



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gayle, 2017 ONCA 297

DATE: 20170412

DOCKET: C59712 and C60647

Sharpe, Rouleau and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Elizabeth Gayle

Appellant

and

Fedrick Gayle

Appellant

Delmar Doucette and Angela Ruffo, for the appellant
    Elizabeth Gayle

Paul Alexander, for the appellant Fedrick Gayle

David Finley and Lorna Bolton, for the respondent

Heard: February 1-2, 2017

On appeal from the conviction entered on June 26, 2013 by
    Justice K. van Rensburg of the Superior Court of Justice, sitting with a jury.

By the Court:

[1]

Tiffany Gayle was 15 years old when she was
    brutally beaten to death in her home. A jury found her father Fedrick and her
    step-mother Elizabeth guilty of first degree murder. Both appeal on the basis
    that the trial judge erred with respect to certain rulings and in her
    instructions to the jury.

FACTS

[2]

In January 2009, Tiffany Gayle, then 14, was
    sent from Jamaica to Brampton, Ontario by her mother. She arrived with her
    half-siblings, her older sister Samantha and her younger brother Fedrick Jr. 
    The three children shared the same father but had different mothers. They were
    all going to live with Fedrick and Elizabeth.

[3]

Several witnesses testified to Tiffanys
    unhappiness in Canada. After only 5 weeks, Samantha had been sent back to
    Jamaica. Tiffany was worried about being sent back as well. She told her
    teacher and a friend that there were arguments at home, mainly with her
    step-mother. In the days leading up to her death, she was sad and depressed.
    She missed a dance exam because she was afraid to ask her father to sign the permission
    slip.

[4]

On the morning of June 11, 2010, Tiffany told a friend
    that she had been in an argument with her step-mother that lasted all night. By
    the next morning she was dead in the bathtub of the downstairs bathroom.

[5]

Elizabeth gave three statements to the police,
    on June 12, June 15 and June 16, 2010. Only the first and the third were
    adduced in evidence at trial. On June 12, she told the police that she did not
    know who committed the murder. She said that she had gone to bed late on the
    night of June 11, fell asleep, woke up the next morning and found Tiffanys body.

[6]

On June 16, Elizabeth told police that Fedrick had
    killed Tiffany. She outlined what had occurred on the night of June 11. She
    said that she asked Tiffany to come to the garage to give her a lecture about
    her misbehavior involving an alleged lie. Elizabeth chose the garage so that Fedrick
    would not hear the conversation. While she was lecturing Tiffany, Fedrick came
    in. When he heard of Tiffanys misbehavior, he snapped, picked up a baseball
    bat and hit Tiffany with it. He then ordered Elizabeth out of the garage. She
    complied. She saw Tiffany and Fedrick go into the basement. Elizabeth came
    downstairs and told Fedrick to stop. She saw Fedrick striking Tiffany with the
    bat. Fedrick then ordered Elizabeth to go upstairs. Elizabeth went to bed and
    fell asleep. The next morning, she found Tiffany in the bathtub and was unaware
    if she was dead or alive. She called her daughter Kashra who eventually called
    911. Emergency services arrived shortly thereafter.

[7]

In March 2011, nine months after this statement
    to the police, in exchange for her release on her own recognizance, Elizabeth
    told the police that she saw Fedrick leave the house on the morning of June 12
    with a bat. She said he might have taken it to a rental property that they
    owned. She described the bat as blue with a white handle. The police found a
    blue bat with a black handle in a metal shed on the property she had referred
    to. The bat was entered as an exhibit at trial.

[8]

Fedrick Gayle made two utterances introduced
    through Crown witnesses at trial: (i) he told Kashra that he tried to wake
    Tiffany but she wouldnt get up; and (ii) he told his daughter Samantha that he
    was not in the house that night.

[9]

Elizabeth and Fedrick each took the position at
    trial that the other had done the killing. Neither testified.

