COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Robinson, 2017 ONCA 645

DATE: 20170810

DOCKET: C57298

Doherty, MacFarland and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Douglas Robinson

Appellant

James Lockyer and Jack Gemmell, for the appellant

Christine Bartlett-Hughes, for the respondent

Heard:  May 11 and 12, 2017

On appeal from the conviction entered on June 14, 2012 by
    Justice Kelly A. Gorman of the Superior Court of Justice, sitting with a jury.

Doherty J.A.:

I

[1]

The appellant was convicted by a jury of first degree murder.
[1]
He appeals from that conviction.  For the reasons that follow, I would allow
    the appeal.  The conviction on the charge of first degree murder is
    unreasonable and I would enter an acquittal on that charge.  There are errors
    in the jury instruction that require a new trial on the charge of second degree
    murder.

II

THE EVIDENCE

[2]

The appellant and Amy Gilbert lived together in an apartment in
    Woodstock, Ontario.  Both were alcoholics and suffered from significant mental
    illness.  They loved each other, but their relationship was a turbulent one.  They
    often argued and the appellant had abused Ms. Gilbert, including an assault
    that led to his conviction in 2007.

The Night of the Homicide

[3]

The appellant and Ms. Gilbert drank together almost every day.  On
    September 27, 2008, the appellant arrived home from work around 5:00 p.m.
    Following their usual practice, the appellant and Ms. Gilbert started drinking
    beer.

[4]

The deceased, Mr. Clifford Fair, showed up unexpectedly at the apartment
    around 9:00 p.m.  He was a casual friend of Ms. Gilbert and he knew the
    appellant.  The appellant believed that Mr. Fair and Ms. Gilbert had a sexual
    relationship before he and Ms. Gilbert became a couple.  Mr. Fair, who appeared
    to have been drinking when he arrived, was also an alcoholic.

[5]

The three drank beer together for an hour or two.  According to the
    appellant, he had consumed six beers before Mr. Fair arrived, and had another
    six with Mr. Fair.  The appellant was also taking anti-depressant medication.  Mr.
    Fair had five or six beers after he arrived.

[6]

At first, everyone got along.  However, as the evening wore on, the tone
    changed.  The appellant became concerned that Mr. Fair was drinking a great
    deal of the beer that he and Ms. Gilbert had intended would last the evening.
    Mr. Fair began making demeaning comments about the appellants size and his
    job.  The appellant also sensed that Ms. Gilbert was becoming angry with Mr.
    Fair.  He apparently owed her some money.  Ms. Gilbert recalled asking Mr. Fair
    about a $20 debt, but denied that she was ever angry with him.

[7]

The appellant testified that he eventually decided Mr. Fair should
    leave.  He worried that Ms. Gilbert would start a fight with Mr. Fair over the debt
    and that both would become violent.  The appellant suggested to Mr. Fair that he
    should leave so that the appellant and Ms. Gilbert could be alone together.  He
    also told Mr. Fair that he wanted to go to bed as he had to go to work the next
    day.  Finally, the appellant told Mr. Fair that he must leave the apartment
    when he finished the beer he was drinking.  Mr. Fair, who was much bigger than
    the appellant, dismissed the appellants comments, indicating they were having
    a party.

[8]

Ms. Gilbert recalled conversations about the jobs of the appellant and
    Mr. Fair.  On her recollection, everyone was laughing and enjoying themselves,
    although the appellant was acting a little jealously.  Ms. Gilbert recalled
    that the appellant got up and left the room.  She thought he was going to the
    washroom.

[9]

The appellant testified that he decided he had to do something to get
    Mr. Fair out of the apartment.  He went to the furnace room looking for
    something he could use as a weapon to confront Mr. Fair with and force him to
    leave.  As the appellant put it, he was looking for something to help him
    shoo Mr. Fair from the apartment.  The appellant did not think Mr. Fair would
    go voluntarily and he knew that he would not do well in a physical
    confrontation with Mr. Fair.  He had seen Mr. Fair fight on a previous
    occasion.

[10]

The appellant found a hollow aluminum pipe, about 16 inches long, in the
    furnace room.  He wrapped a towel around one end of the pipe and secured the
    towel with duct tape.

[11]

As the appellant was looking for the duct tape to put around the towel,
    he noticed Mr. Fairs partially opened backpack on the floor.  The appellant looked
    into the backpack and saw his camera and other property belonging to him.  The
    appellant quickly concluded that Mr. Fair had stolen the items and might be
    planning to steal more items from the appellant if the appellant became very drunk
    and passed out.  After the appellant saw the stolen items, he described himself
    as quite a bit agitated  I was pissed off, I felt like victimized.

[12]

The appellant testified that he went back into the living room armed
    with the aluminum pipe.  He approached Mr. Fair from behind and yelled at him.
    As Mr. Fair turned around, the appellant struck him on the head with the padded
    end of the aluminum pipe.  According to Ms. Gilbert, the appellant walked up
    behind Mr. Fair, smiled at her and swung the pipe with both hands like a
    baseball bat, striking Mr. Fair on the head.  The appellant insisted he used
    only about 50 per cent of his force when he swung the pipe.

[13]

The appellant testified that Mr. Fair started to get up after the first
    blow landed and made a threatening remark to him.  The appellant swung the pipe
    a second time, striking Mr. Fair in the head and shoulder area, again with the
    padded end.  Ms. Gilbert testified that Mr. Fair started to get up after the
    first blow, but was immediately felled by the second.  She did not hear Mr.
    Fair say anything.

[14]

According to the appellant, Mr. Fair continued to move toward him after
    the second blow.  The appellant pushed Mr. Fair, who fell backward into the
    wall, possibly striking his head.  He then fell face first onto the floor.  Mr.
    Fair was unconscious and bleeding profusely from his nose and mouth.  He died
    within moments.

The Appellants Actions after Mr. Fairs Death

[15]

The appellant and Ms. Gilbert testified that it was obvious that Mr.
    Fair was badly injured.  Both were very upset and started to cry.  The
    appellant checked for a pulse saying, He cant be dead.  Ms. Gilbert
    testified that the appellant was panicking and insisting that he had not
    intended to kill, or even hurt, Mr. Fair.

