



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ching, 2019 ONCA 619

DATE: 20190722

DOCKET: C63031

Strathy C.J.O., Rouleau and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Willy Palmes Ching

Appellant

Howard L. Krongold and Philippe Michaud-Simard, for the
    appellant

Howard Leibovich, for the respondent

Heard: March 6, 2019

On appeal from the conviction entered by Justice Leonard
    Ricchetti of the Superior Court of Justice, sitting with a jury, on October 3,
    2013.

Rouleau J.A.:

OVERVIEW

[1]

The appellant planned and deliberated the murder of his ex-wife Maria
    Ching. In the course of carrying out the plan to murder Ms. Ching, Ernesto
    Agsaulio, Ms. Chings uncle, intervened to prevent the appellants entry into
    the house where Ms. Ching was staying. A struggle ensued in the course of which
    the appellant mortally wounded Mr. Agsaulio.

[2]

Mr. Agsaulios intervention prevented the appellant from reaching Ms.
    Ching. The appellant alleges several errors in the trial judges instructions
    to the jury. Central among these is the instruction on first degree murder wherein
    the trial judge told the jury that if it concluded that the appellant had
    planned and deliberated the murder of Ms. Ching, this finding could operate to
    raise the murder of Mr. Agsaulio from second to first degree murder provided
    that Mr. Agsaulios murder was committed in the course of carrying out his plan
    to murder Ms. Ching.

[3]

For the reasons that follow, I would dismiss the appeal but substitute a
    conviction for second degree murder in lieu of the conviction entered for first
    degree murder.

FACTS

[4]

The appellant had a long history of mental illness and attempted
    suicide. In 2009, his marriage with Ms. Ching fell apart, and on September 2,
    2009, Ms. Ching moved out of their shared home and went to live with her uncle
    Mr. Agsaulio and his family. The appellant did not accept that the marriage may
    have been over and repeatedly tried to speak to Ms. Ching.

[5]

In the years leading up to the murder, the appellant had been on
    medication for depression. On October 4, his medication was changed and he was
    prescribed a new drug. He was also prescribed sleeping pills. Three days later,
    the appellant attempted suicide by an overdose of sleeping pills and was
    hospitalized for three days.

[6]

On October 24, the appellant tried to access Ms. Chings email account
    but could not get past the security question. He was upset as he suspected that
    she was having an affair. Later that day, he went to a Canadian Tire store and
    bought a knife and a hatchet.

[7]

The following day, he rented a car and drove to Mr. Agsaulios house to
    see Ms. Ching. He parked a block away. The appellants daughters, having
    realized the appellant was going to see Ms. Ching, called their mother to warn
    her. Ms. Ching then called the appellant, who was sitting in the car nearby, and
    told him to go home. He asked her to come outside so they could talk, which she
    refused to do. After she hung up, Ms. Ching told Mr. Agsaulio that the
    appellant was on his way.

[8]

The appellant arrived and rang the doorbell. Mr. Agsaulio opened the
    door but refused to allow the appellant to see Ms. Ching. The appellant and Mr.
    Agsaulio conversed for a few minutes. The appellant then drew the knife and
    hatchet and began hacking and slashing at Mr. Agsaulio. Mr. Agsaulio and his
    son managed to restrain him and, with the help of some neighbours, he was
    subdued.

[9]

The police arrived and the appellant was arrested for assault, as Mr.
    Agsaulio was still alive at that time. The appellant gave his first statement
    to the police on the day of his arrest, saying that he only wanted to talk to
    his wife and that he did not try to kill anyone. He repeatedly stated that the
    judge should give him a death sentence.

[10]

At
    the end of the interview, the police officers informed the appellant that Mr.
    Agsaulio had died from his injuries and that he would be charged with first
    degree murder. The appellant asked to use the washroom. He suddenly ran toward
    the stairwell and attempted to fling himself headfirst over the railing. One of
    the police officers grabbed the appellants waistband and hauled him back.

[11]

On
    the next day, the appellant gave a second statement to the police. He said he
    had gone to the house to see his wife and not to hurt anyone. He stated that he
    had brought the weapons in order to threaten to hurt himself, so that Ms. Ching
    would get back together with him. He also stated that he had bought the knife
    and hatchet a long time ago.