[10]

The forensic evidence provided information as to
    the events of June 11-12. The pathologist found that Tiffany had suffered
    multiple blunt force injuries all over her body, to her head, torso, arms, and
    legs. There was evidence consistent with two weapons having been used, a
    baseball bat and a barbeque tool. The pathologist could not say with certainty,
    however, what weapons had caused the injuries, and he could not exclude the
    possibility that there had been only one.

[11]

The blood-stain pattern analysis showed that
    Tiffany had been struck in the garage, entered the house through the garage
    door to the basement, and then continued down the hallway to the foyer outside
    the basement bathroom. There were multiple blood spatter stains in the foyer
    indicating that she had been repeatedly struck there. They showed that she had
    been moving while being hit. The beating had continued in the bathtub where she
    died.

[12]

The police found red paint transfer marks on the
    walls of the foyer and grey scuff marks on the ceiling of the basement and the
    edge of the bathtub. A broken barbecue tool with a red handle was found in the
    kitchen area. There were bloody footprints in the basement. Tiffanys blood was
    found on Fedricks jeans and on Elizabeths nightgown and on other clothing
    belonging to both.

[13]

There were obvious signs of an attempted
    clean-up throughout the foyer of the basement bathroom and bathroom. There was
    also evidence of an attempt to wash Tiffanys body. Elizabeths and Fedricks
    footprints were found in areas containing Tiffanys blood.

ISSUES

[14]

Elizabeth appeals on the basis that the trial judge
    misdirected the jury by allowing the jury to consider her
after-the-fact
    conduct to determine her level of involvement in the crime  as a
    co-perpetrator or an aider. She further argues that the trial judge erred in
    allowing the jury to consider her after-the-fact conduct when assessing the
    causation element of first degree murder.

[15]

Fedrick appeals on the basis that the jury
    should have been given limiting instructions with respect to prior
    discreditable conduct arising from Samanthas evidence. He also submits that
    the baseball bat should not have been admitted in evidence or referred to as after-the-fact
    conduct. He submits that the jury was not properly instructed with respect to
    Elizabeths statement as to where the bat might be found. Further, he submits
    that there should have been a
W. (D.)
instruction with respect to his exculpatory statements and that
    there should have been a severance of the trial.

ANALYSIS

Fedrick Gayles
    Appeal

Discreditable conduct evidence

[16]

Elizabeths counsel elicited the following evidence when cross-examining
    Fedricks daughter, Samantha Gayle:

·

Fedrick
    beat Samantha with a belt when she was a young child in Jamaica on a number of
    occasions leaving stinging welts on her arms;

·

before
    she left Jamaica with her father in 2009 she made it clear that she would not
    tolerate any beatings in Canada and that she would call 911 if threatened;

·

on
    one occasion after their arrival in Canada, her father became angry and it
    appeared that he was about to hit her. She reminded him of her threat to call
    the police and he desisted.

[17]

Fedrick argues that this was evidence of discreditable conduct and
    propensity that should not have been admitted. As the evidence was admitted,
    the trial judge erred by failing to give a limiting instruction to the effect
    that while the evidence could be used to raise a reasonable doubt by Elizabeth,
    it could not be used to prove Fedricks guilt.

[18]

In our view, the trial judge did not err in admitting this evidence. No
    objection was made to admissibility at trial. While this evidence may not have
    been admissible at the behest of the Crown, provided its prejudicial effect
    does not substantially outweigh its probative value, it was admissible at the
    behest of a co-accused at a joint trial to allow the co-accused to make full
    answer and defence.

[19]

We do not agree that the prejudicial effect of this evidence
    substantially outweighed its probative value. The evidence was remote in time
    and the conduct was materially different from the savage beating at issue at
    the trial. Fedricks counsel went a long way to neutralize the effect of
    Samanthas evidence in cross-examination. She admitted that after the family
    came to Canada, when disciplining the children, Fedrick just talked to the
    children and did not hit them.

