COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Rodgerson, 2014 ONCA 366

DATE:  20140508

DOCKET: C56484

Doherty, Feldman and MacPherson JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Rodgerson

Appellant

Catriona Verner, for the appellant

Megan Stephens, for the respondent

Heard: December 11, 2013

On appeal from the conviction entered by Justice J. Bryan
    Shaughnessy of the Superior Court of Justice, sitting with a jury, on October
    28, 2011, and the sentence imposed on December 6, 2011.

Doherty J.A.:

I

[1]

The appellant was charged with first degree murder and convicted of the
    included offence of second degree murder.  The trial judge imposed a sentence
    of life imprisonment without eligibility for parole for 14 years.  The
    appellant appealed his conviction and sentence.

[2]

For the reasons that follow, I would hold that the trial judge
    misdirected the jury on the use it could make of the appellants post-offence
    conduct.  The error is fatal to the conviction.  I would order a new trial on
    the charge of second degree murder.  I do not reach the sentence appeal.

II

[3]

The appellant killed Amber Young.  The two met at a bar and several
    hours later walked to the house where the appellant lived.  Both were
    intoxicated.  Ms. Young had also consumed various prescription drugs.  According
    to the appellant, Ms. Young gave him some ecstasy while they were at the bar.
    He also smoked marijuana at the bar.

[4]

The appellants roommate arrived at the house shortly after the
    appellant and Ms. Young.  He described the appellant and Ms. Young as
    stoned.  The appellant made a gesture to the roommate indicating he hoped to
    have sexual intercourse with Ms. Young.  The roommate left the house and did
    not return until around noon the next day.

[5]

The appellant testified.  His version of the events that occurred after his
    roommate left provided the basis for the defences advanced at trial and can be
    summarized as follows.

[6]

Shortly after the roommate left, the appellant and Ms. Young had consensual
    intercourse in the living room.  A short time later, they went into the bedroom
    to continue their sexual activity.  While in the bedroom, Ms. Young repeatedly
    referred to the appellant owing her $5.  The appellant responded by referring to
    Ms. Young as a whore.  She became incensed and attacked him with a knife, striking
    him at least twice.  The appellant punched Ms. Young in the face and she fell
    backward.  He tried to escape the bedroom but could not get the door open.  Ms.
    Young renewed her attack.  She stabbed the appellant in the back more than
    once.  They grappled and fell to the floor.  The appellant managed to get on
    top of Ms. Young and reached across her body, grabbing the wrist of the hand in
    which Ms. Young was wielding the knife.  Although the appellant did not realize
    it, his arm pressed down on Ms. Youngs neck, nose and face, inadvertently
    cutting off her air supply.  She quickly lost consciousness and died.  The appellant
    thought Ms. Young had passed out and he tried to drag her outside, but he
    became sick to his stomach and eventually passed out in the bathroom.

[7]

The appellant awoke the next day around noon and discovered that Ms.
    Young was dead.  After speaking to his roommate, the appellant decided to get
    rid of Ms. Youngs body and clean up the house.  He testified he was still
    impaired from the night before.  The appellant was concerned that he could be
    blamed for Ms. Youngs death.  His roommate did not want the police around the
    house because he feared that they would discover the marijuana he and the
    appellant were growing in the basement.

[8]

That evening under the cover of darkness, the appellant buried Ms. Young
    face down in a shallow grave he had dug in the backyard behind the garage.  The
    appellant stripped off Ms. Youngs clothing and jewellery and poured bleach he
    had purchased earlier that day over her body.  He testified that he used the bleach
    to cover the smell from the body.

[9]

Over the next two days, the appellant made extensive efforts to clean up
    the blood in the house and remove anything from the house that might be connected
    to Ms. Young or to the homicide.  Despite his efforts, the police discovered a
    great deal of forensic evidence when they examined the scene.

[10]

I
    will not review the forensic evidence in detail, although I will refer to some
    of it when considering the argument that the trial judge erred in his
    instructions to the jury on the potential evidentiary value of the appellants
    post-offence conduct.  It is sufficient for present purposes to observe that
    the Crown and defence urged the jury to take very different views of that
    evidence, especially when considered in combination with the evidence of the pathologist
    who performed Ms. Youngs post-mortem examination.

[11]

The
    defence argued that the forensic evidence was consistent with the appellants
    description of a short altercation in the bedroom near the door, during which
    he was attacked and stabbed by Ms. Young, punched her once in the face, and
    while attempting to defend himself against the attack, inadvertently smothered
    Ms. Young by placing his arm across her nose and mouth.

[12]

The
    Crown argued that the forensic evidence supported a finding that there had been
    a violent bloody struggle in the bedroom and possibly in the living room.  Ms.
    Youngs blood was located at several places within the bedroom.  The Crown argued
    that the forensic evidence established that she must have been struck several
    times at different places in the bedroom.  Two bloody handprints belonging to
    Ms. Young found near the floor on the wall of the bedroom suggested that she
    had been on the floor or on her knees when she pressed her bloody hands against
    the wall.

[13]

The
    Crown also contended that although the pathologist could not isolate a specific
    cause of death, his post-mortem examination revealed that Ms. Young had
    extensive head and facial injuries.  The pathologist testified that Ms. Young
    was struck in the head and face more than twice.

[14]

The
    appellants roommate spoke to the police about two days after Ms. Youngs death.
    After speaking to the roommate, the police went to the appellants house to execute
    a search warrant for drugs.  When they arrived, the appellant fled, but was
    quickly captured.  At trial, he indicated that he ran from the police because
    he thought they were intruders who were at the house to steal the marijuana he
    and his roommate were growing.

[15]

One
    of the arresting officers testified that as the appellant was being subdued, he
    said, I didnt do it, it wasnt me.  The appellant denied making that
    statement.

[16]

The
    appellant later gave a statement to the police in which he denied any
    involvement in Ms. Youngs death and suggested that his roommate may have been
    involved.  The appellant admitted in his evidence that he lied to the police in
    his statement.

[17]

At
    trial, the Crown took the position that the appellant was guilty of first
    degree murder under s. 231(5) of the
Criminal Code
.  The Crown argued
    that the appellant had murdered Ms. Young in the course of committing or
    attempting to commit a sexual assault and/or a forcible confinement.

[18]

It
    was the appellants position that he acted in self-defence.  This position was
    advanced primarily through the appellants own description of the relevant
    events.  Defence counsel also elicited evidence that Ms. Young, who was about
    the same size as the appellant, could be a very violent person when
    intoxicated.  In addition to the self-defence claim, the appellant argued that
    he had not intended to kill Ms. Young or cause her bodily harm that he knew was
    likely to cause death.  The appellant maintained that Ms. Youngs death was
    accidental, both in the sense that he had not meant to put his arm across her
    nose and mouth and interfere with her breathing, and he had not intended to
    kill her or cause her bodily harm that was likely to cause her death.  The
    trial judge also put the defence of provocation to the jury.

[19]

The
    verdict of not guilty of first degree murder but guilty of second degree murder
    indicates that the jury was not satisfied that the Crown had proved that the
    appellant murdered Ms. Young in the course of committing or attempting to
    commit sexual assault or unlawful confinement.  The Crown does not appeal from
    that acquittal.

[20]

The
    conviction on the charge of second degree murder indicates that the jury was
    satisfied that the Crown had proved that the appellant had killed Ms. Young with
    one of the culpable states of mind described in s. 229(a).  The jury was also
    satisfied that the Crown had negated the defences of self-defence and
    provocation.

III

[21]

The
    appellant advanced four grounds of appeal.  All arise out of the trial judges
    instructions.  Three relate to the instructions on the issue of the intent
    necessary for murder and one targets the instructions on self-defence.

A:  The Instruction on the Intent Required under Section
    229(a)(ii)

[22]

Counsel
    for the appellant submits that the trial judge misstated the foreseeability
    requirement in s. 229(a)(ii) when he told the jury that the Crown had to prove
    that the appellant saw the likelihood that Amber Young could die from the
    injury.  As counsel correctly observes, s. 229(a)(ii) requires that an accused
    foresee death as the likely consequence of the bodily harm inflicted by the accused.
    She submits that a realization of a likelihood that death
could
occur
    is a lesser culpability requirement than knowledge that death is likely to
    occur.  The difference, if any, seems slight.

[23]

The
    trial judges instruction appears to conflate the foreseeability requirement in
    s. 229(a)(ii) (likely to cause death) and the largely redundant requirement
    of recklessness in s. 229(a)(ii) (is reckless whether death ensues or not):
    see
R. v. Cooper
, [1993] 1 S.C.R. 146, at pp. 154-55;
R. v. Moo
,
    2009 ONCA 645, 247 C.C.C. (3d) 34, at paras. 45-48.

