



WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order prohibiting disclosure of a witness identity
    has been made in this proceeding pursuant to s. 486.31 of the
Criminal Code
and shall continue. This section of the
Criminal Code
provides that:

486.31
    (1) In any proceedings against an accused, the judge or justice may, on
    application of the prosecutor in respect of a witness, or on application of a
    witness, make an order directing that any information that could identify the
    witness not be disclosed in the course of the proceedings if the judge or justice
    is of the opinion that the order is in the interest of the proper
    administration of justice.

(2)
    The judge or justice may hold a hearing to determine whether the order should
    be made, and the hearing may be in private.

(3) In determining whether to make the order, the judge or justice
    shall consider


(a) the right to a fair and public hearing;


(b) the nature of the offence;


(c) whether the witness needs the order for
    their security or to protect them from intimidation or retaliation;


(d) whether the order is needed to protect the
    security of anyone known to the witness;


(e) whether the order is needed to protect the
    identity of a peace officer who has acted, is acting or will be acting in an
    undercover capacity, or of a person who has acted, is acting or will be acting
    covertly under the direction of a peace officer;


(e.1) whether the order is needed to protect the
    witness's identity if they have had, have or will have responsibilities
    relating to national security or intelligence;


(f) society's interest in encouraging the
    reporting of offences and the participation of victims and witnesses in the
    criminal justice process;


(g) the importance of the witness' testimony to
    the case;


(h) whether effective alternatives to the making
    of the proposed order are available in the circumstances;


(i) the salutary and deleterious effects of the
    proposed order; and


(j) any other factor that the judge or justice
    considers relevant.

(4) No adverse inference may be drawn from
    the fact that an order is, or is not, made under this section. S.C. 2015, c.
    20, s. 38(3).




COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Morin, 2021 ONCA 307

DATE: 20210511

DOCKET: C65968

Hourigan, Zarnett and Coroza
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Carson Anthony Morin

Appellant

Howard L. Krongold, for the appellant

Elise Nakelsky, for the respondent

Heard: March 29, 2021, by videoconference

On appeal from the conviction entered by
    Justice Julianne A. Parfett of the Superior Court of Justice, sitting with a
    jury, on May 12, 2017.

Hourigan J.A.:

A.

Introduction

[1]

In his appeal from his conviction for
    first-degree murder, the appellant submits that the trial judge erred in her
    jury instructions on planning and deliberation and after-the-fact conduct. The
    appellant asks this court to quash his conviction for first-degree murder and
    substitute a conviction for second-degree murder. Alternatively, he seeks a new
    trial.

[2]

These reasons explain why I would dismiss the
    appeal. In summary, a fair review of the trial judges jury instructions
    reveals no error. The trial judge correctly instructed the jury on both issues,
    including in her answers to the jurys questions. The alleged error regarding
    planning and deliberation is based on a theory of culpability that was never
    put to the jury and is directly contrary to the position advanced by the
    defence at trial. Regarding the after-the-fact conduct, the instruction was
    legally sound and appropriate in the circumstances. Accordingly, I would
    dismiss the appeal.

B.

Facts

[3]

The appellant met Alyson Tippins in mid-April
    2013. She was a small-time drug dealer, looking for a place to live. The
    appellant lived alone in a rented condominium and needed money, so he proposed
    a business arrangement. Ms. Tippins would move in with him and work as an
    exotic dancer. She testified that the appellant told her he could get her a job
    at a local strip club and help her with selling marijuana. In return, after
    paying her half of their shared expenses, she was to split her earnings with
    him.

[4]

On or around April 30, the appellant and Ms.
    Tippins had a falling out. They started to argue frequently. According to Ms.
    Tippins, the appellant became rude, belligerent, and aggressive.

[5]

After a few weeks, Ms. Tippins moved in with her
    friend, Michael Wassill. The appellant suggested continuing the business
    arrangement on different terms. Ms. Tippins agreed. However, their relationship
    deteriorated after Ms. Tippins brought up her dissatisfaction with how the
    appellant took a cut of her earnings. The appellant informed Ms. Tippins that
    bad things would happen to her if she did not follow his rules, which she
    interpreted to mean physical harm or the loss of her job.

