



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. McIntyre, 2012
    ONCA 356

DATE: 20120530

DOCKET: C52478

Goudge, Feldman and Armstrong JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Aimee McIntyre

Appellant

Catriona Verner, for the appellant

Amy Alyea and Emile Carrington, for the respondent

Heard: March 27, 2012

On appeal from the conviction entered on May 6, 2010 by
    Justice David Salmers of the Superior Court of Justice, sitting with a jury.

Goudge J.A.:

INTRODUCTION

[1]

On May 6, 2010, in the third day of deliberations by the jury, the
    appellant was convicted of first degree murder in relation to the death of Karl
    OReggio.

[2]

The appellant appeals her conviction.

[3]

Prior to the appellants trial, Jonathan Ebanks and Nathan Kelly both
    pleaded guilty to the second degree murder of OReggio.  Subsequently, the
    appellant was convicted of first degree murder on the basis that she aided or
    abetted Ebanks in killing the deceased.

[4]

The appellant drove Ebanks and Kelly to the deceaseds apartment. Once
    the men entered the apartment, a scuffle ensued during which Ebanks pulled out
    his knife and fatally stabbed the deceased.  The appellant then drove the two
    men away from the scene.

[5]

The Crowns theory was that the appellant aided or abetted Ebanks to
    commit a planned and deliberate murder.

[6]

A number of issues were raised in argument in this court.  It is
    necessary to deal with only three of them.  In brief outline, they are as
    follows:

(1)

First, in defining the elements of
    the murder that the appellant was alleged to have aided Ebanks to commit, the
    charge omitted the requirement of Ebanks subjective foresight of death.

(2)

Second, in the context of
    determining the appellants knowledge of Ebanks intention to murder the
    deceased, the charge failed to focus the jury on whether that intention existed
    prior to Ebanks entering the apartment or arose only during the scuffle.

(3)

Third, in addressing the post-offence
    conduct evidence, the charge gave the jury no help to determine which evidence
    could assist in determining the appellants level of culpability and which
    could not.

Taken together, in my view, the result is that the
    appellant did not receive a fair trial.  The conviction must therefore be set
    aside and a new trial ordered.

THE FACTS

[7]

Because there must be a new trial, I will limit my review of the
    evidence.

[8]

The appellant had been in a romantic relationship with the deceased
    until shortly before his death.  The relationship had deteriorated however, and
    shortly before the murder, the appellant became friendly with Kelly.  Indeed,
    he had begun staying with her regularly.  The appellants deteriorated
    relationship with the deceased was reflected in the acrimonious text messages
    exchanged between them in the days before his death.  However, the appellant
    was not the only one upset with the deceased.  Kelly was also upset with him
    because of the text messages that he kept sending to the appellant.

[9]

On July 14, 2007, the appellant, accompanied by Natasha Visscher, her
    15-year-old cousin, set out to drive Kelly to the deceaseds apartment.  The
    Crowns theory was that the appellant planned to have the deceased killed.  The
    defence theory was that the purpose was for Kelly to settle the beef he had
    with the deceased so he would stop texting the appellant.

[10]

En
    route they picked up Kellys friend Ebanks, whom Kelly had phoned to say he had
    this beef and wanted Ebanks to come along.  Ebanks had a large knife with an
    eight inch blade known as a Wolverine claw that he put on the car seat beside
    him, saying that he was going to poke the deceased.

[11]

On
    reaching the house where the deceased lived, the appellant parked her car and
    pointed the house out to the men.  According to Ebanks, soon after they entered
    the apartment, Kelly scuffled with the deceased, who reached for a kitchen
    knife.  At that point, Ebanks said he pulled out his own knife and stabbed the
    deceased six times.  The two men returned to the car, which the appellant had
    positioned to quickly depart the scene.  She drove them to her house where she
    helped them wash their clothes and dispose of the knife.

[12]

Neither
    the appellant nor Kelly gave evidence.  However, Ebanks and Visscher were
    called by the Crown.  Ebanks evidence had many inconsistencies, particularly
    about what if anything the appellant said to him on the drive over about using
    the knife.  Visscher gave evidence both about the drive over and what was said
    on the return trip, which left her with the impression that something had gone
    badly wrong in the apartment.

