COURT OF APPEAL FOR ONTARIO DATE: 20230915 DOCKET: C67114

Doherty, Gillese and Zarnett JJ.A.

BETWEEN

His Majesty the King Respondent

and

Brandon Ethier Appellant

Counsel: Richard Litkowski, for the appellant Alexander Alvaro, for the respondent

Heard: May 18, 2023

On appeal from the conviction entered on June 15, 2018 and the sentence imposed on June 22, 2018 by Justice Kevin B. Phillips of the Superior Court of Justice, sitting with a jury.

Zarnett J.A.:

A. Introduction

[1] The appellant stabbed his roommate, Joshua Briere, during an altercation at a party they were hosting for a friend. One of the stab wounds travelled upwards through the victim’s lower rib cage, incising his liver and piercing his heart, causing his death.

[2] The appellant was tried on a charge of second-degree murder. The appellant’s position was that he caused the victim’s death in circumstances that constituted manslaughter, not murder. Thus the central issue at trial was whether the appellant had the requisite mens rea for murder because he either intended to kill the victim or to cause him bodily harm that he knew was likely to cause death and was reckless as to whether death would ensue.

[3] The jury convicted the appellant of second-degree murder. The trial judge sentenced him to life imprisonment with a term of parole ineligibility of 11 years. The appellant appeals both his conviction and sentence.

[4] On his conviction appeal, the appellant argues that the trial judge’s charge to the jury contained four legal errors: (a) the rolled-up instruction failed to adequately explain all the relevant factors for assessing whether the appellant had the state of mind for murder, which went beyond his consumption of alcohol and drugs, and included anger, fear, excitement and the quick nature of the event; (b) the trial judge’s treatment of the appellant’s evidence rendered the charge imbalanced; (c) the charge would have confused the jury by suggesting the appellant relied on a defence of “accident”; and, (d) the charge failed to properly instruct the jury on the use it could make of the evidence of the appellant’s post-offence (after-the-fact) conduct.

[5] On his sentence appeal, the appellant contends that the trial judge erred in principle by imposing a parole ineligibility period of more than the statutory minimum of ten years.

[6] For the reasons that follow, I would allow the conviction appeal, set aside the conviction, and order a new trial. While I reject the appellant’s first three grounds of appeal, I agree with the appellant that the trial judge erred by failing to provide a proper instruction concerning the use of after-the-fact conduct evidence.

[7] In light of this disposition, it is unnecessary to address the sentence appeal.

B. The Factual Context

(1) Events Preceding the Stabbing

[8] On October 21, 2016, the appellant and the victim hosted a birthday party for a mutual friend, Daulton Boudreault, at the Ottawa apartment the victim and the appellant shared. Mr. Boudreault arrived mid-afternoon with a 40-ounce bottle of vodka. The three men spent the afternoon drinking and talking. The appellant testified that he used cocaine during this time. Cannabis was also consumed over the course of the evening.

[9] In the early evening, the victim’s girlfriend, Brittany Old, and his brother, Joel Briere, joined the party. The appellant testified that, by this time, he had consumed half of the 40-ounce bottle of vodka in addition to drinking beer. Around 8 p.m., Joel Briere recorded videos showing the appellant, the victim, and Mr. Boudreault rapping freestyle.

[10] Around this time, the appellant and the victim had an altercation. The appellant had started to give Mr. Boudreault “birthday beats”, which involved punches to the arm. As the appellant became rough with Mr. Boudreault, the victim tried to break them apart. Joel Briere testified that during this intervention the appellant clipped the victim with his ring, causing him to bleed. The two became angry at each other and exchanged words. According to Ms. Old and Joel Briere, the victim grabbed the appellant and pushed him into the wall, creating a large hole.

[11] Following this altercation, the appellant and the victim reconciled. They apologized to one another, each saying “I love you, bro” in the process. The party continued. Three other friends, Andrew Cook, Ryan Pilon, and Kyle Pilon, joined the party around midnight, according to Mr. Boudreault’s testimony. The appellant testified that, at this time, “everybody” was using cocaine.

(2) The Stabbing

[12] Shortly before 3:00 a.m. on October 22, 2016, the victim and the appellant had a second altercation. By this time, Mr. Cook and the Pilons had left the party.

