COURT FILE NO.: CR-17-912

DATE: 20190209

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JORDAN OSBORNE

Defendant

Lisa Wannamaker for the Crown

Magdalena Wyszomierska and Sharon Jeethan for Mr. Osborne

HEARD: February 8, 2019

RULING ON PRE-CHARGE ISSUES

Boswell J.

INTRODUCTION

[1] Mr. Osborne is on trial for first degree murder. It is not contentious that he struck another man, Terence Pringle, repeatedly in the head with a hammer thereby causing his death. He accepts that he is guilty of manslaughter, on the basis of participation as a principal in that offence. The remaining live issues for trail are his state of mind at the time of the attack and whether the killing was planned and deliberate.

[2] The evidence has been completed and the case is essentially ready to go to the jury. A pre-charge conference was conducted to vet my proposed instructions to the jury. Counsel were extremely helpful in making submissions on the draft charge. For the most part, their concerns and suggestions can readily be incorporated into the charge without any further fanfare.

[3] Three issues arose, however, that require brief rulings from the court. The first relates to whether two particular pieces of post-offence conduct evidence may be used by the jury in their consideration of the issue of intent. The second involves a request by the Crown for permission to urge the jury to draw an adverse inference against Mr. Osborne for failing to call a particular witness as part of his defence case. The third focuses on whether, in light of a concession by Mr. Osborne that he participated as a principal in the killing of Mr. Pringle, the jury needs to be instructed on any other modes of participation.

[4] I intend to keep these reasons brief. I will address the issues in turn, beginning with the matter of the post-offence conduct.

POST-OFFENCE CONDUCT

[5] I do not intend to provide an in-depth treatment of the law relating to post-offence conduct. The very basics will do in terms of the issues I need to resolve here. For a comprehensive review of the subject, I highly recommend Justice Martin’s partially dissenting reasons in R. v. Calnen, 2019 SCC 6 at paras. 106-149.

[6] In its broadest sense, post-offence conduct, as its name suggests, is anything a person says or does after an offence has taken place. But as a legal term, it refers to conduct occurring after an offence that is relevant to and probative of a live issue in the case. That it may, in certain circumstances, assist in determining an accused person’s intent is now a settled issue: Calnen, para. 119.

[7] Gaining admittance in a criminal trial requires that evidence meet three basic pre-requisites: it must be relevant, material and not otherwise subject to a specific rule of exclusion. Post-offence conduct, like any other evidence, is admissible if it meets these pre-requisites.

[8] To be relevant, evidence must, as a matter of logic and human experience, directly or indirectly make the existence of a material fact more probable than it would be otherwise: R. v. Candir, 2009 ONCA 915, para. 48.

[9] Post-offence conduct is circumstantial evidence. As circumstantial evidence, it may support more than one inference. Generally speaking, it is for the trier of fact to determine what inferences are to be drawn from it.

[10] Sometimes, however, the conduct of an accused person is equally consistent with more than one inference. Where post-offence conduct is capable of supporting an inference that points towards guilt and equally capable of supporting an inference that points away from guilt it ceases to have probative value. Indeed, since it cannot be said to make the existence of a fact in issue more probable than it would otherwise be, it is not relevant.

[11] Having said this, I acknowledge that, like other types of circumstantial evidence, post-offence conduct may be relevant to one issue while being not relevant to another.

[12] It must also be said that the existence of multiple, plausible explanations for the conduct of an accused person does not automatically mean that the conduct is equally consistent with each of the explanations. The trial judge is required to engage in an evaluative assessment. As Martin J. explained at para. 145 of Calnen,

As long as the evidence is more capable of supporting the inference sought than the alternative inferences, then it is up to the fact finder, after considering all explanations, to determine what, if any, inference is accepted, and the weight, if any, to be provided to a piece of circumstantial evidence.