[16]

The appellant, with Ms. Gilberts assistance, dragged Mr. Fairs body
    into the backyard.
[2]
He buried the body in a shallow grave.  A day or two later, the appellant reburied
    the body in a deeper grave.  A day or two after that, he dug the body up again
    and dismembered it.  He buried the head in one place, the arms in a second, and
    the torso and legs in a third.  He covered the body parts in quicklime to hide
    the smell.

[17]

The appellant cleaned up the blood in the apartment.  He threw the pipe and
    other incriminating evidence into two dumpsters.  The police never recovered
    those items.

[18]

In the weeks following the homicide, the appellant and Ms. Gilbert drank
    more than usual and argued a great deal.  Ms. Gilbert testified that she was
    very upset about what happened to Mr. Fair.  She wanted to do the right
    thing, but the appellant was adamant that they could get away with this.  Both
    Ms. Gilbert and the appellant wanted to move out of the apartment.

[19]

There was evidence that during one argument after the killing, the
    appellant struck Ms. Gilbert.  During another argument, Ms. Gilbert threatened
    to dig up Mr. Fairs head and show it to a friend.

[20]

In early November 2008, about six weeks after the homicide, the
    appellant and Ms. Gilbert went to a local bar.  During an evening of drinking,
    Ms. Gilbert confided to her friend that the appellant had killed Mr. Fair.  The
    appellant, in a separate conversation with another friend, and in answer to
    that friends questions, intimated that he had killed someone.

[21]

The appellant knew that Ms. Gilbert had told her friend that the
    appellant had killed Mr. Fair.  When the appellant returned to his apartment,
    he called his ex-wife, Susan Ellery.  Although they were divorced, the
    appellant trusted Ms. Ellery.  He was drunk when he called her.

[22]

The appellant and Ms. Ellery spoke for over an hour.  He described the
    killing and his subsequent attempts to cover it up.  He insisted he had not
    meant to kill Mr. Fair.  He also told Ms. Ellery that he wanted to teach Mr.
    Fair a lesson and that the drunk fucking Indian got what he deserved.  Ms.
    Ellery called the police the next day, and they arrested the appellant a few
    days later.

[23]

The police searched the backyard.  They found Mr. Fairs head and torso buried
    in two separate holes.  Both were covered in lime.  The police did not find Mr.
    Fairs arms until about a year later, after the appellant told them where to
    look in the backyard.

[24]

The dismemberment of the body, and its burial for several weeks before
    the post-mortem was performed, made it impossible for either the Crown
    pathologist, or the defence expert, to identify a medical cause of death.  The Crown
    pathologist testified that Mr. Fair may have bled to death from the blows to
    his head and face, but that because the head was severed from the body, he
    could not say whether loss of blood caused Mr. Fairs death.  The post-mortem
    did not identify any underlying medical condition that may have contributed to
    Mr. Fairs death.

[25]

The experts agreed that the blows to Mr. Fairs head did not fracture his
    skull or cause any significant brain injury.  Standing alone, the blows to the
    head did not result in sufficient trauma to cause Mr. Fairs death.

[26]

The appellant wrote letters to various people, including Ms. Gilbert and
    Ms. Ellery, while he was in custody awaiting trial.  The Crown put seven of
    those letters into evidence.  The letters contained admissions by the appellant
    that he had killed Mr. Fair.  In one letter, he prayed he would beat the
    murder beef and hopefully get convicted of manslaughter only.  In addition to
    establishing that the appellant was responsible for Mr. Fairs death, the Crown
    relied on comments in the letters as evidence supporting the Crowns theory that
    the murder was motivated by the appellants jealousy and possessive attitude
    towards Ms. Gilbert.  The Crown also used parts of the letters to attack the
    appellants credibility during his cross-examination.

The Parties Positions at Trial

[27]

At trial, the Crown maintained that the appellant had caused Mr. Fairs
    death when he struck him with the pipe.  The Crown argued that the appellant
    had the
mens rea
for murder, relying on s. 229(a)(ii) of the
Criminal
    Code
.  On the Crowns theory, when the appellant struck Mr. Fair, he
    intended to cause Mr. Fair bodily harm that he knew was likely to cause death
    and was reckless as to whether death would ensue from the assault.

[28]

As to motive, the Crown argued that the appellant was very possessive of
    Ms. Gilbert and was jealous of Mr. Fair because he believed Mr. Fair had a
    prior sexual relationship with Ms. Gilbert.  The Crown also suggested that the
    appellants decision to attack Mr. Fair was motivated by his desire to bring an
    end to Mr. Fairs consumption of their beer, and possibly by his belief that
    Mr. Fair was stealing from him.  The Crown submitted that the planning and
    deliberation occurred in the minutes immediately preceding the assault, after
    the appellant had left the living room and gone to the furnace room in search
    of a weapon.

[29]

The defence argued that the Crown had not proved that the appellant
    caused Mr. Fairs death and that the appellant should therefore be acquitted.  The
    defence also submitted that if the jury was satisfied that the appellant had caused
    Mr. Fairs death, the Crown had failed to prove beyond a reasonable doubt, either
    that the appellant had the requisite intent for murder required under ss. 229(a)(i)
    or (ii), or that he had planned and deliberated upon the murder.  On the
    defence argument, manslaughter was the proper verdict if the jury concluded that
    the appellant had caused Mr. Fairs death.

III

WAS THE FIRST DEGREE MURDER CONVICTION UNREASONABLE?

[30]

The appellant submits that his conviction on the charge of first degree
    murder was unreasonable within the meaning of s. 686(1)(a)(i) of the
Criminal
    Code
.  A verdict is unreasonable if a properly instructed jury, acting
    judicially, could not have come to that verdict:
R. v. Biniaris
, 2000
    SCC 15, [2000] 1 S.C.R. 381, at paras. 36-42.

[31]

An appeal court, in considering a claim that a jury verdict is
    unreasonable, must engage in a limited weighing of the evidence.  Cromwell J.
    described the boundaries of that exercise in
R. v. W.H.
, 2013 SCC 22, [2013]
    2 S.C.R. 180, at paras. 27-28:

On one hand, the reviewing court must give due weight to the
    advantages of the jury as the trier of fact who was present throughout the
    trial and saw and heard the evidence as it unfolded.  The reviewing court must
    not act as a 13th juror or simply give effect to vague unease or lurking
    doubt based on its own review of the written record or find that a verdict is unreasonable
    simply because the reviewing court has a reasonable doubt based on its review
    of the record.

