



C
OURT
    OF APPE
AL FOR ONTARIO

CITATION: R. v. Café, 2019 ONCA 775

DATE: 20191001

DOCKET: C61422

Lauwers,
    van Rensburg and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Loujack Café

Appellant

Kristin Bailey and Jessica Zita, for
    the appellant

Elise Nakelsky, for the respondent

Heard: April 25, 2019

On appeal from the conviction entered by
    Justice James Ramsay of the Superior Court of Justice, sitting with a jury, on
    August 24, 2015.

Trotter
    J.A.:

A.

introduction

[1]

Loujack Café was convicted of the first degree
    murder of George Washington Burnett, contrary to s. 235(1) of the
Criminal Code
, R.S.C. 1985, c. C-46. He
    appeals his conviction.

[2]

The appellant and Mr. Burnett were neighbours
    and acquaintances. One afternoon, the appellant let himself into Mr. Burnetts
    home and viciously attacked him with knives and a blunt object (possibly a rock
    or brick). The appellant disposed of his shoes and clothes in a dumpster. He
    subsequently sent text messages to friends in which he boasted about the
    killing. He wrote incriminatory rap lyrics and posted photographs of the crime
    scene on his Facebook page.

[3]

The appellants online activity caused the
    police to link him to Mr. Burnetts murder. The appellant eventually provided a
    full confession. He said that he killed Mr. Burnett in order to mock or insult
    God. In his trial testimony the appellant again admitted the killing, but this
    time blamed it on obedience to voices in his head.

[4]

The sole issue at trial was whether the murder
    was planned and deliberate. The appellant submits that the trial judge erred in
    his instructions on the elements of second degree and first degree murder. He
    further argues that the trial judge erred in his instructions on the
    appellants after-the-fact conduct. The following reasons explain why I would
    dismiss the appeal.

B.

factual overview

(1)

Introduction

[5]

To provide a proper framework for the discussion
    of the issues on appeal, it is necessary to provide further detail about some
    of the evidence adduced at trial.

[6]

Mr. Burnett lived in a house in Hamilton,
    Ontario. The appellant lived in a rooming house directly behind Mr. Burnetts
    home. Mr. Burnett was 82 years old. His health was in decline. He converted his
    dining room into a bedroom in order to avoid using the stairs. Mr. Burnett was
    a religious man who often sat on his porch and engaged passers-by in conversation.
    He and the appellant had conversations about religion. On Sunday, September 4,
    2011 Mr. Burnett went to church and then returned home. He was found dead in
    his house two days later.

[7]

Mr. Burnett suffered 46 knife wounds, three
    fractured ribs, as well as three blunt force injuries to his head that were
    consistent with being struck by a brick or a rock. A large knife was found near
    the fold of his neck. A second bloody knife was found on the kitchen counter
    just above the cutlery drawers. This knife was broken. There were bloody
    footprints on the kitchen floor and along the hallway to the front door, from
    which the perpetrator left the house.

[8]

When Mr. Burnetts body was discovered, the
    appellant was among the people watching outside. The police took the
    appellants name for follow-up. However, the appellant proved elusive. He did
    not cooperate with police efforts to follow up with him, even though an
    officer, Detective Easto of the Hamilton Police Service, left a business card
    for him at his residence. In late November of 2011, during an unrelated police
    investigation, another police officer came across one of the appellants
    Facebook pages. He had posted a photo of Det. Eastos business card with the
    caption: The coroners and homicide be asking me questions nowno witnesses no
    fingerprints no evidenceunsolved murder cases.

[9]

The police soon found the appellant. He agreed
    to an interview, which occurred on December 1, 2011. He denied involvement in
    the murder. He was released, but was arrested the following month, at which
    time he confessed. The appellants statements are discussed below.

(2)

The Appellants Conduct After the Offence

(a)

Facebook Posts and Rap Lyrics

[10]

After their initial interview with the appellant,
    the police discovered more incriminatory Facebook posts, including photographs
    and rap lyrics related to devils, demons, the demise of God, and the homicide.
    Among the photographs were images of the deceased, taken before the police had
    arrived on the scene. There was a photo of the soles of the appellants shoes,
    a photo of the appellant posing, with a smile, at the rear of Mr. Burnetts
    home (after the murder), and another of a glove over a figure (presumably Mr.
    Burnett) with the caption meet the Beast, the new God.

[11]

On January 27, 2012, the appellant was arrested.
    He had several papers in his pockets which contained handwritten rap lyrics.
    Some of the lyrics seemed to relate to the murder, including the line: Red,
    red, red rum, whys my hands covered in dead mans blood.

