This week’s top three summaries: R v Campbell, 2019 ONCA 258, R v Kaldus, 2019 ONSC 2340, and R v McGregor, 2019 ONCA 307.
R. v. Campbell (ONCA)
[Apr 3/19] Section 8 - Warrantless Request for Hospital Alcohol Testing - 24(2) - Seriousness: Intentional Warrantless Seizure of Medical Results - Impact: Right to Privacy in Medical Records and Samples Collected - Credibility Finding Against Police Officer - 2019 ONCA 258 [Reasons by van Rensburg J.A: Watt, Brown, JJ.A. concurring]
AUTHOR’S NOTE: This case turned on the trial judge's finding that the police officer that overheard the utterances about the Accused's urine alcohol content at the hospital (following a collision investigation) didn't just fortuitously happen. The Court of Appeal upheld this finding because it was within the discretion of the trial judge. Ultimately, police can and do lie in court. Often, their recollections are biased in favour of their legal position even when they are attempting to provide an unbiased factual account. Defence counsel should not have to bring case law to show that police can and do lie or are unreliable historians, but where there are similarities, it cannot hurt to be prepared. Placing police officer evidence beyond credibility and reliability scrutiny by the Court is often at the root of a reversal of the onus of proof in criminal trials. This case is an excellent example how fortuitous happenstance that gives a police officer grounds for further conduct that would otherwise infringe Charter rights should be suspect and is deserving of special scrutiny by the Courts.
Pertinent Facts
"On October 27, 2014, the respondent's car collided head on with another car that was travelling in the wrong direction. Unfortunately, the occupant of the second car died of her injuries. The respondent was brought to the hospital. While there, she responded to the questions of two police officers. One of the officers noticed a faint odour of alcohol, but did not suspect that the respondent was impaired or that she had done anything to contribute to the collision. Urine and blood samples were taken at the hospital and eventually seized under warrant. Subsequent analysis of the blood revealed that, at the time of the collision, the respondent's blood alcohol concentration was well over the legal limit." (Para 2)
"The police obtained search warrants authorizing the seizure of the respondent's medical records pertaining to her treatment in hospital following the collision, as well as the samples of her blood and urine that were taken while she was there. The Information to Obtain ("ITO") stated, among other things, that "[d]uring the course of the investigation police learned that the [respondent] was taken to hospital and basic trauma blood work and urine were drawn for medical purposes", and that the respondent's "blood and urine were tested and registered positive and well above the legal limit for alcohol." (This statement was inaccurate in part, because at the time the ITO was prepared, the police had no information about the results of the respondent's blood test.) The ITO also stated that P.C. Robinson "overheard an ER nurse mention that [the respondent's] urine results were 47 millimols [millimoles]" and noted that this was "equal to a BAC [blood alcohol concentration] of 186 mgs/100 mL of blood" (emphasis in original). The ITO also referred to P.C. Robinson's observation of an odour of alcohol; statements by the respondent, including that she had consumed one alcoholic drink that evening; data downloaded from the air-bag control module of the respondent's vehicle indicating that it was travelling 23 km/h above the speed limit, and that the driver took no evasive action prior to the collision; and an anonymous Crime Stoppers tip claiming that the respondent was impaired at the time of the collision." (Para 7)
"The trial judge ultimately excised from the ITO both the respondent’s statements to police (after finding they had been compelled and on the basis of R. v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417, and R. v. Soules, 2011 ONCA 429 (CanLII), 105 O.R. (3d) 561, leave to appeal ref’d, [2011] S.C.C.A. No. 375), and, after concluding that the police had obtained the information illegally, the reference to the respondent’s urine ethanol results. At paras. 22 to 25 of his reasons, after addressing what was left, the trial judge concluded that the ITO was insufficient to support the issuance of the warrants." (Para 10)
The Section 8 Violation
"As I will explain, although the trial judge did not articulate how he arrived at his conclusion that P.C. Robinson asked the nurse for the urine ethanol results, I consider his reasons to be sufficient because the factors supporting and detracting from the credibility and reliability of the witnesses on this issue were apparent on the record." (Para 13)
"A key point here is that P.C. Robinson's evidence on the voir dire was not simply that he "overheard" a nurse mention the urine ethanol results, as stated in the ITO. Rather, after confirming that he overheard what a nurse was saying, the officer testified that he heard the sound of surprise, that he turned and looked, and that the nurse then looked at him and repeated her comment." (Para 14)
"P.C. Robinson testified that he did not know at the time nor at the voir dire what was meant by "47" or what a very high level of ethanol was, but D.C. Chad Lee (the lead investigator) testified that when he spoke with P.C. Robinson on the day of the collision, P.C. Robinson told him that the respondent's ethanol levels were 43 and very high. The "43" reading was consistent with the hospital records." (Para. 15)
"Mr. Campbell testified that he overheard P.C. Robinson ask a nurse, "Where is her level" or "Where's her level at?" Under cross-examination he did not waver. In his submissions on the Charter application, Crown counsel challenged only the reliability of Mr. Campbell's evidence, not his credibility." (Para 16)