On the other hand, however, the review cannot be limited to
    assessing the sufficiency of the evidence.  A positive answer to the question
    of whether there is some evidence which, if believed, supports the conviction
    does not exhaust the role of the reviewing court.  Rather, the court is
    required to review, analyse and, within the limits of appellate disadvantage,
    weigh the evidence [citation omitted] and consider through the lens of
    judicial experience, whether judicial fact-finding
precludes
the conclusion reached by the jury.  Thus, in deciding whether the verdict is
    one which a properly instructed jury acting judicially could reasonably have
    rendered, the reviewing court must ask not only whether there is evidence in
    the record to support the verdict, but also whether the jurys conclusion
    conflicts with the bulk of judicial experience.  [Citations omitted; emphasis
    in original.]

[32]

The factual cause of Mr. Fairs death was a live issue at trial.  The
    experts could not identify a medical cause of death.  However, it seems to me
    that by the end of the evidence, especially the appellants own testimony, the
    jury would have no difficulty concluding that the appellants assault caused
    Mr. Fairs death.  The jurys verdict depended on its assessment of the
    appellants state of mind immediately before and at the time he struck those
    blows.  Depending on that assessment, the appellant was guilty of first degree
    murder, second degree murder, or manslaughter.

[33]

The appellant was guilty of murder if he intended to kill Mr. Fair (s.
    229(a)(i)).  He was equally guilty of murder if he intended to cause bodily
    harm to Mr. Fair, knowing that bodily harm was likely to cause his death and
    was reckless as to that possibility (s. 229(a)(ii)).  The appellant was guilty
    of first degree murder under s. 231(2) if the Crown proved two additional
    mental states.  The Crown had to prove that the murder was both planned and
    deliberate.

[34]

A murder is planned if it is the product of a calculated scheme or
    design which has been carefully thought out, and the nature and consequences of
    which have been considered and weighed.  A murder is deliberate if it is considered,
    not impulsive  implying that the accused must take time to weigh the
    advantages and disadvantages of his intended action:
R. v. Widdifield
(1961), 6 Crim. L.Q. 152 (Ont. H.C.),
per
Gale J.; and
R. v.
    Nygaard
, [1989] 2 S.C.R. 1074, at p. 1084.  Murder, as defined in either
    s. 229(a)(i) or s. 229(a)(ii), can be planned and deliberate:
R. v. Banwait
,
    2010 ONCA 869, 265 C.C.C. (3d) 201, at paras. 59-64, revd, but not on this
    issue, 2011 SCC 55, [2011] 3 S.C.R. 533.

[35]

At trial, the Crown relied on s. 229(a)(ii) to establish the appellants
    liability for murder.  To establish liability for first degree murder, based on
    s. 229(a)(ii), the Crown had to establish beyond a reasonable doubt that the appellant:

·

after
    careful thought, formulated a plan to attack Mr. Fair, intending to cause him
    bodily harm that the appellant knew was likely to kill Mr. Fair, and to persist
    in that attack despite the likelihood that it would result in Mr. Fairs death;
    and

·

having
    formulated and thought out the plan described above, took the time to consider
    whether he should proceed with the plan, and proceeded only after evaluating
    the pros and cons of doing so:
Banwait
, at paras. 57-64.

[36]

As in almost all cases, the evidence relevant to the
mens rea
issues,
    save the appellants testimony as to his state of mind, was circumstantial.  Much
    of that evidence had relevance, both to the
mens rea
component of
    murder, and the
mens rea
required for planning and deliberation.

[37]

A lay jury, unaccustomed to the sometimes subtle distinctions drawn in the
    criminal law among various culpable mental states, might move quickly from a
    finding that the appellant decided to inflict bodily harm that he knew would
    probably cause death, to a finding that the appellant had planned to inflict
    harm that he knew was likely to cause death.  Looking at the evidence through
    the lens of judicial experience, an appeal court must have regard to the real
    risk that evidence demonstrating the intention to commit murder under s. 229(a)(ii)
    could be improperly treated by a jury as equally cogent evidence of planning,
    if not deliberation.

[38]

Turning to the evidence, I am satisfied that a reasonable jury could
    find that the appellant decided, for one reason or another, to use force to
    evict Mr. Fair from the apartment.  The appellant knew that he was no match
    physically for Mr. Fair, so he went looking for a weapon to use when
    confronting the unwelcome guest.  The appellant found a weapon in the furnace
    room and returned to the living room armed with the hollow aluminum pipe
    wrapped in a towel.  He was intent upon making a pre-emptive disabling assault
    on Mr. Fair.  The appellant did exactly that, hitting Mr. Fair on the head from
    behind and then striking him a second time as he tried to stand up.  Mr. Fair
    fell to the ground unconscious.  He died within moments.

[39]

I accept that the appellants swift attack on Mr. Fair as soon as he
    returned to the living room supports the inference that the appellant had made
    the decision to attack Mr. Fair before he returned to the living room.  I also
    accept that a reasonable jury could infer from the totality of the evidence that
    when the appellant hit Mr. Fair with the aluminum pipe, he intended to cause
    Mr. Fair bodily harm that he knew was likely to cause death and he was reckless
    as to that consequence.  Those findings would justify a conviction for second
    degree murder.

[40]

A finding that the appellant decided seconds or a few minutes before
    inflicting the harm, to intentionally inflict bodily harm knowing that death was
    likely to ensue, is not the same as concluding that the appellant planned and
    deliberated upon the attack before commencing that attack.  To borrow the language
    of the case law, there has to be evidence from which a jury could reasonably
    infer that the appellants attack on Mr. Fair was the product of a calculated
    scheme, arrived at after weighing the nature and consequences of that scheme.
    In addition to evidence of planning, there had to be evidence that having made
    the plan, the appellant deliberated, that is weighed the pros and cons of putting
    the plan into action.