[24]

The
    impugned instruction was given in the course of the trial judges description
    of the elements of self-defence, although a similar brief passage also appears
    in his instructions on intoxication.  However, in the part of the instruction
    dealing specifically with the state of mind required for murder, the trial
    judge on at least three occasions correctly set out the foreseeability
    requirement in s. 229(a)(ii), telling the jury that the Crown had to prove that
    the appellant foresaw Ms. Youngs death as the probable consequence of his
    assault on her.

[25]

If,
    as in this case, different parts of the trial judges instructions are said to
    convey different descriptions of the requirements of s. 229(a)(ii), counsel for
    the appellant will demonstrate misdirection if, having regard to the charge as
    a whole, the court is satisfied that the jury would not have understood that foresight
    of the probability of Ms. Youngs death was an essential component of the
    definition of murder under s. 229(a)(ii): see
R. v. MacDonald
, 2008
    ONCA 572, 92 O.R. (3d) 180, at para. 49.

[26]

I
    am satisfied that the trial judges repeated, correct and clear instruction, given
    in the course of the instructions specifically referable to the state of mind required
    for murder, avoided any realistic possibility that the jury may have been confused
    or misled by the earlier and arguably slightly different instructions given in
    the context of the self-defence instruction.  In coming to this conclusion, I take
    into account the straightforward nature of the foreseeability requirement as
    described in s. 229(a)(ii).  Unlike some of the other concepts that the trial
    judge had to explain to this jury, the foreseeability requirement in s.
    229(a)(ii) is readily explainable and understandable.  Defence counsels
    failure to object to the instruction supports the view that, considered as a
    whole, the instructions adequately conveyed the mental state required to prove
    murder under s. 229(a).

B:  The Instruction on the Common Sense Inference

[27]

The
    second argument advanced on behalf of the appellant proceeds from the premise
    that the trial judge told the jury that it could assume that the appellant
    intended to cause Ms. Youngs death if the jury was satisfied that the
    appellants actions in fact caused Ms. Youngs death.  I do not think that the
    trial judges instructions can be read in this way.

[28]

The
    appellants state of mind arose in the context of several issues that had to be
    explained to the jury.  In doing so, the trial judge made several references to
    the common sense inference that a sober and sane person usually intends or
    means to cause the predictable consequences of his actions.  The trial judge
    explained that this inference might assist the jury in determining the
    appellants state of mind.

[29]

The
    trial judge did not suggest to the jury that the common sense inference was available
    merely because the appellant had caused Ms. Youngs death, an undisputed fact.
    Rather, the trial judge tied the inference to the predictable consequences of
    the appellants actions.  As the instructions made clear, it was for the jury
    to decide what the appellant had done that led to Ms. Youngs death and what
    the predictable consequences of his actions were.  It was a central theme of
    the defence that the appellant had not meant to restrict Ms. Youngs breathing
    and that her death was not a predictable consequence of his actions.  This
    theme could not possibly have been lost upon the jury.

[30]

The
    trial judge told the jury that the common sense inference he had described was
    not mandatory, but only permissible.  He told the jury that in considering
    whether to draw that inference, the jury must take into account all of the
    evidence.  The trial judge followed that instruction with a detailed review of
    the appellants evidence, including his evidence describing his actions that
    led to Ms. Youngs death.  The trial judge also tied the common sense inference
    to the evidence of the appellants alcohol and drug consumption.  He said:

In determining whether, in all the circumstances, it is proper
    to draw this permissible inference that Jason Rodgerson intended the natural
    consequences of his actions, you must take into account all of the evidence,
    including the evidence that the accused may have been in an impaired or reduced
    mental condition at the time of the killing.  The evidence may, of course,
    rebut that common sense inference.  If after a consideration of all of the
    evidence, you are left with a reasonable doubt as to whether or not it is
    appropriate to draw the inference that Jason Rodgerson intended the natural
    consequences of his actions, then you must not draw that inference.

[31]

I
    see no misdirection in the instruction.  The jury was told to consider all of
    the evidence, including the manner in which Ms. Young died in determining
    whether the common sense inference would assist in the determination of the
    appellants intent.  Nor, in my view, does the failure of the trial judge to
    specifically articulate the defence arguments in the context of the common
    sense inference instruction constitute non-direction amounting to
    misdirection.  The defence position came through loud and clear in the course
    of the trial judges instructions.  His failure to expressly connect that
    position to the common sense inference instruction does not constitute an error.

C:  The Self-Defence Instruction

[32]

The
    trial judge told the jury that self-defence as defined in s. 34(1), s. 34(2)
    and s. 35 was potentially applicable.
[1]
He outlined the essential components of each of the provisions.  The issue
    raised on appeal is relevant to self-defence as described in s. 34(2) and s.
    35, but not s. 34(1).

[33]

When
    instructing on s. 34(2), the trial judge told the jury that the defence was not
    available if the Crown proved beyond a reasonable doubt that the appellant did
    not reasonably fear that Ms. Young would kill or seriously injure him.  In the
    course of explaining this instruction, the trial judge said:

Jason Rodgerson was on his own premises when these events
    occurred.  There is no obligation on a person who is in his own premises to
    retreat from an attacker.
However, the matter of retreat is a factor to
    consider.
[Emphasis added.]

[34]

Counsel
    for the appellant submitted that the above instruction is contrary to this
    courts holdings in
R. v. Forde
, 2011 ONCA 592, 277 C.C.C. (3d) 1, and
R. v. Docherty
, 2012 ONCA 784, 292 C.C.C. (3d) 465.  In both cases,
    the court held that an accused who is in his own home is not obliged to retreat
    in the face of an attack to take advantage of self-defence as set out in s.
    34(2): see
Forde
, at paras. 42-43;
Docherty
, at para. 21.
    More importantly for this appeal, those cases also held that the failure to
    retreat is not a relevant factor in considering the application of s. 34(2):
Forde
,
    at paras. 54-55;
Docherty
, at paras. 70-71.

[35]

Counsel
    correctly identifies the
ratio
of
Forde
and
Docherty
.
    The difficulty with her submission is that the trial judge did not tell the
    jury that the appellants
failure
to retreat was a relevant consideration
    under s. 34(2).  Instead, he told the jury that the matter of retreat was a
    factor to consider when assessing self-defence under s. 34(2).

[36]

The
    appellant had testified that he tried to retreat from the bedroom when attacked
    by Ms. Young.  However, he could not get the bedroom door open and had to turn
    and defend himself against Ms. Youngs continued attack.  It was during that
    defence that the appellant applied what turned out to be fatal force.  The
    trial judge reminded the jury of this part of the appellants testimony when he
    was reviewing the evidence relevant to the self-defence claim under s. 34(2).

[37]

The
    trial judges instruction that the appellants efforts to retreat were relevant
    to s. 34(2), as opposed to an instruction about the irrelevance of the failure
    to retreat, benefitted the appellant and was consistent with the position taken
    by defence counsel in his address to the jury.  Counsel took no exception to
    the instruction about the relevance of the matter of retreat at any time
    during the extensive pre-charge discussions that eventually produced the
    instructions given to the jury.  No doubt, counsel appreciated that the
    instruction assisted the defence.

[38]

Counsel
    for the appellant also characterized the Crowns closing as misleading
    because Crown counsel suggested that the failure to retreat was relevant under
    s. 34(2).  This submission loses much of its force in light of my rejection of
    the submission that the trial judge told the jury that the failure to retreat
    was relevant to s. 34(2).  In any event, Crown counsels comments did not
    suggest that the failure to retreat was relevant to s. 34(2).  Crown counsel
    contrasted the appellants evidence of his response when he believed his life
    was in danger when the police, who he thought were robbers, arrived at his home
     he ran for his life  with the appellants evidence of his reaction when he
    believed his life was in danger from the knife-wielding Ms. Young  he stayed
    and fought.  Crown counsel made this argument in the course of a lengthy challenge
    to the credibility of the appellants version of events.  The submission,
    whatever its persuasive value, was appropriate and available on this record.

[39]

Counsel
    further argued that the trial judge wrongly implied that the failure to
    retreat from his home was relevant to the appellants claim of self-defence
    under s. 35.  That defence, a more limited defence than the defence provided in
    s. 34(2), is available to an accused who is the initial aggressor or provokes
    the initial assault: see
R. v. McIntosh
, [1995] 1 S.C.R. 686, at
    paras. 62-63, 79-80, per McLachlin J., in dissent, but not on this issue.  Understandably,
    there are significant restrictions on the availability of the defence of
    self-defence if an accused has precipitated the attack by assaultive or
    provocative conduct.  One of those restrictions is set out in s. 35(c), which
    requires that an accused must have:

declined further conflict and quitted or retreated from it as
    far as it was feasible to do so before the necessity of preserving himself from
    death or grievous bodily harm arose.