"In these circumstances it is apparent from the record why the trial judge found that P.C. Robinson asked a nurse about the respondent's urine ethanol levels." (Para 17)
"As already noted, the trial Crown conceded that it would be a breach of the Charter if the trial judge were to find that P.C. Robinson asked for the results and that, without the urine ethanol results, the ITO could not support the warrants (thereby constituting a breach of s. 8)." (Para 18)
Section 24(2) Analysis
Due to the trial judge taking into account an irrelevant factor, the ONCA considered 24(2) afresh. (Para 23)
Seriousness of the Charter-infringing State Conduct
"In assessing the first Grant factor, the court considers the nature of the police conduct and whether it involves misconduct from which the court should seek to dissociate itself: R. v. Harrison, 2009 SCC 34 (CanLII), [2009] 2 S.C.R. 494, at para. 22. At para. 23 of her reasons in Harrison, McLachlin C.J. suggested that the metaphor of a spectrum used in R. v. Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.), at para. 41, may assist in characterizing police conduct for purposes of this factor in the Grant analysis. In Kitaitchik, Doherty J.A. wrote, at para. 41:
Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights[.] … What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct." (Para 25)
"In my view, the Charter-infringing state conduct here was at the serious end of the fault spectrum. The police intentionally obtained information from hospital staff in breach of medical confidentiality, and relied on that information to obtain a warrant that otherwise could not have been issued." (Para 27)
"I am of the view that P.C. Robinson's conduct in intentionally asking for the confidential medical information is precisely the type of conduct from which the court must distance itself, irrespective of the fact (which was emphasized by the Crown on appeal) that the officer otherwise treated the respondent with courtesy and respect." (Para 28)
Impact of the Charter Breach on the Charter-protected Interests of the Accused
"In my view, although the respondent's confidential medical information was not obtained in a physically-intrusive manner, the impact of the breach on her informational privacy interest was significant." (Para 30)
"The respondent was in hospital to receive medical care after the collision. As a patient, she was vulnerable, “forced to reveal information of a most intimate character and to permit invasions of [her] body if [she] is to protect [her] life or health”: R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, at p. 433. She was entitled to expect that the police would access her medical information only through proper legal channels – by the “well-known and recognized procedures for obtaining such evidence when the police have reasonable and probable grounds for believing a crime has been committed”: Dyment, at p. 439. Instead, the police, with no reasonable and probable grounds to believe that the respondent had committed an offence, obtained her medical information unlawfully by asking a nurse to divulge the respondent’s urine ethanol results." (Para 31)
"Similarly, in this case a sample of a substance from the respondent's body — her urine — was taken for medical purposes. It was tested for ethanol. Police asked for and received this test result without legal authority, and then used this test result for their own, non-medical purpose, which was a purpose to which the respondent did not consent. In my view, this was a serious violation of the respondent's dignity, which strongly favours exclusion." (Para 33)
"In this case the search warrants depended on the illegally obtained urine ethanol readings; the respondent's medical records and urine and blood samples were not otherwise discoverable." (Para 37)
Balancing
"In balancing the three Grant factors, I am mindful of Brown J.’s statement in R. v. Paterson, 2017 SCC 15 (CanLII), [2017] 1 S.C.R. 202, at para. 56, that the third Grant factor must not be allowed “to trump all other considerations, particularly where … the impugned conduct was serious and worked a substantial impact on the [accused’s] Charter right.” In my view, this statement applies to the case at bar." (Para 40)
"Intentionally obtaining confidential medical information and using it to obtain search warrants is serious Charter-infringing state conduct from which the court ought to distance itself. And, while the illegal disclosure of the confidential medical information was not a “deliberate intrusion on bodily integrity” that might serve to exclude the evidence notwithstanding its relevance and reliability (Grant, at para. 111), the effect on the respondent and her interest in informational privacy in a medical context was significant. In this case, but for the search warrants the police would not have been able to seize the respondent’s medical records and urine and blood samples, and those search warrants depended upon the illegally obtained urine ethanol results. Given that the Charter-infringing state conduct here was at the serious end of the fault spectrum and the breach significantly impacted on the respondent’s informational privacy interest, the balance tips towards exclusion and is not outweighed by society’s interest in an adjudication on the merits. To admit the evidence in this case would permit the police to obtain evidence illegally, and then, as observed by the trial judge, attempt to justify this action by getting a warrant. Public confidence in the administration of justice is best served in this case through the exclusion of the evidence obtained in violation of the Charter." (Para 41)
Crown Appeal was dismissed (Para 43)
R v Kaldus (ONSC)
[Apr 12/19] Credibility of Police Officers - Charter S.8 - Officer Safety Search found to be a Pretext for an Evidence Search - Charter S.10(b) - Sorting Out or Implicating Accused? - 2019 ONSC 2340 [C.F. de Sa J.]
