COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lawlor, 2022 ONCA 645

DATE: 20220915

DOCKET: C66605

van Rensburg, Nordheimer and George JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Derrick Michael Lawlor

Appellant

John Rosen and Amy Ohler, for the appellant

Benita Wassenaar, for the respondent

Heard: February 1, 2022

On appeal from the conviction entered on October 10, 2017, by Justice Gerald E. Taylor of the Superior Court of Justice, sitting with a jury.

van Rensburg J.A.:

A. OVERVIEW

[1] The appellant was convicted by a judge and jury of the first-degree murder of Mark McCreadie. Mr. McCreadie, the appellant, and a third man had engaged in a sexual encounter during the evening of April 9, 2014, in Victoria Park in Kitchener, near a spot frequented by men looking for casual sexual encounters with other men. Mr. McCreadie’s body was discovered on April 10, 2014, in the same area of Victoria Park. He had a stab wound around the abdomen, and his cause of death was determined to be external neck compression.

[2] In the weeks prior to Mr. McCreadie’s death the appellant had made several statements about harming gay men, which included references to having thoughts of strangulation and to having a knife, tape, and rope in his car. Two days after Mr. McCreadie’s body was found, the appellant admitted himself into the psychiatric ward of Grand River Hospital in Kitchener. In the hospital, the appellant told a friend that he had killed a man in Victoria Park and that he had used a knife and a rope. He later called the police, who interviewed him. The appellant told the police that he had been drinking and abusing his medication. He explained that he had been blacking out, had thought about harming gay men, and that he had been “cruising” around Victoria Park looking for gay men to harm. He told police he remembered having a sexual encounter with two men and that he had wrapped his scarf around the neck of one of them for erotic purposes. He remembered that that man left the park but he could not remember what happened to the second man. He asked police to find out if he had caused the death of the man in the park. The appellant was charged with first-degree murder.

[3] At trial, the defence argued identity (that the Crown had not established beyond a reasonable doubt that the appellant was Mr. McCreadie’s killer) and accident (that, if he was the killer, he had unintentionally killed Mr. McCreadie during a sexual act, such that he would be guilty of manslaughter). The defence also asserted that the Crown had failed to prove beyond a reasonable doubt the intent necessary for murder and that the killing was planned and deliberate.

[4] On appeal, the appellant does not seek to impugn his identity as Mr. McCreadie’s killer, and he acknowledges that he is at least guilty of manslaughter. The appellant raises five alleged deficiencies in the jury charge. The first three relate to the required state of mind for murder. The appellant argues that the trial judge: (1) erred by failing to charge the jury on his mental health, which was relevant to intent and planning and deliberation; (2) misdirected the jury on intoxication; and (3) erred in failing to deliver a “rolled-up instruction” to the jury to consider the cumulative effect of the evidence of the appellant’s intoxication and mental health on the states of mind in issue. The appellant also asserts that the trial judge: (4) failed to relate the principle of reasonable doubt to potentially exculpatory evidence in his statements to police and others; and (5) failed to provide a limiting instruction on the permitted use of his after-the-fact conduct.

[5] For the reasons that follow, I would dismiss the appeal. I am not persuaded that there was any error in the jury charge. The jury charge was fair, responsive to the issues and evidence at trial, and was the product of the trial judge’s extensive discussions and engagement with counsel over the course of a three-day pre-charge conference.

B. FACTS

[6] Because the main grounds of appeal challenge the adequacy of the trial judge’s instructions on the appellant’s mental health, it is necessary to set out in some detail the evidence that was before the jury at trial. All of the evidence, including a great deal of evidence about what the appellant said to others, was led through witnesses called by the Crown. The appellant did not testify, nor were there any defence witnesses.

[7] There were pre-trial applications concerning the admissibility of prior discreditable conduct (which resulted in the exclusion of some evidence but the admission of certain statements of the appellant in early 2014); the admissibility of the appellant’s statement to the police on April 15, 2014 (admitted as voluntary; no breaches of the Canadian Charter of Rights and Freedoms); and the admissibility of evidence obtained as a result of the appellant’s interaction with police on April 16, 2014 (statement ruled inadmissible; no Charter breach in the seizure of items from the appellant’s residence). None of these rulings are challenged on appeal.

Background Facts

[8] The appellant was single and openly gay. In early 2014, he was 52 years old and working on contract as a student advisor in the Disabilities Office of a university. He had been under the care of a psychiatrist for over 12 years. For a number of years, he had a mental health support worker, Marg Cybulski, who had not been informed of his diagnosis. By late February 2014, the appellant had told her that he had been sexually assaulted, and she noted that he had grown suspicious of others. He appeared anxious, especially about the sexual abuse he said he had suffered as a child.

[9] On March 1, 2014, the appellant attempted suicide by an intentional overdose of his prescription medication and alcohol. He was treated at Grand River Hospital, where he remained for six days. He was seen by a hospitalist, a social worker and a psychiatrist, all of whom testified at trial. Each reported that the appellant spoke of having had thoughts of killing or harming promiscuous gay men. He told the social worker and the psychiatrist that at one point he had carried a knife and tape in order to do so. None of the three considered that they had a duty to report the appellant to the appropriate authorities. According to the psychiatrist, Dr. Mazin Al-Battran, the appellant confirmed that he was no longer experiencing those thoughts and did not plan to act on them, saying that he did not want to get in trouble or to go to jail. Dr. Al-Battran assessed the appellant and recommended out-patient care with counselling for alcohol abuse. He described the appellant as logical, coherent, and insightful. He noted that the appellant was taking a daily regimen of 50 mg. of Seroquel, an anti-psychotic medication which at that small dose would either augment the treatment of anxiety or help with sleep, and 2 mg. of Clonazepam, that could work as a sleeping aid or assist with anxiety disorders.

[10] The appellant’s friend, Randy Scott, testified that, around March 2013, the appellant told him that he had been sexually assaulted by a man, and in early 2014 he said that he had gone looking for that man. Mr. Scott testified that in mid-March 2014, the appellant was “not in a good space” and was distressed and upset about things in his life. The appellant told him he had been going to Victoria Park to look for men who were perpetrators because he “wanted to hurt men that hurt other men”. Mr. Scott recalled a “very animated conversation” in which he challenged the appellant’s belief that men who went to Victoria Park were perpetrators. Mr. Scott and his wife spent time with the appellant on April 4, 2014. He described the appellant as upset and very agitated. The appellant said that in mid-March he had considered strangling a man he had sex with in Victoria Park, and that he had a rope with him, but he changed his mind and did not hurt the man. He also suggested he was in trouble with his employment, and he told Mr. Scott that he believed someone had broken into his home and sexually assaulted him in early 2014. Mr. Scott told the appellant he did not believe he had been sexually assaulted. He knew that in both instances where the appellant alleged being the victim of a sexual assault, he had lost awareness or consciousness. Mr. Scott was concerned that the appellant was disassociating or having memory blackouts that could lead him to falsely accuse somebody.

The Events of April 9 and 10, 2014

[11] The appellant met with Ms. Cybulski on March 31. He told her that he was worried about his employment and concerned about experiencing flashbacks, and that he wanted to get into a trauma program at Homewood. She met with him again the afternoon of April 9, at his request. He was very upset; he told her his work contract would not be renewed, and that without private insurance he would have to wait longer to enter a residential psychiatric treatment program. The appellant said he had been feeling suicidal earlier that day. They planned to meet again the following day.

[12] Ms. Cybulski testified that, during their April 10 meeting, the appellant told her that after their April 9 meeting, he went home, drank a beer, took some Lorazepam and Seroquel, and later went to the LCBO. The appellant was observed on a security video purchasing several beers at the LCBO just before 5:30 p.m. on April 9. In his police statement, he recounted that he bought five cans (including one for a man outside the store) and went to Victoria Park, where he drank the beers and took some Clonazepam. At 8:52 p.m., the appellant had a 16-minute telephone conversation with his real estate agent and said that he was considering selling his home because he was losing his job. The real estate agent testified that he did not observe any signs of impairment and did not note anything abnormal in the appellant’s tone or demeanour when they spoke, although the appellant sounded stressed.

[13] John Davie, an openly gay middle-aged man, testified that he was a regular visitor to Victoria Park. On April 9, 2014, he arrived at a rendezvous spot in Victoria Park after dark and saw the appellant, standing and drinking from a plastic cup that smelled of alcohol. When speaking with police, Mr. Davie referred to the appellant as “that drunk guy” but he testified that he did not know whether the appellant was in fact drunk, and he described him as polite. Mr. Davie testified that the appellant appeared “agitated”. He was “surprised and shocked” to see the appellant that night; the two had met at Victoria Park the previous weekend, where they had a brief sexual encounter, and the appellant had turned down Mr. Davie’s invitation to go to his home.

[14] Mr. Davie testified that after seeing the appellant, he continued on and met up with Mr. McCreadie. The two were friends who often engaged in casual sex when they met up. Mr. McCreadie was performing oral sex on Mr. Davie when the appellant appeared and asked to join them, and they agreed. As Mr. McCreadie was alternating between the two, Mr. Davie felt a scarf around the front of his neck. As he approached orgasm, he felt the scarf tighten and pull up towards his head. Mr. Davie climaxed, grabbed the scarf, and pulled it away from his neck to release the pressure. He looked at the appellant and said, “What the hell are you doing dude?” The appellant said that he had seen on the Internet that it would “promote orgasm”. Mr. Davie left after that, leaving the appellant and Mr. McCreadie alone.

[15] At 11:24 p.m. on April 9, the appellant was seen on video surveillance entering a bar. There were no signs indicating that his motor skills were impaired. At approximately 1:30 a.m. on April 10, he visited a convenience store where, as observed on the store’s surveillance video, he appeared unsteady on his feet.

[16] At 2:15 a.m. on April 10, the appellant walked into the emergency room at Grand River Hospital and said he had overdosed on his medications. He told a registered nurse that he had taken alcohol, six Clonazepam 2 mg. and eight Seroquel 25 mg. He also said that he wanted to harm “random abusive homosexuals”, that he believed he was going in and out of dissociative states, and that he believed he had been raped in his kitchen but was unsure whether the assault happened. He asked to be admitted. Dr. Al-Battran, the psychiatrist who had seen the appellant in March, saw him again and asked whether the appellant was still having thoughts of harming promiscuous gay men. The appellant told him he was not, and that he had no plans to act on those thoughts. After learning about the treatment plan, which involved his admission and treatment by Dr. Al-Battran, the appellant appeared angry and left the hospital.