[13] As I said, there are two pieces of post-offence conduct in issue here. And the issue is whether they are relevant to and probative of Mr. Osborne’s state of mind at the time he attacked Mr. Pringle. In other words, did he have the intent to kill, or the intent to cause bodily harm that he knew was likely to kill?

[14] The first piece of evidence relates to Mr. Osborne’s Facebook page. He was a Facebook user. His profile prior to the attack was associated with the name, “Jordan Osborne”. A day or so after the attack, it was changed to “Jordan ‘Da Hammer’ Osborne”. Mr. Osborne disputes that he was the one who made the change. He suggested that he had been the victim of a sick joke.

[15] The second piece of evidence relates to a purported payment for the killing. Mr. Osborne was paid .6 grams of cocaine by a female named Samantha Hall, at whose bidding Mr. Osborne had attacked Mr. Pringle. Mr. Osborne agrees that he received that payment.

[16] With respect to the Facebook evidence, the Crown submits that the change in Mr. Osborne’s profile name supports an inference that he was boasting about the killing. In turn, such boasting supports an inference that Mr. Osborne killed Mr. Pringle and that he did so intentionally. In other words, a person who had unintentionally killed someone and who was filled with remorse, as Mr. Osborne suggests he was, would not brag about it on a social media site.

[17] With respect to the payment in cocaine, the Crown submits that it is some evidence that the attack went according to plan.

[18] While I accept that each of these two pieces of post-offence conduct evidence is capable of supporting the inferences urged by the Crown, I am not persuaded that either of them should be left with the jury on the issue of intent. I have reached this conclusion because I believe each is equally consistent with other, innocent, explanations.

[19] It strikes me as somewhat unlikely that a person who intentionally killed another (i.e. murdered him) would advertise that fact the next day on his Facebook page. Moreover, there are at least two other explanations for this conduct that do not support the conclusion that Mr. Osborne intentionally, as opposed to unintentionally, killed Mr. Pringle.

[20] First, it is possible that Mr. Osborne – assuming he is the one who changed his Facebook profile – did so to enhance his “street cred”. He may have perceived that having killed someone, even unintentionally, may have increased his notoriety and stature in the culture he lived in at that time.

[21] Second, he may simply have exercised appallingly poor judgment. There are a number of factors that may support such a conclusion:

• He was young; • He had experienced a terrible childhood, living in foster homes from about age 6 to age 18; • He is not blessed intellectually and has a limited education; • He suffered from anxiety and depression; • He was purportedly addicted to cocaine; and, • He may have been traumatized by the killing and not thinking clearly.

[22] I am not able to say that the Facebook evidence is more capable of the inference urged by the Crown than the alternate explanations I have described.

[23] In terms of the payment in cocaine, it is necessary that I put that payment into context. Samantha Hall testified that she had a beef with Mr. Pringle. He was supposedly “talking trash” about her and she wanted him to stop. She retained Mr. Osborne and two young offenders to go over to his apartment to “rough him up” and scare him. The payment was to be .6 grams of cocaine – referred to as a “60 piece” – having a street value of $60.

[24] Mr. Osborne testified that the plan was not to kill Mr. Pringle. His evidence was consistent with Ms. Hall’s in this respect: the plan was to rough up Mr. Pringle and to scare him.

[25] The Crown suggests that the fact that Mr. Osborne was paid after actually killing Mr. Pringle supports the inference that he did was he was retained to do. In other words, that the plan all along was to kill Mr. Pringle.

[26] The Crown notes that one of the young offenders was instructed to take a photograph to prove to Ms. Hall that the job had been done. After she was shown the photograph, payment was made.

[27] It has never been clear exactly what the photograph showed. It was deleted from the phone it was taken on and was never recovered by investigators.

[28] Again, in my view there are alternative, plausible explanations for the payment, which are at least equally consistent with an unintentional, as opposed to an intentional, killing. They include:

(a) The simple fact that the job – if it was to rough Mr. Pringle up – had been done. He had been roughed up. Payment was due. It was, in fact, not known at the time payment was made that Mr. Pringle had actually died; and,

(b) Mr. Osborne returned from the attack with a bloody hammer in his hand. He offered evidence that the roughing up had been accomplished. It may have been a straightforward matter of prudence on Ms. Hall’s part to make the promised payment.

