Court of Appeal for Ontario

Date: 20210614 Docket: C 67992

Judges: Lauwers, Trotter and Zarnett JJ.A.

Between:

Her Majesty the Queen Respondent

and

Jeremy Reddick Appellant

Counsel: Delmar Doucette, for the appellant Benita Wassenaar, for the respondent

Heard: March 18, 2021 by video conference

On appeal from the conviction entered by Justice Helen A. Rady of the Superior Court of Justice, sitting with a jury, on September 19, 2018.

Trotter J.A.:

A. Introduction

[1] Jeremy Reddick appeals his convictions for second degree murder and assault with a weapon.

[2] The appellant was drinking with some friends at a park in London, Ontario. An argument broke out among the appellant, Dakoda Martin, and Andre Williams. It soon turned physical. The appellant pulled out a knife. Mr. Martin died from a stab wound to his chest; Mr. Williams was stabbed in the back, but his wound was not serious. The appellant walked away from the scene and dropped the knife into a sewer. When he was arrested moments later, the appellant told the police, “They jumped me”.

[3] At trial, the appellant testified and contended that he was attacked by the two victims at the same time. In order to defend himself, the appellant pulled out a knife. He swung the knife behind him; it was at this point that the victims sustained their injuries. As he was trying to get away, he was pursued by Mr. Williams.

[4] The appellant submits that the trial judge erred in her final instructions to the jury on after-the-fact conduct, intoxication, and the permitted use of the “they jumped me” utterance. The appellant did not draw any of these shortcomings to the trial judge’s attention at the time. Although the trial judge’s instructions were deficient in some respects, I would dismiss the appeal.

B. Factual Overview

[5] The appellant consumed alcohol, marijuana, and perhaps other drugs with about five other people in a London park. Dakoda Martin, Andre Williams, Aliesje Alvarado, and the appellant were part of this group. The latter three testified about the fight that resulted in the death of Mr. Martin and the injury to Mr. Williams. A passerby, Jonathan Jones, also witnessed the incident and provided very damning evidence against the appellant.

[6] The appellant’s evening began after work when he and a co-worker shared a pitcher of beer at a local bar. Later in the night, the appellant met up with Mr. Williams and another man at a different bar, where they drank beer and tequila and consumed some cocaine. Mr. Martin and Ms. Alvarado eventually joined them. The group continued to drink and consume cocaine at the bar, then temporarily separated before reuniting at the park. Roughly two hours later, around 3:00 a.m., the fight broke out among the appellant and the victims. The witnesses all gave different versions of what happened. For some, their testimony at trial differed from their earlier police statement.

[7] The appellant testified that the altercation started over his “mickey” of whiskey. He accused Mr. Williams of stealing it and called him a “goof”. Mr. Williams challenged the appellant to repeat his comment. The appellant did so, and Mr. Martin and Mr. Williams attacked the appellant from behind, beating him and pummelling him with their fists. The appellant fell to the ground and pulled out a knife. Holding the knife in his right hand, with the blade facing out, he made a slashing motion behind him two or three times. He said his intent was to scare the two men and end the attack.

[8] Mr. Williams testified that the altercation started over the appellant’s conduct toward Ms. Alvarado. The appellant had been flirting with Ms. Alvarado, and she asked Mr. Williams to tell the appellant to leave her alone. When Mr. Williams and Mr. Martin told the appellant to stop bothering Ms. Alvarado, the appellant became angry. The three men stood up, the appellant and Mr. Martin began to tussle, and Mr. Martin fell to the ground as if he had been knocked out. Mr. Williams pushed the appellant off Mr. Martin and tried to punch the appellant, but he slipped before he could. He thought the appellant punched him in the back, and only realized later that he had been stabbed. Contrary to his trial testimony, in his police statement, Mr. Williams said the altercation started over the appellant making a rude comment.

[9] Ms. Alvarado testified that she walked away from the group after telling Mr. Williams that the appellant was bothering her. A few minutes later, she saw the appellant and Mr. Martin fighting. She was unsure who threw the first punch, but she saw Mr. Martin fall to the ground. He was bleeding. When she went to him, she saw he had a wound in his chest. Ms. Alvarado’s testimony that the appellant was only fighting Mr. Martin was inconsistent with her police statement, where she said the appellant was “a single person trying to fight two men”, i.e., Mr. Martin and Mr. Williams.