[40]

Retreat
    to the extent feasible is a specific element of the defence of self-defence as
    described in s. 35.  Nothing in the language of the section suggests that the
    retreat requirement is inapplicable if the accused, who is the initial
    aggressor or has provoked the assault, is in his own home.  The policy reasons that
    render retreat an inappropriate requirement when a person is attacked in his
    own home have much less force if the homeowner has provoked the attack by his
    assaultive or provocative conduct.

[41]

The
    trial judge instructed the jury on the requirement in s. 35(c).  He also
    reviewed the evidence relevant to retreat, including the appellants testimony
    that he tried to retreat, but was unable to open the door, at which point he
    was forced to defend himself from the oncoming, knife-wielding Ms. Young.  The
    instruction was fair and accurate.

[42]

In
    summary, the trial judge properly instructed the jury on the relevance of the
    evidence of the appellants attempted retreat as it related to s. 34(2).  He
    also properly instructed the jury on the requirement in s. 35(c) that the
    appellant decline further conflict and quit or retreat from it as far as was
    feasible to avail himself of the defence of self-defence described in s. 35.

D:  The Instruction on Post-Offence Conduct

(i)

Overview

[43]

The
    fourth ground of appeal arises out of the trial judges instructions as to uses
    the jury could make of the appellants post-offence conduct.  That conduct falls
    into three categories:

·

The appellants efforts to dispose of Ms. Youngs body, including
    digging a grave, stripping her body, removing her jewellery, burying her body, and
    pouring bleach over her body in the grave;

·

The appellants efforts to clean-up the scene of the homicide and
    remove all evidence connecting Ms. Young to the house; and

·

The appellants attempted flight and his lies to the police, both
    when he was first arrested and in the later interview, when he claimed he was
    not involved in Ms. Youngs death and suggested that his roommate was involved.

[44]

The
    trial judge told the jury that the evidence of the appellants post-offence
    conduct had five potential uses:

(i)
    to assist the Crown in proving that the appellant had not acted in self-defence;

(ii)
    to assist the Crown in proving that the appellant had not accidentally caused
    Ms. Youngs death;

(iii) to assist the
    jury in assessing the credibility of the appellants testimony;

(iv) to assist the
    jury in assessing the extent to which the appellant was affected by the
    consumption of alcohol and/or drugs; and

(v) to assist the Crown
    in proving that the appellant had the state of mind required for murder under
    s. 229(a).

(ii)

Arguments

[45]

Counsel
    for the appellant does not take issue with the potential uses of the evidence
    set out in (i) to (iv).  She submits, however, that none of the post-offence
    conduct could assist the jury in determining whether the Crown had proved that
    the appellant had the state of mind required for murder under s. 229(a).  Counsel
    argues that the post-offence conduct was as consistent with the appellant
    having unlawfully but unintentionally caused Ms. Youngs death, making him guilty
    of manslaughter, as it was with the appellant having killed Ms. Young with the state
    of mind required for murder under s. 229(a).  As the conduct was equally
    consistent with murder and manslaughter, the jury should have been told that
    the post-offence conduct could not assist in determining whether the appellant
    had the state of mind required for murder: see
R. v. Arcangioli
,
    [1994] 1 S.C.R. 129, at p. 145;
R. v. Angelis
, 2013 ONCA 70, 296
    C.C.C. (3d) 143, at paras. 53-55.

[46]

Counsel
    for the appellant further argues that not only did the trial judge err in failing
    to give a limiting instruction as to the use of the post-offence conduct, he
    exacerbated his error by instructing the jury that it could consider all of the
    post-offence conduct as evidence of intent.  In fact, counsel submits that the
    trial judge left the post-offence conduct as the primary, if not the exclusive,
    evidentiary basis upon which the jury could make a finding that the appellant
    had the requisite state of mind for murder.  Finally, counsel submits that this
    misdirection goes to the heart of the trial judges instructions on the
    question of intent, a central issue at trial.  Counsel points to trial
    counsels pre-charge objection to this part of the post-offence conduct
    instruction as indicative of the significance of the error.

[47]

Crown
    counsel submits that the trial judge properly instructed the jury that the post-offence
    conduct was relevant to the issue of the appellants intent when he caused Ms.
    Youngs death.  Counsel describes the following chain of reasoning which she
    argues was available on the evidence.  First, the jury could conclude from the post-offence
    conduct relating to the disposal of the body and the attempted clean-up of the
    house that the appellant had gone to significant lengths to try and destroy
    evidence of the extent of Ms. Youngs injuries and evidence that could reveal
    the nature and extent of the struggle in the house.  Second, the jury could
    infer from the first finding that the appellant had hid the body, attempted to destroy
    evidence on the body and destroyed evidence at the scene because he believed
    that the condition of the body and the scene would show that Ms. Young died
    after a prolonged and bloody battle during which she was struck in the face
    several times.  Third, if the jury drew the second inference, it could further
    infer that in fact the death had occurred after a bloody struggle and beating.
    Fourth, and finally, the jury could infer from the prolonged struggle and
    beating that the appellant had intended to either kill Ms. Young or cause her
    bodily harm that he knew was likely to cause her death and was therefore guilty
    of murder.

[48]

Crown
    counsels argument on appeal is consistent with the argument made by the Crown at
    trial and accepted by the trial judge as the basis for his instruction that
    post-offence conduct was relevant to the issue of the appellants state of mind.
    To paraphrase the Crowns submissions to the jury, the post-offence conduct showed
    not only that the appellant had killed Ms. Young, but also how he had killed
    her.  The manner in which the appellant had killed Ms. Young could shed
    valuable light on his state of mind when he killed her:  see
R. v. Teske
(2005), 32 C.R. (6th) 103 (Ont. C.A.), at paras. 81-87;
R. v. Panghali
,
    2012 BCCA 407, 328 B.C.A.C. 256, at paras. 61-66.  The Crowns submissions at
    trial and on appeal do not distinguish among the various categories of
    post-offence conduct.  The arguments are, however, directed primarily at the
    appellants efforts to hide the body and destroy evidence.

[49]

Crown
    counsel acknowledges that other inferences were available from the post-offence
    conduct.  She submits that the trial judge not only brought those alternative
    explanations for the post-offence conduct to the jurys attention, but told the
    jury that it must reject those explanations before it could use the
    post-offence conduct to support the case for the Crown.  This instruction was
    combined with a repeated caution concerning the potential danger in using
    post-offence conduct to infer guilt.  Crown counsel submits that the
    instructions, considered in their entirety, described a cautious and restrained
    approach to the use of the post-offence conduct.

(iii)

Analysis

[50]

Post-offence
    conduct is potentially circumstantial evidence of a fact in issue.  Its
    relevance depends on whether, considered in the context of the rest of the
    evidence, the issues raised at trial and the positions of the parties, it makes
    the existence or non-existence of a fact in issue more likely:
R. v. White
,
    2011 SCC 13, [2011] 1 S.C.R. 433 (
White #2
);
R. v. Peavoy
(1997), 34 O.R. (3d) 620 (C.A.), at pp. 628-29;
R. v. P.J.B.
, 2012 ONCA
    730, 298 O.A.C. 267, at para. 74;
R. v. J.A.T.
, 2012 ONCA 177, 288
    C.C.C. (3d) 1, at paras. 142-43.  Like all circumstantial evidence,
    post-offence conduct may be relevant to some issues and not to others.  Relevance
    to one material issue is generally a ticket to admissibility.
[2]
Thus, evidence of flight from the scene of an assault is relevant to the issue
    of identity as it is more likely that the individual who fled the scene was the
    perpetrator of the assault.  Evidence of flight is, however, irrelevant to the nature
    of the assault inflicted as flight does not make it more likely that the person
    who fled stabbed rather than struck the victim: see
Arcangioli
.  Like
    other evidence, if evidence of post-offence conduct is relevant to one fact in
    issue but not to others, a limiting instruction to the jury may be necessary.

[51]

Post-offence
    conduct need not point to only one reasonable inference to be relevant and
    admissible to prove a fact in issue.  If the inference urged by the Crown is
    reasonably available, the post-offence conduct will be left with the jury who,
    after considering any competing inferences available, will determine what
    effect, if any, should be given to the post-offence conduct evidence:
R. v.
    Allen
, 2009 ABCA 341, 15 Alta. L.R. (5th) 1, at paras. 67-68, affd, 2010
    SCC 42, [2010] 2 S.C.R. 648.

[52]

Could
    the evidence of the appellants actions said to constitute post-offence conduct
    reasonably support the inference of intent urged by the Crown?  That question
    must be addressed in respect of each of the three categories of post-offence
    conduct.  It does not follow that, because some post-offence conduct is
    reasonably capable of supporting an inference supportive of the existence of
    the necessary intent, all post-offence conduct is relevant to that issue.