ISSUES

[12]

The
    appellant raises three grounds of appeal:

1.

the trial judge
    erred by instructing the jury that the appellant could be guilty of first
    degree murder if he planned and deliberated to kill Ms. Ching and killed Mr.
    Agsaulio during the execution of his plan;

2.

the trial judge
    ought to have given a no probative value instruction concerning the appellants
    attempt to jump over the railing; and

3.

the trial judge
    misdirected the jury on the use of the appellants conflicting statements.

ANALYSIS

(1)

The instruction on first degree murder

[13]

The
    trial judge instructed the jury that it could find the appellant guilty of
    first degree murder, second degree murder, or manslaughter, or that it could
    find that the appellant was not criminally responsible (NCR) on account of
    mental disorder. The appellant only takes issue with the trial judges
    instruction on first degree murder.

[14]

In
    his charge, the trial judge told the jury that, in order to find the appellant
    guilty of first degree murder, it had to be satisfied beyond a reasonable doubt
    of each of the following elements:

1.

the appellant
    committed an unlawful act;

2.

the unlawful act
    caused Mr. Agsaulios death;

3.

the appellant
    had the specific intent required for murder;

4.

the appellant
    had planned and deliberated the murder of Ms. Ching; and

5.

during the
    course of carrying out the plan to murder Ms. Ching, Mr. Agsaulio was killed.

[15]

The
    Crown maintains that the instruction was in accordance with the Supreme Court
    of Canadas direction in
R. v. Droste
, [1984] 1 S.C.R. 208. According
    to its submission,
Droste
established that an accused must have the
    requisite intent for murder and that the murder must be preceded by planning
    and deliberation in order to be guilty of first degree murder. The identity of
    the victim is irrelevant. The wording of the trial judges charge to the jury closely
    tracks the concluding paragraphs of the courts reasons in
Droste
and,
    in the Crowns view, is proper.

[16]

The
    appellant submits that, in the absence of a finding that Mr. Agsaulios murder
    itself was planned and deliberated, he could not be found guilty of the first
    degree murder of Mr. Agsaulio.

[17]

For
    the reasons that follow, I agree with the appellants submission. A finding
    that the appellant had planned and deliberated the murder of Ms. Ching and that
    Mr. Agsaulios murder was committed while carrying out that plan does not
    satisfy the statutory requirement for first degree murder. As I will explain,
    the trial judges reliance on
Droste
for the wording of his charge to
    the jury was misplaced.

[18]

Murder
    is defined in s. 229 of the
Criminal Code
, R.S.C. 1985, c. C-46
. Section 229(a) provides the
    following:

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;

[19]

Section
    229(b) provides that a culpable homicide is murder where the intent required in
    s. 229(a) is present but, by accident or mistake, a person other than the
    intended victim is killed. For the application of this provision, the fact that
    the ultimate victim was never intended to be killed is irrelevant. The section
    is commonly referred to as the transferred intent provision.

[20]

Section
    231 of the
Criminal Code
sets out the requirements for a murder to
    constitute first degree murder. As explained in
R. v. Farrant
, [1983]
    1 S.C.R. 124, at p. 140, this provision does not create a separate substantive
    offence, but classifies murder into two categories: first degree murder and
    second degree murder. The subsection that is relevant to the present case is s.
    231(2), which provides the following:

Murder is first
    degree murder when
it
is
    planned and deliberate. [Emphasis added.]

[21]

In my view, the text of s. 231(2) is quite clear. It is the murder that
    was planned and deliberate that can be raised to first degree murder. In this
    case, the murder referred to in the section, the it, is the murder of Mr.
    Agsaulio. For his murder to constitute first degree murder, it must have been
    planned and deliberate.

[22]

The charge to the jury did not ask the jurors to consider whether Mr.
    Agsaulios murder had been planned and deliberate. The charge only asked them
    to consider whether Ms. Chings murder had been planned and deliberate and
    whether Mr. Agsaulio was killed in the course of the execution of that plan.
    The fact that Ms. Chings murder was planned and deliberate, however, does not satisfy
    the requirement of s. 231(2). Her murder was not carried out and cannot qualify
    as the it in s. 231(2).

