ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-40000166-0000

DATE: 20140416

BETWEEN:

HER MAJESTY THE QUEEN

– and –

BRIAN DICKSON

Defendant

Frank Armstrong, Christine Pirraglia, and Luke Schwalm for the Crown

Robert Nuttall and Daniel Santoro, for the Defendant

HEARD: March 17 and 18, 2014

MOLLOY J.:

REASONS FOR DECISION

(Pre-trial Rulings on Admissibility of Evidence)

A. INTRODUCTION

[1] Brian Dickson was charged with first degree murder in relation to the death of Qian Liu on April 15, 2011.

[2] The Crown sought to adduce in evidence, as part of its case-in-chief, two statements made by Mr. Dickson: (1) a formal statement given to the Toronto police (which was video and audio recorded); and, (2) a statement made by Mr. Dickson to a friend that he was going to jail for life. The defence objected to the admissibility of both statements.

[3] At the beginning of the pre-trial motions, Mr. Dickson was arraigned before me and pleaded not guilty to first degree murder, but guilty to the lesser included offence of manslaughter. The Crown rejected the plea of guilty to manslaughter. Counsel for Mr. Dickson undertook to enter the same plea before the jury and also undertook that he would not tell the jury that a verdict of not guilty was appropriate. Rather, his position before the jury would be that Mr. Dickson should be convicted of manslaughter, on the basis that he caused the death of Ms. Liu and that he did so by an unlawful act, which was an assault. There was no admission by the defence that this was a sexual assault. Further, there was no undertaking by the defence as to whether defence evidence would be called, and in particular, no commitment as to whether Mr. Dickson would testify in his own defence at trial.

[4] The Crown has the onus of proving voluntariness with respect to the police statement. Voluntariness was conceded by the defence. I have watched the video of the interview. Det. Sgt. Skubic, who conducted the interview, was meticulous in ensuring that Mr. Dickson understood his rights at every critical stage and in confirming that Mr. Dickson was giving his statement freely, without coercion, threats or promises of reward. The statement was clearly voluntary.

[5] The defence argued that once culpability for the death was admitted, the statements had no probative value at all because the post-offence conduct was equally consistent with manslaughter as it was with first degree murder. Further, the defence argued that both statements should be excluded on the grounds that any probative value was greatly outweighed by their prejudicial effect.

[6] The Crown argued that culpability was still a live issue for the jury because the manslaughter plea was rejected and the Crown had not agreed to any admitted facts with respect to whether Mr. Dickson was responsible for the death. Further, the Crown asserted that the evidence was admissible for other purposes, and any potential prejudice arising from the danger of the jury misusing the evidence of post-offence conduct could be cured by a limiting instruction.

[7] It is well-established in the law and accepted by both the Crown and defence that post-offence conduct may be admissible as circumstantial evidence relevant to the fact of culpability, but is not admissible to prove the level of culpability (or level of intent) as between, for example, manslaughter and murder.[^1]

[8] I found the statement by Mr. Dickson to the friend about going to jail for life to be inadmissible. However, the statement to the police was admissible, subject to editing on some points. My reasons for those rulings follow.

B. THE STATEMENT ABOUT GOING TO JAIL FOR LIFE

[9] On the evening of April 19, 2010, after giving his statement to the police over a period of several hours, Mr. Dickson went to a bar. While there, he told an acquaintance that he was going to jail for life.

[10] The Crown relied on this statement as demonstrating that Mr. Dickson was aware he had committed murder, as opposed to manslaughter. The Crown pointed to the fact that murder carries a mandatory life sentence, whereas manslaughter does not. I do not agree that this statement indicates Mr. Dickson’s awareness that he committed first degree murder. It may be an indication that he knew he had caused Ms. Liu’s death, but imputing more than that would assume a sophisticated knowledge about the likely penalties for the various forms of culpable homicide under the Canadian Criminal Code. Indeed, even manslaughter could potentially yield a life sentence.

[11] This evidence has virtually no probative value. It does, however, carry with it a risk that it could prejudice the jury. The potential prejudice far outweighs any probative value. Accordingly, I ruled this evidence to be inadmissible.

