The Defence Toolkit – December 5, 2020

This week’s top three summaries: R v Jerace, 2020 BCCA 326: #Crown arguing #fabrication, R v Whynder, 2020 NSCA 77: #party liability #murder instructions  & after the fact conduct, and R v Chen, 2020 BCCA 329: myths & #stereotypes.

R v Jerace, 2020 BCCA 326

[November 16, 2020] Alleging Fabrication by an Accused [Reasons by Wilcock J.A. with Fenlon and Griffin JJ.A. concurring]

AUTHOR’S NOTE: There is a significant distinction in criminal law between alleging an accused's evidence is untrue and alleging it is a deliberate fabrication. One of the applicable distinctions relates to the suggestion by Crown counsel that an accused is deliberately fabricating evidence on the basis of access to disclosure.  Herein, Crown counsel sought to do so for the first time in the trial in closing submissions before a jury. In doing so they caused a successful appeal of the guilty verdict. The case is useful in that it provides a mercifully short and pithy authority for the proposition that will be easily grasped in a fast pace trial environment (prior to the charge to the jury). 

Facts

[2] On April 8, 2019, he was sentenced to 18 months’ jail. He appeals against his conviction on numerous grounds. For reasons that differ from those grounds, the respondent Crown properly acknowledges that the conviction appeal should be allowed and a new trial ordered. For the following reasons, we agree with the Crown’s submission. It is, therefore, unnecessary to address the appellant’s grounds of appeal.

[3] On May 5, 2018, police officers observed the appellant drinking what appeared to be beer with a friend at a bar, while subject to a Long Term Supervision Order with a special condition that he not consume or possess alcohol.

[5] At trial, a police officer, Detective Miles, testified that there was an error in the police report: Columbia Street was mistakenly identified as Carrall Street. The appellant had not been seen on Carrall Street.

[7] While addressing the appellant’s credibility in her closing submissions, Crown counsel suggested to the jury the appellant had reviewed the police report and decided to fabricate a story that he had purchased iced tea while walking on Carrall Street. Crown counsel said:

Now, the stores that Mr. Jerace said he went into … are on Carroll Street. You heard him say at some point this morning about how he hadn’t -… received disclosure and then how did he know what was happening in this case, and he did receive disclosure. And as part of that disclosure he told you it said Carroll Street in Detective Miles’ statement. This is what Mr. Jerace told you today.

And I suggest to you that the most likely thing that happened is Mr. Jerace looked at that police report and went, “Carroll Street. I will find some stores on Carroll Street and I will suggest to the court that I bought iced tea at the stores on Carroll Street”.

But then Detective Miles came to court and he said Columbia Street, and that’s not a police trick, that was a mistake, and it’s a mistake that Mr. Jerace was notified of in advance as well, but it’s a mistake. He testified in court it was Columbia. That’s where he went and now Mr. Jerace’s story doesn't work. He was not on Carroll Street. He didn’t go into a store to buy iced tea.

Analysis

[9] As the Ontario Court of Appeal observed in R. v. White (1999), 1999 CanLII 3695 (ON CA), 42 O.R. (3d) 760 (C.A.) at para. 20:

… As a matter of common sense, there may be considerable force to the suggestion that a person who gets full advance notice of the other side’s evidence and testifies last is in a position to tailor his or her evidence to fit the disclosure. That inference, no matter how logical, cannot be drawn without turning fundamental constitutional rights into a trap for accused persons. Where any such suggestion seeps into the cross-examination of an accused, it must be eradicated by the trial judge.

[10] It is “improper” and “unfair” for the Crown to allege a theory of concoction for the first time in closing submissions: R. v. Peavoy, (1997), 1997 CanLII 3028 (ON CA), 34 O.R. (3d) 620 (C.A) at 625.

[11] Where, as in this case, that occurs, an appropriate corrective instruction can be sufficient to cure the problems created by the Crown’s address: R. v. John, 2016 ONCA 615 at paras. 63, 80, leave to appeal dismissed [2017] S.C.C.A. No. 101.

[12] However, the accused was self-represented, and the trial judge was not asked to, and did not provide a corrective instruction to the jury. The Crown concedes that neither the appellant, the trial Crown, nor the trial judge were alive to the prohibited inference underlying the Crown’s submissions.

[13] The respondent concedes the trial judge was led into error. Crown also concedes the error cannot be saved by the curative proviso in s. 686(1)(b)(iii) of the Criminal Code. Credibility is the central issue in this case, there is no basis to believe, and the Crown does not contend, that the allegation of tailoring was an unimportant factor in the credibility assessment.

[17] Accordingly, it is only necessary for us to make an order allowing the conviction appeal and ordering a new trial, and we do so.

R v Whynder, 2020 NSCA 77

[November 27, 2020] Murder: Co-prinicipal Liability, Instructions on Party Liability Have to be Related to the Evidence, After-the-Fact Conduct [Reasons by Duncan R. Beveridge J.A. with Farrar and Derrick JJ.A. concurring]

AUTHOR’S NOTE: Murder intent is complicated enough without considering avenues for liability for parties to the offence.  However, this difficult task must be adequately performed by a justice instructing a jury on the most serious charge in the Criminal Code.  Herein, the confusion arose mainly because the jury were left with an instruction that left causation unclear where death was clearly caused by shooting to the head. The suggestion was left that it was possible to have co-principals in such a case where that is clearly not available - the vagueness of causation was then allowed to substitute for the requisite intent required for party liability.  Simply put, the requirement of foreknowledge of the intent of the principal was left out - any help was sufficient to help "cause" the death and therefore ground a murder conviction.  This was an error. Had party liability been related to the facts of the case, it could have guided the jury away from this faulty chain of reasoning. 

The case also addresses the limitation of after-the-fact conduct in murder prosecutions.  Specifically, it rarely is able to distinguish between forms of liability (1st, 2nd degree, or manslaughter). While every case must be decided on its facts, these tend to be perennial difficulties with after-the-fact conduct in murder cases. 

The Facts of the Case

[1] Matthew Sudds was murdered. A single gunshot to his head caused his death. There were no witnesses. However, ample circumstantial evidence and the appellant’s admissions would permit no other conclusion but that he was present at the scene and, from a lay perspective, otherwise “involved” in that homicide.