[23]

The circumstances in this case are quite different from the ones in
Droste
. In
Droste
, the transferred intent
    provision of the
Criminal Code
, s. 229(b), was used
    as the basis for the finding of first degree murder. In that case, the
    appellants children were killed by accident or mistake as he was trying to
    kill his spouse. The court reasoned that, since the intent needed to make the
    culpable homicide of his children a murder was the transferred intent to kill
    his wife, the same reasoning should apply to the planning and deliberation.
    Since the appellant had planned and deliberated the murder of his wife, the
    murder could be raised to first degree murder. The
mens rea
element needed for first degree murder that attached to the intended
    victim effectively transferred to the unintended ones. In the present case, the
    transferred intent provision was not argued or applied.

[24]

I do not, as the Crown suggests, accept that a proper reading of
Droste

confirms the broad proposition that the identity of the victim is
    irrelevant to classify the murder as first degree and all that is required is that
    the murder takes place in the course of carrying out the original plan. The reasons
    in
Droste

must be read while keeping in mind that
    the court was dealing with an accused who was found guilty of murder pursuant
    to s. 229(b), the transferred intent provision.

[25]

The confusion flows from a reading, out of context, of the final
    paragraph of the reasons of Dickson J. (as he then was) in
Droste
. In that paragraph, he states:

In the result,
    whether one approaches the question on an analysis of the relationship of [s.
    231(2)] to the substantive offence in [s. 229(b)], or on the basis of the
    underlying policy
rationale
of [s. 231(2)], or,
    even if it were relevant, on the basis of transferred intent, one arrives at
    precisely the same conclusion: planning and deliberation with relation to the
    killing of a specific person makes the offence first degree murder when in the
    course of carrying out the plan the accused in fact kills someone else: at p.
    223.

[26]

I acknowledge that, read literally and denuded of its context, the last
    part of the paragraph suggests that if an accused commits the murder of person
    B at any point in the course of carrying out the planned and deliberate murder
    of Person A, the murder of person B would constitute first degree murder. I
    might conclude that it would not matter that person A was not killed nor that
    the accused never even reached the point where a physical attack on person A
    occurred. Considered in light of the reasons as a whole, however, it is
    apparent to me that the phrase when in the course of carrying out the plan should
    be read as when in the course of carrying out the plan, he caused the death of
    the victim by accident or mistake. This reading is consistent with Martin J.A.s
    reasons in the court below. In
R. v.

Droste

(1981), 34 O.R. (2d) 588 (C.A.), at p. 592, Martin J.A. explained that
    the trial judge properly instructed the jury that, in order to find the accused
    guilty of first degree murder, it had to be satisfied beyond a reasonable doubt
    that,

the appellants
    intention to kill his wife was planned and deliberate and that in the course of
    carrying out that intention he caused the death of the children by accident or
    mistake.

[27]

The Court of Appeal and the Supreme Court of Canada were both saying,
    in
Droste
,
that where the transferred intent provision provides the basis of the
    murder conviction, the transferred intent should logically operate to supply
    the planned and deliberate requirement of s. 231(2). In other words, where person
    B is killed while the accused was carrying out the planned and deliberate killing
    of person A such that the transferred intent provision in s. 229(b) applies to
    make the killing a murder, the plan was, in effect, executed and it is only by
    accident or mistake that someone else died. As the planned and deliberate
    murder was executed, it attracts the higher level of moral culpability required
    for first degree murder.

[28]

As explained by Dickson J., the
mens
    rea
required for murder under s. 229(b) is intending
    the death or grievous bodily harm likely to cause death, to person A:
Droste
, at p. 221. The
actus reus
is causing
    the death of person B. When applying s. 231(2) to determine whether the murder
    is first or second degree, the it in s. 231(2) is the s. 229(b) murder
    and it is the
mens rea
for
    that offence that must be considered. This means that the element of planning
    and deliberation required by s. 231(2) to elevate the murder to first degree
    must be related to the specific
mens rea
of the applicable section:
Droste
, at p. 222. In other words, the
mens
    rea
on which the murder is grounded
    must be the same
mens rea
that elevates the murder to first degree pursuant to s. 231(2). The
    accused must have executed the murder he planned and deliberated, and it is
    only by accident or mistake that an unintended person was the victim.