The Discovery of the Deceased’s Body

[17] In the early afternoon on April 10, 2014, two municipal by-law officers discovered Mr. McCreadie’s body in Victoria Park. He was fully clothed and did not appear to have been subject to violence. The only sign of injury was a small amount of blood-tinged fluid in his ear and a small cut below his navel, which was discovered when the coroner arrived. There were no defensive injuries. Mr. McCreadie’s death was later determined to have been the result of asphyxiation (external neck compression by force). The cut on his abdomen did not contribute to his death.

The Events of the Following Days

[18] In the morning of April 10, 2014, the appellant’s phone accessed the CBC News website and that of a local newspaper. His phone also searched Google for “local KW news” but did not access the results of the search.

[19] At around 11:00 a.m. on April 10, the appellant met with Ms. Cybulski. She testified that he was anxious and concerned about what happened the night before. He told her that he drank some beer, took his medications, and went to a bar and then to the hospital. He said he had experienced memory lapses and did not recall phone calls he made to his sister, the real estate agent, and a work colleague. He said that he only remembered seeing blood on his hands at some point during the night. Ms. Cybulski questioned whether he was blacking out because he was using alcohol and medications together.

[20] The next day, on April 11, 2014, the appellant texted Mr. Scott, who had travelled to Florida, to share “breaking news”. In a phone call, the appellant told him that he had had another one of his incidents, which Mr. Scott understood to mean a blackout, and that he had no memory from 3:00 p.m. on April 9 to 3:00 a.m. on April 10. The appellant also said that a body had been found in Victoria Park and he was afraid he might have had something to do with it. Mr. Scott encouraged the appellant to go back to the hospital, and he contacted the police.

[21] On April 12, 2014, the appellant admitted himself into Grand River Hospital. That day another friend, Lyle Petersen, visited the appellant at the hospital at his request. Mr. Petersen testified that the appellant told him that he thought he had killed a man in Victoria Park, that he used a knife and a rope, and that he recalled being covered in blood. He described the appellant’s recollection as “vague”, and he had doubts about his story.

[22] The appellant called police from the hospital and officers attended to interview him in the psychiatric ward on April 15. The appellant explained that he wanted to speak to police about the body in Victoria Park because of his “blackouts”, his being “so close to the area”, and his “history”. He told the officers that he was in the hospital to get help, to be diagnosed if there was something wrong with him, and to find out if he had done “anything bad”.

[23] During this interview, the appellant told the police that he remembered on April 9 going to the LCBO, where he bought beer, and going to Victoria Park, where he started drinking the beer and taking Clonazepam. He told the officers he had to be careful about recalling events because he sometimes had memory fragments or false memories. He recalled it starting to get dark when he was at the park, but he did not recall any events until he was at the hospital the next morning. He did not know if it was true, but he thought he had blood on his hands at some point in the night.

[24] The appellant told the police that in February 2013 he had been violently raped by a man and he had wanted to find him. In the fall of 2013, he would have “really bad blackouts”, where he would end up drinking heavily and “cruising” for perpetrators. He carried a little bag or knapsack with a knife and rope. He said he “almost killed a guy”. Sometimes he would “come to [his] senses” and find himself with a man and not remember how he got there, while other times he would manipulate a man into an encounter, then fight the urge to hurt him.

[25] The appellant told the police he had woken up from a blackout at 6:00 a.m. on April 10, wondering where he was. When he went home, he saw something on the 6:30 news about a body being found. He started “freaking out.” He noticed that his knife was gone and he could not find the gloves he had been wearing.

[26] Later in his statement, the appellant recalled “cruising” a guy he referred to as “John”. He described how he approached John and another man, and how he had wrapped a scarf around John’s throat to help with the homoerotic experience. He remembered being angry and not having fun. The appellant said he stopped when John started to pass out, and he told John to go away. The appellant said he was not sure what happened to the other man and wondered if he might have killed him.

[27] Ms. Cybulski visited the appellant at the hospital on April 16. He told her that he had been going to Victoria Park for some time to have sex with strangers, and that a couple of months prior he had an urge to hurt or kill someone. He also said that he picked up gloves, duct tape and a knife, that he had met a man at Victoria Park, and, although he had the intention of killing him, he did not follow through. He told Ms. Cybulski that when he heard about the homicide at Victoria Park, he checked his bag and he discovered that his gloves and knife were missing and that he called the police in order to clear his name. He said he recalled having been at Victoria Park the night of April 9 or early in the morning of April 10, and that he saw blood on his hands at some point.

C. ISSUES ON APPEAL

[28] The appellant raises five grounds of appeal against his conviction, all of which relate to alleged deficiencies in the trial judge’s jury charge.

[29] In the first three grounds of appeal, the appellant asserts that the jury charge regarding his state of mind for first-degree murder was inadequate. In particular, he submits: first, that the trial judge erred by failing to expressly charge the jury on the relevance and use of the evidence of his mental health; second, that the trial judge misdirected the jury on intoxication; and third, that the trial judge erred by failing to give a “rolled-up” instruction. As his fourth ground, the appellant raises a R. v. W.(D.), [1991] 1 S.C.R. 742, error. He submits that the trial judge failed to relate the principle of reasonable doubt to potentially exculpatory evidence in his statements to police and others. Finally, the appellant submits that the trial judge erred by failing to provide a limiting instruction on the permitted use of his after-the-fact conduct.

[30] I will address each issue in turn.

D. ANALYSIS

Standard of Review

[31] As the Supreme Court has repeatedly affirmed, “an accused is entitled to a jury that is properly—and not necessarily perfectly—instructed”: R. v. Goforth, 2022 SCC 25, 470 D.L.R. (4th) 617, at para. 3. In reviewing a jury charge, courts have adopted a “functional” approach, “asking whether the charge as a whole enabled the trier of fact to decide the case according to the law and the evidence”: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 8. Alleged errors must be examined “in the context of the entire charge and of the trial as a whole”: R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32.

The Jury Charge on Intent

[32] Since the first three grounds of appeal impugn aspects of the trial judge’s instructions on intent and planning and deliberation, I will begin with a summary of these aspects of the charge. As I have already indicated, the charge was the product of detailed discussions between counsel and the trial judge, with a lengthy pre-charge conference. The trial judge provided counsel with a first draft, and then later drafts to respond to various submissions. There was no objection to the instructions concerning the legal elements of intent for murder and planning and deliberation, and they will not be repeated here. Apart from defence counsel’s request for an instruction on intoxication, which was opposed by the Crown, and included by the trial judge, none of the other instructions on intent, including the specific instructions on intoxication, were the subject of any discussion or complaint. While there were some small changes to the recitation of the evidence in respect of intent and planning and deliberation as a result of pre-charge submissions, there was no request that the trial judge change his approach to the review of the evidence or that he include additional references that he had not otherwise made.

[33] After providing the jury with instructions on the legal elements of intent for murder (which are not criticized in this appeal), the trial judge turned to the evidence relevant to this question. He instructed the jury to consider all of the evidence, and (complying with the defence request for a specific charge on intoxication, as discussed below), he specifically highlighted evidence about the appellant’s consumption of alcohol and drugs. He instructed the jury:

To determine Derrick Lawlor’s state of mind, what he meant to do, you should consider all the evidence. You should consider:

A. what he did or did not do.

B. how he did or did not do it.

C. what he said or did not say.

You should look at Derrick Lawlor’s words and conduct before, at the time and after the unlawful act that caused Mark McCreadie’s death. All of these things and the circumstances in which they happened may shed light on Derrick Lawlor’s state of mind at the time. They may help you decide what he meant or did not mean to do. In considering all the evidence, use your good common sense. You may conclude, as a matter of common sense, that a person usually knows what the predictable consequences of his conduct are and means to bring them about. This is simply one way for you to determine a person’s actual state of mind, what he actually meant to do. You may, but are not required to reach that conclusion about Derrick Lawlor. Indeed, you must not do so if on the evidence as a whole, including the evidence about Derrick Lawlor’s consumption of alcohol and drugs, you have a reasonable doubt about whether Derrick Lawlor had one of the intents required to make the unlawful killing, murder.

[34] Earlier in the charge, the trial judge instructed the jury that some or all of the things the appellant said to the police might help him in his defence. He referred to examples, such as the appellant saying he was having memory gaps, getting the days wrong, and mixing up information. After referring to the fact that several witnesses testified about being told by the appellant that he had or had had thoughts about harming promiscuous homosexual males, the trial judge instructed the jury that some of the things the witnesses reported the appellant said might help him in his defence. For example, the trial judge referred specifically to Dr. Al-Battran’s testimony that the appellant said he had no current thoughts about harming homosexual males and that he did not want to get into trouble or go to jail.

[35] In his review of the evidence on the issue of intent, the trial judge referred to the appellant’s statement to the police where he said he only remembered the homoerotic experience he tried with John, and he stated, “So, I mean, did I do the same thing with this guy and went too far? I don’t know. I don’t remember”. The trial judge referred to the evidence of Dr. Allison Edgecombe, the forensic pathologist who conducted Mr. McCreadie’s autopsy, about the cause of death and her acknowledgment that accidental death during erotic asphyxiation would be a plausible explanation for Mr. McCreadie’s death. The trial judge then provided an instruction on intoxication, and told the jury that, to decide whether the Crown had proven beyond a reasonable doubt that the appellant had one of the intents for murder, they should take into account the evidence about his consumption of alcohol and drugs, along with the rest of the evidence that shed light on his state of mind at the time the offence was allegedly committed. After pointing out that the only evidence on the effect of the consumption of alcohol and drugs on the appellant was what was contained in his statement to the police and in statements he made that were reported by others, the trial judge reviewed the evidence about the appellant’s consumption of drugs and alcohol.

[36] Similarly, on the issue of planning and deliberation, the trial judge instructed the jury to consider all of the evidence. He told the jury:

It is for you to say whether the murder of Mark McCreadie was both planned and deliberate. To decide this issue you should consider all of the evidence. Among the things you should consider are:

A. what Derrick Lawlor did or did not do.

B. how Derrick Lawlor did or did not do it.

C. what Derrick Lawlor said or did not say.

D. Derrick Lawlor’s condition.

E. Derrick Lawlor’s state of mind, including any evidence of impairment by a combination of the consumption of drugs and alcohol.

[37] The trial judge instructed the jury to consider the evidence he already referred to “and Derrick Lawlor’s various statements to the police and others about his animosity towards promiscuous homosexual males and the steps that he took to act on that animosity”. He instructed the jury to consider the evidence about the appellant’s consumption of drugs and alcohol, which could have an effect on his ability to plan and deliberate. He stated, “There may be other evidence which I have not referenced which you think impacts on the ability of Derrick Lawlor to plan and deliberate. You should consider all the evidence”.