[53]

I
    begin with the evidence of the appellants flight from the police and his false
    denials of any involvement in Ms. Youngs death, both upon his arrest and in his
    later police interviews.  That evidence was clearly relevant to certain issues
    at trial.  For example, the flight and lies could be considered in assessing
    the self-defence claim: see
Peavoy
, at pp. 631-32.  Evidence that the
    appellant fled the scene and lied to the police would support the inference
    that he had acted unlawfully when he caused Ms. Youngs death and, more
    specifically, that he had not acted in self-defence.

[54]

That
    same evidence could not, however, as a matter of common sense and human
    experience, shed any light on the appellants state of mind when he unlawfully
    caused Ms. Youngs death.  It cannot be said that the person who kills with the
    state of mind required for murder is more likely to flee and lie to the police than
    is the person who unlawfully kills without the state of mind required for
    murder.  Several cases in this court have held exactly that: see
R. v.
    Wiltse
(1994), 19 O.R. (3d) 379 (C.A), at pp. 384-85;
R. v. Marinaro
,
    [1996] 1 S.C.R. 462, adopting dissent of Dubin C.J.O., (1994), 95 C.C.C. (3d)
    74 (Ont. C.A.), at pp. 81-82;
Peavoy
, at pp. 630-31;
R. v.
    Figueroa
, 2008 ONCA 106, 232 C.C.C. (3d) 51, at paras. 33-43.  See also,
R.
    v. Feng
, 2012 BCCA 153, 319 B.C.A.C. 151, at paras. 33-39.  The reasoning
    in those cases applies to the evidence of the appellants flight and lies to
    the police.

[55]

The
    trial judge referred to the appellants post-offence conduct several times
    during his jury instructions.  He first referred to the post-offence conduct in
    explaining in general terms how the jury could use post-offence conduct as
    evidence.  In this part of his instructions, the trial judge distinguished
    between evidence of the appellants flight and his initial denial of
    responsibility upon arrest, and his subsequent lies to the police during
    questioning.  He included the flight and initial lie with the other post-offence
    conduct describing the hiding of the body and the clean-up of the murder scene.
    He characterized the subsequent lies to the police as a specific kind of
    post-offence conduct which he referred to as fabricated explanations.

[56]

The
    trial judge instructed the jury that it could use the post-offence conduct,
    including the appellants flight and his initial lie, as evidence of the
    appellants guilt.  After outlining the evidence, he said:

On the other hand, if you find Jason Rodgerson actually did or
    said what he is alleged to have done or said after the offence was committed,
    you must go on to consider next whether this was because
Jason Rodgerson
    was conscious of having committed an offence, including the offence charged, or
    for some other reason.

If you find that Jason Rodgerson actually did or said what he
    is alleged to have done or said after the offence was committed,
you must
    be careful not to immediately conclude that he did or said so because he was
    conscious of having committed an offence or the offence charged.
[Emphasis
    added.]

[57]

The
    trial judge reviewed the appellants various explanations for his post-offence
    conduct, including his flight and his evidence denying he made the statement
    attributed to him by the arresting officer.  The trial judge then reminded the
    jury that if, and only if, it was satisfied that the appellant did the things the
    trial judge described as post-offence conduct because he was conscious of
    having done what is alleged against him, could the jury use that evidence in
    reaching its verdict.

[58]

The
    trial judge gave a very similar instruction concerning the appellants false
    statements to the police during questioning.  He told the jury that before
    using those statements to assist the case for the Crown, the jury must find
    that the statements were deliberately fabricated and must reject the
    appellants explanation for making the statements.  He ultimately told the jury
    that evidence of the appellants fabricated explanations could be used:

[i]n deciding whether Crown counsel has proven the guilt of
    Jason Rodgerson beyond a reasonable doubt.

[59]

At
    no point in his instructions on the evidentiary use of post-offence conduct did
    the trial judge distinguish between the use of that evidence to establish
    liability for an unlawful killing (manslaughter) and the use of that evidence
    to prove the intent required for murder.  Instead, the trial judge referred to
    the evidence as potentially probative of the appellants commission of an
    offence, including the offence charged.

[60]

The
    trial judge returned to the post-offence conduct when instructing the jury on
    the intent required for murder under s. 229(a).  After setting out the
    requirements of s. 229(a) and explaining that the appellants state of mind was
    to be determined by inferences drawn from the evidence, the trial judge turned
    to the evidence.  He began with this instruction:

You should look at Jason Rodgersons words and conduct
    before, at the time and after the unlawful act that caused Amber Youngs
    death.  All of these things, and the circumstances in which they happened, may
    shed light on Jason Rodgersons state of mind.
They may help you decide
    what he meant or didnt mean to do.  [Emphasis added.]

[61]

The
    trial judge summarized the appellants evidence and said:

There is also the post-offence conduct which I have outlined to
    you previously as well as the fabricated explanation instruction I gave you.

The trial judge next reviewed the post-offence
    conduct, including the appellants utterances to the police upon his arrest.

[62]

Very
    shortly after the instructions on the issue of intent summarized above, the
    trial judge gave separate instructions on the defence of intoxication as it
    related to the issue of intent.  In the course of doing so, he once again told
    the jury that it could consider the post-offence conduct, including the
    fabricated explanation to the police, in determining whether the Crown had
    proved the state of mind required for murder.

[63]

Having
    regard to the general instructions on the evidentiary use of post-offence
    conduct, the instructions aimed specifically at the issue of the state of mind
    required for murder under s. 229(a) and the instructions on intoxication, I am
    satisfied that this jury must have understood that the appellants flight from
    the police, his lies to the arresting officer, and his subsequent lies to the
    police were potentially probative of the appellants state of mind at the time he
    killed Ms. Young.  The jury would have understood that it could, if it rejected
    the various explanations for the conduct, use the flight and the lies as
    evidence that the appellant either intended to kill Ms. Young or intended to
    cause her bodily harm that he knew was likely to cause death.  That inference
    was simply not available from the evidence of the appellants flight and lies
    to the police.  Nothing in that conduct, considered on its own or in the
    context of the rest of the evidence, could reasonably permit the jury to infer
    that the appellant had acted not only unlawfully in killing Ms. Young, but also
    with the state of mind required for murder.

[64]

The
    misdirection as to the potential use of the appellants flight and lies to the
    police amounts to an error in law.  I will consider the effect of that error
    after examining whether the evidence of the other post-offence conduct was
    properly left with the jury as relevant to the appellants state of mind.

[65]

As
    indicated above, relevance is a case-specific inquiry that can only be undertaken
    in the context of the entirety of the evidence, the issues raised and the
    positions taken by the parties at trial.  In this case, the expert forensic
    evidence called by the Crown provides essential context for the determination
    whether the post-offence conduct involving the attempts to hide the body and
    clean the scene could support an inference that the appellant had the state of
    mind required for murder when he killed Ms. Young.

[66]

The
    Crowns expert evidence could not provide a definitive opinion as to the nature
    of the struggle that went on between Ms. Young and the appellant before her
    death.  Nor could the Crowns expert pathologist offer a firm opinion as to the
    number of blows Ms. Young suffered.  However, I think the jury could reasonably
    interpret that expert evidence as inconsistent with the appellants description
    of a relatively brief struggle limited to an area by the door of the bedroom during
    which he struck Ms. Young in the face only once.  The jury could, based on the
    expert evidence, conclude that a significantly more prolonged and bloody
    struggle had occurred in various parts of the bedroom and perhaps even in the
    living room, during which time Ms. Young was struck in the face more than twice
    by the appellant.

[67]

I
    do not suggest that the Crowns expert evidence necessarily compelled the
    conclusions outlined above.  The evidence was open to different interpretations
    and its ultimate value to the respective positions of the Crown and the defence
    depended on the jurys assessment of it.  My point here is only that the jury
    could have accepted the evidence as supporting the Crowns position that there
    was a substantial struggle during which the appellant struck Ms. Young in the
    head more than twice.

[68]

If
    the jury accepted the view of the expert evidence urged by the Crown, the jury
    could have found that there was a significant struggle during which the
    appellant had struck Ms. Young on the face or head more than twice.  The jury
    could also have inferred that the appellant attempted to hide the body and destroy
    evidence at the scene because the injuries to the body and the blood at the
    scene would reveal an assault consistent only with an intention to cause bodily
    harm that would likely cause death.  If, and only if, the jury first found a
    struggle and an assault beyond that described by the appellant, could the
    appellants post-offence conduct in relation to the body and the scene
    potentially support the Crowns case on the issue of intent.

