphasis added.]

[23] There was a time when juries were instructed in terms of capacity to form intention. However, leaning heavily upon R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, the appellant suggests that those days have passed. He submits that the instruction is erroneous and, at a minimum, it would have injected serious confusion into the deliberation process in that it focused on the appellant’s capacity to form the requisite intention rather than his actual intention. The appellant argues that the confusion would have been aggravated by the fact that there was no equivalent instruction when it came to how the jury was told to approach their deliberations about Mr. McClung’s state of mind for murder.

[24] The respondent disagrees, pointing out that a capacity instruction is not fatally defective, provided it is given in conjunction with a roadmap on how to properly determine whether the appellant actually formed the requisite intention for the crime. The respondent encourages the court to look at the impugned instruction within its proper context. The surrounding instructions were legally correct. Taking that context into account, the jury would have understood the impugned instruction as nothing more than a reminder to reflect upon the amount of drugs and alcohol the appellant had consumed on the night in question and the impact of those intoxicants on whether he formed the intention for murder.

[25] As I will explain, having regard to the law on capacity and the record as a whole, I see no error in what the jury was told in the original jury instructions.

(i) Case Law: Capacity to form intention

[26] The appellant is right that in Daley, the Supreme Court recommended to trial judges that they move away from instructing juries in terms of capacity to form intention “in all future charges on intoxication”: Daley, at para. 102. This does not mean, though, that a capacity instruction will inevitably lead to error: R. v. Chretien, 2014 ONCA 403, 309 C.C.C. (3d) 418, at para. 90. To explain why this is so, requires a brief review of the law leading up to the Daley pronouncement.

[27] The genesis of the debate over whether to give or not give an instruction on the relationship between intoxication and an accused’s capacity to form intention is rooted in two decisions: R. v. MacKinlay (1986), 28 C.C.C. (3d) 306 (Ont. C.A.), and R. v. Canute (1993), 80 C.C.C. (3d) 403 (B.C.C.A.).

[28] In MacKinlay, Martin J.A. recommended the following two-step approach to deliberations relating to the state of mind for murder where the defence of intoxication is raised: (a) did the “accused [have] the capacity to form the necessary intent?”; and, if so, (b) “taking into account the consumption of liquor and the other facts” has the prosecution “satisfied [the jury] beyond a reasonable doubt that the accused in fact had the required intent?”: at p. 322.

[29] A number of years following MacKinlay, a new one-step approach to the defence of intoxication emerged, dubbed the Canute approach, in which the British Columbia Court of Appeal concluded that instructing a jury to first consider the question of capacity was redundant: “What reason could there be for requiring a jury to struggle with the elusive concept of ‘capacity to form an intent’, when at the end of that exercise they will only be required to turn their consideration to the real legal issue, namely, the actual intent of the accused”: at pp. 418-419. Accordingly, Canute took the second step from MacKinlay, and made it the sole step for consideration when intoxication is in issue.

[30] A few years after Canute, the Supreme Court of Canada decided three cases dealing with jury instructions relating to the defence of intoxication: R. v. Robinson, [1996] 1 S.C.R. 683; R. v. Seymour, [1996] 2 S.C.R. 252; R. v. Lemky, [1996] 1 S.C.R. 757. In Robinson, while Lamer C.J. commended the one-step approach as a “useful model for trial judges”, he did not jettison the two-step MacKinlay-type approach: at para. 49. He noted that there are particular cases where a capacity instruction may still be appropriate, such as where “it is difficult to conceive of a successful intoxication defence unless the jury is satisfied that the accused was so drunk that he or she was not capable of forming an intent to kill”: Robinson, at para. 52. He gave the example of an accused shooting someone in the head at point blank range, as a situation where anything short of incapacity may not succeed. Equally, Lamer C.J. noted that there may be situations where expert evidence or a defence position justifies reverting to a two-step approach: Robinson, at para. 53. See also: Seymour, at para. 17; Lemky, at para. 15.

[31] Daley was decided about ten years following the trilogy, where Bastarache J. observed that leaving the “door open” to a two-step approach had become somewhat problematic in that it had permitted after-the-fact complaints on appeal as to whether a one- or two-step instruction should have been given. Accordingly, it was in the interests of “simplicity and clarity”, that a one-step approach was recommended for all future cases: Daley, at para. 102.