AUTHOR’S NOTE: This is another case that turned on the credibility of a police officer. The stated reason for search was said to be the safety of the police officer. This just happened to occur when grounds for an evidentiary search failed to materialize (police just couldn't find the marijuana that the detaining officer believed he saw thrown from the vehicle). Again, where a belief materializes by fortuitous happenstance at the time the police would otherwise have to release the suspect without a further intrusive search, such "belief" should received special scrutiny from the courts. Here, such proper scrutiny led to the exclusion of the evidence subsequently found.
A further issue of note in this case is the Court's finding regarding where permissible "sorting out the situation" questioning ends and a detention begins. Often, Courts use the "sorting out the situation" caselaw to let in anything that is truly incriminatory that occurs very early in the police-accused interaction as long as there is no overt physical detention. Justice de Sa, finds that questioning a suspect about the marijuana he tossed from the moving car was not a "sorting out the situation" type of interaction. The purpose of the questioning was to implicate the Accused - this fact transformed the nature of the detention to one that was Charter-protected and rights should have been provided to the Accused.
Pertinent Facts
"On December 24, 2015, at approximately 11:21 p.m., Police Constable Strome (PC Strome) was dispatched to a call for a possible impaired driver in the area of King Road and Weston Road in the Township of King." (Para 4)
"At 11:26 p.m., PC Strome located the vehicle travelling eastbound on King Road, just west of Dufferin Street in the Township of King. PC Strome testified that he observed the vehicle fading slightly right to left in the lane which made him believe the driver was possibly impaired. PC Strome activated his emergency lights to pull over the vehicle." (Para. 5)
"As PC Strome activated his roof lights, he noted that the driver's side window was partially rolled down and the driver threw what seemed to be five to six pieces of paper out of the window. While not evident from the in-car video, PC Strome also testified that he observed what he believed to be a baggie of marijuana tossed out." (Para 6)
"PC Strome asked the accused how much marijuana he threw out of the window. The accused told PC Strome that it was a gram and a half of marijuana." (Para 9)
"PC Strome testified that after briefly speaking with the accused, he no longer had any concerns regarding possible impairment." (Para 10)
"At approximately 11:36 p.m., the police had still not discovered what had been thrown out by the accused. PC Strome asked the accused to exit the vehicle for the purpose of conducting a "pat down" search. PC Strome testified that he wanted to do a "pat down" search of the accused for officer safety. In his evidence, PC Strome did not identify anything specific that gave rise to a specific safety concern." (Para 11)
"As the Applicant exited the vehicle for the pat down search, PC Strome heard the sound of a pill bottle tipping over, and pills pouring out. PC Strome looked inside the opened door of the vehicle and saw that pills from a pill bottle had spilled all over the driver's side floor. PC Strome believed the pills were controlled substances. Based on his observations, at 11:39 p.m., PC Strome arrested the Applicant for possession of a controlled substance." (Para 12)
"At 12:05 a.m., PC Strome arrested the accused for the marijuana and for the pills located in the vehicle. At this time, PC Strome advised the Applicant of his rights to counsel and caution for the first time. This was close to 40 minutes after the accused had been detained for the marijuana investigation. After being given the rights to counsel, the accused stated that he would like to speak with counsel." (Para 15)
"When PC Strome was asked in cross-examination why he did not provide the accused with the rights to counsel at the outset when the accused was detained for the marijuana, he testified that he was going to wait until the search was complete to see everything that was seized." (Para 16)
Charter s.10(b) - Detention - Sorting Out or Questions Aimed at Implicating Accused?
