





CITATION: R. v. Beausoleil, 2011 ONCA 471



DATE: 20110622



DOCKET: C48999



COURT OF APPEAL FOR ONTARIO



Simmons,

Rouleau
and
Karakatsanis
JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Christopher

Beausoleil



Appellant



Philip Campbell and
Vanora
Simpson, for
          the appellant



Gillian Roberts, for the respondent



Heard: March 9, 2011



On appeal from the conviction entered by Justice Paul U.
Rivard
of the Superior Court of Justice, sitting with a
          jury, on November 26, 2007.



By the Court
:



[1]

The appellant appeals from his conviction for second
    degree murder.

[2]

During the late evening of February 27, 2006 and just
    into the early morning of February 28, 2006, the appellant and five friends
    were drinking in an apartment in Toronto. The appellant and his close friend,
    Ryan
Horlock
, became involved in an argument. The
    argument became physical  involving at least pushing and shoving  and others
    intervened to separate the two young men on more than one occasion. The
    appellant was described as being angry. When Mr.
Horlock
left the apartment, the appellant followed him down the hall to the 8
th
floor elevator lobby and stabbed him once in the chest with a kitchen knife. The
    single stab wound
transected
Mr.
Horlocks
heart. Although he was able to take the elevator downstairs and walk outside
    before collapsing, he died on the operating table a few hours later.

[3]

There was no dispute at trial that it was the appellant
    who stabbed Mr.
Horlock
. The only issue was whether
    the appellant had the requisite intent for murder. The appellants four other
    friends testified at trial; the appellant did not.

[4]

The evidence at trial indicated that the six young men
    consumed about 44 bottles of beer and close to 50 ounces of rum between about
    10:15 p.m. on February 27, 2006 and just before 1 a.m. on February 28, 2006.
    All agreed that the appellant was one of the heavier drinkers during the
    evening  meaning that he likely consumed more than 16 drinks in
under
three hours.

[5]

The defence theory at trial was that the appellant and
    the victim were extremely close friends and that whatever issues they may have
    been arguing about would not have prompted the appellant to want to kill his
    friend. The defence contended that the appellant stabbed Mr.
Horlock
because he was drunk  so drunk he could not
    foresee the likelihood of death ensuing as a consequence of his actions. The
    defence also pointed to the relatively minimal force of the blow and the
    absence of follow-up blows as demonstrating the absence of
an
    intent
to kill.

[6]

The Crowns theory was that the appellant was so angry
    at the victim immediately prior to the stabbing that he was literally frothing
    at the mouth  and shouting words along the lines of you shouldnt have fucked
    with me or you shouldnt have messed with me.  According to the Crown, the appellants
    conduct in immediately cleaning the knife following the stabbing and in
    crafting lies about who he was and what he was doing when he later encountered
    the police demonstrated that he was lucid enough to form the intent for murder.

[7]

The appellant raises two main issues on appeal:

i)

Did the trial judge err in failing to provide a
    limiting instruction concerning the use of bad character evidence?

ii)

Did the trial judge err in his instructions to the jury
    concerning

mens

rea
and intoxication?

[8]

For the reasons that follow, we would dismiss the
    appeal.

1. Did the trial judge err in failing to
    provide a limiting instruction concerning the use of bad character evidence?

(
i
) Background

[9]

The bad character evidence adduced at trial consisted
    of evidence relating to the appellants lifestyle (such as evidence of the
    appellants frequent and heavy consumption of alcohol and drugs and fraudulent
    receipt of welfare cheques at an address at which he did not reside) as well as
    evidence of other criminal activity on the part of the appellant. The latter
    evidence consisted largely of evidence arising from encounters between the
    appellant and the police shortly after the stabbing.

[10]

Within an hour of Mr.
Horlocks
death, a police officer encountered the appellant in the stairwell between the
    eighth and ninth floors of the apartment building. The appellant gave a false
    name and also claimed that he did not have any identification. After the
    officer noticed the appellants wallet in his pocket, the appellant admitted
    that he had lied about his name and acknowledged he should not have. He said he
    was going to an apartment on the eighth floor to buy marijuana.