[13]

The
    appellants level of culpability for the murder of the deceased was the central
    issue at trial.  The Crowns theory was that the appellant was guilty as
    charged of first degree murder for aiding or abetting a planned and deliberate
    murder.  The theory of the defence was that the appellant was at most guilty of
    manslaughter.  The charge also left second degree murder with the jury.  The
    case was therefore legally complex, with an understanding of the distinction
    between the levels of culpability required for each offence being of
    fundamental importance.

ANALYSIS


First Issue: Ebanks subjective
    intention

[14]

The
    trial judge correctly told the jury that the only route to the conviction of
    the appellant for first degree murder was to find that she aided or abetted
    Ebanks to commit the planned and deliberate murder of the deceased.

[15]

This
    required that the jury be satisfied beyond a reasonable doubt (1) that the
    appellant knew that Ebanks intended to murder the deceased, (2) that she
    intended to, and did in fact aid or abet him in doing so, and (3) that the
    murder was to her knowledge, planned and deliberate.

[16]

The
    first of these steps required the jury to address two questions.  Was Ebanks
    intention sufficient for murder, and secondly, what was the appellants
    knowledge of that intention?  This issue focuses on the first of these two
    questions.

[17]

For
    the jury to find that Ebanks had the requisite intention to murder the
    deceased, they had to conclude that, when Ebanks stabbed the deceased, he
    intended to kill him, or meant to cause the deceased bodily harm
that Ebanks knew
was likely to kill the deceased and was
    reckless whether the deceased died or not.  This subjective intention is a
    constitutional requirement for murder: see
R. v. Martineau
, [1990] 2
    S.C.R. 633.

[18]

In
    my view, the charge fails to task the jury with this requirement.  In the
    critical section of his charge, the trial judge instructed the jury in detail
    about aiding or abetting a murder.  As part of this, the trial judge described that
    the Crown must prove that the appellant knew that Ebanks intended to murder the
    deceased.  He put Ebanks intention this way:

To prove second degree murder on either or both of the aiding
    or abetting modes of participation, the Crown must prove beyond a reasonable
    doubt that Ms. McIntyre actually knew that Jonathan Ebanks intended to kill
    Karl OReggio
or cause Karl OReggio bodily harm that
    would likely kill Karl OReggio
and not care whether or not Karl
    OReggio died.  [Emphasis added.]

[19]

This
    language was then immediately repeated twice more.  These were the only
    references to Ebanks intention necessary for the appellants conviction as an
    aider or abetter of murder.  It conveyed to the jury that Ebanks could be found
    to have the intention necessary for murder if he intended to cause bodily harm
    to the deceased that would likely kill him, whether or not Ebanks knew that
    this was likely.  In other words, this instruction permitted the jury to find
    that Ebanks murdered the deceased without having the subjective intention
    required by law.

[20]

The
    charge thus laid out a roadmap to convict the appellant of aiding or abetting
    Ebanks to murder the deceased that did not require the jury to find that Ebanks
    had the subjective intention required for murder.

[21]

It
    is true that at an earlier point in the charge the trial judge, almost in
    passing, correctly described the subjective intention required for a finding
    that Ebanks murdered the deceased.  However, that was not done in the context
    of the discussion of what was necessary to find the appellant guilty of aiding
    or abetting the murder which was the basis for the appellants conviction.

[22]

When
    it came to consider aiding or abetting, the direction concerning Ebanks
    intention would have erroneously directed the jury away from the evidence of
    Ebanks subjective intention in using his knife and what using it to poke the
    deceased could have meant.  Rather, the question the jury was invited to
    address was whether, objectively, poking the deceased with this knife would
    likely kill him.  This could well have focused the jury on the knife itself
    with its eight-inch Wolverine claw blade, (which they took to their jury room),
    rather than on Ebanks subjective intention.

[23]

This
    error in the aiding or abetting section of the charge was an error of law.  The
    trial judge told the jury quite properly that it was to take the law from him. 
    That included this error.  Moreover, the jury was given copies of the charge. 
    In this context, this error could well have had a serious impact on the jurys
    verdict: see
R. v. Poitras
(2002), 57 O.R. (3d) 538 (C.A.) at para.
    48.  Given the nature of the error, the lack of objection by counsel is of no
    moment: see
R. v. Austin
(2006), 214 C.C.C. (3d) 38 (Ont. C.A.).

[24]

In
    summary, there was an error of law in the charge that could have had a
    significant impact on the verdict.