[69]

In
    coming to the view that the evidence could potentially assist the Crown on the
    issue of intent, I reject the appellants submission that the expert evidence
    was incapable of supporting findings that there had been a prolonged struggle
    and that Ms. Young had been struck in the head at least twice.  While
    undoubtedly the defence cross-examination of the experts presented a very
    different view of that evidence, the interpretation of the experts testimony
    was ultimately for the jury.

[70]

My
    conclusion that the post-offence conduct relating to the attempts to hide the
    body and destroy evidence were potentially probative of the appellants state
    of mind at the time he killed Ms. Young does not decide this ground of appeal
    against the appellant.  Counsel submits that even if the evidence was
    potentially probative on the issue of the appellants state of mind, its
    relevance to that issue was not self-evident.  Counsel submits that in the
    circumstances of this case, the trial judge had to explain to the jury how the
    evidence of the post-offence conduct could have potential probative value on
    the issue of the appellants state of mind.  Counsel contends that in this case
    the trial judges obligation to relate the evidence to the issues required an
    explanation as to how the post-offence conduct could be probative on the issue
    of intent.

[71]

I
    agree with this submission.  A trial judge has a general obligation to identify
    the issues and the evidence relevant to the issues for the jury.  Estey J., in
R.
    v. Azoulay
, [1952] 2 S.C.R. 495, p. at 503, put it this way:

The authorities contemplate that in the course of his charge
a
    trial judge should, as a general rule, explain the relevant law and so relate
    it to the evidence that the jury may appreciate the issues or questions they
    may pass upon in order to render a verdict of guilty or not guilty.  Where, as
    here, the evidence is technical and somewhat involved, it is particularly
    important that he should do so in a manner that will assist the jury in
    determining its relevancy and what weight or value they will attribute to the
    respective portions
.  It is, of course, unnecessary that the jurys
    attention be directed to all of the evidence, and how far a trial judge should
    go in discussing it must depend in each case upon the nature and character of
    the evidence in relation to the charge, the issues raised and the conduct of
    the trial.  [Emphasis added.]

[72]

The
    obligation identified in
Azoulay
is a general one.  It applies where
    the issue is intent and the evidence refers to post-offence conduct in the same
    way that it applies to other issues and other kinds of evidence.  It is no
    answer to a claim that the trial judge failed to relate the evidence of the
    post-offence conduct to the issue of intent to demonstrate that the trial judge
    adequately addressed certain cautions peculiar to the use of post-offence
    conduct.

[73]

As
Azoulay
makes clear, the manner in which the evidence should be
    related to the issues depends on the specifics of the case.  In many cases, the
    inference from post-offence conduct to the existence of a fact in issue to
    which the conduct is relevant will be direct and obvious to the jury without
    any explanation.  For example, in
R. v. White
, [1998] 2 S.C.R. 72 (
White
    #1
), the Crown relied on evidence of flight and related evidence as
    evidence that the accused had committed the murder.  The Crown argued that the
    post-offence conduct constituted circumstantial evidence of identity.  The
    defence acknowledged the flight but offered an alternative explanation for it.
    In that context, the inference from flight to participation in the murder was
    virtually automatic if the jury rejected the defence explanation for the
    flight.  As observed by Major J., at para. 57, the jury needed no explanation
    as to what inferences it could draw if it rejected the accuseds explanation
    for the flight.

[74]

The
    facts of this case are very different from those of
White #1
.  The
    potential connection between the appellants conduct in hiding the body and his
    attempt to clean the scene of the crime and the inference as to his state of
    mind when he killed Ms. Young is much more indirect and dependent upon other
    findings of fact than was the inference of identity from flight in
White #1
.
    Unlike
White #1
, the inference that the appellant had the intent
    required for murder would not flow automatically from the post-offence conduct
    if the appellants explanation for that conduct was rejected.  Indeed, the
    appellants explanation for his post-offence conduct  that he was afraid he
    would be blamed for Ms. Youngs death  was a neutral factor in terms of the
    drawing of any inference as to intent.  The jury could still find intent even
    if it accepted the appellants explanation.

[75]

On
    the evidence adduced in this case, the connection between the appellants hiding
    of the body and cleaning of the scene and his state of mind at the relevant
    time depended on the view the jury took of somewhat complex and nuanced expert
    evidence and the inferences it chose to draw from that evidence about the
    nature of the assault.  I am satisfied that the trial judges obligation to
    relate that evidence to the issue of intent required that he give the jury some
    help in understanding how the post-offence conduct could assist it in
    determining the issue of intent.  Simply telling the jury to consider the
    post-offence conduct on the issue of intent was not helpful in the
    circumstances of this case.

[76]

Before
    the post-offence conduct relating to the hiding of the body and the clean-up of
    the homicide scene could assist the Crown in proving the appellants state of
    mind, the jury first had to be satisfied that there was a somewhat prolonged
    and bloody struggle during which the appellant struck Ms. Young in the head or
    face several times, or at least more than twice.  The jury could come to that
    conclusion only after a careful consideration of the competing interpretations
    of the forensic evidence placed before it.  Second, the jury had to be
    satisfied that the appellant had engaged in the post-offence conduct to destroy
    evidence that would reveal an extensive struggle and assault well beyond that
    admitted by him in his evidence.  Again, the jury had to consider the forensic
    evidence as well as the appellants explanations.

[77]

The
    trial judges only reference to the manner in which the jury could use post-offence
    conduct came in his general instructions on post-offence conduct as a kind of
    evidence.  The trial judge told the jury that the evidence was relevant if it
    showed that the appellant was conscious of having committed an offence,
    including the offence charged.  That instruction was inadequate insofar as it
    was directed at the use of post-offence conduct to infer the appellants state
    of mind.  If the post-offence conduct showed only a consciousness by the
    appellant that he had committed an offence it had no probative value on the
    issue of intent.  A more specific inference was necessary.

[78]

In
    the part of the instructions devoted to the issue of the intent required for
    murder, the trial judge said nothing about how the jury could use the post-offence
    conduct in determining the appellants state of mind.  The trial judge simply
    told the jury that it could consider the post-offence conduct when deciding
    whether the Crown had proved the required intent.  The instruction told to the
    jury that the post-offence conduct including the burial of the body and the
    clean up of the murder scene could assist the Crown in proving the intent
    required for murder.  Unfortunately the instruction gave no hint as to how the
    evidence could do that.  In the circumstances of this case, the trial judges
    failure to relate the evidence of the post-offence conduct to the issue of
    intent by explaining to the jury the findings necessary before the post-offence
    conduct had probative value on the issue of intent constitutes non-direction
    amounting to misdirection.

IV

The Appropriate Order

[79]

The
    curative proviso, s. 686(1)(b)(iii), cannot be applied.  Once the jury got
    beyond self-defence, the appellants state of mind was the central issue at
    trial.  The two errors identified above went directly to the jurys
    consideration of that issue.  They cannot be described as minor in the sense
    that they could not reasonably have affected the result.  Nor was the Crowns
    case overwhelming.  While there was ample evidence upon which a jury could
    convict of second degree murder, especially if the jury accepted the Crowns
    view of the experts evidence, that verdict was far from inevitable on this
    record: see
R. v. Van
, 2009 SCC 22, [2009] 1 S.C.R. 716, at paras.
    34-36.  The appellant is entitled to a new trial on the charge of second degree
    murder.

Doherty J.A.

I agree K. Feldman
    J.A.

MacPherson J.A. (Dissenting):

[80]

I
    have had the advantage of reading the draft reasons prepared by my colleague
    Doherty J.A.  I agree with his analysis and conclusions on these three issues:
    (1) the jury instruction on the intent required under s. 229(a)(ii) of the
Criminal
    Code
; (2) the instruction on the common sense inference; and (3) the
    instruction on self-defence.

[81]

On
    the fourth issue  the instruction on post-offence conduct  I agree with my
    colleagues analysis and conclusion on one category of the post-offence conduct
    evidence.  However, with respect to the other two categories of this evidence,
    I do not agree with his analysis, and this leads me to a different result.

Post-offence conduct

[82]

As
    my colleague points out, there were three categories of post-offence conduct in
    issue at the trial: (1) the appellants efforts to dispose of Ms. Youngs body,
    including digging a grave, stripping her body, removing her jewellery, burying
    her body, and pouring bleach over the body in the grave; (2) his efforts to
    clean-up the scene of the homicide and remove all evidence connecting Ms. Young
    to the house; and (3) his attempted flight and his lies to the police.