[11]

The officer and his partner determined that the
    appellant was subject to a conditional sentence order and a bail order. Both
    orders prohibited the appellant from consuming alcohol and required that he
    abide by a curfew. The officers arrested the appellant for breaching the two
    orders.

[12]

According to the officers, once arrested, the appellant
    became aggressive and confrontational. He told the officers his lawyer would
    eat [them] alive. He claimed that he was 21 and one in court and that Judge
    Sheppard wont do anything to [him]. The appellant also called the officers
    offensive names, kicked one of them and, as a result, had to be restrained.

[13]

At the police station, the appellant boasted, 54
    Division has never made anything stick on me. As a result of kicking one of
    the officers while at the apartment building, the appellant was charged with
    assault police.

[14]

Defence counsel at trial did not object to the
    admissibility of any of the foregoing evidence, effectively acknowledging that
    it was admissible to permit an understanding of the unfolding of events on the
    night in question and of the appellants pattern of alcohol and drug
    consumption  and also to assist in assessing the appellants level of
    intoxication.

[15]

However, defence counsel did object when the Crown
    sought to call a witness to identify Judge Sheppard as the judge who had
    imposed the conditional sentence order on the appellant. Defence counsel submitted
    that this was inadmissible bad character evidence. The trial judge agreed. He
    ruled that the Crown could make its point that the appellant was lucid enough shortly
    after the stabbing to remember the name of a Toronto judge simply by adducing
    evidence that there is a Judge Sheppard who presides over criminal matters in
    Toronto. In this regard, the trial judge held that it was unnecessary for the
    Crown to emphasize that the appellant was subject to a conditional sentence
    order.

(ii) The appellants position on
    appeal

[16]

The appellant submits that the evidence indicating that
    he was subject to a conditional sentence order and therefore had a criminal
    record, together with the evidence of other criminal activity (breaching court
    orders, assaulting a police officer) and his claims of beating criminal
    charges, was highly prejudicial in that it solidified his image as a dissolute
    and criminal character.

[17]

According to the appellant, a limiting instruction concerning
    the permissible and impermissible uses of the bad character evidence was mandatory
    in this case to caution the jury against using such evidence to reason that the
    appellant was more likely to have intended to kill Mr.
Horlock
because he is a bad man. Such an instruction would also guard against the
    possibility that the jury would find the appellant guilty of second degree
    murder to punish him for other crimes he had committed but for which he had not
    been held accountable.

[18]

The appellant points out that this evidence was
    repeated over and over again, by the Crown in her closing and by the trial
    judge in his charge, as supporting the Crowns theory that the appellant was
    lucid. The appellant argues that, in the absence of a proper caution, the jury
    would have no way of knowing they could not resort to propensity reasoning to
    find the appellant guilty of second degree murder.

(iii) Discussion

[19]

Although we agree that the trial judge should have held
    a formal pre-charge conference at which he canvassed with counsel the need for
    a limiting instruction of any kind in the circumstances of this case
[1]
and that giving a standard bad character evidence limiting instruction would
    have been appropriate, we do not accept the appellants submission that the
    failure to give such an instruction constitutes reversible error on the facts
    of this case.

[20]

This court has held on other occasions that such an
    instruction is not necessary in every case:
R. v. C.B.
(2008), 237 O.A.C. 387 (C.A.) at
para
.
    35. The requirement for such an instruction will depend on a variety of
    circumstances, including the nature and extent of the bad character evidence in
    issue
[2]
;
    the issue(s) at the trial to which the bad character evidence is properly
    relevant
[3]
;
    the likelihood that such an instruction will confuse the jury
[4]
or unnecessarily draw attention to the discreditable conduct
[5]
;
    and other factors affecting the extent of the risk that such evidence will be
    used improperly
[6]
.

[21]

On the facts of this case, we see no realistic
    possibility that the evidence in issue would be used improperly by the jury to
    assist them in concluding that the appellant was guilty of second degree murder
    as opposed to manslaughter because he is a bad man.