[10] Mr. Jones had just finished his shift as a bouncer at a nearby bar and was on his way to his girlfriend’s place. He had not consumed any alcohol or drugs. Mr. Jones testified that, as he was walking past the park, he heard a commotion and yelling. He could see a larger man in a yellow shirt (the appellant) yelling at a woman, a smaller Caucasian man (Mr. Martin), and a smaller Black man (Mr. Williams). The appellant was swinging at the victims in a haymaker motion. Mr. Jones’ view was obstructed for a few seconds as he passed some bushes, but when the group came back into view, Mr. Martin was lying on his back, with the appellant on top of him, making punching or stabbing motions toward Mr. Martin’s chest. Mr. Williams was moving away from the appellant. Mr. Jones did not see Mr. Williams fighting the appellant. Mr. Jones called 911 and the police arrived almost immediately. In his police statement, Mr. Jones did not tell the police that he saw the appellant making a punching or stabbing motion at Mr. Martin.

[11] At the end of the fight, the appellant walked away, toward the street. He testified he knew Mr. Martin had been hurt when he saw him fall to the ground. When he arrived at the street, he dropped his knife through the sewer grate. He continued walking and called his wife to tell her he had been jumped, the police were on their way, and he would likely be arrested. When the police arrived, he yelled, “They jumped me.” He complied with the officers’ orders, and they arrested him.

[12] Mr. Martin suffered three wounds: an incised stab wound to his right thigh; a perforating stab wound to his right upper arm; and a downward-directed, plunging stab wound to his right upper chest, just below the clavicle. The chest wound was fatal.

[13] Mr. Williams suffered a superficial stab wound to his lower left back.

[14] The appellant’s only injuries were a swollen lip and a scratch on his left shoulder.

C. After-the-Fact Conduct

[15] The appellant submits that the trial judge erred in her instructions on the use the jury could make of the after-the-fact conduct in this case, being the evidence that the appellant walked away from the fray and then dropped the knife into a sewer.

[16] The appellant focuses on the following aspects of this instruction:

Evidence of what a person did after an offence was committed may help you decide whether it was that person who committed it. It may help, it may not. What a person did after an offence was committed may indicate that he acted in a way which, according to human experience and logic, is consistent with the conduct of a person who committed the offence and inconsistent with the conduct of someone who did not do so. On the other hand, there may be another explanation for what Mr. Reddick did afterwards, something unconnected with participation in the offences charged.

To decide the reason for what Mr. Reddick did afterwards, you will consider all of the evidence. Of particular importance is evidence that offers an explanation for the conduct. You must not use this evidence about what Mr. Reddick did afterwards in deciding or helping you to decide that Mr. Reddick committed the offences charged unless you reject any other or innocent explanation for it. If you do not or cannot find that Mr. Reddick did those things because he was conscious of having done what is alleged against him, you must not use this evidence in deciding or in helping you to decide that Mr. Reddick committed the offences charged.

On the other hand, if you find that anything Mr. Reddick did afterwards was because he was conscious of having done what is alleged against him, you may consider this evidence together with all of the other evidence in coming to your verdict. [Emphasis added.]

[17] The appellant objects to the trial judge’s opening instruction that: “Evidence of what a person did after an offence was committed may help you decide whether it was the person who committed it”. The appellant submits that this instruction was irrelevant and unhelpful because there was no question that the appellant stabbed Mr. Martin and Mr. Williams.

[18] I disagree. The instruction was legally correct. It respected the principle that the ultimate decision as to who-did-what is the province of the jury. Among other things, the trial judge said, “Deciding the facts … is your job and not mine. … Only you decide what happened in this case.” However, in her final instructions, when reviewing the elements of second degree murder in s. 229 (a) of the Criminal Code, on the threshold question of whether the appellant caused Mr. Martin’s death, the trial judge said, “May I suggest, ladies and gentlemen, that you will have little difficulty answering this question, ‘Yes’.”