[41]

Several features of the evidence indicate that a reasonable jury could
    not have been satisfied beyond a reasonable doubt that the killing was planned
    and deliberate.  First, the Crown did not suggest that any planning and deliberation
    occurred before the appellant left the living room and went to the furnace
    room.  On the appellants evidence, only about two minutes passed before he
    returned and the assault occurred.  While Ms. Gilbert testified that the
    appellant may have been gone for up to 20 minutes, her evidence about the length
    of time that passed between the appellant leaving the living room and his
    return was unclear and unreliable.  She gave several different estimates.  In
    any event, even on Ms. Gilberts evidence, not much time passed between the
    appellant leaving the living room and returning armed with the pipe.  It does
    not necessarily take a significant amount of time to plan and deliberate upon a
    murder, but the timeframe described in this evidence offers little support for
    the Crowns claim that the murder was planned and deliberate.

[42]

The evidence about the appellants selection and modification of the
    weapon he used to attack Mr. Fair does not support findings of planning and
    deliberation.  On the Crowns theory, the appellant planned to inflict injuries
    that he knew were likely to cause death and thought about his plan before going
    ahead with it.  In furtherance of that plan, the appellant selected a hollow
    aluminum pipe as his weapon and wrapped one end of that pipe in a towel.
    Again, on the Crowns evidence, the appellant then gripped that weapon with two
    hands and swung it like a baseball bat, striking Mr. Fair across the head
    with the padded end of the pipe.  Despite what was, on the Crowns theory, one,
    if not two, very forceful blows, the medical evidence established that there
    were no potentially fatal brain injuries.

[43]

The medical evidence suggests two possibilities, neither of which
    support a finding of planning and deliberation.  Either the weapon, as chosen
    and modified by the appellant, was not up to the task of inflicting lethal
    force, even when swung like a baseball bat, or the appellant, as he testified,
    did not hit Mr. Fair with a great deal of force.  Neither inference supports
    the assertion that the appellant had not only decided to inflict bodily harm
    that he knew would cause death, but that he had planned for that result and
    deliberated upon it before launching his attack.

[44]

The appellants reactions immediately after he struck Mr. Fair provide
    the most compelling evidence contra-indicating planning and deliberation.  Ms.
    Gilbert testified that as soon as Mr. Fair fell to the ground unconscious and bleeding,
    the appellant became very upset.  He started to cry.  The appellant searched
    for a pulse on Mr. Fair and insisted that he could not be dead.  He told Ms.
    Gilbert that he had not meant to hurt, much less kill, Mr. Fair.

[45]

The appellants testimony was consistent with the testimony of Ms.
    Gilbert.  Ms. Ellerys evidence about the appellants description of the events
    during their telephone call is also consistent with Ms. Gilberts testimony.

[46]

The Crown relied heavily on Ms. Gilberts description of the attack on
    Mr. Fair.  There is nothing in the evidence to suggest that her description of
    the appellants reaction when Mr. Fair fell to the ground was inaccurate.  Nor
    is there anything in the evidence to suggest that the appellant may have
    feigned his immediate reaction to Mr. Fairs death.

[47]

I think a reasonable jury would inevitably put considerable weight on Ms.
    Gilberts description of the appellants conduct immediately after he hit Mr.
    Fair when considering whether the appellant had planned and deliberated on the use
    of lethal force.  His conduct belied any inference that he had planned an
    attack on Mr. Fair knowing that he would probably kill Mr. Fair and that he deliberated
    upon his plan before executing the attack.

[48]

There was no other evidence capable of supporting a finding of planning
    and deliberation.  There was evidence describing the appellants conduct after
    he killed Mr. Fair.  That after-the-fact conduct is the subject of a separate
    ground of appeal.  For present purposes, it need only be said that the Crown
    does not suggest that any of that conduct could support the Crowns contention
    that the appellant committed a planned and deliberate murder.

[49]

The Crown also led evidence of various statements made by the appellant
    after the homicide.  While those statements contained admissions that the
    appellant had killed Mr. Fair, none provided evidence of planning and
    deliberation.

[50]

A reasonable jury could not convict the appellant of a planned and
    deliberate murder on this evidence.  The conviction on the charge of first
    degree murder is unreasonable and must be set aside.

IV

[51]

As the conviction for first degree murder was unreasonable, the
    appellant is entitled to an acquittal on that charge.  I am satisfied that he
    is also entitled to a new trial on the charge of second degree murder.  The
    trial judges instructions on the use the jury could make of the appellants
    after-the-fact conduct resulted in reversible error.  I turn now to that ground
    of appeal.

THE AFTER-THE-FACT CONDUCT INSTRUCTION

[52]

The jury heard a great deal of evidence about the appellants actions in
    the minutes, hours and days following the homicide.  The appellant buried the
    body twice, dismembered the body and covered it in quicklime.  The appellant
    cleaned up the apartment after the homicide and discarded incriminating
    evidence, including the weapon used in the assault.  The jury also heard
    evidence about the appellants verbal and written statements made in the days
    and months following the homicide.  For the purposes of this ground of appeal,
    I concentrate on the appellants actions and not his statements.

The Arguments on Appeal

[53]

Counsel for the appellant accepts that the appellants after-the-fact
    conduct was relevant and admissible.  He submits, however, that in the circumstances
    of this case, the evidence was equally consistent with the appellant having
    committed manslaughter, murder or first degree murder.  Thus, it could not
    assist the jury in deciding whether the appellant had the intent required for
    murder under s. 229(a) or had planned and deliberated upon the murder.  Counsel
    argues that the relevance could not go beyond identifying the appellant as
    having unlawfully caused Mr. Fairs death:  see
R. v. Arcangioli
,
    [1994] 1 S.C.R. 129; and
R. v. Figueroa
, 2008 ONCA 106, 232 C.C.C.
    (3d) 51, at paras. 33-39.

[54]

Counsel submits that if after-the-fact conduct is not relevant to the
    issues of the intent required for murder, or planning and deliberation, the
    jury must be told that it cannot consider the after-the-fact conduct in respect
    of those issues.  Counsel argues that an instruction identifying the prohibited
    uses of the after-the-fact conduct was particularly necessary in this case
    because Crown counsel in his closing repeatedly and incorrectly invited the
    jury to use the after-the-fact conduct as evidence of intention under s. 229(a).
    Counsel adds that the sheer volume of after-the-fact conduct evidence, and the
    gruesome nature of that evidence, could incline a jury, absent a proper
    instruction, to use that evidence without any restriction in determining its
    verdict.  Counsel submits that this was yet another reason why it was essential
    that the trial judge clearly instruct the jury on the limited use it could make
    of the appellants after-the-fact conduct.