[22]

The evidence in issue is not similar fact evidence and
    it was not being used to support directly an inference that the appellant
    committed the offence of second degree murder. In particular, the issue in this
    case was not whether the appellant stabbed the victim; rather, it was whether
    the appellant formed one of the requisite intents for second degree murder. The
    evidence of the appellants involvement in other discreditable conduct sheds no
    real light on that issue through propensity reasoning or otherwise.

[23]

In the circumstances of this case the fact of the
    appellants involvement in other discreditable conduct was essentially incidental
    to the purpose for which the evidence of such conduct was admitted  to
    demonstrate the appellants lucidity  or lack of lucidity



at
a time proximate
    to the stabbing. And neither the trial judge nor counsel suggested to the jury
    that it could be used for any purpose other than assessing the appellants
    lucidity.

[24]

Importantly, the evidence did not disclose the nature
    of the appellants past criminal conduct  if
anything,
the fact that the appellant did not receive an actual jail sentence for his
    past misdeed(s) would have led the jury to conclude that the past conduct was not
    nearly as serious as culpable homicide. And the evidence of the appellants
    current criminal conduct, consisting of drug use, possible welfare fraud, breaching
    a curfew, breaching an alcohol prohibition and kicking a police officer while
    drunk, was essentially trivial by comparison to the offence of second degree
    murder.

[25]

We acknowledge that the evidence concerning the
    appellants interactions with the police did portray him as a somewhat volatile
    and rather belligerent drunk. However, as we have said, those interactions were
    relatively benign by comparison to his conduct in stabbing his friend. Moreover,
    particularly in the light of the evidence of the altercation between the two
    young men immediately prior to the stabbing, we see no air of reality to the
    notion that the jury would have resorted to some form of propensity reasoning
    relating to the appellants character while drunk to determine his state of
    mind at the time of the killing.

[26]

In the circumstances, we see no realistic possibility
    that the fact of undisclosed prior criminal conduct that did not result in a
    jail sentence or of current relatively trivial criminal conduct would have led
    the jury to reason that the appellant formed one of the requisite intents for
    murder in relation to his good friend

[27]

As for the appellants drunken boast of being 21 and
    one in court, in our view, the jury would have seen it for what it was  a
    drunken boast. Once again, we see no realistic possibility that the jury would
    conclude based on that statement that there was a need to punish the appellant
    for past misdeeds by convicting him not just of manslaughter but of second
    degree murder.

[28]

Defence counsel at trial neither requested the
    instruction contended for on appeal nor objected to the failure to give such an
    instruction. In our view, this supports our conclusion that such an instruction
    was unnecessary in the circumstancesno one at this trial perceived a realistic
    possibility that the jury would use the discreditable conduct evidence
    improperly to assist it in finding the appellant guilty of second degree
    murder.

2. Did the trial judge err in his instructions
    to the jury concerning
mens

rea
and intoxication?

[29]

The appellant raises four issues under this heading:

i)

The trial judge erred by instructing the jury to
    consider the defence of intoxication after making a finding of
mens

rea
for
    second degree murder;

ii)

The trial judge failed to give a sufficient instruction
    concerning the impact of alcohol consumption on the permissible inference that
    a sane and sober person intends the predictable consequences of their acts;

iii)

The trial judge erred in his instructions on motive;
    and

iv)

The trial judge failed to adequately review the
    evidence and relate it to the issues of
mens

rea
and intoxication.

(
i
) The trial judge erred by instructing the
    jury to consider the defence of intoxication after making a finding of
mens

rea
for
    second degree murder.

[30]

We agree
    that the trial judge made an obvious error in dealing with the issue of
    intoxication. In particular, the trial judge failed to insert the standard
    instructions on intoxication into the standard instructions on intent for
    second degree murder in the location recommended in
Watt J.A.s
Ontario Specimen Jury Instructions
    (Criminal)
(Toronto: Thomson Carswell, 2002). Instead, the trial judge read
    the standard instructions on intoxication after reading the standard
    instructions on intent. Further, before reading the instructions on
    intoxication, the trial judge said the following, which does not form part of
    the specimen instructions:

If you are not satisfied beyond a reasonable doubt
    that [the appellant] had either state of mind required to make his unlawful
    killing of Ryan
Horlock
murder, you must find [the appellant]
    not guilty of second degree murder but guilty of manslaughter.
If you are satisfied beyond a reasonable
    doubt that [the appellant] had either state of mind to make his unlawful
    killing of Ryan
Horlock
murder, you must consider the
    defence of intoxication
. [Emphasis added.]

