COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Baker, 2013 ONCA 746

DATE: 20131211

DOCKET: C56576

Doherty, Feldman and MacPherson JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dale Axil Baker

Appellant

Michael A. Johnston, for the appellant

Philippe G. Cowle, for the respondent

Heard:  December 9, 2013

On appeal from the decision of Justice Mullins of the
    Superior Court of Justice rendered on September 4, 2012 at Peterborough,
    Ontario, acquitting the appellant on two charges of criminal negligence causing
    death and convicting the appellant on two charges of dangerous driving causing
    death.

ENDORSEMENT

[1]

The appellant was acquitted of two charges of criminal negligence
    causing death and convicted on two counts of dangerous driving causing death.
    He appeals his convictions.

[2]

The charges arose out of an accident that occurred on a two-lane county
    road near Peterborough on Christmas Eve in 2009.  The appellants vehicle
    crossed over on to the wrong side of the road while negotiating a gentle curve
    and struck an oncoming vehicle driven by Kenneth Dales.  Mr. Dales and his wife
    were killed.

[3]

The trial judges reasons contain a full review of the evidence and an
    accurate summary of the relevant legal principles as explained most recently in
R. v. Beatty
, 2008 SCC 5 and
R. v. Roy
, 2012 SCC 26.

[4]

The trial judge made several findings of fact:

·

But for a very small portion of the back of the appellants
    vehicle, the entirety of his vehicle passed over the centre line into the
    oncoming traffic.

·

The appellant was going over the 80 km speed limit and 30 to 40 km
    per hour faster than the vehicle he struck.

·

The accident re-constructionist could not be more specific as to
    the appellants speed.

·

The appellants car was equipped with a radar detection device
    that was operating at the time of the accident.

·

The speed combined with the radar device suggested that the speed
    at which the appellant was driving was neither inadvertent nor momentary.

·

The appellants car was mechanically fit at the time of the
    accident.

[5]

The trial judge ultimately concluded:

Given that there were no mechanical flaws found in his vehicle,
    I conclude and I find as a fact that it was Mr. Bakers actions, not his
    inaction, that accounts for his vehicle abruptly having entered almost fully,
    the wrong side of the road and colliding with another vehicle at a speed in
    excess of 80 kilometres per hour.  I reject making a finding that the presence
    of Mr. Bakers vehicle on the wrong side of the road should be reconciled with
    momentary inattention and a failure to have guided his vehicle within a gentle curve
    scribed by the roadway, all while there was, in clear view, an oncoming vehicle
    on the opposite side of a clearly marked road and forewarning of the curve.  I
    find that in operating his vehicle at the speed he did, in all these
    circumstances, Mr. Baker left no margin for error, whether the error was of him
    or any other, and in doing so his driving constituted a marked departure from
    what a reasonably prudent driver would have done in the circumstances.  I find
    that it was his actions in steering his vehicle into the oncoming lane at such
    speed that constitutes the
actus reus
and the
mens rea
of the
    offence.

the grounds of appeal

(1)

Did the trial judge fail to apply the correct legal principles when
    addressing the fault component of dangerous driving?

[6]

The trial judge was alive to the fault component of dangerous driving
    and specifically adverted to the recent Supreme Court of Canada jurisprudence.
    Her description of the requisite fault requirement tracked almost word-for-word
    the description of the requisite fault component in
Beatty
at para.
    49.
Beatty
was followed and applied in
Roy
.  The two-stage
    approach to the fault element referred to in
Roy
, at para. 61, was
    not intended to re-define the fault component as described in
Beatty
,
    but was intended to offer a helpful approach to the fault determination.  The
    trial judges failure to expressly identify the two questions posed in
Roy
is not an error in law.

(2)

Did the trial judge reverse the burden of proof?

[7]

The trial judge expressly and unequivocally instructed herself that the
    burden of proof was on the Crown and remained on the Crown throughout.  The
    passage relied on by the appellant as indicating a reversal in the burden of
    proof is no more than an application of the proper burden of proof to the
    entirety of the evidence which included evidence that no mechanical flaws were
    found in the appellants vehicle.

(3)

Did the trial judge err in finding that the appellant intentionally
    steered his vehicle into the oncoming lane?

[8]

This submission rests on a mischaracterization of the trial judges
    finding.  The trial judge found that the appellant drove his vehicle into the
    gentle curve at an excessive speed and that in doing so he had to steer
    virtually the entirety of his vehicle into the oncoming lane to negotiate the
    gentle curve.  The trial judge contrasted this situation with one in which the
    driver finds him or herself unable to negotiate a curve because of momentary
    inattention.  The distinction was one which was potentially important to the
    fault component of the offence and one which was available on the entirety of
    the evidence.

(4)

Did the trial judge presume guilt on the basis that the appellants car
    was in an accident?

[9]

This argument rests on the submission that the appellants car
    inexplicably veered across the road while negotiating the curve.  The trial
    judge, however, did not find that the actions of the vehicle were
    inexplicable.  She found that the car veered into oncoming traffic because
    the appellant chose to drive the car into the curve at a rate of speed which
    did not allow him to keep his vehicle on his side of the road when negotiating
    the curve.  The trial judge did not fall into the error of assigning blame
    based on the consequences of the appellants driving.

(5)

Was the verdict unreasonable?

[10]

The
    point at which conduct passes beyond negligence to criminally dangerous driving
    can be difficult to discern.  The appellants argument that the verdicts were
    unreasonable rests on the contention that there was no evidence of what caused
    the Toyota 4Runner (the appellants vehicle) to veer into the southbound lane.
    The appellant also argues that as there was no evidence of the exact speed at
    which the appellant was driving, the court could not say at what point i.e. at
    what speed, the appellants driving became dangerous.

[11]

With
    respect to counsels able submissions, there was clear evidence of what caused
    the vehicle to enter the oncoming lane.  The evidence reasonably permitted the
    inference that the appellant was going much too fast when entering the curve
    and could not negotiate the curve on his own side of the road, but rather had
    to steer virtually his entire vehicle into the oncoming lane.  This inference
    was available even though the evidence did not allow the trial judge to make a
    finding as to the specific speed at which the appellants vehicle was
    travelling when it entered the curve.  There was evidence that the appellant
    was driving over the 80 km per hour speed limit.  The exact speed of the
    vehicle was not crucial to a finding that the speed was such as to require the
    appellant to make the turn by passing almost entirely over the centre line into
    the oncoming lane.

[12]

The
    appellant did not testify.  We are entitled to take that into account in
    assessing the reasonableness of the verdict.

[13]

The
    appeal is dismissed.

Doherty J.A.

K. Feldman J.A.

J.C. MacPherson J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Bouchard, 2013 ONCA 791

DATE: 20131231

DOCKET: C53244

Doherty, Rouleau and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sebastien Bouchard

Appellant

Howard L. Krongold, for the appellant

Benita Wassenaar, for the respondent

Heard:  September 26, 2013

On appeal from the conviction on a charge of second
    degree murder entered on June 11, 2009 by a jury presided over by Justice Robert
    Pelletier of the Superior Court of Justice, and on appeal from the imposition
    of a 15-year period of parole ineligibility on September 11, 2009.