[6]

On May 13, 2013, Ms. Tippins texted the
    appellant from work, saying that she had learned that he could not get her
    fired. The appellant responded with various text messages, including, This
    ain't a game. U wanna go down that road. We can," and "Don't start
    something you ain't prepared for." He added, U dont even know what Im capable
    of. A few hours later, the appellant texted his friend, Vanessa Hill, to say that
    Ms. Tippins was "talking mad shit about me." He said she "need
    to learn the hard way. Sorry to say. He told Ms. Hill of his plan to get back
    at Ms. Tippins. Rather than pick her up from the strip club on time, he would
    say to her that he would be late and wait until she was the last one there.
    Then he would tell her, "you plan on doing this on your own dont you? So
    walk home on your own. He concluded, [b]ut then Ill see her movements. And
    decide from there about my paper [money]. Im not taking the loss this time.

[7]

On May 14, 2013, in the early morning hours, the
    appellant and Ms. Tippins had a lengthy text exchange during which she asked
    him repeatedly if he was going to pick her up from the strip club. The
    appellant picked Ms. Tippins up about 30 minutes later and drove her to Mr.
    Wassills house. Ms. Tippins said there was a lot of yelling and screaming
    during the drive, as the appellant kept saying that he did not have another way
    to make a living and she did not want to share her earnings with him anymore.
    The appellant took some of her money and said he would be there to pick her up later
    that day.

[8]

In the afternoon, Ms. Tippins texted her
    friends, asking them to gather at Mr. Wassill's home to confront the appellant
    when he arrived to pick her up for her shift. Meanwhile, Ms. Hill texted the
    appellant, saying she was deleting all her text messages with Ms. Tippins, as
    the appellant had told her to stop talking with Ms. Tippins, and to block and
    "delete" her from Facebook.

[9]

That same day, just before 6:00 p.m., Ms.
    Tippins texted the appellant to see if he would pick her up for work, and when
    he replied that he was sending a driver, she said she would arrange a ride with
    her friend, Warren Meredith, instead. The appellant got upset and texted that
    he would go to collect his "paper" (money) when she finished work,
    "[a]n we done." Ms. Tippins said not to pick her up, and the
    appellant replied, "So u gonna run away wit my paper now? Hahahahhahaha ...
    Ok. We'll see how that works out for u. >:D. About two minutes later, the
    appellant texted his friend, Michelle Thompson, asking for a drive later in the
    night. He made clear to her that he was upset with Ms. Tippins and planned to
    confront her about getting his money back. Around 6:20 p.m., Mr. Wassill phoned
    the appellant. Ms. Tippins said that Mr. Wassill told the appellant to not
    contact her or pick her up from work, but added that he could speak to her the
    next day.

[10]

On May 15, 2013, just after midnight, Ms.
    Thompson arrived at the appellants condominium. The appellant was frustrated
    that he could not collect his money from Ms. Tippins. He told Ms. Thompson he
    wanted to stake out Mr. Wassill's home. They drove to Mr. Wassill's street and
    parked a few doors down from his house. The appellant brought an X-Acto knife
    with him, which Ms. Thompson said the appellant used to slash the tire of Mr.
    Meredith's car parked in Mr. Wassill's driveway. When he approached the house,
    the appellant observed that there were many people inside.

[11]

Later the same day, Ms. Tippins awoke around
    12:15 p.m. and decided not to go to work. She invited her marijuana dealer,
    Andrew Lapensee, over to Mr. Wassills house. The three of them were speaking
    in the foyer when she saw the appellant through the window.

[12]

The appellant testified that he arrived at Mr.
    Wassills home shortly after 1:00 p.m. wearing latex gloves and armed with an
    X-Acto knife. He knocked on the window and tried to get Ms. Tippins to come to
    the door. Mr. Wassill answered instead. The appellant asked to see Ms. Tippins
    while he stood on the doorstep, but Mr. Wassill told him that she did not want
    to speak with him and to leave.