[2] The Crown’s theory was that the appellant and one Devlin Glasgow travelled to Nova Scotia to murder Mr. Sudds. They acted as co-principals in the planning and execution of the first degree murder of the deceased.

[3] Appellant’s trial counsel admitted to the jury that it could not realistically be disputed that the appellant was present when the deceased was murdered, but the Crown had not established that he caused the deceased’s death or was liable as a party to the murder.

[4] The jury acquitted the appellant of first degree murder but convicted him on the lesser and included offence of second degree murder. He now appeals. He asks for a new trial because the trial judge’s jury charge did not properly relate the evidence to the issues the jury needed to decide and how it dealt with so-called after-the-fact conduct evidence. Despite Mr. Scott’s stalwart efforts, I agree. I would allow the appeal and order a new trial on the charge of second degree murder.

[8] ... the Crown presented a substantial body of circumstantial evidence that would permit a trier of fact to infer the appellant and Devlin Glasgow had forged a plan to murder Mr. Sudds. There was significant telephone communication between them in the days before and after the appellant traveled from Toronto to Halifax on October 7, 2013.

[11] On October 9, 2013, Mr. Sudds gave his mother $350 to give to the appellant. Later that evening, she gave the appellant the money, and saw him get into a black Dodge Charger.

[12] The police identified the appellant as either the driver or a passenger in that vehicle at two different times and locations in Halifax on Friday, October 10, 2013. Phone records would support the inference that the appellant picked Mr. Glasgow up at the Halifax airport on the morning of October 10.

[13] Various telephone exchanges between the appellant and the deceased led to an October 10 evening rendezvous in a Burger King parking lot. Video surveillance from that parking lot captured the deceased getting into a black Dodge Charger, never to be seen alive again.

[14] The black Dodge Charger was dutifully returned to the rental agency on the morning of October 11. Agency staff observed that the car came back “pretty clean”—“cleaner than the average rental car”. Nonetheless, subsequent forensic examination turned up gunshot residue, along with DNA and fingerprints that were said to match those of Devlin Glasgow. Other stained areas contained blood with DNA that matched the deceased’s. The forensic examination did not link the appellant to the car.

[15] In the afternoon of October 11, 2013, airline tickets were purchased by a third party for both the appellant and Mr. Glasgow for flights leaving later that evening from Halifax to Toronto, Toronto to Vancouver. Video surveillance showed the appellant’s girlfriend dropping them off at the Halifax airport. Records and further video surveillance confirmed Glasgow and the appellant travelled together on the flight from Halifax to Toronto.

[16] The appellant stayed in Toronto after a brief embrace and handshake with Mr. Glasgow, who continued on to Vancouver.

[17] The deceased did not return home after October 10, 2013. Calls and texts went unanswered. On October 12, Mrs. Sudds reached out to a number of people to try to find her son. One of those was the appellant. He said he would call her back and let her know. A half-hour later, he called back. He told her the deceased had got himself into some trouble in Dartmouth and that he had to put the deceased on a plane to Montreal to get him out of the city.

[19] On October 14, 2013, the deceased’s body was discovered in a ditch, some eight to ten feet off the Africville Road, in what is now a remote area in the north end of Halifax. It was obvious to the laypeople who discovered his body that he had been murdered—he had been shot in the forehead.[19] On October 14, 2013, the deceased’s body was discovered in a ditch, some eight to ten feet off the Africville Road, in what is now a remote area in the north end of Halifax. It was obvious to the laypeople who discovered his body that he had been murdered—he had been shot in the forehead.

[21] The pathologist’s report and her evidence could not have been clearer: the cause of death was a single gunshot head wound. There were also gunshot wounds to the deceased’s arm and neck which could have been caused by a single shot. The only other injury apart from the gunshot wounds was a 3.5 cm laceration above his ear which could have been caused by his head striking something during a fall or by blunt force trauma caused by an object harder than a hand or elbow. All the pathologist could offer is the deceased received the laceration shortly before the fatal gunshot wound.

[22] The Crown’s case was rounded out by admissions and statements the appellant made to a call-in line and to the police. On March 8, 2017, the appellant called a rewards program managed by the Nova Scotia Department of Justice. Rewards of up to $150,000 are available to people offering information on unsolved homicides or missing person cases.

[24] On March 9, 2017, the call was returned. The rules were explained to the appellant. To be eligible: he may have to testify; he cannot have been “involved”; and, the information must lead to a conviction.

[25] They discussed what “involved” meant. The appellant volunteered that he was there on both occasions. He was told he could not have helped set it up or driven the person to commit the homicide. The appellant explained that he was in the vehicle for each of the homicides.

[27] The appellant said he was not motivated to see people locked up, as he was “no innocent himself”—and “no model innocent citizen”. The call ended with the appellant’s announced intention to call a lawyer and one Detective Kent with the Halifax Regional Police.

[28] It turns out that Detective Kent was actually Sgt. Walsh. Sgt. Walsh learned on March 9 of the appellant’s call to the rewards program offering information on Matthew Sudds’ homicide. The appellant did call Sgt. Walsh that very day. The appellant said he was the one who had called the rewards line. An arrest team quickly assembled. They flew to British Columbia, where the appellant was then living, and arrested him on March 10, 2017.

[29] A recorded interview followed. As police interviews go, it was mostly unfruitful. The appellant told many transparent lies. He denied: he even knew the deceased or his mother; he was in the black Dodge Charger; or he was the rewards line caller.

[32] At the close of the Crown’s case, the appellant moved for a directed verdict to have the charge dismissed on the basis that, although the jury could reasonably conclude the appellant was present when the murder occurred, they could not infer he was the principal or a party with the requisite mental element. The Crown argued there was ample evidence that would permit the jury to convict the appellant as a principal, a co-principal or as an aider or abettor.

[33] The trial judge, the Honourable Justice Denise Boudreau, dismissed the motion in a bottom-line decision on June 18, 2019, with detailed reasons to follow (now reported as 2019 NSSC 234). I mention this event because it served as a debut of the legal divide between the Crown and the appellant about available avenues for liability and the role that the after-the-fact conduct evidence could legitimately play in the jury’s determination of the appellant’s level of culpability.

[34] After the failed directed verdict motion, the appellant did not testify or call any evidence.