Doherty J.A.:

I

overview

[1]

The appellant was convicted of the second degree murder of Robert
    Nicholson and sentenced to life imprisonment without eligibility for parole for
    15 years.  He appeals from his conviction and sentence.

[2]

The appellant admitted that he unlawfully assaulted Mr. Nicholson and
    caused his death.  He argued at trial that he should be convicted of
    manslaughter and not murder, either because the Crown had failed to prove the
mens
    rea
required for murder under s. 229(a) of the
Criminal Code
,
R.S.C. 1985, c. C-46

or because the Crown had failed to negate the
    statutory defence of provocation in s. 232 of the
Criminal Code
.
    The jury rejected both defences.

[3]

There are essentially two grounds of appeal on the conviction appeal.
[1]
Both arise out of the trial judges instructions to the jury.  First, counsel
    for the defence submits that the trial judge failed to adequately review the
    evidence relevant to the
mens rea
for murder required under s. 229(a)
    and failed to relate, in a meaningful way, that evidence to the issues raised
    by the
mens rea
requirement.  Second, counsel submits that the statutory
    definition of provocation in s. 232 has no relevance when considering the
    potential impact of the deceaseds conduct on the appellants state of mind at
    the time he killed the deceased, but that the trial judge erroneously
    instructed the jury that the definition did apply to the
mens rea
issue.

[4]

I would not give effect to the first argument, but am persuaded by the
    second.  The misdirection amounts to an error in law.  Section 686(1)(b)(iii),
    the curative proviso, cannot be applied.  I would order a new trial.

II

facts

[5]

The evidence at trial, although not complex, was lengthy.  The appellant
    testified.  I will focus on the evidence relevant to the appellants state of
    mind when he killed Mr. Nicholson.

[6]

The appellant and the deceased, Mr. Nicholson, were former coworkers who
    became friends.  The appellant was much younger and larger than the deceased.
    Both men were alcoholics.

[7]

Mr. Nicholson was gay.  He was sexually interested in the appellant and
    there was some evidence that they had engaged in sexual activity.  The
    appellant testified that he had no sexual interest in Mr. Nicholson or
    homosexual activity in general.  According to the appellant, he rebuffed Mr.
    Nicholsons various advances, sometimes with physical force.  Despite these
    unwanted sexual advances, the appellant testified that he and Mr. Nicholson remained
    friends.  They often got drunk together.

[8]

Mr. Nicholson invited the appellant to attend a rock concert with him in
    Montreal on December 4, 2005.  The men lived about an hours drive from
    Montreal near Lancaster, Ontario.  On the day of the concert, both men began
    drinking in the early afternoon as they drove to Montreal.  Their consumption of
    beer and whiskey continued unabated prior to and during the concert.  The
    appellant also consumed marijuana.  Both men were quite drunk by the time the
    concert ended.

[9]

The concert ended at about 11:30 p.m. and the two men headed home.  The appellant
    was driving Mr. Nicholsons truck.  Both men continued to drink.

[10]

Mr.
    Nicholson never made it home.  His body was found late the next afternoon about
    4.7 kilometres from his home in tall grass several metres from the side of the road.
    He had severe injuries to his face and neck.

[11]

The
    only direct evidence of the appellants assault on Mr. Nicholson came from the
    appellants testimony.  He described the trip home, indicating that at one
    point Mr. Nicholson put his hand on the appellants thigh, but the appellant
    removed it.  Shortly after this incident, Mr. Nicholson told the appellant to
    turn onto a service road.  They were near Lancaster and the appellant believed that
    the road led to Mr. Nicholsons home.

[12]

Just
    after the appellant turned onto the service road, Mr. Nicholson put his hand on
    the appellants crotch.  The appellant responded by striking Mr. Nicholson on
    the face causing his nose to bleed.  At the same time, the appellant lost
    control of the truck and it slid into a ditch.  The appellant and Mr. Nicholson
    could not get the truck out of the ditch and decided to walk to Mr. Nicholsons
    home.

[13]

According
    to the appellant, the two drunken men staggered along the road arm in arm.  Suddenly,
    Mr. Nicholson kissed the appellant on the cheek or neck and said that he loved
    him.

[14]

The
    appellant testified that Mr. Nicholsons wet kiss brought back disturbing memories
    of sexual assaults he had suffered as a young boy at the hands of a babysitter.
    The appellant told the jury that he lost it, threw Mr. Nicholson to the
    ground, and stomped on him several times.  The appellant only stopped when he
    realized what he was doing.

[15]

The
    extracts from the evidence set out below capture the essence of the appellants
    testimony concerning his state of mind:

I was like overwhelmed, like disgusted cause  just feeling his
    lips or the wetness on me is just  I just wanted him off me.

I know I lost it.  It  I didnt know what I was doing.  At one
    point he was  he had me, he was on my side and the next point he was on the
    floor and I stomped him.  So its --- Like I didnt know exactly what I was
    doing.  Once I seen that I stomped him, I stopped and said  I saw him heaving and
    I saw his hands move, so I  to my knowledge he was in no serious danger.  I
    left.

Its just  its just pop the memories of the babysitter, just
    kissing me all over and how that repulses me, so.  Once that happened, I didnt
    know  I didnt know what I was doing.  I just lost it.  Then I looked, he was
    on the floor, I stomped him.  Once I seen I was doing that, I stopped.  I saw
    he was breathing.  I didnt think he was in any immediate danger.  And I
    certainly didnt think that the injuries I caused him would have been fatal.  I
    just walked.  I started walking home.

[16]

The
    appellant testified that when he left Mr. Nicholson lying beside the road, he
    was not concerned because he did not think that Mr. Nicholson was seriously
    hurt.  The appellant also indicated that he could not see Mr. Nicholsons face
    because it was dark.  It was a cold, early December evening with the
    temperature dropping to about -2 degrees Celsius.

[17]

The
    appellant walked home, a distance of 2.2 kilometres.  He arrived home at about
    3:00 a.m.  He had tea prepared by his mother and said nothing about the
    altercation.  The appellant noticed blood on his boots and tried to wash it off.
    The boots were subsequently seized and tested.  DNA testing showed that the
    blood belonged to Mr. Nicholson.

[18]

The
    police found Mr. Nicholsons body at about 5:00 p.m. that afternoon.  They located
    his abandoned truck in a ditch about 1.2 kilometres away.

[19]

The
    police noted a pool of blood about a metre from Mr. Nicholsons feet and a
    second pool of blood under his head.  The injuries to Mr. Nicholsons face were
    so severe that the police could not identify him from his drivers licence
    photo.

[20]

According
    to the appellant, he heard about Mr. Nicholsons death on the news sometime in
    the next day or so.  He wondered whether Mr. Nicholson had died from the
    injuries he had inflicted or from exposure.

[21]

The
    post-mortem examination revealed extensive facial injuries caused by at least
    two significant blows to the face.  Mr. Nicholson had various other minor
    bruises, but no defensive wounds on his hands or arms.

[22]

Mr.
    Nicholson had extensive damage to his neck.  A great deal of force had been
    applied to the front of his neck with something having a broad based surface.  Mr.
    Nicholson had hemorrhaging in his neck muscles, damage to adjacent cartilage,
    and fractures of his thyroid, hyoid, and cricoid bones.  His windpipe was also severely
    damaged.