"If he did have a basis to detain, the Applicant argues that PC Strome’s initial questioning was in violation of section 10(a) and 10(b) of the Charter. The Applicant argues that the questioning was not related to the HTA/impaired investigation. PC Strome’s questioning improperly invited the accused to incriminate himself in relation to a criminal investigation. The defence relies on R. v. Mellenthin, [1992] 3 SCR 615, 1992 CanLII 50 (SCC), where the Supreme Court explained:
...The primary aim of the program is thus to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. The police use of check stops should not be extended beyond these aims. Random stop programs must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search. (Para 25)
"In the circumstances, in my view, it would have also been reasonable for the officer to make general inquiries regarding the item thrown from the vehicle. R. v. Peterkin, 2015 ONCA 8 (CanLII). The circumstances gave rise to the spectre that an offence had been committed and evidence was discarded. I agree with the Crown that the officer would have been justified in asking the accused some exploratory questions with a view to “sorting out” the situation. R. v. Sawatsky, 1997 CanLII 511 (ON CA)." (Para 23)
"No doubt exploratory questioning will often elicit incriminatory responses. Preliminary questioning for the purpose of “sorting out” a situation, however, is still permitted because the purpose of inquiry is not directed at incriminating the accused. Legitimate police questioning in these contexts is directed at assessing whether an investigation is warranted. R. v. Hall, [1998] O.J. No. 2607 (C.J.). The brief “physical delay” occasioned by the police engagement is also justified for the limited purpose of allowing the officer to sort out the situation. R. v. Suberu, supra.[2]" (Para 24)
"In the same way, the scope of authorized police questioning must be carefully limited to what is reasonably necessary to “sort out” the situation. In the course of such interactions, it is also incumbent on officers to treat the potential detainee fairly, and to give proper consideration to the subject’s section 10(b) Charter rights. The police must not improperly exploit a detainee’s position of vulnerability as a means to subvert his/her Charter rights. As Doherty J.A. explained in R. v. Sawatsky:
The right to counsel enshrined in s. 10(b) of the Canadian Charter of Rights and Freedoms is a principle of fundamental justice and reflects a commitment to the fair treatment of persons detained by the police even at the expense of investigative efficiency: R. v. Clarkson, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383 at p. 394, 25 C.C.C. (3d) 207 at pp. 217-18...
The noble purposes underlying s. 10(b) identified by the Chief Justice must animate any consideration of its application to a given fact situation. A s. 10(b) claim cannot be approached as if it were an attempt to place a technical obstacle in the way of effective law enforcement." (Para 26)
"In this case, while the officer may have been uncertain as to what was discarded, he was unfair in the manner in which he engaged the accused with his questioning. PC Strome specifically questioned the accused with the purpose of implicating him in the suspected criminal offence." (Para 27)
"In the circumstances here, I agree with the defence that the question, as framed, was specifically directed at incriminating the accused in relation to the drugs that had been discarded. Accordingly, I find the questioning violated the Applicant's 10(a) and 10(b) Charter rights." (Para 29)
Delay in Provision of Rights
"In this case, clearly the Applicant's section 10(b) Charter rights were violated with the delay. The accused was detained for close to 40 minutes before being given the rights to counsel. PC Strome testified that he intended to release the accused at the scene after the search of the vehicle was completed. According to PC Strome, there was no way to provide the accused with "privacy" at the roadside. Giving the accused immediate access to a lawyer was not feasible in the circumstances. PC Strome also testified that he wanted to wait until the search was completed so that he could provide the Applicant the full nature of the jeopardy he faced." (Para 42)
"Even if PC Strome's explanation could justify a delay of the implementational duties, it does not excuse the failure to provide the Applicant with the informational rights." (Para 43)
"Section 10(b)’s purpose is to ensure that individuals know of their right to counsel, and can access that right in situations where they are vulnerable to the exercise of state power and in a position of legal jeopardy. The right to counsel is meant to help detainees regain their liberty, and guard against the risk of involuntary self-incrimination: R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173 (S.C.C.), at para. 17. As the Supreme Court explained in R. v. Suberu, 2009 SCC 33 (CanLII), [2009] 2 S.C.R. 460, at para. 41:
A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises." (Para 44)
"I agree with the Applicant that the delay in the provision of rights clearly violated his section 10(b) Charter rights. In this case, the Crown reasonably concedes that the accused's 10(b) rights were violated." (Para 45)
Charter s.8 - Officer Safety Search
"In R. v. MacDonald, 2014 SCC 3 (CanLII), [2014] 1 S.C.R. 37, the Supreme Court took the opportunity to address the limits to the authority to conduct a “safety search”. The Supreme Court required that there be an objectively discernible basis for the concern. Police could not just routinely search everyone for “safety” reasons. Nor could safety searches be based solely on the personal idiosyncratic views of the officer." (Para 31)