Party Liability for Murder

[42] It is apparent that the trial judge relied on the well-known and highly regarded guide on appropriate jury instructions, Watt’s Manual of Criminal Jury Instructions, 2nd ed (Toronto: Carswell, 2015). Also of assistance are the Canadian Judicial Council’s Model Jury Instructions and Canadian Criminal Jury Instructions (CRIMJI), loose-leaf updated November 2019, 4th ed (Vancouver: Continuing Legal Education Society of British Columbia, 2005).

[43] However appropriate and accurate specimen charges are in the abstract, they are the beginning of the process, not the end.

[48] The trial judge then embarked on a complete and comprehensive recitation of the trial evidence. At the end of her recapitulation, she summarized their task on this element:

As I said, the evidence as to this element is entirely circumstantial. Remember that I told you that in order to find an accused person guilty of an offence on the basis of circumstantial evidence you must be satisfied beyond a reasonable doubt that guilt is the only reasonable inference that can be drawn on the whole of the evidence. If you are not satisfied beyond a reasonable doubt that Ricardo Whynder caused or contributed significantly to the death of Matthew Sudds, you must find Ricardo Whynder not guilty of that charge. Your deliberations would be over. If you are satisfied beyond a reasonable doubt that Ricardo Whynder caused or contributed significantly to the death of Matthew Sudds, you must go on to the next question.

[Emphasis added]

[49] This direction, in these circumstances, amounts to misdirection in light of the evidence and real issues the jury had to decide. I say this because causation was never an issue. The cause of death was a single gunshot wound to the head.

[50] The lengthy repetitive charge about causation being satisfied if they found he “contributed significantly” to Matthew Sudds’ death would likely be harmless if the only issue for the jury were whether they could infer the appellant was the shooter.

[51] But the Crown theory advanced to the jury premised the appellant’s liability for murder as either the shooter, a co-principal, or a party to the offence as an aider or abettor under s. 21(b) or (c). Although the trial judge charged the jury on the potential for liability as a party under s. 21(b) or (c), she did so in the abstract. At no time did she ever define or explain those requirements in the context of the evidence in this case, nor how the appellant could somehow be liable as a coprincipal.

[52] Appellant’s trial counsel objected to the recitation of the questions the jury had to resolve because they said nothing about the issues the jury would have to decide to find the appellant criminally liable as an aider or abettor. In addition, it was inappropriate to focus on causation if liability as an aider or abettor was a live issue. These, and other concerns about the necessity for an aider and abettor to have been aware of the principal’s murderous intent when acts were done that aided or encouraged, were brushed aside at the Crown’s urging.

[54] As I will demonstrate shortly, in these circumstances, that is not the law. But first, it is important to observe that the Crown advocated this very view to the jury:

In our view, of course, a principal could be anybody that’s moving along with the whole plan. You don’t have to fire that gun in order to be convicted of first-degree murder. That’s important for you, because as you hear from the evidence there may be another shooter. Not another shooter. The shooter might be a different person than Ricardo Whynder.

[Emphasis added]

[55] At no time did the trial judge instruct the jury about how they could find the appellant guilty as a co-principal or a principal other than as someone who caused or contributed significantly to Matthew Sudds’ death.

[56] To be sure, the concept of co-principals exists as two or more people can commit all of the essential elements of the same offence. It can only apply in cases of murder where multiple accused commit acts which significantly contribute to the victim’s death (with the necessary mental element) but it is uncertain which acts actually caused death. LeBel J., in R. v. Pickton, 2010 SCC 32, explained:

[64]  In relation to murder, which, as noted above, is premised on a causal requirement (the allegedly unlawful act must “cause” death), the classic scenario in which the potential for co-principal liability arises is when two or more persons assault the victim at the same time, by beating him or her to death: see, for example, R. v. McMaster, 1996 CanLII 234 (SCC), [1996] 1 S.C.R. 740. In a joint beating case, since each accused commits each element of the offence of murder (the entire actus reus and mens rea of the offence), and only factual causation may be uncertain (which person delivered the “fatal” blow), legal causation will allow for uncertainty as to the actual act which caused the death. The only requirement for “causation of death” is that related to murder/manslaughter generally. It must be established that each accused’s assault of the victim was a “significant contributing cause” (for manslaughter or murder generally) or an “essential, substantial and integral part of the killing” (for first degree murder under s. 231(5)): Nette, at para. 73.

[57] LeBel J. went on to stress that where the cause of death could only have been inflicted by one person there can be but one principal offender. The potential for co-principal liability is eliminated:

[67] Where the cause of death could clearly only have been inflicted on the victim by one person, however, and there is no evidence of any other force being applied to the victim prior to death, then absent any other evidence, likely the only logical inference is that there exists only a single principal offender. The principles of criminal causation demand such a conclusion, as there cannot be said to be any other “significant contributing cause” to the death. In that situation, the potential of co-principal liability is eliminated.

[60] As in this case, in Pickton, the factual cause of death with respect to three of the murder counts was a gunshot wound to the head. Potential liability as a coprincipal was simply not available. As LeBel J. reasoned:

[71] There was no evidence of any other “significant contributing cause” to the deaths of the victims other than the gunshot wounds. There was no basis on the evidence admitted at trial to infer that two persons, acting together, caused the deaths of the victims in any of the six counts such that they would be rendered coprincipals; there could only have been one shooter of the gunshot which caused the victims’ deaths. I agree with the appellant that the potential for a situation such as in Miller v. The Queen, [1977] 2 S.C.R. 680, simply did not exist here. There was no evidence that there may have been one person holding the gun, and one person who pulled the trigger, and thus two participants in the unlawful act causing death. Potential liability for other forms of participation in those murders had to flow, not through co-principal liability, but through aiding and abetting.

[63] The only reference to the principles that govern accessory liability were early on in the charge. It described the legal concepts that would apply to any allegation where an accused faced liability as an aider or abettor. At no time did the trial judge relate those general constructs to the concrete reality of this case.

[64] The consequences of a failure to adequately relate the evidence to the particular requirements of liability as an aider or abettor were addressed by the Ontario Court of Appeal in R. v. Mendez, 2018 ONCA 354; R. v. Josipovic, 2019 ONCA 633; and, R. v. Barreira, 2020 ONCA 218.

