COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McDonald, 2017 ONCA 568

DATE: 20170705

DOCKET: C55940

MacPherson, Cronk and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher David McDonald

Appellant

Philip Campbell, for the appellant

Grace Choi, for the respondent

Heard: October 31, 2016

On appeal from the conviction entered on May 23, 2012 by
    Justice John R. Belleghem of the Superior Court of Justice, sitting with a jury.

Watt J.A.:

[1]

One spring day in Guelph, several
    Grade 8 students were outdoors for their physical activity class. Nearby their
    school was a park. One of the students saw something lying on the ground in a
    wooded area of the park. He approached, then left to report his finding to a
    teacher who called the police.

[2]

On the ground was the naked body
    of a woman. Her body placed in a sexually degrading position. Signs of injury
    visible. Subsequent examination would reveal a significant, and potentially
    fatal, concentration of cocaine and its metabolite in her blood.

[3]

Forensic analysis of semen in and
    on the body of the deceased, and of a substance under one of her fingernails,
    linked Christopher McDonald to the body.

[4]

A jury found Christopher McDonald
    guilty of first degree murder and aggravated sexual assault for his involvement
    in the injuries to and death of the deceased. The trial judge stayed the
    aggravated sexual assault conviction pursuant to
R. v. Kienapple
, [1975]
    1 S.C.R. 729.

[5]

Christopher McDonald appeals his
    conviction of first degree murder on several grounds. These reasons explain why
    I am satisfied that his appeal must be allowed, the convictions set aside and a
    new trial ordered.

THE BACKGROUND FACTS

[6]

To begin, a brief narrative of relevant events will suffice, with
    greater detail awaiting consideration of the specific grounds of appeal
    advanced.

The Principals

[7]

The deceased was 29 years old. In her late teens, she had been diagnosed
    with mental health problems for which she was prescribed medication. She was
    addicted to crack cocaine and, depending on its availability, would smoke it
    daily. She frequented a local crack house not far from where her body was
    found. To fund her drug purchases, she engaged in sex work.

[8]

Until May 23, 2008, Christopher McDonald lived with his girlfriend in
    her apartment. That day, McDonalds girlfriend ended their relationship, packed
    up his belongings and left them for him to retrieve at the apartment building.
    She rejected his entreaties during the following days about reconciliation,
    leaving him homeless.

The Habits of the Deceased

[9]

Some of the deceaseds friends testified about her personal hygiene. She
    was a clean person from which they inferred she showered daily or every other
    day. Some of her clients who paid for various sexual services recounted her
    insistence on the use of condoms should they have sexual intercourse with her.

The Events of May 23-25, 2008

[10]

On May 23, 2008, the day his girlfriend issued him his departure notice,
    or the following day,
Christopher McDonald was
    to start a job with a construction company operated by Kris Turner. But
    McDonald failed to begin work as scheduled. He explained to Turner that his
    girlfriend had thrown him out of her apartment and that he also had a medical
    emergency.

[11]

In need of workers, Turner agreed that
    McDonald could stay at his (Turners) home for a couple of days. Shortly after
    McDonald moved in, on May 24 or May 25, 2008, he left Turners home to go out.
    He returned about 4:00 p.m., visibly drunk, with his shirt torn and knuckles
    raw.

[12]

Christopher McDonald explained to Kris
    Turner that he (McDonald) had become involved in a fight in a local Irish bar.
    He had intervened in a dispute between a man and his girlfriend about a dream
    catcher the girlfriend had made for McDonald. He showed Turner the dream
    catcher and a bra he claimed the woman had given to him. Shortly after their
    conversation, McDonald told Turner that the woman was waiting for him down the
    street. McDonald left Turners house and returned later that same night.

[13]

Julie Barnes, Kris Turners wife,
    recalled that McDonald arrived at their home on May 25, 2008, a Sunday.
    McDonald dropped off his belongings and left the house. He returned around
    11:00 p.m. Ms. Barnes noticed McDonalds knuckles were scraped and red, which
    McDonald attributed to construction work.

[14]

Ms. Barnes acknowledged that she and
    Turner had created a calendar in October 2008 to clarify their memories about
    McDonalds arrival at their home. The calendar referred to bloody knuckles,
    bra, dream catcher not only on Saturday, May 24, but also on Sunday, May 25,
    2008. She agreed that this reflected the un-clarity they had about the dates
    those events occurred when they prepared the calendar. At trial, she placed the
    date of McDonalds arrival as May 25, 2008.

The Last Sighting of the Deceased

[15]

A taxi driver reported having seen the deceased at the taxi companys
    dispatch office around 5:00 a.m. on May 25, 2008. No one reported having seen
    her alive thereafter.

The Discovery of the Deceased

[16]

The body of the deceased was found during the afternoon of May 27, 2008.
    Drag marks suggested that the body had been dragged to its resting place after
    death.

The DNA Findings

[17]

Biological samples taken from the deceaseds body were subjected to DNA
    analysis. Deposits of semen were found on her chest and in her vagina. They
    matched the DNA profile of Christopher McDonald, such that the possibility of
    generating a random match was one in 130 billion. Organic material from under
    one of the deceaseds fingernails also conformed to McDonalds DNA profile, but
    at a much lesser frequency of random occurrence.

[18]

A forensic biologist testified that semen can remain in the vagina of a
    living woman for up to seven days. No estimates were provided in connection
    with semen in the vagina of a deceased woman. The forensic biologist testified
    that the biological material under the deceaseds fingernail and the semen on
    her chest could have been transferred there from her vagina.

The Time of Death

[19]

Dr. Sherah VanLaerhoven, a forensic entomologist, examined insect larvae
    seized from the body of the deceased. The larvae were those of the common
    blowfly, an insect attracted to the remains of deceased humans or animals. Dr.
    VanLaerhoven was able to conclude that the eggs must have been deposited on the
    body by a certain time of day by examining the eggs found on the body to see
    the extent to which the larvae had developed, and considering the temperature
    over the time leading up to the discovery of the body and recovery of the eggs.
    She also took into account the fact that blowflies do not deposit eggs on
    deceased remains at night.

[20]

In this case, Dr. VanLaerhoven concluded that the blowfly eggs were
    deposited on the body of the deceased not later than 3:00 p.m. on May 25, 2008.

The Toxicology Evidence

[21]

A forensic toxicologist found cocaine and its metabolite in the
    deceaseds blood. The witness testified that the concentration recorded fell
    within an area of tremendous overlap between levels associated with recreational
    use of the drug and those potentially fatal. Recreational use refers to
    consumption by recreational users without toxic effects.

The Cause of Death

[22]

Dr. John Fernandes conducted the post-mortem on the body of the
    deceased.

[23]

Dr. Fernandes saw some marks on the surface of the deceaseds body which
    he considered to be drag marks associated with dragging the body of the
    deceased through the wooded area to its final resting place. He noted several
    blunt force injuries to the head, neck, torso, arms and legs of the deceased,
    all of which had been inflicted prior to or about the time of death.

[24]

Dr. Fernandes testified that the deceased had suffered some facial
    injuries which could have resulted from a single blow to the face or a
    collision with a hard object. There were also some, albeit minimal, subdural
    and subarachanoid hemorrhages, but no skull fracture.

[25]

Dr. Fernandes saw a red area on the front of the deceaseds neck, but he
    found no bruising in the underlying neck muscles. Some petechial hemorrhages
    were visible in one of the deceaseds eyes. These hemorrhages may originate
    from a variety of causes, including neck compression and cocaine ingestion, but
    are not indigenous to either. While he introduced the notion of manual
    strangulation as a cause of death, Dr. Fernandes could not confidently say that
    the deceased died from a lethal application of force to the neck.

[26]

Dr. Fernandes certified the cause of the deceaseds death as
    unascertained. He did so because there was more than one possible explanation
    for why she died. She could have died from the application of force to her face
    and neck while under the influence of a significant concentration of cocaine.
    Or she could have died from cocaine poisoning, which causes an overstimulation
    of the heart.

[27]

Dr. Fernandes testified that the indicia of assault that he saw on the
    body of the deceased were not of the sort likely to cause death, whether
    considered individually or cumulatively. The most significant injury  a
    subdural hematoma  would not typically be fatal, but could cause death or
    unconsciousness. The contributing role of the assault could not be ignored
    despite the potentially lethal cocaine concentration.

Christopher McDonalds Explanation

[28]

Christopher McDonald did not testify at his trial. As part of her
    case-in-chief, the Crown introduced an interview of McDonald by investigators.
    The interview was audio and video recorded. McDonald was told that he was not under
    arrest or being charged with anything at that moment. He was given his
Charter
advice and told he could leave the interview at any time. In response to
    McDonalds question, the police confirmed that he was not a suspect.

[29]

Investigators showed McDonald a photograph of the deceased and asked
    whether he knew her. At first, he said she looked familiar, although he did not
    know her name. He knew her from a local drop-in centre and acknowledged that
    they might have had sex and smoked drugs together. As the interview progressed,
    he admitted having had intercourse and both anal and oral sex with the
    deceased, including once at his girlfriends apartment which he remembered
    specifically because we almost got nailed.

[30]

In response to questions about whether he had ever been in the bush area
    where the deceaseds body was found, McDonald said it was possible that he had
    been there and had sex with the deceased there. He had been in a lot of parks.
    He used them for taking drugs and having sex. If he had been there and had had
    sex with the deceased there, McDonald said that this would have occurred prior
    to being hired by Kris Turner.

THE GROUNDS OF APPEAL

[31]

Christopher McDonald (the appellant) raises three grounds of appeal. As
    I would paraphrase them, he submits that:

i.

the trial judge erred in admitting evidence of the Barrie incident and
    in instructing the jury on its use in determining whether the Crown had proven
    the appellants guilt beyond a reasonable doubt;

ii.

the verdict of the jury is unreasonable on the issues of causation and
    the fault element in murder; and

iii.

the trial judge erred in his instructions to the jury on causation and
    on the fault element in murder.