[32] This historical review demonstrates that there is nothing inherently wrong with giving a capacity instruction. This is particularly true where the factual backdrop for the killing is one where, to use Lamer C.J.’s words from Robinson, “it is difficult to conceive of a successful intoxication defence unless the jury is satisfied that the accused was so drunk that he or she was not capable of forming an intent to kill”, and/or where an expert uses capacity-like language and/or where the defence makes capacity to form intention a live issue at trial.

[33] It is undoubtedly preferable to keep jury instructions as streamlined and straightforward as possible, focussing on only those issues that require determination. While the recommendation in Daley to forgo the two-step MacKinlay approach meets that objective, and is therefore a commendable goal, I do not accept that injecting capacity-like language into a jury instruction will necessarily constitute legal error. It may just reflect what was going on at trial. Despite appellant counsel’s compelling submissions, that is precisely what I conclude led to the injection of the now impugned passage into the jury charge in this case.

(ii) The defence position led to the instruction

[34] The now impugned jury instruction was entirely consistent with the defence position at trial, which was rooted in the suggestion that the appellant did not have the capacity to form the intention for murder. Indeed, the defence closing submissions repeatedly referred to the appellant’s lack of “capacity”. A few examples taken from the defence closing make the point:

“It is for you to decide what brought on [the appellant’s] fit of rage, and whether or not he understood or appreciated what it was that he was doing, or even because of the alcohol and the drugs that he had ingested, if he had the ability at the time to understand and appreciate the consequences of his actions.”

“If you have a doubt about [the appellant’s] state of mind, his intent or his capacity to form intent, you must not conclude that he intended or meant to bring about the death of Andrew Mixemong.”

“Ask yourself, if despite his cons, his, his intoxication you feel that he did have the capacity to see and foresee what he was doing, were his actions so fuelled by that alcohol that he failed to realize and to think about the consequences of his actions.” [Emphasis added.]

[35] Accordingly, the appellant’s defence at trial was not simply that he did not form the state of mind for murder, but that he was so intoxicated that he did not have the capacity to do so. The position taken by the appellant’s experienced trial counsel is an entirely understandable one when considered against the factual underpinnings for the killing. While Lamer C.J. gave an example of an accused shooting a victim in the head as a situation where it is difficult to conceive of an intoxication defence succeeding short of incapacity to form the intent to kill, this case arguably fell within that same category of gravity.

[36] This case is unlike more typical murder cases involving the defence of intoxication, where the victim is injured by a simple push to the sidewalk, resulting in a strike to his or her head, or single kick to the head. In those cases, even in the absence of intoxication, foreseeability of likely death is a trickier subject for a jury’s consideration. That was not this case. Like a bullet to the head at close range, the blistering, vicious and unrelenting nature of the attack on Mr. Mixemong had the unmistakable markings of death. Indeed, this would have been why the jury was instructed under both ss. 229 (a)(i) and (ii) of the Criminal Code. So brutal and prolonged was the attack that the specific intention to kill was an available path to the state of mind for murder. Experienced defence counsel no doubt spoke in terms of capacity because he no doubt understood that anything short of the appellant’s inability to appreciate what everyone else witnessing the attack appreciated would have little traction with the trier of fact.

[37] Moreover, the defence expert witness’ evidence supported this approach. While not entirely clear on the point, recall that Dr. Gojer testified that the appellant, while not in the state of an automaton, was in such a “severe” state of intoxication that it would have put him “closer to the end of the spectrum of severe intoxication that would have put him in a state of an automaton.”

[38] Accordingly, the circumstances surrounding the killing, the defence position and the expert evidence combine to explain the trial judge’s reference to the appellant’s “ability to form” the intention for murder. It also explains why there was no objection to the now impugned instruction. Indeed, defence counsel specifically turned his mind to the now impugned instruction and assisted the trial judge with tailoring it to even better meet the defence position. In my view, this is the best indication that the defence wanted the jury instructed in this fashion and that it was a strategic call, one that was not legally incorrect.