C. THE STATEMENT TO THE POLICE

There is No Agreed Fact That Mr. Dickson Caused the Death Unlawfully

[12] The defence argued that Mr. Dickson’s post-offence conduct was no longer admissible once Mr. Dickson conceded that he caused the death of Ms. Liu by an unlawful act (an assault), and that he was therefore guilty of manslaughter. Defence counsel undertook to invite the jury to convict him of that offence. The defence argued that the post-offence conduct of lying to the police was equally consistent with guilt for manslaughter as it was for first degree murder and therefore had no probative value. However, there was no concession that Mr. Dickson sexually assaulted Ms. Liu, and the defence was not prepared to tell the Crown Mr. Dickson’s version of precisely how Ms. Liu met her death. The defence made no undertaking as to whether defence evidence would or would not be called and, in particular, was not prepared to say whether or not Mr. Dickson would testify.

[13] The Crown rejected Mr. Dickson’s offered plea of guilty to manslaughter. The Crown’s theory is that Mr. Dickson sexually assaulted Ms. Liu and that he killed her in the course of that sexual assault or in order to prevent her from reporting the assault to the police. The Crown therefore sought to prove that Mr. Dickson was guilty of first degree murder. Further, the Crown did not agree to the defence-framed admission that Mr. Dickson caused Ms. Liu’s death by an assault. That being so, there were no agreed facts that would require the jury to find that Mr. Dickson caused the death of Ms. Liu by an unlawful act.

[14] In these circumstances, Mr. Dickson’s offered plea of guilty to manslaughter was a nullity and must be treated as a plea of not guilty to first degree murder.[^2] The offered guilty plea does not constitute evidence of underlying facts that would conclusively support a finding of manslaughter or which a jury would be bound to accept. Further, submissions by defence counsel to the jury are not evidence. There was no formal “admission” that would constitute evidence before the jury, because the Crown did not agree with the defence characterization of the facts. It is not open to the defence to make an admission that is in a form that suits the defence, but which the Crown rejects as not fully consistent with what the Crown seeks to prove at trial. As stated by the Supreme Court of Canada in Castellani v. R.:[^3]

An accused cannot admit a fact alleged against him until the allegation has been made. When recourse is proposed to be had to s. 562 [now s. 655] it is for the Crown, not for the defence, to state the fact or facts which it alleges against the accused and of which it seeks admission. The accused, of course, is under no obligation to admit the fact so alleged but his choice is to admit it or to decline to do so. He cannot frame the wording of the allegation to suit his own purposes and then insist on admitting it. To permit such a course could only lead to confusion. The idea of the admission of an allegation involves action by two persons, one who makes the allegation and another who admits it.

[15] Thus, in the absence of a formal admission accepted by the Crown pursuant to s. 655 of the Criminal Code, the burden still remained on the Crown to prove all of the constituent elements of manslaughter.

[16] A similar issue arose in R. v. Jacobson,[^4] before D.S. Ferguson J. of this Court. The accused was charged with first degree murder and other related offences arising from a home invasion. He proposed to plead guilty to some of the offences. However, on the charge of first degree murder, the accused offered a plea of guilty to the lesser included offence of manslaughter, which plea was rejected by the Crown. The accused also purported to “admit” that he had been at the scene of the home invasion and therefore argued that post-offence conduct evidence in which he denied having been there was no longer admissible. The Crown did not accept the proffered admission and it was therefore not an admitted fact under s. 655 of the Criminal Code. Ferguson J. ruled that in these circumstances, whether the accused was present at the scene was still a “live issue” for the jury to determine and the post-offence conduct was therefore admissible as relevant to that issue. The trial judge held, at para. 54:

Therefore, even if the rejected plea were a proffered admission, since it was not accepted by the Crown it does not remove from the facts in issue any fact the Crown wishes to prove in order to prove its theory that the accused is guilty of first degree murder or conspiracy. A formal admission accepted by the Crown under s. 655 results in the admitted fact being a deemed fact. Any other kind of “admission” by an accused such as one contained in his out-of-court statements or testimony is only evidence tending to prove a fact; the fact is still a live issue.