"As the Supreme Court explained, there must be an objectively discernible basis or "reasonable grounds" to believe that there is an imminent threat to their safety. Additionally, the nature of the search conducted must be confined to what is required to eliminate the perceived threat. At paras. 43-44 the Court explained:
[T]helaw will justify the exercise of this police power only if exercising it is reasonably necessary in order for the police to conduct the safety search in question (Clayton, at paras. 21, 26 and 31). As I explained above, it is only when police officers have reasonable grounds to believe that there is an imminent threat to their safety that it will be reasonably necessary to conduct such a search.This limit guarantees that the lawful police power is not excessively broad. In so doing, it ensures that the law itself is reasonable and can be reasonably delineated.
This common law power to conduct searches for safety purposes is the reasonable lawful authority for the search carried out by Sgt. Boyd. The power was engaged because Sgt. Boyd had reasonable grounds to believe that there was an imminent threat to the safety of the public or the police and that the search was necessary in order to eliminate that threat." (Para 32)
"While I recognize that deference is warranted, in this case, the officer was not able to point to anything that gave rise to a specific safety concern in the circumstances. The in-car video reveals that the officer left the occupants unsupervised more than once as he returned to his cruiser. He allowed the passenger to roam around the car without exercising any control over him. He only decided to conduct a safety search when the officers were not able to locate what was discarded." (Para 35)
"In the circumstances, I do not accept that the officer asked the Applicant to exit the car for safety reasons. I agree with the Applicant that this direction was a veiled attempt to search the accused and the vehicle for evidence of the suspected offence." (Para 36)
"Accordingly, in the circumstances, I find that the request to exit the vehicle was an unreasonable search." (Para 37)
Section 24(2) Analysis
Seriousness of the Charter-infringing State Conduct
"In this case, the seriousness of the police conduct is at the higher end of the spectrum. This is not a case of an inadvertent or minor error. Nor can the Crown rely on a claim of "good faith" to excuse conduct which falls so far below what is reasonably expected. The police approach was problematic from the outset. While the initial detention was lawful, under the first branch the conduct following that detention fell well below what is expected of the police in the circumstances." (Para 48)
"When dealing with a detained citizen, the police must be cognizant and respectful of the accused's Charter rights. The police actions here were a flagrant breach of the Charter rights at issue. The accused's section 10(a) and 10(b) rights were violated at the outset with the officer's inappropriate questioning. The accused was detained for close to 40 minutes without being informed of the right to counsel. Moreover, the delay was not justified by the officer for any reason other than administrative convenience." (Para 49)
"Similarly, the officer's search of the Applicant and vehicle (request to exit) under the guise of a "pat down" safety search is also at the more serious end of the spectrum. Exigency and public safety cannot be used as pretext to improperly interfere with Charter rights." (Para 50)
Impact on the Charter-protected Interests of the Accused
"Under the second branch, the impact of the breaches on the Charter protected interests was also significant. The request to exit, and the pat down search constituted a serious intrusion on the privacy of interests of the accused. Absent a lawful basis, individuals have the right not to be searched." (Para 51)
"The failure to advise the Applicant of the rights to counsel following the detention also had a serious impact on the Charter protected interest. The right to counsel in the face of detention and arrest is critical to maintaining the balance in a free and democratic society. As Doherty J.A. explained in R. v. McGuffie, 2016 ONCA 365 (CanLII), [2016] O.J. No. 2504, at para. 80, "access to legal advice while detained is fundamental to individual liberty and personal autonomy in a society governed under the rule of law.""(Para 52)
Balancing
"In this case, the serious nature of the breaches weighs heavy in the analysis. In my view, admission in the circumstances would send the wrong message regarding the significance of the rights in question given the extremely flagrant nature of the breaches. In my view, the long term repute of the administration of justice requires that the evidence be excluded." (Para 57)
Evidence was excluded. Crown admitted that unable to prove offence in the circumstances. Charges dismissed. (Para 59)
R v McGregor (ONCA)
[Apr 17/19] – Proper use of After the Fact Conduct - Required Instruction on the Defence of Provocation – 2019 ONCA 307 [Reasons by David Watt J.A., with G. Pardu J.A., and L.B. Roberts J.A. Concurring]
AUTHOR’S NOTE: Here two issues led to a new trial. This issue of After the Fact Conduct led to a new trial because one line in an otherwise careful instruction by the trial judge left open the possibility that the jury failed to consider words uttered by the accused after the death to the effect of "I was jumped" by a number of people as After the Fact Conduct. The line occurred in summarizing the Crown's argument as to first degree murder. This left open the possibility that they would use this for an improper purpose not circumscribed by the After the Fact Conduct instruction.