[32]

The appellant also seeks leave to introduce expert evidence from Dr.
    Sherah VanLaerhoven to clarify what may have been a misunderstanding about the
    evidence she gave at trial and from Dr. Christopher Milroy, a forensic
    pathologist, about the cause of the deceaseds death, in particular, whether
    she could have died from neck compression.

Ground #1: The Admissibility and Use of Evidence of the Barrie Incident

[33]

The first ground of appeal has two dimensions. The first has to do with
    admissibility. The second concerns the trial judges instructions to the jury
    about the use of the evidence in reaching a conclusion about the appellants
    guilt.

[34]

A convenient point of departure for the discussion that follows is a
    description of the evidence that is the subject of the alleged errors.

The Barrie Incident

[35]

The Barrie incident occurred on July 14, 2009, about 14 months after the
    death of the deceased. The appellant pleaded guilty to aggravated assault for
    his conduct on that occasion. At his trial for the murder of the deceased,
    proof of the Barrie incident was given by an Agreed Statement of Facts and
    filing the transcript of his guilty plea. No one gave
viva voce
testimony about the incident.

[36]

The victim in the Barrie incident was a 44-year old
    developmentally-challenged woman who occasionally used street drugs and engaged
    in sex work. On the day the offence occurred, the appellant was under
    surveillance by officers of the police force that investigated the murder of
    the deceased.

[37]

On July 14, 2009, while under surveillance, the appellant drank a lot of
    alcohol at various downtown Barrie bars. At different times and places, he was
    joined by others. The victim approached him at a downtown intersection. They
    joined hands and walked into a nearby alley. The surveillance team lost sight
    of them.

[38]

About an hour later, a pedestrian walking by the area saw the appellant
    on top of the victim in some shrubbery in a residential area. The victim was
    making a gurgling sound, her face bloodied from blows struck by the
    appellant. The appellant, who was moving his body up and down in a pumping
    motion, gestured for the pedestrian to move on. The pedestrian went to a nearby
    house and proceeded to call the police. The homeowner looked outside and heard
    someone say shut the fuck up and lay still.

[39]

Local police responded to a 911 call. They observed the appellant as he
    stood up and pulled on his shorts. The appellant was apprehended shortly after.
    They noticed blood on his hands and feet. The victims watch was recovered
    beside the appellants shirt.

[40]

The victim was breathing but initially unresponsive. She was naked below
    the waist. Her legs were spread apart, her T-shirt and bra pushed up to her
    shoulders. Although the victim survived the assault, she suffered significant
    facial injuries and bruising to her neck. These injuries were consistent with
    several blows to the head and face. She had also suffered lacerations to her
    external genitalia, indicative of the application of significant force.

The Positions Advanced at Trial

[41]

Crown counsel at trial (not Ms.
    Choi) advanced evidence of the Barrie incident as evidence of subsequent
    discreditable conduct that established that the appellant had the specific
    propensity to do what he was alleged to have done. According to the trial
    Crown, the evidence was relevant to prove motive, which, in turn, was relevant
    to establish identity and intent, and to rebut a claim of innocent association.
    As more probative than prejudicial, the evidence was admissible.

[42]

Trial counsel for the appellant
    (not Mr. Campbell) characterized the evidence of the Barrie incident as
    evidence of a general, not a specific, propensity. Evidence of general
    propensity is
prima facie
inadmissible. In addition, counsel contended, the circumstances of the Barrie
    incident did not display the enhanced degree of similarity required when such
    evidence, here of only a single incident, is tendered in proof of identity. Counsel
    went on to submit that the evidence was not relevant to the issue of innocent
    association. That the appellant assaulted another sex worker says nothing about
    his interactions with the deceased, unless the jury was being asked to draw the
    prohibited inference: because of his general character, his contact with the
    deceased was not innocent in nature. In the end, trial counsel concluded, the
    moral and reasoning prejudice associated with the Barrie incident outdistanced
    its minimal probative value and warranted its exclusion.

The Ruling of the Trial Judge

[43]

The trial judge considered the
    decision in
R. v. Handy
, 2002
    SCC 56, [2002] 2 S.C.R. 908 to be the authority that governed his decision on
    admissibility.

[44]

The trial judge characterized the
    evidence about the Barrie incident as evidence that established a specific
    propensity on the part of the appellant to do what was alleged against him,
    namely to inflict a high degree of violence in the course of a sexual assault.
    The evidence was relevant to establish a motive for the killing and to rebut any
    claim of innocent association advanced on the appellants behalf. While the
    similarities considered individually did not reveal a unique trademark, their
    cumulative effect lead to a different result. Viewed as a whole, the conduct
    disclosed by the Barrie incident was almost a carbon copy to that involved in
    the offence charged and therefore sufficiently similar to warrant its
    characterization as evidence of similar acts. Further, there was no doubt about
    the appellants involvement in it.

[45]

The trial judge relied on the
    following catalogue of similarities between the Barrie incident and the offence
    charged:

i.

both victims are sex workers;

ii.

both victims are street drug
    users;

iii.

both victims have problems related
    to their mental health;

iv.

both incidents occurred outdoors;

v.

both incidents occurred in
    relatively public places;

vi.

both incidents apparently occurred
    during daylight hours;

vii.

both victims had violence
    inflicted about their head on both occasions during the course of what were
    apparent sexual assaults;

viii.

in The Barrie Incident the
    victims watch was found near the defendants shirt some distance away from the
    victim and it appears as though he had taken it; while in the present case
    there is evidence from which the jury could infer that the brassiere produced
    by the defendant to his employer could be a similar memento as argued by the
    Crown;

ix.

it appears that the defendant was
    intoxicated at the time of the Barrie incident and there is evidence that he
    may have been in the same condition around the time the deceased died;

x.

in The Barrie Incident the
    defendant was clearly bloodied from the attack and appeared to his employer, in
    the present case, with bloodied knuckles around the time of the events in
    question;

xi.

the context in which The Barrie
    Incident took place and the apparent context of the present case may be
    virtually identical (this distinguishes the present case from
Handy
as
    does any issue of collusion);

xii.

the incidents here are fourteen
    months apart, rather than a number over a seven year period (the context above
    in the relatively short timeframe enhances the probity); and

xiii.

the incidents take place in
    localities with relatively similar populations, i.e. mid-size rather than large
    cities or small towns.

[46]

In assessing, then balancing
    probative value and prejudicial effect, the trial judge assessed the probative
    value as very high. He characterized the prejudicial effect, both moral and
    reasoning prejudice, as limited, and admitted the evidence to establish motive
    and to rebut innocent association.

[47]

In his charge to the jury, the
    trial judge instructed the jury that evidence of the Barrie incident could
    assist them in their determination whether the appellant caused the deceaseds
    death, whether he caused the death unlawfully, whether he had the requisite
    mental element required for murder, and whether the murder occurred during the
    course of a sexual assault.

The Arguments on Appeal

[48]

The parties took as their starting point on this ground of appeal the
    admissibility of the evidence of the Barrie incident, then turned their
    attention to the trial judges instructions on the use the jury could make of
    that evidence. In summarizing their submissions, I will follow the same
    sequence.

[49]

The appellant acknowledges that deference is the place at which
    appellate review of a trial judges decision, which required a balancing of
    probative value and prejudicial effect of evidence tendered for admission, must
    begin. But deference gives way the appellant says, where, as here, the trial
    judge has erred in law in his analysis of both the probative value and
    prejudicial effect of the evidence.

[50]

To take first, the assessment of probative value. The trial judge found
    that the evidence of the Barrie incident was relevant to establish motive for
    the killing of the deceased and to rebut any assertion of innocent association.
    But the evidence of the Barrie incident, the appellant claims, had nothing to
    do either with proof of motive or rebuttal of innocent association.

[51]

The appellant says that there was no evidence that the Barrie incident
    was motivated by any unusual sexual appetite or desire for sexual
    gratification, as the trial judge himself seemed to realize prior to charging
    the jury. It could say nothing about any motive which may have prompted the
    offence charged 14 months earlier. Likewise, the Barrie incident could not be
    summoned to rebut a claim of innocent association. Indeed, in this case, there
    was no claim of innocent association, rather a complete denial. I was not
    there. I did not do it.

[52]

As a result, the appellant continues, the trial judge evaluated
    probative value in connection with issues on which it was not logically
    probative (motive) and not raised at trial (innocent association). The trial
    judge should have evaluated the probative value of the evidence on the issue of
    identity. Had he done so, the trial judge could only have concluded that the
    evidence could not reach the degree of similarity required by the authorities.
    There was nothing unique about the Barrie incident and an accumulation of
    unremarkable general similarities equally falls short.

[53]

In assessing prejudicial effect, the appellant says the trial judge
    mischaracterized the extent of moral prejudice associated with the Barrie
    incident. His conclusion on this issue was, in a word, unreasonable. The
    repugnant facts of the Barrie incident could easily lead to skewed fact-finding
    on the case at large.

[54]

In the end, the appellant continues, a proper assessment of probative
    value and prejudicial effect, followed by a proper settling of the balance
    between them, required exclusion of the Barrie incident as evidence at the
    appellants trial.

[55]

In the alternative, assuming evidence of the Barrie incident was
    properly admitted at trial, the appellant submits that the trial judges
    instructions about the use the jury could make of the evidence were defective.
    Although the trial judge admitted the evidence to establish a motive for the
    killing and to rebut any claim of innocent association, the instructions with
    which he provided the jury about its use of the evidence were seriously
    deficient.

[56]

The trial judge never instructed the jury that the evidence was relevant
    to prove motive and rebut innocent association. In advising the jury that they
    could consider the Barrie incident in determining whether the Crown had proven
    beyond a reasonable doubt that the appellant had caused the death of the
    deceased, had unlawfully killed the deceased, had committed murder and that the
    murder was first degree murder, the trial judge erred. Evidence of the Barrie
    incident, the appellant says, could not assist in proof of
any
of
    these issues upon which it lacked any relevance.