[17] The Jacobson decision was considered and applied by Dawson J. in R. v. Papadopolous.[^5] In that case, a group of Burlington high school students were celebrating their graduation at a party in a private home in Burlington. A young man from Hamilton, Stephen Papadopolous, came to the party, having been invited by one of the graduating students, and he brought with him three of his own friends from Hamilton. A group of the graduating students, including a young man named Matthew Daly, ordered the Hamilton group to leave and escorted them off the property. Those four young men returned to Hamilton, recruited four more friends, and all of them returned to the scene of the party armed with weapons. They came upon Mr. Daly and his girlfriend as they were leaving the party, attacked Mr. Daly, and beat him to death. Five young men (Papadopolous, Mujku, Nop, Chak and Hodzik) were charged with first degree murder. Four of the accused (everyone except Hodzik) tried to plead guilty to manslaughter, but the Crown rejected those pleas. Those accused also attempted to concede facts, some but not all of which were accepted by the Crown as agreed facts at trial. They argued before the trial judge that the Crown should not be permitted to tender evidence as to their after-the-fact-conduct because it no longer had any probative value in light of the proffered plea of guilty to manslaughter and factual concessions made by the accused.

[18] With respect to Papadopolous, Dawson J. ruled that the evidence was admissible as relevant to the actus reus, even though it could not be used to determine the level of intent as between manslaughter and murder. He stated, at paras. 12-13:

As in Jacobson, counsel for Papadopolous argues that the jury will hear the rejected plea. Counsel also indicates that Mr. Papadopolous will not advance any position at trial to the effect that when he returned to the scene he did not know there was going to be a violent confrontation. As there will be evidence that weapons in the form of sticks or bats were brought to the scene and that Matthew Daly was beaten with them by a number of people, it is not realistic to say that manslaughter will not be the minimum verdict for Stephen Papadopolous. Counsel indicates that she will invite the jury to convict the accused of manslaughter in her closing address.

Counsel’s argument fails to take into account that in the absence of an accepted plea or an admission of facts which establish manslaughter, I will be in no position to instruct the jury that manslaughter is established. It will be for the jury to decide that issue. See R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627, 196 C.C.C. (3d) 123. In the absence of an admission under s. 655 of the Criminal Code, (which must be agreed to by the Crown to be effective: R. v. Castellani, 1969 57 (SCC), [1970] S.C.R. 310.), I will be required to direct the jury to the evidence bearing on the issue and leave it to them to decide. In these circumstances, the Crown has a legitimate interest in ensuring that there is ample evidence in the record to ensure that the jury has no difficulty deciding that issue in the Crown’s favour.

And further at para. 21:

. . . As I have said, the Crown is entitled to lead evidence that demonstrates Papadopolous’ involvement in the actus reus of the offence, given the inability of the Crown and defence to agree on the underlying facts necessary to constitute an admission of manslaughter. . . . Once there is sufficient evidence in the record to assure that a reasonable and properly instructed jury will convict of at least manslaughter, further evidence to like effect may be liable to exclusion on the basis that its probative value is exceeded by its prejudicial effect, unless the evidence is relevant to some other issue in the case.

[19] At the conclusion of the trial, Papadopolous was convicted of manslaughter, but three other accused (Nop, Chak and Mujku) were convicted of second degree murder. Nop and Mujku appealed. One of the grounds of appeal raised by Nop was that the trial judge erred in admitting post offence conduct relating to Nop in light of his attempted plea to manslaughter and admissions he had made in an Agreed Statement of Facts. The Court of Appeal rejected that argument,[^6] and found that the reasoning of the trial judge in relation to Papadopolous was both applicable and correct, stating (at para. 19):

We do not accept these submissions. On the admissibility issue, although Nop was prepared to admit to manslaughter, his plea was not accepted. Moreover, in his Agreed Statement of Fact, Nop admitted to being at the scene of the attack, but did not admit to actually taking part in the attack on Daly. In those circumstances, as the trial judge said in his ruling with respect to Papadopolous (whose situation in this respect was identical to Nop's), “[t]he admissions… do not support an inevitable verdict of manslaughter from a jury acting reasonably and properly instructed…. the after-the-fact conduct evidence is relevant to whether Papadopolous participated in the commission of the actus reus of the crime charged.” In our view, this conclusion is correct and is equally applicable to Nop.