Discussion of the Issues

(1) Issue 1: Did the trial judge err in failing to expressly charge the jury on the relevance and use of the evidence of the appellant’s mental health?

Positions of the Parties

[38] The appellant contends that the trial judge erred in failing to charge the jury on his psychiatric history and mental upset. The jury had before it evidence arising from the appellant’s statements to police and others, and other evidence supporting a history of mental disorder and drug and alcohol abuse, as well as self-reports of blackouts, fragmented memory, and dissociation. While the Crown relied on this evidence to prove motive, intent, and planning and deliberation, on the defence’s theory, these statements and observations were also evidence from which the jury could have concluded that the appellant lacked the requisite intent for murder.

[39] The appellant also submits that, by specifically referring to the evidence of the appellant’s consumption of alcohol and drugs, the charge directed the jury’s focus to the narrow issue of intoxication. As a result, the jury may well have overlooked the relevant and material evidence that he had a mental illness and may have been suffering from a mental disorder at the relevant time.

[40] The Crown asserts that the jury was properly and adequately charged on the appellant’s intent, given the evidence and the arguments at trial. First, the Crown submits that the mental health evidence was “unfocussed” and “not particularly compelling”, as there was no expert evidence called, no definitive diagnosis for the jury to consider, and the appellant did not testify about his mental state on April 9, 2014, or at all. Second, the Crown submits that much of the mental health evidence was inextricably linked to highly inculpatory evidence, and that overemphasizing it might have detracted from the defences based on identity and accident. The trial judge crafted a charge on intent that left it open for the jury to consider the appellant’s mental health in a manner consistent with the defence’s closing submissions, while also recognizing its inculpatory nature. Third, the defence did not request a specific charge on the appellant’s mental health despite extensive opportunities to make submissions on the jury charge.

The Relevant Principles

[41] As the point of departure, there is no question that evidence of an accused’s mental illness may be relevant to the issues of intent and planning and deliberation: see R. v. Spence, 2017 ONCA 619, 353 C.C.C. (3d) 446, at para. 49; R. v. David (2002), 2002 45049 (ON CA), 61 O.R. (3d) 1 (C.A.), at paras. 57, 62; R. v. Allard (1990), 57 C.C.C. (3d) 397 (Que. C.A.), at p. 401; and More v. The Queen, 1963 79 (SCC), [1963] S.C.R. 522, at pp. 533-34. It is also clear that there does not have to be expert evidence before such evidence can be considered by the trier of fact: Spence, at para. 45; R. v. Reeves, 2017 BCCA 97, 352 C.C.C. (3d) 66, at para. 17.

[42] Where the allegation, as here, is of “non-direction, not misdirection”, “of things left out, not things said wrong”, the “overriding question” is whether the jury was “properly equipped to render its decision in the absence of the instructions of which complaint is now made”: R. v. Wood, 2022 ONCA 87, 411 C.C.C. (3d) 495, at paras. 116, 130. As this court observed at para. 131 of Wood:

Rarely will final instructions to a jury include everything that could be said about a particular subject like the use the jury can make of various items of evidence admitted at trial. But on review, the issue is not whether something more or something different could have been said, or some direction could have been more felicitously phrased. The issue is whether, in the context of the trial as a whole, what was said was sufficient.

Non-direction only becomes misdirection “when something left unsaid makes wrong something that was said, or where what was left unsaid is essential to an accurate instruction on the subject”: R. v. B.(P.), 2015 ONCA 738, 127 O.R. (3d) 721, at para. 131; see also Wood, at para. 132; R. v. Alvarez, 2021 ONCA 851, 159 O.R. (3d) 1, at paras. 83-86.

Application of the Principles

[43] The argument on appeal that the trial judge ought to have given more specific instructions and reviewed the evidence of the appellant’s mental health must be considered in the context of the trial, including (i) the nature and quality of the evidence that was available and (ii) the actions of defence counsel, such as their decision not to request any specific instruction respecting such evidence and their closing arguments.

(i) The Nature and Quality of the Mental Health Evidence

[44] An important consideration on this ground of appeal is the nature and quality of the evidence about the appellant’s mental health. In particular, there are three aspects of this evidence that undermine the appellant’s argument: its limited nature, the inconsistencies in the evidence, and the fact that it was bound up with inculpatory evidence.

[45] First, the limited nature of the mental health evidence in this case undermines the appellant’s attack on this aspect of the jury charge. While there was evidence that the appellant had mental health problems, there was no evidence of any diagnosis, or any evidence, expert or otherwise, to relate the symptoms he complained of (blackouts and memory loss) to the issues of his intent and planning and deliberation. For example, the appellant’s support worker, Ms. Cybulski, testified that she worked at an organization that assisted people with significant mental health issues and that she had provided supportive counselling to the appellant for about 12 years before the offence. She testified, however, as a lay witness and she was not privy to any diagnosis from a psychiatrist. In a similar vein, Dr. Al-Battran, who dealt with the appellant at the Grand River Hospital in March and April of 2014, testified that the appellant’s prescription drugs, based on the dosages, would be used as a sleep aid or in the treatment of anxiety. He did not, however, testify that the appellant suffered from any particular psychiatric disorder or provide evidence relating to how such a disorder might have affected the appellant’s intent and planning and deliberation.

[46] Although a psychiatric diagnosis is not required for mental health evidence to be relevant and admissible, the limited nature of the mental health evidence in this case is an appropriate consideration in assessing the adequacy of the charge: see, for example, R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438, at para. 48. Not only was there little evidence concerning the appellant’s mental health, but there was an absence of evidence relating to the impact, if any, of the appellant’s mental health issues on whether he intended to kill Mr. McCreadie and whether the killing was planned and deliberate.

[47] A second issue with the mental health evidence was its inconsistency. For example, a registered nurse testified that the appellant was coherent, well-kept and pleasant when she conducted his mental status assessment and risk assessment at the Grand River Hospital on the morning of April 10, 2014. Dr. Al-Battran similarly testified that when he met the appellant the same morning, the appellant appeared composed and did not appear to be under any duress or psychosis. And, although the appellant initially told the police that he experienced a “blackout” with no memory of anything between his visit to the LCBO on April 9 and speaking to a security guard at the hospital the morning of April 10, later in the interview he recalled the details of having been in Victoria Park and engaging in a three-way sexual encounter, describing how he felt angry when he sent Mr. Davie away.

[48] A third feature of the mental health evidence in this case is that it was bound up with inculpatory evidence. This was recognized by defence counsel in his closing submissions, where he identified “context” as his “theme for the day”, and he repeatedly reminded the jury to consider all of the appellant’s inculpatory statements, on which the Crown relied to prove intent and planning and deliberation, in the context of where and how the statements were made. For example, defence counsel stated:

Nowhere is context going to be more important than in the consideration of the statement made by Mr. Lawlor. And I urge you as I have done, [to] consider all of the evidence and to consider the context of all the evidence. Do not look at isolated passages from Mr. Lawlor’s statement or take them outside of the context of the statement as a whole.

So when I say context is important, I say that context all needs to be borne in mind when you examine the statement that Mr. Lawlor made to police and ask yourself, is this a confession? Is this an inculpatory statement? Is this a statement where he admits to having done something or is this a statement where he describes fragmented memories and not being sure about things and being concerned that he might have been involved.

If you look at the context, at the evidence as a whole, if you look at the context at the evidence as a whole, if you look at the over-arching circumstances that you’d heard about Mr. Lawlor’s life at that time, about Mr. Lawlor’s condition at that time, about Mr. Lawlor’s admission to the Psychiatric Unit at the hospital at that time, about the concerns his friend had – his friends had about him and for him at that time, those all will impact, especially when you consider the abuse of prescription drugs and alcohol on the ability to form the necessary intent required for murder.

Now very crucially, as I said, the context of everything that you’ve heard about psychiatric condition, about state of mind, about alcohol combined with drugs shall or should inform your deliberations as regards whether or not Mr. [Lawlor] had the requisite state of mind, the intent to kill and could form that at the time that Mr. McCreadie died if in fact Mr. Lawlor is the person who caused Mr. McCreadie’s death.

[49] Defence counsel went on to address the question of planning and deliberation, emphasizing the context of the statements the appellant made to others about his desire to kill other people: “[n]ot a single professional testified to you that their concerns about Mr. Lawlor harming anybody [were] of such a nature as to cause them to report to authorities”. Again, defence counsel repeatedly urged the jury to consider “the evidence as a whole”. Toward the end of his closing argument defence counsel reminded the jury “there is nothing more important that I can say otherwise than to maintain a clear eye on context at all times”.

[50] The fact that the mental health evidence was bound up in inculpatory statements was part of the overall context in which it was dealt with at trial. Defence counsel urged the jury to consider what appeared to be inculpatory remarks by the appellant in the context in which they were made – in the context of conversations he was having with friends in which he complained of blackouts, fragmented memories and his desire to get more psychiatric help, and in the context of having gone to the hospital to seek psychiatric help.

[51] While the failure to seek a specific charge on the appellant’s mental health may not be properly described as “tactical”, on a review of the entire record, it is apparent that it resulted from a considered and deliberate decision. Counsel recognized that the mental health evidence was bound up with highly inculpatory evidence – and that is why he emphasized repeatedly the need to put the inculpatory statements in “context”. Had counsel sought a specific direction that the jury consider the appellant’s psychiatric history and mental state, no doubt the Crown would have urged the trial judge to point out the limitations to such evidence, including the absence of expert evidence, the inconsistencies in the evidence, and the fact that there was nothing that drew a link between the appellant’s mental health and his state of mind at the time of the offence. Given this dynamic, the trial judge provided instructions that were balanced and fair.

[52] Before elaborating further on how the actions of defence counsel at trial undermine this ground of appeal, I will briefly address the appellant’s reliance on this court’s decision in Spence. Contrary to the appellant’s submissions, there is nothing in Spence that supports the grounds of appeal that are argued here.

[53] In Spence, this court allowed an appeal and directed a new trial on first-degree murder after it concluded that the trial judge erred in his instructions concerning the appellant’s mental illness. In that case, the appellant had asserted in his police statement that he intended to fire the gun that killed his brother in order to scare him, but that he did not intend to shoot him. He also mentioned that he had been suffering from depression, and that his mental health issues had been “piling underneath” in recent weeks. No psychiatric evidence was led at trial.