[31]

At first blush, the effect of this error appears to be
    that the trial judge invited the jury to consider the effect of the appellants
    alcohol and drug consumption on his state of mind after the jury reached the
    conclusion that the appellant possessed one of the requisite intents for
    murder. Such an instruction makes no sense, because the jury is required to
    take into account the effect of alcohol and drug consumption as part of
    determining whether an accused had one of the requisite intents for murder.

[32]

That said, taking account of the trial judges general instruction
    on intent, we are not persuaded that the trial judges error in the placement
    of the intoxication instructions constitutes reversible error in the
    circumstances.

[33]

In giving his general instructions on intent, which
    preceded the erroneous instruction set out above, the trial judge instructed
    the jury to consider the whole of the evidence and also specifically instructed
    them to consider the opinions of the experts who testified about the impact of
    alcohol on ones mental functioning.

[34]

In the face of these instructions, the jury must
    inevitably have considered all of the evidence relating to intoxication when
    determining the question of the appellants intent. Although these instructions
    did not capture all of the subsequent instructions on intoxication, in our
    view, they were sufficient to alert the jury to the fact that they were
    required to consider the evidence of intoxication before making a finding
    concerning the appellants intent.

(ii) The trial judge erred by failing to give a sufficient instruction
    concerning the impact of alcohol consumption on the permissible inference that
    a sane and sober person intends the predictable consequences of their acts

[35]

Both in the course of his general instructions on
    intent and his subsequent instructions on intoxication, the trial judge gave
    the jury a standard instruction concerning the permissible inference that a
    sane and sober person intends the consequences of their acts.

[36]

The first reference to the permissible inference
    appears in the general instructions on intent. In that instance, in addition to
    telling the jury it was not a conclusion that they must reach, the trial judge said:

It is a conclusion that you may only reach,
    however, after considering all of the evidence.

[37]

Later, when dealing with the permissible inference in
    the instructions on intoxication, the trial judge said:

It is a conclusion you may only draw after
    considering all of the evidence including evidence about [the appellants]
    consumption of alcohol and drugs.

[38]

Relying on
R. v.
    Seymour
, [1996] 2 S.C.R. 252 at
para
. 23, the
    appellant argues that the trial judge erred by failing to specifically instruct
    the jury that evidence of intoxication may rebut the permissible inference.

[39]

However, in its subsequent decision in
R. v. Daley
, [2007] 3 S.C.R. 523, the
    Supreme Court explained that the critical issue is not whether particular words
    were used in the charge, but rather whether the charge adequately conveyed to
    the jury that the central question is whether the
accuseds
degree of intoxication affected his ability to foresee the consequences of his
    actions.

[40]

In this case, in our view, it would have been clear to
    the jury that they had to consider the evidence of the appellants level of
    intoxication in assessing whether he possessed one of the requisite intents for
    murder at the time of the stabbing.

(iii) The trial judge erred in
    his instructions on motive

[41]

The appellant contends that the trial judge erred in
    his instructions on motive by focussing on the Crowns reliance on the
    disagreement between the appellant and the victim and by failing to allude to
    the defences reliance on the absence of a credible motive for the killing.

[42]

The trial judges instructions on motive read as
    follows:

In this case the Crown relies on the disagreement
    between [the appellant] and Ryan
Horlock
for [the
    appellant] to commit the offence alleged. It is for you to decide whether [the
    appellant] had such a
motive,
or any motive at all,
    and how much or little you will rely on it to help you decide the case. You
    have heard evidence that [the appellant] said you shouldnt have messed with
    me after walking up to Ryan
Horlock
at the elevator.
    You also heard that upon coming back into the apartment [the appellant] may
    have said fuck that guy, I stabbed him. What [the appellant] did or said
    might help you decide whether he is guilty or not guilty of the offence. The
    first thing for you to decide is whether [the appellant] did or said these
    things. If you find that he did not say these things, you must not consider
    this evidence in reaching your verdict. If you find that he did in fact say
    these things, you should consider next whether this was because he committed
    the offence charged. If so, you should consider this evidence, together with
    all of the other evidence, in reaching your verdict. If, however, you find that
    [the appellant] did or said these things for some other reason, you should not
    consider that as evidence of guilt.