[13] According to Mr. Boudreault, the second altercation between the appellant and the victim began with an argument over money. The argument became heated. The victim pushed the appellant off a chair and into the wall, leading the appellant to strike the victim in the head with a bottle. After exchanging words, the appellant went to his bedroom. Shortly after, the appellant returned. He approached the victim and stabbed him.

[14] Joel Briere offered a different version, in part. He testified that, prior to the stabbing, there was physical contact between the appellant and the victim, but the appellant was not pushed into the wall again. This contact re-opened the cut on the victim’s head earlier caused by the appellant’s ring. After an exchange of words, the appellant briefly went to his bedroom before returning. Joel Briere testified that the appellant “walked straight up to [the victim]” and stabbed him. He also noted that the victim did not threaten the appellant prior to the stabbing.

[15] The appellant agreed that he and the victim had a second confrontation, with yelling back and forth. He denied striking the victim with a bottle. He testified that he went to his bedroom to cool off and while there he and the victim continued to yell “Fuck you” and “I’m gonna fuck you up” back and forth. This prompted the appellant to pick up a knife that had been lying on his night table that had been used to do lines of cocaine. He stated, “I grabbed the knife to protect myself” to “threaten him with it, to scare him off, to leave me alone.” He testified he intended to cut the victim, but not to kill him. When he approached the victim, the appellant saw him raise his fists. The appellant testified that he initially cut the victim on the arm. The two then grabbed each other, which then led to the victim punching the appellant’s head. The appellant stated that, at one point when he was on his knee, the victim moved toward him, and he responded by reaching up with the knife. This resulted in the victim being stabbed in the chest. He testified that he did not want to kill the victim.

(3) Events Following the Stabbing

[16] Joel Briere testified that, following the stabbing, he punched the appellant and then brought the victim to the door to get assistance. Once outside, the victim collapsed, and Joel Briere called 911. The time was 2:56 a.m.

[17] Ms. Old testified that she did not see the stabbing or a weapon, but she eventually saw blood on the floor. She indicated that the appellant was angry during this time and said “I didn’t wanna hurt your man, but do you see what happens?” She then ran outside where she saw the victim on the ground.

[18] Mr. Boudreault testified that he fled the scene, scared the appellant would hurt him next. During the 911 call Joel Briere stated that he saw Mr. Bouldreault leave the residence with the appellant following him and heard the appellant say, something like “Cops are here, like, I gotta, I gotta dip, like, I gotta leave”.

[19] When a police officer arrived at the scene, the victim was bleeding heavily and soon thereafter lost consciousness.

[20] Surveillance footage showed the appellant attended several locations after the stabbing. It captured him at a Quickie store at 4:12 a.m., roughly five kilometres from his apartment. After purchasing cigarettes and gum, the appellant made a telephone call from a pay phone outside the store. Shortly thereafter, a vehicle owned by Brennon Clowater arrived and the appellant entered the vehicle at 4:19 a.m.

[21] Surveillance video showed the appellant entering the building where Mr. Clowater lived at 4:30 a.m., and the two men exiting the building at 5:02 a.m., with the appellant wearing a different shirt. The two men returned at 5:27 a.m. Mr. Clowater subsequently called 911 to report that the appellant had overdosed.

[22] The appellant testified that, before he left the apartment where the stabbing occurred, he went to his bedroom to grab a sweater. He tried to approach Mr. Bouldreault to find out “what the hell just went down”. When he saw the victim outside, he panicked and jogged down the street.

[23] The appellant testified that he fled the scene through a path and discarded the knife over a fence. He took a taxi to a friend’s house, but his friend refused to let him in. He then called Mr. Clowater with his friend’s phone and arranged to be picked up at the Quickie store. He changed his shirt at Mr. Clowater’s apartment because there was blood all over it. The two then left to get fentanyl, and the appellant said he attempted suicide by overdose.

[24] Mr. Clowater testified that the appellant seemed depressed but did not say anything about being suicidal. After using the fentanyl, they both passed out in his apartment. When Mr. Clowater awoke, he could not awaken the appellant, so he called 911.

(4) Expert Evidence

[25] The Crown called Dr. Christopher Milroy as an expert in forensic pathology and toxicology. He conducted the autopsy on the victim. He testified that the victim suffered a stab wound to the lower chest, incising the liver and heart, causing his death. A second stab wound in the left upper arm passed into the chest but did not damage the lung. In addition to these stab wounds, there was a wound on his forehead and left wrist. The victim’s blood contained evidence of alcohol, cocaine, and cannabis use.