[23]

The
    pathologist opined that significant pressure had been applied to the deceaseds
    neck to cause the injuries observed on the post-mortem.  She could not say how
    long Mr. Nicholson remained conscious without knowing the nature of the force
    applied and, specifically, whether it was applied consistently over a specific period
    of time.  Depending on the length of time the neck was compressed, Mr. Nicholson
    could have lost consciousness within five to 10 seconds.

[24]

At
    the time of his death, the deceased had a blood alcohol content of .386% (386 mg
    of alcohol in 100 mL of blood), a level high enough to kill someone who, unlike
    Mr. Nicholson, was not a habitual abuser of alcohol.  Mr. Nicholson had been
    drinking continually over several hours before his death.

[25]

The
    toxicologist was also questioned about the appellants blood alcohol content.  He
    was asked to assume that the appellant had consumed some 13 beers and 21 ounces
    of liquor over a 12-hour period.  This amount was consistent with the
    appellants evidence.  The toxicologist testified that, accepting the
    assumption about the amount the appellant drank and taking into account the
    different ways in which the body can eliminate large quantities of alcohol, the
    appellants blood alcohol content would have been between .280 and .340% when
    he killed Mr. Nicholson.

[26]

The
    toxicologist described the various ways in which alcohol consumption can affect
    individuals.  He described the phenomenon of functional tolerance, whereby
    habitual heavy drinkers, like the appellant, can perform various tasks such as
    driving and walking despite being very intoxicated.  In the toxicologists
    opinion, alcohol consumption did not cause violence.  It could, however, affect
    perceptions and lower inhibitions in ways that may cause a misperception of or an
    overreaction to the conduct of another.

[27]

The
    police first interviewed the appellant a day or two after Mr. Nicholsons body was
    found.  The appellant lied to the police, telling them that Mr. Nicholson was
    fine when he had left him and that he had nothing to do with his death.  He
    also made no mention of any improper sexual advances.  At trial, the appellant
    indicated that he had lied to the police because he was afraid and did not want
    to be arrested.  The appellant had a significant criminal record.

III

the issues at trial

A:
Mens Rea

[28]

To convict of murder, the Crown had to prove either that the
    appellant intended to kill Mr. Nicholson (s. 229(a)(i)), or that he intended to
    cause Mr. Nicholson bodily harm knowing that death was
likely, and was reckless as to whether death would
    ensue (s. 229(a)(ii)).  On this evidence, the
mens rea
issue came down to this question: had the Crown proved
    beyond a reasonable doubt, either that the appellant meant to kill Mr.
    Nicholson when he stomped on his head and neck, or that the appellant knew that
    it was likely that his actions would kill Mr. Nicholson?

[29]

The Crown relied heavily
    on the nature of the assault perpetrated by the appellant as evinced by Mr.
    Nicholsons extensive head and neck injuries.  The Crown argued to the jury
    that a person who kicked and stomped on the prone body of another to the extent
    necessary to inflict the injuries suffered by Mr. Nicholson and left that person
    lying, apparently unconscious, in a remote area in the dead of an early winter
    evening, either intended to kill that person or knew that his death was a
    probable consequence.

[30]

The defence, in arguing
    that the Crown had failed to prove the necessary intent, focused on the
    appellants evidence.  The defence pointed to the appellants evidence as to his
    reaction to the wet kiss and to the evidence of the appellants consumption
    of large amounts of alcohol and marijuana in the hours before the assault.  The
    defence relied on the expert evidence as to the potential effect of that amount
    of alcohol and drug consumption on ones ability to accurately perceive events
    and foresee the consequences from ones actions.

B:  Provocation

[31]

The appellant also
    relied on the statutory defence of provocation found in s. 232.  That defence reduces
    what would otherwise be murder to manslaughter.  The availability of the
    provocation defence depended entirely on the appellants testimony.

[32]

Counsel at trial argued
    that Mr. Nicholsons wet kiss and the words I love you were capable of
    constituting a wrongful act or insult within the meaning of s. 232(2). Counsel
    argued that the appellants evidence provided a basis upon which the jury could
    have a doubt as to whether the appellant acted on the sudden and before there
    was time for his passion to cool:
Criminal Code
, s. 232(2).

[33]

The Crown argued that
    there was no air of reality to the statutory defence of provocation and that
    it could not be left with the jury.  The trial judge rejected this submission and
    instructed the jury at length on the statutory defence of provocation.  No
    objection is taken to that instruction on this appeal.

IV

the grounds of appeal

A:  Did the Trial Judge Adequately
    Review the Evidence and Relate it to the
Mens Rea
Issue?

(i)

The Functional Approach to Jury Instructions

[34]

A
    trial judge, in his or her closing instructions, must identify the factual
    issues to be addressed by the jury, set out the applicable legal principles,
    describe the respective positions of the parties, and review the evidence
    relevant to the factual issues in a way that will assist the jury in
    understanding the potential significance of the evidence to those issues and to
    the parties positions in respect of those issues.  This difficult task is well
    summarized in
R. v. Almarales
,
2008 ONCA 692, 237 C.C.C. (3d) 148, at para. 60:

Jury instructions should equip jurors to decide the case the
    parties have presented to them for a decision.  From these instructions, the
    jurors, the decision-makers of the parties choice, must understand the issues
    of fact that require their decision, as well as the legal principles that
    govern and the essential features of the evidence that inform that decision.
    The instructions must also leave the jurors with a firm understanding of the
    positions of the parties. [Citation omitted.]

[35]

The
    adequacy of a jury instruction depends entirely on whether, in the context of
    the given case, that instruction fulfilled its assigned purpose.  The question
    is not how the trial judge went about his or her task, but whether he or she
    achieved the purpose of the instruction:
Almarales
, at para. 61;
R.
    v. Jacquard
, [1997] 1 S.C.R. 314, at para. 13;
R. v. Cooper
,
    [1993] 1 S.C.R. 146, at pp. 163-64; and
R. v. Minor
, 2013 ONCA 557, at
    para. 77.

[36]

The
    functional approach to assessing the adequacy of a jury instruction requires
    that the instruction be examined in the context of the trial in which the
    instruction was given.  This contextual examination has taken on more
    significance in light of the way in which jury instructions are now commonly
    prepared and delivered, at least in most serious criminal jury trials in Ontario.
    It is increasingly rare for trial judges to prepare their instructions without input
    from counsel and for counsel to hear those instructions for the first time as
    they are delivered, sometimes over several hours and sometimes quite quickly.
    Counsels reaction to the jury instructions, or more often his or her failure
    to react, has to be measured against counsels opportunity to respond to the
    instructions.

[37]

Present-day
    jury instructions in most longer cases are usually the product of extensive
    pre-charge discussions among the trial judge and counsel for the defence and
    the Crown.  In those discussions, counsel are invited to comment on all aspects
    of the proposed jury instruction, including the manner in which the trial judge
    proposes to describe the issues, the position of the defence, and the evidence
    relevant to the issues and the defences position.  Often the instructions are
    revised and then revised again.  By the time the trial judge is ready to
    instruct the jury, counsel will have had a full opportunity to set out their
    positions on the proposed instructions and will usually have copies of the
    instructions that will be delivered.