[29]

In
Droste
, the intent to kill Ms. Droste provided the
mens
    rea
necessary under s. 229(b) to make
    the killing of the children a murder. That
mens rea
, the intent to kill Ms. Droste, was therefore the
    killing that, pursuant to s. 231(2), had to be planned and deliberate in order
    to raise the childrens murder to first degree. In the present case, the jury
    found that the appellant intended to kill Mr. Agsaulio. This was the
mens
    rea
supporting the appellants
    conviction for murder pursuant to s. 229(a). The planning and deliberation,
    however, was in respect of a different intended killing, the killing of Ms.
    Ching. The plan to kill Ms. Ching never reached the point where the appellant
    executed the killing. Ms. Ching remained on the second floor of the house well
    beyond the reach of the appellant. One will never know whether, had the
    appellant been allowed into the house, he would have carried out his plan.

[30]

Contrary to the Crowns
    submission, there is a sound policy reason for concluding that an accused who
    intentionally kills person B when in the course of carrying out the planned and
    deliberate murder of person A will be guilty of second degree murder, whereas
    an accused who accidentally or mistakenly kills person B when person A was the
    target will be convicted of first degree murder. This result reflects the fact
    that in the first case the actual killing may well have been impulsive while in
    the second, it was the result of a planned and deliberate act.

[31]

This interpretation
    is supported by existing case law. For example, in
R. c. Belzil
, [1989] R.J.Q. 1117 (C.A.), the Quebec Court of
    Appeal substituted convictions for second degree murder on an appeal from
    convictions for first degree murder. In that case, three co-accuseds planned to
    kill Mr. Désormiers. As one of the co-accused, Mr. Dubeau, was carrying out the
    planned killing of Mr. Désormiers, a second co-accused, Mr. Lavoie, killed
    another person, Mr. Bourassa, who tried to intervene. On appeal, the court
    concluded that the killing of Mr. Désormiers was first degree murder as it had
    been planned and deliberate. The murder of Mr. Bourassa, however, constituted second
    rather than first degree murder. The court found that the transferred intent
    situation that existed in
Droste
could not be used. It was Mr. Bourassas
    intervention and not the plan to kill Désormiers that led to Mr. Bourassas
    death. His death was never planned by the co-accused. As the court explained:

[M]ême si les
    accusés étaient prêts à tuer dautres personnes si nécessaire, le seul meurtre
    planifié était celui de Désor
miers. Ce nest aucunement
    lacte planifié visant à tuer Désormiers qui causa la mort de Bourassa. La mort
    de ce dernier découle dun acte totalement différent, dun auteur différent: at
    p. 1129.

[32]

Moreover, this courts decision in
R.
    v. Dipchand
, [1991] O.J. No. 1775 (C.A.), leave to appeal abandoned, [1991]
    S.C.C.A. No. 479, has some similarity to the present case. In
Dipchand
, the trial judge directed the verdict of
acquittal
    from the charge of first degree murder of the accuseds sister-in-law, Ms. Ramdai.
    The Crown appeal was allowed. On appeal, the court found that the record
    allowed for two routes to first degree murder of Ms. Ramdai. First, there was
    evidence upon which a jury properly instructed could in fact find that the
    respondent had planned and deliberated to kill Ms. Ramdai. It is, however, the second
    route to reaching a verdict of first degree murder that is of interest. The court
    determined that it was open to the jury to find that the accused had planned
    and deliberated to kill his wife and that the plan also included the plan to
    kill any person who tried to stop him from carrying out the plan to kill his
    wife. Implicit in the decision, therefore, is that the jury would have to have been
    instructed in that regard. The jury would be told that, in order to find the
    accused guilty of first degree murder, it would have to find that the plan was
    not simply a plan to kill his wife, but also that the accused planned and
    deliberated the killing of any person who got in his way. No such instruction
    was given in the present case.

[33]

In
    its submissions, the Crown relied on two cases in support of its interpretation
    of
Droste
:
R. v.
    Nygaard
, [1989] 2 S.C.R. 1074 and
R. v. Kluke
(1987), 22 O.A.C.
    107 (C.A.). The Crown maintains that these cases confirm that where a murder is
    planned and deliberated, the identity of the victim is irrelevant.