[13]

The appellant and Mr. Wassill ended up
    wrestling. At one point, the appellant slashed Mr. Wassills throat, and then
    quickly fled. Mr. Wassill suffered a penetrating incised wound to the anterior
    (front) neck caused by a single continuous movement of the weapon from right to
    left. He received emergency medical treatment but died from his injuries about a
    week later.

[14]

The three witnesses to the attack were Ms.
    Tippins, Mr. Lapensee, and the appellant. They gave differing accounts.
    According to Ms. Tippins and Mr. Lapensee, the appellant put his hands on Mr.
    Wassill first and, after slashing his throat, started to move further into the
    house towards where Ms. Tippins was before seeing Mr. Lapensee and leaving the
    scene. On the appellant's account, he had only planned to speak to Ms. Tippins,
    get his money, and leave. According to the appellant, during his conversation
    with Mr. Wassill, the victim lifted his right arm up quickly. The appellant testified
    that he interpreted this movement as an attempt to push him and reacted
    instinctively by pushing Mr. Wassill instead. He stated that the momentum
    carried him into the foyer of Mr. Wassills house, where the two of them
    engaged in a struggle. The appellant said that at one point, Mr. Wassill
    grabbed him from behind in a bear hug, and that he believed he was going to
    be hurt, so he grabbed his knife from the pouch of the hoodie. The appellant
    insisted that he wanted to show the knife to get Mr. Wassill to back off. However,
    he claimed that when he twisted and swung his hand around, he ended up accidently
    cutting Mr. Wassill across the throat, and that he immediately left the house
    in a panic. The appellant explained that he carried the X-Acto knife for
    protection and wore blue latex gloves because they gave him confidence. He also
    said that he sporadically worked in construction, and that he was required to
    bring his own latex gloves and X-Acto knives for tasks like laying flooring.

[15]

With respect to how long the incident took, Ms.
    Tippins believed that everything happened between 20-30 seconds. Mr. Lapensee
    testified that the entire incident lasted 30-45 seconds, with the appellant
    being inside Mr. Wassils home and grappling with him for approximately 5-15
    seconds.

[16]

As the appellant drove away from Mr. Wassill's
    home, he threw the knife and gloves out the window. He went to Ms. Hill's
    apartment and met her in the parking lot outside her building. Ms. Hill said
    the appellant seemed like a "wreck." The appellant gave Ms. Hill the
    clothes he had been wearing (he had already changed into a new set of clothes).
    The appellant refused to tell her what happened and then left.

[17]

A few minutes later, the appellant texted Ms.
    Hill, asking if he could return as he needed to shower. The appellant also
    texted, "If anyone asks I was with u since 12. Ms. Hill said she could
    not be involved. The appellant replied, "I was never there then lol."
    He returned to Ms. Hill's apartment, and she cleaned his face with baby wipes
    and checked his upper body for more blood.

[18]

The appellant testified that after he left Ms.
    Hills home, he learned the police were already at his condominium. The
    appellant decided that he would put things in motion, so [he] could turn
    [himself] in. He told Ms. Thompson that he would give her his car and Ms. Hill
    his money. He also asked Ms. Hill to delete photos of his car on Facebook. The
    appellant eventually called police and was arrested in the afternoon.

[19]

At trial, the Crown's theory was that spurned
    and embarrassed by Ms. Tippins, the appellant planned and deliberated to murder
    her and Mr. Wassill too, if he got in the way. The defences theory was that
    the appellant did not plan to kill anyone, that the attack on Mr. Wassill was
    an accident, and that his erratic after-the-fact conduct showed his lack of
    intent. The defence, however, admitted that the appellant was guilty of
    manslaughter. During their deliberations, the jury asked several questions
    about planning and deliberation before eventually finding the appellant guilty
    of first-degree murder.

C.

Analysis

[20]

There are two issues on the appeal:

1.

Did the trial judge err in her response to the jurys questions on
    planning and deliberation?

2.

Did the trial judge misdirect the jury to consider the appellants after-the-fact
    conduct as evidence of planning and deliberation?