[20] In my view, these principles, as dealt with in Jacobson and Papadopolous, are directly applicable in the case before me. The attempted guilty plea to manslaughter offered by Mr. Dickson, once rejected, had no impact on the Crown’s obligation to prove all elements of its case, including the actus reus. The post-offence conduct was relevant to those issues. Similarly, since there was no agreed fact that Mr. Dickson caused the death by an unlawful act, the Crown must still prove that. Again, the post offence conduct was relevant to those issues, even though not admissible to establish any distinction in the level of intent required for murder as opposed to manslaughter.

[21] There is long-standing authority for the proposition that it is not open to the Crown to refuse to accept facts an accused person wants to admit “where its purpose in doing so is to keep an issue alive artificially” and thereby introduce evidence that would not otherwise be admissible.[^7] Dawson J. considered this issue in Papadopolous and concluded that the Crown in that case had acted appropriately. He stated, in this regard, at para. 20:

The question then arises whether the principle developed in Proctor is brought into play in the circumstances before me. Having reflected on this, I conclude it is not. In all the circumstances of the case before me, I cannot say that the Crown is acting in an improper or artificial manner. There is a fundamental dispute between the Crown and defence about what Papadopolous’ role was in the commission of the crime. There is also a fundamental dispute about his level of culpability.

[22] The same situation arises in the case before me. The Crown’s theory of the case is not consistent with Mr. Dickson’s plea to manslaughter, nor is it consistent with his having caused Ms. Liu’s death through an assault. The Crown will seek to prove first degree murder by establishing that Mr. Dickson either murdered Ms. Liu in order to escape detection for having sexually assaulted her, or that he killed her while committing the offence of sexual assault. In the absence of any firm commitment from the defence as to how the death was caused or the nature of the defence evidence to be called, the Crown acted appropriately in not agreeing to the vague statement of fact proposed by the defence and proceeding instead to simply prove its case.

[23] Because there was no agreed statement of fact that Mr. Dickson caused the death, evidence that supported the theory that he did so was relevant and admissible. That included evidence that he attempted to cover up his crime by altering the crime scene, removing items from Ms. Liu’s room (such as her laptop and cellphone), and lying to the police as to his contact and involvement with Ms. Liu during the relevant times.

The Statement to Police is Relevant for Reasons Other than Post-Offence Conduct

[24] Quite apart from the post-offence conduct, the Crown sought to introduce Mr. Dickson’s statement to the police for three purposes: (1) his admission that he knew Ms. Liu; (2) his admission that he was near her room very close to the critical period of time when she was attacked; and (3) as evidence of his general level of lucidity about the events of the night of April 14/15, 2011. The first two admissions could be introduced very briefly without using the entire statement and without getting into the lies Mr. Dickson told the police. However, isolating evidence relevant to the third point would be considerably more problematic.

[25] In order to prove Mr. Dickson’s guilt of first degree murder, the Crown was required to establish beyond a reasonable doubt that he intended to kill her or that he intended to cause bodily harm that he knew would likely cause death and was reckless as to the consequences. The Crown was also required to prove that Mr. Dickson caused Ms. Liu’s death while committing sexual assault. There was no direct evidence of Mr. Dickson’s level of intent. In this situation, the jury would normally be instructed that they could draw a reasonable inference that a sane and sober person intends the natural consequences of his actions. In this case, there was some evidence that Mr. Dickson had been drinking: he said so in his police interview; there were beer cans in his room; and, a witness was expected to testify that she served beer to him at a restaurant that night. Further, bottles of prescription medication were found in Mr. Dickson’s room and on his person at the time of his arrest and Mr. Dickson told police that he had taken a sleeping pill shortly before midnight that night. Without knowing what use the defence might make of this evidence, the Crown understandably sought to lead evidence that Mr. Dickson was coherent and functioning normally that night. The Crown expected to have some direct evidence of Mr. Dickson’s level of sobriety and lucidity from the waitress at the restaurant and from a roommate who spoke to him briefly in the basement laundry area after he got back home. However, the Crown also sought to rely upon the police statement as further evidence of that fact.