[26] Dr. Karen Woodall was called by the defence as an expert in forensic toxicology. She testified that the effects of alcohol will be dependent on one’s tolerance. She also noted that high levels of alcohol consumption generally impact an individual’s reaction time and decision-making ability.

C. Analysis

[27] The appellant’s conviction appeal rests on four alleged errors in the trial judge’s jury charge.

[28] Appellate courts take a functional approach when reviewing a jury charge for legal error. An accused is entitled to a jury that is properly, not perfectly, instructed. The overriding question is whether the jury was properly equipped to decide the case according to the law and the evidence − a properly equipped jury being one that is both accurately and sufficiently instructed. Any alleged errors will be considered within the context of the entire charge and the trial as a whole: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 34-37; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 8-9; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32.

[29] As I will explain, while I reject the appellant’s first three grounds of appeal, I accept the appellant’s submission that the trial judge erred in failing to provide a proper instruction on the use of the after-the-fact conduct evidence. On the issue of the use that could be made of the after-the-fact conduct evidence, the jury was not accurately nor sufficiently instructed.

(1) Rolled Up Instruction Ground of Appeal

[30] A rolled-up instruction informs 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 mens rea 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. A core purpose of this instruction is to ensure the jury does not compartmentalize the evidence, considering it only in connection with a discrete defence, justification, or excuse: R. v. Cudjoe, 2009 ONCA 543, 251 O.A.C. 163, at para. 104. Such an instruction mitigates the risk that, if the jury rejects a particular defence, justification, or excuse, they will not consider whether the evidence pertaining to it, taken cumulatively with all the evidence, raises a reasonable doubt when deciding whether the accused had the mens rea for murder: R. v. Robinson, [1996] 1 S.C.R. 683, at para. 59; R. v. Fraser (2001), 56 O.R. (3d) 161 (C.A.), at paras. 25-26, leave to appeal refused, [2002] S.C.C.A No. 11.

[31] A rolled-up instruction is increasingly understood to be mandatory in most murder trials, but ultimately its necessity is contingent on the nature of the evidence: R. v. Srun, 2019 ONCA 453, 146 O.R. (3d) 307, at para. 96. The instruction should generally have the following features: (i) the identification of the relevant factors; (ii) a description of the relevant evidence; and, (iii) a direction to consider the cumulative effect of the evidence on the accused’s state of mind without regard to any decision about any other issue to which the evidence may also be relevant: R. v. Flores, 2011 ONCA 155, 274 O.A.C. 314, at para. 157. As with most jury instructions, substance prevails over form.

[32] The trial judge here gave the following rolled-up instruction:

You should consider the cumulative effect of all the evidence. Again, at the risk of being unduly repetitive, I instruct you that, to decide whether Crown counsel has proven beyond a reasonable doubt that [the appellant] meant either to kill Joshua Briere, or meant to cause Joshua Briere bodily harm that [the appellant] knew was likely to kill Joshua Briere and was reckless whether Joshua Briere died or not, you must consider all the evidence.

Even if you are satisfied beyond a reasonable doubt that when he caused Joshua Briere's death, [the appellant] was not intoxicated, in deciding whether [the appellant] had either state of mind required to make the unlawful killing of Joshua Briere murder, you must consider the evidence of [the appellant]'s emotional state, including any evidence of extreme anger.

You should consider any such evidence, not just by itself on the particular issue to which it relates, but all together, and along with any other evidence that might suggest that [the appellant] acted instinctively, in the sudden excitement of the moment, without thinking about the consequences of what he did, and without either state of mind necessary to make the unlawful killing of Joshua Briere murder.

This evidence does not necessarily mean that [the appellant] did not have either state of mind necessary to make the unlawful killing of Joshua Briere murder. The fact that [the appellant] may have been angry is not necessarily inconsistent with either state of mind required to make an unlawful killing murder. As a matter of fact, evidence of the state of anger, may actually give rise to one of the states of mind required to make an unlawful killing murder.

Take the subject of anger, even intense anger. Feeling angry at someone, or about something someone said or did, may cause a person to have one of the states of mind necessary for murder. As a result, [the appellant]’s anger, on its own, is not enough to reduce murder to manslaughter. On the other hand, when considered in combination with the evidence of the effects of the drugs and alcohol, evidence of anger may contribute to the raising of a reasonable doubt whether, when he unlawfully killed Joshua Briere, [the appellant] had either state of mind required for murder. It is for you to say. Use your good common sense.