[19] The appellant further contends that the instructions were erroneous in their references to “committed the offences charged” and “conscious of having done what is alleged against him”, as underscored above. The appellant acknowledges that the after-the-fact conduct could be used to infer that he had not acted in self-defence. However, he submits that the manner in which this evidence was left with the jury permitted them to use it to distinguish between liability for second degree murder and manslaughter. He submits that the jury should have been specifically instructed not to use the evidence in this manner.

[20] As this court has held, there is “no per se rule declaring post-offence conduct irrelevant to the perpetrator’s state of mind”: see R. v. Jackson, 2016 ONCA 736, 33 C.R. (7th) 130, at para. 20, citing R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at paras. 20-22. See also R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 40, 42; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301 at paras. 119-151, 158, per Martin J. (dissenting in part, but not on this point); R. v. S.B.1, 2018 ONCA 807, 143 O.R. (3d) 81, at paras. 66-71; R. v. McLellan, 2018 ONCA 510, 362 C.C.C. (3d) 183, at paras. 40-49, leave to appeal refused, [2019] S.C.C.A. No. 338; R. v. McCullough, 2021 ONCA 71, 154 O.R. (3d) 171, at para. 43. However, its relevance will depend on the nature of the after-the-fact conduct, the live issues at trial, and whether the evidence, as a matter of logic and human experience, is capable of assisting the jury in determining the accused person’s state of mind.

[21] Moreover, a trial judge’s instructions on after-the-fact evidence must be evaluated in the context of the charge as a whole, and the circumstances of the case: Calnen, at para. 8. In R. v. Adan, 2019 ONCA 709, Watt J.A. spoke of the broad range of considerations at play when reviewing the adequacy of instructions on after-the-fact conduct, at para. 35:

Instructions necessary to prevent a jury from mishandling of evidence of after-the-fact conduct are case-specific. Whether a trial judge’s instructions were sufficient depends on the significance of the nature of the conduct involved; the use made of the evidence at trial; the instructions given about its use; and the positions of the parties about the adequacy of those instructions. Some background is necessary to evaluate the claim.

[22] In this case, it is especially important to evaluate the use to which this evidence was put at trial. The appellant’s actions in walking away from the scene and dropping the knife in the sewer linked the confrontation with the victims with his utterance that “They jumped me”. The trial was focused on these two endpoints in the dispute about whether the appellant acted in self-defence. This was the predominant, if not singular, issue at trial.

[23] Although the appellant was asked about walking away and discarding the knife both in his examination-in-chief and cross-examination, this evidence assumed little prominence at trial. Crown counsel made only a passing reference to it in his closing address to the jury; his submissions focused on self-defence. Defence counsel made greater use of this evidence – especially the fact that the appellant walked away – in support of his self-defence claim. He said the following:

We know Mr. Reddick availed himself of the easiest thing he could to stop a fight and to get away, his knife – and it worked. Disastrous consequences but it worked.

After he’s no longer being set upon or attacked, my words, he leaves very quickly. Once he’s away, he begins walking until he’s arrested. You heard the testimony of the officer that he is not running away.

He left quickly, by Mr. Reddick’s testimony, walked away very quickly, got rid of the knife, continued on and was arrested and said ‘I got jumped’.

[24] The crux of the trial revolved around the competing accounts of Mr. Williams, Ms. Alvarado, Mr. Jones, and the appellant. Collectively, their evidence focused on how the fight started and who-did-what-to-whom. The after-the-fact conduct assumed a subordinate role at trial.

[25] The appellant’s potential liability for manslaughter was left to the jury as an included offence. However, little attention was given to manslaughter at trial. In their closing addresses, neither counsel mentioned the word “manslaughter”. The sole focus was on self-defence. This focus may well have been guided by the reality that the victim died from a “plunging” wound to his heart, making manslaughter an unlikely, if not implausible outcome of this trial.