[26] In his statement to the police, Mr. Dickson gave a very precise and detailed account of his movements that night. Some of the details Mr. Dickson provided were corroborated by independent evidence. Although the statement was taken several days after Ms. Liu was killed, the fact that Mr. Dickson could recall these things with such lucidity and detail is some indication that at the time in question he must have been sober and thinking clearly. This was important evidence for the Crown’s case. It would be impossible to extract from the police statement those portions where Mr. Dickson was providing information that was detailed and true from those which were detailed but fabricated. The statement would be incomprehensible and very obviously edited if such excisions were made. Accordingly, I found that the whole statement was admissible as relevant to the issue of whether Mr. Dickson had a sane and sober operating mind at the time of the events in issue.

[27] The statement was relevant to the most critical aspect of the Crown’s case, the level of intent required for murder. It had considerable probative value. The prejudicial impact was low if there was a limiting instruction restricting its use for improper purposes. Further, even the post-offence conduct aspects of the statement were relevant to the actus reus of the offence charged.

[28] There were some references in the statement to the police to two matters that related to discreditable conduct that would be highly prejudicial to Mr. Dickson. First, there was a discussion about pornography on Mr. Dickson’s computer demonstrating a predilection for Asian women and teenagers. Second, there were references to the fact that Mr. Dickson had previously been charged with sexual assault. To the extent there was any probative value to this evidence, it was far outweighed by its potential prejudicial effect. It was possible to edit those portions from both the videotape and the transcript and the Crown undertook to do so prior to introducing the statement into evidence.

[29] Apart from those deletions, I found the statement to be admissible, but subject to limiting instructions to the jury.

Limiting Instructions to the Jury

[30] It is often the case that evidence is admitted for one purpose, subject to an instruction to the jury that it cannot be used for other purposes. The defence conceded in this case that evidence about alterations to the crime scene by Mr. Dickson would be admissible to the limited extent that it would be necessary for the jury to understand the crime scene. Both the laptop computer and the cellphone were pivotal to the evidence of Mr. Meng who witnessed the beginning of the assault on Ms. Liu through a webcam mounted to her laptop and who saw Mr. Dickson using her cellphone. It is apparent from the photographs of the crime scene that both items are now gone. It is also apparent that things have been moved around or altered. Again, it would not be possible to hide that evidence from the jury. The defence submitted, however, that the jury must be instructed that they could not use this evidence to infer that Mr. Dickson was guilty of murder.

[31] I agreed there must be an instruction that if the jury reached a conclusion that Mr. Dickson was guilty of an offence against Ms. Liu, then anything he did to change the crime scene or dispose of evidence would be equally consistent with his having committed that offence and must not be used by them to infer the level of intent necessary for murder.

[32] Likewise, the fact that Mr. Dickson lied to the police about never having been intimate with Ms. Liu and about being asleep in his room at the time she was killed, was not relevant to establish the level of intent required for murder. He could just as easily have lied about his involvement because of the sexual assault, or because he caused her death accidentally while assaulting her. None of the post-offence conduct was relevant to whether Mr. Dickson had the intent to commit murder, and the jury must be instructed accordingly.

Subsequent Developments at Trial

[33] At the time of my ruling at the outset of the trial, I was confident that the jury would be able to comprehend and follow any instructions with respect to the limited use that could be made of post-offence conduct. I did not, at the pre-trial stage make any ruling as to the extent that the jury could use the post-offence conduct as relevant to Mr. Dickson having been the perpetrator, or as establishing the actus reus of the offence charged. Since the police statement and the changes to the crime scene would be admissible for other purposes, I left the extent of the required limiting instruction until the conclusion of the evidence, to be dealt with in the course of drafting my final instructions to the jury.