[55]

Crown counsel accepts that the after-the-fact conduct in this case,
    while relevant to show that the appellant unlawfully caused Mr. Fairs death,
    could not assist the jury in deciding whether the appellant had the intent
    required for murder or had planned and deliberated upon the murder.  Counsel
    submits that the trial judges instructions, read as a whole, properly limited
    the use of the after-the-fact conduct to a determination of whether the
    appellant had unlawfully caused Mr. Fairs death.

[56]

Crown counsel also submits that at least some of the after-the-fact
    conduct had other potential evidentiary value not mentioned by the trial
    judge.  She submits that to that extent the instruction was unduly favourable
    to the appellant.
[3]

What Use can be Made of After-the-Fact Conduct Evidence?

[57]

Things done by an accused after an alleged offence may constitute
    circumstantial evidence of a material fact in issue.  As circumstantial
    evidence, after-the-fact conduct operates no differently than other kinds of
    circumstantial evidence.  If the conduct, as a matter of common sense and human
    experience, makes a material fact in issue more or less likely, the evidence is
    relevant to that fact in issue:
[4]
see
R. v. White
, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 22, 31;
    and
R. v. Chambers
, 2016 ONCA 684, at para. 76.

[58]

However, because after-the-fact conduct is often discreditable conduct,
    and can, at least on a superficial level, be wrongly viewed as almost
    conclusive of guilt, it is crucial that the trial judge carefully instruct the
    jury on the use it can make of such evidence.  Often, a proper instruction will
    require not only an instruction as to what the jury can use the evidence for,
    but also an instruction as to the prohibited uses of the evidence:
R. v.
    Foerster
, 2017 BCCA 105, 346 C.C.C. (3d) 163, at para. 55.

[59]

After-the-fact conduct can, in different contexts, be relevant to
    different issues, including intent under s. 229(a) and planning and
    deliberation under s. 231(2):  e.g. see;
R. v. MacKinnon
(1999), 43
    O.R. (3d) 378 (C.A.), at pp. 383-84 and
R. v. Rodgerson
, 2015 SCC 38, [2015]
    2 S.C.R. 760, at para. 27, affg 2014 ONCA 366, 309 C.C.C. (3d) 535.  However,
    in this case, I agree with counsel that the after-the-fact conduct was relevant
    only to whether the appellant unlawfully killed Mr. Fair. It could not assist
    the jury in determining whether he had the intention for murder, or had planned
    and deliberated upon the murder.

The Errors in the After-the-Fact Conduct Charge

[60]

The trial judge began her instruction on after-the-fact conduct by
    telling the jury that evidence of after-the-fact conduct may or may not provide
    evidence of culpability.  She correctly told the jury that after-the-fact
    conduct could be explained by something other than the appellants commission of
    the offence, in which case evidence of after-the-fact conduct could not assist
    the Crown.  The trial judge next reviewed several of the appellants statements
    to various people about the homicide.  She then turned to the appellants acts
    after the homicide:

Other evidence of post-offence conduct is the burial, the
    dismemberment.
You may use that evidence, together with the other evidence
    of the letters, to help you decide if Mr. Robinson is guilty of culpable
    homicide, and Ill tell you what that is shortly
[Emphasis added.]

[61]

The trial judge went on to explain the inferences necessary before
    after-the-fact conduct could be used as evidence of guilt:

If you conclude that he actually did say what he has alleged to
    have said, or did do what he is alleged to have done after the offence was
    committed, you go on to consider the next question, whether this was because
    Mr. Robinson was conscious, was culpable of having committed the offence of
    culpable homicide, or for some other reason.  Alright, so two steps, did he
    actually do it, did he say it and then the second step is did he do it or say
    it because its evidence of culpability?

[62]

The trial judges only reference to the definition of culpable homicide
    appears in her instructions on manslaughter.  She told the jury:

Manslaughter is defined as culpable homicide thats not
    murder.
In other words, when someone kills another person
    unintentionally, without the intent.  To determine John Robinsons state of
    mind, what he meant to do, you should consider all of the evidence, what he did
    or did not do, how he did or did not do it, what he said or did not say.  You
    look at Mr. Robinsons words and conduct before, at the time, and after the
    unlawful act that caused Mr. Fairs death.  All of these things, and the
    circumstances in which they happened, may shed light on Mr. Robinsons state of
    mind.  They may help you decide what he meant or didnt mean to do.  [Emphasis
    added.]

[63]

The trial judge did not expressly tell the jury that they could not use the
    appellants after-the-fact conduct as evidence of intention under s. 229(a), or
    as evidence of planning and deliberation.  It is not always necessary for a
    trial judge to tell a jury both the permissible and impermissible uses of
    evidence.  However, in this case, the after-the-fact conduct was a dominant
    feature of the evidence.  It was the kind of evidence that, absent a proper
    instruction, could be used by a jury to infer guilt without distinguishing
    among the levels of guilt available on a proper application of the law to the
    evidence.  An instruction explaining the prohibited uses of the after-the-fact
    conduct evidence was required.

[64]

I am also satisfied that a specific instruction about the prohibited
    uses of the after-the-fact conduct evidence was essential as an antidote to the
    Crowns closing argument in which counsel erroneously invited the jury on more
    than one occasion to use the after-the-fact conduct evidence as evidence of
    intent under s. 229(a).  The non-direction in the circumstances of this case constituted
    misdirection, amounting to an error in law.

[65]

Apart from the non-direction, the trial judge also misdirected the jury
    on the use it could make of the appellants after-the-fact conduct.  She told
    the jury that the evidence could help them decide if Mr. Robinson is guilty of
    culpable homicide.  She indicated she would explain the phrase culpable
    homicide in due course.  When explaining the elements of manslaughter, the
    trial judge referred to manslaughter as culpable homicide that is not
    murder.  I can find no other explanation of the phrase culpable homicide.