[54] The issue in Spence was not, as here, whether the trial judge left out instructions on the appellant’s mental health and failed to review the relevant evidence; rather, in Spence the trial judge misdirected the jury and provided an instruction that was confusing and contained numerous errors. Effectively the trial judge had removed any question of the appellant’s mental illness from consideration by the jury.

[55] Unlike in Spence, the trial judge in this case did not remove from consideration by the jury any consideration of the appellant’s mental illness, his psychiatric history or his mental state at the time of the offence. As Moldaver J. stated at para. 65 of Walle:

In the end, what is critical is that the jury be made to understand, in clear terms, that in assessing the specific intent for murder, it should consider the whole of the evidence that could realistically bear on the accused’s mental state at the time of the alleged offence. The trial judge should alert the jury to the pertinent evidence. How detailed that recitation should be will generally be a matter for the trial judge, in the exercise of his or her discretion.

[56] In response to questions from the panel on appeal about how the jury ought to have been instructed in this case, the appellant’s counsel acknowledged that the evidence could have been stronger and more precise, and that not much could be made of the fact that the appellant had been hospitalized or was taking psychiatric medication. Counsel asserted that what should have been emphasized was “what [the appellant] says and does and how he acts as described by him and also as observed by others that raises issues that he was in a mental upset at the time he was in the park with the deceased.”

[57] In this case, the trial judge repeatedly told the jury to consider all of the evidence in determining each of the issues they had to decide, including intent. He did in fact review the evidence that the appellant contends ought to have been reviewed, and he did so in a balanced way. As I have already noted, the trial judge’s balancing was particularly important because aspects of the evidence concerning the appellant’s mental health and state of mind at the time were bound up in inculpatory evidence.

(ii) The Actions of Defence Counsel

[58] In addition to the nature and quality of the evidence at issue, the conduct of defence counsel at trial, and in particular the failure to request a specific charge on the appellant’s mental health despite the opportunity to do so, is an important consideration. Counsel’s failure to object on a matter of law is of less significance than their position on matters relating to the defence and the review of the evidence: R. v. Bouchard, 2013 ONCA 791, 305 C.C.C. (3d) 240, at para. 71. Where, as here, the complaint is not one of misdirection, but of an incomplete instruction, defence counsel’s conduct at first instance, including any failure to object, is important. As the Supreme Court observed in R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58: “The failure to register a complaint about the aspect of the charge that later becomes the ground for the appeal may be indicative of the seriousness of the alleged violation.”

[59] A review of the record confirms that the trial judge adopted a careful, methodical and thorough approach to the preparation of the jury charge. He initiated discussions with counsel days before he delivered the charge, he invited them to identify the issues he should highlight, and he gave proper consideration to their submissions during an extensive pre-charge conference. Counsel had the full opportunity to reflect on the draft charge and to provide comments. The trial judge provided counsel with multiple drafts, which together with track-changes versions showing his edits, were marked as lettered exhibits. During the long weekend before he delivered his charge he provided counsel with further changes, and court began in the absence of the jury at 9:00 a.m. the following Tuesday so that counsel could provide further comments. Counsel indicated that they were satisfied with the charge. That the trial judge was receptive to the defence concerns is demonstrated by his decision to give a specific instruction on intoxication. Although the trial judge agreed with the Crown that the evidence of intoxication affecting the appellant’s intent was “thin”, he instructed the jury as the defence had proposed.

[60] This court has underscored that counsel’s review and endorsement of a jury charge is an important consideration in assessing on appeal whether a jury was adequately instructed. Indeed, it is counsel’s duty to assist the court in fulfilling its obligation to properly instruct the jury: Daley, at para. 58. As Doherty J.A. noted in R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, at para. 96, leave to appeal refused, [2010] S.C.C.A. No. 263, this duty takes on “added significance where counsel has been given a full copy of the proposed instructions and an ample opportunity to vet them, and has engaged in a detailed pre-trial dialogue with the trial judge”, such that “counsel’s position at trial becomes very important when evaluating complaints, raised for the first time on appeal, that matters crucial to the defence were not properly addressed by the trial judge in [their] instructions”.

[61] Unlike the extensive discussions about whether to include a charge on intoxication, there was virtually no reference in the pre-charge conference to the appellant’s mental health and no request from the appellant’s counsel that the jury be specifically charged on that issue. Rather, the appellant’s counsel argued that evidence about the appellant’s blackouts, together with evidence of his consumption of alcohol and drugs, went to whether there was an air of reality to an intoxication defence. Although Crown counsel indicated before the pre-charge conference that there may be “something raised in the areas of mental health”, the appellant’s counsel did not pursue the issue at any point before, during, or after the pre-charge conference. This can only suggest that the appellant’s trial counsel were satisfied with the charge – not that they overlooked the importance of the appellant’s mental health at the time, but that they considered it to have been adequately addressed by the charge.

[62] As noted earlier, defence counsel’s silence on this issue was likely a deliberate, considered decision. The evidence about the appellant’s mental health was inextricably linked to inculpatory evidence, such as his statements about his desire to kill or harm gay men and concerns that he may have been responsible for the body found in Victoria Park. Highlighting this evidence with a specific instruction might well have detracted from the appellant’s arguments on intent and identity. Instead, defence counsel adopted an approach that invited the jury to consider the inculpatory statements of the appellant in the context of his psychiatric condition, his state of mind, and “what he was going through” at that point in his life.

[63] The failure of the trial judge to expressly deal with the appellant’s mental health would only be a misdirection if it failed to equip the jury with the necessary tools to be able to assess the evidence. In my view, it did not. As highlighted above, on the issues of intent and planning and deliberation, the trial judge instructed the jury to consider all the evidence and he referenced evidence indicative of the appellant’s mental health at the time. At one point the trial judge reminded the jury that: “It is the position of the defence that Derrick Lawlor’s psychiatric condition and his consumption of alcohol and prescription drugs are all factors to be considered in determining whether … Derrick Lawlor had an intent for murder”.

[64] Moreover, this ground of appeal must also be considered in the context of the appellant’s counsel’s closing address, which discussed the appellant’s mental health in some detail. Counsel reminded the jury that it had “heard evidence about [the appellant’s] psychiatric condition and some of the aids and assistances that he received”. Counsel highlighted the testimony of Ms. Cybulski and noted that the appellant had been admitted to hospital in early March after a suicide attempt and had also attended the hospital in the early morning hours of April 10, 2014. Counsel observed that the appellant’s statement to the police was taken while he was a patient at the hospital and that one of the first things he told police was that he wanted to undergo a psychiatric assessment given his experience with blackouts and dissociation. Counsel also reminded the jury that the appellant was frustrated and concerned about not being able to get into intensive psychiatric treatment and that his friends expressed concerns about his condition.

[65] As the Supreme Court observed in Daley, at para. 58, “the charge to the jury takes place not in isolation, but in the context of the trial as a whole. Appellate review of the trial judge’s charge will encompass the addresses of counsel as they may fill gaps left in the charge”. Stated otherwise, closing addresses may help to remedy a potential shortcoming in the charge, especially when nothing in the charge contradicts or qualifies what counsel said: see R. v. E.H., 2014 ONCA 622, at para. 11. Consideration of counsels’ closing submissions is thus relevant when assessing an alleged deficiency in the charge: see R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 137; and R. v. Srun, 2019 ONCA 453, 146 O.R. (3d) 307, at para. 54.

[66] Far from undermining or contradicting what the appellant’s counsel told the jury, the trial judge, in summarizing the parties’ positions in the jury charge, repeated for the jury that the appellant argued that his psychiatric condition (and his consumption of alcohol and drugs) was relevant to the issue of whether he had the requisite intent for murder.

(iii) The Focus on Intoxication

[67] Finally, I see no merit to the appellant’s argument that, by specifically referring to the appellant’s consumption of drugs and alcohol in the charge, the trial judge narrowed the jury’s focus, and prevented their consideration of his mental health.

[68] The jury charge must be reviewed functionally and in the context of the trial as a whole. The trial judge directed the jury to take into account all of the evidence, including the evidence of the appellant’s drug and alcohol consumption. A significant portion of the pre-charge conference was focussed on the evidence of intoxication and whether the trial judge should leave an intoxication defence with the jury. In light of the parties’ submissions, it is not surprising that the trial judge specifically referred to the evidence of the appellant’s drug and alcohol consumption in the charge. The appellant’s trial counsel did not object to these references, nor did they suggest at the time that the references would lead the jury to focus solely on the issue of intoxication. As a result, I see no merit to this argument.

[69] In summary, I am not persuaded that appellate intervention is warranted on the basis that the jury charge with respect to the appellant’s mental health was deficient and thus resulted in an unfair trial.

(2) Issue 2: Did the trial judge misdirect the jury on the appellant’s evidence of intoxication?

Positions of the Parties

[70] The appellant submits that the trial judge misdirected the jury on intoxication. First, the appellant argues that the trial judge, in using “capacity” wording in his charge about intoxication, misdirected the jury on intoxication by conflating the appellant’s capacity to form the necessary intent and to plan and deliberate, with whether he did in fact have the necessary intent and planned and deliberated. This, the appellant says, had the result of removing from the jury’s consideration intoxication that fell short of incapacity, but that could still have raised a reasonable doubt on the issues of intent and planning and deliberation.

[71] Second, the appellant contends that the trial judge undermined the probative value of the evidence of his intoxication in two respects before reviewing that evidence for the jury. He points to the following passages in the charge:

You should also keep in mind that while the Crown is required to negative reasonable possibilities, the Crown is not required to negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of Derrick Lawlor.

When you are considering the evidence about Derrick Lawlor’s consumption of drugs and alcohol, you should keep in mind the distinction between intoxication, which can affect a person’s judgment, and whether the person intended the predictable consequences of their conduct, and amnesia. Amnesia does not mean that a person was incapable of forming the intent to commit an offence.

[72] The appellant submits that the first passage was unfair because the evidence before the jury negated any issue of “conjecture”, and the jury was obliged to consider it. He asserts that the second passage is also unfair because the appellant did not claim “amnesia”. Together, these passages amounted to an instruction that the evidence of the appellant’s history of blackouts – even if accepted by the jury – was insufficient to raise a reasonable doubt.

[73] The Crown’s position is that the charge on intoxication was fair. The Crown submits that the jury was clearly directed to consider intoxication in relation to the appellant’s actual state of mind, and not merely his ability to form the intent for murder or to plan and deliberate. Further, the Crown submits that the impugned passages were not unfair. The trial judge was correct in instructing the jury that amnesia does not mean that a person was incapable of forming the intent to commit an offence, and the jury was properly instructed on how to consider the evidence of intoxication.