You must consider the effect of all this evidence, the sum total of it, along with any other evidence that seems or tends to show [the appellant]’s state of mind when you are deciding whether Crown counsel has proven beyond a reasonable doubt that [the appellant]’s unlawful killing of Joshua Briere was murder.

[33] The appellant argues that a proper rolled-up instruction would have identified all of the factors that had an impact on his state of mind, including consumption of alcohol and drugs, anger, fear, excitement, and the quick nature of the event, and instructed the jury to consider the cumulative effect of them. He argues that the trial judge’s rolled-up instruction was deficient as it unduly focused on the appellant’s anger, appears to instruct the jury that evidence of intoxication ceased to be relevant if on its own it did not negate the mens rea for murder, and insufficiently conveyed the other factors that were relevant to assessing the appellant’s state of mind. Specifically, the appellant points to the absence of an explicit reference to his evidence about being fearful of the victim.

[34] I do not accept this submission.

[35] First, I disagree that the trial judge invited the jury not to consider the evidence of intoxication if they did not find that it, standing on its own, was sufficient to deprive the appellant of the necessary mens rea. The trial judge’s instruction repeatedly told the jury that they must consider all the evidence on the state of mind issue. The rolled-up instruction began by emphasizing the need for the jury to consider the “cumulative effect of all the evidence” when assessing the appellant’s state of mind. It specifically told the jury that any evidence should be considered “not just by itself on the particular issue to which it relates, but all together, and along with any other evidence that might suggest…that [the appellant] acted…without either state of mind necessary to make the unlawful killing of [the victim] murder”.

[36] Nor do I agree that the trial judge’s references to anger negated the other factors the jury was to consider. The Crown’s theory of the case emphasized the appellant’s anger, and the appellant concedes it was a factor for the jury to consider. The trial judge was required to help the jury understand the relevance of anger within the various perspectives put forward by the parties. Moreover, along with the specific references that were made in the rolled-up instruction to the evidence about the appellant’s extreme anger, there were also references to his consumption of alcohol and drugs, as well as references to the evidence that may have suggested the appellant “acted instinctively, in the sudden excitement of the moment”, and the evidence that he acted “without thinking about the consequences of what he did”. The trial judge further noted that the jury should consider this evidence “along with any other evidence that seems or tends to show [the appellant’s] state of mind”.

[37] Finally, I do not accept that the absence of a specific mention of “fear” was significant. The appellant’s evidence of fear was minimal, consisting of a brief comment made during cross-examination that he was “scared” of the victim while he was in his bedroom where he picked up the knife. The appellant did not testify that he still feared the unarmed victim when he approached him with his knife, or was motivated by fear to stab him.

[38] Given the nature of the evidence about the appellant’s fear of the victim, the absence of an explicit reference to it did not render the charge deficient in light of the repeated admonitions of the trial judge to consider all of the evidence: see Abdullahi, at para. 60.

[39] The instruction was sufficient to achieve the purpose of the rolled-up instruction. This conclusion is supported by the absence of a request by defence counsel for the evidence of the appellant’s fear to be explicitly referenced in the rolled-up instruction: R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58; Abdullahi, at para. 68 [1].

(2) Imbalanced Jury Charge Ground of Appeal

[40] A trial judge is obligated to ensure that the jury charge is fair and balanced in its recitation of the evidence and review of the positions of the parties. Given the charge’s significance in guiding a jury through the adversarial process of a trial, it is critical that the charge remain objective and not undermine or prejudice a party’s position: R. v. Baltovich (2004), 73 O.R. (3d) 481 (C.A.), at paras. 113-15; R. v. Laforme, 2022 ONCA 395, at para. 25.

[41] The appellant argues that the jury charge lacked the required balance because the trial judge pointed out instances where the appellant’s evidence was contradicted, something he did not do for other witnesses. He points to the trial judge having stated:

On the subject of [the appellant’s] credibility, you may consider how his version stacks up against the physical evidence. He describes quite a bit of body movement on both sides. Joel Briere and Daulton Boudreault have it arguably a bit different. [Emphasis added.]

[42] I reject this submission. This impugned statement did not render the jury charge imbalanced.