[21]

As I will explain, I would answer both questions
    in the negative and, on this basis, would dismiss the appeal.

(1)

Planning and Deliberation

[22]

The trial judge instructed the jury that to
    prove planning and deliberation, the Crown must show beyond a reasonable doubt
    that the appellant planned and thought out the killing of Ms. Tippins and/or Mr.
    Wassill if he attempted to intervene. The appellant takes no issue with these
    instructions, which he concedes were accurate and tracked the standard
    instructions found in Watt J.A.s
Manual of Criminal Jury Instructions
,
    2nd ed. (Toronto: Carswell, 2015).

[23]

Where the appellant objects to the trial judges
    instructions is her answer to a series of questions posed by the jury during
    their second day of deliberation. These questions, which focused on planning
    and deliberation, were as follows:

[313-315] Can a plan + implementation occur
    during the event (15 to 30 seconds)

Carry out immediately > impulsive?

Does planned and deliberate have to be planned
    before the event or can it be planned as the event unfolds?

313 says, one person may prepare a plan and
    carry it out immediately. Does this mean a plan can be immediate, or must be
    planned in advance?

p. 57  313 needs to be clarified. Can a plan +
    implementation occur immediately or is it more important that time is spent to
    plan?

Could deliberate possession of a weapon rule
    out that a murder was impulsive?

[24]

Before answering the questions, the trial judge
    heard submissions from counsel regarding the appropriate response to be given
    by the court. These submissions take on special significance on the appeal
    because they reflect the understanding of defence counsel regarding the meaning
    of the questions. This understanding is inconsistent with the position now
    asserted by the appellant.

[25]

Immediately after the trial judge read the
    questions aloud to the court, the following exchange occurred between one of
    the defence counsel and the trial judge:

MR. RUSSOMANO: It strikes me, just upon
    reflection, that this really is two questions. That the  all of the questions,
    except for the very last one deal with, can a plan and its implementation
    happen at the exact same time.

THE COURT: Or very close in time.

MR. RUSSOMANO: Yes, although I think its the
    former rather than the latter, and I think the answer is in 314 of your charge,
    that the plan has to be - it has been previously formulated or designed. Now,
    it can be right before, but it can't be during. It has to be previously.

[26]

The trial judge then allowed counsel time over
    the lunch break to consider their positions and make submissions. On their
    return, the position of counsel for the defence did not change. He agreed with
    the trial judge (1) that planning and deliberation could happen seconds before
    a murder; (2) that the question referencing 15 to 30 seconds related to the
    struggle between the appellant and Mr. Wassill; and (3) that the plan could not
    have been developed during the struggle. In the course of these submissions,
    defence counsel and the trial judge had an exchange about whether the planning
    and deliberation could occur as the appellant walked up the stairs to Mr.
    Wassills doorstep. Defence counsel stated that this would be theoretically
    possible since planning and deliberation has to occur before the murder, but pondered
    whether there was enough time in such a brief interval.

[27]

Defence counsel also had an additional concern.
    He believed that the jury's questions suggested that they may be conflating
    planning and deliberation, and requested an instruction to clarify these as
    distinct concepts.

[28]

The Crown submitted that there was no reason to
    instruct the jury about the fact that planning and deliberation were separate
    concepts. He reminded the trial judge that she had made this distinction clear
    at seven different points in her charge. Regarding timing, the Crown took the
    position that the planning and deliberation could have occurred during the
    course of the verbal exchange with the victim on the doorstep. He requested an
    instruction wherein this point was explicitly made.

[29]

The trial judge rejected the requested
    instruction by defence counsel to clarify the distinction between planning and
    deliberation. She also dismissed the Crown's suggestion that she instruct the
    jury regarding the fact that the planning and deliberation could occur at any
    time before the throat slash, up to and including the verbal exchange on the
    doorstep, and the spilling into the foyer. The trial judge further made it
    clear that in her answer she would use the term murder instead of the more
    ambiguous term "event."