[38]

When
    the trial judges instructions are consistent with the instructions worked out by
    counsel and the trial judge in the pre-charge conference, and counsel has no objections
    after the charge is delivered, it is an understatement to describe counsels
    silence as merely a failure to object.  It is more accurate to say that counsels
    silence indicates that he or she was satisfied with the instructions.

[39]

I
    do not suggest that the defence position at trial forecloses arguments on
    appeal that the trial judge did not adequately set out the issues or the defence
    position, or did not adequately review the evidence and relate it to the
    defence position.  That argument can be made on appeal regardless of the position
    taken at trial and may succeed despite the position taken at trial.  However, the
    fact that counsel for the accused, the person most sensitive to the position of
    the defence and the evidence relevant to the defence, had a full opportunity to
    participate in constructing the jury instruction and was ultimately content
    with the manner in which the defence and evidence relevant to the defence were
    put to the jury, must be a significant factor in assessing the adequacy of the
    instruction.

[40]

Take,
    for example, an argument on appeal about the failure to review the evidence
    relevant to the defence.  Evidence relevant to an issue can be reviewed in minute
    detail or more generally by reference to topics or relevant areas of the evidence.
    Neither type of review is inherently right or wrong.  If a trial judge, after
    full consultation with counsel, and with counsels at least tacit approval, settles
    on one method, it would be a rare case where an appeal would be allowed on the
    basis that the other method of reviewing the evidence was essential to a proper
    jury instruction.

[41]

This
    trial judge worked diligently with counsel in the pre-charge conference to
    produce an instruction that was comprehensive, comprehensible, and satisfactory
    to both counsel.  He had provided counsel with a written draft of his proposed
    instruction.  Counsel had a full opportunity to review the draft and make
    submissions suggesting changes.  The trial judge made some changes in the
    instructions.  Counsel had no objections to the final version of the trial
    judges written instructions.

[42]

When
    the time came to instruct the jury, counsel knew exactly what the trial judge
    was going to say.  He followed almost verbatim the written instructions
    developed during the pre-trial discussions.  After the trial judge had
    completed his instructions, he gave the jury written copies of those
    instructions to assist during their deliberations.  With minor exceptions that
    are irrelevant to the issues raised on appeal, counsel had no objection to the
    instructions.  One must conclude that experienced defence counsel was satisfied
    with the way the trial judge put the defence case and, in particular, with the
    way in which the trial judge reviewed the evidence and related it to the
    defence position.

[43]

The
    trial judge also gave the jury a copy of his 155-page witness-by-witness
    summary of the evidence prepared during the trial.  He instructed the jurors that
    they could use the summary, if they saw fit, to help them in recalling the substance
    of the evidence.  He made it clear that his notes were not evidence and that it
    was ultimately the jurors recollection of the evidence that must guide their
    deliberations.

[44]

Counsel
    knew before the end of the trial that the trial judge intended to provide the
    jury with his summaries of the witnesses evidence.  Counsel had copies of
    those summaries and the trial judge invited them to bring any concerns they had
    to his attention.  At no time did counsel raise any concerns or object to the
    jury receiving copies of the judges summaries of the evidence.  On appeal,
    counsel acknowledged that the summaries were detailed, balanced, and accurate.

[45]

Counsel
    for the appellant is critical of the trial judge for providing his lengthy
    summary of the evidence to the jury, but does not argue that the trial judge
    committed reversible error in doing so.  Counsel submits, however, that the
    summaries did not relieve the trial judge of his obligation to review the
    evidence with the jury in a way that will relate the evidence to the issues and
    the positions of the parties.  I agree with counsels submission.  At most, the
    written summaries of the evidence might have been used by the trial judge to
    assist in providing a fair and effective review of the evidence as it related
    to the issues and the respective positions of the parties.  The trial judge did
    not use the summaries for that purpose, but simply left them with the jury.
    The adequacy of the trial judges review of the evidence and of his relating of
    the evidence to the issues and the parties positions stands or falls on what
    he said to the jury.

[46]

Before
    turning to the content of the jury instruction, I would add a word of caution
    about leaving the jury with a lengthy summary of the evidence prepared by the
    trial judge.  I think there is a risk, whatever the jury might be told, that
    the jury could be overwhelmed by a trial judges lengthy and detailed written summary
    of the evidence.  The jury could take that summary as the last word on the
    evidence and forego, to some degree at least, its own rigorous review of the
    evidence:
R. v. Yumnu
, 2010 ONCA
    637,
260 C.C.C. (3d) 421, at paras. 356-63; and
R. v. Henry
,
2003 BCCA 476, 179 C.C.C. (3d) 307, at
    paras. 57-59.  Trial judges should be hesitant to provide their own written
    summaries of the evidence to a jury, without the agreement of the defence and
    the Crown.

(ii)

The Content of the Jury Instruction

[47]

Turning
    to the jury charge, the trial judge began the relevant instructions with a
    description of the
mens rea
required by both ss. 229(a)(i) and
    229(a)(ii).  He instructed the jury that to convict, the jury had to be
    unanimously satisfied that the Crown had proved one or the other of the
    requisite
mens rea
beyond a reasonable doubt.

[48]

The
    trial judge moved from a description of the state of mind required to establish
    murder to the evidence relevant to the appellants state of mind.  He directed
    the jury to consider the evidence as a whole when determining whether the Crown
    had proved the required state of mind.  The trial judge next identified various
    parts of the evidence which had potential relevance to the appellants state of
    mind.

[49]

The
    trial judge identified five areas of the evidence:

·

the evidence of the cause of death and the pathologists evidence
    about the number of blows struck;

·

the evidence of the relationship between Mr. Nicholson and the
    appellant in the months before the homicide;

·

the events that transpired between the appellant and Mr.
    Nicholson immediately before the appellant killed Mr. Nicholson;

·

the evidence of the appellants alcohol consumption and the expert
    evidence of the toxicologist as to the effect of that alcohol consumption; and

·

the appellants evidence of what he did and did not do in the
    hours immediately after the homicide.

[50]

The
    trial judge identified the relevant parts of the evidence more than once, but
    he did not review the content of any of the evidence in any detail.  For
    example, the trial judge referred to the evidence of the number of blows struck
    as relevant to the appellants state of mind, but did not review the details of
    that evidence.  Similarly, the trial judge referred to the events that
    transpired between Mr. Nicholson and the appellant immediately before the
    homicide, as relevant to the appellants state of mind, but did not review the
    details of those events as described by the appellant.  He specifically did not
    mention the appellants evidence about his reaction to the wet kiss and Mr.
    Nicholsons statement that he loved the appellant.

[51]

The
mens rea
issue was a simple one.  The evidence was far from
    complicated.  The competing positions of the parties were obvious and easy to
    understand.  The bulk of the evidence relied on by the defence came from the
    appellant.  That evidence would no doubt be fresh in the jurys mind and its
    relevance to the
mens rea
issue was obvious.  Experienced counsel got
    the instruction he wanted.  Sometimes, from the defence perspective, the less
    said about the details of the evidence, the better.

[52]

The
    trial judge could have gone into more detail about the evidence.  He probably
    would have, had counsel asked him to do so.  I cannot accept that the trial
    judges failure to review the evidence in more detail or to specifically relate
    the details of the evidence to the
mens rea
issue resulted in
    reversible error in the context of this case.