(iii) The impugned passage considered in context

[39] Jury instructions must be considered as a whole, against the backdrop of the entire trial and the positions of counsel, asking the ultimate question as to whether the jury was properly equipped to render a true verdict: R. v. Srun, 2019 ONCA 453, 146 O.R. (3d) 307, at para. 54; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 8; Daley, at para. 30. At the end of the day, the core question is whether the jury understood its ultimate task: whether, taking into account the evidence of the consumption of alcohol and drugs, along with all of the other evidence shedding light on the appellant’s state of mind, the jury was satisfied beyond a reasonable doubt that the accused had the state of mind for murder. Reading the charge as a whole, I am satisfied that this jury understood that task.

[40] The appellant acknowledges that, aside from the impugned passage about the “ability to form” the intention for murder, the balance of the original instructions to the jury relating to the defence of intoxication, and how it intersects with the state of mind for murder, largely tracks the specimen jury instructions taken from Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Thomson Reuters, 2015), Final 69A, Intoxication. He takes no objection to those instructions.

[41] Accordingly, the appellant fairly accepts that the instructions that preceded and followed the impugned instruction are legally correct. They clearly reminded the jury that, before convicting the appellant of second-degree murder, the jury had to be satisfied beyond a reasonable doubt that the appellant had the actual state of mind for murder. They also linked intoxication to the formation of that state of mind. Among other things, the instructions highlighted that:

Crown counsel must prove beyond a reasonable doubt that [the appellant] intended either to kill Andrew Mixemong or to cause him bodily harm with the foresight that the likely consequence was death. To decide whether [the appellant] had either intent, you should take into account the evidence about his consumption of alcohol and drugs, along with the rest of the evidence that throws light on his state of mind at the time the offence was allegedly committed.

[42] As well, the trial judge was careful to instruct the jury that, while a sane and sober person usually knows the predictable consequences of his or her actions and means to bring them about, the appellant’s degree of intoxication may work to remove that otherwise available inference.

[43] Taken as a whole, I am satisfied that this jury was well equipped to properly deliberate on whether the appellant had the state of mind for murder.

(iv) Conclusion re: Original Charge

[44] The appellant’s objection to the charge proper comes down to a single paragraph that: (a) he did not object to at trial; (b) he implicitly endorsed at trial by adding to it; (c) was understandable in light of the circumstances surrounding the killing; (d) was consistent with the appellant’s position at trial, including that of the defence expert witness; and (e) was surrounded by instructions that properly explained the relationship between intoxication and the state of mind for murder. I would not accede to this ground of appeal.

(b) The Original Decision Tree and Amplifying Instructions

[45] The appellant raises a second objection: he argues that the original decision tree and amplifying instructions were wrong because they suggested to the jury that the intention for murder could be considered separate and apart from intoxication. Although he acknowledges that this error alone would not constitute reversible error, this error is pointed out to show how the errors relating to the defence of intoxication built, each on the other, to make for a very confusing picture.

[46] The original decision tree contained three boxes. Owing to the plea of guilty to manslaughter, the questions in the first two boxes on the decision tree were not in dispute at trial: (a) whether the appellant caused Mr. Mixemong’s death; and (b) whether he did so unlawfully.

[47] The third box related to the sole issue in dispute at trial: the state of mind for murder. Two questions were placed within the third box: (1) “Did [the appellant] have a state of mind required for murder?”; and (2) “Taking into account the evidence of consumption of alcohol along with the rest of the evidence that throws light on his state of mind, did he have the state of mind required for murder?”

[48] Before they retired to deliberate, the trial judge instructed the jury to approach the questions in the third box on the decision tree as follows:

• if the jury had a reasonable doubt about the first question, then they were to acquit of murder and convict of manslaughter.
• if the jury was satisfied beyond a reasonable doubt about the first question, then they were to move to the second question.
• if the jury had a reasonable doubt about the second question, then they were to acquit of murder and convict of manslaughter.
• only if the jury was satisfied beyond a reasonable doubt about the second question, were they to convict of murder.

[49] The appellant argues that it was wrong and confusing for the jury to separate the essential element relating to the appellant’s state of mind for murder into two questions. He contends that the second question was the only question that the jury had to decide.

[50] Despite the superfluous nature of the first question in the third box on the original decision tree, no harm resulted. Again, the core question that needed to be decided was whether, taking into account the evidence of the consumption of alcohol and drugs, along with all of the other evidence shedding light on the appellant’s state of mind, the jury was satisfied beyond a reasonable doubt that the accused had the state of mind for murder. Despite the presence of the first question in the third box on the decision tree, the central issue for the jury’s consideration was nicely covered off in the second question: “Taking into account the evidence of consumption of alcohol along with the rest of the evidence that throws light on his state of mind, did he have the state of mind required for murder?”