With respect to provocation, the instruction to the jury ultimately deprived the Accused of the requirement that the Crown disprove the partial defence of provocation beyond a reasonable doubt - here the primary defence. Instead, the instruction only required the consideration of provocation within the mental element for first degree murder (ie planning and deliberation)
Pertinent Facts
"The appellant, Robert McGregor, was J.M.'s former boyfriend. The couple agreed to meet at a local coffee shop in Peterborough. They drove away in the appellant's truck, in the direction of the appellant's home where their daughter was staying." (Para 3)
"No one saw J.M. alive again." (Para 4)
"A few days later, the appellant directed police to a shallow grave in a wooded area not far from his home. There police found the body of J.M." (Para 5)
"The deceased had begun dating another man about a month or more before she was killed. This man, D.J., was involved in the drug culture, engaged in the sale and use of marijuana and hallucinogens. The appellant was concerned about D.J. being around his daughter." (Para 13)
"Both parties sought sole custody in court filings. At the conclusion of a mediation about ten days before the deceased's death, the couple agreed that the deceased's new boyfriend would not be around their daughter. The deceased would seek professional help for her possible depression. The appellant would have primary custody of their daughter until the end of the summer when the custody issue would be revisited." (Para 16)
"In the days immediately preceding the Canada Day weekend, the appellant complained about drug use by the deceased's new boyfriend. A CAS investigator conducted a well-being check on the couple's daughter, both at school and at the deceased's home. About a day later, the investigator advised the appellant that the investigation was closed. That same day, the deceased and their daughter moved into the deceased's parents' home in Peterborough." (Para 18)
"The appellant became very upset when his daughter repeatedly struck herself in her vaginal area with her hand. She had apparently done the same thing on an earlier occasion. He spoke to her about it. When he did, she told him that D.J. had "touched her head."" (Para 20)
"The appellant then began a series of texts to the deceased. He explained his concern that someone had inappropriately touched their daughter. He repeatedly asked the deceased to call him. He explained that they needed to take their daughter to the local hospital to have her examined for signs of abuse." (Para 21)
"The deceased called the appellant and he explained his concerns about D.J. having touched their daughter. She agreed to meet the appellant at a local coffee shop that morning." (Para 22)
"The appellant drove from the coffee shop to a rock pile about 300 metres beyond his home. Depending on traffic conditions, the trip would take about 17-21 minutes. The couple passed close by the appellant's home. According to statements made later by the appellant, the couple smoked a "bowl" of marijuana at the rock pile. There, the appellant killed the deceased." (Para 24)
"The appellant told his friend a story that he would repeat several times to others, including the police, over the next several hours if not days. Its essence was that he had been "jumped" by several men (the numbers varied from a low of two or three to a high of seven or eight) near Rehill. These men beat him up. He had blood on his shirt, which he burned. He changed his clothes." (Para 30)
"In the end, after a series of contradictory and implausible accounts, the appellant told investigators that he had stabbed the deceased after she had attacked him with a knife." (Para 36)
After the Fact Conduct
"Of particular prominence in this catalogue of sayings and doings was an obvious lie told and repeated by the appellant to family, friends and investigators. That lie consisted of a denial of having met the deceased on July 2, 2011, and of having been beaten by a number of men when he attended at their agreed-upon meeting place." (Para 78)