Second Issue  The appellants
    knowledge of Ebanks intention

[25]

The
    trial judge correctly charged the jury that a necessary step on the path to convicting
    the appellant for aiding or abetting a planned and deliberate murder was that
    the appellant knew that Ebanks intention was to murder the deceased.

[26]

However,
    the trial judge offered the jury no further guidance on this issue, a vital one
    to determine the appellants level of culpability.  On the facts of this case,
    that presented two problems.

[27]

First,
    the appellants knowledge of Ebanks intention was dependent on when that
    intention was formed.  If his intention to kill the deceased was formed only
    after he entered the deceaseds apartment, she could not have known of it.  If,
    on the other hand, Ebanks intention was formed earlier, the appellant could
    have known of it.  Nowhere does the trial judge articulate this for the jury. 
    The charge does not tell the jury that a necessary (although not sufficient)
    precondition to deciding if the appellant knew of Ebanks intention, was to
    determine when it was formed, before or after he entered the deceaseds
    apartment.

[28]

The
    necessity to determine when Ebanks formed his intention might be said to be
    implicit in the instruction that conviction required a finding that the
    appellant knew of his intention.  However, the importance of failing to be
    explicit about when Ebanks formed his intention was greatly increased by the
    trial judges failure to give the jury any assistance concerning the evidence
    that could assist them in deciding that question.  In the context of this case,
    an adequate jury charge required more.

[29]

There
    can be no doubt that the assessment of the adequacy of jury instructions
    requires a functional approach.  In
R. v. Cooper,
[1993] 1 S.C.R. 146,
    at p. 163, Cory J. described the appellate task this way:

At the end of the day, the question must be whether an
    appellate court is satisfied that the jurors would adequately understand the
    issues involved, the law relating to the charge the accused is facing, and the evidence
    they should consider in resolving the issues.

[30]

The
    task of relating the evidence relevant to a particular issue, need not require
    lengthy repetition of large parts of the evidence.  Rather, the jury is
    assisted by identifying the issue, and indicating what parts of the evidence
    may support the respective positions of the parties on that issue.  In
R.
    v. MacKinnon
, [1999] 3 O.R. (3d) 378 (C.A.), at pp. 386-387, Doherty J.A.
    offered this description of the task:

I mean references to the evidence which are sufficient in the
    context of the case and the entirety of the charge to alert the jury to the
    particular parts of the evidence which are significant to particular issues and
    to the positions taken by the parties on those issues.

[31]

There
    was evidence to suggest that Ebanks intention to murder the deceased was
    formed before the appellant dropped Ebanks and Kelly off at the deceaseds
    apartment.  This included Ebanks display of his knife in the car on the drive
    over, the reference to poking the deceased with the knife, and the beef his
    friend Kelly had with the deceased.

[32]

There
    was also evidence to suggest that Ebanks intention only arose once he entered
    the apartment.  Ebanks testified to this effect.  It was only a short drive
    from where Ebanks joined them to the deceaseds apartment, with little
    opportunity for Ebanks to develop an intention to kill the deceased or share it
    with the appellant.  Visscher said she heard no discussion on the drive of any
    intention to kill the deceased or cause him serious bodily harm.

[33]

It
    is no answer to say that the trial judge included in the charge the summary of
    positions submitted by both parties where some of this evidence is touched on. 
    In their summaries, neither counsel was purporting to discharge the task
    required of the trial judge that I have described.  Nor could they relieve the
    trial judge of his obligation to perform this task: see
R. v. MacKinnon
,
supra
, at p. 387.

[34]

In
    summary, it was important to bring squarely to the jurys attention the
    question of when Ebanks intention was formed, and to assist the jury with
    those parts of the evidence that might help them with that issue.  Only if Ebanks
    intention was formed at a time when the appellant could have known of it could
    the question of whether she in fact knew of his intention be considered.  The
    appellants level of culpability, the central issue in the trial, turned on the
    answer to that question.

[35]

In
    my view, the failure of the charge to focus the jury on when Ebanks intention
    was formed, as an essential part of the reasoning process, and the failure to
    assist the jury with the evidence relevant to that issue was a non-direction
    amounting to an error of law in the circumstances of this case.


Third Issue  Post-offence conduct

[36]

The
    third issue raised by the appellant was the trial judges treatment of the
    evidence of the appellants post-offence conduct.

[37]

The
    Crown placed significant emphasis on this evidence as being important in
    determining the appellants level of culpability.