[66] Pardu J.A., for the Court [in Mendez], observed that because the Crown could not prove which role, if any, each of the appellants had played, both had to be acquitted unless the Crown could prove that the non-shooter aided or abetted the killing (para. 4).

[12]  As noted in Pickton, at para. 69, “phrases such as ‘concerted action’, ‘acted in concert’, ‘common design’, ‘participation in a common scheme’ and ‘joint participation’ are phrases which properly capture the entire gamut of principal liability, co-principal liability and liability as an aider or abettor.”

[13]  The majority agreed that the trial judge in Pickton should have charged the jury on aiding and abetting, but dismissed the appeal because the evidence of the accused’s guilt was overwhelmingly strong: Pickton, at para. 10.

[14]  Here, the trial judge’s instruction inviting the jury to consider whether the non-shooter was an “active participant” in the killing without relating the evidence to the elements of aiding and abetting in a balanced way had the potential to mislead the jury. It is by no means obvious that the non-shooter’s presence in the general area where the shooting occurred amounted to assistance or encouragement or that the non-shooter intended to provide assistance or encouragement to the shooter by his presence.

[70] In this case, it was the Crown who urged the jury to find the appellant guilty of murder on the basis that he had “moved along with the whole plan”.  The trial judge repeated this concept when she recited to the jury the position of the Crown that they should find the appellant guilty because he had worked “in concert” with the shooter:

[...] That Ricardo Whynder worked in concert with Devlin Glasgow to commit the planned and deliberate murder of Matthew Sudds.  Through text messages and telephone calls Ricardo Whynder set up the meeting at the Burger King parking lot, was present in the car as Mr. Sudds was yanked back in his seat and taken from the parking lot to Africville Road where he was shot to death and left in the overgrown ditch.  In order to escape liability he fled the province the following day and lied to both Darlene Sudds and the police about his involvement.  It is the Crown’s position that Ricardo Whynder should be found guilty of the offence that is before you. [Emphasis added]

[71] The Crown also advocated to the jury that to find the appellant guilty as a party they just needed to find he had helped the shooter in some way...

[72] In these circumstances, it was non-direction amounting to misdirection not to make it clear to the jury that if they had a doubt the appellant were the shooter, liability for murder could only flow from accessory liability as an aider or abettor.  This required clear and comprehensive instructions about the need for the Crown to prove beyond a reasonable doubt not just acts by the appellant which in fact helped or encouraged the shooter, but when he did them it was with knowledge of the shooter’s murderous intent and with the particular intention to facilitate or encourage the principal to commit the offence (R. v. Briscoe, supra at paras. 14 and 16-18; R. v. Johnson, supra, at paras. 80-81).

[77] [In R. v. Josipovic, supra.] Doherty J.A., for the Court, found substantial merit to these complaints.  With respect to the issue of jury instruction on liability as an aider, Doherty J.A. concluded that the trial judge should have separately described the elements of murder, particularly the requisite mens rea (para. 50) and related these to the specifics of the case before the jury:

[66]  I have canvassed the instructions on aiding to some extent in my analysis of the first ground of appeal. I have explained that in outlining the essential elements of the crime of murder, the trial judge should have separately described those elements as they applied to the shooter and to the helper. As articulated in R. v. Huard, 2013 ONCA 650, at para. 64:

Since the actus reus and mens rea of aiding and abetting are different from the corresponding elements of the principal offence, jury instructions in a case in which an accused is alleged to have participated in the commission of an offence as an aider or an abettor should not only explain the essential elements in aiding or abetting, but should also link those elements to the essential elements of the offence charged, so that the jury understands what the Crown must prove to establish an accused’s liability for the specific offence as an aider or an abettor.

[67]  Although the trial judge made reference to aiding in the course of discussing the elements of the offence, he never explained what the Crown had to prove to establish liability for murder as an aider. He did not relate the generic description of aiding to the specifics of this case, or the evidence that could assist the jury in determining whether either appellant was liable as an aider. [Emphasis added]

(a)              the accused did one or more acts that aided the principal to unlawfully cause Matthew Sudds’ death;

(b)            the accused did one or more of those acts for the purpose of aiding the principal to unlawfully cause Matthew Sudds’ death;

(c)              when he did those acts that aided the principal, he knew that the principal had the requisite intent for murder as found in s. 229(a) of the Criminal Code (means to cause Sudds’ death or cause him bodily harm that the principal knows is likely to cause death and is reckless whether death ensues or not);

(d)            when he did those acts that aided the principal, he did them for the purpose of aiding the principal to commit the murder of Matthew Sudds.

[85] At no time did the trial judge charge the jury on these requirements or that if they had a doubt about the knowledge component of accessory liability it could lead to a manslaughter conviction.

After-the-Fact Conduct

[88] The trial judge referred to the role of after-the-fact evidence fairly early in her charge as follows:

The next section of my instructions relates to post-offence conduct. Evidence about what a person said or did after an offence was committed may help you decide whether it was that person who committed the offence. It may help or it may not. What a person does or says after an offence was committed is a type of circumstantial evidence. Like any circumstantial evidence, it is for you to say what inference should be drawn from the evidence.... [Emphasis added]

[89] With respect, the jury needed to be properly instructed about what inferences were available to them. This direction, in these circumstances, was a non-direction that amounted to a serious misdirection. I will elaborate on why later.

[90] The trial judge then referred to the following as the after-the-fact evidence:

• The October 11 flight from Nova Scotia with Devlin Glasgow, with tickets purchased by a common third party;
• The October 12 phone calls with Mrs. Sudds where the appellant told her that Matthew was in trouble, there had been shootings in Dartmouth, and “I had to get him on a plane to get him out of the city”; he was at the airport dropping Matthew off, and she was not to worry. The appellant cancelled his phone on October 13, ending all contact with Mrs. Sudds;
• The rewards line call of March 9, 2017, where the appellant acknowledged being in the car during the homicide1 ; and,
• The appellant’s police statements of March 2017 in which he denied he knew either Matthew or Darlene Sudds, or that he had called the rewards line.

[92] When the trial judge dealt with the third element, the state of mind required for murder, she directed the jury to look at the appellant’s words and conduct before and after the unlawful act that caused death:

To determine Ricardo Whynder’s state of mind, what he meant to do, you should consider all the evidence. You should consider what he did or did not do, how he did or did not do it, and what he did or did not say. You should look at Ricardo Whynder’s words and conduct before and after the unlawful act that caused Matthew Sudds’s death. All these things and the circumstances in which they happened may shed light on Ricardo Whynder’s state of mind at the time. This may help you decide what he meant or didn’t mean to do.