[51] Accordingly, there is nothing about the first decision tree that would have diverted the jury from the critical question for determination at trial and I see no prejudice having arisen from the superfluous first question having been left.

[52] In any event, the jury did not use that first decision tree in its deliberations. As I will now explain, that decision tree was replaced by a new one, a replacement adopted at the request of counsel.

(c) The Replacement Decision Tree and Accompanying Instructions

(i) The Context for the Objections on Appeal

[53] The appellant argues that the trial judge also erred when he called the jury back after they had already commenced their deliberations and replaced the original decision tree with another one.

[54] After the jury originally retired to deliberate, counsel for the appellant raised concerns about the original decision tree, specifically the third box containing the two questions. He apologized for not having seen the issue before. In a bit of a twist, though, the objection at trial is not what is objected to on appeal.

[55] Trial counsel did not object to the existence of the two questions or to the manner in which the questions were phrased. Rather, he objected to the order in which the questions appeared within the third box on the decision tree. Trial counsel asked that the questions be separated into two boxes and reversed in order. In making that submission, trial counsel again used capacity-type language. For instance, he made the following submissions:

If you’re intoxicated you can’t have the intent. So you can’t put intent and then go down to intoxication. You have to put the intoxication and then go down to intent. Was he capable of forming the intent necessary for murder? If he was, then did he have the intent necessary for murder? If he did have the intent necessary for murder, then he’s guilty. …

It just doesn’t make sense to me that you would be able to form the intent and then you would never get to intoxication because if you’re intoxicated you can’t form the intent if you lack the capacity. [Emphasis added.]

[56] Although the trial Crown’s position fluctuated, it appears that Crown counsel at trial also eventually came around to the defence view: “There’s a logic to that. If he doesn’t [have] capacity he can’t form intent.” The trial Crown ultimately agreed with the defence proposal to change the decision tree as requested by the defence.

[57] After lengthy discussions about how to approach the matter, the decision tree was amended and the jury was brought back into the courtroom. In explaining why the decision trees were being replaced, the trial judge said that he had “acceded to the observations of counsel”. [1] He also said that the new decision tree should be considered in conjunction with his original jury instructions.

[58] Notably, the replacement decision tree is not available on appeal as it was never marked as an exhibit and the parties have been unsuccessful in recovering it. Despite its absence from the record on appeal, I am satisfied that we know how the replacement decision tree read. The transcript reveals a clear defence request to separate into different boxes the questions that were previously contained within box three of the original decision tree and to reverse their order: “switch what you have there”. All indications are that this request was acceded to, and there is no suggestion on the record that the wording of the questions was changed.

[59] The appellant also highlights the jury instructions that accompanied the replacement decision tree, suggesting that they aggravated the error contained within the tree. In particular, he points to places in those instructions where the trial judge is said to have decoupled the evidence of intoxication from a determination of the state of mind for murder.

[60] In short, the appellant argues that everything is wrong with how this issue unfolded after the jury originally retired to deliberate, including that counsel’s submissions were wrong about what the problem was with the original decision tree and how it should be remedied; the replacement decision tree was wrong in that it left the ultimate question of the state of mind for murder detached from the defence of intoxication; and the instructions accompanying the replacement decision tree were wrong in that they left the incorrect impression that the jury should consider intoxication separately from the state of mind for murder.

(ii) The content of the replacement decision tree

[61] When considering the alleged error contained within the replacement decision tree, it is important to recall that this is not simply a case involving a failure to object to an alleged misdirection: R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 38; Daley, at para. 58. Nor is it a case where counsel expressed satisfaction with an instruction that is later said to be erroneous: R. v. Patel, 2017 ONCA 702, 356 C.C.C. (3d) 187, at para. 82. Rather, this is a case where the exact change advocated for by defence counsel was acceded to by the trial judge. That the defence specifically asked for what is now objected to on appeal properly sets the context within which the overall “seriousness of the alleged misdirection” should be considered: Jacquard, at para. 38.