[30]

The pertinent portions of the trial judges
    answer provided to the jury are as follows:

You have asked the following questions:
    Paragraphs 313 to 315  can a plan and implementation occur during the event
    (15 to 30 seconds) carry out immediately > impulsive? Does the plan  does
    planned and deliberate have to be planned before the event, or can it be
    planned as the event unfolds?

Paragraph 313 says: "One person may
    prepare a plan and carry it out immediately." Does this mean a plan can be
    immediate, or must be planned in advance? Paragraph 313 needs to be clarified.
    Can a plan and implementation occur immediately, or is it more important than
    time is spent to plan? Could the deliberate possession of a weapon rule out
    that a murder was impulsive?

In the first four questions, it appears youre
    asking about the timing in relation to the formulation of the plan, and the
    deliberation. And I refer you again, to paragraphs 311 and  to  311 to 316.
    In addition, I add the following: The key with respect to the planning and
    deliberation is that both the planning and deliberation have to be complete
    before the murder occurs. Although the length of time between the completion of
    the planning and deliberation, and the implementation could be very short 
    almost immediate.

As an aspect of timing, part of the planning
    and deliberation of the murder could be determined in advance, with part not
    being determined until immediately before carrying out the murder, so long as
    the entire plan and deliberation is complete before the murder.

The last question is: Could the deliberate
    possession of a weapon rule out that a murder was impulsive? It depends. The
    possession of a weapon is a piece of evidence to consider along with all the
    other evidence in determining whether the murder was planned and deliberate. So
    I hope that helps members of the jury. If you have further questions, dont
    hesitate to ask.

[31]

The jury asked no further questions of the trial
    judge. They convicted the appellant of first-degree murder the next day.

[32]

The appellant argues that the jury had to
    conclude that the appellant planned and deliberated committing murder before he
    arrived at Mr. Wassill's home to convict on first-degree murder. If the
    appellant arrived without a plan to kill, counsel for the appellant submits
    that there was no evidence or realistic opportunity for the attack on Mr.
    Wassill to be planned and deliberate. According to the appellant, the questions
    show that the jury was struggling with whether the appellant might have only
    formulated a plan to kill while standing on the doorstep of Mr. Wassill's
    residence, during his argument with the victim.

[33]

The appellant also submits that the jurys
    questions demonstrate that they were struggling to understand the law of
    planning and deliberation, and how to apply the law to the evidence. Paragraph
    313 of the written charge said: One person may prepare a plan and carry it out
    immediately. This was meant to capture the classic instruction emphasizing
    that formulating a plan takes time, so a jury should focus on the time involved
    in developing a plan, and not how long a person waits to implement it. But the
    appellant says that the jury read it to mean that the appellant could
    immediately prepare a plan and carry it out.

[34]

The crux of the appellants argument is that the
    questions show how the jury misunderstood what planning requires, and what the
    relationship is between planning and deliberation. The appellant submits that
    although a plan, once formulated, can be carried out immediately, a plan cannot
    be formulated immediately. Similarly, deliberation cannot happen immediately.

[35]

According to the appellant, the trial judge
    erred in not realizing that there was no air of reality to the theory that the
    appellant planned and deliberated murdering Mr. Wassill while he was standing
    on the doorstep and arguing with the victim. He submits that the jury needed to
    be told there was no evidentiary basis to convict the appellant of first-degree
    murder on the scenario their questions implied. The jury should also have been
    told that while a plan might be carried out immediately after it is formulated,
    formulating a plan takes time. Instead, the recharge focused on how quickly a
    plan can be implemented, effectively endorsing the jurys misconceived theory
    of liability. The appellant submits that the failure to correct the jury's
    misapprehensions about planning and deliberation was not minor or incapable of
    impacting the verdict. Instead, this failure went to the critical issue between
    a finding of first- or second-degree murder.