[34] The Crown’s case that Mr. Dickson sexually assaulted Ms. Liu was overwhelming. Her body, when found, was nude from the waist down. Her panties, socks, and tights were found in an intertwined tangle close to her body. A soiled sanitary napkin was under one leg. Mr. Dickson’s DNA was present in substances found under the fingernails of one of Ms. Liu’s hands, on both her breasts and on one side of her body at the abdomen and groin. The DNA substance on her breasts was found to be either saliva or semen. The substance deposited on her groin and abdomen was semen. The mathematical chances of anyone other than Mr. Dickson being the contributor of those substances was literally astronomical, many multiples beyond the total number of people on earth. Mr. Meng saw the beginning of the assault through the webcam, and later saw the assailant come back and turn off the computer, at which time the assailant was nude. There was no question but that this person was Mr. Dickson. Although the defence called no evidence, defence counsel never suggested that the person responsible for Ms. Liu’s death was not Mr. Dickson and conceded before the jury that he was the person seen by Mr. Meng.

[35] There was, however, a complicating factor with respect to whether Mr. Dickson had committed a sexual assault, a complication related to timing. According to the evidence of Mr. Meng, after the assailant forced his way into Ms. Liu’s room, he grabbed her in the area of her shoulders and attempted to embrace her, but she resisted. He then pushed Ms. Liu and she fell to the floor. The assailant followed her. Both of them were then out of the view of the webcam. However, Mr. Meng testified that he could still hear what was going on in the room. He said he heard Ms. Liu saying “No” repeatedly in both English and Mandarin, then he heard two muffled thumps, and after that he heard nothing further from Ms. Liu. However, he continued to hear other sounds in the room for another 20 minutes after that, including heavy breathing from a male, keys jangling, and furniture being moved. Then, the man came back within view of the camera, this time naked, and shut off the computer.

[36] Based on this evidence, it is possible that Mr. Dickson removed Ms. Liu’s clothing and deposited his various bodily substances, including semen, on her body after she was dead. The question, then, is whether the sexual context aspect of Mr. Dickson’s actions against Ms. Liu commenced before or after her death. If before her death, as contended by the Crown, he would have committed sexual assault. If only after her death, he may have committed some other offences, but they would not be considered sexual assault.

[37] Defence counsel took the position that even though he did not intend to raise this issue directly with the jury in his address, it was an issue the jury needed to decide and could result in the verdict being reduced from first degree murder to second degree murder (assuming the intent required for murder was established). The Crown took the position that there was no air of reality to this issue as there was clearly an assault in a sexual context from the moment Mr. Dickson forced his way into the room and grabbed Ms. Liu.

[38] I ruled that although there was a strong Crown case on this issue, it was still a question of fact for the jury. Depending on the jury’s view of the reliability of Mr. Meng’s evidence, it was open to them to conclude that the sexual aspect of any assault on Ms. Liu could have occurred after she was already dead. Therefore, I left this issue to the jury to decide.

[39] Finally, with respect to post-offence conduct, I instructed the jury of the limited use that could be made of Mr. Dickson’s statement to the police and the fact that he altered the crime scene and removed the laptop and cellphone. Given the strength of the Crown evidence as to the identity of the perpetrator of this homicide, I did not give any specific instructions to the jury as to using the post-offence conduct to determine whether Mr. Dickson committed the acts required to constitute the offence. I did instruct them that the details provided in the police statement could be taken into account in determining Mr. Dickson’s level of lucidity and sobriety that night, although in considering the reliability of what he said they could also consider whether Mr. Dickson lied to the police about other matters.

[40] I specifically instructed the jury that if they concluded Mr. Dickson assaulted or sexually assaulted Ms. Liu, they could not use any of the post-offence conduct to assist them in deciding whether he had the level of intent required for murder. The text of the portion of the jury charge dealing with the post-offence conduct is attached as Schedule A.

MOLLOY J.

Released: April 16, 2014

SCHEDULE A

POST-OFFENCE CONDUCT

[1] Sometimes, evidence of what a person said or did after an offence was committed may be relevant to a decision as to whether that person committed the offence. It may assist. Or it may not.