The Relevant Principles

[74] In Daley, the Supreme Court clarified the form charges on intoxication should take when raised as a defence to a specific intent offence. The court concluded that, instead of providing a two-step instruction that tells the jury to determine beyond a reasonable doubt first whether the accused had the capacity to form the requisite intent and then, if no reasonable doubt on capacity exists, whether the accused actually possessed the requisite intent, trial judges should provide a one-step instruction focussed solely on whether the accused possessed actual intent: at para. 102. As Bastarache J. wrote, at para. 101, “[n]o injustice is caused to the accused by only instructing the jury to consider actual intent”.

[75] In R. v. Chretien, 2014 ONCA 403, 309 C.C.C. (3d) 418, at paras. 88-92, this court elaborated further on the principles governing a trial judge’s instructions on evidence of intoxication on proof of the mental element in murder. Watt J.A. underscored that “it is wrong to instruct a jury on intoxication only in the language of capacity” given that “[t]he issue is actual state of mind, not the capacity to form a particular state of mind”: at para. 89 (emphasis in original). While a reference to capacity in a jury charge is not necessarily fatal, “it is preferable that a jury be instructed to consider evidence of intoxication, along with the rest of the evidence, in deciding whether an accused had the specific intent required to commit the offence”: Chretien, at para. 90; see also R. v. Robinson, 1996 233 (SCC), [1996] 1 S.C.R. 683, at para. 54; R. v. Herlichka, 2020 ONCA 307, 150 O.R. (3d) 734, at para. 33, leave to appeal refused, [2020] S.C.C.A. No. 341.

Application of the Principles

[76] Applying these principles in this case, this ground of appeal cannot succeed.

[77] The appellant seizes on isolated passages in the jury charge which he contends served to limit the jury’s consideration of intent to the issue of capacity. At one point the trial judge said the following:

An intoxicated state of mind is nonetheless a state of mind. Mild intoxication, which results in one’s inhibitions and socially acceptable behaviour, is not an acceptable factor or excuse when determining a person’s intent. However, an advanced intoxication which results in an impairment of the person’s foresight of the consequences of their actions to the point where the person is unable to form the intent for murder, can raise a reasonable doubt about that person’s intent.

Later, in relation to planning and deliberation, the trial judge stated:

You should also consider the evidence about Derrick Lawlor’s consumption of drugs and alcohol, which could have an effect on his ability to plan and deliberate. There may be other evidence which I have not referenced which you think impacts on the ability of Derrick Lawlor to plan and deliberate. You should consider all the evidence.

[78] However, the legal accuracy and fairness of the charge on intoxication does not depend on these two passages alone. As Fairburn A.C.J.O said in Herlichka, at para. 33, while “[i]t is undoubtedly preferable to keep jury instructions as streamlined and straightforward as possible, focussing on only those issues that require determination”, it is not necessarily a legal error to “inject capacity-like language into a jury instruction”. On appellate review, this court must review the jury charge as a whole, not dissect isolated passages: Spence, at para. 42; R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 39.

[79] Near the beginning of the jury charge on the issue of intent, the trial judge instructed the jury that it had to be satisfied beyond a reasonable doubt that the appellant meant to kill Mr. McCreadie or that he meant to cause Mr. McCreadie bodily harm that he knew was so serious and dangerous that it would likely kill Mr. McCreadie and proceeded despite this knowledge. In deciding this issue, he told the jury to consider “all the evidence”. He explained that the jury could “conclude, as a matter of common sense, that a person usually knows what the predictable consequences of his conduct are and means to bring them about”, but he warned the jury that it could not come to that conclusion “if on the evidence as a whole, including the evidence about [the appellant’s] consumption of alcohol and drugs, [it had] a reasonable doubt about whether [the appellant] had one of the intents required to make the unlawful killing, murder”.

[80] Other parts of the jury charge likewise made clear to the jury that evidence of intoxication should be considered together with all of the evidence in deciding whether the appellant had the intent to commit murder. For example, the trial judge told the jury that it “should take into account the evidence about [the appellant’s] consumption of alcohol and drugs, along with the rest of the evidence that sheds light on his state of mind at the time the offence was allegedly committed”. And, the trial judge reiterated that the jury “should consider the evidence about the alcohol and drugs consumed by [the appellant], as well as their effect on his state of mind, including his knowledge of the consequences of his conduct”.

[81] The trial judge’s instructions on planning and deliberation similarly directed the jury to determine whether the appellant actually planned and deliberated, not whether he had the capacity to plan and deliberate. The trial judge explained the meaning of “planned and deliberated” and instructed the jury to “consider all the evidence” in deciding whether the murder was both planned and deliberate, such as evidence indicating the appellant’s “state of mind, including any evidence of impairment by a combination of the consumption of drugs and alcohol”. The jury would have understood that it had to consider intoxication in relation to the appellant’s actual planning and deliberation, not simply his ability to plan and deliberate.

[82] When the charge is reviewed as a whole, there is no risk, in my view, that the jury would have erroneously believed that it was barred from considering evidence of intoxication that fell short of incapacity when determining whether the appellant had the necessary intent for and planned and deliberated the murder. To borrow the words of Watt J.A. in Chretien, at para. 96, although the instructions contain minimal references to the ability to form intent and to plan and deliberate, these references are preceded and followed by instructions that “leave no doubt that the critical issue for the jury to determine [was] the appellant’s actual state of mind.”

[83] With respect to the appellant’s second argument alleging deficiencies in the intoxication instructions, I am not persuaded that the impugned passages (set out above at para. 71) undermined the probative value of the evidence of intoxication, or the trial judge’s instructions to consider all of the evidence, including the evidence relating to intoxication. The first passage is taken from R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 37, citing R. v. Bagshaw, 1970 21 (SCC), [1971] S.C.R. 2, at p. 8., and was an instruction consistent with the trial judge’s earlier and standard instructions on inferences and speculation in the context of the assessment of circumstantial evidence. The second passage is based on a similar instruction given at first instance and approved in Daley at paras. 90-92. Both instructions were appropriate, considering the evidence relevant to intoxication, which included the appellant’s accounts of memory lapses and what he described as “blackouts” after consuming alcohol and prescription drugs. Crown counsel requested both instructions, and defence counsel raised no objection, in the course of discussions during the pre-charge conference, and after having reviewed multiple drafts.

[84] In sum, I see no error in the trial judge’s instructions to the jury on the intoxication evidence and its use.

(3) Issue 3: Did the trial judge err by failing to deliver a “rolled-up” instruction?

Positions of the Parties

[85] The appellant submits that the trial judge erred by failing to deliver a “rolled-up” instruction to the jury to consider the cumulative effect of the evidence of the appellant’s intoxication and mental condition on the states of mind in issue. The Crown’s position is that the charge in this case achieved the goal of a “rolled-up” instruction – namely, ensuring that the jury did not take a compartmentalized approach to the evidence. The trial judge repeatedly directed the jury to consider “the evidence as a whole” on the issue of intent, including the appellant’s consumption of alcohol and drugs, and nothing more was required.

The Relevant Principles

[86] A rolled-up instruction reminds the jury that it should consider the cumulative effect of all the evidence relevant to an accused’s state of mind when deciding whether the Crown has proven beyond a reasonable doubt that the accused had the requisite state of mind for murder: R. v. Boukhalfa, 2017 ONCA 660, 350 C.C.C. (3d) 29, at para. 86, leave to appeal refused, [2018] S.C.C.A. No. 50. The purpose of the rolled-up instruction is to instruct the jury not to take a compartmentalized approach to the evidence by considering it only in connection with a discrete defence, justification or excuse: R. v. Phillips, 2017 ONCA 752, 355 C.C.C. (3d) 141, at para. 155. A rolled-up instruction directs the jury that evidence of a defence, justification or excuse is not spent simply because the defence, justification or excuse to which it relates is rejected: R. v. Debassige, 2021 ONCA 484, at para. 80; Srun, at paras. 91, 95. Instead, the jury is reminded to consider the cumulative effect of all the evidence: R. v. Samuels, 2009 ONCA 614, 265 O.A.C. 214, at para. 30; R. v. Cudjoe, 2009 ONCA 543, 251 O.A.C. 163, at para. 104.

Application of the Principles

[87] I would not give effect to this ground of appeal. The trial judge’s instructions clearly conveyed to the jury the need to consider all of the evidence when assessing the appellant’s mental state for murder. The trial judge directed the jury to consider “the evidence as a whole” on the issue of intent, including the appellant’s consumption of alcohol and drugs. He told the jury to take into account “evidence about [the appellant’s] consumption of alcohol and drugs, along with the rest of the evidence that sheds light on his state of mind at the time the offence was allegedly committed”. And, on the issue of planning and deliberation, he instructed the jury to consider “all of the evidence”, such as the appellant’s condition and his state of mind, including any evidence of impairment by his consumption of drugs and alcohol. There was no request for a rolled-up instruction, nor, as I have already noted, for any additional specific instructions on the appellant’s mental health. Based on the evidentiary context of this case, particularly the absence of evidence capable of raising defences such as provocation or self-defence, which do not exclusively relate to the mental or fault element in murder, a formal rolled-up instruction was not mandatory as its purpose could be achieved without it.

(4) Issue 4: Did the trial judge fail to relate the principle of reasonable doubt to potentially exculpatory evidence in the appellant’s statements to police and others?

Positions of the Parties

[88] The appellant submits that this case called out for a modified W.(D.) instruction and that the trial judge erred by failing to provide it. He says that where exculpatory evidence may be found in the Crown’s case, or where the defence evidence contradicts the Crown’s case, it may be necessary to modify the W.(D.) instruction and explain to the jury that favourable evidence, even if not accepted as true, can raise a reasonable doubt so long as it is not rejected as untrue. Although the trial judge instructed the jury to “consider” the appellant’s statements, he did not say that these statements could be the source of a reasonable doubt. The appellant contends that the instruction given by the trial judge was inadequate because it failed to set out the exculpatory evidence in his police statement, in particular that he could not remember what happened in Victoria Park, and it did not communicate to the jury that the appellant’s statements could be the source of reasonable doubt, specifically with respect to intent.

[89] The Crown’s position is that the jury charge clearly directed the jury to consider defence evidence it did not reject as a possible source of reasonable doubt. The trial judge instructed that some or all the things said by the appellant in his police statement, and some of the things the witnesses reported he said, might help him in his defence and were to be considered. The Crown submits that these instructions, given in broad terms, ensured that the jury understood that they could find a reasonable doubt based on the appellant’s statement to police and his statements to various other witnesses.