[93] The trial judge then canvassed the circumstantial evidence she said the jury “might look at” or “might consider” on the issue of intent. This included the lies the appellant had told Mrs. Sudds, the police, and the rewards line call. The trial judge provided no guidance on how the appellant’s deceit and other conduct could assist them to make inferences about his state of mind.

[94] In pre-charge discussions, appellant’s trial counsel strenuously objected. He sought a “no probative value” instruction on the basis that evidence of flight and deceit could not legitimately assist the jury to determine his level of participation in the homicide.

[97] The “rule” is by no means black-and-white. The admissibility and use that a trier of fact can make of post-offence or after-the-fact conduct evidence is context and fact specific. The law on its use is complicated. I will canvass some of the principles before turning to R. v. Calnen.

[42]  A similar situation arose in United States v. Myers, 550 F.2d 1036 (5th Cir. 1977). The accused was wanted for two robberies; one was committed in Pennsylvania and the other in Florida. The reported decision concerns the latter. There was evidence that the accused fled when approached by FBI agents. Clark J. canvassed the law, adopted the view expressed in McCormick on Evidence (2nd ed. 1972), § 271, at p. 655, and concluded that the proper approach determines whether there is sufficient evidence in support of drawing four inferences:

(1)  from the accused’s behavior to flight,

(2)  from flight to consciousness of guilt,

(3)  from consciousness of guilt to consciousness of guilt concerning the offence in question,

(4)  from consciousness of guilt of the offence in question to actual guilt of the offence in question.

Clark J. held that the third inference could not be drawn. Since the accused knew that he was wanted for a robbery committed in Pennsylvania, the possibility existed that he fled solely out of consciousness of guilt with respect to it, rather than the Florida robbery. To be useful, flight must give rise to an inference of consciousness of guilt in regard to a specific offence.

[101] In R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, the Court disparaged the use of the term “consciousness of guilt”, even though that is precisely the usual reason for the probative value of the evidence.  Major J., again for the Court, explained:

[22]  It has been recognized, however, that when evidence of post-offence conduct is introduced to support an inference of consciousness of guilt it is highly ambiguous and susceptible to jury error. As this Court observed in Arcangioli, the danger exists that a jury may fail to take account of alternative explanations for the accused’s behaviour, and may mistakenly leap from such evidence to a conclusion of guilt. In particular, a jury might impute a guilty conscience to an accused who has fled or lied for an entirely innocent reason, such as panic, embarrassment or fear of false accusation. Alternatively, the jury might determine that the conduct of the accused arose from a feeling of guilt, but might fail to consider whether that guilt relates specifically to the crime at issue, rather than to some other culpable act. [Emphasis added]

[104] However, not all post-offence conduct evidence can legitimately support an inference about level of involvement such as differentiating between manslaughter, second degree murder and first degree murder (R. v. Charlette (1992), 1992 CanLII 13156 (MB CA), 83 Man.R. (2d) 187 (C.A.); Regina v. Wiltse et al. (1994), 1994 CanLII 822 (ON CA), 19 O.R. (3d) 379; R. v. Marinaro, 1996 CanLII 222 (SCC), [1996] 1 S.C.R. 462, rev’g (1994), 1994 CanLII 1470 (ON CA), 95 C.C.C. (3d) 74 (Ont. C.A.); R. v. Cromwell, 2016 NSCA 84; R. v. Hill, 2015 ONCA 616; R. v. Rodgerson, 2015 SCC 38; R. v. Robinson, 2017 ONCA 645).

[105] For example, in Rodgerson, the appellant, charged with first degree murder of a young woman, was convicted of second degree murder.  He claimed self-defence, lack of intent and provocation.  To counter those claims, the Crown relied on Mr. Rodgerson’s post-offence conduct of his efforts to conceal her body and his extensive efforts to clean the death scene.  The jury also heard evidence of the accused’s flight when the police showed up to search his home and his lies to the police.

[106] The trial judge instructed the jury that they could use all of the post-offence conduct as evidence of the appellant’s guilt.  The conviction was quashed by a majority decision of the Ontario Court of Appeal (2014 ONCA 366).

[107] Doherty J.A., for the majority, concluded it was wrong to tell the jury they could use the evidence of flight and deceit to infer intent.  Further, the general instruction on the use of the post-offence conduct to conceal the body and clean the homicide scene failed to provide adequate guidance to the jury on how that evidence might be viewed as relevant to the issue of intent.  A new trial was ordered.

[109] Moldaver J. wrote the unanimous reasons for judgment to dismiss the appeal and uphold the order for a new trial.  In the Supreme Court, the Crown conceded the trial judge had erred in his instructions to the jury that it could consider the appellant’s flight and lies to the police on the issue of intent (para. 17).  As to the post-offence conduct of concealment and clean-up, this evidence was relevant to the issue of the appellant’s self-defence claim and whether he had unlawfully killed the victim.

[112] With these principles in the background, I return to R. v. Calnen.

[113] The appellant told the police that his live-in girlfriend disappeared. The appellant had sent false messages from her cellphone to make it look like she had gone to the city. He called a third party to inquire about her whereabouts. It turned out she was dead. He had failed to call an ambulance at the time of her death.

[114] The appellant went to extraordinary efforts to dispose of her belongings and her body. He took her body to a remote location and burned it. He then moved it back to his property where he burned what remained and dumped the ashes into a lake. Eventually, he told the deceased’s mother and the police what he had done with the body, but insisted that her death had been accidental—she had fallen down the stairs. He panicked and, in a drug-induced state, tried to cover up her death.

[120] The majority judgment (Moldaver, Gascon and Rowe JJ.) did not disagree with Justice Martin’s reasoning and disposition of the issues about instructions for the use of the post-offence conduct evidence.  It is therefore her reasons that provide the necessary guidance.