[57]

The respondent begins with a
    reminder about deference. The trial judges assessment of probative value,
    prejudicial effect and where the balance settled between them is entitled to a
    high degree of deference on appeal. In reaching his conclusion on each issue,
    thus in deciding evidence of the Barrie incident was admissible, the trial
    judge made no legal error, misapprehended none of the material evidence and did
    not reach an unreasonable conclusion. Deference has not been displaced. End of
    story.

[58]

The respondent says that the trial
    judge properly assessed the probative value of the evidence of the Barrie
    incident. The appellant mischaracterizes the issue at trial as identity. A more
    accurate characterization of it is, as the trial judge had it, rebutting a
    claim of innocent association. The appellant was linked to the deceased by his
    own admission and his DNA. Reduced to its simplest terms, the appellants
    defence was that he had had sexual contact with the deceased, but had nothing
    to do with her death. Evidence of the Barrie incident was relevant to this
    issue.

[59]

According to the respondent, the
    circumstances of the Barrie incident satisfied the similarity threshold to
    warrant admission as evidence of similar acts. The high degree of similarity
    required where identity is in issue is not appropriate here. This evidence was
    not required to bear the entire burden of connecting the appellant with the
    offence charged where a standard of striking similarity like a signature is
    apt. The circumstances of the Barrie incident established the improbability of
    coincidence and, as a result, tended to establish the
actus reus
of the offence.

[60]

Further, the respondent contends,
    the trial judge properly assessed the prejudicial effect of the evidence of the
    Barrie incident. As for moral prejudice, admittedly the evidence reveals bad
    personhood. But what it shows is not a general propensity, rather a specific
    propensity to engage in the very conduct at issue here, namely violence to the
    head during a sexual encounter. The prospect of reasoning prejudice was not
    significant in this case. The evidence was of a single incident presented
    through a transcript and an Agreed Statement of Facts. It left no reasonable
    prospect that its introduction would divert the jurys attention from the
    single controverted issue at trial.

[61]

The respondent rejects any
    suggestion of inadequacy or error in the trial judges instructions about the
    use of this evidence. The instructions did not, expressly or by necessary
    implication, invite the jury to use propensity reasoning, or give them free rein
    to use the evidence to complete proof of any essential element of the offence.

[62]

The respondent points out that
    trial counsel for the appellant did not object to the manner in which the trial
    judge left this evidence to the jury. Counsel on both sides did not want the
    trial judge to review the similarities and dissimilarities between the two
    incidents, rather they wanted to do so (and did so) themselves in their closing
    addresses. In the end, the instructions were even-handed and neutral and warned
    jurors not to engage in bad character reasoning.

The Governing Principles

[63]

The principles that control resolution of this ground of appeal concern both
    the admissibility of evidence of extrinsic misconduct and its use by the trier
    of fact in determining whether the guilt of an accused has been proven beyond a
    reasonable doubt.

The Admissibility of Evidence of Extrinsic Misconduct

[64]

Controversies about the admissibility of evidence at trial get settled
    by the application of basic principles to the unique circumstances of each
    case. It is no different when an appellate court is asked to review a decision
    on admissibility made at trial. And so it is that I consider some basic
    principles in resolving the claim of error advanced in this case.

[65]

Relevance is a bedrock concept in
    the law of evidence. But it is not an inherent characteristic of any item of
    evidence. Attaching a label to an item of evidence, in this case, extrinsic
    misconduct, does not establish its relevance. For relevance is relative. It
    exists as a relation between an item of evidence and a proposition of fact that
    the proponent of the evidence seeks to establish by its introduction. See
R.
    v. Luciano
, 2011 ONCA 89, 267 C.C.C. (3d)
    16, at para. 204.

[66]

Relevance is a matter of everyday
    experience and common sense. An item of evidence is relevant if it renders the
    fact that it seeks to establish slightly more or less probable than that fact
    would be without the evidence, through the application of everyday experience
    and common sense:
Luciano
, at para. 204.

[67]

It follows that, to be relevant,
    an item of evidence need not conclusively establish the proposition of fact for
    which it is offered, or even make that proposition of fact more probable than
    not. All that is required is that the item of evidence reasonably show, by the
    application of everyday experience and common sense, that the fact is slightly
    more probable with the evidence than it would be without it:
Luciano
, at para. 206;
R. v. Arp
, [1998] 3 S.C.R. 339,
    at para. 38.

[68]

A final point about relevance. We
    assess relevance in the context of the entire case and the positions of
    counsel. Relevance does not exist in the abstract or in the air:
R.
    v. Cloutier,
[1979] 2 S.C.R. 709, at pp.
    730-33;
Arp
, at para. 38. Hence the importance that the proponent
    identify the issue(s) to which the evidence is relevant:
R. v. Handy
, at paras. 73-75.

[69]

The trial judge admitted evidence
    of the Barrie incident for two purposes at trial: to establish motive and to
    rebut a claim of innocent association. Each requires brief examination.

[70]

Motive is not an essential element
    in murder or in its classification as first degree murder. But evidence of
    motive is relevant, material and admissible in prosecutions for murder,
    especially where the case for the Crown is wholly or largely circumstantial:
Luciano
, at para. 164;
R. v. Lewis
, [1979] 2 S.C.R. 821, at pp. 833-38.

[71]

Evidence of motive is material
    because it helps to establish two critical components of the case for the
    Crown: the identity and state of mind of the person who is alleged to have committed
    the offence:
Luciano
, at para. 165;
Plomp v. The Queen
(1963), 110 C.L.R. 234 (H.C.), at pp. 243, and
    249-50;
R. v. Griffin
, 2009 SCC
    28, [2009] 2 S.C.R. 42, at paras. 59-60;
R. v. Candir
, 2009 ONCA 915, 250
    C.C.C. (3d) 139, at paras. 51 and 72.

[72]

Evidence of motive is a species of circumstantial evidence used to
    prove, or to assist in proving, a human act. By nature, evidence of motive is
    prospectant: because a person had a motive to do an act X, that person probably
    did the act X alleged: Peter Tillers, ed.,
Wigmore on Evidence
, vol.
    1A (Toronto: Little, Brown and Company, 1983)
§
    51, pp. 1144-1146; see also
R. v. Yumnu
, 2010 ONCA 637, 260 C.C.C. (3d)
    421, at para. 273, affirmed on other grounds, 2012 SCC 73, [2012] 3 S.C.R. 777.

[73]

Motive may be evidenced by a
    persons words, conduct or some combination of each. On occasion, the conduct
    said to establish motive may involve the commission of offences other than
    those charged or other extrinsic misconduct:
Luciano
, at para. 114. The evidence of extrinsic misconduct
    must be relevant to prove the alleged motive and properly admissible under the
    rules of evidence.

[74]

The term innocent association lacks
    precise definition. However, at bottom, it is a label that reflects denial of
    an essential element of the Crowns proof:
Handy
, at para. 72. It usually refers to non-culpable
    presence, a denial of participation in the conduct requirement, or
actus
    reus
of the offence: I was there, but I
    didnt do it.

[75]

Whether the descriptor is
    evidence of extrinsic misconduct or evidence of similar acts, the general
    rule of admissibility and the test to be met to engage the exception remain the
    same.

[76]

Evidence of extrinsic misconduct
    or similar acts is
prima facie
inadmissible. The rule generally prohibits character evidence from being used circumstantially
    to prove conduct. This prohibits an inference from the extrinsic misconduct or
    similar acts to propensity or disposition (character) to do the acts charged,
    and a second inference from propensity or disposition (character) to guilt of
    the offence charged:
Handy
, at
    para. 31;
Arp
, at para. 40.

[77]

The policy basis for the
    exclusionary rule is well-established. Despite the relevance of propensity
    inferred from extrinsic misconduct or similar acts, this evidence may also
    capture the attention of the trier of fact, especially a jury, to an
    unwarranted degree. Its potential for prejudice, distraction and
    time-consumption is considerable and nearly always outdistances its probative
    value. And so it is that, generally at least, evidence of extrinsic misconduct
    or similar acts supportive of an inference of propensity or disposition is
    excluded from the case an accused has to answer:
Handy
, at para. 37.

[78]

However, evidence of extrinsic
    misconduct or similar acts is not shown the exit door on every occasion on
    which it is tendered for reception. Sometimes, an issue may arise in a trial on
    which evidence of extrinsic misconduct or similar acts may be so highly
    relevant and cogent that its probative value in the search for the truth
    outweighs its potential for misuse by the trier of fact. In these cases, it
    falls to the Crown to establish, on a balance of probabilities, that the
    probative value of the evidence exceeds its prejudicial effect:
R.
    v. Perrier
, 2004 SCC 56, [2004] 3 S.C.R.
    228, at para. 18. See also
Handy
,
    at para. 41. The policy basis for the exceptional admission of this evidence is
    that the deficit of probative value weighed against prejudicial effect on which
    the prophylactic approach is predicated is reversed. Probative value exceeds
    prejudicial effect, because the force of similar circumstances defies
    coincidence or other innocent explanation:
Handy
, at para. 47;
Perrier
, at paras. 19-20.

[79]

Where evidence of extrinsic
    misconduct or similar acts is tendered to prove identity, that is to say, that
    it was the accused who committed the offence(s) charged, a high degree of
    similarity between the extrinsic misconduct or similar acts and the offence(s)
    charged is required before the evidence will be admitted. The similarity may be
    a unique feature, akin to a signature, or an accumulation of significant
    similarities:
Arp
, at paras. 43,
    45, and 48-50. Where the evidence is adduced to establish identity, the jury is
    asked to infer from the degree of distinctiveness or uniqueness that exists
    between the crime charged and the evidence of extrinsic misconduct or similar
    acts that the accused is the very person who committed the offence(s) charged.
    This inference becomes available only if the high degree of similarity between
    the acts renders the likelihood of coincidence objectively improbable:
Arp
, at para. 43.