The Relevant Principles

[90] Where a credibility assessment on a vital issue arises because there is testimony that directly conflicts with evidence relied on by the Crown, a type of W.(D.) instruction may be required. This court stated in R. v. D.(B.), 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 114:

Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if – viewed in the context of all the evidence – the conflicting evidence leaves them in a state of reasonable doubt as to the accused’s guilt: R. v. Challice (1979), 1979 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.). In that event they must acquit.

[91] The Supreme Court has made clear that the application of W.(D.) “should not result in a triumph of form over substance”: R. v. S.(J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13. The real question is whether, in substance, the trial judge presented evidence as an “either/or” choice where jurors are left with the mistaken impression that they must choose between two competing versions of events: R. v. Brown, 2018 ONCA 481, 361 C.C.C. (3d) 510, at para. 69; R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, at para. 19.

Application of the Principles

[92] I would not give effect to the appellant’s W.(D.) argument. The instruction that was given made it clear to the jury that they were to consider evidence about what the appellant said, in his police statement and as recounted by the various witnesses, as evidence that could help him in his defence – whether they believed what he said, or if they could not decide whether to believe what he said. The objective of such an instruction, consistent with R. v. Bucik, 2011 ONCA 546, 274 C.C.C. (3d) 421, at paras. 30-34, is to communicate that evidence may be a source of reasonable doubt, and that this is the case even if it is not believed. The trial judge was explicit on this point.

[93] With respect to the appellant’s police statement, the trial judge gave the following instruction:

Some or all of the things said by Derrick Lawlor in his audio recorded statement may help Derrick Lawlor in his defence. For example, Derrick Lawlor said he was having memory gaps, getting the days wrong and getting information mixed up. He said he purchased four cans of beer, at least two of which he consumed at the same time he took “lots of Clonazepam and Seroquel.” He said that after drinking two beers and taking some Clonazepam, the next thing he remembers is talking to the security guard at the hospital. If you decide Derrick Lawlor 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 Derrick Lawlor’s guilt. It is not necessary for you to believe anything said by Derrick Lawlor to be true before you can consider it in deciding if the Crown has proven the guilt of Derrick Lawlor beyond a reasonable doubt. As long as you do not reject something said by Derrick Lawlor you are entitled to consider that evidence in deciding if there is a reasonable doubt about the guilt of Derrick Lawlor. You may give anything you find Derrick Lawlor said or might have said as much or as little importance as you think it deserves in deciding this case. [Emphasis added.]

[94] With respect to the evidence of the appellant’s statements to various witnesses, the trial judge instructed the jury:

Some of the things which the witnesses reported were said by Derrick Lawlor may help Derrick Lawlor in his defence. Derrick Lawlor told a number of witnesses that he had – that he did not have current thoughts about harming homosexual males. Dr. Al-Battran testified that Derrick Lawlor said he had no current thoughts about harming homosexual males. He said he would not act on those thoughts because he did not want to get into trouble and did not want to go to jail.

You must consider those remarks that may help Derrick Lawlor along with all of the other evidence, even if you do not believe them, unless you are satisfied that he did not make them. In other words, you must consider all the remarks that might help Derrick Lawlor, even if you cannot decide whether he said them or whether you believe them. If you decide that Derrick Lawlor made a remark that may help him in his defence or if you cannot decide whether he made it, you will consider that statement along with the rest of the evidence in deciding whether you have a reasonable doubt about Derrick Lawlor’s guilt.

[95] The trial judge communicated the important message here: that the evidence of what the appellant said could be the source of reasonable doubt even if the jury did not believe what he said. It would have been inappropriate and legally wrong for the trial judge to have gone further and to have instructed the jury that if they believed what the appellant said, they were to acquit. This was not a straight credibility contest on a vital issue. As in R. v. Moffit, 2015 ONCA 412, 326 C.C.C. (3d) 66, at para. 67, it would have been open for the jury to believe the appellant’s statements and nevertheless convict him of murder.

[96] The request for a W.(D.) instruction at trial was made in the context of defence counsel’s concern that the trial judge pointed out evidence that corroborated Mr. Davie’s evidence, after referring to his prior inconsistent statement about whether he thought the appellant was drunk. Defence counsel suggested four alternatives for addressing this: (1) that the trial judge remove the references to the confirmatory evidence from his charge; (2) a Vetrovec instruction for Mr. Davie’s evidence; (3) a W.(D.) instruction in respect of the appellant’s own evidence about the drugs and alcohol he had consumed; or (4) that the trial judge point out evidence that confirmed the appellant’s statements (which, although defence counsel undertook to do so, he did not identify). On the third day of the pre-charge conference, the trial judge went through the changes he had made to the first draft of the charge, provided a brief explanation, and invited further submissions. On this point he indicated that he had added a couple of sentences to the instruction on the appellant’s police statement (the underlined portions in the passage set out in para. 93 above), he confirmed he would not be giving a W.(D.) instruction, and with respect to the fourth alternative defence counsel had proposed, he had not been able to find any portions of the appellant’s statements that were corroborated by other witnesses, although he had pointed out that he was seen in the LCBO, going into the bar, and at a convenience store. Defence counsel did not have any further submissions.

[97] I am satisfied that the trial judge’s instructions fully and properly addressed the concern in respect of which the request for a W.(D.) instruction was made. There was no reason for the trial judge to go further. As the Crown pointed out in response to the W.(D.) instruction request at trial, it would have been legally incorrect to instruct the jury that if they believed the appellant’s statements with respect to alcohol and drug intoxication, he should be acquitted. Similarly, it would have been legally wrong for the trial judge to have given the instruction advanced on appeal – that the appellant was entitled to an acquittal if the jury believed his statement that he could not remember what happened in Victoria Park, at least after Mr. Davie left.

[98] As for the submission that the trial judge should have pointed out the exculpatory parts of the appellant’s statements, he did provide examples to the jury. Counsel did not ask the trial judge to go further, and in the circumstances that made sense. The trial judge took the same approach with respect to both the inculpatory and exculpatory parts of the appellant’s statements to the police and to the witnesses – he referred to them briefly but urged the jury to consider all of the evidence. What was essential here was that the jury understood that the parts of the appellant’s statements that could help him, whether or not they were believed by the jury, were a potential source of reasonable doubt. The trial judge’s instruction effectively communicated this point.

(5) Issue 5: Did the trial judge err in failing to provide a limiting instruction on the permitted use of certain after-the-fact conduct of the appellant?

[99] This ground of appeal focusses on the trial judge’s instruction on the evidence, introduced through Officer Eugene Silva, that the appellant conducted searches on his cell phone between 7:00 a.m. on April 10 and 11:00 p.m. on April 14. Some of the searches led to articles and/or videos about the discovery of Mr. McCreadie’s body. The trial judge’s initial draft jury charge treated this evidence as “after-the-fact conduct”, and contained the following passage:

AFTER-THE-FACT CONDUCT

Evidence about what a person said or did after an event may help you decide if that person thought that what they had done was a crime. We refer to this type of evidence as “after-the-fact conduct”.

What a person said or did after an event occurred is a type of circumstantial evidence. Like any circumstantial evidence, it is for you to say what inference, if any, should be drawn from this evidence.

During this trial you have heard evidence about what Derrick Lawlor did after the death of Mark McCreadie.

As I will explain to you, there is a purpose for which after-the-fact conduct may be used and there is a purpose for which it may not be used.

You have heard evidence about Derrick Lawlor accessing various media websites between April 10 and April 14, 2014, searching for breaking news or reports about the finding of a dead body in Victoria Park.

You may consider this evidence in deciding whether you are satisfied beyond a reasonable doubt that Derrick Lawlor caused the death of Mark McCreadie. You could conclude that searching various media websites for reports about a dead body being found in Victoria Park is consistent with someone who is responsible for causing the death of that person.

However, you may not consider or rely upon this evidence in deciding whether Derrick Lawlor committed murder or manslaughter. This is because the conduct of a person searching media websites for information about a dead body being found in a particular location is equally consistent with that person causing the death intentionally or unintentionally.

[100] The original draft also referred to the evidence of Officer Silva later in the charge, when the trial judge was dealing with the issue of identity, stating as follows:

Eugene Silva, a police officer with the Technological Crimes Unit of the Waterloo Regional Police Service testified about the search of the contents of Derrick Lawlor’s cellular telephone. He testified that there were no telephone calls made or received on Derrick Lawlor’s cellular telephone between 8:52 PM and 11:43 PM on April 9, 2014. He also testified about web searches conducted on Derrick Lawlor’s cell phone commencing on April 10, 2014, at 7:08 AM continuing until April 14, 2014 at 10:42 PM. These web searches were on various news media websites regarding breaking news and the discovery of Mark McCreadie’s body in Victoria Park.

This is some of the evidence you may want to consider in helping you decide if you are satisfied beyond a reasonable doubt that Derrick Lawlor caused the death of Mark McCreadie. There may be other evidence which you think is important in relation to this issue. You are to consider all of the evidence.

[101] At the pre-charge conference, defence counsel took issue with having a stand-alone section in the jury charge on after-the-fact conduct, and the content of the instructions. Counsel addressed this issue on the first and second days of the pre-charge conference. On the first day he submitted that the evidence of the cell phone searches was simply part of the narrative and he argued that this was not after-the-fact conduct “in any way, shape or form” because it did not demonstrate consciousness of guilt: “After the fact conduct that doesn’t bear with it a consciousness of guilt is just simply something someone did at a particular period in time”. The trial judge questioned whether counsel wanted him to remove an instruction about the use of the evidence, that he considered to be “very much a defence instruction”. Although it is not clear from the transcript whether defence counsel disagreed with this being “a defence instruction” or opposed the removal of an instruction about the use of the evidence, defence counsel interjected “No, no” as the trial judge was speaking, and the pre-charge conference ended without a resolution of this issue when defence counsel making submissions on the appellant’s behalf was taken ill.

[102] On the second day of the pre-charge conference defence counsel returned to the issue. He reviewed in detail the timeline of the cell phone searches, he submitted that there was no search for breaking news or a search for reports of finding a dead body in Victoria Park per se on April 10 in the 7:10 a.m. cell phone records, and he asserted that the evidence was not as emphatic as the trial judge had recounted it in the draft charge, where he instructed that the jury could conclude that “searching various media websites for reports about a dead body being found in Victoria Park [was] consistent with someone who is responsible for causing the death of that person”.

[103] Later in the pre-charge conference, while the Crown was making submissions, the trial judge queried whether he should take out the stand-alone section on after-the-fact conduct and leave it as evidence for the jury to consider on whether the Crown had proven that the appellant caused the death of Mr. McCreadie. Crown counsel responded that she had no issue with that, if defence counsel was “concerned that by having its own section it elevates it more than its weight in the case, because it really is only a minor – very minor corroborating role”. She also had no issue if the judge instructed the jury that there might be an innocent explanation or inference to be drawn from the searches.