"In her closing address to the jury, the trial Crown suggested that the appellant's immediate and repeated disclosure of the fabricated disclaimer beginning almost immediately after the killing supported an inference that the killing had been thought out in advance, and a further inference that the unlawful killing of the deceased was, at once, intentional and planned and deliberate." (Para 84)
"The trial judge then explained to the jury the permitted and prohibited use of this evidence in reaching their verdict:
As circumstantial evidence, evidence of after-the-fact conduct has only an indirect bearing on the issue of Mr. McGregor's guilt, because you may only consider this evidence in relation to whether he acted in self-defence or whether he was provoked in the circumstances in which [J.M.] died. You may not infer that he is guilty of murder or kidnapping on the basis of his after-the-fact conduct, because there may be other explanations for his conduct." (Para 86) [Emphasis added]
However, "In summarizing the evidence to sustain the Crown's position that the killing of the deceased was a planned and deliberate first degree murder, the trial judge said:
He had an alibi already, a story about being jumped by six men. It would cover off his delay, any injuries that might result in his confrontation with [J.M.], and explain that [J.M.] had never met with him and had simply disappeared. He would cover up with texts to [J.M.]'s phone, inserting his alibi story, explaining he was worried about her, imploring her to call after he had killed her." (Para 88) [Emphasis added]
"Evidence of post-offence conduct refers to evidence of what an accused is alleged to have said or done after the offence charged was committed. This covers a vast expanse of possible circumstances bordered only by the limits of human experience. It necessarily follows from the breathtaking sweep of circumstances that may constitute evidence of post-offence conduct that the proper treatment of this evidence is both context and fact-specific: R. v. Calnen, 2019 SCC 6 (CanLII), at para. 106, per Martin J." (Para 99)
"The inferences that may be drawn from evidence of post-offence conduct must be reasonable when adjudged by the measuring stick of human experience. Those inferences will depend on the:
i. nature of the conduct;
ii. inferences sought to be drawn from that conduct;
iii. positions of the parties; and
iv. totality of the evidence.
See, Calnen, at para. 112; R. v. Smith, 2016 ONCA 25 (CanLII), 333 C.C.C. (3d) 534, at para. 77." (Para 101)
"Instructions limiting the use of evidence by the trier of fact typically include three elements:
i. identification of the evidence to which the instruction applies;
ii. an instruction on the permitted use of the evidence; and
iii. an instruction on the prohibited use of the evidence.
See, Calnen, at para. 42, per Moldaver J., citing R. v. T. (J.A.), 2012 ONCA 177 (CanLII), 288 C.C.C. (3d) 1, at para. 53." (Para 106)
"To meet these general concerns, instructions on evidence of post-offence conduct must tell jurors to take into account alternative explanations for the accused’s conduct, thus to avoid a mistaken leap from the evidence to a conclusion of guilt: Calnen, at para. 117. But sometimes more is required because cautions and limiting instructions must pay heed to the actual evidence and the specific risks it poses in the case at hand: Calnen, at para. 118."
"In the end, the trial judge's legal instructions to not use evidence of post-offence conduct to help establish that the murder was planned and deliberate were at odds with the judge's exposition of the Crown's position that the "I was jumped" disclaimer could be used for that purpose." (Para 114)
"To the extent that the jury may have resolved these contradictory instructions by considering that the "I was jumped" disclaimer was not evidence of post-offence conduct, and not subject to the cautions associated with this kind of circumstantial evidence, the appellant suffered prejudice as a result." (Para 115)
The Partial Defence of Provocation
Defence sought a separate entry on the decision tree for provocation. The Crown opposed and the Court did not give it. (Para 137)
"The decision tree provided to the jury appears as Appendix "A" to these reasons. It includes this entry:
Did Mr. McGregor have a state of mind required for murder, (not provoked)?