[20]

There was also evidence that Elizabeth had used corporal punishment to
    discipline the children. In his closing address to the jury, Elizabeths
    counsel submitted that it would be wrong to conclude that because someone had
    used a belt to discipline a child, that person had a propensity to use a bat to
    kill someone. He specifically linked that situation to Fedrick as well as to
    Elizabeth. At the end of the day, Elizabeths counsel placed no weight on this
    evidence.

[21]

Nor do we accept that the trial judge erred by failing to give a
    limiting instruction.

[22]

The charge was thoroughly vetted by counsel and no limiting instruction
    of the kind sought on appeal was requested at trial. In our view, there may
    well have been strategic reasons for not seeking a limiting instruction that
    could serve only to remind the jury of the evidence or cause them to place
    undue weight upon it.

[23]

Taking all these circumstances into account, we conclude that there was
    no realistic risk that the jury would have inferred that Fedrick was capable of
    bludgeoning his daughter to death with a baseball bat because years earlier, he
    had used a belt to discipline another daughter. The trial judges failure to
    give a limiting instruction on discreditable conduct did not amount to an error
    in the circumstances of this case and we would not give effect to this ground
    of appeal.

Admissibility of the bat

[24]

Fedrick submits that the trial judge erred in admitting the baseball bat
    into evidence and instructing the jury that they could find that he had hidden
    the bat and consider that as after-the-fact conduct consistent with his guilt. Fedrick
    advances three alleged errors:

·

the
    trial judge erred in failing to assess the strength of the inferences for which
    the bat was tendered when weighing the probative value against prejudicial
    effect;

·

the
    trial judge misapprehended the evidence regarding the scuff marks at the scene
    of the crime; and

·

the
    trial judge improperly relied on Elizabeths statement about where the bat
    might be found, which was not admissible for its truth against Fedrick.

[25]

We do not accept these submissions. In her ruling admitting the bat, the
    trial judge did advert to certain weaknesses in the evidence linking the bat to
    the crime, namely the absence of DNA and the fact that any number of bats could
    have the same chemical composition and could have been used to commit the
    crime. She ruled, however, that those matters went to weight, not admissibility
    and that the bat should be admitted in evidence, leaving it to the jury to
    assess its weight. In our view, she was entitled to so rule.

[26]

While the trial judge did err in relation to the colour of the scuff
    marks, describing them as blue when in fact they were grey, that error was not
    material to her decision. The fact linking the bat to the crime was not the
    colour of the scuff marks but that their chemical composition corresponded to
    that of the bat.

[27]

Quite apart from Elizabeths statement, there was sufficient evidence
    linking the bat to the crime to warrant its admission. The forensic evidence
    regarding the nature of the injuries and the scuff marks supported an inference
    that an aluminum bat had been used to strike the victim. There was evidence
    that there was an aluminum bat at the Gayle residence before the crime, and no
    bat was found at the scene by the police when conducting their investigation.
    The bat was found at a property formerly owned by Fedrick and Elizabeth, in a
    locked shed to which Fedrick controlled access at the time when the crime took
    place. The new owner of the property testified that the bat was in this shed
    when he moved in. Fedrick had the opportunity to remove the bat from his home
    immediately after the crime and to place it in the locked shed. As Elizabeth
    did not drive, she lacked a similar opportunity.

[28]

We conclude that the trial judge did not err in admitting the bat into
    evidence and instructing the jury that if they found that Fedrick had hidden
    the bat, they could consider that as after-the-fact conduct evidence indicating
    consciousness of guilt on the part of Fedrick.

Elizabeths statement to the police about the location of
    the bat

[29]

Fedrick submits that the jury was not properly instructed that
    Elizabeths statement to the police, to the effect that she believed that the
    bat might be found in the shed at their rental property, could not be used
    against him.