[36]

The law regarding answers to jury questions is
    well-settled and was not the subject of debate on this appeal. Jury questions
    are recognized in the jurisprudence as being particularly significant because
    they provide insight into the jury's problems with a case. For that reason,
    jury questions require a full, careful and correct response:
R. v. W. (D.)
,
    [1991] 1 S.C.R. 742, at pp. 759-760. The jury is not only entitled to a
    responsive answer to its question, but the trial judge should take care not to
    discourage further questions:
R. v. Layton
, 2009 SCC 36, [2009] 2
    S.C.R. 540, at para. 33.

[37]

As noted by Mainella J.A. of the Court of Appeal
    of Manitoba in
R. v. Willis (TAW)
, 2016 MBCA 113, 344 C.C.C. (3d) 443,
    leave to appeal refused, [2017] S.C.C.A. No. 45, this seemingly simple task is
    often challenging for a trial judge because there is no set of standard answers
    that can be applied. Ultimately, it is a judicial function that relies
    entirely on the proper exercise of discretion tailored to the applicable
    circumstances:
Willis
,
at para. 217. This court made a similar comment in
R. v. Mohamad
, 2018
    ONCA 966, 369 C.C.C. (3d) 211, leave to appeal refused, [2019] S.C.C.A. No.
    162, wherein Watt J.A. stated, at para. 279: [H]ow the response is given is
    left largely to the discretion of the presiding judge. And that discretion,
    uncontaminated by errors of law or misapprehensions of fact and falling within
    a range of reasonable alternatives is entitled to deference on appellate
    review.

[38]

With these comments in mind, I consider the
    adequacy of the trial judges answer. There can be no doubt that the answer was
    correct in law. By that I mean, that the trial judges instruction that
    planning and deliberation had to occur before the murder was without error. The
    appellants counsel is not arguing otherwise on this appeal. His point is that
    the questions revealed a concern held by the jury about whether the appellant
    had adequate time to plan and deliberate.

[39]

The appellant's argument on this issue is
    premised on the assertion that what the jury was concerned about is whether he
    could plan and deliberate murder as he stood on Mr. Wassills doorstep and
    argued with the victim. This doorstep theory was mooted in exchanges between
    counsel and the trial judge. However, it was never put to the jury by either
    party or the trial judge. Recall that the Crown requested a specific instruction
    that the planning and deliberation could occur on the doorstep. The trial judge
    rejected that request.

[40]

The interpretation of the questions asserted on
    appeal is contrary to the position taken by defence counsel before the trial
    judge. The trial judge explicitly raised with defence counsel the doorstep
    theory, but counsel did not take the position that the jury questions were
    aimed at that issue. His interpretation was that the jury was asking about timing,
    i.e. whether the planning and deliberation, and the implementation, can happen
    simultaneously.

[41]

The trial judge accepted that characterization
    of the questions and tailored her answer accordingly. That interpretation was
    sensible in the circumstances. Nowhere in the multiple questions was there an
    explicit reference to planning and deliberation taking place on the doorstep as
    the appellant argued and then struggled with Mr. Wassill.

In her
    response, the trial judge was careful to refer to the "murder," and
    not the "event," to emphasize that the planning and deliberation had
    to happen before the murder. In doing so, she mitigated against the risk that
    the jury might be asking a question premised on the doorstep theory. It was
    plain from her answer that she was referring to whether the murder, and the planning
    and deliberation, could occur at the same time.

[42]

The trial judge also invited the jury to ask
    further questions. This is a significant factor in this case because the jury
    had asked several questions and clearly was not reticent about seeking
    clarification when it was struggling with an issue. I have no difficulty
    concluding that if this jury meant by their questions that they needed guidance
    about whether the planning and deliberation could occur on the doorstep, they
    would have had no hesitation in seeking further clarification.

[43]

Ultimately this issue comes down to whether the
    trial judge correctly answered the questions having regard to her discretion to
    tailor the answer in the circumstances. In this case, where there was no
    explicit reference to the doorstep theory in the questions, and it had not been
    put to the jury, I can see no error in her response. The trial judge properly
    answered the questions, tailored her answer to clarify that she was referring
    to the actual murder and not what happened on the doorstep, and encouraged the
    jury to come back for further guidance. Accordingly, I would not give effect to
    this ground of appeal.