[80]

Essential to a determination of
    probative value, thus to settling the probative value-prejudicial effect
    balance, is the need to identify the issue to which the evidence of extrinsic
    misconduct or similar acts relates. Probative value, like relevance, cannot be
    assessed, much less determined in the abstract. The issues that arise in any
    given case derive from or are a function of the allegations contained in the
    indictment and the defences advanced by the person charged:
Handy
, at paras. 73-75. We reject a category approach to
    admissibility in favour of a general principle that assesses, then balances,
    probative value and prejudicial effect:
R. v. B. (C.R.)
, [1990] 1 S.C.R. 717, at pp. 732-733.

[81]

The initial assessment of the
    similarity between the extrinsic misconduct or similar acts and the offence(s)
    charged must be based on the acts themselves and not on evidence of the
    accuseds involvement in those acts:
Perrier
, at paras. 21-22. See also
R. v. Woodcock
(2003), 177 C.C.C. (3d) 346 (Ont. C.A.), at paras.
    79-81, leave to appeal refused, 330 N.R. 191 (note).

[82]

Turning now to the prejudice
    associated with the introduction of evidence of extrinsic misconduct or similar
    acts. There are two general kinds.

[83]

Moral prejudice refers to the stigma
    of bad personhood, a verdict based on prejudice, rather than proof. This
    involves a forbidden chain of reasoning where guilt of the offence charged is
    inferred from the general disposition or propensity established by the
    extrinsic misconduct or similar acts:
Handy
, at paras. 31, 71, 100 and
    139. A related concern is that the jury may also tend to punish an accused for
    the other misconduct by finding him guilty of the offence(s) charged through
    the application of a less demanding standard of proof:
R. v. D. (L.E.)
,
    [1989] 2 S.C.R. 111, at pp. 127-128.

[84]

Reasoning prejudice refers to the
    distraction of jurors from their proper focus on the offence(s) alleged by the
    introduction of evidence of extrinsic misconduct:
Handy
, at paras. 100
    and 144. Jurors might become confused as they concentrate on resolving whether
    the accused actually committed the similar acts or engaged in the extrinsic
    misconduct. Their attention may be deflected from the main purpose of their
    deliberations, the allegations contained in the indictment:
D. (L.E.)
,
    at pp. 127-128. This distraction is aggravated by the consumption of time
    required for the introduction of this evidence:
Handy
, at para. 144.

[85]

Decisions of trial judges admitting or
    rejecting evidence of extrinsic misconduct or similar acts are entitled to a
    high degree of deference on review by appellate courts:
Arp
, at para. 42;
B. (C.R.)
, at p. 739;
Handy
, at para. 153. Deference will give way, however, in
    the face of legal error, a misapprehension of material evidence or an
    unreasonable result:
Luciano
, at
    para. 234.

[86]

A final note concerns the use of evidence
    of extrinsic misconduct or similar acts. Evidence of extrinsic misconduct or
    similar acts is evidence of limited admissibility with inherent prejudice. As a
    result, limiting instructions are required to explain its permitted use and to
    inoculate jurors against its prohibited use:
Luciano
, at para. 116;
D. (L.E.)
, at pp. 127-128.

The Principles Applied

[87]

As I will explain, I would give effect to both aspects of this ground of
    appeal. In my respectful view, the trial judge erred in admitting the evidence
    of the Barrie incident and in instructing the jury about its use in determining
    whether the Crown had proven its case against the appellant beyond a reasonable
    doubt.

[88]

To begin, I find it helpful to situate the admissibility issue in the
    case as presented at trial.

[89]

The deceased was found naked in a wooded area. The position and
    condition of her body suggested that:

i.

some kind of sexual activity had occurred prior to or contemporaneous
    with her death;

ii.

she had suffered some injuries; and

iii.

she had not died in the place where her body was found.

In combination, these circumstances were capable of
    supporting an inference that someone had killed the deceased.

[90]

The Crown alleged that the appellant killed the deceased in
    circumstances amounting to murder under s. 229(a)(ii) of the
Criminal Code
and that the murder was first degree murder pursuant to s. 231(5) of the
Criminal
    Code
because it occurred while the appellant was committing the predicate
    offence of sexual assault or aggravated sexual assault on the deceased.

[91]

The case for the Crown was entirely circumstantial. The evidence
    adduced, in particular the evidence of the examining pathologist, left open an
    issue of causation and, as a result, a question whether the deceased was
    unlawfully killed.
The pathologist who conducted
    the post-mortem could not say positively how the deceased had died. He could
    and did say she had a significant concentration of cocaine and its metabolite
    in her blood. She had suffered injuries that would not usually be fatal, but
    could be so in light of the cocaine she had on board.

[92]

Subsequent investigation revealed a link
    between the appellant and the deceased. The appellant acknowledged that he had
    had sexual intercourse with the deceased, perhaps in the park where her body
    was found, sometime before he began working for Kris Turner. And the
    appellants semen was found in the deceaseds vagina and on her chest.
But
when
the deceased died could not be established with any certainty,
    although it was obviously after a cab driver had seen her early in the morning
    of May 25 and before her body was found in the afternoon of May 27, 2008. The
    time of death was further narrowed by the evidence from the forensic
    entomologist who concluded that the deceased was dead no later than 3:00 pm on
    May 25, 2008.

[93]

A principal issue at trial
    concerned how the deceased died, whether from the toxic effects of cocaine, or
    by some human agency, and if the latter, whether that human agency was the
    appellant. These issues framed the inquiry into the admissibility of the evidence
    of the Barrie incident.

[94]

With this background, I turn to the admissibility issue raised by the
    appellant.

[95]

Evidence of the Barrie incident was proffered and admitted as evidence
    of a similar act to establish a motive for the killing of the deceased and to
    rebut a claim of innocent association. It is the correctness of that
    determination that is at issue here.

[96]

In responding to this claim of error, I begin, as I must, from a posture
    of significant deference to the conclusion reached by the trial judge in
    assessing, then balancing, the probative value of the evidence and its
    prejudicial effect. However, in this case, I am satisfied that the deference
    which is the trial judges due, must give way in light of several errors, the
    cumulative effect of which leads to the conclusion that this evidence should
    not have been admitted at trial. Not to establish motive. Not to rebut innocent
    association. And not on any other ground.

[97]

First, motive.

[98]

Evidence of motive is circumstantial evidence. It involves prospectant
    reasoning: because a person had a motive to do an act X, therefore he probably did
    the act X alleged against him. The inference is forward-looking. The motive
    precedes the doing of the act. It is not backward-looking.

[99]

As with any item of circumstantial evidence, its utility rests entirely
    on the validity of the inference the proponent seeks to have the trier of fact
    draw from it. The inference sought need not be the only inference, or even the
    most probable inference, but it must be among the field of available
    inferences, not mere speculation. And that is where the evidence of the Barrie
    incident misses the mark here. It does not rise above mere speculation.

[100]

No bright line rules can be created to foreclose words and conduct after
    an offence as evidence of an actors state of mind at the time the offence was
    committed. Proximity in time and place are relevant factors that warrant
    consideration in determining admissibility. However, in this case I am simply
    not satisfied that evidence of the Barrie incident, as a matter of logic and
    common sense, is capable of providing evidence of motive for the commission of
    the offence with which we are concerned.

[101]

Second, innocent association.

[102]

Evidence of the Barrie incident was not admissible to rebut a claim of
    innocent association. No such claim was in play at trial. The defence advanced
    was a straightforward denial. Not me. Wrong guy.

[103]

The label of rebutting a claim of innocent association, at least as it
    seems to me, does not fairly characterize the true basis on which this evidence
    was advanced. That basis was to establish the appellants identity as the
    person who killed the deceased. To do so, the Crown was required to show, if it
    could, a high degree of similarity between the
acts
involved in the
    Barrie incident and those involved in the offences charged. The degree of
    similarity must be such to render the likelihood of coincidence objectively
    improbable. A unique trademark or signature common to both. Or a number of
    significant similarities, considered together, and beyond the generic or
    mundane.

[104]

An examination of the acts involved in each incident reveals no conduct
    that could fairly be characterized as a unique signature, calling card or
    trademark. In a similar way, the accumulation of similarities relied upon by
    the trial judge do not transcend the generic or commonplace.

[105]

Recall that the incidents took place 14 months apart, in different
    places some distance removed from one another. The allegedly similar act was a
    single occurrence. The Barrie incident involved a sexual assault on a person
    who engaged in sex work. It was accompanied by significant violence to the face
    and head, apparently to subdue the victim. It took place in a residential
    neighbourhood. In contrast, in the offence charged, the time and place of the
    occurrence was unclear, the existence of the sexual assault disputed and the
    violence to the head of the deceased markedly less severe.

[106]

In the end, what occurred here was that evidence of a subsequent event
    that lacked the degree of similarity necessary when tendered to establish
    identity and accompanied by significant moral prejudice, including a conviction
    for aggravated assault, an essential element in one of the offences with which
    the appellant was charged, was admitted at trial when it should have been
    excluded.

[107]

It follows from the wrongful admission of the evidence of the Barrie
    incident that the jury was not entitled to consider that evidence in reaching
    their verdict. But in his final instructions, the trial judge told the jury
    that they could consider the evidence of the Barrie incident in determining:

i.

whether the appellant was implicated in the deceaseds death;

ii.

whether the appellant caused the deceaseds death;

iii.

whether the appellant caused the deceaseds death unlawfully;

iv.

the appellants mental state at the time of the deceaseds death;

v.

whether the appellant actively participated in the actual killing of the
    deceased;

vi.

whether the appellant sexually assaulted the deceased; and

vii.

whether the killing of the deceased occurred while the appellant was
    committing a sexual assault;

These uses far exceeded the basis upon which the
    evidence had been admitted and far exceeded its capacity as probative material.

[108]

The wrongful admission of the
    evidence of the Barrie incident, coupled with instructions that permitted its
    use beyond what would have been authorized had it been admissible on the issue
    of identity, tainted the verdicts reached at trial to such an extent that a new
    trial is required.