[38]

The
    post-offence evidence included: the appellant positioned her car for a quick
    getaway once the two men entered the deceaseds apartment and they then fled in
    her car; the appellant did nothing to assist the deceased after Ebanks said he
    might have killed him; the appellant helped Ebanks and Kelly to clean their
    clothes; the appellant helped to dispose of the knife; the appellant sent
    certain text messages afterwards to the deceased.

[39]

For
    several reasons I agree that the trial judge erred in his treatment of this
    evidence.

[40]

First,
    the charge would have left the jury confused.  In a pre-charge ruling, the
    trial judge agreed that the bulk of the post-offence conduct evidence could do
    no more than point to the appellants culpability in the deceaseds killing,
    not to the level of her culpability.  He specifically referred to the text
    messaging afterwards and the disposal of the knife as examples of evidence that
    could not assist in determining her level of culpability.  In the same ruling,
    he held that at least two pieces of post-offence conduct evidence could help
    the jury to determine the appellants level of culpability, namely readying the
    car for and then effecting a quick flight, and doing nothing to assist the
    deceased after hearing he might have been killed. While I have real doubt that
    even these two pieces of evidence speak at all to the appellants level of
    culpability, that was not contested in this court.

[41]

Consistent
    with his pre-charge ruling, the trial judge, in his charge to the jury,
    identified both the quick flight and the failure to assist the deceased in any
    way as evidence the jury could use to determine the appellants level of
    culpability.  He then told the jury that most of the remaining post-offence
    conduct evidence did no more than point to the appellants involvement in the
    deceaseds death, not her level of culpability.  He then listed specific items
    of post-offence conduct evidence that did not help to determine the appellants
    level of culpability.

[42]

However,
    he concluded this part of his charge by clearly instructing the jury that they
    could consider, in determining the appellants level of culpability, any post-offence
    conduct evidence that they found to reflect her consciousness of having done
    what she was charged with:

On the other hand, if you find that anything Ms. McIntyre did
    or said afterwards was because she was conscious of having done what is alleged
    against her, you may consider this evidence, together with all the other
    evidence, in reaching your verdict.

[43]

As
    a result, the jury would not have known whether it could or could not consider
    the post-offence conduct evidence beyond the two specified pieces of evidence
    in determining the appellants level of culpability, the central issue in the
    trial.

[44]

If,
    in the face of this confusion, the jury did consider the post-offence conduct
    evidence other than the quick flight and the failure to assist in addressing
    this central issue, it ought not to have done so.  Indeed in his ruling, the
    trial judge had essentially said so.  There is no doubt that the trial judge
    had a legal obligation to clearly direct them to that effect.  The jury had to
    be told that the remaining post-offence conduct evidence had no probative value
    on the central issue, namely the appellants level of culpability.  The
    evidence was simply not probative of whether the appellant knew she was aiding
    a planned and deliberate murder rather than a manslaughter.  It was equally
    consistent with both: see:
R. v. Wiltse
(1994), 19 O.R. (3d) 379 (C.A.),
    at p. 384; and
R. v. White
2011 SCC 13, [2011] 1 S.C.R. 433.

[45]

The
    best example of such evidence is the appellants help in disposing of the knife,
    which the trial judge had previously and correctly ruled was not probative of
    the appellants level of culpability.

[46]

The
    charge compounded the difficulty by repeating the Crowns position that
    disposal of the knife was probative of the appellants level of culpability. 
    The trial judge should not have repeated the Crowns position.  In fact he
    should have cautioned the jury that it could not use that evidence this way.

[47]

Finally,
    the part of the post-offence conduct evidence charge quoted above also exemplified
    the flaw described in
R. v. Hall
, 2010 ONCA 724, 263 C.C.C. (3d) 5
    (Ont. C.A.), at paras. 141-146.  It invited the jury to jump directly to the
    issue of guilt as a precondition to deciding the use they would make of the
    post-offence conduct evidence.  This is to reason backwards.

[48]

Taken
    together, these flaws in the charge on post-offence conduct amount to legal
    error.

[49]

This
    could not be said to be an overwhelming case for the Crown.  Given the three
    errors of law I have described, I would not apply the curative proviso.  Nor
    does the Crown request that we do so.  Rather, the result must be to set aside
    the appellants conviction and order a new trial.

Released: May 30, 2012 (S.T.G.)

S.T. Goudge. J.A.

I agree K. Feldman J.A.

I agree Robert P. Armstrong
    J.A.