[30]

In her original statement to police, Elizabeth said that Fedrick had
    stepped out of the house with the bat and that she guessed he had taken it to
    the other property based on how long he was gone. In pre-trial motions, counsel
    agreed to introduce an edited version of Elizabeth's statement by way of agreed
    statement of facts, redacting anything linking Fedrick to the bat. When
    discussing whether the bat itself could be admitted, both Crown counsel and
    Fedrick's counsel took the position that if the bat were admitted, the jury
    would have to be instructed that Elizabeths statement was not admissible
    against Fedrick.

[31]

The agreed statement was introduced at trial as narrative to explain the
    process by which the police had discovered the bat. At this time there was no
    request for a specific limiting instruction, nor was such a request made at the
    pre-charge conference or after the charge had been delivered.

[32]

The trial judge instructed the jury at several points mid-trial and
    repeatedly in her final charge that Elizabeths out-of-court statements were
    not admissible against Fedrick. Those instructions were linked to references to
    the various out-of-court statements she made but none was specifically linked
    to the agreed statement of facts regarding the bat.

[33]

Fedrick submits that as the trial judge also instructed the jury to
    consider all of the evidence, there is a risk that the jury might have
    considered the agreed statement of facts relating to Elizabeths statement as
    being admissible against him.

[34]

We do not accept this submission. First, the edited statement was
    equivocal and only stated that Elizabeth believed that the bat might be found
    in the shed and contained no reference linking Fedrick to the bat or to Fedrick
    taking the bat to the other property. Second, no request for a specific limiting
    instruction was made either before or after the charge. Third, the jury was
    repeatedly told that they could not use Elizabeths out-of-court statements as
    evidence against Fedrick. Fourth, in his closing address, Crown counsel
    specifically told the jury that what Elizabeth told the police about the
    whereabouts of the bat was only admissible against her.

[35]

Taking all of these circumstances into account, we conclude that there
    is no realistic risk that the jury could have improperly used Elizabeths
    out-of-court statement about the possible location of the bat.

Severance

[36]

Fedrick submits that the trial judge erred by failing to grant his
    application for severance on the ground that the jury would not be able to
    ignore Elizabeths out-of-court statements, inadmissible against him, but
    implicating him in the death of his daughter.

[37]

We do not agree with this submission. It is well-established that a
    trial judges decision on severance is discretionary and attracts deference on
    appeal. It is also well-established that there is a strong presumption that
    co-accused who are alleged to have acted in concert are to be tried together.
    This is particularly so where, as in this case, the co-accused advance cut-throat
    defences in which they blame each other for the crime alleged. Such cases pose
    a serious risk of inconsistent verdicts which can be avoided by a joint trial:
    see
R. v. Suzack
(2000), 141 C.C.C. (3d) 449 (Ont. C.A.), at paras.
    87-88.

[38]

This was not a case where a serious imbalance in the evidence required
    severance. There was significant evidence linking Fedrick to the crime and the
    jury were properly instructed, both mid-trial and in the final instructions,
    that they were not to use Elizabeths statements to the police as evidence
    against Fedrick.

Lack of a full W. (D.) instruction in relation to Fedricks
    out-of-court statements

[39]

Fedrick complains the trial judge erred by failing to give the jury a
    full
W. (D.)
instruction in relation to two exculpatory statements,
    one he made to his daughter Samantha and the other to Kashra Charles. In the
    first, he told Samantha that he was not at home when Tiffany was killed and in
    the second, he exclaimed Oh my God, I tried to wake her up. She wouldnt get up.

[40]

We see no merit in this submission for the following reasons.

[41]

The trial judge did give the jury a modified
W. (D.)
instruction
    in relation to these statements. She told the jury that one or both of these
    statements could help Fedrick in his defence and that they were entitled to
    consider the statements along with the rest of the evidence to decide whether
    they had a reasonable doubt as to Fedricks guilt.

[42]

In the pre-charge conference, the trial judge specifically asked Fedricks
    trial counsel if he was satisfied with her proposed modified
W. (D.)
instruction
    for Fedrick and he stated that he was.