Ground #2: Unreasonable Verdict

[109]

The appellant contests the reasonableness of the jurys verdict finding
    him guilty of first degree murder in two respects:

i.

that he unlawfully caused the death of the deceased [
causation]
;
    and

ii.

that he had the state of mind necessary to make the unlawful killing
    murder [
the fault element
]
.

[110]

In connection with this ground of appeal, the appellant also seeks leave
    to introduce further evidence from
Dr.
    VanLaerhoven, to clarify what she considers a misunderstanding of her trial
    testimony, and from Dr. Christopher Milroy, a forensic pathologist who was not
    a witness at trial, about the cause of the deceaseds death.

[111]

Brief mention of some features of the
    evidence adduced at trial will provide a suitable framework for an outline of
    the proposed fresh evidence and the discussion that follows.

The Evidence at Trial

[112]

The evidence adduced at trial and what
    is proposed for admission as fresh evidence focuses upon two issues: time and
    cause of death.

The Time of Death

[113]

Three pieces of evidence adduced at trial assisted in establishing when
    the deceased died. She was last seen alive by a taxi driver near the companys
    dispatch office around 5:00 a.m. on May 25, 2008. Her body was found during the
    afternoon of May 27, 2008. Blowfly larvae harvested from the deceaseds body
    developed from eggs laid on the deceaseds remains not later than 3:00 p.m. on
    May 25, 2008.

The Cause of Death

[114]

Dr. John Fernandes, who performed the post-mortem on the
    deceased, certified the cause of her death as unascertained. He explained
    that he could not eliminate cocaine intoxication as the sole cause of death.
    But he also saw signs of trauma on the body, not likely to cause death, but
    equally not something that could be eliminated from having done so. He saw some
    marks on the surface of the deceaseds neck and petechial hemorrhages in the
    eye suggestive of neck compression. But he found no evidence of neck
    compression in the tissue beneath the skin, something that he would expect to
    find had significant force been applied to the deceaseds neck. Despite these
    findings, Dr. Fernandes raised the possibility that strangulation or manual
    strangulation could be the cause of the deceaseds death.

The Proposed Fresh Evidence

The Evidence of
Dr. Sherah VanLaerhoven

[115]

The appellant proffers the evidence of Dr. VanLaerhoven to clarify what
    is said to be a misunderstanding of the effect of her testimony at trial. What
    she seeks to make plain is that she cannot establish, and should not be taken
    as having established, by her examination of the larvae harvested from the body
    of the deceased, the precise time at which the deceased died.

[116]

Dr. VanLaerhoven reiterated that
    blowflies do not lay eggs at night, only during hours of daylight. What she is
    able to determine from the state of larval development, coupled with
    information about air temperature, is that the eggs must have been deposited on
    the body a certain number of hours before they were harvested. In this case,
    the eggs were deposited on the deceaseds body not later than 3:00 p.m. on May
    25, 2008. In other words, her opinion refers to the latest time at which the
    eggs could have been deposited on the body of the deceased, not to the time at
    which the deceased died.

The Evidence of Dr. Christopher Milroy

[117]

The appellant tenders the opinion
    of Dr. Christopher Milroy as fresh evidence about the cause of death. Dr.
    Milroy, a well-respected forensic pathologist, would not have certified the
    cause of the deceaseds death as unascertained. In his view, the deceased
    died of a head injury in the presence of cocaine toxicity. Dr. Milroy described
    the head injuries, attributable to a significant blow, as not likely or
    expected to cause death. However, he acknowledged that they could have done so
    in conjunction with the cocaine the deceased had taken on board. In these
    circumstances, the deceaseds death would be due to arrhythmia of the heart.

[118]

Dr. Milroy rejected as speculative
    that neck compression caused the deceaseds death. He pointed out that the
    presence of petechiae is non-specific. It is not a valid indicator of neck
    compression. The only inference available from the presence of petechiae is
    that, at some time around the time of death, the pressure in the veins
    returning blood to the deceaseds heart increased causing those veins to burst.
    The bruises observed on the deceaseds neck were not typical of the marks
    associated with neck compression. They were also indistinguishable from similar
    injuries to the deceaseds face and head which were clearly unrelated to neck
    compression.

The Evidence of Dr. John Fernandes

[119]

In response to the evidence of Dr. Milroy about the cause of death,
    counsel for the respondent tendered the testimony of Dr. John Fernandes, the
    pathologist who had conducted the post-mortem on the deceased. Dr. Fernandes
    maintained his original opinion that the cause of the deceaseds death was
    properly described as unascertained.

[120]

Dr. Fernandes agreed that the skin abrasion on the deceaseds neck was
    not typical of those associated with manual strangulation. In cross-examination
    he agreed the injuries to the neck were similar in appearance to abrasions on
    the face and head of the deceased. These injuries could have been caused by an
    altercation between the deceased and her assailant in some shrubbery near where
    her body was found. He agreed that at trial he did not point out the
    similarities in appearance between the abrasions on the neck, face and head of
    the deceased. Nor did he describe at trial the non-specific nature of petechial
    hemorrhages, or offer examples of other potential causes for them. Further, he
    did not explain the several features of the deceaseds neck injuries that
    distinguished them from those usually seen in cases where death has been caused
    by neck compression. He simply answered the questions he was asked. He did say,
    however, that fatal neck compression can occur, but leave no visible signs on
    post-mortem examination.

The Evidence of Trial Counsel

[121]

Counsel for the appellant at trial was a certified specialist in criminal
    law who had been practising for about nine years when she appeared on the
    appellants behalf at trial.

[122]

Trial counsel considered the evidence of
Dr.
    VanLaerhoven pivotal because it provided support for the testimony of Kris
    Turner, whom she considered an untrustworthy witness. Counsel took Dr.
    VanLaerhovens evidence to establish that the deceased had died during the
    afternoon of May 25, 2008, not during the night of May 24-25, 2008. She saw no
    basis upon which she could challenge the testimony of Dr. VanLaerhoven as she
    understood it at trial.

[123]

Trial counsel explained that had she been
    aware of the fresh evidence of Dr. VanLaerhoven at the time of trial, she would
    have utilized it to expand the period during which the deceased might have died
    and thereby diminish the force of Kris Turners evidence about the appellants
    injuries, possession of a bra and remarks about being in a fight.

[124]

Trial counsel did not call a forensic
    pathologist to contradict the evidence of Dr. Fernandes about the cause of
    death. She considered Dr. Fernandes testimony would not allow the jury to
    conclude that the deceased died as a result of manual strangulation. She
    believed that the jury would find the deceased died from a combination of
    cocaine toxicity and a blow to the head or from cocaine toxicity alone. Trial
    counsel did not see any serious risk that the appellant would be convicted of
    murder on the basis of the opinion of a pathologist who was uncertain about
    what caused the death of the deceased.

The Arguments on Appeal

[125]

The appellant says that the jurys finding that he was guilty of first
    degree murder is unreasonable in two respects. The Crown could not prove and
    did not establish beyond a reasonable doubt how the deceased died, in
    particular, that she did not die from a cocaine overdose. And if the Crown
    could establish beyond a reasonable doubt that the deceased died from a
    combination of the consumption of cocaine and an assault, a finding that the
    assault was accompanied by the state of mind necessary to make the unlawful
    killing murder was unreasonable.

[126]

The appellant invites us to recall what is involved in an assessment of
    the reasonableness of a verdict rendered by a jury. We are to re-examine and,
    to some extent, within the limits of appellate disadvantage, to re-weigh the
    evidence adduced at trial. We are to bring to our examination of the evidence
    the lens of judicial experience, including a familiarity with errors that have
    caused miscarriages of justice in the past. Our analysis must take into account
    the burden and standard of proof imposed on the Crown, and not permit
    speculation or guesswork to support a conclusion in place of reasonable
    inferences. Should we determine that the verdict is unreasonable, we should be
    able to articulate what aspects of the case have led to that conclusion.

[127]

Taking first the issue of causation, the appellant argues that this
    essential element of the case for the Crown could not be established on the
    evidence adduced at trial. None of the injuries to the deceased, considered
    individually or in combination, were likely to have caused her death. Even if
    there had been an assault, the consumption of cocaine could still be the sole
    cause of her death. In these circumstances, to conclude that an assault
    constituted a substantial contribution to the death of the deceased would be
    purely speculative, thus an unreasonable finding.

[128]

The appellant contends that even if the finding that he unlawfully
    caused the death of the deceased was not unreasonable, the jurys conclusion
    that the unlawful killing was murder is unreasonable. To establish that the
    unlawful killing was murder, the Crown relied on the definition of murder in s.
    229(a)(ii) of the
Criminal Code
. That definition requires, among other
    things, knowledge that the bodily harm inflicted will likely kill the victim.
    But no such inference can be drawn in this case. The medical evidence, both at
    trial and tendered as fresh evidence on appeal, makes it clear that none of the
    injuries, or their combination, were likely to cause the deceaseds death. With
    this objective reality, a finding that an assailant would know that the victim
    would probably die from the assault is unreasonable.

[129]

As the respondent would portray it, both findings challenged here are
    reasonable, firmly rooted in the inferences available from the evidence adduced
    at trial and not dislodged by the proposed fresh evidence.

[130]

In prosecutions for unlawful homicide, the respondent says, causation
    has both a factual and legal component. The first is concerned with how the
    victim died, the second with the assignment of criminal responsibility for the
    victims death. A pathologist need not be able to identify a sure or virtually
    certain cause or mechanism of death. After all, it is the jurys responsibility
    to make that decision based on the evidence as a whole. It was open to and reasonable
    for the jury to accept the evidence of Dr. Fernandes that the trauma suffered
    by the deceased contributed to her death. Further, it defies common sense that
    she died fortuitously from the effects of cocaine consumption alone, which was within
    a recreational use range, while being assaulted. In addition, other aspects of
    the evidence, such as the movement and positioning of the body, the injuries to
    the appellant, the discovery of the appellants semen on the body, as well as
    the Barrie incident support a conclusion of an unlawful killing.