[121] Martin J. was clear: there is no rigid rule that governs whether post-offence conduct evidence is probative of intent in order to distinguish between different levels of culpability; it is fact specific to the nature of the conduct and the issues raised at trial:

[119]  Contrary to certain suggestions made in the courts below, there is no legal impediment to using after-the-fact conduct evidence in determining the accused’s intent. The jurisprudence of this Court is clear: after-the-fact conduct evidence may be relevant to the issue of intent and may be used to distinguish between different levels of culpability (see White (1998), at para. 32; White (2011), at para. 42; Rodgerson, at para. 20). Specifically, this Court has said that “[w]hether or not a given instance of post-offence conduct has probative value with respect to the accused’s level of culpability depends entirely on the specific nature of the conduct, its relationship to the record as a whole, and the issues raised at trial”: White (2011), at para. 42. There is therefore “no per se rule declaring post-offence conduct irrelevant to the perpetrator’s state of mind”: R. v. Jackson, 2016 ONCA 736, 33 C.R. (7th) 130, at para. 20, per Doherty J.A. As there are also no automatic labels which make certain kinds of after-the-fact conduct always or never relevant to a particular issue, “we must consider all the circumstances of a case to determine whether the post-offence conduct is probative and, if so, what use the jury may properly make of it”: see R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 55.

[122] The post-offence conduct evidence put forward in Calnen as probative was not his extensive deceit or failure to call for help—it was his efforts to burn and dispose of the body. The divisive issue was whether his post-offence conduct to destroy the victim’s body was relevant to the issue of intent...

[123] In Calnen, the jury were asked to rely on the same chain of reasoning in issue in Rodgerson. The efforts by the respective accused were done to hide the extent and nature of the injuries such that, had they been available, they would support the inference that the person who inflicted them had the intent for murder. Martin J. explained:

[129] The inferences available in Rodgerson are virtually identical to the inferences proposed by the Crown in this case. The Crown argued that Mr. Calnen’s extraordinary efforts to destroy the body support the further inference that he was not simply acting to conceal evidence of a crime he committed, but also to hide the extent of that crime because the nature and extent of her injuries were such that they would support a further inference that the person who inflicted them had the intent for second degree murder. This flows from common sense inferences. First, that the nature of some wounds may make them relevant to intent on second degree murder: for example, a knife wound to the heart. And second, the more severe the injuries, and the more force required to inflict them, the stronger the inference that Mr. Calnen had the requisite intent for second degree murder.

[125] In this case, there was no evidence of destruction or concealment of the victim’s body.  Given the nature and circumstances of the homicide, there could be little doubt that whoever shot the deceased had the requisite murderous intent.  The issue for the jury was whether they were satisfied that the appellant was the shooter; if not, was he liable as a party to the murder as an aider or abettor.

[126] No one disputed that the evidence of the appellant’s flight to Toronto with Devlin Glasgow, the lies he told Mrs. Sudds, the cutting off of ties to his cell phone, the rewards line call, and his various police statements were not admissible.  They were.  But on what basis and for what purpose?

[113] In addition to being aware of the general principles, it is important for counsel and trial judges to specifically define the issue, purpose, and use for which such evidence is tendered and to articulate the reasonable and rational inferences which might be drawn from it. This often requires counsel and the court to expressly set out the chain of reasoning that supports the relevance and materiality of such evidence for its intended use. Evidence is to be used only for the particular purpose for which it was admitted. When evidence is admissible for one purpose, but not for another, the finder of fact, whether judge or jury, needs to be mindful of and respectful of its permissible and impermissible uses. In such cases, a specific instruction to a jury that certain evidence has a limited use or is of no probative value on a particular issue is required.

See also: R. v. Cromwell, 2016 NSCA 84 at para. 49.

The rewards line call of March 9, 2017

[130] It did not demonstrate conduct that would permit an inference that on March 9, he had acted in a manner which, based on human experience and logic, was consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person.

[132] In any event, it was not post-offence conduct evidence and was completely irrelevant to support an inference as to his state of mind or intent. It was misdirection to tell the jury they could use it for that purpose.

Lies to the police in March 2017

[133] The appellant was interviewed by the police on March 10 and 11, 2017. He lied when he told them he had not been the rewards line caller nor knew Matthew or Darlene Sudds.

[134] Lies and other acts of deceit can amount to post-offence conduct that may permit a trier of fact to infer an offender knows they are guilty of one or more of the culpable acts set out in the indictment. An accused’s lies or deceit may well be viewed as an attempt to deflect suspicion from themselves, even perhaps to blame others.

[135] However, in these circumstances, I fail to see how a trier of fact could infer intent or state of mind from superficial lies told to the police almost three years after the event. Particularly, when the appellant within hours admitted to Sgt. Walsh he had made the rewards line call and could provide to the police the shooter’s name.

[136] A no-probative value instruction on the issue of intent was needed. The trial judge did the opposite.

Lies to Mrs. Sudds

[138] Again, while this evidence was probative to permit an inference that the appellant knew he had been involved in blameworthy or culpable conduct and he tried to evade detection by comments that could lead to delays for the search for the deceased, it was irrelevant to the issue of intent.

Flight on October 11, 2013 with Devlin Glasgow

[141] Here, there was evidence that the appellant was living in Toronto in October 2013. I find it odd one could legitimately say he “fled” to Toronto by his return to where he was living as probative of his involvement in blameworthy or culpable conduct.

[144] The circumstances about the flight on October 11 included evidence that: a relative of Devlin Glasgow booked expensive airline tickets for both him and the appellant for October 11; the appellant’s girlfriend drove Glasgow and the appellant to the airport together; Glasgow and the appellant travelled on that flight in amiable companionship; and, they parted in Toronto with a handshake and hug.

[145] While the appellant suggested that the evidence at trial only established his presence at the time of the homicide, the circumstances of the October 11 flight, in light of all of the other evidence, made it more likely the appellant knew what the shooter had intended. There was no evidence of shock or dismay at what happened to his friend on Africville Road—only solidarity with the person the jury could infer was the shooter.

[146] In these circumstances, it was circumstantial evidence that could permit an inference the appellant was a party to first or second degree murder of the deceased.

[148] Just as in Rodgerson and Calnen, the evidence of the appellant’s lies and other deceitful acts were not probative of his intent and/or knowledge and hence, level of culpability. It was legal error to tell the jury otherwise.

[160] I would allow the appeal on both grounds and order a new trial on the charge of second degree murder.