[43]

In our view, not only was a full
W. (D.)
instruction not
    required; the instruction that was given was unduly favourable to Fedrick. The
    reason is that his exculpatory out-of-court statements were inadmissible. These
    were not mixed statements containing inculpatory and exculpatory portions
    tendered by the Crown. They were entirely exculpatory and not admissible for
    the truth of their contents:
R. v. Rojas
, 2008 SCC 56, [2008] 3 S.C.R.
    111.

Fedricks Appeal: Conclusion

[44]

For these reasons, Fedricks appeal is dismissed.

Elizabeth Gayles Appeal

[45]

Elizabeth advances two related grounds of appeal. She argues that the
    trial judge erred in instructing the jury that they could consider her after-the-fact
    conduct to determine whether she had acted as a co-perpetrator of the assault
    on Tiffany (with Fedrick) or as mere aider to Fedricks assault on Tiffany. Put
    differently, Elizabeth maintains that the trial judge had to give the jury a
    limiting instruction to the effect that they must not use her after-the-fact
    conduct to determine whether she had acted as a co-perpetrator or as an aider.
    The second ground of appeal is that a similar instruction ought to have been
    given when discussing the causation element of constructive first degree
    murder.

[46]

At the hearing, Elizabeth abandoned the third ground of appeal. That
    ground was that the jury was not properly instructed on the use that could be
    made as inculpatory after-the-fact conduct of her exculpatory second statement
    to the police.

[47]

At trial, the Crown relied on two broad aspects of Elizabeths after-the-fact
    conduct: first, that she lied in her statements to the police and, second, that
    she participated in the extensive clean-up carried out after the homicide.

[48]

After-the-fact conduct is a form of circumstantial evidence that is
    generally admissible to show that, after the alleged offence, the defendant
    acted in a manner that, based on experience and logic, is consistent with the
    conduct of a guilty person and inconsistent with the conduct of an innocent
    one.

[49]

Its admissibility is subject to the normal rules of admissibility for
    circumstantial evidence. It must be relevant to the fact in issue and its
    prejudicial effect must not outweigh its probative value.

[50]

Once after-the-fact conduct evidence is admitted, however, the court
    must be careful to ensure that it is not misused by the trier of fact. As noted
    in
R. v. Angelis
, 2013 ONCA 70, 300 O.A.C. 367, at para. 52, after-the-fact
    conduct may well be probative of an accuseds culpability but is usually not
    probative of the level of that culpability.

[51]

In the present case, Elizabeth concedes that her after-the-fact conduct
    could be understood by the jury to be evidence of consciousness of guilt. It
    was therefore admissible to assist the jury in determining whether she was
    involved in the homicide. According to the Crowns theory, Elizabeths
    involvement was either as a co-perpetrator in the assault leading to Tiffanys
    death or as an aider because she did not call 911 or otherwise intervene in
    Fedricks assault on Tiffany. What the jury could not do, according to
    Elizabeth, was to go on to use after-the-fact conduct to decide into which of
    the two modes of participation in the homicide Elizabeths conduct fell under.

[52]

In Elizabeths submission, her after-the-fact conduct was probative only
    of the issue whether she had any involvement in the homicide. It was not
    probative of her level of involvement in the homicide. In the present case,
    however, the instructions given by the trial judge and the decision tree used
    by the jury directed the jury to consider after-the-fact conduct in deciding
    more than involvement in the homicide. It invited the jury to consider after-the-fact
    conduct to decide which of the two culpable acts Elizabeth committed. This,
    Elizabeth argues, ran afoul of this courts decision in
Angelis
as it
    allowed the after-the-fact conduct to be used in deciding level of culpability
    despite it being of no probative value with respect to that issue.