[131]

Turning to the jurys finding that the unlawful killing was accompanied
    by the state of mind necessary to constitute murder, the respondent contends
    that, in combination, several pieces of evidence render the conclusion
    reasonable. The positioning of the deceaseds body is strongly indicative of a
    state of mind not taken by surprise, alarmed or shocked about the victims
    death. Similarly, the post-killing possession and display of a womens bra that
    the jury could infer belonged to the deceased. The respondent also points out
    that a medical opinion about the likelihood of an assault causing a person to
    die is not a proxy for the
knowledge
an assailant has of the probable
    consequences of that same blow.

The Governing Principles

[132]

Several different principles have
    a say in a decision on this ground of appeal. Some define the standard to be
    applied in deciding whether a verdict or finding made by a jury is
    unreasonable. Others set the standard of causation in prosecutions for unlawful
    homicide and elucidate the fault element required by s. 229(a)(ii). Still
    others impose several conditions precedent to the reception of fresh evidence
    on appeal.

Unreasonable Verdict

[133]

The statutory test that controls this decision, expressed in s.
    686(1)(a)(i) of the
Criminal Code
, includes both objective and
    subjective elements. The section requires us to determine what verdict a
    reasonable jury, properly instructed, could judicially have reached. In making
    that decision, we are to review, analyze and, within the limits of appellate
    disadvantage, weigh the evidence. The weighing process involves a subjective
    exercise, which requires us to examine the weight, not the bare sufficiency of
    the evidence adduced at trial:
R. v. Biniaris
, 2000 SCC 15, [2000] 1
    S.C.R. 381, at para. 36;
R. v. Yebes
, [1987] 2 S.C.R. 168, at p. 186.

[134]

To the extent that the statutory standard includes a subjective
    component, it is the subjective component of an assessor with judicial training
    and experience that must be brought to bear on the exercise of reviewing the
    evidence upon which an allegedly unreasonable conviction rests. In turn, this
    requires the reviewing judges to import their knowledge of the law and the
    expertise of the courts gained through the judicial process, not simply their
    own personal experience and insight. Judicial appreciation of the evidence is
    governed by rules that mandate what is required in a charge to the jury:
Biniaris
,
    at paras. 39 and 42.

[135]

To set aside a verdict as unreasonable, it is not enough that we take a
    different view of the evidence than the original trier of fact. Nor that we
    refer to or harbour a vague unease, a lingering or lurking doubt based on our
    own review of the evidence:
Biniaris
, at para. 38. What is required of
    us is not merely that we ask whether twelve properly instructed jurors, acting
    judicially, could reasonably have reached the same result, but that we do so
    through the lens of judicial experience which serves as an additional
    protection against an unwarranted conviction:
Biniaris
, at para. 40.

[136]

A final point concerns assessment of the reasonableness of a verdict in
    a case where the evidence on which the Crown relies to establish guilt is principally
    or wholly circumstantial. The review for reasonableness must pay attention to
    the burden and standard of proof. Thus, where the case for the Crown depends on
    inferences drawn from primary facts, the issue becomes whether a trier of fact,
    acting judicially, could be satisfied that the accuseds guilt was the only
    reasonable conclusion available on the totality of the evidence, including any
    potentially exculpatory evidence:
R. v. Dhillon
, 2001 BCCA 555, 158
    C.C.C. (3d) 353, at para.
102;
R. v. Mars
(2006), 205
    C.C.C. (3d) 376 (Ont. C.A.), at para.
4.

Causation in Homicide

[137]

A single standard of causation applies to all homicide cases. Expressed
    in positive terms, one person (D) causes the death of another (V) if what D
    does (or fails to do if under a legal duty) is a significant contributing cause
    of Vs death:
R. v. Nette
, 2001 SCC 78, [2001] 3 S.C.R. 488, at paras.
    46 and 71;
R. v. Manasseri
, 2016 ONCA 703, 344 C.C.C. (3d) 281, at
    para. 190, leave to appeal refused, 2017 CarswellOnt 5288.

[138]

Despite this single standard, causation has two components. One is factual,
    the other legal. The factual component involves an inquiry about how the victim
    came to die  in a medical, mechanical or physical sense  and with the
    contribution of an accused to that result:
Nette
, at para. 44. This is
    a but for test or inquiry which is inclusive in scope:
R. v. Maybin
,
    2012 SCC 24, [2012] 2 S.C.R. 30, at para. 15. The legal component is a
    narrowing concept. It filters a wider range of factual causes into a residuum
    of those sufficiently connected with the harm caused  the death of another
    person  to warrant assignment of criminal responsibility for having caused
    that death:
Nette
, at paras. 45 and 83;
Maybin
, at para.16.

[139]

Factual causation is not limited to the direct and immediate cause or
    even the most significant cause of death. For there may be several contributing
    causes of death:
Maybin
, at paras. 14 and 20. The thin-skulled rule, a
    long-standing principle of tort law which provides that a wrongdoer must take
    their victim as they find them, applies in prosecutions for the crimes of
    unlawful homicide when evaluating causation:
Nette
, at para. 79;
R.
    v. Creighton
, [1993] 3 S.C.R. 3, at p. 52. A contributing cause can be
    something that exacerbates a fatal condition, thereby accelerating death:
R.
    v. Talbot
, 2007 ONCA 81, 217 C.C.C. (3d) 415, at para. 81;
R. v. Munro
    and Munro
(1983), 8 C.C.C. (3d) 260 (Ont. C.A.), at pp. 290-291, leave to
    appeal refused, (1984) 40 C.R. (3d) xxvi. See also
Criminal Code
, s.
    226.

[140]

In a jury trial for an offence of culpable homicide, jurors do not and
    are not instructed to engage in a two-part analysis of causation. Instead, they
    are asked and required to decide on the basis of
all
the evidence, not
    simply the testimony of medical experts, not what or who caused the death of
    the deceased, but whether the Crown has proven beyond a reasonable doubt that
    it was the accused who caused the death of the deceased:
Nette
, at
    para. 77;
R. v. Smithers
, [1978] 1 S.C.R. 506, at pp. 515-519;
R.
    v. Pocock
, 2015 ONCA 212, 19 C.R. (7th) 60, at para. 15.

The Fault Element in Murder under Section 229(a)(ii)

[141]

In her attempt to establish that the unlawful killing of the deceased
    was murder, the trial Crown invoked the definition in s. 229(a)(ii) of the
Criminal
    Code
. The fault element for which the subparagraph provides includes:

i.

intention (to cause bodily harm);

ii.

knowledge (that the bodily harm will probably be fatal); and

iii.

recklessness (to whether death ensues from the bodily harm).

See
R. v. Moo
(2009), 247 C.C.C. (3d) 34 (Ont.
    C.A.), at para. 45, leave to appeal refused, (2010) 409 N.R. 400 (note).

[142]

The
knowledge
component in s. 229(a)(ii) is only established
    where the Crown proves beyond a reasonable doubt
actual
knowledge on
    the part of the assailant of the
likelihood
that death will ensue from
    the bodily harm the assailant has inflicted. The issue is not the objective
    likelihood of resultant death, but rather the assailants knowledge of that
    likelihood.

[143]

As between the mental states required by the two definitions of murder
    in s. 229(a), there is only a slight relaxation in the fault element required
    under s. 229(a)(ii), as compared to that of s. 229(a)(i). Unlike under s.
    229(a)(i), the Crown need not prove that the accused intended to caused death
    under s. 229(a)(ii), rather that he was reckless whether death ensued or not:
R.
    v. Cooper
, [1993] 1 S.C.R. 146, at p. 155;
R. v. Nygaard
, [1989]
    2 S.C.R. 1074, at pp. 1088-89.

The Admissibility of Fresh Evidence

[144]

The principles that inform the statutory authority of a court of appeal
    to obtain, receive and rely upon evidence that forms no part of the trial
    record are well-settled and in no need of restatement. They are expressed in the
    interests of justice standard contained in s. 683(1) of the
Criminal Code
and elucidated by the decision in
R. v. Palmer
, [1980] 1 S.C.R. 759,
    at p. 775.

[145]

The
Palmer
criteria may be recast as three questions:

i.

Is the evidence admissible under the operative rules of evidence? [
admissibility
]

ii.

Is the evidence sufficiently cogent in that it could reasonably be
    expected to have affected the verdict rendered at trial? [
cogency
]

iii.

What explanation is offered for the failure to adduce the evidence at
    trial and should that explanation affect the admissibility of the evidence? [
due
    diligence
].

See
Reference re: Truscott
, 2007 ONCA 575, 225
    C.C.C. (3d) 321, at para. 92.

[146]

Sometimes, the proposed fresh evidence challenges a factual finding
    essential to the verdict rendered at trial. When this is so, as for example
    when the evidence challenges a causation finding in a prosecution for a crime
    of unlawful homicide, the admissibility of the evidence will turn on the
    responses to these three inquiries:
R. v. Hartman
, 2015 ONCA 498, 326
    C.C.C. (3d) 263, at para. 18.

[147]

The
cogency
requirement, in its turn, asks three questions:

i.

Is the evidence
relevant
in that it bears upon a decisive or
    potentially decisive issue at trial?

ii.

Is the evidence
credible
in that it is reasonably capable of
    belief?

iii.

Is the evidence
sufficiently probative
that it could
    reasonably, when taken with the other evidence adduced at trial, be expected to
    have affected the result?

See
Truscott
, at para. 99.

[148]

A final point concerns due diligence. In a criminal case, the exercise
    of due diligence is not a condition precedent to the admissibility of fresh
    evidence on appeal:
Truscott
, at para. 93. However, due diligence
    occupies a prominent place in determining whether the proposed fresh evidence
    may be admitted:
Truscott
, at paras. 101-102. Where the proposed fresh
    evidence was available at trial, but not adduced because of tactical reasons
    thought justifiable by competent trial counsel, an additional degree of cogency
    is necessary before the proposed evidence can be received on appeal:
Manasseri
,
    at paras. 218-219 and 222;
R. v. Dooley
, 2009 ONCA 910, 249 C.C.C.
    (3d) 449, at paras. 106-109, leave to appeal refused, (2010) 258 C.C.C. (3d) iv
    (note) and [2010] 2 S.C.R. vi.