(b)

Text Messages

[12]

In the weeks after the murder of Mr. Burnett,
    the appellant sent text messages to friends in which he claimed responsibility
    for the murder and boasted about it. On September 15, 2011 he sent the
    following texts:

·

So how u feel seeing real life murder after the fact
    face pics nigga?

·

Second murder of the year belongs to me my nigga
    what you on lmao goodnight.

·

Second murder of the year belongs to me my nigga
    and i laugh cause we got 9 months in.

·

Shit was all over the news second m of the year
    9 mnths in lol and guess who got the only pics of the m scene.

·

Yeah search up george washington burnett if u
    need an m1 done holla at me fam  lol a joke i aint do that.

On September 16, 2011, the appellant
    sent the following text message:

·

Whent from a soldier to a killing g rest in
    peace George B he was a straight o g. [i.e., an old school gangster]

On September 26, 2011, the appellant
    sent the following text to another contact:

·

Zod tell me how to solve a murder scene no
    fingerprints no witnesses no evidence just a dead body with several holes in
    it? Ima predator and i pray on singularities. I Can show u how its done
    anytime.

(c)

Asking Others to Lie

[13]

On April 12, 2012 the appellant wrote (but did
    not send) a kite letter (i.e., a contraband letter between inmates) to his
    friend, Mwanza, asking him to lie to the appellants lawyer. In the letter, the
    appellant said that Mwanza was his alibi. He told Mwanza to say that they saw
    two Zoba mountalays (i.e., two stupid white people) run out of the back of
    the old mans crib and then gave their bricks to us then they made a right
    out of sight. Mwanza was also asked to say that the appellant went inside to
    look in on the old man, was in his home for 30 seconds, and then came out to
    report that Mr. Burnett was watching television.

[14]

While in custody, the appellant phoned his
    girlfriend, Isabelle Roy, and asked her to lie in court by saying that the
    beast was the appellants drug dealer. At trial the appellant testified that
    the beast was one of the voices that he heard.

(d)

Letter to the Trial Judge

[15]

In February 2014, over a year before the trial
    started, the appellant sent a letter to the trial judge. The appellant
    explained that, although he told police officers he heard voices, he in fact
    did not hear voices. He attributed his misstep to the Detectives 5 hours of
    mental abuse. At trial, the appellant testified that he heard voices; indeed,
    they commanded him to kill Mr. Burnett.

(3)

The Appellants Statements

[16]

The appellant gave his first statement on
    December 1, 2011. He denied any involvement in Mr. Burnetts killing. However,
    he said that Mr. Burnett was a religious man. The appellant suggested that the
    murder was committed by white supremacists.

[17]

On the day of his arrest, January 27, 2012, the
    appellant provided a second statement. It was a full confession. The appellant
    told the police that he heard voices every day. He started hearing voices after
    a head injury a few years earlier. The voices made fun of him, challenged him,
    and called him small and insufficient. One voice proclaimed itself to be God.

[18]

The appellant told the police: [Y]es, I did
    murder George Washington Burnett. Yeah, thats not a lie. Ill confess it to
    you. He killed Mr. Burnett out of anger towards God  because he [Mr.
    Burnett] said he was a man of God right, he was a church man. When he saw that
    Mr. Burnett had left his back door open, he took advantage of the situation to
    repay God.

[19]

The appellant said that he went to his own room
    and got dressed in certain clothes and he wore gloves from work. The
    appellant said that he took a knife and got two knives from Mr. Burnetts
    kitchen. The appellant then described how and where he stabbed Mr. Burnett;
    this description was largely consistent with the state in which Mr. Burnett was
    found. The appellant said that he took a photo of Mr. Burnett to mock God 
    and I told myself I was going  to do it in front of peoples faces.

[20]

The appellant explained that, in addition to
    taking his own knife, he had a secondary weapon  it was like a rock or
    something in a plastic bag. The appellant said that he stabbed Mr. Burnett in
    the neck and he got up. He then swung the bag with a rock in it and hit Mr.
    Burnett in the head. Because his knife broke, the appellant retrieved two
    knives from the kitchen and went back to continue the attack. He said, I
    knocked him back down on the bed  and completed the job.

[21]

As discussed below, the appellant focuses on
    certain aspects of this statement to suggest that, when he was preparing to go
    to Mr. Burnetts home, he did not plan to kill him.

[22]

For example, the appellant told the police: It
    was very quick. I made sure it was quick, cause I, I, I did it very  on the
    point. I didnt really  it was  I didnt go in there to assault him, I went
    in there with the mind to, you know, finish him. And thats the truth. And
    thats all I wanted to get off my chest you know.