[26] I agree that the evidence of the appellant walking away from the scene and the disposing of the weapon used to kill the victim would not have assisted the jury in determining whether the appellant had the requisite intent for murder. As a matter of human experience and logic, this conduct was equally consistent with manslaughter as it was with second degree murder. But nobody – not the trial judge, Crown counsel, or defence counsel – invited the jury to draw that inference. It may have been more helpful had the charge to the jury foreclosed that line of reasoning. However, such an instruction was not requested. The trial judge invited input from counsel on her proposed instructions to the jury. She previewed her draft instructions on after-the-fact conduct, to which the appellant stated that he had “no difficulty”. No objection was registered after the trial judge delivered her charge, and no explanation has been advanced for the failure to object. There is no assertion of ineffective assistance of counsel.

[27] Returning to Adan, Watt J.A. placed great emphasis on the positions taken by the parties at trial. Employing a functional approach to the assessment of jury instructions, he discussed the important role of counsel, at para. 63: “A failure to object to an instruction later advanced as erroneous before a reviewing court may say something about the overall accuracy of the instructions, the fairness of the charge, and the seriousness of the alleged misdirection”. See also McCullough, at paras. 60-64.

[28] Although the trial judge’s instructions on after-the-fact conduct could have been more thorough, I am not satisfied that they amount to error. If I am wrong in this assessment, I would apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code. In the context of the entire trial, and the manner in which the case was litigated, any deficiencies were minor. The case turned on the competing eyewitness accounts, the appellant’s testimony, and his “They jumped me” utterance. There was no substantial wrong or miscarriage of justice: R. v. Vorobiov, 2018 ONCA 448, at paras. 69-71, leave to appeal refused, [2019] S.C.C.A. No. 440.

[29] I would dismiss this ground of appeal.

D. Intoxication

[30] Regardless of what instigated the fight that erupted in the park that night, alcohol and drugs were involved in the evening’s events. Everyone was drinking and smoking marijuana that night, both in the park and before they arrived there. The appellant had been drinking before; he also admitted consuming cocaine.

[31] During the first pre-charge conference, the trial judge raised the issue of intoxication with defence counsel, saying, “I want to know what you say about that.” After further discussion, the trial judge followed up and asked, “But it’s not being advanced as a defence or a partial defence in this case”? Defence counsel answered, “No. … Well, it’s just a, I think it’s a factor in the overall picture”, and, “I don’t … know how deeply Your Honour ought to delve into that, quite frankly, other than the fact I don’t think there’d be any question in anyone’s mind that drinking and drugs form part of the overall scenario.” The colloquy ended with the trial judge saying: “I agree, I agree. I just needed to know that it’s not being advanced, or you’re not asking me to cover it as a partial defence, if I can put it that way.”

[32] In his closing address to the jury, defence counsel made reference to alcohol and drug consumption in the park; however, his main focus was on self-defence. Defence counsel said to the jury, “He never wanted to hurt much less kill anyone; he wanted to stop from being attacked.”

[33] Crown counsel also referred to the appellant’s consumption of alcohol. Earlier in the trial, in cross-examination, the appellant admitted that he was always in control of his body and his actions, and that he acted voluntarily. Building on this theme, Crown counsel told the jury in his closing submissions that the evidence of consumption did not assist the appellant because he acted voluntarily that night.

[34] In her final instructions, the trial judge addressed the issue of intoxication on more than one occasion. She reviewed some of the evidence on the drug and alcohol consumption of Mr. Williams, Mr. Martin, Ms. Alvarado, and the appellant. The trial judge also addressed the issue of intoxication when explaining the fault requirements for murder in s. 229 (a) of the Criminal Code. She instructed the jury that they could consider the words and conduct of the appellant before, during, and after the event to determine his state of mind. As she said, “They may help you decide what he meant or did not mean to do.” Referring to the appellant’s evidence, the trial judge said:

In cross-examination he testified that he knew where one’s heart is located in one’s chest and he was aware that a stabbing wound to the chest can and is likely to cause bodily harm. He denied attacking Mr. Martin. He said he had no mental health issues, he was “pretty intoxicated”, and that I think were his exact words, but in control of his body and movements. [Emphasis added.]

[35] The trial judge then mentioned the evidence of police officers who said that the appellant had no trouble complying with their commands or directions that night. This was followed by the following instruction:

You may conclude as a matter of common sense that if a sane and sober person does something that has predictable consequences, that person usually intends or means to cause those consequences. But that is simply one way for you to determine a person’s actual state of mind, what he actually meant to do. It is a conclusion that you may only reach however after considering all of the evidence. It is not a conclusion you must reach. It is for you to say whether you will reach that conclusion in this case. [Emphasis added.]