The Principles Applied

[149]

As I will explain, I would not set aside as unreasonable the jurys
    finding that the appellant unlawfully caused the death of the deceased, a
    finding that was essential for them to make in concluding that the appellant
    was guilty of first degree murder. Nor can I conclude, on the basis of the
    evidence adduced at trial, that the jurys finding that the unlawful killing
    was murder and, in the circumstances, first degree murder, is unreasonable and
    should be set aside.

[150]

To take first what counsel have characterized as the causation issue.

[151]

Causation is an essential element in homicide. It is established when a
    person directly or indirectly, by any means, causes the death of another human
    being. For a killing to be blameworthy, thus culpable homicide, the Crown, as
    here, attempts to establish that the person charged caused the death of the
    deceased by an unlawful act. In such cases, the issue is not what or who caused
    the death of the deceased, but whether the Crown has proven beyond a reasonable
    doubt that it was the accused who did so.

[152]

In assessing this claim of unreasonableness, sight must not be lost of
    the fact that merely because other factors, conditions or circumstances may
    have contributed to the death of a deceased, they are not always legally
    significant in establishing the guilt of a person charged with some crime of
    culpable homicide. It is only significant, and exculpatory, if independent
    factors, occurring before or after an accuseds conduct, legally sever the link
    that ties the accused to the prohibited result. To prove guilt, what must be established,
    but nothing more, is that the accuseds conduct was a significant contributing
    cause to the death of the deceased. Not the only cause. Or even the most
    probable cause. But a significant contributing cause.

[153]

In deciding this issue, it is also important to keep in mind that anyone
    accused of a crime of culpable homicide must take the victim as they find them.
    And so it was that in
Smithers
, the fact that the deceased had a
    malfunctioning epiglottis and that the blow struck would not have caused the
    death of a person without that condition, did not relieve Smithers of liability
    for having caused the death of the deceased. A significant contributing cause
    can be one that accelerates death by exacerbating an existing fatal or
    potentially fatal condition.

[154]

Further, in evaluating this complaint, we must not require a level of
    medical certainty or equate absence of medical certainty with want of proof of
    causation. Medical opinion is neither dispositive nor essential.

[155]

In this case, the concentration of cocaine in the blood of the deceased
    fell within an area of overlap between recreational use and toxicity. There was
    also evidence of a blow or blows sufficient to cause subdural and subarachanoid
    hemorrhages. Death could have been caused by the consumption of cocaine on its
    own, or the combined effect of the assault and cocaine ingestion. The blow
    itself was not necessarily, but could have been, fatal. In this case, the
    causation threshold was met on the evidence adduced at trial.

[156]

Even if it were admitted, the proposed fresh evidence would not render
    unreasonable a finding to the contrary on the causation issue.

[157]

Dr. VanLaerhovens evidence has nothing to say about causation. Nor does
    it alter the fact that a witness said he saw the deceased alive around 5:00
    a.m. on May 25, 2008. To extend the timeframe for death to have been caused to the
    evening of May 24, 2008, in the face of evidence that she was alive the
    following morning is of no avail to the appellant.

[158]

The evidence of Dr. Milroy would certify the cause of death as head
    injury in the presence of cocaine toxicity. He described the blow to the head
    as significant. Admission of this evidence on appeal would confirm the
    reasonableness of the finding on causation, not refute it.

[159]

In this case, I would not admit the evidence of Dr. Milroy as fresh
    evidence on this issue for two reasons.

[160]

First, expert evidence about cause of death was available at trial had
    counsel for the appellant chosen to adduce it. Satisfied that the uncertainty
    expressed by Dr. Fernandes about the cause of death  he certified the cause of
    death as unascertained  was favourable to her client, and left it open to
    her to argue, as she did, that the Crown had not proven that the appellant
    unlawfully caused the death of the deceased, trial counsel made a tactical
    choice not to adduce expert opinion about the cause of death. An additional
    degree of cogency is therefore required.

[161]

Second, I am not satisfied that the proposed evidence is sufficiently
    probative that, when taken with the other evidence adduced at trial, it could
    reasonably be expected to have affected the issue of causation. Granted, the
    opinion of Dr. Milroy rejects manual strangulation as a cause of death.  But Dr.
    Fernandes did not observe any internal damage indicative of manual
    strangulation, although his evidence about manual strangulation and the
    non-specific nature of petechial hemorrhages could have been more fulsome. At
    bottom, Dr. Milroy would certify the cause of death as head injury in the
    presence of cocaine toxicity. He described the force of the blow that caused
    the head injury as significant. Admission of this evidence would not have
    affected the causation finding at trial.

[162]

Turning to the submission that the jurys finding that the appellant
    committed murder is unreasonable, I reach the same conclusion. I am satisfied
    that this finding
is

not
unreasonable.

[163]

I begin with a reminder about the test or standard a reviewing court is
    to apply in responding to a claim that a jury verdict is unreasonable. We are
    required to determine what verdict a reasonable jury, properly instructed,
    could reach, acting judicially, and, in doing so, to review, analyze and,
    within the limits of appellate disadvantage, weigh the evidence. We are to
    examine the weight, not the bare sufficiency of the evidence. Our examination
    is to be conducted through the lens of judicial experience.

[164]

In this case, the reasonableness of the conclusion that the appellant
    committed murder reduces to the reasonableness of the jury finding that he had
    the
mens rea
necessary to make his unlawful killing of the deceased
    murder under s. 229(a)(ii). Among other things, s. 229(a)(ii) requires the
    Crown to prove that the appellant actually knew that the bodily harm he
    inflicted would likely kill the deceased. Actual knowledge of the probability
    of death. And we also know that the fault element in s. 229(a)(ii) involves
    only a slight relaxation in the fault element required by s. 229(a)(i).
    Section 229(a)(ii) requires the Crown to prove that the appellant intended to
    cause bodily harm of such a grave and serious nature that the appellant knew
    that it was likely to result in the death of the deceased, and was reckless as
    to whether death ensued.

[165]

Testing a verdict for unreasonableness, in this case a finding critical
    to a conclusion that the appellant committed murder, assumes that the jury is
    properly instructed. In this case, that means that the jury would not be
    permitted to consider the evidence of the Barrie incident in reaching their
    conclusion on this issue. Further, since the evidence on the issue is wholly
    circumstantial, the jury would be instructed and required to find that the
    evidence, considered as whole, was consistent only with the existence of the
    required fault element and inconsistent with any other reasonable conclusion.

[166]

In this case, the expert opinion evidence of the examining pathologist
    describes, from a medical point of view, the objective probability of death
    following from the blow or blows inflicted by the assailant. But that is not
    the question a trier of fact is to resolve in determining whether an unlawful
    killing amounted to murder.

[167]

To determine whether an unlawful killing amounted to murder, a trier of
    fact takes into account all the circumstances surrounding the killing and
    decides whether the Crown has proven beyond a reasonable doubt that the killer
    had a state of mind required to make that unlawful killing murder. The
    appellants argument on this branch of the unreasonable verdict ground treats
    the pathological evidence of the unlikelihood of death as dispositive of the
    proof of the fault element required to make an unlawful killing murder.
    Although the expert evidence may be of some assistance on the issue, it is not
    dispositive of it. The objective likelihood of death from a blow is at best a
    factor for jurors to consider in determining the state of mind of the killer.
    It does not, indeed cannot, render a conclusion drawn by the trier of fact from
    all the evidence that the Crown has proven the state of mind necessary to make
    an unlawful killing murder, unreasonable as the appellant argues.

[168]

For these reasons, I am satisfied that the jurys verdict cannot be set
    aside as unreasonable.

Ground #3: Jury Instructions on Causation and the Fault Element in Murder
    under Section 229(a)(ii)

[169]

The final ground of appeal alleges inadequacy in the jury instructions
    on causation and the fault or mental element s. 229(a)(ii) requires to make an
    unlawful killing murder.

[170]

As I have already explained, I would order a new trial as a result of
    the admission of the evidence of the Barrie incident. It follows, if that
    decision is correct, that it is unnecessary to decide whether the trial judges
    final instructions to the jury on causation and the fault element in murder
    were correct. But another court may see it differently. And so it is that I
    take up a discussion about the final ground of appeal.

[171]

A helpful starting point for this discussion is a brief reminder of the
    positions advanced at trial.

The Positions of the Parties at Trial

[172]

In his police statement, the appellant admitted having had sexual
    contact with the deceased, a working sex worker. At trial, it was his position
    that she died sometime after 5:00 a.m. on May 25, 2008 from an overdose of
    cocaine. He was not involved in her death.

[173]

The Crown contended that the deceased died from the combined effect of
    the injuries inflicted on her by the appellant and her consumption of cocaine.
    The injuries were a significant contributing cause of her death. The killing
    was unlawful; murder within s. 229(a)(ii) of the
Criminal Code
; and
    first degree murder because it occurred while the appellant was sexually
    assaulting, more specifically, committing an aggravated sexual assault, upon
    the deceased.

The Charge to the Jury

[174]

In his final instructions to the jury, the trial judge divided first
    degree murder into its essential elements and converted each essential element
    into a question for the jury to answer. For each question, the trial judge
    explained what the Crown must prove to meet its burden of proof in connection
    with that element. He then summarized those portions of the evidence that the
    jurors could consider in deciding the issue framed by the question. At the end
    of his review of the evidence, the trial judge left the issue for the jury to
    decide with an explanation of the consequences of the available decisions to
    their further deliberations and their ultimate verdict.

[175]

The trial judge explained the issue of causation in this way:

For an act or omission to cause someones death, it must be at
    least a contributing cause, one that is beyond something that is trifling or
    minor in nature.

There must not be anything that somebody else does later that
    results in Mr. McDonalds act or omission no longer being a contributing cause
    of [the deceaseds] death.

It is of no concern to you that proper medical treatment might
    have saved [the deceaseds] life. It also does not matter that what Mr.
    McDonald did only speeded up [the deceaseds] death from some existing disease
    or condition.