[43] First, the trial judge had generally told the jury that they, not he, were to “find the facts and base [their] decision on [their] memory of the evidence …” and that they did not have to accept any comment or opinions he expressed about the evidence. The statement the appellant points to accurately reflected Joel Briere and Mr. Boudreault’s evidence about how the stabbing transpired differed from the appellant’s testimony. Despite what may have been described as material differences, the trial judge only described their evidence as “arguably a bit” different. He did not suggest it was more believable. Indeed, following the impugned statement, he then invited the jury to refer to independent evidence − the victim’s shirt and the location of the wounds − to resolve any differences in the evidence.

[44] Second, the trial judge identified multiple factors that they might take into account in assessing the credibility of all witnesses, including whether it was “similar to or different from what other witnesses said about the same events”, whether the witness had “any reason to give evidence that [was] more favourable to one side or the other”, “the condition of the witness” and “the circumstances in which [their] observation was made”. Just as he identified an example of a credibility-related factor in the appellant’s evidence, he identified examples of other factors in the evidence of Crown witnesses. He noted that Joel Briere was the victim’s brother and therefore “far from an independent, dispassionate witness”. And he noted that Joel Briere was testifying about a chaotic, dynamic event in which moving bodies could obscure anyone’s line of sight, and that he, Ms. Old, and Mr. Boudreault were drinking. In doing so, as with the appellant’s evidence, the trial judge sought to assist the jury by pointing out relevant considerations when assessing the credibility of each witness.

[45] In sum, the impugned statement accurately indicated to the jury that certain witnesses’ recollections of the stabbing were different. The trial judge did not overstate or emphasize such differences, let alone tilt the direction in which the differences should be resolved. He fairly referred to frailties when describing the evidence of Crown witnesses. When read as a whole, the jury charge’s recitation of the evidence was not imbalanced.

(3) References to “Accident” Ground of Appeal

[46] A defence to a criminal charge that what occurred was an “accident” may mean one of two different things: (a) the act in question was involuntary (negating the actus reus of the offence); or, (b) the accused lacked the requisite mens rea: R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 186 [2].

[47] As indicated above, the appellant’s position from the outset of trial was that he had caused the victim’s death in circumstances amounting to manslaughter, not that he had stabbed the victim involuntarily. During cross-examination, however, the appellant used the term “accident”. He was asked: “You’re telling us that [the victim] fell on you and you just happened to stab him in the heart[?]” He answered: “There was just a lottta tussling, and movement, it was an accident”.

[48] In closing submissions to the jury, defence counsel made it clear that no reliance was being placed on a defence of accident in the sense of an involuntary stabbing. In reference to the appellant’s use of the term, his counsel stated: “He said it was an accident. I’m gonna suggest to you, that he was imprecise under the pressure of cross-examination. It was clearly not an accident in respect of this being a non-culpable homicide.” Defence counsel argued that the description of how the fatal wound came to be delivered was merely to indicate an absence of the mens rea for murder − that the exact nature, location, and severity of the injury resulting from the second stab wound was unintentional.

[49] In the pre-charge conference, defence counsel objected to the trial judge including a reference to accident in the jury charge. Ultimately, the trial judge did not give effect to this submission, referring to the appellant’s statement that the stabbing was an accident, and later to the appellant’s “position of accident” and “evidence of accident”.

[50] The appellant argues that the trial judge’s references to accident had the potential to confuse the jury by attributing to him a position he was not taking. In the appellant’s view, there was a risk that the jury would have understood these references to be suggesting that the appellant was arguing that the stabbings were involuntary, therefore undermining his credibility in light of the fact that he was not taking the position that this was a non-culpable killing.

[51] I reject this submission. Although it might have been better if the trial judge had explained the two meanings of accident and that only one was applicable, the appellant was entitled to a properly, not a perfectly instructed jury. I am satisfied the trial judge effectively met his task of focusing the jury on the significance of the appellant’s evidence that what occurred was an accident − that it went to the category of negation of mens rea, rather than voluntariness: Barton, at para. 194.

[52] The charge made clear to the jury that the appellant was not taking the position that the stabbing was involuntary, but was taking the position that things had not occurred as the appellant had intended. This placed the issue of “accident” within the question of whether he had, or lacked, the mens rea for murder. For example, the trial judge stated:

The unlawful act alleged in this case is assault with a knife. I can tell you that it is indeed unlawful to use a knife against someone as in these circumstances. Such an act would be at minimum an assault with a weapon. [The appellant] agrees with this. His position is perhaps best encapsulated in the part of his evidence where he indicates that: “I meant to cut him. I didn't mean to kill him". Basically, he is saying that he meant to use the knife for an assaultive purpose short of causing death and death resulted because things went awry, unfolding in a manner beyond his intention. [Emphasis added.]