[34]

The
    Crown directed us to p. 1087 of
Nygaard
, where the court stated the
    following:

In
Droste v. The Queen
,
    the issue was whether the planning and deliberation to kill A which resulted in
    the killing of B should be classified as murder in the first degree. It was
    found that the requirement of planning and deliberation was a requirement that
    related to the intention to take a human life and not to the identity of the
    victim. On the facts of that case there could be no doubt that Droste meant to
    cause death to a human being and planned and deliberated the death of a human
    being. In the result, Dickson J. (as he then was) writing on behalf of the
    Court concluded that [s. 231(2)] could operate in conjunction with [s. 229(b)]
    to sustain a first degree murder conviction. However, that decision centred on
    requirements of a section of the
Code
that are different from [s. 229(a)(ii)].
    The
Droste
decision cannot be determinative of the issue in the case
    at bar.

[35]

The
    first portion of the passage from
Nygaard
could support the Crowns position.
    When the paragraph is read as a whole, however, it is clear that the court
    recognized that the application of
Droste
was restricted to murders
    based on s. 229(b).

[36]

The
    Crown also argued that
Kluke
stands for the proposition that, provided there is a planned and deliberate
    killing, the identity of the victim does not matter. It relied, in particular, on
    para. 26 of
Kluke
where the court explained the following:

If the appellant had the requisite
    intent under s. [229(a)], the killing would constitute murder regardless of his
    previous knowledge of the ultimate identity of his victim. If that intent was
    preceded by planning and deliberation as defined in s. [231(2)], then the
    identity of the victim was irrelevant for the purpose of classifying the
    murder.

[37]

This
    statement must also be read in context. The court in
Kluke
was
    concerned that the trial judge had instructed the jury on s. 229(b) murder in
    the absence of any evidence that the victim was killed by accident or mistake.
    The Crown sought to support the propriety of that aspect of the charge on the
    basis that if the appellant planned in a deliberate way to kill any homosexual
    who would approach him in the park, then the identity of the person killed was
    irrelevant: at para 24. In other words, the planning and deliberation being
    discussed in the passage relied on by the Crown was a plan to kill
any
homosexual in the park. The target, the planned
    victims, were, in that case, a class of persons. The murderer need not therefore
    know the specific identity of the actual victim, only that the victim was in
    the class he set out to kill. This approach bears some similarity to the
    approach outline above in
Dipchand
, where the appellant would need to
    plan the killing of any person who comes in his way.

[38]

Based
    on my reading of s. 231(2) and the case law, therefore, I have concluded that
    the trial judges charge on the requirement for first degree murder was in
    error.

(2)

The instruction on the suicide attempt

[39]

The
    trial judge instructed the jury that the appellants post-offence conduct may
    or may not help it decide whether he committed the alleged offence. The trial
    judge then referred to the evidence that, after being told that Mr. Agsaulio
    died, the appellant ran from the police officers, went to the nearby railing,
    and started to go over it. The trial judge instructed the jury that the first
    step it should take was to determine whether the appellant went to the railing
    to commit suicide or to try to escape. The second step was to decide whether
    the appellant went to the railing because he was conscious of having committed
    the offence. The trial judge then said the following:

If you do not or cannot find that Mr.
    Ching did go to the railing because he was conscious of having done what is
    alleged against him, you must not use this evidence in deciding or in helping
    you decide that Mr. Ching committed the offence charged. On the other hand, if
    you find that Mr. Ching did go to the railing because he was conscious of
    having done what is alleged against him, you may consider this evidence, this
    post-offence conduct, together with all of the other evidence in reaching your
    verdict.

The trial judge did not give a limiting instruction on
    the use the jury could make of the appellants post-offence conduct.

[40]

The
    appellant argues that his apparent suicide attempt was irrelevant to his degree
    of culpability and the trial judge ought to have given a no probative value
    instruction or another form of limiting instruction. He had acknowledged that
    he killed Mr. Agsaulio unlawfully and it was clear from the evidence that the
    appellant suffered from severe depression. It is in that context that the
    appellant argues that logic and human experience would suggest that the
    appellants suicide attempt was as consistent with his having unlawfully but
    unintentionally killed Mr. Agsaulio as it was with the appellant having
    intentionally killed him. As a result, the appellant submits that the trial
    judge erred in leaving this evidence with the jury without a limiting
    instruction.