[62] Like the first decision tree, I see no harm arising from having instructed the jury to consider two separate questions in relation to the state of mind for murder. While only the first question on the replacement decision tree was necessary, there is no reasonable possibility that the jury was misled by the existence of the two questions.

[63] At the end of the day, the correct question was left with the jury: “[t]aking into account the evidence of consumption of alcohol along with the rest of the evidence that throws light on his state of mind, did he have the state of mind required for murder?” Accordingly, the jurors knew that unless they were satisfied beyond a reasonable doubt that the answer to the now first question – the right question – was “yes”, they must acquit and find the appellant not guilty of murder.

[64] If anything, as pointed out by the respondent, reversing the order of the questions may well have inured to the benefit of the appellant. After all, if the now first question was answered in the affirmative – that the jury was satisfied that “[t]aking into account the evidence of consumption of alcohol along with the rest of the evidence that throws light on his state of mind”, the appellant had the state of mind required for murder – then a verdict of guilty of second-degree murder was the only available option. Requiring the jury to go on and answer a second question before arriving at that verdict – “Did [the appellant] have a state of mind required for murder?” – simply reminded the jury that even if the defence of intoxication failed, before convicting the appellant of murder they had to be satisfied beyond a reasonable doubt that the appellant had the state of mind for murder. The second question acted as nothing more than an unnecessary, but defence friendly, safety valve before proceeding to a finding of guilt on murder.

(iii) The instructions accompanying the replacement decision tree

[65] The appellant objects to the following instructions that accompanied the delivery of the replacement decision tree. After the trial judge informed the jury that he had moved the reference to the “consumption of alcohol” up into the third box, he said:

So the first consideration in your process is to consider the consumption of alcohol.

Now, you’re satisfied that alcohol played no role in this, then you drop down to – you still have to consider whether there was intent to commit murder. That’s still open. So that’s why I separated the two boxes so that you would follow your thinking process in that order and not be confused about where you go. [Emphasis added.]

[66] He concluded his instructions in relation to the replacement decision tree by saying:

So what I’ve basically done at the suggestion of counsel is separate the consideration of the effect of alcohol and drugs from the overall consideration that you have so that you can make sure that you are considering each factor on its own as well so you come to the conclusion without realizing that in the absence of alcohol or drugs you still have to determine whether there’s specific intent. [Emphasis added.]

[67] The appellant argues that these instructions would have led the jury to think that the evidence of intoxication was to be considered separate and apart from the state of mind for murder. He argues that this is particularly true given that there was no reality to the suggestion that alcohol played “no role” in the offence. After all, even the trial Crown accepted that the appellant was intoxicated. The appellant contends that the direction to “separate the consideration of the effect of alcohol and drugs” from their “overall consideration” constitutes clear reversible error and, combined with all of the other confusion that came before, would have left the jury without the correct legal tools to determine if the appellant had the state of mind for murder.

[68] Taken on their own, I agree that the instructions that accompanied the replacement decision tree could have been somewhat confusing. They must not, though, be considered in a silo. The exercise on appeal is not to parse the words for legal perfection, but to strive to understand them in context, with a mind to how the jury would have understood those instructions. Taken in context, I am satisfied that the jury would have understood the legally correct way to approach the essential element of the state of mind for murder.

[69] First, the impugned instructions were given while the jury was looking at the replacement decision tree that trial counsel had asked for. Accordingly, when the trial judge referred to their “first consideration” being the “consumption of alcohol”, he was referring to the box on the decision tree that stated the legally correct question that they had to ask themselves: “Taking into account the evidence of consumption of alcohol along with the rest of the evidence that throws light on his state of mind, did he have the state of mind required for murder?” Read within that context, the instruction makes sense.

[70] Second, I disagree that by suggesting to the jury that they may conclude that “alcohol played no role in this”, the trial judge injected confusion. While the appellant is right that the trial Crown accepted that the appellant was intoxicated, the trial Crown did not accept that alcohol played a “role” in the appellant’s state of mind for murder. Indeed, the trial Crown was careful to point out that important distinction, suggesting to the jury that an intoxicated person can still form the intention for murder. This was reinforced by the trial judge in his instructions to the jury, when he said: “Intoxication that causes a person to cast off restraint and to act in a manner in which he would not act, if sober, is no excuse for committing an offence if he had the state of mind required to commit the offence. An intoxicated state of mind is nonetheless a state of mind.”