[53] With this passage, the trial judge reminded the jury that the appellant’s position was not that his actions were involuntary. Instead, the crux of the appellant’s defence was that he did not form the requisite intention for murder. Any references to “accident” that subsequently followed would have been informed by this passage, and therefore properly understood.

(4) After-the-fact Conduct Evidence Ground of Appeal

a) The Issue

[54] The jury heard after-the-fact conduct evidence. This evidence described the appellant’s conduct for several hours after the offence, and included: the appellant’s flight from the scene, disposal of the knife, hail of a cab, change of clothes, purchase of items and use of a payphone at the Quickie store, travelling to a friend’s house, and acquiring and using fentanyl.

[55] The appellant argues that the trial judge erred in failing to provide a proper instruction on the use of the after-the-fact conduct evidence. Specifically, the appellant argues that the evidence was not relevant to distinguishing between manslaughter and murder. In contrast, the Crown asserts that this evidence was relevant to distinguishing between those offences because it was relevant to ascertaining the appellant’s degree of impairment at the time of the offence, and thus to rebutting the appellant’s position about the effects of intoxication.

b) General Principles

[56] After-the-fact conduct evidence is circumstantial evidence that encompasses the statements and actions of the accused after the offence was allegedly committed. Its admissibility is subject to the same rules as other evidence; it must be relevant to a material issue, its admission must not offend an exclusionary rule of evidence, and its probative value must exceed its prejudicial effects: Calnen, at paras. 106-7, per Martin J. (dissenting, but not on the principles relating to after-the-fact conduct evidence on which she spoke for the majority).

[57] While its admissibility is governed by the same rules as other evidence, after-the-fact conduct evidence poses unique reasoning risks. As the Supreme Court has recognized, jurors may be tempted to “jump too quickly from evidence of [after-the-fact] conduct to an inference of guilt” without properly considering alternative explanations for the conduct in question: R. v. White, [1998] 2 S.C.R. 72, at para. 57 (“White (1998)”). In many circumstances, trial judges can address this risk by providing a general cautionary instruction and informing the jury that they must consider other explanations for the accused’s actions: White (1998), at para. 57; R. v. White, [2011] 1 S.C.R. 433, at para. 24 (“White (2011)”); Calnen, at para. 117.

[58] However, a trial judge may sometimes need to do more and counter a specific reasoning risk by providing a specific caution or a limiting instruction: Calnen, at para. 118. A caution warns the jury to be careful in using the evidence, while a limiting instruction has the goal of preventing the jury from considering evidence with respect to one or more issues at all: White (2011), at paras. 30, 34.

[59] A specific caution or limiting instruction aimed at specific reasoning risk may be required when there is a question about the relevance of the after-the-fact conduct evidence to a particular issue. Relevance is assessed on a case-by-case basis and is fact-driven. After-the-fact conduct evidence will be relevant if it makes a particular inference more likely, as a matter of logic and human experience. But, after-the-fact conduct evidence will not be relevant when the conduct is “equally consistent” with the proposed inference and an alternative inference. Equally consistent means, in this context that the conduct is not capable, as a matter of logic, common sense, and experience, of favouring one inference over another: Calnen, at paras. 106, 108-112 and 124.

[60] Generally, it will be for the jury, assuming it has been appropriately cautioned, to assess the evidence of post-offence conduct in the context of all the evidence and to consider what inference, if any, to draw from it in the context of any explanations: Calnen, at paras. 112, 117, 124, and 137. In some cases, where the conduct is equally consistent with competing inferences, the trial judge should provide a limiting or no probative value instruction to the jury: R. v. Arcangioli, [1994] 1 S.C.R. 129, at p. 145; White (2011), at para. 60. For example, where the accused has admitted to the actus reus of the offence, after-the-fact conduct evidence will often not be relevant to distinguishing between different mens rea, as such evidence will be equally consistent with multiple offences: R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 52; Calnen, at para. 121.