[23]

Later in the interview, when the appellant was
    asked what he was thinking when he went into his own apartment, he said: Now I
    wanted to go take advantage of him  I wanted to hurt him. The appellant
    denied robbing Mr. Burnett. The officer queried the appellants intention in
    entering Mr. Burnetts house, asking, [J]ust to hurt him? The appellant confirmed,
    It was just to hurt him. Finally, when asked about how he felt after he had
    killed Mr. Burnett and taken photos of him, the appellant said, I laughed at
    God  I was like, you were talking shit and then I killed him.

[24]

The appellant recalled stepping in blood. He
    took photos of the soles of his shoes. He left through the front door because
    he knew that it would lock from the inside. The appellant told the police that
    he got rid of his gloves, shoes, and some of his clothing, as well as his
    cellphone. He placed them in a dumpster in a random area of town. The
    appellant posted photographs to his Facebook page because the voices were still
    bothering him and he was insulting God.

[25]

Many of the details in this statement had never
    been released to the public. The police had withheld certain aspects of their
    investigation from the media.

[26]

The appellant made further statements (on
    February 7, 2012; February 28, 2012; and January 18, 2013) claiming that he had
    falsely confessed. At trial, he disavowed these protestations of innocence.

(4)

The Appellants Testimony at Trial

[27]

The appellant testified and admitted that he
    killed Mr. Burnett. He knew Mr. Burnett to be a religious man. They had
    religious conversations in the past. He attributed his attack on Mr. Burnett to
    voices in his head. The appellant said that Mr. Burnett had left his door open.
    The appellant snuck inside and saw Mr. Burnett lying on his bed. The voices
    told him, Kill him or die now. During the attack, the voices continued and
    said: Stop fuckin around; kill him or, or die. The voices also instructed
    him to do other things, including: taking photographs of the deceased; closing
    the back door and leaving through the front door; disposing of his clothes and
    shoes in a dumpster; writing the kite letter to Mr. Mwanza; and taking a selfie
    with Det. Eastos business card and posting it online. The voices also told him
    that he was the chosen one, who was above the law, and that the voices were
    protecting him. In short, the appellant admitted to everything contained in his
    confession, except those aspects that pointed to planning and deliberation,
    such as bringing his own gloves, knife, and a rock or brick in a bag.

C.

the instructionS on liability for murder

(1)

Introduction

[28]

The appellant argues that the trial judges
    instructions on the definition of murder in s. 229(a)(ii), as well as planning
    and deliberation in s. 231(2), were flawed. In his factum, the appellant argued
    that the trial judges error in relation to s. 229(a)(ii) required a new trial.
    However, this position changed by the time of the oral hearing of the appeal.
    No longer was it alleged to be fatal. Instead, it was argued that the flawed
    explanation of s. 229(a)(ii) had a serious impact on the appellants liability
    for first degree murder, based on a theory of the case that was not relied upon
    by either party at trial.

(2)

The Theories at Trial and the New Theory on
    Appeal

[29]

At trial, defence counsel relied on the
    appellants testimony and downplayed his January 27, 2012 statement, which evidenced
    planning and deliberation. He submitted that the appellants version at trial
    pointed to a murder that was spontaneous, not planned and deliberate. The
    defence emphasized that the appellant was following voice commands when he
    killed Mr. Burnett; he was not attempting to mock God, as the appellant had
    said in his statement to police.

[30]

In its closing address, the Crown relied on the
    appellants January 27, 2012 statement in which he said that, having noticed
    Mr. Burnetts door was open, he went home to make certain preparations. The
    appellant then returned to Mr. Burnetts home to carry out his plan to take
    advantage of, finish, or hurt Mr. Burnett, in order to mock God. The Crown
    said, The elements of planning and deliberation are, in this case, pre-arming
    himself, suiting up back in his apartment, wearing gloves, and entering the
    house with the pre-existing intention to kill. This is all evidence of a simple
    plan.

[31]

Essentially, the dispute at trial came down to
    the following: if the appellant formed his plan to attack Mr. Burnett in his
    apartment before entering Mr. Burnetts home, he would be guilty of first
    degree murder; if the jury had a doubt about this part of the narrative, and
    concluded that the appellant formed an intention to hurt Mr. Burnett only after
    he entered his home, the appellant would be guilty of second degree murder.

[32]

For the first time on appeal, the appellant
    argues that some of the utterances from the appellants January 27, 2012
    statement (reproduced in paras. 22-23, above) suggest that, when he was in his
    room, the appellant may only have planned to hurt Mr. Burnett, not to kill him.
    Based on this new theory, the appellant contends that the trial judges
    instructions on s. 229(a)(ii) were flawed in a way that led to an erroneous guilty
    verdict on first degree murder. Moreover, the appellant now argues that his
    statement  I didnt go in there to assault him, I went in there with the mind
    to, you know, finish him  was ambiguous. The appellant submits that the jury
    could have understood the words go in there, not to mean entering Mr.
    Burnetts house, but as a reference to the appellants state of mind when he
    went into Mr. Burnetts kitchen to retrieve knives. The appellant submits that
    this brief plan was incapable of amounting to planning and deliberation. I
    would reject both arguments.