[71] Although the trial judge may have chosen different wording to convey the idea, I am satisfied that the jury would have understood his reference to “alcohol play[ing] no role in this”, as meaning that, despite the appellant’s level of intoxication, the jury was still satisfied beyond a reasonable doubt that he had formed the intention for murder.

[72] Finally, I do not accept that the trial judge caused any harm when he told the jury that, “at the suggestion of counsel”, he had separated the “consideration of the effect of alcohol and drugs from the overall consideration”. Read in isolation, the passage appears problematic. Read in context, it creates no harm.

[73] What the trial judge was doing in this impugned passage was giving the jury an explanation as to why the two questions in the first decision tree had been separated into two separate boxes in the replacement decision tree. Due to the ordering of those boxes, he referred to the last box as the “overall consideration”. But remember that the jury had the replacement decision tree in front of them. They knew the questions they had to answer. Importantly, as a result of the original jury instructions and the way that the questions were put on the replacement decision tree, what is critical, is that they knew that they could not bring back a verdict of guilty to second-degree murder unless they were satisfied beyond a reasonable doubt that, having taken into account the evidence of consumption of alcohol along with the rest of the evidence that throws light on his state of mind for murder, the appellant had that state of mind under either ss. 229 (a)(i) or (ii) of the Criminal Code.

(4) Conclusion relating to the instructions on intoxication

[74] For these reasons, I would dismiss this ground of appeal.

C. Second Ground of Appeal: The Refusal to Qualify the Expert in a Specific Area

(1) Appellant’s Position

[75] Dr. David Rosenbloom, a pharmacist and professor in McMaster University’s Department of Medicine, was offered by the defence as an expert witness on the “effects of alcohol and narcotics on the function of the brain, particularly with respect to cognition, memory and behaviour.” The trial judge refused to qualify him in that particular area of expertise, but allowed that he could testify in relation to “the absorption, distribution and elimination of alcohol in other words, the physical effects of those items on the human body.” In the end, the defence chose not to call him.

[76] The appellant contends that the trial judge erred in limiting the subject areas upon which Dr. Rosenbloom could opine. The appellant says that the ruling was rooted in the trial judge’s finding that Dr. Rosenbloom was not objective and could not perform the proper role of an expert in this case. He maintains that the trial judge erred in coming to that conclusion.

[77] In limiting the expert’s opinion to a particular subject area, the appellant argues that the trial judge removed a major prong of his defence, an ability to demonstrate to the jury that alcohol can be mechanistically selective, meaning that it can impact the brain and motor functions differently and at different rates. He maintains that this could have provided an explanation for the jury as to why the appellant may have demonstrated good motor skills in and around the time of the murder, but may not have had the foresight of likely death when he was killing Mr. Mixemong.

[78] In my view, the trial judge did not error in limiting the area of expertise.

(2) The Expert Opinion Was Properly Limited

[79] I start with the standard of review relating to a ruling on the admissibility of an expert witness’ opinion. Unless the decision is “clearly unreasonable, contaminated by an error in principle or reflective of a material misapprehension of evidence”, deference applies: R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 248; R. v. Mills, 2019 ONCA 940, at para. 47. I would defer to the trial judge’s conclusion in this case.

[80] There is a two-stage framework for the admission of expert opinion evidence. At the threshold stage, four questions are asked: (i) relevance; (ii) necessity; (iii) the absence of an exclusionary rule; and (iv) the need for a properly qualified expert: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 19; R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40, at para. 48. [2]

[81] White Burgess, decided shortly after the ruling in this case, determined that at the first admissibility stage, and as part of determining whether the expert is properly qualified, the court must take into account the proposed expert’s ability to understand and to fulfill his or her duty to the court to provide impartial, independent and unbiased evidence: White Burgess, at para. 53; Abbey, at para. 48. The appellant emphasizes that expert evidence should only be excluded on that basis in “rare” and “very clear cases”: White Burgess, at para. 49; Mills, at para. 42.

[82] At the second admissibility stage – the gatekeeper stage – the trial judge exercises a residual discretion to exclude the evidence after having considered whether the benefits of admitting it outweigh its potential risks: Mills, at para. 44; Abbey, at para. 49. The trial judge must continue to take into account any concerns respecting the expert’s independence and impartiality at the gatekeeping stage: White Burgess, at para. 54; Mills, at para. 45. Accordingly, the expert’s impartiality, independence and willingness to provide an unbiased opinion is considered at both of the admissibility stages.