[61] With that said, there are no bright-line rules against using after-the-fact conduct evidence in determining the accused’s intent or distinguishing between levels of culpability: Calnen, at para. 119; R. v. Jackson, 2016 ONCA 736, 33 C.R. (7th) 130, at para. 20. In some cases, such as when an accused’s after-the-fact conduct is out of proportion to an alternative explanation, the evidence may be relevant in discerning an accused’s level of culpability: see Calnen, at paras. 148-50. Even in cases where no limiting instruction is required, it is often appropriate to warn the jury of risks associated with the evidence and to be careful with it: White (2011), at para. 33.

[62] In summary, in providing instructions respecting after-the-fact conduct evidence, it is important that the trial judge set out the use to which the evidence can be put and the inferences that are available to the jury: Calnen, at para. 115. As the discussion above shows, doing so accurately and sufficiently requires providing cautions to avoid risks associated with the evidence so that properly informed jurors may evaluate it with care, and in some cases a limiting instruction to counter any specific reasoning risk: White (1998), at para. 57; White (2011), at para. 33; Calnen, at paras. 116-118.

c) The Jury Charge

[63] In closing submissions, Crown counsel invited the jury to infer from the after-the-fact conduct evidence that the appellant had the requisite mens rea for murder. In the pre-charge conference that followed, defence counsel expressed concern that the jury charge lacked any discrete instructions on how to use the after-the-fact conduct evidence. Counsel also specifically objected to the jury using the evidence to work backwards to the appellant’s state of mind. In context, a fair understanding of defence counsel’s point is that he was objecting to the jury using the after-the-fact conduct evidence to distinguish between murder and manslaughter and requesting a limiting instruction.

[64] In response, the trial judge stated, “I very much agree, and that’s why I left it out”. The trial judge then added, however, that the Crown’s position was that this evidence was “relevant to the operating mind, and the kind of…idea that decisions…and actions…display…a sufficient cognitive ability that murder intent can…deemed to have been proved”.

[65] In the charge, the trial judge invited the jury to consider, on the question of whether the appellant had the state of mind for murder, the after-the-fact conduct evidence. He instructed them generally to consider:

[The appellant’s] words and conduct before, at the time and after the unlawful act that caused [the victim’s] death. All these things, and the circumstances in which they happened, may shed light on [the appellant’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. [Emphasis added.]

[66] He then returned to the after-the-fact conduct evidence after discussing the evidence of the circumstances of the stabbing and the use of alcohol and drugs. He told the jury that they “should look at [the appellant’s] words and conduct before, at the time and after the material events … to shed light on [his] state of mind at the time he allegedly committed the offence” (emphasis added). He specifically told the jury to consider after-the-fact-conduct evidence when discussing the evidence of a police officer:

From Sergeant Dugal's testimony there is a body of evidence about what Mr. Ethier did after leaving the Clyde Avenue scene. You will recall that Mr. Ethier apparently hailed, instructed, and presumably paid for a taxi to get to Forward Avenue, a location he chose because he knew someone there. Thereafter, Mr. Ethier can be seen on the Quickie video. You can assess his motor skills from that video, so long as you keep in mind that there is a slight frame to frame delay. Also, he can be observed to request and pay for a package of cigarettes. Then, he uses a pay phone, dialing apparently from memory. You might even be able to discern his mood and interpersonal interaction ability from some of his exchanges with Brennan Clowater. Does any of this help you with Mr. Ethier's level of cognitive ability? Does it assist you in determining whether he is with it enough to foresee the likely consequences of the particular acts that this trial is all about?

[67] Later in the charge, the trial judge reiterated the Crown’s position that the after-the-fact conduct evidence indicated that the appellant had the mens rea for murder. He stated that it was the Crown’s position that: “[The appellant] had the state of mind required for murder…he took the time to put on a hoodie; he took the knife; he fled; he got rid of the knife.”

[68] To the extent the charge set out the uses that the jury could make and the inferences that could be drawn from the evidence, the charge directed the jury to consider the evidence as it related to cognitive impairment (presumably due to intoxication) but also generally instructed the jury that they could use the after-the-fact conduct evidence on all the issues. The charge contained no general cautionary instructions on the use of after-the-fact conduct evidence, nor any limiting instruction.