[2] What a person said or did after an offence was committed may indicate that he acted in a way which, according to human experience and logic, is consistent with the conduct of a person who committed the offence and inconsistent with the conduct of someone who did not do so. On the other hand, there may be another explanation for what a person said or did afterwards.

[3] You have heard evidence in this case that, after Ms Liu was killed, some things were missing from her room, specifically her computer and her cellphone. The only bedding that was found in the room after Ms Liu’s death was a flat sheet on top of the mattress, a pillow, and the pink plush blanket on the floor in the corner of the room. Therefore, you might also consider whether bedding was removed and whether there was some alteration to the bed to remove any signs of a struggle. You may consider whether this conduct occurred and whether it was Mr. Dickson who did these things. You also heard in evidence Mr. Dickson’s statement to the police on April 19 that he had never been intimate with Ms Liu and had nothing to do with her death. You may consider whether this can be true in light of the other evidence you have heard, including the DNA evidence.

[4] Sometimes, the fact that an accused lied to the police and altered a crime scene are factors that can be taken into account in determining whether a person is guilty of an offence. However, that is not always the case.

[5] It is often the case that evidence is admitted at trial for some purposes, but cannot be used for other purposes. In this case, it was relevant for you to hear about the condition of Ms Liu’s room after her death so that you could understand, and have a context for, some of the other evidence. Likewise, it was relevant for you to hear Mr. Dickson’s statement to the police so that you had some evidence as to his lucidity and sobriety on the night of April 14/15, and because of his admission that he knew Ms Liu and was in the vicinity of her room at the relevant point in time. However, the fact that you heard this evidence does not make it relevant for all purposes.

[6] In particular, I am instructing you, as a question of law, not to use this evidence in order to determine whether Mr. Dickson had the state of mind necessary for murder, as opposed to manslaughter, or, for that matter, as opposed to sexual assault.

[7] Suppose, for example, that you conclude that Mr. Dickson assaulted, or sexually assaulted Ms Liu. His conduct in getting rid of evidence and lying to the police could be because he was conscious of his guilt for those offences. Likewise, if Mr. Dickson was responsible for the death of Ms Liu, but without the requisite level of intent for murder, he could still have covered up the evidence and lied about his involvement for that reason. Therefore, there is nothing about this conduct after the fact that is relevant for you to take into account in determining whether he had the required level of intent for murder.

[9] In these circumstances, you must not use the post offence conduct to assist you in determining whether Mr. Dickson did or did not have the level of intent required for murder.

[10] Further, as inappropriate as the conduct may be, you must not use it to conclude that Mr. Dickson is not a good person or that he is the type of person who would have committed the acts alleged here. That is a wholly irrelevant consideration.

COURT FILE NO.: 12-40000166-0000

DATE: 20140416

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
– and –
BRIAN DICKSON
Defendant

REASONS FOR JUDGMENT
(Pre-trial Rulings on Admissibility of Evidence)

MOLLOY J.

Released: April 16, 2014

[^1]: R. v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129; R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314 at paras. 45‑49; R. v. White, 1998 789 (SCC), [1998] 2 S.C.R. 72; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433.
[^2]: R. v. Pentiluk and MacDonald (1974), 1974 1560 (ON CA), 21 C.C.C. (2d) 87 (Ont.C.A.) at pp. 90‑91.
[^3]: Castellani v. R., 1969 57 (SCC), [1970] S.C.R. 310 at 315‑316.
[^4]: R. v. Jacobson, [2005] O.J. No. 1867 (S.C.J.), aff’d 2009 ONCA 130.
[^5]: R. v. Papadopolous, [2006] O.J. No. 5407 (S.C.J.); aff’d subnom R. v. Mujku, 2011 ONCA 64; leave to appeal dismissed subnom R. v. Nop, [2011] S.C.C.A. No. 390.
[^6]: R. v. Mujku, 2011 ONCA 64 at paras. 14 and 19.
[^7]: R. v. Proctor (1992), 1992 2763 (MB CA), 69 C.C.C. (3d) 436 (Man.C.A.) at p. 447.