Court of Appeal for Ontario

Date: 2022-10-05 Docket: C66027

Judges: MacPherson, Paciocco and Thorburn JJ.A.

Between: His Majesty the King, Respondent and William Joles, Appellant

Counsel: Lance Beechener, for the appellant Catherine Weiler, for the respondent

Heard: September 26, 2022

On appeal from the conviction entered on May 17, 2018 by Justice Jonathon C. George of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

Overview

[1] William Joles appeals his second-degree murder conviction, arguing that the trial judge erred in failing to give a limiting instruction on the use of bad character evidence, and by failing to provide guidance to the jury on the inferences it could permissibly draw from after-the-fact conduct evidence. For the reasons that follow, we would dismiss the appeal.

Facts and Issues

[2] Mr. Joles was convicted of second-degree murder in the August 28, 2016 beating death of his friend, Nathan Deslippe. Mr. Joles acknowledged that he unlawfully administered the savage and obviously protracted beating that left Mr. Deslippe with numerous and varied injuries to his body, neck, and head that took his life. The only live issue at trial was whether Mr. Joles intended to kill Mr. Deslippe.

[3] The Crown relied heavily on the number and nature of the injuries as strong evidence of Mr. Joles’ intention. The Crown also relied upon Mr. Joles’ conduct after he administered the beating, including that Mr. Joles: (1) did not summon help for Mr. Deslippe but instead dragged Mr. Deslippe into the bathtub and made efforts to clean the crime scene and the body; (2) took a full-length “selfie” of his naked body covered in Mr. Deslippe’s blood; (3) called his friend, Ashley Charters, to the crime scene, taking her phone before coercing her into attempting to clean up the blood by threatening her and strangling her into unconsciousness, and then touching her sexually and seeking sex from her because he would be “going away for a long time”; (4) made statements to Ms. Charters about why he had killed Mr. Deslippe; and (5) attempted to flee his apartment with a duffle bag of clothing and toiletries, while carrying his passport and car keys.

[4] Mr. Joles testified in his defence and denied that he intended to kill Mr. Deslippe. He testified about his intoxicated condition and offered this as an explanation for how he could have committed such a brutal beating without having the specific intent to cause Mr. Deslippe’s death. He also offered explanations for his after-the-fact conduct and argued that much of it demonstrates confused and bizarre behaviour consistent with his intoxicated thinking at the time of the killing.

[5] After conceding that the after-the-fact conduct evidence was probative evidence on the issue of intention that had been properly admitted at trial, Mr. Joles pursued two grounds of appeal before us: (1) the limiting direction error; and (2) the failure to describe permissible inferences arising from the after‑the‑fact conduct evidence. As the following analysis shows, there is overlap in the grounds of appeal.

Did the Trial Judge Err by Failing to Provide a Limiting Instruction?

[6] Mr. Joles argues that the after-the-fact conduct evidence led by the Crown was horrific evidence of his bad character that cried out for a limiting instruction directing jurors that they are not to use this evidence to infer that Mr. Joles is the sort of person likely to intentionally kill Mr. Deslippe. He submits that the trial judge erred by failing to provide such direction. We do not accept that, in the circumstances of this case, the trial judge committed a reversible error by not providing a limiting direction.

[7] As Doherty J.A. explained in R. v. Chamot, 2012 ONCA 903, 296 C.C.C. (3d) 91, at para. 62, “[t]he jurisprudence is clear that when there is a real risk that evidence properly admitted for one purpose could be used by the jury for an improper purpose, the trial judge must caution against that misuse of the evidence” (emphasis added; citations omitted). We are not satisfied that there was a real risk that the jury could use this evidence for an improper purpose, notwithstanding Mr. Joles’ unquestionably morally reprehensible after-the-fact conduct.

[8] First, Mr. Joles’ admitted crime was also reprehensible. He acknowledged repeatedly pounding his best friend in a bloody and sustained assault until he was so badly injured that he died. Mr. Joles testified that by the end of the attack there was so much blood that he knew Mr. Deslippe was done. The horror of the crime admitted to by Mr. Joles does not eliminate, but does reduce, the risk that the jury would rely upon other discreditable conduct to conclude that he is the kind of person who could intend to kill or that he deserves to be punished for the offence charged, whether he committed it or not.