[69] The charge did not use language to caution the jury about the use of after-the-fact conduct evidence and thus to counter the “jump too quickly” risk. For example, it did not tell the jury that such conduct “has only an indirect bearing on the issue of guilt”. It did not tell them to be “careful” about using such evidence to infer guilt as there “might be other explanations for that conduct”. It did not tell them to consider alternative explanations for the conduct before drawing an inference of guilt or that they could use the evidence to support an inference only if they rejected any other explanation for the conduct: see for example, White (2011), at para. 35; R. v. Yabarow, 2023 ONCA 400, at paras. 32 and 56; see also David Watt, Watt’s Manual of Criminal Jury Instructions, 2023 (Toronto: Thomson Reuters, 2023), Final 27-A, at p. 362.

[70] The charge did not contain a limiting instruction to inform the jury that the after-the-fact conduct evidence could only be used on certain issues but not at all on others: see Yabarow, at para. 33. Nor did it contain any specific caution in the form of an express warning cautioning the jury on using it in respect of certain issues: see White (2011), at paras. 33, 35.

d) Discussion

[71] In my view, the trial judge erred in law by inviting the jury to consider, without limitation or caution, the after-the-fact evidence and by reiterating, without limitation or caution, the Crown’s overly-broad position on the use of the after-the-fact conduct evidence. The effect of the charge was to tell the jury that they could use all the after-the-fact conduct evidence to distinguish between the offences of murder and manslaughter, not just to assess the effects of intoxication.

[72] I agree with the Crown’s position that some of the after-the-fact conduct evidence was relevant to the effect of intoxication. The appellant’s conduct immediately following the stabbing shed light on his level of cognitive impairment at the time of the offence. To that extent, the evidence was relevant to whether the appellant lacked the requisite intent for murder due to intoxication.

[73] But the jury was not told that this was the extent to which the evidence was helpful. Nor were they told that since the Crown and the defence pointed to factors beyond intoxication as bearing on the appellant’s state of mind (as the rolled-up instruction made clear), the after-the-fact conduct evidence may not have been helpful in determining which of those factors were present, and to what degree, or how they might have affected the appellant’s state of mind. In other words, other than the issue of intoxication the jury was not given any guidance on whether the appellant’s after-the-fact conduct could help them distinguish between murder and manslaughter, nor instructed not to use it beyond intoxication because it was otherwise equally consistent with the state of mind required for either offence. Nor was the jury even warned, as it was in White (2011), to be careful with the evidence as it bore on these issues.

[74] This court has highlighted on previous occasions the necessity of making the distinction between using after-the-fact conduct evidence to rebut the effect of intoxication and using the evidence to otherwise distinguish between manslaughter and murder, and appropriately instructing the jury to observe the distinction: see R. v. Peavoy (1997), 34 O.R. (3d) 620 (C.A.), at pp. 631-32; R. v. Stiers, 2010 ONCA 382, 264 O.A.C. 305, at paras. 59-62, leave to appeal refused, [2011] S.C.C.A. No. 150. The appellant’s flight from the scene, disposal of the knife, and travel to various locations would not as a matter of logic, common sense, and experience assist the jury in its assessment of whether this was an intentional homicide beyond assisting them to evaluate the effect of intoxication. But even if it could, the jury was not told to even advert to whether in this case it did or cautioned about how to go about making that determination.

[75] In this case, there was a real risk that the jury would impermissibly use the after-the-fact conduct evidence to conclude that the appellant was guilty, as the Crown alleged, because he acted as though he was guilty of something. They were given no cautionary instructions to counteract the risk of a “jump too quickly from the evidence of [after-the-fact] conduct to an inference of guilt” without considering alternative explanations. They were given no instructions on the limited permissible use of the evidence. The Crown’s closing submissions expressly invited the jury to use the evidence without limits, and the trial judge misdirected the jury by inviting such use and reiterating the Crown’s erroneous submissions in the charge itself. Nothing else in the charge mitigated the risk of improper reasoning.

[76] The jury was not accurately and sufficiently instructed on the use of after-the-fact conduct evidence. The verdict cannot stand.

D. Conclusion

[77] For these reasons, I would allow the appeal, set aside the appellant’s conviction, and order a new trial.

Released: September 15, 2023 “D.D.”

“B. Zarnett J.A.”

“I agree. Doherty J.A.”

“I agree. E.E. Gillese J.A.”

[1] Defence counsel at trial had relied on the evidence of fear in asking that self-defence be left with the jury. The trial judge declined to do so, on the basis that there was no air of reality to that defence, and no appeal is taken from that decision.

[2] The same act could be accidental in both senses − it could be involuntary and be unaccompanied by mens rea.