[53]

I
    would not give effect to this ground of appeal.

B:  Did
    the trial judge misdirect the jury as to the application of the statutory
    defence of provocation to the evidence relevant to the
mens rea
issue?

[54]

The appellants evidence that Mr. Nicholson kissed him and said I love
    you and his evidence describing his reaction to Mr. Nicholsons actions were relevant
    both to the
mens rea
issue and to the statutory defence of
    provocation.  The evidence was relevant to the
mens rea
issue because
    the appellant testified that the actions of Mr. Nicholson caused him to lose
    it and assault Mr. Nicholson without regard to the consequences of his actions.
    The jury had to consider that evidence in determining whether the Crown had
    proved beyond a reasonable doubt that the appellant intended to kill Mr.
    Nicholson or foresaw his death as the probable consequence of the assault.

[55]

The
    same evidence was relevant to the statutory defence of provocation.  That
    defence serves as a partial excuse, reducing what would otherwise be murder to
    manslaughter.  The defence is said to rest on the laws compassion for human
    infirmity.  People can be pushed to murder.  In the very limited circumstances
    captured by s. 232, society accepts that provocation will reduce murder to
    manslaughter:
R. v. Hill
, [1986]
    1 S.C.R. 313
, at pp. 323-24.

[56]

For
    obvious policy reasons, a partial defence to murder based on the loss of
    self-control must be narrowly circumscribed.  The wrongful act or insult said
    to have caused the loss of self-control must be sufficient to deprive an
    ordinary person of self-control.  The accused must also have in fact been
    provoked by the alleged act or insult and, finally, the accuseds actions must
    have been on the sudden before there was time for his or her passion to cool.
    These three requirements place strict limitations on the availability of the
    statutory defence of provocation.

[57]

The
    trial judge explained to the jury that the concept of provocation in the
    context of the statutory defence of provocation had a specific legal meaning
    that was narrower than the generally understood notion of provocative conduct:

You may have heard or you might have used the expression, I
    was provoked and we know what that means, you were pushed to the limit, you
    were egged on, we all have different definitions of it, it is a word we use in
    English all the time, but in the legal sense of reducing murder to manslaughter,
    provocation has a specific definition in the
Criminal Code
,
and I will read it to you and explain
    it to you in just a moment.

[58]

He
    went on to describe the specific elements of the definition of provocation
    available under the
Criminal Code
:

So it is not quite as simple as saying I was provoked, there
    are certain standards that are required.  They are set out by the
Criminal
    Code
.  And just before we leave this issue, those standards are, was there
    a wrongful act or insult? Was it sufficient to deprive an ordinary person of
    their self-control? Was Mr. Nicholsons wrongful act or insults sudden? And did
    Mr. Bouchard act suddenly before regaining control?  Those are the questions.

[59]

No
    complaint is, or could be, taken with the trial judges instruction on the
    defence of provocation as set out in s. 232.  The appellant submits, however,
    that the trial judge effectively told the jury that the narrow statutory definition
    of provocation must also be used in considering the appellants evidence about the
    effect of Mr. Nicholsons conduct on his state of mind at the relevant time.

[60]

The
    statutory definition of provocation in s. 232 has no application when
    considering the impact of a deceaseds conduct on an accuseds state of mind
    for the purpose of determining whether the Crown has established the requisite
mens
    rea
:  see
R. v. Flores
, 2011
    ONCA 155,
269 C.C.C. (3d) 194, at paras. 72-76, 83-86.  In the
    context of the
mens rea
inquiry, the appellants evidence about what
    Mr. Nicholson did and his reaction to Mr. Nicholsons conduct formed part of
    the evidence relevant to the appellants state of mind regardless of whether
    the evidence fell within the scope of the statutory definition of provocation.

[61]

The
    distinction between conduct of a deceased relevant to an accuseds state of
    mind and conduct that may qualify as provocation under s. 232 is especially important
    where there is evidence of intoxication.  To qualify as provocation under s.
    232, the jury must be satisfied that the conduct was sufficient to deprive an
    ordinary person of self-control.  In making that assessment, the jury does not
    take into consideration the alcohol consumption of the particular accused, but instead
    looks at the hypothetical ordinary sober persons response to the alleged
    provocation:  see
Hill,
at pp.
    328-29
.  If the alleged provocation could not deprive an ordinary
    person of self-control, the conduct cannot meet the statutory definition of
    provocation.

[62]

However,
    potentially provocative conduct that fails the ordinary person test and,
    therefore, cannot qualify as provocation under s. 232, must still be considered
    by a jury in assessing whether an accused had the necessary
mens rea
.  In the context of the
mens rea
inquiry, the accuseds intoxication could
    potentially play a
significant role in support of the claim that a
    deceaseds conduct caused the accused to act without regard to the consequences
    and without the necessary
mens rea
.

[63]

My
    review of the instruction satisfies me that the trial judge did tell the jury
    that the narrow statutory definition of provocation applied in assessing the
    impact of the deceaseds allegedly provocative conduct on the appellants
mens
    rea
.  Two passages from the instructions lead me to that conclusion.

[64]

First,
    the trial judge, in the course of his instruction on the
mens rea
issue, said:

So you have to consider all of the evidence in trying to
    determine the accused state of mind.  And it will include evidence of
    intoxication and
might equally be influenced by the issue of provocation,
    which I am going to speak to you about in just a moment.
[Emphasis
    added.]

[65]

Having
    alerted the jury to the possible relevance of provocation to the
mens rea
issue, and having alerted the jury to the upcoming instruction on provocation,
    the trial judge turned almost immediately to the statutory definition of
    provocation.  He proceeded to explain the specialized meaning of that word at
    some length.  During his explanation, it was clear that the conduct referred to
    by the trial judge as potentially provocative consisted of Mr. Nicholsons wet
    kiss and his statement that he loved the appellant.

[66]

Second,
    after a careful instruction on the statutory defence of provocation and a brief
    reference to the appellants post-offence conduct, the trial judge returned to
    the
mens rea
question:

Finally you have been advised on the issues of intoxication and
    provocation.  If you reject these defences individually,
you should nonetheless
    consider the cumulative or the combined effect of the evidence of intoxication
    and provocation, along with all the other evidence in deciding whether the
    Crown has proved beyond a reasonable doubt that the accused had either the
    intent to cause Mr. Nicholsons death or the intent to cause injuries which he
    knew was likely to cause death and was reckless about whether or not death
    ensued.
[Emphasis added.]

[67]

In
    this passage, the trial judge was attempting to alert the jury to the need to
    consider the cumulative effect of the evidence on the issue of the appellants
    state of mind.  However, in my view, the jury would understand that the word
    provocation had only the specialized statutory meaning that the trial judge
    had explained in detail immediately before this instruction.  The jury would
    not, in my view, understand that the appellants evidence about what Mr.
    Nicholson did and said and the appellants response to those actions was
    relevant to the appellants state of mind even if it did not qualify as
    provocation under the statutory definition.

[68]

The
    Crown contends that any potential confusion arising out of these two references
    to provocation was overcome by the trial judges earlier indication to the jury
    that it could consider the actions of the deceased immediately before the
    homicide in determining whether the appellant had the necessary
mens rea
.
    Crown counsel argues that the jury would understand that this was a reference
    to the appellants testimony that Mr. Nicholson kissed him and said that he
    loved him and that this caused the appellant to lose it.