[53]

If Elizabeth had acted as a co-perpetrator of the assault that caused
    Tiffanys death, the jury was told, and the decision tree indicated, that this
    could lead to a conviction for first degree murder. If she had only aided in
    the commission of the offence by failing in her duty to call 911, this could
    only lead to a conviction for second degree murder or manslaughter.

[54]

The concern raised by Elizabeth arises because of the trial judges
    decision to divide the first question to be asked in a charge of homicide into
    two parts. The decision tree provided to the jury, a copy of which is appended
    to these reasons, shows question 1 as: Did Mrs. Gayle cause the death of
    Tiffany Gayle by an unlawful act? It then directed the jury that, if they were
    to answer no to this question, they were to go on to consider question 1(b),
    which reads as follows: Did Mrs. Gayle aid Mr. Gayle in causing Tiffany
    Gayles death by means of an unlawful act?

[55]

The decision tree indicated that a positive answer to question 1 would
    lead to the jury answering question 2. A negative answer to question 1 would
    lead to the jury answering question 1(b). If question 1(b) were answered in the
    positive, the jury was then to answer question 2(b). Question 2 and question
    2(b) are the same, that is: Did Mrs. Gayle have the state of mind required for
    murder?

[56]

Although questions 2 and 2(b) are the same, the decision tree shows that
    they potentially lead to different final verdicts. Following the branch headed
    by question 2 leads to a further series of questions to determine whether
    Elizabeth is to be found guilty of first degree murder. If the branch headed by
    question 2(b) is taken, it can lead, at most, to a conviction for second degree
    murder.

[57]

As explained by Elizabeth, it follows from this division between
    questions 1 and 1(b) that the jurys decision as to whether she was a
    co-perpetrator or simply an aider determines the ultimate jeopardy she faces.
    If the jury determined that she was a co-perpetrator, she could be convicted
    for first degree murder. If, however, the jury determined that she was simply
    an aider she was exposed, at most, to a verdict of guilty of second degree
    murder.

[58]

The jury was told that Elizabeths after-the-fact conduct could be
    considered when determining the first element of the offence. Elizabeth submits
    that, given the division between questions 1 and 1(b), the jury was effectively
    invited to use the after-the-fact conduct in determining her mode of
    participation in the offence. This, she maintains, was an error because after-the-fact
    conduct is probative of culpability but not probative of the level of that
    culpability. The after-the-fact conduct could only assist the trier of fact in
    deciding whether Elizabeth committed an unlawful act of culpable homicide. It
    could not bear the additional inference that she was involved in the offence as
    a co-perpetrator rather than as an aider.

[59]

Elizabeth argues that her after-the-fact conduct was equally consistent
    with her being involved in the homicide as an aider or co-perpetrator, but the
    way the questions were set up by the trial judge would have led the jury to
    misuse the after-the-fact conduct evidence to decide between these
    alternatives. She submits that there is a real risk that the jury, having
    misused after-the-fact conduct evidence to conclude that she was a
    co-perpetrator, would then have relied on this finding in their assessment of
    whether she had the intent and level of involvement in the homicide required
    for first degree murder.

[60]

We would not give effect to this submission.

[61]

We note at the outset that there was no concern raised at trial with the
    jury instructions or with the decision tree despite the fact that counsel were
    provided with copies in advance and had ample opportunity to raise any
    objection. It is also common ground that the jury could consider after-the-fact
    conduct in deciding the first essential element of culpable homicide, that is,
    whether Elizabeth was a party to the unlawful act that caused Tiffanys death.

[62]

There is also no dispute that, with respect to Elizabeth, the first
    element of an offence of culpable homicide, being a party to an unlawful act
    causing death, can be made out by finding either that she was a co-perpetrator
    in the killing or that she was an aider to Fedrick, who was the perpetrator.
    Whether a juror considered Elizabeth to be a co-perpetrator or an aider did not
    matter in deciding whether the first element of the offence was met. As long as
    all of the jurors were satisfied beyond a reasonable doubt that she was either
    a party as a person who caused Tiffanys death by beating her or was a party to
    the unlawful act as an aider to Fedrick, they were to move to the next
    question, whether she had the state of mind required for murder. It did not
    matter if some jurors believed she was a co-perpetrator and others believed
    that she was an aider. Both could lead to murder. See
R. v. Thatcher
,
    [1987] 1 S.C.R. 652.