[66]

The trial judges indication that manslaughter is defined as culpable
    homicide that is not murder implies that both murder and manslaughter are
    culpable homicide (as they are:  see s. 222(4)).  If the jury took that meaning
    from the instruction, it would understand that the after-the-fact conduct was
    relevant to the appellants potential liability for both manslaughter and
    murder.

[67]

Even if the jury did not understand culpable homicide to include both
    murder and manslaughter, the trial judge immediately followed her reference to
    culpable homicide with an express instruction that the jury should consider
    all of the appellants conduct before, at the time, and after the unlawful act
    that caused Mr. Fairs death to decide the appellants state of mind when he
    killed Mr. Fair (see para. 62 above).  The reference to state of mind clearly
    includes intent as defined in s. 229(a) and planning and deliberation.  This
    instruction amounts to misdirection.

[68]

The trial judge erred in law in her instruction on after-the-fact
    conduct.  The Crown, quite correctly in my view, does not suggest that the
    curative proviso can be applied.  Had the jury been properly instructed on the
    limited use of the appellants after-the-fact conduct, the jury may well have
    returned a different verdict.  The appellant is entitled to a new trial on the
    charge of second degree murder.

V

THE REMAINING GROUNDS OF APPEAL

[69]

The appellant raises several other grounds of appeal.  Some relate to
    alleged errors in the instruction on first degree murder.  As I would quash the
    first degree murder conviction and enter an acquittal on that charge, I need
    not address those arguments.

[70]

Some of the appellants other arguments concern issues that may or may
    not arise on the new trial.  Even if they do arise, the record on the new trial
    will not necessarily be the same as the record at the first trial.  None of the
    issues raised are jurisprudentially contentious.  I see little point in
    examining the remaining grounds of appeal in detail.  I will, however, briefly address
    two of the grounds in the hope that my comments may assist at the retrial.

The Evidence of the Appellants Mistreatment of Ms. Gilbert

[71]

The jury heard considerable evidence about the relationship between the
    appellant and Ms. Gilbert.  They heard evidence that the two often argued and
    that the appellant sometimes resorted to violence against Ms. Gilbert.  He assaulted
    her on various occasions before and after the homicide.  The evidence of the
    appellants mistreatment of Ms. Gilbert came from Ms. Gilbert, her parents, her
    friends, and the letters written by the appellant while he was in jail.  In his
    testimony, the appellant confirmed that he and Ms. Gilbert argued and fought
    quite often.  He admitted that he could be possessive and controlling.

[72]

The Crown offered the appellants mistreatment of Ms. Gilbert as
    evidence of motive.  The Crown maintained that the appellant had attacked Mr.
    Fair, in part at least, because he was jealous of what he believed to be the
    prior sexual relationship between Mr. Fair and Ms. Gilbert and he was angry as
    the two seemed to be getting along very well that night.  The Crown submitted
    that the appellants possessiveness and prior acts of violence against Ms.
    Gilbert and his efforts to control her actions supported the Crowns motive
    theory.  The trial judge put this theory to the jury.

[73]

On appeal, counsel for the appellant argues that there was no evidence
    to support the motive advanced by the Crown.  I disagree.  Ms. Gilbert described
    the appellant as acting a little jealously when she, the appellant and Mr. Fair
    were drinking together on the night of the homicide.  She also gave evidence of
    his controlling and jealous nature during their relationship.  Other witnesses
    testified about the appellants possessive attitudes towards Ms. Gilbert.  The
    appellant, in letters from jail, made comments suggesting that he had killed
    Mr. Fair out of jealousy and a desire to keep Ms. Gilbert under his control.  There
    was also evidence that the appellant believed that Ms. Gilbert and Mr. Fair had
    a prior sexual relationship.

[74]

Having regard to the totality of the evidence, a reasonable juror could
    infer that when the appellant saw Mr. Fair and Ms. Gilbert drinking together and
    apparently getting along very well during the evening, he might become jealous,
    possessive and react violently.  There was an evidentiary basis for the motive
    alleged by the Crown.  I, of course, make no comment on the cogency of that
    evidence.

[75]

If on the retrial, the Crown alleges the same motive, it will be for the
    trial judge to determine, based on the material placed before him or her,
    whether there is an evidentiary basis for the alleged motive.  Assuming the
    evidence is the same as it is in the appeal record, it would be appropriate for
    the judge to leave motive with the jury.

[76]

The fact that motive is in play does not, however, mean that all of the
    evidence that has some relevance to motive will necessarily be admitted.  The
    trial judge will have to consider the various pieces of evidence put forward by
    the Crown in support of the alleged motive.  Much of that evidence will involve
    discreditable conduct by the appellant.  The trial judge will have to determine
    whether the probative value of that evidence as it relates to motive is outweighed
    by its potential prejudicial effect.  If so, the evidence should be excluded.  In
    making that assessment, the trial judge will have regard to a number of factors,
    including the nature and timing of the conduct at issue.  For example, conduct
    that is distant in time from the homicide may have little value on the issue of
    motive.  Similarly, conduct alleging mistreatment of Ms. Gilbert that is not
    testified to by Ms. Gilbert herself may have limited probative value.

[77]

The trial judge is not required to choose between admitting all of the
    evidence relevant to motive and excluding all of that evidence.  The admissibility
    arguments on the retrial should be more focused than the arguments advanced at
    the original trial, as the parties on the retrial will have a clearer
    understanding of the nature of the evidence, its potential relevance, and its
    potential to prejudice the appellant.

[78]

The Crown offered a second basis upon which the appellants mistreatment
    of Ms. Gilbert after the homicide should be admitted.  The Crown submitted that
    evidence of his controlling and violent conduct towards Ms. Gilbert in the
    weeks following the homicide and before his arrest supported her evidence that
    she was afraid of the appellant and feared that he might hurt her if she spoke
    to anyone about the homicide.  That fear caused her to remain quiet.  The Crown
    argued that if the jury accepted that the appellant had mistreated Ms. Gilbert after
    the homicide, it would make her evidence more credible, particularly as it
    related to her explanation for remaining silent.