[41]

I
    disagree. I acknowledge that an accuseds post-offence conduct can be probative
    of his or her culpability but not necessarily of the level of that culpability.
    As explained by this court in
R. v. Angelis
, 2013 ONCA 70, 296 C.C.C.
    (3d) 143, at para. 53:

[O]rdinarily, trial judges have been obliged to instruct juries
    that post-offence conduct evidence cannot be used to infer that the accused
    committed murder rather than manslaughter.

It is not, however, always necessary for a trial judge
    to tell a jury both the permissible and impermissible uses of after-the-fact
    evidence: see
R. v. Robinson
, 2017 ONCA 645, 352 C.C.C. (3d) 503, at
    para. 63.

[42]

Jury
    instructions must be understood as a whole and viewed in the context of the
    evidence led at trial and the positions advanced by the parties: see
R. v.
    Badgerow
, 2019 ONCA 374, at paras. 17-19. In the circumstances of this
    case, the relevance of the appellants apparent suicide attempt related
    principally to his claim that he was NCR. The appellant relied on the apparent
    suicide attempt as evidence to support his position that he was suffering from
    mental illness, such that he was either NCR or incapable of forming the intent necessary
    for murder. For its part, the Crown pointed to the suicide attempt as evidence
    that the appellant was capable of processing information, was aware of the
    nature and consequences of his actions and thus, criminally responsible for his
    act.

[43]

When
    the charge is read as a whole, the jury would have understood that the Crown
    and defence were both relying on this incident principally to support their
    respective theories regarding the appellants capacity to understand the consequences
    of his actions and his capacity to form the requisite intent for murder.

[44]

Notably,
    in the portion of the charge where the trial judge related to the jury the
    defence position that he was suffering from severe mental illness rendering him
    either NCR or incapable of forming the necessary intent for murder, the trial
    judge specifically referenced the appellants attempt to jump over the railing.

[45]

In
    my view, therefore, there is no reasonable possibility that the jury would, as
    the appellant alleges, have made improper use of the apparent attempted suicide
    in reaching its verdict. The appellant did not request a limiting instruction
    and he took no issue with the charge, a draft copy of which he had been
    provided with in advance. The appellant was in no way prejudiced by the trial
    judges failure to give a limiting instruction. In the circumstances of the
    case, therefore, such an instruction was not necessary.

(3)

The instruction on contradictory statements

[46]

There
    was evidence at trial that the appellant lied in his statements to the police, in
    information he gave to doctors who assessed him prior to trial, and in his
    trial testimony. It is well settled that, in the event that the jury found one
    or more of these statements to be lies, it could use them in its assessment of
    the appellants credibility. Absent independent evidence of concoction,
    however, disbelief of the appellant could not be used as evidence of guilt: see
R. v. Selvanayagam
, 2011 ONCA 602, 281 C.C.C. (3d) 3, at para. 27.

[47]

Independent
    evidence of concoction can, however, be found in the very content of the impugned
    statements, depending on the context in which they were made. Independent, in this
    sense, means that the evidence of concoction is separate from the evidence of
    guilt, not necessarily separate from the statements themselves. For example, where
    an accused has made contradictory exculpatory statements, the
    self-contradiction of an accused may constitute independent evidence of
    fabrication: see
R. v. Shafia
, 2016 ONCA 812, 341 C.C.C. (3d) 354, at
    para. 288, leave to appeal refused, [2017] S.C.C.A. No. 17.

[48]

The
    instruction to the jury on the use it could make of the appellants
    inconsistent statements was a significant issue at trial. The trial judge
    therefore consulted counsel during pre-charge discussions and settled on the
    following wording for his charge:

If you conclude that Mr. Ching was
    not truthful to the police, psychiatrist, or this court, you cannot use that
    determination to conclude or assist you to conclude that Mr. Ching is guilty of
    an offence or that the Crown has proven an essential element beyond a
    reasonable doubt. The only use you can make of such a determination is to use
    it to determine whether to rely on all, none, or some of Mr. Chings statements
    or evidence in deciding this case, or may use it to assist in determining what
    Mr. Chings intentions were on October 25, 2009.

[49]

The
    appellant submits that by telling the jury that it could use the evidence of
    the appellants lies in determining what Mr. Chings intentions were on
    October 25, 2009, the trial judge was, in effect, improperly suggesting that
    the jury could use these lies to infer the appellants guilt, and that it could
    do so absent an independent finding of concoction.