[83] Although I do not agree that the sole reason for limiting the expert’s opinion in this case rested on bias, it was undoubtedly a significant factor in the trial judge’s decision limiting the area of Dr. Rosenbloom’s expertise. As noted by the trial judge:

Doctor Rosenbloom might ordinarily in another case qualify as an expert because he does possess knowledge beyond the scope of that enjoyed by laypersons. However, having reviewed his report and listened to his evidence, I am satisfied that he does not qualify in these circumstances to give evidence as an expert or give his opinion ….

[84] The trial judge then went on to give numerous reasons for why he found Dr. Rosenbloom was not an appropriately neutral expert witness in relation to the disputed subject area. The appellant argues that the trial judge erred in relation to each of those reasons.

[85] The appellant says that the trial judge overstated the matter when he said that Dr. Rosenbloom’s choice of language was more befitting an “advocate than an expert”. However, this was an issue for the trial judge to determine and there are examples supporting his conclusion. For instance, Dr. Rosenbloom saw his role as critiquing the Crown expert’s opinion, as evidenced in the use of a heading in his report: “Critique of Rachelle Wallage’s Report.” Under that section, Dr. Rosenbloom said he “would like to take issue with a number of the points raised” in the Wallage report. He further stated in his report that he would “strongly argue” a certain point. These are no doubt some of the comments that concerned the trial judge, and for good cause.

[86] The appellant also expresses concern that the trial judge failed to provide examples for why he concluded that there was a loss of objectivity during the cross-examination. While he may not have pointed to examples in his mid-trial ruling from the bench, there is much to support that comment. For instance, Dr. Rosenbloom claimed in-chief that he had been qualified as an expert in all but one case. In cross-examination he admitted that he had not been qualified in particular areas on at least three prior occasions, at least two of which related to the subject area he was proffered to opine on here. He also admitted that he had never authored an unfavourable report for someone who had retained him. He had no first-hand knowledge of how people act on certain drugs and his last opportunity to obtain that knowledge was over 30 years ago. These are just examples.

[87] The appellant further argues that the trial judge’s reference to the fact that Dr. Rosenbloom did not even mention the intervening event between the homicide and the police station, involving the appellant having been pepper sprayed, is a misapprehension of evidence as there is no suggestion that Dr. Rosenbloom even knew about the pepper spray. That may be so, but the point is that Dr. Rosenbloom admitted that he had only spent 20 minutes with the appellant and had relied largely upon two handwritten pages of notes he made during conversations with trial counsel to opine on the matter. That alone should have given rise to concern about how much the expert actually knew before he was prepared to offer such a definitive opinion.

[88] The appellant also expresses concern over the trial judge’s dissatisfaction with Dr. Rosenbloom’s intrusion upon the role of the jury. The appellant says that, to the extent that Dr. Rosenbloom’s report crossed the line, he should have been extended the same courtesy as other experts who had been offered the opportunity to amend problematic aspects of their reports. The difficulty is that Dr. Rosenbloom opined that: “Under the circumstances described, I think it is highly unlikely that [the appellant] had in[s]ight or awaren[e]ss of his actions and could not form the intent to commit the attack”. This was not a simple crossing of the line. It was a giant leap across the expert line, clearly and unequivocally exposing the proffered expert as someone who did not understand the fundamental role of an expert.

[89] In the end, the trial judge performed his role as a gatekeeper in limiting the scope of Dr. Rosenbloom’s expert evidence. He articulated why the witness could not opine on the area he was offered to opine upon. I would defer to the trial judge’s decision in that regard.

[90] Moreover, and as a final observation, I do not accept that the defence was left at such a significant deficit as suggested. While the defence did not have Dr. Rosenbloom’s evidence on the point, Dr. Gojer more than made up for what was lost.

[91] Dr. Gojer gave an expert opinion explaining how alcohol does not always have the same impact on bodily functions as it does on the brain. In other words, he explained to the jury how intoxication can impact motor and brain functions differently. He referred to this as “fight or flight”, something that could explain an apparent level of physical coordination at the crime scene, despite a severe cognitive deficit. While Dr. Gojer’s explanation for the potential difference between physical and cognitive functioning was not the same as Dr. Rosenbloom’s, the fact remains that the appellant was not left empty-handed on this point. The jurors received an expert explanation as to how the appellant’s behaviours in and around his attack of Mr. Mixemong could still be consistent with a failure to foresee the likelihood of death.