(3)

Instructions on Second Degree Murder

[33]

Section 229(a) of the
Criminal Code
defines murder as
    follows:

229.
Culpable
    homicide is murder

(a)
where the
    person who causes the death of a human being

(i)
means to
    cause his death, or

(ii)
means to
    cause him bodily harm that
he knows
is likely to cause his death, and is
    reckless whether death ensues or not. [Emphasis added.]

[34]

The trial judges instructions on the elements
    that must be proved for second degree murder were brief:

Now, Im going to talk about the elements of
    the offence. Mr. Café is charged with first degree murder. For you to find him
    guilty of murder, the Crown must prove beyond a reasonable doubt that: Mr. Café
    caused the death of George Burnett; that he caused Mr. Burnetts death
    unlawfully; and, that Mr. Café had the state of mind required for murder.

The requisite state of mind is either, intent
    to kill, or intent to cause serious bodily harm
that one knows
is likely
    to cause death, not caring whether death ensues or not. In addition, to be
    found guilty of first degree murder, the Crown must prove that the murder was
    planned and deliberate on Mr. Cafés part. [Emphasis added.]

[35]

Consistent with the competing theories of counsel,
    the trial judge addressed liability for second degree murder later in his
    instructions, when he said:

Mr. Café testified that he stabbed Mr. Burnett
    to death.
It is implicit in his evidence that he meant to kill him
and that
    there was no lawful justification for killing him. He said that he killed Mr.
    Burnett because the voices in his head told him to do so. He knew that it was
    against the law but he was answering to higher justice, a human justice.

He has therefore admitted to committing
    second degree murder. You may, then, move straight to the contentious issue.
    Has the Crown proven beyond a reasonable doubt that the murder was planned and
    deliberate
? [Emphasis added.]

The trial judge then instructed the
    jury on planning and deliberation, which is discussed below.

[36]

The appellant submits that, by virtue of the
    underlined portion of the instruction (in para. 34, above)  that one knows 
    the jury was not properly instructed on the requirement of subjective foresight
    of death in s. 229(a)(ii) of the
Criminal Code
. The appellant submits that the phrase that one knows is likely to
    cause death could have left the jury with the impression that guilt for second
    degree murder is based on an objective standard, rather than the actual state
    of mind of the appellant. I disagree.

[37]

The trial judges instructions on second degree
    murder were not erroneous. It must be clear to the jury that to convict under s.
    229(a)(ii), the accused must intend to cause serious bodily harm which he or
    she
subjectively knows
is likely to cause death: see
R. v. Nygaard
, [1989] 2 S.C.R. 1074, at
    pp. 1087-88;
R. v. Cooper
, [1993] 1 S.C.R. 146, at pp. 155-56.

[38]

The trial judges phrase  that one knows is
    likely to cause death  adequately conveyed this subjective standard. One can
    find examples of courts referring to the mental element in s. 229(a)(ii) in
    similar language: see, e.g.,
Nygaard
, at p. 1083;
R. v. Boyd
(1999), 118 O.A.C. 85, at para. 16.

[39]

It would have been preferable for the trial
    judge to instruct the jury that the requisite state of mind is either the
    intent to kill, or the intent to cause serious bodily harm that 
he [or Mr.
    Café]
 knew was likely to cause death. This is the recommended approach in
    David Watt,
Watts Manual of Criminal Jury
    Instructions
, 2nd ed. (Toronto: Carswell, 2015),
    at p. 657. However, the trial judges use of language in this case was not
    problematic.

[40]

The appellant relies heavily on this courts
    decision in
R. v. McIntyre
, 2012 ONCA 356, 291 O.A.C. 359. McIntyre was found guilty of first
    degree murder on the basis that she was an aider or abettor in a murder
    committed by Jonathan Ebanks. In his instructions on party liability, the trial
    judge instructed the jury as follows:

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
by
Goudge
J.A.]

[41]

The appellant submits that the same error was
    made in this case. It was not. In
McIntyre
, the trial judge failed to provide any link between the likelihood
    of death and Ebankss state of mind. It would have been open to the jury to
    conclude that Ms. McIntyre was guilty based on her knowledge of Ebankss
    intention to cause serious bodily harm, even if Ebanks did not know the harm
    was likely to be fatal: at para. 19. The same error was identified in
R. v. Zoldi
, 2018 ONCA 384, 360 C.C.C.
    (3d) 476, at paras. 26-29, 39-40 (also involving party liability).