[69]

The
    Crowns submission is not without merit.  However, the trial judges somewhat
    cryptic and oblique reference to the deceaseds allegedly provocative conduct
    in the context of reviewing the areas of the evidence relevant to the
mens
    rea
issue is overborne by the detailed review of that evidence in the
    context of the defence of provocation and the express instruction to the jury
    that provocation had a specialized and narrow legal meaning.  With respect, on
    this instruction the jury could well have understood that Mr. Nicholsons
    allegedly provocative acts and the appellants reaction to them had relevance
    to the
mens rea
issue only if they met the narrow legal definition of
    provocation in s. 232.  This constitutes misdirection.

[70]

The
    misdirection was significant.  The appellants conduct was, on his own
    evidence, heavily influenced by his alcohol and marijuana consumption.  As
    explained above, conduct can pass the statutory definition of provocation only
    if it was sufficient to cause an ordinary person to lose control.  A jury does
    not consider alcohol consumption in making that judgment.  This jury may well
    have determined that the statutory defence of provocation was not available as
    the alleged provocative conduct would not have caused an ordinary person to
    lose control.  Based on this instruction, the jury would have used the same statutory
    definition of provocation in considering the impact, if any, of Mr. Nicholsons
    conduct on the appellants state of mind.  The jury may well have discounted the
    evidence entirely on the
mens rea
issue because in the jurys view, Mr.
    Nicholsons conduct would not have caused an ordinary person to lose
    self-control.  However, in the context of the
mens rea
inquiry, the impact
    of the conduct on an ordinary person was not the issue.  The
mens rea
inquiry is subjective and looks to the actual effect of Mr. Nicholsons conduct
    on the accuseds state of mind having regard to all of the other evidence, particularly
    his alcohol and marijuana consumption.

[71]

There
    was no objection to this part of the instruction.  For the reasons outlined
    above (at paras. 37-40), I take counsels silence to indicate that he was
    satisfied with the instruction.  However, I draw a distinction between a trial
    judges instructions on matters such as the defence and evidence relevant to
    the defence, and the trial judges instructions on pure matters of law.  I
    think counsels position as to the adequacy of an instruction on a matter of
    law is of less significance than counsels position on matters relating to the
    defence and the review of the evidence.  An error in law is an error in law
    regardless of counsels position.  If this court is satisfied that the jury was
    misdirected on a question of law, the
Criminal Code
dictates that the
    appeal must be allowed unless the Crown can establish that the error occasioned
    no substantial wrong or miscarriage of justice.  Counsels failure to object
    has some limited relevance to the curative
proviso
analysis: see
R. v. Jaw
, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 44;
    and
R. v. Jacquard
, [1997] 1 S.C.R. 314, at paras. 37-38.

[72]

The misdirection in this case was potentially significant.  It could
    well have eliminated an important part of the appellants evidence from the
    jurys consideration on the
mens rea
issue.  Nor, can the Crowns case
    be described as overwhelming.  The
proviso
cannot be applied:  see
R. v. Sarrazin
, 2011 SCC 54,
[2011] 3 S.C.R. 505.

V

conclusion

[73]

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

Doherty J.A.

I agree P. Lauwers J.A.

Rouleau J.A.: (Dissenting)

OVERVIEW

[74]

I
    have had the benefit of reading my colleagues reasons and, with respect, I
    disagree. For the reasons that follow I would dismiss the appeal.

[75]

My
    colleague has concluded that the trial judge misdirected the jury with respect
    to the issues of
mens rea
and the statutory defence of provocation. On
    the basis of two passages from the trial judges instructions to the jury, my
    colleague concludes that the jury could well have understood that Mr.
    Nicholsons allegedly provocative acts and the appellants reaction to them had
    relevance to the
mens rea
issue only if they met the narrow legal
    definition of provocation in s. 232. As a result, my colleague is of the view
    that a new trial is necessary.

[76]

I
    reach a different conclusion. The structure and chronology of the charge,
    including the clear distinction made between
evidence
of provocation
    and the
defence
of provocation, would have adequately conveyed to the
    jury that all of the evidence, including the allegedly provocative acts of the
    deceased and the appellants reaction to them, was to be taken into account
    when deciding the issue of
mens rea
. The passages that trouble my colleague
    must be read in the context of the entire charge. The trial judge explained
    that the
mens rea
was the only element of murder the jury had to
    decide. He explained the two possible
mens rea
for murder. He
    repeatedly explained that in determining the appellants state of mind, the
    jury should consider all of the evidence, including the events that took
    place immediately before Mr. Nicholsons death as well as the appellants
    intoxicated state. He also made it clear that the jury was to consider the statutory
    defence of provocation only after they had decided the issue of
mens rea
,
    and only if they had determined that the appellant possessed one of the two
    states of mind required for murder. The trial judge explained the statutory
    defence of provocation. He concluded with a rolled-up charge, reminding the
    jury that they should consider the cumulative effect of the evidence of
    intoxication and provocation along with all the other evidence on intent even
    if they rejected the defences of intoxication and provocation. In sum, the
    trial judge never instructed the jury that they could not consider the
    allegedly provocative acts, or the appellants reaction to them, in deciding
    the issue of intent. In my view, his instruction would have impressed upon the
    jury to do the opposite.

THE ISSUES

[77]

The
    evidence at issue is as follows. The appellant testified that he was
    intoxicated on the night in question. He testified that the deceased, Mr.
    Nicholson, kissed him and told him that he loved him. He testified that he was
    overwhelmed and disgusted, and that the actions of Mr. Nicholson caused him
    to lose it and assault Mr. Nicholson. The appellants trial counsel explained
    in final submissions that when this happened, the appellant:

has the flash to the abuse that he had suffered as a child  it
    all came back. And in his intoxicated state, he reacted instinctively. He did
    not think things through. His reaction was just to lose it  There is no
    rational thought going through his mind up to this point. It has been an instant
    reaction to what went through his head when [Mr. Nicholson] planted that wet
    kiss on him.

[78]

The
    jury could have relied upon the evidence relating to Mr. Nicholsons allegedly
    provocative acts, and the appellants reaction to them, in one of two ways. First,
    the evidence could have supported the appellants position that, because of the
    childhood abuse he suffered, he reacted instinctively to the relatively
    harmless actions of Nicholson and did not, therefore, have the requisite intent
    for murder. If the jury rejected this position and found that the appellant had
    the intent required for murder, they could have considered the same evidence
    for the purpose of deciding whether the statutory defence of provocation should
    apply.

ANALYSIS

i.