R v Chen, 2020 BCCA 329

[November 16, 2020] Sexual Assault Myths & Stereotypes Used Against an Accused [Reasons by Madam Justice Dickson with Saunders and Fitch JJ.A. concurring]

AUTHOR’S NOTE: Most of the time, it is defence lawyers that fall afoul of the prohibition of the use of sexual assault myths and stereotypes and lead the court astray.  Here, the error came from instruction about how to consider the evidence of the accused woman charged with statutory sexual assault against a boy under the age of legal consent.  In her defence she alleged she was sexually assaulted by him.

Overview

[1] DICKSON J.A.: In November 2015, the appellant, Min Chen, was living with her young son in a transition house in Victoria. S.H., a 13-year-old boy, was living at the same transition house with his mother at the same time. According to S.H., on two occasions that month, he and Ms. Chen had sexual intercourse in her bedroom, both times initiated by Ms. Chen, both times with his willing participation. According to Ms. Chen, she and S.H. had sexual intercourse once, but S.H. was the aggressor and she did not consent.

Facts

[4] In November 2015, Ms. Chen was a 29-year-old woman. She was 5 feet tall and weighed approximately 100 pounds. As noted, S.H. was a 13-year-old boy. He was approximately 5’9” to 5’10” tall and weighed approximately 155–160 pounds.

[5] Ms. Chen and S.H.’s mother formed a friendly relationship during their stay at the transition house. The same was true, to some extent, of Ms. Chen and S.H. However, according to a staff member at the transition house, their relationship and interactions were inappropriately close, which she found concerning. For example, she testified, Ms. Chen and S.H. sometimes sat very near to one another, laughed a lot together, and spent time together in the kitchen. S.H. also asked regularly to use Ms. Chen’s laptop computer and, contrary to house rules, spent time using it in her room.

[7] Ms. Chen went on to testify that S.H. asked if he could continue using her computer in the bedroom. She said she agreed and he sat on the bed beside her sleeping son with the computer on his legs. For her part, she said, she laid down on the other bed and played with her phone for a while. Eventually, she said, she fell asleep.

[8] According to Ms. Chen, she awakened to find S.H. on top of her. She said she wanted to scream, but could not, and, when she tried to say “no”, she felt paralyzed and nothing came out. She testified that S.H. pulled up her shirt, kissed her body, and removed her shorts and panties, then briefly had intercourse with her, collapsed and apologized. She said she started to cry and S.H. told her not to tell anybody because she would go to jail, to which she replied “No, you raped me”. In response, she said, S.H. told her that it did not matter and he was the minor, at which point she told him she would kill herself. Thereafter, she said, S.H. got dressed, repeated that she should not to tell anyone what had happened and left the bedroom.

[9] Ms. Chen testified that this was the only time she and S.H. had any sexual contact. She said she spoke to S.H.’s mother about the incident after he left the house but she did not report it to police because she was frightened given that S.H. was a minor and she did not make “a big noise” when it happened. She also said that she did not try to avoid S.H. after the incident because she wanted to keep him happy and not “piss him off”. She testified further that her father sexually abused her throughout her childhood, that her mother did not believe her when she told her about the abuse, and that she did not report an abusive adult partner to police until he was in custody, but then recanted because she was scared.

[10] S.H.’s account of his sexual contact with Ms. Chen was markedly different. As to the first incident, he testified that she invited him to come to her bedroom and he accepted. According to S.H., as he began to leave, Ms. Chen told him to come over and sit next to her on the bed, which he did. Then, he testified, Ms. Chen took his hand, kissed him, removed his clothes and her own, got on top of him and started “going up and down”. He said he thought it was “kind of weird” but he “just went with it” and, when he finished, he told her to get off. After the intercourse ended, he said, he got dressed, talked with his friends on Ms. Chen’s computer and left the bedroom.

[11] S.H. went on to say that, a few days later, he and Ms. Chen had sexual intercourse again in her bedroom. He testified that the second incident was much like the first, except that, this time, he was on top of Ms. Chen. He also testified that Ms. Chen told him not to tell anyone and that, if he did, she would kill herself.

Jury Charge

[13] The judge explained to the jury that, regardless of whether he participated willingly, S.H. could not consent to sexual activity with Ms. Chen because he was 13 years old when it happened. As to Ms. Chen’s intention, she explained that the physical contact must be intentional “as opposed to accidental or done under force or compulsion”. She went on to say that intention is a state of mind and thus “you will have to use your common sense to infer from all of the evidence that you have heard, including anything Ms. Chen said and did, whether Ms. Chen intended to apply physical contact to [S.H.]”.

[14] After telling the jury to use its common sense to draw inferences from the evidence, the judge summarised the competing accounts of the first incident. Then, she said this:

[38] Alleged offences of this nature often occur when no one else is present other than the man, or boy in this case, and woman involved. Where there are conflicting stories, it may be difficult to determine the truth. In such a case, the supporting evidence or testimony from independent sources other than Ms. Chen or [S.H.] may assist you in deciding whether Ms. Chen willingly engaged in sexual relations with [S.H.]. Examples of the supporting evidence I will now outline to you are matters which you may taken into account in determining Ms. Chen’s credibility on the issue of intent. I do not pretend that these examples are exhaustive. ...

[40] ... On the other hand, a person being sexually assaulted may have good reason not to cry out. That person might reasonably think nobody is within hearing range, or might have reason to fear that an outcry would provoke a violent response from the attacker. But if you find as a fact that Ms. Chen made no outcry, even though the circumstances were such as it would be reasonable for her to do so, you may take that into account whether deciding – when deciding whether her evidence that she was sexually assaulted by S.H. is credible.

[41] Evidence of Ms. Chen’s condition and behaviour at or after the alleged assault are relevant as well. This may include evidence regarding what other persons saw of her physical or emotional condition at or after the time. As an example, evidence that the incident left her emotionally upset may also be regarded by you as supporting Ms. Chen’s testimony as to lack of consent. You may consider whether the physical and emotional condition of Ms. Chen, her conduct and her relationship after the fact with [S.H.] were consistent with her evidence that [S.H.] sexually assaulted her against her will. You will also want to take into consideration her background and life experiences, including the fact that she testified that she had been sexually abused by her father and how that may impact the way she behaved and acted.