[36] There was no objection to these instructions other than defence counsel noting that a passage had been omitted from the draft instructions on the issue of the intent for murder (in para. 34, above). The trial judge advised the jury of the omission and then re-read the entire passage, with the following, previously omitted, excerpt included:

You will want to consider Mr. Reddick’s evidence on this point. He said that he wanted to scare Mr. Martin and Mr. Williams in order to stop their attack on him.

[37] The appellant raises a number of complaints about the instructions related to intoxication. Before addressing them, I emphasize that the appellant did not rely upon the partial defence of intoxication. In support of his position that he acted in self-defence, he asserted that he did not intentionally stab either victim; instead, they were injured when the appellant waved the knife from behind, as he tried to stand and get away from the confrontation. In this sense, the appellant asserted that the injuries he caused were accidental.

[38] The appellant submits that the trial judge erred in the manner in which she characterized the appellant’s lack of sobriety by tracking the Crown’s cross-examination of the appellant and consequently conflating the different levels of intoxication recognized in the jurisprudence. In R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 41-43, the Supreme Court of Canada addressed three legally relevant degrees of intoxication: (a) “mild intoxication”, which is not recognized as “a factor or excuse in determining whether the accused possessed the requisite mens rea”; (b) “advanced intoxication”, which may be sufficient to raise a reasonable doubt about the requisite mens rea; and (c) “extreme intoxication”, which is akin to automatism, negates voluntariness, and is a complete defence to criminal responsibility.

[39] The appellant contends that, by referring to the appellant’s evidence about being in control of his bodily movements, the trial judge set the bar too high by suggesting that only extreme intoxication could undermine the intent for murder. She should have focused on advanced intoxication. In Daley, at para. 41, Bastarache J. said that advanced intoxication “will most often be the degree of intoxication the jury will grapple with in murder trials”: see also R. v. Robinson, [1996] 1 S.C.R. 683, at para. 49.

[40] First, there was nothing improper about the Crown’s cross-examination on the appellant’s degree of intoxication. He was entitled to test the appellant’s evidence in the way that he chose. Defence counsel did not object. Although the appellant now attempts to link this aspect of the cross-examination to the intent for murder, it would appear that, in pursuing this line of questioning, the Crown was focused on self-defence.

[41] Second, it would have been better had the trial judge clarified the distinction between levels of intoxication for the jury, but she was not asked to do so. Taking the charge as a whole, the jury was properly focused on the appellant’s actual state of mind at the time of the incident, specifically in relation to whether he formed one of the intents in s. 229 (a) of the Criminal Code. This was all within the context of a trial where the appellant made a tactical decision to rely on a single defence – self defence – and did not purport to rely on the partial defence of intoxication: R. v. Pomeroy, 2008 ONCA 521, 91 O.R. (3d) 261, at para. 123.

[42] As for the sane and sober passage in the final instructions, the appellant contends that it was incomplete. The instruction is set out above, at para. 35. The appellant takes issue with the following sentence: “It is a conclusion that you may only reach however after considering all of the evidence”. The appellant contends that the trial should have said: “It is a conclusion that you may only reach, however, after considering all of the evidence, including evidence about Mr. Reddick’s consumption of alcohol (and drugs)”.

[43] It would have been preferable had the trial judge completed the sentence in the manner now suggested on appeal. Once again, she was not asked to do so. In any event, this omission does not amount to error; the jury would surely have understood that “all of the evidence” included the appellant’s evidence, which was thoroughly reviewed by the trial judge in other parts of her charge.

[44] I would dismiss this ground of appeal.

E. The Edgar Instruction

[45] As noted above, as the appellant was walking away from the altercation, he was intercepted by the police. Almost immediately, the appellant said, “They jumped me”. This ground of appeal concerns the use the jury could make of this utterance.

[46] The appellant submits that the trial judge failed to provide the jury with sufficient guidance about how to use this evidence. The Crown contends that, if there was a lack of guidance, the appellant benefited from it because the jury was not constrained in the use they could make of this statement.