The
mens rea
issue

[79]

In
    the portion of his charge dealing with the elements of the offence of murder,
    the trial judge explains to the jury that the
mens rea
was the only
    element of murder they had to decide, the other elements having been conceded.
    As noted by my colleague, the
mens rea
issue in this case was a simple
    one. The trial judge correctly explained the two possible
mens rea
for
    murder. With respect to the evidence the jury should consider when deciding the
    issue of
mens rea
, the trial judge instructs:

·

you should consider all of the evidence;

·

you will want to consider the relationship between the accused
    and the deceased and their prior contacts and association;

·

you will want to consider what the accused and the deceased were
    doing earlier that day and immediately before the accused caused Mr.
    Nicholsons death. So the events leading up to the ultimate event, you might
    find quite revealing on what Mr. Bouchard intended or did not intend or for
    that matter, was able to intend;

·

you will want to consider any other factor and surrounding
    circumstance that you find relevant on the issue of what the accused intended
    when he caused Mr. Nicholsons death. You are not limited to any one
    consideration;

·

all of these things and the circumstances in which they happened
    may shed light on Mr. Bouchards state of mind;

·

The surrounding circumstances can be very revealing. But that is
    simply one way for you to determine a persons actual state of mind, what he or
    she actually meant to do. It is a conclusion that you may only reach, however,
    after considering all of the evidence.

In addition to these references, there are several
    other references to the need for the jury to take all of the facts and
    circumstances into account when determining the
mens rea
issue. The
    trial judge clarifies that the jurys consideration of all of the evidence in
    trying to determine the accused state of mindwill include evidence of
    intoxication and might equally be influenced by the issue of provocation, which
    I am going to speak to you about in just a moment.

In my view, the trial judge properly instructed the jury on the evidence
    they could consider in determining the issue of
mens rea
. As this Court
    has noted:

In the end, whether by express words or otherwise, what jurors
    must understand is that, in deciding whether the prosecutor has proven either
    state of mind essential for an unlawful killing to be murder, they must
    consider
all of the evidence
that sheds light on the accuseds state of
    mind at the time of the killing  (
R. v. Flores
, 2011 ONCA 155, at para.
    76 citing
R. v. Cudjoe
, 2009 ONCA 543, at para. 109 [emphasis added])

When the trial judge directed the jury to consider all
    of the evidence in determining the issue of
mens rea
including the
    evidence of intoxication, the events that took place immediately before Mr.
    Nicholsons death, the surrounding circumstances and the issue of
    provocationhe appropriately directed the jurys attention to the deceaseds
    allegedly provocative acts, and the appellants reaction to them. The trial
    judge never suggested that any evidence, including the evidence he described
    later in the section of the charge on the statutory defence of provocation, was
    to be excluded from the jurys consideration of the
mens rea
issue.

ii.

Provocation as a defence

[80]

After
    the
mens rea
instruction, the trial judge explains that the jury
    should consider the statutory defence of provocation only if they first decide
    that the appellant had the requisite intent for murder. The decision tree he
    provided to the jury also made this clear. In this part of the charge, the
    trial judge explains that provocation, as a defence, is subject to specific
    legal requirements. From this point forward, he consistently refers to the
defence
of provocation, which should be contrasted with his earlier direction to consider
    all of the
evidence
, including evidence of intoxication and the
    issue of provocation, when determining the issue of
mens rea
.

[81]

The
    trial judge moves on to the first element of the defence of provocation, which
    is whether there has been a wrongful act or insult. In this part of the charge,
    the trial judge tells the jury twice that there is evidence to be considered
    in deciding whether there was a wrongful act. The evidence the trial judge
    describes is the appellants testimony that Mr. Nicholson told him that he
    loved him and kissed him on the neck or cheek. The trial judge explains that
    the jury will have to decide if behaviour of that sort could be considered a
    wrongful act or insult sufficient to satisfy the first element of the defence
    of provocation. The trial judge instructs that if the jury decides that this
evidence
does not support a finding of a wrongful act, then the
defence
of
    provocation does not apply.

[82]

The
    trial judge then explains the potential relevance of the evidence in question
    to the other elements of the defence of provocation.

[83]

To
    this point, then, the trial judge had clarified the following. The evidence in
    question could be considered by the jury in determining the issue of
mens
    rea
. If, having considered all of the evidence, the jury found that the
    appellant possessed one of the required states of mind for murder, the jury
    would then have to consider the defence of provocation. At that stage, the
    evidence in question could be considered a second time to decide if the elements
    of the defence of provocation had been established.

[84]

In
    my view, these instructions would not have confused the jury.

iii.

The concerns with the instructions

[85]

In
    reaching his conclusion that there was significant misdirection, my colleague
    relies on two passages from the instructions. I discuss each in turn. In the
    course of his instructions on the
mens rea
issue, the trial judge
    said:

So you have to consider all of the evidence in trying to
    determine the accuseds state of mind. And it will include evidence of
    intoxication and
might equally be influenced by the issue of provocation,
    which I am going to speak to you about to you about in just a moment
.
    [Emphasis added]

[86]

I
    agree that this statement, standing alone, had the potential to confuse. Read
    in isolation, telling the jury that their decision on
mens rea
might
    equally be influenced by the issue of provocation, which I am going to speak to
    you about in a moment could have been misinterpreted raising the possibility
    that there may be some limitation on the evidence the jury was to consider when
    determining intent. In other words, the jury could have understood the words
    which I am going to speak to you about as meaning subject to what was to
    come. However, the impugned passage comes in the midst of clear and repeated
    statements that all of the evidence, including the actions and conduct of Mr.
    Nicholson and the appellant in the moments leading up to Mr. Nicholsons death,
    was to be considered in determining the
mens rea
. Read in context, the
    impugned passage simply introduced the word provocation and left the issue
    for later.

[87]

Only
    after completing his instructions on
mens rea
did the trial judge turn
    to the defence of provocation. As he instructed, the jury was to consider
    provocation as a defence only if the jury first determined that, on all of the
    evidence, the
mens rea
required for murder had been proven beyond a
    reasonable doubt.

[88]

From
    that point forward the trial judge consistently labels this as the
defence
of provocation. The trial judge recites the
evidence
that might
    support the elements of this statutory defence. In context, therefore, the
    earlier reference to the issue of provocation would not have caused the jury
    to stray from what it had been told repeatedly, which was to assess the
mens
    rea
on the basis of all of the evidence led at trial.

[89]

I
    now turn to the second passage that leads my colleague to conclude that the
    jury was misdirected. After his instruction on the
defence
of
    provocation, the trial judge returned to the
mens rea
question and
    provided a rolled-up charge as follows:

Finally, you have been advised on the issue of intoxication and
    provocation. If you reject these
defences
individually, you should
    nonetheless consider the cumulative or the combined effect of the
evidence
of intoxication and provocation, along with all the other evidence in deciding
    whether the Crown has proved beyond a reasonable doubt that the accused had
    either the intent to cause Mr. Nicholsons death or the intent to cause
    injuries which he knew was likely to cause death and was reckless about whether
    or not death ensued. [Emphasis added]

[90]

My
    colleague is of the view that the rolled-up charge, which came almost
    immediately after the trial judges instructions on the statutory defence of
    provocation, compounded the problem created by the first impugned passage. He
    argues that because of the detailed review of the evidence of provocation in
    the context of the explanation of the statutory defence, and the express
    instruction that the statutory defence of provocation has a specialised and
    narrow legal meaning, the jury could well have understood that Mr. Nicholsons
    allegedly provocative acts and the appellants reaction to them had relevance
    to the
mens rea
issue only if they met the narrow legal definition of
    provocation in s. 232.