[42]

Unlike
McIntyre
and
Zoldi
,
    the jury in this case was not required to consider the relative states of mind
    of a putative principal and an aider or abettor, a scenario that risks
    overlooking the compounded subjective elements in s. 229(a)(ii).

[43]

The circumstances of this case made the
    instruction straightforward. Mr. Burnett was killed by one person, acting
    alone. The identity of the killer was beyond dispute. The trial judges words 
    The requisite state of mind is either, intent to kill, or intent to cause
    serious bodily harm that one knows is likely to cause death  could only have
    been interpreted as referring to the appellants state of mind, both in terms
    of the intent to kill or cause serious bodily harm, as well as knowledge that
    the serious bodily harm was likely to cause death. Thus the jury was clearly
    instructed that liability for second degree murder is subjective.

[44]

Second, even if the trial judges instruction
    had been erroneous, s. 229(a)(ii) was not realistically in play. The evidence
    at trial established beyond all doubt that the appellant intended to kill Mr.
    Burnett. All counsel and the trial judge proceeded on the basis that the
    killing was intentional and that, if believed, the appellants January 27, 2012
    statement pointed to a plan to kill; his evidence at trial suggested a killing
    that was spontaneous and inspired by voice commands  but intentional
    nonetheless. In his closing address, defence counsel stated that the intent to
    kill is clearly evident and proven. He repeatedly acknowledged this point. And
    although he complained that the trial judges charge was rapid, defence
    counsel did not object to the trial judges instructions on second degree
    murder. This was undoubtedly due to the fact that the requisite intent for
    second degree murder was satisfied under s. 229(a)(i), and s. 229(a)(ii) was
    not at issue.

(4)

The Instructions on Planning and Deliberation

[45]

I am not persuaded that the trial judge erred in
    his instructions on planning and deliberation. His instructions were properly
    tailored to the live issues at trial, as framed by the positions of the Crown
    and the defence.

[46]

The trial judge explained first degree murder in
    the following passage:

Murder is first degree murder if it is planned
    and deliberate. Planning and deliberation are two distinct things and the Crown
    has to prove both.

A plan is a calculated scheme or design that
    has been carefully thought out and the nature and consequences of which have
    been considered and weighed. It does not need to be complicated. It may be a
    very simple one, and the simpler it is, perhaps the easier it is to formulate.

The important element as far as time is
    concerned, is the time involved in developing a plan. Once youve developed a
    plan you could execute it immediately or you could wait some time before doing
    so. Deliberate means considered, not impulsive, slow in deciding and cautious.
    It implies that the accused must take time to weigh the advantages and
    disadvantages [of] his intended action.

[47]

The trial judge referred to planning and
    deliberation later in his instructions. He said:

Mr. Café is guilty of first degree murder only
    if the murder was planned and deliberate. If you have a reasonable doubt on
    this question, then Mr. Café is only guilty of second degree murder. The
    evidence that relates specifically to planning and deliberation may be
    summarized as follows, although it is for you to say what evidence is
    important.

[48]

The trial judge reviewed the appellants
    evidence in which he spoke of voices commanding him to kill Mr. Burnett. He
    provided the jury with the
W.(D.)
instruction at this juncture:
R. v.
    W.(D.)
, [1991] 1 S.C.R. 742.

[49]

The trial judge then reviewed the appellants
    January 27, 2012 statement, concluding with the following: Mr. Café also said,
    I didnt go in there to assault him, I went in there with the mind, you know,
    to finish him. That is direct evidence of planning and deliberation. To what
    extent you act on it, is up to you.

[50]

Defence counsel objected to this passage,
    arguing that it was taken out of context, omitting other statements that were
    not necessarily consistent with planning and deliberation. The trial judge
    re-instructed the jury and reminded them to consider all of the things said by
    the appellant on January 27, 2012, including: I wanted to go take advantage of
    him; I wanted to hurt him  because he was a man of God, and God is, uh, has
    been causin me trouble.

[51]

Defence counsels request that the
    utterance I went in there to finish him be placed in its proper context was
    appropriate, and the trial judge was right to provide further instructions.
    However, it was not incumbent upon the trial judge to go further and instruct
    the jury that it was precluded from finding the appellant guilty of first
    degree murder on the basis of the finish him utterance alone. It was for the
    jury to draw inferences from the evidence as a whole: see
R. v. McGregor
, 2019 ONCA 307,
145 O.R. (3d) 641,
at
    para. 100. It was not the trial judges role to foreclose lines of reasoning
    the appellant found unfavourable to his position. Moreover, the jury would not
    have thought that it could convict the appellant of first degree murder based
    on a plan to kill formed at the time the appellant fetched knives from the
    kitchen, moments before the attack was completed. As noted in para. 30 above,
    the Crowns theory of first degree murder rested on a plan to kill Mr. Burnett
    that was conceived before the appellant entered his house. This was also the
    understanding of the defence and the trial judge.