[47] In R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161, leave to appeal refused, [2010] S.C.C.A. No. 466, this court recognized an exception to the rule prohibiting the admission of prior consistent statements by an accused person. An accused person’s spontaneous out-of-court statements made upon arrest, or when first confronted with an accusation, may be admitted as evidence of the reaction of the accused to the accusation and as proof of consistency: at para. 72. However, such statements may be admitted only if the accused testifies. Moreover, as Sharpe J.A. wrote, these statements are “not strictly evidence of the truth of what was said”, unless they are admissible under another hearsay exception; instead, they are “evidence of the reaction of the accused, which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence”: at para. 72. See also R. v. Liard, 2015 ONCA 414, 327 C.C.C. (3d) 126, at paras. 44-92, leave to appeal refused, [2015] S.C.C.A. No. 402.

[48] In this case, the appellant’s utterance was properly admitted. He testified in his own defence, and the utterance was made upon arrest. The trial judge did not restrict this utterance from being used for the truth of its contents, as envisaged in Edgar; instead, she instructed the jury in the following manner:

In this case there is evidence that Mr. Reddick said to the police when they apprehended him words to the effect, “I was jumped”. That statement may help Mr. Reddick in his defence. You must consider those remarks that may help Mr. Reddick, along with all of the other evidence even if you do not believe them. In other words, you must consider all the remarks that might help Mr. Reddick even if you cannot decide whether you believe him.

If you decide that Mr. Reddick made a remark that may help him in his defence, you will consider that statement along with the rest of the evidence in deciding whether you have a reasonable doubt about his guilt. You may give anything you find Mr. Reddick said as much or as little importance you think it deserves in deciding this case. It’s only for you to say. Anything that you find Mr. Reddick said however is only part of the evidence in this case. You should consider it along with and in the same way as all of the other evidence. [Emphasis added.]

[49] The appellant submits that the trial judge was “wrong” to instruct the jury as follows: “If you decide that Mr. Reddick made a remark that may help him in his defence, you will consider that statement along with the rest of the evidence in deciding whether you have a reasonable doubt about his guilt”. Instead, the jury should have been instructed that it was an undisputed fact that the appellant said, “They jumped me”.

[50] This is an unimportant point. Earlier in her instructions, the trial judge told the jury that they were the sole judges of the facts. Given that the utterance did not form part of an agreed statement of facts or a formal admission under s. 655 of the Criminal Code, the jury was still required to find as a fact that the appellant made the utterance. They undoubtedly would have.

[51] The appellant further submits that the trial judge should have instructed the jury more fully on the use to be made of the appellant’s utterance. I agree that the trial judge should have gone further and, in accordance with Edgar, instructed the jury that the utterance could not be used for the truth of its contents. Both parties, as well as the trial judge, seemed to treat the statement as being admissible for this purpose. This is most evident in the Crown’s closing address. But this misapprehension inured to the appellant’s benefit. The appellant was permitted to corroborate his testimony about being jumped with his own statement, made moments after the fight, and the statement was left to be used for the truth of its contents. This latter use is what the court in Edgar sought to prevent.

[52] The appellant further submits that the trial judge should have better explained how the statement related to his credibility as a witness and his claim of self-defence. I agree with the Crown that the relevance of the utterance to self-defence would have been obvious to the jury – it was an assertion that he was just defending himself from attack.

[53] The trial judge should have mentioned the utterance in the context of the appellant’s credibility, especially since his sincerity was challenged by the Crown in cross-examination. However, in his closing address, defence counsel relied on the spontaneous utterance in urging the appellant’s version of events on the jury. Acting on the mistaken assumption that the utterance was admissible for its truth, the Crown asked the jury to find that it was untrue and merely a less-detailed version of his trial testimony. In reviewing the appellant’s testimony, the trial judge referred to this statement. Neither defence counsel nor the Crown objected to the trial judge’s instruction on this issue.

[54] In all of the circumstances, while the trial judge’s Edgar instruction was deficient in certain respects, the appellant was not prejudiced.

[55] I would dismiss this ground of appeal.