[50]

The
    appellant argues that the impact of this error was particularly significant
    given that, in its closing, the Crown repeatedly told the jury that the
    appellants true intention on the day in question could be inferred from his
    many lies.

[51]

I
    reject this ground of appeal. The alleged untruths and lies of the appellant
    encompassed a great deal of evidence, some more significant than others. For
    example, the contradictions and inconsistencies in the appellants trial
    evidence and statements he gave to police and psychiatrist with respect to his
    purchase of the hatchet and knife used in the attack were significant.
    Similarly, the various explanations the appellant gave as to what happened when
    he arrived at Mr. Agsaulios house were contradictory and equally significant.
    Those contradictions and the circumstances in which they were told strongly
    supported the inference that some of the explanations proffered were concocted
    to avoid culpability. In the circumstances, if the jury found that the
    statements were lies, it was entitled to conclude that they were fabrications and
    draw an inference that the appellant went to the victims house to kill his
    ex-wife and not, as he alleged, to threaten to kill himself.

[52]

In
    the pre-charge discussions, the Crown requested that the trial judge give an
OConnor
instruction. This would have involved telling the jury the circumstances in
    which the disbelief of an accuseds statements could be used to support a
    conclusion that these statements were fabricated to deflect guilt. As part of
    such an instruction, however, the trial judge would have had to review the
    numerous inconsistencies in the appellants trial and pre-trial statements,
    thereby highlighting and emphasizing the evidence suggestive of concoction.

[53]

In
    response to the Crowns suggestion, the trial judge proposed to say something
    soft enough without getting into the lies and without having to articulate
    all the evidence going back and forth. He suggested giving maybe just a one-liner
    or a one paragraph. Defence counsel sensibly agreed. The impugned paragraph
    was later agreed to by counsel. The precise line that the jury may use the
    statements in determining what Mr. Chings intentions were on October 25,
    2009 was also specifically agreed to by defence counsel after some discussion
    between the trial judge and the Crown.

[54]

This
    is not a case where the trial judge acted unilaterally in deciding how to put
    the issue to the jury. Counsels vetting and endorsement of the charge is a
    significant factor in assessing whether the jury was properly instructed. As
    explained by Doherty J.A. in
R. v. Polimac
, 2010 ONCA 346, 254 C.C.C.
    (3d) 359, leave to appeal refused, [2010] S.C.C.A. No. 263, at para. 96:

Counsels duty to assist the court
    in fulfilling its obligation to properly instruct the jury, referred to by Fish
    J. in
R. v. Khela
, [2009] 1 S.C.R. 104 at para. 49, takes on added
    significance where counsel has been given a full copy of the proposed
    instructions and an ample opportunity to vet them, and has engaged in a
    detailed pre-trial dialogue with the trial judge. In those circumstances,
    counsels position at trial becomes very important when evaluating complaints,
    raised for the first time on appeal, that matters crucial to the defence were
    not properly addressed by the trial judge in her instructions.

[55]

In
    the present case, counsel agreed with the charge on this issue. By accepting
    the jury instruction that the trial judge ultimately gave, the appellants
    trial counsel made a tactical decision. It would not have served the
    appellants purpose for the trial judge to provide a formal
OConnor
instruction,
    given the damaging evidence that would necessarily have to be reviewed in this
    instance. As a result, I do not consider that the instruction given by the
    trial judge prejudiced the appellants right to a fair trial.

CONCLUSION

[56]

Other
    than with respect to the charge relating to first degree murder, I would
    dismiss the grounds of appeal. With respect to the instruction on first degree
    murder, I have concluded that the instruction was incorrect. Counsel advised
    the court that in such an eventuality, they had agreed that a verdict of not
    guilty of first degree murder and a verdict of guilty of second degree murder
    should be substituted. As a result, I would dismiss the appellants conviction
    appeal under s. 686(1)(b)(i) of the
Criminal Code
and substitute a
    conviction for second degree murder in lieu of the conviction for first degree
    murder pursuant to s. 686(3) of the
Criminal Code
. I would ask the parties
    to contact the court office within thirty days to arrange a conference call
    with me to set a schedule for submissions on the appropriate period of parole
    ineligibility.

Released: July 22, 2019

PR

Paul Rouleau J.A.

I agree G.R. Strathy
    C.J.O.

I agree B.W. Miller
    J.A.