[29] Again, I am not able to say that the evidence of payment is more capable of supporting the inference sought by the Crown than the alternative explanations I have set out.

[30] In the result, neither of these two identified items of post-offence conduct may be utilized by the Crown to support its claim that Mr. Osborne had one of the requisite intents for murder. This conclusion does not, however, prevent the Crown from utilizing this evidence for the purpose of undermining Mr. Osborne’s general credibility.

THE ADVERSE INFERENCE

[31] Mr. Osborne has advanced an intoxication defence. He testified that he was in an advanced state of intoxication on alcohol and cocaine at the time of the attack. He said he snorted 15-17 lines of cocaine throughout the day of the attack.

[32] The Crown disputes Mr. Osborne’s level of intoxication. A number of witnesses were with Mr. Osborne during the evening prior to and following the attack. They were at the residence Mr. Osborne shared with a man named Chris Bolton. None of the witnesses who testified were in a position to confirm or deny Mr. Osborne’s claimed substance use.

[33] Mr. Osborne testified that he got the cocaine he ingested from Mr. Bolton, save for the last two lines he snorted, which he said came from Ms. Hall. Mr. Bolton, he said, had been supplying him with free cocaine for several months, in the range of a gram a day.

[34] Mr. Bolton was arrested and charged with one or more offences in relation to the attack on Mr. Pringle. He was convicted for his role, though I am unclear on what charge. He is apparently serving his sentence in a correctional facility, quite possibly the same one Mr. Osborne has been remanded to pending the completion of his trial. At any rate, his location is known to Mr. Osborne and he was, at least in theory, available to be called as a witness.

[35] The Crown wants to suggest to the jury that they should draw an adverse inference against Mr. Osborne for his failure to call Mr. Bolton as a witness. Mr. Bolton is arguably the one person who could confirm Mr. Osborne’s level of intoxication, or at least the quantity of cocaine he ingested. The suggestion is that the jury should infer that Mr. Bolton would not confirm Mr. Osborne’s testimony about his intoxication.

[36] Mr. Osborne, like all accused persons in Canada, is constitutionally entitled to the presumption of innocence. That presumption stays with him until the jury is satisfied, beyond a reasonable doubt, that he is guilty of an offence. The presumption means that he does not have to prove anything in this case, or call any evidence at all. The onus of proving the charges at all times rest with the Crown. Mr. Osborne does not have to prove that he is innocent.

[37] Suggesting that an accused person should have called any particular witness tends to subtly shift the onus of proof onto him. It tends to undermine the presumption of innocence. As Doherty J.A. plainly put it in R. v. Bailey, 2016 ONCA 516, at para. 68, “In most circumstances, no adverse inference can be drawn against an accused based on the failure to call a certain witness or lead certain evidence.”

[38] In my view, it would a very rare case where it would be acceptable to impugn an accused for failing to call a particular witness. And I do not think this is such a rare case.

[39] Quite apart from the fact that the suggestion is constitutionally problematic, I am not satisfied that the proposed adverse inference is fair. While it is possible that Mr. Bolton was not called to testify because he was not expected to corroborate Mr. Osborne’s intoxication evidence, there may be any number of other reasons why Mr. Osborne did not call Mr. Bolton as a defence witness. For instance, if there was indeed a plan to just rough up Mr. Pringle, Mr. Bolton could be very angry with Mr. Osborne for having killed Mr. Pringle. Mr. Bolton may well blame Mr. Osborne for his current state of incarceration. In the result, it is possible he may be seen as a particularly unreliable witness.

[40] I commend Crown counsel for raising this issue at the pre-charge conference. I think it is to her great credit that she did so. But having thanked her, I conclude that she may not properly make the suggestion of an adverse inference to the jury.