[92] For these reasons, I would dismiss the appellant’s second ground of appeal.

D. Third Ground of Appeal: The Curative Instruction

[93] The appellant argues that the trial judge failed to adequately address a problem that arose during a civilian witness’ evidence, where that witness said in cross-examination that the appellant “murder Andrew.”

[94] Unfortunately, after the witness made reference to the “murder”, the appellant’s second counsel decided to wade into the matter, exploring the witness’ understanding of the legal meaning of the term murder. The following exchange occurred:

Q … I know you believe he murdered .. A. … and I saw Q. Mr. Mixemong, sir, but whether he did it, murdered or not, which is a legal word, that will be left to the jury A. What do you mean it’s a legal … Q. … do you understand that? A. … what you mean a legal … Q. Well murder means … A. … you just said a legal … Q. … murder means that there has to be intent, sir … A. … He, he did intends … Q. … right, whether there … A. … he was drunk … Q. … whether Mr … A. … and he was stupid there …

[95] Eventually counsel asked the trial judge for assistance. The trial judge made the observation that counsel had led the witness into the definition of murder and that the witness was not qualified to answer those questions about legal definitions.

[96] Counsel asked for and received a curative mid-trial instruction. The jury was told that they would receive instructions about “the law of murder and the use of the word ‘murder’”, a legal instruction they would be required to abide by. They were told not to be “overly influenced or persuaded by a witness using the word, no matter how many times in his evidence.” The trial judge concluded by saying: “So just I caution you not to be influenced by that, because the instruction on that is going to come from me later.”

[97] The appellant argues that this direction constitutes legal error. In particular, the reference to the fact that the jury should not be “overly influenced” by a witness using that term, left the suggestion that they could impute some, just not too much, of a murderous intent from the witness’ evidence.

[98] I do not read the instruction in that fashion.

[99] First, trial counsel was in the best position to gauge whether the instruction was fit for the task and there was no objection taken. Indeed, trial counsel expressed satisfaction with the instruction, thanking the trial judge for having given it.

[100] Second, during the evidence of another witness, the jury was again reminded not to take any legal direction from witnesses’ use of legal terminology. This second witness also made reference to a “murder” having taken place. The trial judge used this as an opportunity to remind the jury that “the terminology that a witness uses in giving evidence may or may not be consistent with the legal definition of the term used, and so to keep that in mind, that you have to take the definition from me in law as I give it to you, and I will be giving to you later, but not to be unduly persuaded by the use of the word by a witness”. Again, no objection was taken to the mid-trial instruction.

[101] Third, the jury received careful final instructions. They were told that they must take the law from the trial judge and the trial judge alone. He indeed explained what constitutes murder.

[102] In my view, the trial judge gave good and cautious mid-trial instructions. Any potential risk that the jury would have taken legal direction from a witness, arising simply from the use of the term “murder”, or imputed a murderous intent from the use of that terminology, was neutralized by the mid-trial and final instructions.

[103] I would not accede to this ground of appeal.

E. Conclusion

[104] The appellant’s trial involved one issue – did the Crown prove beyond a reasonable doubt that he had the intention for murder? I am satisfied that the jury understood how to approach that issue. I am also satisfied that there is no reversible error demonstrated on appeal.

[105] I would dismiss the appeal.

Released: “K.M.v.R.” May 22, 2020

“Fairburn J.A.”

“I agree. K. van Rensburg J.A.”

“I agree. B.W. Miller J.A.”

CORRECTED DECISION:

Correction made on August 14, 2020: The “on appeal from” line at the outset of the judgment included a reference to a sentence appeal, which has been deleted.

Correction made on September 1, 2020: The date of conviction in the “on appeal from” line at the outset of the judgment has been changed from April 24, 2015 to May 1, 2015.

Footnotes:

[1] Changes were also made to the decision tree pertaining to Mr. McClung.

[2] Where applicable, the reliability of “novel or contested science or science used for a novel purpose” is also considered at the first admissibility stage: Abbey, at para. 48.