(2)

After-the-fact Conduct

[44]

The appellant concedes that since he asserted
    the defence that he struck Mr. Wassill accidentally, his after-the-fact conduct
    was admissible to rebut his defence. He also argues that the after the-fact
    conduct was relevant to support his contention that he did not have murderous
    intent.

[45]

The jury charge highlighted several examples of
    after-the-fact conduct, including:

·

The appellant went to Ms. Hill's home after the
    incident and asked for a garbage bag in which he deposited his clothing.

·

The appellant asked Ms. Hill to say he had been
    with her since noon.

·

The appellant returned to Ms. Hills home, and
    Ms. Hill helped clean blood off the appellants face.

·

The second time he went to Ms. Hill's home, the
    appellant parked his car some distance away. He later arranged for Ms. Thompson
    to pick the car up.

·

At the request of the appellant, Ms. Hill went
    on his Facebook page and deleted all his photos with his car.

·

When the appellant went to Ms. Hill's a third
    time, he gave her his keys and told her he was going away for a while, and she
    could use his condominium.

·

Ms. Hill and Ms. Thompson tried to go to the
    appellants condominium.

·

Ms. Hill gave Ms. Thompson the bag containing
    the appellants clothes.

·

Ms. Thompson later disposed of the bag in a
    garbage bin at a gas station some considerable distance away.

[46]

The trial judge also reviewed in the jury charge
    the appellant's explanations for his conduct. For example, she reminded the
    jury of the appellants explanation that he threw the bloody gloves and knife
    out the window because he was frightened and panicked. She told them that the
    appellant testified about how he changed out of his clothes not because they
    were blood-stained, but because they were sweaty and made him feel disgusting. The
    trial judge reviewed with the jury the appellants explanation that he hid his
    car on a side street and asked Ms. Hill to remove photos of his car from
    Facebook because he feared the BMW gang and wanted to avoid a criminal charge
    for driving without a license. She also reminded the jury of the appellants
    evidence that he tried to find the Ottawa Police Service's phone number to turn
    himself in.

[47]

The trial judge further cautioned the jury on
    the proper uses of the evidence and asked them to consider alternative
    explanations. She told the jury that to use the after-the-fact conduct to
    support a finding of guilt, they must reject any other explanation for the
    conduct.

[48]

In his factum, the appellant asserts the trial
    judge concluded during the pre-charge conference that the after-the-fact
    conduct could not be used to support the Crowns theory that the murder was a
    result of planning and deliberation. Despite this conclusion, the jury charge
    explicitly invited the jury to use the after-the-fact conduct as evidence to "assist
    in determining whether there was or was not, planning and deliberation." The
    appellant argues that the trial judge ought to have provided a limiting
    instruction advising the jury that they could not use the after-the-fact
    conduct to support an inference of planning and deliberation.

[49]

I would not give effect to this ground of
    appeal. To the extent that is premised on the notion that after-the-fact
    conduct cannot serve as evidence of planning and deliberation, that is an
    erroneous view of the law. There is no legal impediment in using the
    after-the-fact conduct to determine intent or distinguish between different
    levels of culpability. As Doherty J.A. stated in
R. v. MacKinnon
(1999), 43 O.R. (3d) 378 (C.A.):

Evidence of after-the-fact conduct is a type
    of circumstantial evidence. Its potential probative value will depend upon the
    nature of the evidence, the issues in the case and the positions of the
    parties. Often, evidence of after-the-fact conduct will be probative of the
    accused's participation in the crime alleged, but will have no probative value
    in determining the level of the accused's culpability. Sometimes, however, 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. White
, [1998] 2 S.C.R. 72 at pp. 88-92, 125 C.C.C. (3d) 385 at pp.
    400-03.

The
    appellants' conduct as described by Ransome, from the time they fled the club
    until they disposed of evidence in the dumpster could, when viewed in its
    entirety, support the inference that they had done exactly what they had
    planned to do, that is, enter the club, commit a robbery and shoot Mr. Chow.
    This inference would lend considerable support to the Crown's claim that the
    murder was planned and deliberate. As the evidence had some probative value on
    the question of whether the appellants had engaged in a planned and deliberate
    murder as opposed to a robbery or some other illegal activity which had gone
    awry, the trial judge could not have instructed the jury that the evidence had
    no value in determining the appellants' level of culpability. The alleged
    non-direction does not constitute misdirection on the evidence adduced in this
    case.