[16] Under the heading “Other Evidence”, the judge dealt with the issue of myths and stereotypes in sexual assault cases:

Experience tells the courts that there is no one way in which a sexual assault happens. There is no one model or stereotype of a perpetrator of sexual assault or a victim of sexual assault. We know that victims of sexual assault may react in many different ways. The offence can take place in almost any circumstances between all kinds of different people who react in a variety of ways.

[186] With that caution in mind, I wish to address some evidence that you heard in this trial.

[187] There was evidence elicited about how Min Chen dressed at the transition house. Reima-Lee Sellars testified that when Ms. Chen stopped by the office on the evening of November 12, 2015, she was dressed in a way that Ms. Sellars thought was inappropriate. Ms. Sellars testified that she had never seen Ms. Chen dressed like that before and it caused her concern. That evidence was led to explain why she, Ms. Sellars, subsequently went to check on Ms. Chen.

[193] The reason for this instruction is clear: we do not want Ms. Chen or anyone to be convicted on stereotypes, innuendo or mistaken inferences. What one person may find to be inappropriate may be quite acceptable to another. How a person dresses or acts can mean many things. Accordingly drawing negative inferences from this kind of evidence is dangerous.

[194] To be entirely clear, you may not use evidence regarding the way Ms. Chen dressed or observations of her relationship with [S.H.] to infer that she was likely to have engaged in sexual activity with him.

On Appeal

[18] Counsel for Ms. Chen contends that the judge erred in law by instructing the jury that they could use prohibited behavioural stereotypes with respect to sexual assault victims in assessing her credibility. In particular, he says, in giving examples of evidence that may be relevant to their credibility assessment she suggested the jury consider whether Ms. Chen screamed or cried out and whether her emotional condition and conduct around S.H. after the fact were consistent with her claim of sexual assault. However, in his submission, those examples are based on discredited myths and stereotypes about the expected behaviour of sexual assault victims and the judge failed to warn the jury not to draw improper inferences on that basis. The judge is also said to have erred in law by directing the jury to look for corroborative evidence in support of Ms. Chen’s account when assessing her credibility. Finally, counsel submits, the jury reached unreasonable and inconsistent verdicts giving rise to a miscarriage of justice.

Did the judge invite the jury to use prohibited myths and behavioural stereotypes in assessing Ms. Chen’s credibility or shift the burden of proof?

[23] As Justice Benotto recently reminded in R. v. Cepic, 2019 ONCA 541, the use of a common-sense approach to assessing credibility in sexual assault cases is fraught with danger. This is because so-called “common sense” can mask reliance on stereotypical assumptions and pre-conceived views about how victims of sexual assault can be expected to behave: Cepic at paras. 13–14. Although the law has sought for decades to eradicate such myths and stereotypes, they are remarkably persistent, pervasive, and invidious. In consequence, when instructing juries on how to assess the credibility of a sexual assault complainant, a judge must provide clear limiting instructions to guard against the use of impermissible reasoning based on discredited myths and stereotypes and thus ensure a fair trial: R. v. A.L., 2020 BCCA 18 at para. 230.

[24] I will not review the many myths and stereotypes about victims of sexual assault and their expected behaviour that are subtly woven into the fabric of “common sense” in our society. For present purposes, it is sufficient to note they include the notion that sexual assault victims can reasonably be expected to resist or cry out during an attack, avoid their attacker thereafter and manifest signs of the trauma they endured for all to see and understand. However, it has long been recognized that, in reality, there is “no inviolable rule on how people who are the victims of trauma like a sexual assault will behave” and stereotypical assumptions to the contrary have been soundly rejected as a proper basis upon which to draw inferences: R. v. DD, 2000 SCC 43 at paras. 63–65. As Justices Paperny and Schultz put it in R. v. A.R.J.D., 2017 ABCA 237:

[44]      Stereotypicality is never a legitimate anchor on which to tie crucial credibility assessments in the context of sexual assaults. And, counter-stereotypicality must never translate to less credibility.

[26] In my view, considered functionally and read as a whole, the judge’s charge did not adequately caution the jury against the use of myths and behavioural stereotypes in assessing Ms. Chen’s credibility. As a result, the charge did not enable the jury to decide the case according to the law and the evidence, free from the risk of impermissible reasoning.

[27] The judge provided the jury with a generic caution regarding myths and stereotypes about sexual assault victims and their expected behaviour. She also provided a specific example of how stereotypical reasoning would operate in relation to Ms. Chen’s mode of dress. However, she did not alert the jury to the pervasive stereotype that sexual assault victims predictably cry out when attacked or instruct the jury not to infer that Ms. Chen’s testimony was less credible because a sexual assault victim in her circumstances would be expected to cry out. Rather, having invited the jury to use its common sense, she stated that, if it found it would be reasonable in the circumstances for Ms. Chen to cry out, the jury could take that into account in deciding whether her evidence of sexual assault was credible. In my view, at the least, a clear, specific and contemporaneous caution about impermissible reasoning based on behavioural stereotypes in this regard was required.

[28] Nor did the judge caution the jury about persistent myths and stereotypes related to the emotional and avoidant behaviour to be expected of victims when they have been sexual assaulted. Rather, she invited it to consider whether Ms. Chen’s emotional condition and conduct after the fact were consistent with her evidence of sexual assault. Although she specifically referred to Ms. Chen’s history of sexual abuse, she did not instruct the jury that evidence of a lack of avoidant behaviour by a complainant tells a trier of fact nothing about a sexual assault allegation: A.R.J.D. at para. 39. Again, in my view, a clear, specific and contemporaneous caution to avoid impermissible reasoning based on discredited stereotypes in this regard was required.

[29] Further, in modelling the portion of the charge related to Ms. Chen’s intention, qua accused, on a sample jury instruction designed to assist juries to assess the credibility of a sexual assault complainant, qua witness, the judge invited the jury to look for independent evidence that supported her testimony. In my view, doing so in this unusual context, in effect, subtly and erroneously shifted the burden of proof to the defence.

[30] As noted above, the judge instructed the jury that “supporting evidence or testimony from independent sources other than Ms. Chen or [S.H.] may assist you in deciding whether Ms. Chen willingly engaged in sexual relations with [S.H.].”...

[32] I would allow the appeal, set aside the conviction, and order a new trial on counts 1 and 2.