[9] Second, and more importantly, the permissible inferences that the after‑the‑fact conduct evidence was presented to support were obvious, leaving little room for confusion on the part of jurors about the reasoning process that they should employ. There was only one live issue in the case – intention. The jury clearly understood from the context and the jury charge that the discreditable after‑the‑fact conduct evidence was to be considered solely on that issue. Immediately before the jury charge, the jury had just heard clear submissions from both counsel describing the permissible lines of reasoning through which this evidence bore on the issue of intention, and neither the Crown nor the trial judge suggested any impermissible inferences. The permissible inferences that were invited were logical and easily understood. There was nothing subtle, for example, in the Crown position that Mr. Joles’ after-the-fact conduct demonstrated his sober appreciation of what he had done and showed his ability to plan and choose his conduct. And there was nothing elusive in Mr. Joles’ submissions that much of this after-the-fact conduct showed him to be behaving bizarrely and without organization and that this behaviour may demonstrate the impact that intoxication had on his thinking. In the circumstances, the prospect that the jury may have overlooked and supplanted these permissible and patently available inferences with blunt prohibited inferences about general character and deserved punishment is greatly reduced.

[10] Third, and relatedly, this is not a case where the Crown offered evidence of discreditable conduct by Mr. Joles on other occasions (“extrinsic misconduct evidence”). The after-the-fact conduct evidence admitted in this case arose from the same event as the offence charged. To be sure, general bad character propensity reasoning is impermissible even where the misconduct is embedded in the narrative surrounding the offence charged, but the risk of general bad character inferences is apt to be far greater where the Crown leads evidence of the accused’s behaviour on other occasions than it is where such evidence unfolds as part of the story itself. Put simply, jurors are more likely to struggle to understand why extrinsic misconduct evidence is being presented and to thereby engage in prohibited lines of reasoning, than they are where the behaviour of the accused is linked to the charged event and where the permissible lines of reasoning are as evident as they were in this case.

[11] In the circumstances, there was no real risk that the jurors in this case would resort to impermissible reasoning. The trial judge was not therefore obliged to give a limiting instruction.

Did the Trial Judge Err by Failing to Describe the Permissible Inferences Arising from the After-the-Fact Conduct Evidence?

[12] Mr. Joles claims that the trial judge erred by failing to describe the permissible inferences arising from the after-the-fact conduct evidence. He submits that the trial judge was required to give a more tailored direction, giving the jury guidance on the reasoning process they could employ. We find no error in this regard, for the following reasons.

[13] First, the charge was balanced and fair. This is not a case where the trial judge explained the Crown’s relevance theory in depth but gave less attention to Mr. Joles’ relevance theory. Both parties relied upon the after-the-fact evidence as relevant to intention, and the trial judge invited the jury to consider it on that issue.

[14] Second, as we have explained, the reasoning process arising from the after‑the‑fact conduct evidence was logical, obvious, and was unfolded by counsel immediately before the jury charge in this one-issue case. We are satisfied that the jury would have had a functional understanding of the use it could make of this evidence without further guidance by the trial judge.

[15] Third, Mr. Joles’ trial counsel did not object to this aspect of the charge. In the circumstances of this case, it can fairly be inferred that the experienced defence counsel did not object and ask for further guidance because he did not consider further guidance to be necessary. Indeed, given the relative strength of the respective inferences, there is reason to believe that the failure to object to the generality of the charge reflected tactical recognition by Mr. Joles’ trial counsel that his case could be harmed should the judge repeat the Crown submissions on why this evidence was consistent with an intention to kill.

[16] We therefore dismiss this ground of appeal as well.

Conclusion

[17] The appeal is dismissed.

“J.C. MacPherson J.A.”

“David M. Paciocco J.A.”

“J.A. Thorburn J.A.”