[52]

As for the other
    new argument raised on appeal, there is no merit in the appellants submission
    that he may have been convicted of first degree murder based on a plan to
    merely hurt Mr. Burnett. As discussed above, it was common ground at trial that
    the January 27, 2012 statement pointed to an intent to
kill
. Defence
    counsel submitted that the decision to kill was spontaneous because it had just
    been commanded by the voices. Liability for first degree murder predicated on a
    s. 229(a)(ii) killing was not a live issue. It is clear that the appellant was
    found guilty of first degree murder because the jury was satisfied beyond a
    reasonable doubt that the appellant went into Mr. Burnetts house with the
    intention of killing him. Had the trial judge also outlined a route to first
    degree murder based on s. 229(a)(ii), it would have had the effect of
    expanding, not narrowing, the appellants liability exposure for first degree
    murder.

[53]

I would dismiss
    this ground of appeal.

D.

after-the-fact
    Conduct

(1)

Introduction

[54]

As set out above, the Crown relied heavily on
    the appellants conduct after he killed Mr. Burnett, including his text
    messages and internet activity, which contained his rap lyrics. The appellant
    argues that the trial judge erred in two respects in dealing with this body of
    evidence. First, he submits that the judge erred in ruling that some items of
    after-the-fact conduct were relevant to planning and deliberation. Second, he argues
    that the trial judge failed to provide the jury with adequate assistance on how
    to deal with this body of evidence. I would reject both arguments.

(2)

Admissibility

[55]

The admissibility of after-the-fact conduct
    evidence, and the use to be made of it by the trier of fact, depends on the
    nature of the evidence, the issues in the case, and the positions of the
    parties. Sometimes, this type of evidence may be probative of a persons
    participation in a crime, but of no value in determining the that persons
    level of culpability. In other cases, as a matter of common sense and human
    experience, the evidence will be capable of supporting an inference that an
    accused had a particular state of mind:
R. v.
    MacKinnon
(1999),
43 O.R. (3d) 378 (C.A.)
, at pp. 383-84;
R. v. White
,
    2011 SCC 13, [2011] 1 S.C.R. 433, at para. 42; and
R.
    v. S.B.1
, 2018 ONCA 807,
143 O.R. (3d) 81,
at paras. 68-71. This court
    recently confirmed that evidence of after-the-fact conduct
may assist a jury in distinguishing between different levels of
    culpability, including second degree and first degree murder:
McGregor
, at para. 102;
R. v. Adan
, 2019 ONCA 709, at para. 69,
    citing
R. v. Calnen
,
    2019 SCC 6, 374 C.C.C. (3d) 259, at para. 119,
per
Martin J. (dissenting, but not on this point);
R. v. Rodgerson
, 2015 SCC 38, [2015] 2
    S.C.R. 760, at para. 20; and
R. v. Jackson
, 2016 ONCA 736, 33 C.R. (7th) 130, at para. 20.

[56]

In
MacKinnon
, at para. 15, Doherty J.A. wrote that the after-the-fact conduct
    evidence adduced in that case, in the context of the evidence viewed in its
    entirety, supported the inference that the appellants had done exactly what
    they had planned to do  commit a robbery and shoot Mr. Chow. The same line of
    reasoning was utilized in
R. v. Aravena
, 2015 ONCA 250, 323 C.C.C. (3d) 54, at paras. 129-30, leave to
appeal refused,
[2015]
    S.C.C.A. No. 497
. In
both cases, evidence of
    after-the-fact conduct was left to the jury to consider on the issue of whether
    the murders were planned and deliberate. In this case, the Crown relied on some
    aspects of the appellants after-the-fact conduct for the same purpose.

[57]

Before counsel delivered their closing
    addresses, the trial judge ruled that the following items of evidence were only
    probative of whether the appellant committed the offence: the kite letter; the
    appellants disposal of his clothing and the rock (if there was one); and his
    discussion with Ms. Roy about the beast. However, the trial judge held that
    the photographs that the appellant posted on his Facebook page, as well as his
    texts about the murder, some of which purported to mock God, were relevant to
    planning and deliberation. As the trial judge stated:

As in
Aravena
, they could show that the
    accused did what he intended to do. They could show that he was telling the
    truth when he told the police that his motive was to mock or insult God, as
    opposed to obeying God, which could be relevant on the question of whether he
    chose Mr. Burnett for a particular purpose ahead of time and therefore planned
    and deliberated on his murder. It is only relevant on that basis, and I think
    the jury will also have to be told that carefully, that thats the only way
    they can use it.