[79]

I think the evidence was relevant to Ms. Gilberts credibility.  As with
    the evidence going to motive, however, this evidence had the potential to improperly
    prejudice the appellant in the jurys eyes.  On the retrial, the trial judge
    will have to determine whether that potential prejudice justifies excluding the
    evidence of the mistreatment of Ms. Gilbert after the homicide, despite its
    relevance to her credibility.

[80]

In considering whether the evidence should be excluded, the trial judge
    will have to consider the extent to which Ms. Gilberts credibility is in fact
    attacked by the defence, and the extent to which the evidence of her
    mistreatment by the appellant after the homicide enhances her credibility.  I
    think it would be open to a trial judge to conclude that the probative
    potential of the evidence as it relates to Ms. Gilberts credibility is not
    significant.

The Appellants Letters from Jail

[81]

The Crown led evidence of seven letters written by the appellant from
    jail to various individuals.  Parts of the letters were clearly admissible and
    counsel for the appellant does not suggest otherwise.  Parts of the letters were
    redacted at trial, although counsel submits that some of the redacted portions
    could still be seen if the letters were held up to the light.

[82]

The letters contained comments capable of amounting to admissions by the
    appellant that he had unlawfully caused Mr. Fairs death.  Other parts of at
    least two of the letters supported the Crowns argument that jealously provided
    the motive for the killing.  Still other parts of the letters could have a
    negative impact on the appellants credibility as a witness.  He was
    cross-examined at length on the contents of some of the letters.  One letter
    also contained an observation by the appellant that could be read as an
    indication by him that one should carefully read the disclosure provided by the
    Crown so that one could shape ones evidence to match that disclosure.  The
    Crown was entitled to cross-examine the appellant as to the extent to which his
    own evidence was shaped by his knowledge of the disclosure.  Cross-examination
    along that line does not invite the jury to draw an adverse inference against
    the appellants credibility merely because he received disclosure, to which he was
    constitutionally entitled, but rather invites the jury to draw an inference
    against the appellants credibility based on the appellants explanation of how
    he used disclosure:
R. v. White
(1999), 42 O.R. (3d) 760 (C.A.), at
    pp. 767-68; and
R. v. F.E.E.
, 2011 ONCA 783, 108 O.R. (3d) 337, at
    paras. 71-72.

[83]

There were parts of the letters that were not relevant, and some that
    were potentially prejudicial to the appellant.  For example, he made references
    in some of the letters to the very negative views that others held of him.  He
    also referred to time spent in segregation while in jail.

[84]

If the Crown introduces the letters at the new trial, the trial judge
    will have to determine the extent to which the letters should be redacted
    before they go to the jury.  That process involves not only considering which parts
    of the letters are relevant and/or potentially prejudicial, but also the need
    to maintain the proper context in which the admissible parts of the letters should
    be read.

[85]

The trial judge is entitled to expect the assistance of counsel,
    particularly defence counsel, in the editing process.  Defence counsel is in,
    by far, the best position to know what parts of the letters, while on their
    face perhaps irrelevant or even prejudicial, are necessary or advantageous to
    the defence because of the context they provide, either for other comments in
    the letters, or for other defence evidence.  Defence counsel cannot simply make
    generic comments about prejudice, sit back and hold his or her specific complaints
    until the case reaches the appellate level.

[86]

Assuming, after redaction, there are still potentially prejudicial parts
    to the material provided to the jury, the trial judge will have to properly caution
    the jury against the impermissible use of those parts of the letters.  This
    trial judge did that.  As in the editing process, counsel, especially defence
    counsel, have an obligation to bring the potentially prejudicial aspects of the
    letters to the judges attention, and put forward the defence position as to
    what the jury should be told about those parts of the letters.

VI

CONCLUSION

[87]

I would allow the appeal, quash the conviction on the charge of first
    degree murder, enter an acquittal on that charge, and order a new trial on the
    charge of second degree murder.

Released: DD  August 10, 2017

Doherty J.A.

I agree. J. MacFarland J.A.

I agree. David M. Paciocco J.A.

[1]

The appellant also pled guilty to, and was convicted of,
    offering an indignity to a dead body.  That conviction is not in issue on the
    appeal.

[2]

Ms. Gilbert pled guilty to being an accessory after-the-fact
    to murder.

[3]

For example, Crown counsel argues that the trial judge could
    have told the jury that the appellants conduct immediately after the homicide was
    relevant to the jurys assessment of the extent to which the appellants capacity
    to form the requisite
mens rea

for murder or
    planning and deliberation was compromised by his consumption of alcohol and drugs
    in the hours before the homicide.  I need not consider whether the evidence had
    any relevance to this issue as it has no impact on the error alleged by the
    appellant.

[4]

After-the-fact conduct, like any evidence, can be excluded
    even if relevant, if the probative value of the evidence is outweighed by its
    prejudicial effect:  D. Watt,
Watts
    Manual of Criminal Evidence
, (Toronto: Thompson
    Reuters, 2017), at pp. 44-45.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rutledge, 2017 ONCA 635

DATE: 20170802

DOCKET: C61395

Watt, Benotto and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Douglas Rutledge

Appellant

Andrew Faith, for the appellant

Michael Fawcett, for the respondent

Heard: June 29, 2017

On appeal from the conviction entered on June 30, 2015 by
    Justice Bonnie J. Wein of the Superior Court of Justice, sitting without a jury.

REASONS FOR
    DECISION

[1]

The appellant appeals his convictions of firearms and ammunition
    offences on the ground that the trial judge wrongly admitted evidence of guns
    and ammunition seized during a search of a farmhouse in which he was the only
    occupant.

[2]

At the conclusion of argument we dismissed the appeal with reasons to be
    given later. These are our reasons.

The Background Facts

[3]

A justice of the peace granted two telewarrants to search a remote
    Dufferin County farmhouse for firearms, ammunition, controlled substances and
    related paraphernalia. Among other sources furnishing information relied upon
    in the support of the ITO, was a confidential informant who provided precise,
    current details about activities taking place in the farmhouse, described those
    associated with it and related what was likely to be found there.

[4]

Considered in its entirety, the ITO supported a reasonably grounded
    belief that several persons occupied or had access to the farmhouse. Some had
    histories of violence. Drugs were trafficked there or from there. And weapons,
    firearms including a semi-automatic rifle, were present and available for use
    by its occupants.