[43]

We agree with the appellants submission that the trial
    judges instructions concerning the use the jury could make of the appellants
    statements at the time of and immediately after the stabbing were unhelpful. As
    the appellant notes, there was no issue at trial that the appellant stabbed the
    victim. Moreover, an instruction to the jury to consider
whether an accused made an
    after-the-fact statement
because
he committed the offence was not
    appropriate:
R. v. Hall
(2010), 269
    O.A.C. 199 (C.A.).

[44]

We also agree that it may have been preferable had the trial judge set
    out the defence position on motive at the time of addressing the subject of
    motive generally.
However, we note that the trial judge did set out the
    defence position that the appellant and the victim were best friends and that
    the appellant had no motive to kill his friend when reviewing the position of
    the defence. Although the trial judge did so in brief compass, this was a short
    trial that focussed on a single issue. We are satisfied that the defence
    position on motive would have been apparent to the jury.

(iv) The
trial judge failed to adequately review the
    evidence favouring the defence and relate it to the issues of
mens

rea
and
    intoxication

[45]

We agree that the trial judges references to the
    evidence during the course of his legal instructions were cursory and that his
    overall review of the evidence in a witness-by-witness format was less than
    ideal. Nonetheless, as we have said, this was a relatively brief trial that
    focussed on a single issue. We are not satisfied that the manner in which the
    trial judge reviewed the evidence and related it to the issues in the case
    constitutes reversible error. Accordingly, we would not give effect to this
    ground of appeal.

Disposition

[46]

Based on the foregoing reasons, the appeal is
    dismissed.


Signed:           Janet Simmons J.A.

Paul
    Rouleau J.A.


Karakatsanis
    J.A.

RELEASED:  JS June
    22, 2011





[1]

In some instances, rather than give the standard bad
    character evidence instruction, trial judges have instructed juries that, for
    example, an
accuseds
lifestyle should play no role
    in their deliberations: for example,
R. v. Henderson
(2001),
145 O.A.C. 150 (C.A.).



[2]

For example,

in
R. v. C.B.
, evidence was led that the
    accused was being investigated by the Catholic Childrens Aid Society (CCAS)
    for an unrelated matter when his niece made allegations against him and that
    it was necessary to include the nieces allegations in the file relating to the
    unrelated matter. This court held that the prejudicial effect of the bad
    character evidence was low as no information about the unrelated matter was
    disclosed. Moreover, a limiting instruction would have drawn attention to the
    fact that the appellant was involved with the CCAS on an unrelated matter.



[3]

For example, see
R.
    v.
Merz

(1999), 140 C.C.C. (3d) 259
at 278, in which the bad character evidence
    of threats was relevant to show motive, which, in turn, constituted
    circumstantial evidence of identity and intent. Doherty J.A. stated, I see no
    reason to warn the jury against using the evidence to infer propensity and
    hence to infer that the accused committed the crime when the more direct and
    powerful inference to be drawn from that evidence is that the accused had a
    motive to kill Ms. Murray.



[4]

For example, see
R. v.
Merz
.



[5]
For
    example, see
R. v. C.B.



[6]

For example, see
R. v. L.K.W.
(1999), 138 C.C.C. (3d) 449 (Ont. C.A.). In that
    case, the accused was charged with 20 counts of physical and sexual abuse
    against his children. Evidence was led of his criminal record, which included
    convictions for assault, possession of burglary tools and theft under $200.
    This court held that although at least one of the prior offences was relevant
    to assessing the
accuseds
credibility, in the
    overall scheme of things, the prior convictions were relatively trivial in
    comparison to the offences with which the accused was charged. Moreover, it
    would be fanciful to think that the jury would have used the prior convictions
    to infer that the appellant was the type of person likely to commit the
    offences in question.