[58]

I see no error in the trial judges analysis. It
    was tailored to the manner in which the evidence unfolded at trial,
    particularly how the appellants testimony differed from his January 27, 2012
    statement to the police. The posts and text messages, in which the appellant
    seemed pleased with himself and bragged about the killing, were capable of
    being evidence of motive. It was open to the jury to conclude that the evidence
    was more consistent with the appellants statement (i.e., the killing was to
    insult God) than his trial testimony (i.e., the appellant was obeying voice
    commands). The evidence was consistent with someone who had achieved the goal
    to which he had aspired by singling out Mr. Burnett for the purpose of mocking
    God. As a matter of logic and common sense, the appellants conduct was
    relevant to whether the murder was planned and deliberate:
Aravena
, at paras. 129-30.

[59]

Relying on
Aravena
and
MacKinnon
, the appellant argues that his after-the-fact conduct was not
    sufficiently proximate in time to Mr. Burnetts murder to have any probative
    value. I disagree. Although both cases involved conduct that occurred in the
    immediate aftermath of the offences,
Aravena
and
MacKinnon
do not limit admissibility to these circumstances. This court
    recently acknowledged in
McGregor
, at para. 107, that after-the-fact conduct is often removed
    temporally from the event to which it is said to relate. The probative value
    of the conduct derives from the logical inferences that may be drawn when
    situated in the context of a pre-existing motive and post-conduct pleasure in
    having accomplished the premeditated killing.

[60]

In any event, some of the appellants conduct
    did take place in the immediate aftermath. The appellant took photographs of
    Mr. Burnetts body before he left the scene. He also took photographs of the
    soles of his shoes with which he tracked Mr. Burnetts blood through the house.
    As the appellant said in his confession on January 27, 2012, he did it to mock
    God and do it in front of peoples faces.

(3)

Instructions to the Jury

[61]

The appellant argues that the trial judges
    instructions on the after-the-fact conduct evidence were deficient. They failed
    to explain to the jury the specific and limited use of the various items of
    evidence that fell into this category. Specifically, the appellant submits that
    the trial judge should have given a no probative value instruction in relation
    to first degree murder. More generally, the appellant submits that the trial
    judge failed to focus the jury on the proper and limited use of this evidence,
    nor did he caution the jury to look for alternative explanations for the
    appellants conduct after Mr. Burnett was killed.

[62]

In
McGregor
, this court confirmed that in a jury trial, the trial judge must
    explain the permitted and prohibited uses of after-the-fact evidence. Watt J.A.
    observed, at para. 106, that jury instructions concerning the limited use of
    evidence 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
    (emphasis in original). With after-the-fact conduct evidence, the jury must be
    told to take into account alternative explanations for the conduct to avoid
    mistaken or premature inferences of guilt:
McGregor
, at para. 108. In this case, the trial judges instructions
    provided the jury with sufficient guidance to properly deal with this evidence.

[63]

In terms of planning and deliberation, the trial
    judge was right not to provide a no probative value instruction for the items
    of evidence he ruled were relevant to this issue. With respect to the other
    items of evidence, that were not relevant to the appellants level of
    culpability, the trial judge properly restricted the use of this evidence in
    the following passage:

There are three items in this category that
    might have helped you on the issue of whether Mr. Café committed the crime, but
    will not help you on the issue of planning and deliberation, and you may not
    use them on the issue of planning and deliberation
.
    There are the kite that he composed for Mwanza, getting rid of his clothes,
    gloves and shoes and rock, if there was one, and telling Isabelle Roy to say
    that Beast was a drug dealer, not the creature from Revelation.

As things turn out, these items will not be
    important to your deliberations except that they could be considered by you,
    not as items of evidence, but only in connection with your assessment of the
    reliability of Mr. Café as a witness.
As evidence, they could, at most,
    suggest that Mr. Café is the author of a killing, not that it was planned and
    deliberate
. [Emphasis added.]

[64]

Although his instructions were brief, the trial
    judge properly instructed the jury to consider alternative explanations for the
    appellants after-the-fact conduct. The trial judge told the jury:

What a person does after a crime is committed
    may help you decide whether it is he who committed it. The conduct may suggest
    that the accused committed the crime, or it may be conduct of an innocent
    person who simply wants avoid involvement in a police investigation, or
    embarrassment for him, or others.

[65]

The trial judge also reminded the jury of the
    appellants explanations for some of his text messages, as they related to his
    internal struggle with the voices. The trial judge said: Sometimes they wanted
    him to incriminate himself. Sometimes he rebelled against that. If you reject
    Mr. Cafés explanation, it would be open to you to find that it was boasting. The
    trial judge underscored the fact that the evidence was subject to different
    interpretations when he said, Again, whether you find it helpful or not, and
    to what extent, is up to you, and, again, this is the only way you can use this
    evidence.