[104] In his second draft of the jury charge, the trial judge removed the entire section on after-the-fact conduct and modified his discussion of Officer Silva’s evidence to add: “Some of the websites accessed had not previously been accessed by Derrick Lawlor’s cell phone. In cross-examination, Officer Silva said that Derrick Lawlor’s cell phone could have gone to the news websites because the phone had been used to access those sites previously.” There was no instruction on consciousness of guilt or how the evidence could be used on the issue of identification or any caution against using it to determine intent. On the third day of the pre-charge conference, the trial judge reviewed his changes and his thinking, and he invited further submissions. Defence counsel had none.

Positions of the Parties

[105] The appellant acknowledges that the cell phone searches were relied on by the Crown and reviewed in the charge on the issue of identity, however he contends that the trial judge erred in failing to provide a limiting instruction to guard against the impermissible use of this evidence by the jury in determining his level of culpability. The appellant submits that there was a real risk that the jury would reason backwards and leap from this after-the-fact conduct to the conclusion that he was guilty.

[106] The Crown submits that the trial judge’s treatment of the cell phone search evidence ensured that the jury would not have fallen into this impermissible reasoning. The Crown asserts that after-the-fact conduct instructions are case-specific and depend on the significance of the nature of the conduct, the use of the evidence at trial, the instructions, and the positions of the parties as to the adequacy of the instructions. The cell phone search evidence was of minor significance in the context of this case, particularly because, as the trial judge noted, access to the news websites could have been due to previous searches for those sites. The trial judge revised the treatment of the cell phone search evidence to accord with defence submissions. He also instructed the jury about the searches in the context of identity, and defence counsel did not take issue with the revised instructions.

The Relevant Principles

[107] After-the-fact conduct refers to anything done by the accused after the commission of the offence; it may be put to a variety of uses and its utility is not confined to supporting an inference that the accused “had a guilty mind”: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 19, 20. Not all after-the-fact conduct requires a specific instruction or caution: White, at para. 21. As this court noted in R. v. Adamson, 2018 ONCA 678, 364 C.C.C. (3d) 41, at para. 58: “[A]s a general rule, evidence of post-offence conduct is not subject to special admissibility rules. Nor does it require that a trial judge caution the jury about its use in proof of guilt”.

[108] With respect to some types of after-the-fact conduct relied upon by the Crown, a warning is required because jurors may attach more weight to the evidence than is warranted. This is the case where post-offence conduct is introduced for the purpose of establishing an accused’s consciousness of guilt. In such circumstances, a cautionary instruction should be given: White, at paras. 23, 24. Even then, the adequacy of the instructions depends on the circumstances of the case. In R. v. Adan, 2019 ONCA 709, at para. 35, this court confirmed:

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.

Application of the Principles

[109] I would not give effect to this ground of appeal. The trial judge’s removal of a specific charge on the cell phone evidence as after-the-fact conduct was a direct response to the request of defence counsel at trial. Defence counsel was concerned about the jury putting too much emphasis on the cell phone search evidence, which counsel argued strenuously could not support the typical inference from probative after-the-fact conduct that the accused was conscious of guilt. The trial judge acceded to defence counsel’s submission which, although not entirely clear from the transcript, he understood as a request to remove the entire section. The trial judge recognized that the evidence in question was open to interpretation, and he adjusted the brief description of Officer Silva’s evidence accordingly. The reference to the evidence was contained in the section of the charge dealing with the first question for the jury’s determination – whether the appellant had caused Mr. McCreadie’s death. This is how the evidence was treated in the second and third drafts of the charge, without further comment or objection from defence counsel.

[110] The evidence that the appellant’s cell phone went to various news sites, including when he was waiting in the emergency department, was presented as simply one piece of circumstantial evidence on the question of whether the appellant had something to do with Mr. McCreadie’s death. The issue here is whether this treatment was sufficient or, as the appellant now argues, there was a real risk that the jury, without a caution about the limited use of this evidence, might have used this evidence to conclude that he had the intent for murder.

[111] In my view, there was little risk that the jury would have used the cell phone evidence to reason that the appellant had the intent for murder. In his police interview, the appellant stated repeatedly that he was trying to find out what happened the night of April 9 and that he was piecing together what he described as memory fragments. He indicated that he was concerned that he might have gone too far and killed Mr. McCreadie using a scarf for an erotic purpose, the same way that he had used a scarf on Mr. Davie. The evidence that his cell phone went to various news reports on the discovery of a body in Victoria Park was similar evidence that might have supported his statements. In the absence of “consciousness of guilt” wording, there was little risk that the jury would have reasoned that this evidence was relevant to intent, and accordingly there was no need for a caution. As stated in Calnen, at para. 5, this is not a case of non-direction amounting to misdirection.

[112] It is significant that defence counsel, having specifically addressed the instructions on this evidence, did not revisit the issue after receiving two further drafts of the charge. While the responsibility to get the jury charge right ultimately lies with the trial judge, the failure of trial counsel to object to the after-the-fact evidence instruction during a cooperative pre-charge conference can be indicative of the strength of this argument on appeal: see R. v. McCullough, 2021 ONCA 71, 400 C.C.C. (3d) 322, at paras. 59-64. As in Adan, the specific reference in the charge to the after-the-fact evidence in question was adequate and consistent with the “under the radar’ approach trial counsel adopted; nor would a more detailed charge have been helpful to the appellant: at para. 86.

[113] The appellant points to the trial judge’s instruction that, when assessing the appellant’s state of mind at the time of the offence, the jury was to consider his words and conduct “before, at the time and after the unlawful act that caused Mark McCreadie’s death”. As this court noted in Adamson, at para. 68, citing Jaw, at para. 25, this is simply a general guideline that encourages jurors to consider an accused’s actions in their totality and is not an instruction to infer an accused’s state of mind merely from conduct after the incident. I am confident that, as in R. v. Huard, 2013 ONCA 650, 302 C.C.C. (3d) 469, at para. 83, “[n]othing the trial judge said or did not say left or could have left the impression with the jurors that they could use this [after-the-fact evidence] to determine the level of the appellant’s culpability”.

The Curative Proviso

[114] In light of my finding that the trial judge did not err in law in his instructions to the jury, it is unnecessary to consider the Crown’s alternative argument on this appeal, relying on s. 686(1)(b)(iii) of the Criminal Code.

E. DISPOSITION

[115] For these reasons, I would dismiss the appeal.

“K. van Rensburg J.A.”

“I agree. J. George J.A.”

Nordheimer J.A. (dissenting):

[116] I have read the reasons of my colleague. I do not agree with her conclusion that the failures in the trial judge’s instructions to the jury did not undermine the verdict reached. In my view, the trial judge’s errors in two respects, cumulatively if not separately, did not provide the jury with the necessary instructions to render a safe verdict. I would allow the appeal, set aside the conviction, and order a new trial.

[117] My colleague has set out the background facts. It is unnecessary for me to repeat all of them, but it is important to repeat those that go directly to what I say are the two significant errors in the jury instructions.

[118] The two errors that I identify are:

(i) The failure of the trial judge to instruct the jury regarding the relevance and use of the evidence relating to the appellant’s state of mind including both his mental condition and his level of intoxication.

(ii) The failure of the trial judge to provide a limiting instruction on the use that could be made of the appellant’s after-the-fact conduct.

I. MENTAL STATE

[119] There were two central issues to be determined in this trial. One was the identity of the person who killed the victim. The other was the mental intent of the person who caused the death. The evidence of the appellant’s mental state was directly relevant to the latter and yet the trial judge failed to mention this evidence in his instructions to the jury on the element of intent.

[120] The appellant had been under psychiatric care for at least 12 years. He had a mental health support worker at the time, who gave evidence at the trial. She said that just over five weeks before the homicide, the appellant attempted suicide, by taking an overdose of psychiatric medication combined with alcohol. He was treated in the intensive care unit of a hospital and then remained in hospital for six days.

[121] The hospital psychiatrist, who assessed the appellant, did not believe that the appellant required admission to the psychiatric ward. He recommended that the appellant continue his treatment with his existing out-patient psychiatrist. The appellant was also prescribed certain medication.

[122] Before the appellant left the hospital, however, he said something to a social worker that prompted the hospital psychiatrist to revisit the appellant. In this meeting, the appellant admitted having past thoughts of harming homosexual men with knives, but the appellant told the psychiatrist that he had no plans to act on such thoughts.

[123] Additional information, on this point, came from a friend of the appellant who gave evidence that, in mid-March 2014, about a month before the homicide, the appellant was very distressed and upset. He needed a lot of support. The appellant told his friend that he had been sexually assaulted the year before and was having a difficult time coping with it. The friend also said that, on April 4, 2014, five days before the homicide, the appellant was upset and very agitated. The appellant told his friend that he had considered strangling one of the men he had had a sexual encounter with, in the same park where the homicide occurred, but had changed his mind.

[124] On April 9, 2014, the day of the homicide, the appellant met with his mental health support worker. The appellant was very upset. He had discovered that he was going to lose his job and with it, his health insurance, which covered the costs of his mental health treatments. The appellant told the worker that he was feeling suicidal.

[125] The following events then occur later on April 9, 2014:

(i) At around 5:30 p.m., the appellant bought some beer.

(ii) At 8:52 p.m., he called his real estate agent and said he might have to sell his house because he had lost his job. The real estate agent said that the appellant sounded “stressed”.

(iii) At 11:24 p.m., the appellant went to a bar.

(iv) At 1:21 a.m. (April 10, 2014), the appellant was in a 7-Eleven convenience store. Security surveillance video shows the appellant unsteady on his feet.

(v) At 2:15 a.m., the appellant walked into the emergency room at a hospital and said he had overdosed on his medications. He told a nurse that he had taken a number of pills and that he was “a mess”.

[126] The hospital psychiatrist (the same psychiatrist who had seen the appellant in mid-March) thought that the appellant should be admitted to hospital. However, once the appellant learned of the proposed treatment plan, he left the hospital against medical advice.

[127] I have repeated this evidence because it demonstrates that there were serious issues with the mental state of the appellant before, and around, the time of the homicide. Yet none of this evidence was mentioned by the trial judge in relation to the state of the appellant’s mental health when he came to instruct the jury on the element of intent. Indeed, the only evidence that the trial judge mentioned on that element was the appellant’s consumption of alcohol and prescription medication. On that point, the trial judge said simply:

To decide whether the Crown has proven beyond a reasonable doubt that Derrick Lawlor had one of the intents for murder, you should take into account the evidence about his consumption of alcohol and drugs, along with the rest of the evidence that sheds light on his state of mind at the time the offence was allegedly committed.