[5]

The officer in charge of the investigation considered that an undetected
    approach to the farmhouse to execute the warrants was essential to the successful
    conclusion of the investigation. The safest course of action for all concerned
     occupants and searching officers alike  was thought to be to flush out any
    occupants, thus to avoid a shootout or armed standoff.

[6]

To execute the warrants, the police came loaded for bear. Equipment for
    a dynamic entry. Tactical units. Night vision eyewear. Loud hailers.
    Negotiators in case of a standoff. And tear gas.

[7]

Members of the search team broke a window on the ground floor of the
    farmhouse. An officer tossed a tear gas canister onto the floor of a room
    adjacent to the broken window. The canister was not incendiary. It dispensed
    gas, but not heat.

[8]

The appellant was the only occupant of the farmhouse. As the tear gas
    began to spread, the appellant quickly left the building. He coughed and was
    teary-eyed, but required no medical intervention or assistance. He was promptly
    arrested.

The Grounds of Appeal

[9]

The appellant contends that the trial judge erred in law in failing to
    conclude that the search conducted and seizures made offended s. 8 of the
Charter
and to exclude the things seized as evidence at his trial.

[10]

The argument advanced is twofold:

i.

that the use of tear gas is a search, which requires, but did not
    receive prior judicial authorization, thus was an unreasonable search in breach
    of s. 8 of the
Charter
; and

ii.

that the use of tear gas rendered the manner of the search conducted
    under the telewarrants unreasonable, thus in contravention of s. 8 of the
Charter
.

[11]

As we briefly explain, we did not give effect to either ground of
    appeal.

Ground #1: Tear Gas as a search

[12]

The first ground of appeal faults the trial judge for failing to
    conclude that the use of tear gas in execution of a search warrant is, on its
    own, a discrete search within s. 8 of the
Charter
. It follows,
    according to the appellant, that this use of tear gas required, but did not
    receive, prior judicial authorization, thus amounted to an unreasonable search
    in contravention of s. 8.

[13]

We rejected this ground of appeal for both procedural and substantive
    reasons.

[14]

First, the procedural obstacles.

[15]

The argument was not advanced at trial. As a result, it lacks not only
    an evidentiary foundation, but also the critical findings of fact necessary for
    a judicial determination of its merits. It is for these reasons that we do not
    generally permit advancement of grounds for the first time on appeal. We see no
    reason to depart from that salutary practice here.

[16]

Second, the substantive defect.

[17]

We regard the appellants argument on this ground of appeal as
    fundamentally and fatally flawed.

[18]

To begin, the use of tear gas in these circumstances does not fall
    within the plain or any extended meaning of search within s. 8 of the
Charter
.

[19]

Every investigatory technique used by police does not amount to a
    search within or for the purposes of s. 8 of the
Charter
. It is only
    where those state examinations constitute an intrusion upon some reasonable
    privacy interest of individuals that police conduct amounts to a search:
R.
    v. Evans
, [1996] 1 S.C.R. 8, at paras. 10-11;
R. v. A.M.
, 2008 SCC
    19, [2008] 1 S.C.R. 569, at para. 8. It is not only the
type
of police
    conduct that determines whether a search has occurred, but also the
purpose
of that conduct that is controlling. A search is about looking for things to be
    used as or to obtain evidence of a crime:
R. v. Silveira
(1994), 88
    C.C.C. (3d) 61 (Ont. C.A.), at para. 35. See also,
R. v. MacDonald
, 2014
    SCC 3, [2014] 1 S.C.R. 37, at paras. 25-26.

[20]

To be certain, s. 8 protects personal privacy. It guarantees the right
    of persons not to have their bodies touched or otherwise explored for the
    purpose of disclosing objects, matters or information that they wish to
    conceal. State actions that interfere unreasonably with a persons bodily
    integrity for such a purpose breach a persons right to privacy. But not every
    state action does this:
R. v. Dyment
, [1988] 2 S.C.R 417, at pp.
    431-432;
R. v. Tessling
, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 21.

[21]

In this case, the use of tear gas was not for the purpose of obtaining
    personal information about the appellant which he sought to shelter from state
    discovery and use. The purpose of using tear gas was to flush out the occupants
    of the premises so that confrontation would be avoided. Section 8 interests
    were not implicated by what occurred.

[22]

We also reject the submission that the investigative decision or plan to
    use tear gas should have been disclosed in the ITO. This submission comes
    perilously close to micromanagement of police choices about equipment and the
    manner of execution that are to be avoided or better considered as part of the
    inquiry into whether the search was conducted in a reasonable manner:
R. v.
    Cornell
, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 31. We also note that
    the statutory form used for an ITO, Form 1, makes no reference to the manner of
    execution.

Ground #2: Unreasonable Execution of the Search

[23]

The second ground of appeal alleges that the trial judge erred in
    failing to find that the search was executed in an unreasonable manner. This
    submission also focuses on the use of tear gas during execution of the warrant,
    a substantial departure from the knock-and-announce rule which the Crown failed
    to justify.

[24]

Confronted with a similar argument, the trial judge correctly set out
    the governing legal principles, examined the evidence adduced at trial and
    found as a fact that the use of tear gas was not unjustified, thus did not
    result in execution of the search in an unreasonable manner. Her factual
    findings were not cumbered by any misapprehension of the evidence. The
    inferences she drew were reasonable. Her findings were untainted by legal
    error. They are entitled to significant deference in this court.

[25]

In reaching our conclusion, we have in mind that police decisions about
    the manner in which a search will be carried out fall to be adjudged by what
    was or should reasonably have been known to them at the time the search was
    conducted, not through the lens of how things turned out to be. Hindsight is
    not our measuring stick.

[26]

We also recognize that police are entitled to some latitude on how they
    decide to enter premises under a warrant. Omniscience is not a prerequisite for
    a search to be conducted in a reasonable manner. In an assessment of the manner
    in which a search has been executed, a reviewing court balances the rights of
    suspects, on the one hand, with the requirements of safe and effective law enforcement,
    on the other. The trial judge did this. This is no place for the Monday morning
    quarterback.

CONCLUSION

[27]

It is for these reasons that we dismissed the appeal.

David Watt J.A.

M.L. Benotto J.A.

L.B. Roberts J.A.