[63]

When the jury turned to question 2 or 2(b), Did Mrs. Gayle have the
    state of mind required for murder? it was made clear to them that in answering
    this question they could not consider the after-the-fact conduct. The after-the-fact
    conduct evidence could be used only in considering the first element of the
    offence, whether Elizabeth had caused Tiffanys death unlawfully, and not for
    any of the subsequent elements. Again, there is no dispute that this
    instruction was correct.

[64]

In our view, there is no realistic possibility that Elizabeth was
    prejudiced by the fact that the jury could use the after-the-fact conduct in
    choosing between the two modes of participation in the offence. The jury
    clearly could use it to decide the first element of the offence, that is,
    causing Tiffanys death either as a perpetrator or as an aider. Beyond using after-the-fact
    conduct in answering question 1 and question 1(b), the jury was instructed that
    evidence of after-the-fact conduct was to have no role in their deliberations.
    That is, the after-the-fact conduct was to play no role in the jurys
    consideration of the subsequent questions that had to be answered in the affirmative
    if Elizabeth was found guilty of first degree murder. Those questions could
    not, as we will explain, be answered in the affirmative unless the jury was
    satisfied, without reference to the after-the-fact conduct, that Elizabeth
    actively participated in the killing.

[65]

The trial judge gave clear instructions that, to be guilty of
    constructive first degree murder, Elizabeth had to have done something that was
    an essential, substantial and integral part of the killing of Tiffany. This
    is set out as question 3. Even assuming that the jury should not have, but did
    use after-the-fact conduct to decide Elizabeths mode of participation in the
    homicide, to reach their verdict of first degree murder the jury had to have
    found that her actions were an essential, substantial and integral part of the
    killing. This determination was made by the jury without reference to
    Elizabeths after-the-fact conduct. Juries are presumed to follow the trial
    judges instructions. As a result, even if consideration of after-the-fact
    conduct played a role in the jurys answer to question 1, the jury was required
    to reconsider Elizabeths role when they reached question 3 and the trial
    judges directions were clear that, in answering that question, they could not
    consider after-the-fact conduct. Having answered question 3 in the affirmative,
    it is apparent, therefore, that the jury excluded the possibility that
    Elizabeths role was simply her failure to call 911. They had to revisit any
    prior determination they may have made in answer to question 1 and, without
    reference to any after-the-fact conduct, assess with more precision the role
    that Elizabeth played in the homicide.

[66]

Having answered question 3 in the affirmative, there was a further
    safeguard. The jury had to go on and answer question 4. Was Elizabeths murder
    of Tiffany committed while committing the offence of unlawful confinement?
    The trial judge clearly directed that in answering this question, the jury
    could not use after-the-fact conduct. There can be no doubt that if the jury
    concluded, as they must have, that Elizabeth unlawfully confined Tiffany in the
    course of the murder, they determined quite independently from their answer to
    question 1 that Elizabeth was a co-perpetrator, not simply an aider to
    Fedricks assault.

[67]

As for the submission that an additional instruction was required
    regarding the use of after-the-fact conduct when considering the causation
    element of constructive first degree murder, we view the instructions given as
    sufficient. The jury was well aware that after-the-fact conduct was not to be
    considered at this point in their deliberations and no additional instruction
    was required.

[68]

As a result, we do not give effect to these grounds of appeal.

DISPOSITION

[69]

For the reasons given, both appeals are dismissed.

Robert J. Sharpe
    J.A.

Paul Rouleau J.A.

M.L. Benotto J.A.

Released: April 12, 2017


