Court File and Parties

Court File No.: 19-6279 Date: 2024/01/30 Ontario Superior Court of Justice

Between: His Majesty The King – and – Donald Musselman, Accused

Counsel: Matthew Geigen-Miller and Lisa Miles, for the Crown Leo Russomanno and Kim Hyslop, for Mr. Musselman

Heard: December 7, 2023

Reasons for Ruling Regarding After-the-Fact Conduct Not Admissible to Establish State of Mind for Murder

Anne London-Weinstein J.

[1] Donald Musselman is charged with the second-degree murder of Markland Campbell on June 7, 2019. He testified that he was not the shooter in this case, but that I.A. was the shooter. I.A. also testified that he was the shooter. Despite their evidence, there was an air of reality to the defence of provocation and defence of another person which justified leaving both defences with the jury.

[2] The Crown seeks to admit the evidence of Mr. Musselman’s conduct after the shooting to establish that Mr. Musselman was not provoked at the time that he shot Markland Campbell. The Crown also sought to admit Mr. Musselman’s conduct after the shooting to establish that Mr. Musselman did not act in defence of David Vizigiro when he shot Markland Campbell.

[3] After the shooting of Markland Campbell, Mr. Musselman is captured on video surveillance jogging away while holding on to a big white cup from which he had been sipping “Lean”, a drink concocted of soda and hydrocodone. Within a minute after the shooting, he smoked a cigarette. Mr. Musselman then changed his hairstyle by donning a durag on his head to cover his braids and he left the scene by taxi to travel to the home of Maya Daher, who was the girlfriend of David Vizigiro.

[4] He did not remain at the scene to assist Markland Campbell. He stayed briefly at the apartment of Maya Daher, the partner of David Vizigiro, before Emma Stace came to pick him up and drive him to his home where he resided with his mother and step-father.

[5] The jury was instructed that they could use after-the-fact conduct evidence to determine whether Mr. Musselman shot Mr. Campbell, but that they could not use it to determine his state of mind at the time. At the time that I made that ruling I indicated that I would later provide reasons for that ruling. These are those reasons.

[6] After-the-fact conduct evidence is a form of circumstantial evidence that includes the statements and actions of the accused after the offence was committed. Its admissibility is governed by the same rules as other forms of 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: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 106-07, per Martin J. (dissenting, but not on this point).

[7] After-the-fact conduct evidence is admissible if the material issue in question relates to the state of mind of the accused: Calnen, at para. 119. The admissibility of after-the-fact conduct evidence, and the use to be made of it by the trier of fact, depends on the nature of the evidence, the issues in the case, and the positions of the parties. Sometimes this type of evidence may be probative of a person’s participation in a crime, but of no value in determining the person’s level of culpability. In other cases, “as a matter of common sense and human experience, the evidence will be capable of supporting an inference that an accused had a particular state of mind”: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 42.

[8] The relevance of after-the-fact conduct evidence is assessed on a case-by-case basis and is fact-driven: Calnen, at para. 108. The issue is whether the evidence can support the inference sought to be drawn by the trier of fact. It is irrelevant to the particular issue in question if the conduct is “equally consistent” with the proposed inference and the alternate inference, such that the conduct does not allow the trier of fact to choose between available inferences as a matter of common sense, experience and logic: Calnen, at para. 124.

[9] In providing instructions regarding after-the-fact conduct evidence, it is critical that the trial judge outline the use to which the evidence may be used by the jury as this type of evidence poses unique reasoning risks. Jurors may be tempted to “jump too quickly from evidence of post-offence 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.

[10] There is no bright line rule controlling whether after-the-fact conduct evidence can be considered in assessing the statutory partial defence of provocation. The question is one of relevance: R. v. McGregor, 2019 ONCA 307, 145 O.R. (3d) 641, at para. 130.

[11] The defence of provocation depends, in part, on the accused’s subjective state of mind, the issue being whether the accused lost the power of self-control in response to the provocation and acted on the sudden before there was time for passion to cool: R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at paras. 36, 38; R. v. Barrett, 2022 ONCA 355, 162 O.R. (3d) 425, at para. 57.

[12] As previously indicated, after-the-fact conduct can be relevant to the accused’s state of mind, when, “as a matter of common sense and human experience, the evidence will be capable of supporting an inference that an accused had a particular state of mind”: R. v. MacKinnon (1999), 43 O.R. (3d) 378 (C.A.), at pp. 383-84.

[13] Accordingly, in some cases, after-the-fact conduct evidence can be appropriately left with the jury on the issue of provocation. For example, in R. v. Gould, 2008 ONCA 855, 244 O.A.C. 176, evidence that the accused threatened eyewitnesses, threw a knife in a sewer and made efforts to help the victim immediately after the stabbing was conceded to be potentially relevant to self-defence, provocation and intoxication: at paras. 4, 6.

[14] In the second-degree murder case of R. v. Pappas, 2012 ABCA 221, 288 C.C.C. (3d) 323, at para. 55, aff’d on other grounds, 2013 SCC 56, [2013] 3 S.C.R. 452, the court indicated that after-the-fact conduct may be sometimes relevant to the defence of provocation.

[15] In this case, I found that the inferences arising from the after-the-fact conduct by Mr. Musselman were too equivocal to be of value to the jury in determining Mr. Musselman’s state of mind. Running away from the shooting does not shed light on Mr. Musselman’s state of mind—everyone in the group ran after the shooting.