[83]

With
    respect to the third category, the trial judge included it in his jury
    instruction relating to permissible use of post-offence conduct.  My colleague
    says:

I am satisfied that this jury must have understood that the
    appellants flight from the police, his lies to the arresting officer, and his
    subsequent lies to the police were potentially probative of the appellants
    state of mind at the time he killed Ms. Young.  The jury would have understood
    that it could, if it rejected the various explanations for the conduct, use the
    flight and the lies as evidence that the appellant either intended to kill Ms.
    Young or intended to cause her bodily harm that he knew was likely to cause
    death.  That inference was simply not available from the evidence of the appellants
    flight and lies to the police.  Nothing in that conduct, considered on its own
    or in the context of the rest of the evidence, could reasonably permit the jury
    to infer that the appellant had acted not only unlawfully in killing Ms. Young,
    but also with the state of mind required for murder.

The misdirection as to the potential use of the appellants
    flight and lies to the police amounts to an error in law.

I agree.  See also:
R. v. Arcangioli
, [1994] 1
    S.C.R. 129, at p. 145.

[84]

I
    turn to the other two categories of post-offence conduct.  I begin with this
    observation: these two categories  the attempt to dispose of Ms. Youngs body
    and the extensive effort to clean-up a blood-spattered house  are, in my
    opinion, much more closely associated with the actual events of the offence
    than the appellants flight and lies, which are commonplace in many criminal
    cases.

[85]

My
    colleague reaches the initial conclusion that these two categories of
    post-offence conduct were admissible at the trial, as the trial judge found.

[86]

I
    agree with this conclusion.  Indeed, in my view, this conclusion is, as the
    trial judge found, virtually inevitable in light of this courts decision in
R.
    v. Teske
(2005), 32 C.R. (6th) 103.

[87]

In
Teske
, the accused burned his wifes body and disposed of her ashes at
    a remote site.  The trial judge, in a judge alone trial, held that:

the extensive nature of the conduct is probative of the level
    of culpability of the accused.  Especially his action of disposing of her body
    the way he did.  In my view, the post-offence conduct, in the circumstances
    described, show the accused had more to hide than that he had caused her death
    without intending to do so.

[88]

This
    court agreed with the trial judges reasoning on this issue.  Speaking for the
    court, Doherty J.A. said, at paras. 86-87:

As a matter of common sense, it is reasonable to infer that
    someone who destroys a body after causing the death of the person does so
    because he knows that the victim suffered injuries that are inconsistent with a
    non-intentional cause of death.

The appellant engaged in an elaborate cover-up of his wifes
    killing.  Faced with this evidence, the trial judge inferred that the appellant
    had engaged in this concerted effort to cover up his wifes death because he
    had deliberately inflicted serious bodily harm likely to cause death.  I think
    this was an eminently reasonable inference.

See also:
R. v. Panghali
, 2012 BCCA 407, 328
    B.C.A.C. 256, at paras. 57-68.

[89]

However,
    in my colleagues eyes, this conclusion does not end the inquiry in this
    appeal.  He says:

Counsel submits that in the circumstances of this case, the
    trial judge had to explain to the jury how the evidence of the post-offence
    conduct could have potential probative value on the issue of the appellants
    state of mind.  Counsel contends that in this case the trial judges obligation
    to relate the evidence to the issues required an explanation as to how the
    post-offence conduct could be probative on the issue of intent.

I agree with this submission.

[T]he trial judges failure to relate the evidence of the
    post-offence conduct to the issue of intent by explaining to the jury the
    findings necessary before the post-offence conduct had probative value on the
    issue of intent constitutes non-direction amounting to misdirection.

[90]

With
    respect, I do not agree with this component of my colleagues reasoning or with
    his conclusion on this issue.  I say this for several reasons.

[91]

First,
    and most importantly, my colleagues proposed instruction about how the jury
    must reason on this issue is, in my view, directly contrary to the two leading
    decisions of the Supreme Court of Canada on this issue.

[92]

In
R. v. White
, [1998] 2 S.C.R. 72 (
White

1
), a
    unanimous court discussed when and how a judge or jury should use evidence of
    post-offence conduct.  The court recognized that in some cases it was
    appropriate to admit such evidence, but that there was a danger that juries
    might jump too quickly from evidence of post-offence conduct to an inference of
    guilt (para. 57).  According to Major J., at para. 57:

[T]he best way for a trial judge to address that danger is
    simply to make sure that the jury are aware of other explanations for the
    accuseds actions
, and that they know they should reserve their final
    judgment about the meaning of the accuseds conduct until all the evidence has
    been considered in the normal course of their deliberations.
Beyond such a
    cautionary instruction, the members of the jury should be left to draw whatever
    inferences they choose from the evidence at the end of the day
. [Emphasis
    added.]

[93]

Thirteen
    years later, in
R. v. White
, 2011 SCC 13, [2011] 1 S.C.R. 433, at
    para. 24 (
White 2
), the court, speaking through Rothstein J.,
    specifically endorsed this passage from
White 1
.  Rothstein J. then
    continued, at para. 33:

Before I proceed, it is critical to bear in mind that removing
    evidence from the jurys consideration is not the only way of dealing with
    evidence associated with a heightened risk of jury error.  It is also possible,
    and often appropriate, for the trial judge to warn the jury of the risks
    associated with certain types of evidence.  The purpose of such a caution is to
    alert the jury to the danger, which has been recognized through judicial
    experience, but then to allow the properly informed jurors to evaluate the
    evidence with care.

[94]

Then,
    in a separate section entitled
How a Caution Can Alleviate the Risks
    Associated With Certain Evidence That Ought to Be Left With the Jury
,
    Rothstein J. discussed the role of a caution in relation to post-offence
    conduct evidence that has been admitted during a trial.  He said, at para. 56:

A warning or caution does not serve to remove the evidence from
    the jurys consideration. Instead, providing a caution allows for juries to
    benefit from judicial experience concerning the risks associated with certain
    types of evidence, while respecting the jurys competence in fulfilling its
    fact-finding role.
The point is that once jurors are alerted to the risks
    that are not necessarily apparent to the average citizen, they can be trusted
    to properly weigh the evidence.  Our jury system is predicated on the
    conviction that jurors are intelligent and reasonable fact-finders.  It is
    contrary to this fundamental premise to assume that properly instructed jurors
    will weigh the evidence unreasonably or draw irrational and speculative
    conclusions form relevant evidence
.  [Emphasis added.]

[95]

The
    question of the accuseds post-offence conduct was a hotly contested issue at
    the trial.  The trial judge was completely familiar with the leading decision
    of this court,
Teske
, on admissibility and with the leading decisions
    of the Supreme Court of Canada on both admissibility (
White 1
) and
    caution (
White 2
).  He explicitly, and correctly, applied them.

[96]

In
    particular, the trial judge provided precisely the type of caution suggested by
    Rothstein J. in
White 2
.  He told the jury:

However, I wish to
caution
you about a potential
    danger concerning post offence conduct.  Post offence conduct may appear more
    probative than it really is, and may be, by its very nature, less reliable than
    it seems, or may be consistent with other less obvious explanations than the
    one advanced by Crown counsel.  You must consider evidence of post offence
    conduct with care and the caution I have provided to you.  I would also direct you
    to reserve your final judgment about Jason Rodgersons post offence conduct
    until
all
the evidence has been considered during your deliberations.

[97]

Moreover,
    he followed the direction of Major J. at paragraph 57 of
White 1
and
    alerted the jury to the fact that there may have been other explanations for
    the appellants post-offence conduct:

What a person said or did
after an offence was committed
    may indicate that he acted or spoke 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 other explanations for what Jason Rodgerson said
    or did afterwards, such that the conduct does not assist in deciding whether he
    acted unlawfully or whether or not he intended to kill Amber Young.

[98]

I
    also note that the trial judge reviewed, with clarity, care and balance, the
    Crown and defence positions, including the accuseds explanations, on the use
    the jury could make of the evidence relating to post-offence conduct.

[99]

In
    summary, the trial judge was aware of and applied the clear jurisprudential
    picture of
White 1
and
Teske
on admissibility and
White 2
on an appropriate caution.  With respect, my colleagues proposed expansion of
    the jury charge, which would potentially require the trial judge to engage in
    an extensive instruction about the jurys reasoning process, is contrary to the
    admonition in both
White 1
and
White 2
: Beyond such a
    cautionary instruction, the members of the jury should be left to draw whatever
    inferences they choose from the evidence at the end of the day; and contrary
    to the philosophy of
White 2
: The point is that once jurors are
    alerted to the risks that are not necessarily apparent to the average citizen,
    they can be properly trusted to properly weigh the evidence.