See also:
R. v. Calnen
, 2019
    SCC 6, [2019] 1 S.C.R. 30, at para. 119,
per
Martin J. (dissenting,
    but not on this point);
R. v. Café
, 2019 ONCA 775, 381 C.C.C. (3d) 98,
    at paras. 55-58.

[50]

I agree with the submission of the appellant
    that the after-the-fact evidence referred to by the trial judge was relevant to
    the issue of his intent. It was also relevant to support one of the appellants
    principal arguments at trial, specifically that his after-the-fact conduct demonstrated
    that the killing had not been planned. The defence relied on the fact that the
    appellant did not make prior arrangements to settle his affairs before the
    killing, and that his actions seemed frantic, to negate the Crowns submissions
    on planning and deliberation.

[51]

The question on appeal is whether the
    after-the-fact conduct evidence was admissible to support the Crowns position
    that the murder was a planned and deliberate killing. It is necessary at this
    point to review the argument made in the appellants factum that the trial
    judge agreed the jury could not use the after-the-fact conduct to support the
    Crowns position regarding planning and deliberation, but then inexplicably
    instructed them to do so. This description of what occurred during the
    pre-charge conference is inaccurate.

[52]

It is true that the trial judge did state during
    the beginning of her colloquy with the Crown that after-the-fact conduct could
    not help the Crown prove planning and deliberation. The Crown disagreed and
    made submissions on the point. He relied on the passage from
MacKinnon
excerpted above to argue that after-the-fact conduct can be relevant to the
    issue of planning and deliberation.

[53]

The trial judge acceded to this argument. She
    stated repeatedly that the after-the-fact conduct could be used both to prove
    or disprove planning and deliberation, and advised the parties that she would
    include that instruction in her charge. The trial judge observed, quite
    correctly, that how the evidence could be used was a matter for the jury to
    decide.

[54]

Defence counsel did not object to the proposed
    instruction. During the pre-charge conference, she explicitly agreed with the
    suggestion made by the trial judge that the jury could use after-the-fact
    conduct to determine whether there was any planning and deliberation. Defence
    counsel also did not object when the trial judge suggested a slightly modified
    instruction at the insistence of the Crown to read it may assist whether there
    was or was not any planning and deliberation.

[55]

The Crowns position was that the evidence was
    relevant to rebut the appellants claim that he accidentally slashed Mr.
    Wassills throat, and to support an inference of planning and deliberation.
    According to the Crown, after killing Mr. Wassill, the appellant beelined
    toward Ms. Tippins instead of hesitating (as one would expect in an accidental
    killing). The Crown submits that the appellants conduct after leaving the
    house was consistent with the follow-through and execution of a previously
    devised plan adjusted to deal with an unanticipated eyewitness.

[56]

The trial judge had a choice of permitting the
    after-the-fact conduct to be used to support the Crowns theory regarding
    planning and deliberation, or cautioning the jury that they could not use it
    for that purpose. In my view, the trial judge did not err in instructing the
    jury that they could rely on this evidence to support the Crowns theory
    regarding planning and deliberation. The evidence was capable of supporting the
    inference that the Crown was inviting the jury to draw.

[57]

The jury would have understood that both the
    Crown and defence relied on the after-the-fact conduct to support their
    respective theories of the case. Further, the jury was properly instructed on
    the limited use of that conduct, including that to use it as evidence of guilt,
    they had to reject any other explanation for the conduct. Therefore, I would not
    give effect to this ground of appeal.

D.

Disposition

[58]

For the foregoing reasons, I would dismiss the
    appeal.

Released: May 11, 2021 C.W.H.

C.W. Hourigan J.A.

I agree. B. Zarnett J.A.

I agree. S. Coroza J.A.