[16] The fact that Mr. Musselman did not drop his cup as he ran, provides limited insight into Mr. Musselman’s state of mind. The Crown argued he was cool-headed enough not to drop his cup after shooting Mr. Campbell. The Crown indicated that this is some evidence that he was not taken by surprise, on the sudden, reacting before he had time for his passions to cool.

[17] The Crown suggested that Mr. Musselman was sufficiently composed after the shooting to smoke a cigarette and had the presence of mind to change his hairstyle and leave the scene without assisting Mr. Campbell.

[18] After-the-fact conduct evidence, like other forms of circumstantial evidence, permits a fact finder to draw particular inferences based on a person’s words or actions: see White (1998), at para. 21; White (2011), at para. 22; R. v. Peavoy (1997), 34 O.R. (3d) 620 (C.A.), at pp. 628-29.

[19] In order to draw inferences, the decision maker relies on logic, common sense and experience. As with all circumstantial evidence, a range of inferences may be drawn from after-the-fact conduct evidence. The inferences that may be drawn “must be reasonable according to the measuring stick of human experience” and will depend on the nature of the conduct, what is sought to be inferred from the conduct, the parties’ positions and the totality of the evidence: Calnen, at para. 112, citing R. v. Smith, 2016 ONCA 25, 333 C.C.C.(3d) 534, at para. 77. That there may be a range of potential inferences does not render the after-the-fact conduct null: see R. v. Allen, 2009 ABCA 341, 324 D.L.R. (4th) 580, at para. 68. In most cases, it will be for the jury to determine which inferences they accept and the weight they ascribe to them. “It is for the trier of fact to choose among reasonable inferences available from the evidence of the after-the-fact conduct”: Calnen, at para. 112, citing Smith, at para. 78.

[20] Admissibility assessments are context specific and do not exist in the abstract. It is inherent that the relevance of the intended use be identified: Calnen, at paras. 113-14. The question is whether, as a matter of logic, common sense and human experience it would be open for the jury, on these facts, to infer Mr. Musselman’s state of mind at the time of the shooting based on the actions he took after the shooting. The line between a reasonable inference drawn from circumstantial evidence and speculation, is not always an easy one to draw.

[21] The accused was 18 at the time of the shooting. He had not completed high school. His conversations with I.A., captured on the intercepts, suggest someone whose friend group had an antipathy to police and law and order. It is trite to note that individuals experience the world differently. The trier must determine whether something is truly a matter of common sense, or whether it is simply makes sense in the trier’s view. Distinguishing between the two concepts is not an easy task, but it is a critical one. The first notion permits reasonable inferences to be drawn by the trier. The latter notion gives rise to speculative inferences and legal error.

[22] This jury was cautioned that they must be impartial and approach the case with an open mind and without pre-conceived ideas. The jury was also reminded that we all have beliefs and assumptions that affect our perception of the world.

[23] The jury was advised in my general instructions that no matter how unbiased we think we are, we look at others and filter what they say through the lens of our own personal background and experiences. The jury was told that unconscious biases may be based on stereotypes or feelings that one has about a particular group, namely traits that one associates with the group. I reminded the jury that while all human beings experience unconscious biases, these biases can be overcome through self-reflection and introspection. The jury was admonished to work diligently and vigilantly to set aside any stereotypes and decide the case on the evidence in the courtroom and my instructions on the law. This instruction is relevant, as the jury would be asked whether something is a matter of common sense as a result of human experience. Cognition of the fact that human experiences vary is critical to this assessment.

[24] It is true that juries are presumed to understand and follow the instructions given by the court. R v. Corbett, [1988] 1 SCR 670 paras 41 to 48. However, even in light of these instructions, in my view the evidence itself was not capable of supporting the inferences suggested by the Crown over alternate inferences. The evidence was relevant to identification but was not relevant to determine what state of mind Mr. Musselman had at the time of the shooting: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433 at para 39.

[25] It is not an unreasonable inference that Mr. Musselman may have continued to clutch his large white cup without even being aware that he still carried it. While he ran away after the shooting, this provides no insight into whether he had the state of mind for murder, or whether he was acting under provocation: R. v. White, [1998] 2 S.C.R. 72, at para. 57.

[26] Notably, everyone ran away after the shooting. Smoking a cigarette after the shooting may have been to calm his nerves, and not a sign of cool-headedness, or an indication that he had not acted before there was time for his passion to cool.

[27] The evidence is too equivocal to support the inference that Mr. Musselman had the state of mind for murder, as opposed to manslaughter due to provocation. For that reason, I instructed the jury that they could not use after-the-fact-conduct evidence to determine whether Mr. Musselman had the state of mind for murder but could use it for the purposes of identification of the shooter.

[28] For the reasons already outlined, the after-the-fact conduct evidence was also not relevant to assist the jury in distinguishing whether Mr. Musselman acted in defence of Mr. Vizigiro. I find that this is one of those cases where after-the-fact conduct is unable to assist the trier of fact in determining the accused’s level of culpability: Calnen, at para. 121, citing White (1998), at para. 23; White (2011), at para. 41; R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 53.

Released: January 30, 2024 Anne London-Weinstein J.