[100]

Second, in the
    context of a major, extensively canvassed post-offence conduct issue at trial,
    the overwhelming focus of both counsel and the trial judge was on its admissibility
    on the question of level of culpability.  Once the trial judge made his ruling
    on that issue and showed counsel his draft charge, both counsel suggested only
    minor changes in wording.  Interestingly, the words was conscious of having
    committed an offence, including the offence charged, which my colleague calls
    inadequate, were the result of a specific agreement by both counsel,
    explicitly accepted by the trial judge, and are the words proposed in
Watts
    Manual of Criminal Jury Instructions
, at p. 195.  In addition, defence
    counsel was particularly concerned to ensure that the trial judge direct the
    jury that they consider all the evidence, including Mr. Rodgersons own
    explanation for the conduct.  The trial judge did this.  In short, counsel accepted
    that the standard caution about post-offence conduct evidence was both
    necessary and sufficient.

[101]

Similarly, in
    the context of a major, extensively canvassed post-offence conduct issue on
    this appeal, the overwhelming focus of the appellants argument, in both the
    factum and oral submissions, was the admissibility issue.  The secondary focus
    was the appropriate caution.  The contents of the jury charge relating to
    post-offence conduct was an almost invisible issue on this appeal.
    Specifically, the appellant did not suggest any content that needed to be in
    the jury instruction on post-offence conduct in either the factum or oral
    submissions.

[102]

My point here is
    a simple one.  The issue  the only issue  on which my colleague proposes to
    allow the appeal was not an issue at the trial.  On appeal, it was barely an
    issue, touched upon by the appellants counsel in, at best, a glancing fashion.

[103]

Third, in my
    view, appellate courts should be very wary of expanding jury instructions,
    especially into areas (the jurys reasoning process in this case) where counsel
    do not seek an expansion of the proposed instruction.

A
    common theme of contemporary judicial and counsel discourse is that jury
    charges today are not as helpful to juries as in times past. That is because
    the modern jury charge is, especially in most murder cases, exceptionally long
    and complex, rendering doubtful a jurys comprehension and comfort.

[104]

In the domain
    presented by this appeal  the relationship between post-offence conduct and
    level of culpability  the law relating to admissibility and jury instructions
    is clear.  In this case, the trial judge properly applied
White 1
and
White
    2
and instructed the jury in accordance with the simple wisdom of those
    cases: Beyond such a cautionary instruction, the members of jury should be
    left to draw whatever inferences they choose from the evidence at the end of
    the day.

[105]

Fourth, I do not
    think that the actual content of the instruction about the jurys mandatory
    reasoning process proposed by my colleague is necessary.  As I read his
    reasons, this content is set out in a single paragraph, paragraph 76.

[106]

I would make two
    observations about this paragraph.  First, it appears that my colleague finds
    non-direction amounting to misdirection and, therefore, reversible error on
    the basis of the trial judges failure to instruct the jury on two points  and
    only these two points  in the post-offence conduct section of his jury
    charge.  Second, all of the matters set out in paragraph 76  a somewhat
    prolonged and bloody struggle, the appellant struck Ms. Young in the head or
    face several times, a careful consideration of the competing interpretations
    of the forensic evidence, an extensive struggle and assault, the
    appellants explanations  were covered in great detail by the trial judge in
    his jury charge.  They were at the heart of the trial and, therefore, also at
    the heart of the jury charge, and my colleague does not suggest that the trial
    judge erred in his treatment of any of them elsewhere in the charge.  I am
    confident that a jury properly instructed on all of these matters and provided
    with the general caution about use of post-offence conduct evidence would not
    embark on a faulty reasoning process.

Proviso

[107]

My conclusion is
    that following a three month trial, including the delivery of a 212 page jury
    charge, the trial judge committed a single error.  He should not have admitted,
    on the issue of intent, the evidence of the accuseds flight and lies to the
    police as post-offence conduct evidence.

[108]

The trial judge
    admitted seven items of post-offence conduct evidence in the three categories
    set out near the start of these reasons.  Six of the items in two categories
    were properly admitted.  Moreover, these two categories  disposing of Ms.
    Youngs body and cleaning-up the homicide scene  are, in my opinion, far more
    closely associated with the actual events of the offence than the appellants
    very brief flight and lies to the police.  In short, the jurys attention would
    be principally focussed on the accuseds conduct relating to his disposal of
    the body and efforts to clean up the scene.  In these domains, the trial judge
    correctly admitted the relevant evidence and appropriately cautioned the jury
    on its use.  Accordingly, I would apply the proviso in s. 686(1)(b)(iii) of the
Criminal Code
.

Disposition

[109]

I would dismiss
    the appeal.

Released: DD  MAY 08 2014

J.C. MacPherson J.A.

[1]
These sections, and other self-defence provisions, have been repealed.
    Self-defence is now addressed in a single provision (s. 34):  see S.C. 2012, c.
    9, s. 2.

[2]
As with any other evidence, post-offence conduct that is relevant can be
    excluded where its prejudicial effect outweighs its probative value:  see
White
    #2
, at para. 45, per Rothstein J.


WARNING

The President of the panel hearing
    this appeal directs that the following should be attached to the file:

An order restricting publication in
    this proceeding under ss. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or
    (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)     Unless an order is made under section
    486.4, on application of the prosecutor, a victim or a witness, a judge or
    justice may make an order directing that any information that could identify
    the victim or witness shall not be published in any document or broadcast or
    transmitted in any way if the judge or justice is satisfied that the order is
    necessary for the proper administration of justice.

(2)     On application of a justice system
    participant who is involved in proceedings in respect of an offence referred to
    in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or
    justice may make an order directing that any information that could identify
    the justice system participant shall not be published in any document or
    broadcast or transmitted in any way if the judge or justice is satisfied that
    the order is necessary for the proper administration of justice.

(3)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice if it is not the purpose of the disclosure to make
    the information known in the community.

(4)     An applicant for an order shall

(a) apply in writing to the presiding judge or
    justice or, if the judge or justice has not been determined, to a judge of a
    superior court of criminal jurisdiction in the judicial district where the
    proceedings will take place; and

(b) provide notice of the application to the
    prosecutor, the accused and any other person affected by the order that the
    judge or justice specifies.

(5)     An applicant for an order shall set out the
    grounds on which the applicant relies to establish that the order is necessary
    for the proper administration of justice.

(6)     The judge or justice may hold a hearing to
    determine whether an order should be made, and the hearing may be in private.

(7)     In determining whether to make an order, the
    judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk
    that the victim, witness or justice system participant would suffer significant
    harm if their identity were disclosed;

(c) whether the victim, witness or justice system
    participant needs the order for their security or to protect them from
    intimidation or retaliation;

(d) societys interest in encouraging the
    reporting of offences and the participation of victims, witnesses and justice
    system participants in the criminal justice process;

(e) whether effective alternatives are available
    to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the
    proposed order;

(g) the impact of the proposed order on the
    freedom of expression of those affected by it; and

(h) any other factor that the judge or justice
    considers relevant.

(8)     An order may be subject to any conditions
    that the judge or justice thinks fit.

(9)     Unless the judge or justice refuses to make
    an order, no person shall publish in any document or broadcast or transmit in
    any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions
    made at a hearing under subsection (6); or

(c) any other information that could identify the
    person to whom the application relates as a victim, witness or justice system
    participant in the proceedings.  2005, c. 32, s. 15.

486.6 (1)  Every person who fails to comply with an
    order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken
    against any person who fails to comply with the order, the publication in any
    document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity is
    protected by the order. 205, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. S.A., 2014 ONCA 266

DATE: 20140403

DOCKET: C57615

Rosenberg, Cronk and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.A.

Appellant

Daniel F. Moore, for the appellant

John McInnes, for the respondent

Heard and released orally: March 28, 2014

On appeal from the sentence imposed on April 3, 2013 by
    Justice Robert Goldstein of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant took two acquaintances on successive dates to secluded
    places and sexually assaulted them. There was evidence of planning and the
    appellant took the victims to places which he had obviously previously
    selected. The offences involved the use of violence and threats and attempted
    rape in one case. Although the appellant at the time was 23 years old and had
    no record, these serious offences required a penitentiary sentence. The
    sentence of 5 years imprisonment was appropriate. The only error by the trial
    judge was to suggest that the range for these types of offences could be as low
    as reformatory. The offences involved in this case required a penitentiary
    sentence of some length. Given the circumstances in this case, the sentence
    imposed was lenient and reflected the appellants relative youth and lack of
    record.

[2]

Accordingly, while leave to appeal sentence is granted, the appeal is
    dismissed.

M. Rosenberg J.A.

E.A. Cronk J.A.

R.G. Juriansz J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Singh, 2014 ONCA 293

DATE: 20140417

DOCKET: C57549

Laskin, Juriansz and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Sabrina Singh

Respondent

Michael Fawcett and Grace Choi, for the appellant

Bruce Ritter, for the respondent

Heard: February 25, 2014

On appeal from the decision of the Summary Convictions
    Appeal Court dated July 29, 2013 by Justice Patrick J. Flynn of the Superior
    Court of Justice, allowing the appeal from the conviction entered on October
    23, 2012 by Justice G.F. Hearn of the Ontario Court of Justice.