[128] As I have said, the trial judge does not mention any of the considerable evidence that was before the jury regarding the appellant’s mental health, and the perilous state it was in at the time of the homicide. He did not do so notwithstanding that this evidence was of more significance to the issue of intent than was the evidence about the appellant’s alcohol consumption. And intent was a critical issue in this case. Mental health evidence is important to the issue of intent for the reasons enunciated by Trotter J.A. in R. v. Spence, 2017 ONCA 619, 353 C.C.C. (3d) 446, at para. 49:

[E]vidence of mental illness is capable of undermining the mental element for murder in s. 229(a) (thereby reducing liability from second degree murder to manslaughter). It may also undermine the added mental elements of planning and deliberation in s. 231(2): see More v. The Queen, 1963 79 (SCC), [1963] S.C.R. 522, at pp. 533-535; and McMartin v. The Queen, 1964 43 (SCC), [1964] S.C.R. 484, at pp. 493-495.

[129] In my view, it is not sufficient, in response to this concern, to say that the mental health evidence was before the jury and that they would have considered it. There is no reason to assume that would have happened. The jury was told to follow the trial judge’s instructions on the law, as every jury is. When a trial judge does not mention a body of evidence, when relating other evidence on an issue as important as one of the elements of the offence, there is every prospect that a jury would conclude that the mental health evidence was not relevant to that issue. After all, the jury would rationalize that, if that evidence had been of importance to the issue, the trial judge would have mentioned it, as he did other evidence. Further, the catch-all boilerplate statement that the jury should take into account “the rest of the evidence that sheds light on his state of mind at the time” is insufficient to override that logical conclusion or to bring the importance of this evidence to the jury’s attention in their consideration of this element of the offence.

[130] The failure of the trial judge to relate this evidence to the element of intent was an error. It is contrary to the advice given by Moldaver J. in R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438. While my colleague cites the decision in her reasons, she fails to emphasize the central point that Moldaver J. made when he said, at para. 65:

In the end, what is critical is that the jury be made to understand, in clear terms, that in assessing the specific intent required for murder, it should consider the whole of the evidence that could realistically bear on the accused's mental state at the time of the alleged offence. The trial judge should alert the jury to the pertinent evidence. How detailed that recitation should be will generally be a matter for the trial judge, in the exercise of his or her discretion. [Emphasis added].

[131] Whatever may be the parameters of the trial judge’s discretion regarding the details of the evidence to be provided, they do not extend to not mentioning the evidence at all.

[132] The failure of the trial judge to relate this evidence to the element of intent meant that the jury was not properly equipped to consider that element and whether it constituted the unlawful act of manslaughter or murder. It is also a factor that would have gone to the jury’s consideration of whether, if they concluded it was murder, the murder was a planned and deliberate one. The trial judge does not mention this evidence in his instructions on that element of the offence either.

[133] In fact, the trial judge made very little reference to any of the evidence in his instruction on the element of planned and deliberate. The one piece of evidence that he did mention was the appellant’s various statements about his animosity towards promiscuous homosexual males. However, in referring to that evidence, the trial judge failed to refer to the evidence that the appellant had not acted on that animosity and had said that he had no plans to do so. The trial judge also failed, in relation to the element of planned and deliberate, to mention the evidence of the forensic pathologist that accidental death during erotic asphyxiation would be a plausible explanation for the death of the victim.

[134] My colleague attempts to avoid the effect of these missing elements in the jury instructions in a number of ways. First, she downplays the mental health evidence by characterizing it as “limited”. I do not know of any principle that excuses a trial judge from mentioning evidence that is relevant to an element of the offence charged just because the evidence is not as strong as it might have been. As my colleague acknowledges, there is no requirement for an expert opinion on this issue: Spence, at para. 45; R. v. Reeves, 2017 BCCA 97, 352 C.C.C. (3d) 66, at para. 17. The jury had heard from a number of witnesses who had direct knowledge of the appellant’s mental health challenges, including from a hospital psychiatrist. It was important evidence that should have been expressly drawn to the jury’s attention.

[135] Second, my colleague suggests that defence counsel made “a considered and deliberate decision” not to seek a specific charge on the appellant’s mental health. With respect, there is no evidentiary foundation for reaching such a conclusion. Indeed, such a conclusion runs in stark contrast to the efforts that defence counsel made in his closing submissions to alert the jury to the importance of the mental health evidence. Indeed, my colleague uses those various references to the evidence by defence counsel as yet another basis to dismiss the failings in the jury instructions. It seems to me that there is a marked inconsistency between my colleague’s use of those two points.

[136] In any event, the failure of defence counsel to seek a specific instruction is not fatal to this ground of appeal given its importance, both to the issue of intent and the issue of planning and deliberation. As Doherty J.A. said in R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, at para. 97, leave to appeal to S.C.C. refused, 32050 (September 6, 2007):

There was no objection by counsel for the appellant at trial. The failure to object can inform this court's assessment of the adequacy of a trial judge's instruction, especially where the appellant relies on non-direction. However, as I am satisfied that it was essential to a fair trial that the trial judge relate the evidence to the issue of planning and deliberation, counsel's failure to object is no answer to this ground of appeal.

II. THE MISSING AFTER-THE-FACT CONDUCT INSTRUCTION

[137] As part of its case, Crown counsel relied on the fact that the appellant had conducted internet searches on local news about the homicide. This issue came up at the pre-charge conference. In the first draft of the instructions, the trial judge had included a specific instruction on post-offence conduct, otherwise known as after-the-fact conduct. It read, in part:

You could conclude that searching various media websites for reports about a dead body being found in Victoria Park is consistent with someone who is responsible for causing the death of that person.

[138] This is precisely the type of misuse of after-the-fact conduct that makes the evidence so dangerous. I would be surprised if anyone who was in Victoria Park on the evening in question, and who then found out that someone had been killed in the park, would not have conducted media searches to find out what had happened. There is simply no basis for concluding that conducting media searches in such circumstances amounts, in some fashion, to consciousness of guilt. It is therefore of no surprise that defence counsel asked that the instruction be removed.

[139] Ultimately the trial judge gave the instruction to which my colleague makes reference. In my view, that instruction was completely inadequate to inform the jury with respect to the use to which they could put evidence of after-the-fact conduct and the dangers associated with it. The risks of the misuse of such evidence by a jury are well-known. As Rothstein J. said in R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 23:

That being said, though the use of such evidence has an extensive history in our criminal jurisprudence, it has also long been recognized that the introduction of post-offence conduct for the purpose of establishing the accused's "consciousness of guilt" carries with it a substantial risk of jury error (Gudmondson v. The King (1933), 1933 415 (SCC), 60 C.C.C. 332 (S.C.C.)). Jurors may be tempted to "jump too quickly from evidence of post-offence conduct to an inference of guilt" (White (1998), at para. 57) without giving proper consideration to alternate explanations for the conduct in question. [Emphasis added].

[140] The way to address this risk is, of course, through a proper cautionary instruction. This point was made by Major J. in R. v. White, 1998 789 (SCC), [1998] 2 S.C.R. 72, at para. 57 where he said:

As previously noted, there is a risk that juries might jump too quickly from evidence of post-offence conduct to an inference of guilt. However, the best way for a trial judge to address that danger is simply to make sure that the jury are aware of any other explanations for the accused's actions, and that they know they should reserve their final judgment about the meaning of the accused's conduct until all the evidence has been considered in the normal course of their deliberations. [Emphasis added].

[141] In R. v. Hall, 2010 ONCA 724, 263 C.C.C. (3d) 5, leave to appeal refused [2010] S.C.C.A. No. 499, this court once again stressed that the “trial judge must provide a clear cautionary instruction to the jury against drawing incriminating inferences from post-offence conduct without considering alternate explanations” (emphasis added): at para. 136.

[142] The trial judge did not give any such cautionary instruction in this case even though, as my colleague notes, Crown counsel had said that she had no problem with the trial judge instructing the jury that there might be innocent explanations or inferences to be drawn from the searches. Despite that invitation, the trial judge did not make the jury aware of such explanations for the appellant’s actions. The appellant admits that he was in the park on the night in question. As I have already said, it would not be surprising that any person who was in a park at a time when a person was killed would then look for news reports about the killing. It is also of some moment, on this point, that the evidence relating to the internet searches showed that there were no specific articles accessed about the death before April 11, 2014, a full day after the discovery of the body, on which the media had already begun reporting. Rather than drawing any of this to the jury’s attention, the trial judge only emphasized the inculpatory inferences that could be drawn.

[143] There was an entirely innocent explanation for the internet searches. But the trial judge did not draw that explanation to the attention of the jury, as a concrete way of explaining the risks of using such evidence to jump to a conclusion of guilt. The trial judge’s instructions did not therefore fulfill their necessary function. They did not properly equip the jury to understand how they should approach this evidence in deciding the case. Rather, the instructions opened the door to the substantial risk of jury error to which Rothstein J. referred in White (2011).

[144] I would add, on this point, that it is not an answer to this concern to say that this evidence “was of relatively minor significance in the context of the case as a whole” as the respondent’s counsel does in her factum. None of us are in a position to know what the jury thought was significant when it comes to their consideration of the evidence, nor is it appropriate to attempt to excuse a failure in the jury instructions on that speculative basis.

[145] The appellant was convicted of the most serious offence known to our criminal law. Before that happened, he was entitled to have the decision made by a jury that was suitably equipped to consider the evidence and evaluate its impact. While the appellant may not have been entitled to a perfectly instructed jury, he was entitled to a properly instructed jury: R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314, at para. 2. The appellant did not receive that basic entitlement. The jury’s verdict is unsafe because of the failure of the trial judge to correctly instruct them on these two issues.

III. THE PROVISO

[146] In light of my conclusion, I must address the respondent’s reliance on the proviso contained in s. 686(1)(b)(iii) of the Criminal Code, if an error is found.

[147] This is not a case for the application of the proviso. The errors in the jury instructions are neither harmless nor trivial, nor is the evidence on intent so overwhelming that the trier of fact would inevitably have convicted the appellant of first-degree murder: R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 53.

IV. CONCLUSION

[148] I would allow the appeal, set aside the conviction, and order a new trial on the charge of first-degree murder.

Released: September 15, 2022 “K.M.v.R”

“I.V.B. Nordheimer J.A.”