ALTERNATE MODES OF PARTICIPATION

[41] Three individuals participated in the invasion into Mr. Pringle’s home that lead to his death. Two, including Mr. Osborne, participated physically in the attack on him. Though Mr. Osborne admitted during his testimony that he struck Mr. Pringle with a hammer a number of times, he has never formally admitted that he caused Mr. Pringle’s death.

[42] Given that causation appeared to be a live issue, I drafted a jury charge that included instructions on different modes of participation, specifically as a principal and as an aider. I also prepared detailed instructions on the essential elements of first degree murder, second degree murder and manslaughter by way of participation as a principal and, alternatively, as an aider.

[43] During the pre-charge conference, defence counsel advised the court that Mr. Osborne now concedes that he caused Mr. Pringle’s death. His actions may not have been the sole cause, but that is irrelevant in terms of his culpability. It is conceded that Mr. Osborne is guilty of manslaughter on the basis of principal participation. Only the issues of Mr. Osborne’s state of mind and planning and deliberation remain to be determined by the jury.

[44] In light of Mr. Osborne’s concession, defence counsel expressed the view that it was no longer necessary to instruction the jury on different modes of participation. Furthermore, the instructions on aiding were rendered unnecessary.

[45] Crown counsel did not disagree with defence counsel’s views. She expressed some apprehension, however, about whether a reviewing court – should this case continue to be litigated following the jury’s verdict – might look unfavourably on the failure to include instructions on different modes of participation, given that Mr. Osborne did not formally admit causation during the evidentiary portion of the trial.

[46] Having considered the matter at some length, I have elected to remove the instructions on different modes of participation, and aiding specifically, from the jury charge. My decision is based on the following factors:

(a) While Crown counsel is lawfully entitled to have the jury instructed on all available routes of culpability, she is not actually requesting a charge on aiding. She is only apprehensive about what another court might think if that part of the charge were removed;

(b) This is a case where causation, even if it were contested, is essentially a foregone conclusion. It is not disputed that Mr. Pringle died from blunt force trauma to the head. Mr. Osborne admitted that he struck Mr. Pringle in the head repeatedly with a hammer. On the final blow, the hammer smashed through Mr. Pringle’s skull and became embedded in his head. Surprisingly, the forensic pathologist who performed Mr. Pringle’s post-mortem examination testified that the skull- smashing blow would not have been immediately fatal. It was another blow, behind Mr. Pringle’s left ear, that killed him. Behind Mr. Pringle’s left ear were two circular abrasions associated with a skull fracture. The abrasions are unmistakably consistent with the imprint of a hammer face. In light of this evidence it is virtually inconceivable that any jury would not conclude that Mr. Osborne’s actions significantly contributed to Mr. Pringle’s death. In other words, he caused Mr. Pringle’s death and is guilty of at least manslaughter by way of principal participation;[^1]

(c) It is well-established that a trial judge’s duty, when drafting a charge, is to “decant and simplify”: see R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 13. The live issues in a case are defined by the law, the evidence and the parties’ positions. Removing instructions that have become superfluous in light of the parties’ positions serves the court’s duty to decant and simplify; and,

(d) Along the same lines, trial judges have a recognized duty to "separate the wheat from the chaff". They must edit and refine their instructions “to avoid unnecessary, inappropriate and irrelevant legal instruction of a kind that might well divert the jury's attention from the primary disputed issues in the case”: see R. v. Rodgerson, 2015 SCC 38 at para. 52. Whether Mr. Osborne participated as a principal or aider is no longer an open question in view of his concession. He was a principal. The jury does not need to listen to detailed instructions about aiding, when those instructions are entirely unnecessary.

[47] In the result, those parts of the draft charge that dealt with multiple modes of participation and the specific instructions on aiding will be culled.

[48] I thank counsel again for their helpful assistance with the charge.

Boswell J.

Released: February 9, 2019

[^1]: There is no question that the remaining essential elements of manslaughter are made out in the evidence.