Juriansz J.A.:

A.

Introduction

[1]

The Crown seeks leave to appeal from the decision of the summary conviction
    appeal judge allowing the respondents appeal from her conviction for operating
    a motor vehicle while her blood-alcohol level was over 80, contrary to s. 253
    (1) (b) of the
Criminal Code
, R.S.C. 1985, c. C-46. The summary
    conviction appeal judge concluded that the Crown had not met its burden to
    prove that breath samples were taken from the respondent as soon as
    practicable, as required by s. 258 (1) (c) (ii) of the
Criminal

Code
.

[2]

The essential chronology is as follows:

2:01 AM       the respondent was arrested

2:22 AM       the arresting officer and respondent arrived at
    the police station

3:11 AM       the respondent was delivered to the breath
    technician

3:22 AM       the taking of the first breath sample was
    completed; the reading was 170 mg of alcohol/100 mL of blood

3:50 AM       the taking of the second breath sample was
    completed; the reading was 160 mg of alcohol/100 mL of blood

[3]

The respondent called no evidence at trial. The respondents only
    argument at trial was that the timing of the breath samples did not comply with
    s. 258 (1) (c) (ii). That section sets out one of the requirements that must be
    satisfied in order for breath test results to be admitted into evidence as
    conclusive proof of the concentration of alcohol in the accuseds blood at the
    time of the offence. It requires that each sample be taken as soon as
    practicable after the alleged offence, that the first sample be taken within
    two hours of the alleged offence, and that there be an interval of at least 15
    minutes between the two samples.

[4]

The respondent took no issue with the time that had passed from the
    traffic stop to the completion of the first breath test. Rather, the respondent
    argued that the Crown had failed to prove the second test was taken as soon as
    practicable because it had not called evidence to specifically explain the
    28-minute delay between the first and second breath samples.

[5]

The trial judge rejected that position. The trial judge considered the
    entire time frame and the whole chain of events. He commented that the Crown
    need not provide an explanation for every minute that the accused was in police
    custody. He concluded that all of the times were reasonable and that the police
    had acted as soon as practicable.

[6]

The summary conviction appeal judge allowed the respondents appeal. In
    light of the statutory requirement that there be an interval of at least 15
    minutes between the taking of the two samples, he noted, and both counsel
    accepted, that one commonly sees an interval of 17 to 20 minutes between the
    two tests. This left an unexplained delay of 8-11 minutes in this case.

[7]

In assessing that 8-11 minute delay, the summary conviction appeal judge
    declined to apply this courts decision in
R. v. Vanderbruggen
(2006),
    206 C.C.C. (3d) 489 (C.A.), because it was not a case about unexplained delay
    between samples. Rather his analysis reflects a line of cases that considers
    this courts earlier decision in
R. v. Bugler
, [1997] O.J. No. 2283
    (C.A.) to be the authority that specifically applies to delay between samples.

[8]

Illustrative of this line of cases is
R. v Blacklock
, [2008]
    O.J. No. 1472 (S.C.).
Blacklock,
which was discussed by both the trial
    judge and summary conviction appeal judge, explained
Bugler
as
    follows:

15      In
R. v. Bugler
, supra, the Ontario Court of
    Appeal, in a short endorsement, set aside the conviction where there was a
    40-minute delay between the first and second breath tests. The conviction was
    set aside on the basis that there was "no evidence to account for the 40
    minutes" that elapsed between the two breath tests, and therefore,
    "the presumption of the level of alcohol was not available" to the
    Crown.

16      Several cases in the Ontario Court of Justice which
    have followed
Bugler
dealt with delays ranging from 29 to 38 minutes,
    and where no evidence was led to show that the second test was taken as soon as
    practicable.

[9]

The courts decision in
Bugler
is a four-sentence oral
    endorsement. The courts entire reasons are as follows:

The trial judge clearly felt that in this case an exploration
    was called for to account for the 40 minute delay between the first and second
    tests. The explanation he "accepted" was a misapprehension that the
    appellant was on the phone with his lawyer during that time. In fact there was
    no evidence to account for the 40 minutes and if the trial judge had
    appreciated that he would undoubtedly have concluded that the requirement of
    the Code had not been met and the presumption of the level of alcohol was not
    available. There was no other evidence of the alcohol level of the accused and
    it follows that the conviction must be set aside and an acquittal entered.

[10]

As
    can be seen, these brief reasons contain no recitation of the facts that would
    enable a reader to understand the overall circumstances of the case, how the
    40-minute delay between tests fit into those circumstances, or why the court
    was satisfied that the trial judge clearly felt that in this case an
    exploration was called for to account for the 40 minute delay between the first
    and second tests. On appeal it was established that the trial judges finding
    that the delay was explained was based on a misapprehension of the evidence.
    This court seems to have inferred from the trial judges reasons that in the
    absence of a proper explanation he would have concluded that in the
    circumstances the as soon as practicable requirement had not been met and so
    entered an acquittal.

[11]

Bugler
should not be read to stand for the proposition that an unexplained gap
    between the two tests, viewed in isolation without considering the whole chain
    of events, can support the conclusion that the as soon as practicable
    requirement was not met.
Bugler
does not articulate any proposition of
    law.

[12]

While
    all decisions of this court are binding, care must be taken to avoid reading
    unwarranted jurisprudential principles into a decision of the court rendered in
    an endorsement as brief as in
Bugler
. Such endorsements are intended
    primarily to simply pronounce a decision for parties who, having been present
    in court during the argument of the appeal, will understand the thrust of the
    courts reasoning. When the court intends to articulate jurisprudential
    principles for the first time, it does so in a written judgment.
Vanderbruggen
is such a case. This court has expressed this caution before. See the remarks
    of Osborne J.A. at para. 36 of
R. v. Timminco Ltd./Timminco Ltée
(2001),
    54 O.R. (3d) 21 (C.A.)
:

Reasons of this court given by
    "endorsement" are mainly directed to the immediate parties.
    Endorsements, like all judgments of this court, have precedential value but
    they should not be construed to support broad overarching principles which are
    not specifically addressed in them.

[13]

The
    summary conviction appeal judge was wrong to distinguish
Vanderbruggen
on the basis that it was not a case about the unexplained delay between the two
    samples.
Vanderbruggen
is the governing authority. There,

Rosenberg
    J.A. stated, at para. 12, that the question at the heart of the appeal was the
    meaning of as soon as practicable. He discussed the meaning of the phrase
    generally, and it is apparent that that discussion encompasses the time between
    the two tests. Justice Rosenberg referred to the tests and the breath
    samples at para. 13. He said that the Crown was not required to provide a
    detailed explanation of what occurred during every minute that the accused is
    in custody. That statement obviously applies to the time between the two tests
    because the accused remains in custody in that interval.

[14]

That
    trial judge drew and applied the correct principles from paras. 12-13 of
Vanderbruggen.
The requirement that the samples be taken as soon as practicable does not
    mean as soon as possible. It means nothing more than that the tests should be
    administered within a reasonably prompt time in the overall circumstances. A
    trial judge should look at the whole chain of events, keeping in mind that the
Criminal
    Code
permits an outside limit of two hours from the time of the offence to
    the taking of the first test. The "as soon as practicable"
    requirement must be applied with reason.

[15]

It
    is worth repeating that the Crown is not required to call evidence to provide a
    detailed explanation of what occurred during every minute that the accused is
    in custody. These provisions of the
Criminal Code
were enacted to
    expedite the trial process by facilitating the introduction of reliable
    evidence to prove an accuseds blood-alcohol level. Interpreting these
    provisions to require an exact accounting of every moment in the chronology
    from the time of the offence to the second test runs counter to their purpose.
    As Rosenberg J.A. said in
Vanderbruggen
, at para. 12, "The
    touchstone for determining whether the tests were taken as soon as practicable
    is whether the police acted reasonably."

[16]

Finally,
Vanderbruggen
also provides at para. 14 that Whether the samples were
    taken as soon as practicable ... [is] an issue of fact for the trial judge. The
    trial judge found they were. There was, in this case, no suggestion that the
    interval between the two samples was somehow related to the reliability of the
    results. The summary conviction appeal judge had no basis to interfere with the
    decision of the trial judge, who did not err in interpreting s. 258 (1) (c)
    (ii) or in applying that provision to the facts of this case.

[17]

I
    would grant leave to appeal, allow the appeal, and restore the conviction
    entered by the trial judge.

Released: April 17, 2014

(J.L.)
    R.G. Juriansz J.A.

I agree John Laskin J.A.

I agree David Watt J.A.