as well as directional arrows pointing to the consequences of an affirmative or negative response to the question." (Para 138)
"In a prosecution of a culpable homicide as murder, evidence of provoking conduct by the deceased and of an accused’s reaction to it may be relevant for the jury to consider in either or both of two[3] ways in reaching its verdict." (Para 146)
"First, evidence of the deceased’s provoking conduct and the accused’s reaction to it, together with evidence of other circumstances surrounding the killing, including those relating to the mental state and condition of the accused, is relevant for the jury to consider in determining whether the Crown has proven either state of mind required to establish the unlawful killing was murder: R. v. Bouchard, 2013 ONCA 791 (CanLII), 305 C.C.C. (3d) 240, at paras. 54, 60-62, aff’d 2014 SCC 64 (CanLII), [2014] 3 S.C.R. 283. This evidence is often an integral part of a “rolled up” instruction on the mental element in murder: R. v. Robinson, 1996 CanLII 233 (SCC), [1996] 1 S.C.R. 683, at para. 59; R. v. Flores, 2011 ONCA 155 (CanLII), 269 C.C.C. (3d) 194, at paras. 72-76, 83-86." (Para 147)
"Evidence of provoking conduct by the deceased and of the accused’s reaction to it relevant to proof of the state of mind essential to make the unlawful killing murder need not qualify as provocation as defined in s. 232(2) of the Criminal Code: Bouchard, at paras. 60, 62; Flores, at paras. 72-73, 83-86." (Para 148)
"Second, provocation which meets the requirements for the statutory partial defence as defined in s. 232(2) reduces an unlawful killing proven to be murder to manslaughter.[4] This statutory partial defence does not relate to the mental element in murder. This is so because the opening words of s. 232(1) provide that “[c]ulpable homicide that otherwise would be murder may be reduced to manslaughter…”: R. v. Gilling (1997), 1997 CanLII 837 (ON CA), 117 C.C.C. (3d) 444 (Ont. C.A.), at para. 22, citing R. v. Conway (1985), 1985 CanLII 3592 (ON CA), 17 C.C.C. (3d) 481 (Ont. C.A.), at p. 485." (Para 149)
"Since the term “provocation” may be used in either or both of these senses, it is critical to the jury’s understanding that the trial judge explain the difference between them and confine their use to the issue to which each is relevant: Bouchard, at paras. 65, 67. This can be achieved in different ways, as for example by describing the statutory partial defence of provocation as “the defence of provocation” and making it clear that it only arises for consideration where the jury has been satisfied beyond a reasonable doubt that the unlawful killing of the deceased was murder: Bouchard, at paras. 54, 60. And by eschewing the language of “defence” and “provocation" in favour of terms such as “provoking words and conduct”, when linking it to proof of the state of mind required for murder and thus distinguishing it from the statutory partial defence: R. v. Mitchell, 1964 CanLII 42 (SCC), [1964] S.C.R. 471, at p. 476; see also R. v. Cudjoe, 2009 ONCA 543(CanLII), 68 C.R. (6th) 86, at para. 114." (Para 150)
"The manner in which trial judges integrate instructions on defences, justifications and excuses into decision trees on offences is left largely to individual judges. Some defences are linked to discrete essential elements of an offence. For example, self-defence relates to the unlawful act requirement in a prosecution for a crime of culpable homicide. But not so for every defence. And not so for the statutory partial defence of provocation. Properly sequenced, the provocation question should appear following an affirmative answer to the question about proof of the mental element in murder. Recall the words "[c]ulpable homicide that otherwise would be murder"." (Para 153)
"In concluding her instructions on the statutory partial defence of provocation, the trial judge substantially repeated her instructions on the intent required for murder but added "and that he was not provoked" thereby conflating the issue of the intent required for murder and the statutory defence of provocation." (Para 159)
"In the usual course, the instructions would conclude in the following or similar language:
If you are satisfied beyond a reasonable doubt that in unlawfully killing the deceased, the accused committed murder (as I have defined it for you), and if you find or have a reasonable doubt that when he did so the accused was acting under (the defence of) provocation, as I have just defined it for you, then you shall find, record and return a verdict of not guilty as charged, but guilty of manslaughter.
If you are satisfied beyond a reasonable doubt that in unlawfully killing the deceased, the accused committed murder (as I have defined it for you), and if you are also satisfied beyond a reasonable doubt that, when he did so, the accused was not acting under (the defence of) provocation, as I have just defined it for you, you must go on to the next question." (Para 161)
"The reference to "and that he was not provoked" in the second paragraph of the charge excerpt, and to "(not provoked)" in the box of the decision tree relating to the mental element in murder, resulted in an instruction that was flawed by ambiguity. In the result, there was non-direction amounting to misdirection about the verdict and further deliberation consequences of the statutory partial defence of provocation." (Para 163)
Appeal was allowed and matter was returned for a new trial. (Para 192)