[91]

I
    disagree. First, I view this passage as being quite clear. It reminded the jury
    that even if they rejected the specialised and narrow legal definition of the
defence
of provocation, they should nonetheless consider the cumulative or combined
    effect of the
evidence
of intoxication and provocation, along with all
    the other evidence in assessing the appellants intent or
mens rea
.
    Coming as it did after the trial judges long explanation of the defence of
    provocation, the rolled-up charge ensured that the jury did not lose sight of
    the importance of considering all of the evidence, including the evidence of
    provocation, in assessing the appellants
mens rea
.

[92]

Further,
    to reach the understanding suggested by my colleague and exclude the provocation
    evidence from their consideration of the
mens rea
issue, the jury
    would not only have to have misunderstood or disregarded the rolled-up charge,
    they would also have to have ignored the clear and repeated instructions given
    earlier in the charge to consider all of the evidence on the
mens rea
issue. In my view, the jury would have understood and followed the instructions
    they were given. It is well-established that juries are presumed to be able to
    follow and apply instructions given to them by trial judges:
R. v. Emms
,
    2010 ONCA 817, at para. 26 cited with approval in
R. v. Puddicombe
,
    2013 ONCA 506, at para. 93; see also
Dagenais v. Canadian Broadcasting
    Corp.
, [1994] 3 S.C.R. 835, at p. 884; see also
R. v. Corbett
,
    [1988] 1 S.C.R. 670, at pp. 692-93.

iv.      The
    appellants concern with the rolled-up charge

[93]

The
    appellant also argued that the rolled-up charge was inadequate. Our Court has
    clarified the standards according to which a rolled-up charge must be evaluated
    on appeal. An integral part of this instruction is a description, whether by
    content or specific detail, of the evidence to which the instruction relates:
R.
    v. Flores
, at para. 76. In this case, the trial judge adequately described
    the evidence by instructing the jury that if they rejected the defences of
    intoxication and provocation, they should nonetheless consider the cumulative
    or the combined effect of the evidence of intoxication and provocation, along
    with all the other evidence.

[94]

The
    circumstances of the particular case have to be kept in mind when evaluating
    the adequacy of a rolled-up charge:
R. v. Flores
, at para. 78. In this
    case, the appellant conceded that he unlawfully killed the deceased. The jury
    was therefore faced with a limited number of live issues. These were the issue
    of intent (which would determine whether the unlawful killing was murder or
    manslaughter), and the defences of intoxication and provocation. Moreover,
    there is no suggestion that the jury was confused in this case, unlike the jury
    in
R. v. Flores
, which asked questions seeking clarification on the
    defence of provocation.

[95]

Finally,
    to achieve the purpose of a rolled-up charge, which is to ensure that jurors do
    not take a compartmentalized approach to the evidence by confining their use of
    the evidence to a discrete defence, a rolled-up charge must remind jurors that
    they must consider
all of the evidence
relevant to an accuseds state
    of mind in deciding whether the prosecutor has proven that state of mind beyond
    a reasonable doubt:
R. v. Flores
, at para. 81 [emphasis added]. In my
    view, as a result of the trial judges repeated direction to consider all of
    the evidence, including a reminder to consider the cumulative or the combined
    effect of the evidence of intoxication and provocation, along with all the
    other evidence in the rolled-up charge, the jury in this trial would have
    understood that all of the evidence, including the evidence

of
    provocation, was to be considered when deciding the issue of
mens rea
.

[96]

As
    is inevitably the case, the charge could have been clearer. The trial judge
    could have recited the particular evidence (Mr. Nicholsons kiss and expression
    of love) in the rolled-up charge as part of his reminder to the jury that the
    evidence of provocation had to be considered in their
mens rea
analysis. However, the rolled-up charge came immediately following the trial
    judges explanations of the
defence
of provocation wherein the trial
    judge twice set out the alleged
evidence
of provocation. By the time
    the trial judge reached the rolled-up charge, the jury would have been well
    aware of the facts the judge was referring to.

[97]

An
    accused is entitled to a properly but not perfectly instructed jury:
R. v.
    Jacquard
, [1997] 1 S.C.R. 314, at para. 2, cited with approval in
R.
    v. Flores
. As noted by my colleague, the charge was reviewed in advance by
    the appellants trial counsel and was discussed at length in pre-charge
    conferences with the trial judge. There were no objections to the impugned
    portions of the charge, either before or after they were delivered. The
    appellant received the charge that he wanted and, despite its imperfections, it
    did not amount to misdirection.

Other issues on appeal

[98]

There
    were two other grounds of appeal. The first is that the trial judge failed to
    adequately review the evidence relevant to the
mens rea
for murder
    required under s. 229(a) and failed to relate, in a meaningful way, that
    evidence to the issues raised by the
mens rea
requirement. For the
    reasons given by my colleague, I would not give effect to this ground of
    appeal.

[99]

The
    appellant also submitted that the trial judge misdirected the jury on the
mens
    rea
required by s. 229(a)(ii). As noted by my colleague, the court did not
    call on the Crown to respond to that submission. The appellants concern is
    that the trial judge erred in his description of the intent required for
    murder. On four occasions in the course of instructing the jury on
mens rea
,
    the trial judge advised the jury that the appellant must have had the
    intention to cause injuries that are likely to kill. The proper instruction
    is to advise that the appellant must have had the intention to cause injuries
    that
he knew
are likely to kill.

[100]

As noted by the
    Crown, the jury was given the correct instruction on
mens rea
no less
    than 12 times. The fact that the trial judge misspoke in four instances would
    not have confused the jury and does not amount to misdirection. The correct
    statement of the law was also contained in the decision tree provided to the
    jury. In addition, the last oral instruction to the jury on the issue, given in
    a re-charge, contained the correct statement of the required intent. I would
    not give effect to this ground of appeal.

Sentence appeal

[101]

During the
    sentencing submissions at trial, the appellant asked for a 10-year parole
    ineligibility period, while the Crown suggested a period in the range of 15 to
    18 years. The sentencing judge imposed 15 years. On appeal, the appellant seeks
    a reduction to a 12-year parole ineligibility period.

[102]

The appellant
    submits that the trial judge failed to address the mitigating effect of
    provocation. In the appellants view, even if the statutory defence of
    provocation was not accepted, the evidence that Mr. Nicholsons unwelcome
    sexual advances precipitated the fatal assault should have been taken into account
    by the trial judge. The trial judges reasons for sentence do not, however,
    advert to this mitigating factor.

[103]

I would not give
    effect to this ground of appeal. In my view, the sentence was fit and the
    reasons do not reveal an error in principle. It was apparent from the jurys
    decision that both the alleged evidence of provocation and the statutory
    defence of provocation were rejected. The trial judge gave thorough and
    thoughtful reasons for fixing the 15-year parole ineligibility period and his
    failure to comment on the issue and evidence of provocation is of no moment. I
    see no basis to interfere.

CONCLUSION

[104]

For these
    reasons, I would dismiss the conviction appeal, grant leave to appeal sentence
    but dismiss the sentence appeal.

Released:

DEC 31 2013                                   Paul
    Rouleau J.A.

DD

[1]
There was also a submission that the trial judge misdirected the jury on the
mens
    rea
required by s. 229(a)(ii).  The court did not call on the Crown to
    respond to that submission and I will not address it in these reasons.