[66]

The last sentence in the previous paragraph was
    a reference to the trial judges earlier caution not to use the after-the-fact
    evidence as bad character evidence. This was accompanied by a caution about the
    rap lyrics posted online by the appellant. The trial judge told the jury:

I stress the following instruction of law.
    Many of the posts are offensive. Those of you whose children are too young, or
    too old for you to be familiar with rap lyrics, may even be shocked.
You
    must put any such feelings aside when you consider this evidence. Again, you
    must not use any of feelings or conclusions about Mr. Cafés character in view
    of these posts as evidence. You must not reason that someone who would make
    these posts is the sort of person who would commit the offence charged. That
    sort of reasoning is absolutely prohibited.
It is not evidence. You must
    decide the case on the evidence. [Emphasis added.]

[67]

In conclusion, the trial judge identified the
    after-the-fact evidence to which the instruction applied, instructed the jury
    on the permitted and prohibited uses of various items of this
evidence, suggested that the jury consider
    alternative explanations, and cautioned against bad character or propensity
    reasoning.
Taking a functional approach to the review
    of the trial judges instructions, I am satisfied that they were adequate:
Adan
, at paras. 60-61;
R. v. Jacquard
, [1997] 1 S.C.R. 314, at
    para. 62. My conclusion is bolstered by the fact that trial counsels
    post-charge objections focused more on the admissibility of the evidence than
    the trial judges instructions. While a failure to make a specific objection is
    not decisive, in this case, it is a factor I would consider in concluding that
    the jury was properly instructed on the use of this body of evidence:
Adan
, at para. 63.

[68]

I would dismiss this ground of appeal.

E.

ineffective assistance of counsel?

[69]

Before concluding these reasons, it is necessary
    to address a theme that was evident throughout the trial: the appellants
    mental state. In his January 27, 2012 statement, the appellant referred to
    hearing voices, just as he did during his evidence at trial. The appellant
    testified that he had suffered a head injury and heard voices ever since.
    However, no medical evidence was adduced at trial.

[70]

After the jury had returned its verdict, the
    trial judge thanked the jurors for their service. The trial judge then asked
    counsel: Is there any reason why I should not discharge the jury at this
    point? When both counsel said no, the jury was discharged.

[71]

As the trial judge was about to turn to the
    issue of sentence, defence counsel requested a hearing to determine whether, at
    the time he killed Mr. Burnett, the appellant was not criminally responsible on
    account of mental disorder (NCRMD), under s. 16 of the
Criminal Code
. The trial judge advised
    defence counsel that, given that the appellant was tried by judge and jury,
    only the jury could make the determination under s. 16. Defence counsel was of
    the view that the trial judge could decide the issue. The trial judge disagreed
    and imposed the mandatory life sentence for first degree murder: ss. 235(1) and
    745(a).

[72]

The trial judge was correct. When the jury was
    discharged, jurisdiction to determine whether the appellant was NCRMD did not
    pass from the jury to the trial judge. In these circumstances, a trial judge has
    no jurisdiction to interfere with the jurys verdict and the case must proceed
    to sentence: see
R. v. Head
, [1986] 2 S.C.R. 684,
per
Lamer J. (concurring in the result), at p. 698. Any remedy that an
    accused person may have is on appeal: Joan Barrett and Riun Shandler,
Mental Disorder in Canadian Criminal Law
(Toronto: Thomson Reuters Canada Ltd., 2006, 2017) (loose-leaf
    updated 2018, release 4), at pp. 4-44.3 to 4-44.7.

[73]

The issue of NCRMD was raised in the Notice of
    Appeal as an alleged error of the trial judge, but it was not addressed in the
    appellants factum. At the outset of the oral hearing, concerned about the
    possibility of a miscarriage of justice, members of the panel inquired into what
    happened at the end of the trial: see
R. v.
    Pietrangelo
, 2008 ONCA 449, 233 C.C.C. (3d) 338,
    at para. 78. Counsel for the appellant was asked about the effectiveness of the
    assistance provided to the appellant by defence counsel at trial. Experienced
    counsel for the appellant advised that an ineffective assistance of counsel
    claim would not be made, largely because, even if the missed opportunity to
    pursue the s. 16 issue at trial was due to a lack of competence, it was highly
    unlikely that evidence would have been available to substantiate the NCRMD
    claim. In other words, if there was a misstep in professional judgment, it was
    inconsequential. Satisfied with this explanation, the panel did not pursue the
    issue further.

F.

conclusion

[74]

I would dismiss the appeal.

Released: GTT OCT 01 2019

Gary Trotter J.A.

I agree. P. Lauwers
    J.A.

I agree. K. van Rensburg
    J.A.