To answer this question, you must consider all the evidence. Do
    not limit your consideration only to the opinions of experts about what caused
    [the deceaseds] death. Take into account, as well, the testimony of any
    witness who described the events that took place around the time that [the
    deceased] was hurt and died. Use your good common sense.

What I am going to say now may sound like a repeat of what I
    just instructed you on a little while ago. However, it should serve to
    highlight the importance attached to it. The question of whether Mr. McDonald
    caused the death of [the deceased] really requires consideration of two
    distinct issues; the first is whether Mr. McDonald is implicated at all in the
    death of [the deceased]; the second is whether, if he did anything that relates
    to her at the relevant time, whether in doing so, he caused her death.

[176]

After this discussion of causation, the trial judge summarized various
    items of evidence that he considered might assist the jurors on the issue. This
    summary included a very lengthy review of Dr. Fernandes report and testimony
    about his observations on the post-mortem and his opinion about cause of death.
    In addition, the trial judge made reference to Kris Turners evidence and the
    evidence of the Barrie incident.

[177]

The second essential element on which the trial judge instructed the
    jury was the unlawful act requirement in s. 222(5)(a) of the
Criminal Code
.
    He described the unlawful act as an assault and reviewed for the jury the
    essential elements of assault, and made passing reference to the evidence.

[178]

Turning his attention to what makes an unlawful killing murder, the
    trial judge explained:

The crime of murder requires proof of a particular state of
    mind. For an unlawful killing to be murder, Crown counsel must prove that Mr.
    McDonald meant either to kill [the deceased] or meant to cause [the deceased]
    bodily harm that Mr. McDonald knew was likely to kill [the deceased] and was
    reckless whether [the deceased] died or not. The Crown does not have to prove
    both, one is enough. All of you do not have to agree on the same state of mind,
    as long as all of you are sure that one of the required states of mind has been
    proven beyond a reasonable doubt.

If Mr. McDonald did not mean to do either, Mr. McDonald
    committed manslaughter.

To determine Mr. McDonalds state of mind, what he meant to do,
    you should consider all the evidence. You should consider: what he did or did
    not do; how he did or did not do it; and what he said or did not say.

You should look at Mr. McDonalds words and conduct before, at
    the time and after the unlawful act that caused [the deceaseds] death. All
    these things, and the circumstances in which they happened, may shed light on
    Mr. McDonalds state of mind at the time. They may help you decide what he
    meant or didnt mean to do. In considering all the evidence, use your good
    common sense.

Alcohol has an intoxicating
    effect on those who drink it. Intoxication that causes a person to cast off
    restraint and to act in a manner in which he would not act if sober, is no
    excuse for committing an offence if he had the state of mind required to commit
    the offence. An intoxicated state of mind is nonetheless a state of mind.

Murder is not committed if Mr. McDonald lacked the intent
    either to kill [the deceased] or meant to cause [the deceased] bodily harm that
    Mr. McDonald knew was likely to kill [the deceased] and was reckless whether
    [the deceased] died or not.

[179]

The trial judge charged the jury on both paragraphs of s. 229(a) of the
Criminal Code
.
[1]
He also told the jury that in determining whether the Crown had proven the
    fault element required to make an unlawful killing murder, they could rely on
    the common sense inference of intention, as well as evidence of the positioning
    of the deceaseds body, of the injuries as described by Dr. Fernandes, and of
    the Barrie incident. At the request of trial counsel for the appellant, the
    judge also charged the jury on the issue of intoxication including the
    rolled-up instruction.

[180]

This instruction on the required mental state was repeated in response
    to a question from the jury.

[181]

Trial counsel did not object to the final instructions on any ground now
    said to have been erroneous.

The Arguments on Appeal

[182]

The appellant complains that the trial judges final instructions on
    causation and the fault element in murder were incomplete and failed adequately
    to equip the jury to decide either issue correctly. Among the omissions, the
    appellant submits the trial judged failed:

i.

to point out several uncertainties surrounding the death of the deceased
    and to relate these uncertainties to the issues of causation and the fault
    element in murder under s. 229(a)(ii);

ii.

to expressly point out the improbability of the required state of mind
    in light of the nature and extent of the injuries to the deceased and the
    unlikelihood that they would cause death; and

iii.

to expand upon the standard instructions on causation and the fault
    element in light of the evidence adduced at trial.

[183]

In connection with causation, the appellant says that the trial judge
    should have added to the standard instruction a direction that the jury was
    required to find the appellant not guilty if the Crown failed to prove beyond a
    reasonable doubt that cocaine toxicity was not the sole cause of the deceaseds
    death, or if the jury could not determine, or had a reasonable doubt about, the
    cause of death. Further, the trial judge should have made it clear that the
    fact that the deceaseds cocaine consumption did not explain her various
    injuries imposed no obligation on the appellant to establish how those injuries
    occurred.

[184]

Turning to the instruction on the fault element in murder under s.
    229(a)(ii), the appellant submits that the trial judge should have linked the
    unlikelihood that the deceaseds injuries would cause her death to the fault
    element, in particular, the requirement of actual knowledge of the
likelihood
of death. The appellant says that the charge on intoxication, as well as the
    rolled-up instruction, while relevant, were also distracting, especially when
    combined with the direction on the common sense inference. The jurys question
    about the fault element indicated the importance and necessity for a more
    nuanced instruction, something with which the jury was never provided.

[185]

The respondent rejects any suggestion of inadequacy in the instructions
    on either issue. Read as a whole and assessed functionally, the respondent
    says, the charge equipped the jury to perform its task and that is all that
    matters.

[186]

The respondent argues that the instructions on causation, read as whole,
    left no doubt that to prove that the appellant caused the death of the
    deceased, the Crown had to prove beyond a reasonable doubt that the appellants
    assault on the deceased was a significant contributing cause of her death. Such
    a requirement of necessity demanded disproof of cocaine consumption as the sole
    cause of death. Nothing said or left unsaid by the trial judge shifted the onus
    of proof on any issue to the appellant. Trial counsel made no complaints about
    the adequacy of the charge.

[187]

As for the instructions on the fault element in murder under s.
    229(a)(ii), the respondent contends that the jury was repeatedly told what the
    Crown had to prove to establish this element. The consequences of a reasonable
    doubt on this issue were carefully explained. The rolled-up instruction and
    the charge on intoxication were not only free of error, they were also included
    at the express request of trial counsel for the appellant, despite their tenuous
    evidentiary foothold. Trial counsel did not object to the charge on this issue
    and expressly agreed that the trial judge answer the jurys question by
    repeating his charge on the issue.

The Governing Principles

[188]

It is unnecessary to repeat what I have already said about what is
    required to establish causation in prosecutions for unlawful homicide and the
    fault element in murder under s. 229(a)(ii). There are, however, two
    principles, one of more general application than the other, that merit brief
    mention.

[189]

The first concerns the standard to be applied on appellate review of
    jury instructions.

[190]

An accused on trial for allegations of crime is entitled to a properly
    instructed jury, not a perfectly instructed jury:
R. v. Daley
, 2007 SCC
    53, [2007] 3 S.C.R. 523, at para. 31;
R. v. Jacquard
, [1997] 1 S.C.R.
    314, at paras. 2 and 32. It would seem logically to follow that failure to tell
    jurors everything that they might have been told is not misdirection. In other
    words, non-direction, on its own, is not misdirection. It is misdirection only
    when the judge tells jurors something that is wrong, or tells them something
    that would make wrong what the judge has left the jury to understand:
Luciano
,
    at para. 70.

[191]

On review of alleged inadequacies in instructions to a jury, an
    appellate court is to look at the charge in its totality and take a functional
    approach to determine whether the instructions fulfill their purpose: to
    educate the decision-maker to make an informed decision:
Jacquard
, at
    para. 32.

[192]

A final point about the common sense inference of intention. Its
    inclusion in a jury charge serves a useful purpose. It provides the jury with a
    marker against which to measure the rather amorphous concept of intent. But a proper
    instruction also sounds a cautionary warning against presumptive use. And the
    need to carefully consider the evidence that points away from it, before
    invoking its permissive nature:
R. v. Walle
, 2012 SCC 41, [2012] 2
    S.C.R. 438, at para. 63. A jury may resort to the common sense inference in
    finding the fault element established where there is
no evidence
that
    would realistically impact on whether the accused had the necessary mental
    state at the time of the offence, or if the evidence does not raise a
    reasonable doubt for the jury about that mental state:
Walle
, at para.
    67.

The Principles Applied

[193]

As I will briefly explain, I would not give effect to this ground of
    appeal in connection with the instructions on causation. But I would do so for
    the instructions on the fault element in murder under s. 229(a)(ii), although I
    would not order a new trial on this ground standing alone.

[194]

The appellants claim of error on the issue of causation is one of
    non-direction: what the trial judge said was correct, but not enough attention
    was paid to the evidence adduced at trial.

[195]

The trial judge made it clear that the relevant conduct that had to
    satisfy the causation requirement to establish the killing was unlawful was an
    assault. What was said was enough to bring home to the jury that a reasonable
    doubt on this issue, whether because the deceased died only from cocaine
    ingestion or uncertainty about what caused her death, would require a verdict
    of not guilty.

[196]

The instructions on the fault element in murder under s. 229(a)(ii) are deficient
    in one respect.

[197]

The trial judge failed to point out the particular evidence of Dr.
    Fernandes that, although the head injuries could have caused death, it was
    unlikely they had done so. This was significant evidence in light of the
    predicate assumption upon which the common sense inference is built.

CONCLUSION

[198]

For these reasons, I would allow the appeal, set aside the convictions
    and order a new trial. I would also lift the stay imposed by the trial judge on
    the conviction for aggravated sexual assault.

Released: JCM July 5,
    2017

David Watt J.A.

I agree. J.C. MacPherson J.A.

I agree. E.A. Cronk J.A.

[1]

So far as I can determine, the Crown does not appear to have
    relied upon s. 229(a)(i).