



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Rothgordt,









2013 BCCA 37




Date: 20130131

Docket: CA039054

Between:

Regina

Respondent

And

Kim Winslow
Rothgordt

Appellant




Before:



The Honourable Chief Justice Finch





The Honourable Madam Justice Neilson





The Honourable Mr. Justice Harris




On
appeal from: Supreme Court of British Columbia,

January 12
th
,
2011 (conviction) and April 26
th
, 2011 (sentence),

(
R.
v. Rothgordt,
Port Alberni Registry File 31391)




Counsel for the Appellant:



R.A. Mulligan, Q.C.





Counsel for the Respondent:



R.C.C. Peck, Q.C.,

A. Cheon-Hayes





Place and Date of Hearing:



Vancouver, British
  Columbia

December 10
th
,
  2012





Place and Date of Judgment:



Vancouver, British
  Columbia

January 31
st
,
  2013









Written Reasons by:





The Honourable Chief Justice Finch





Concurred in by:





The Honourable Madam Justice Neilson

The Honourable Mr. Justice Harris








Reasons for Judgment of the Honourable
Chief Justice Finch:

I.  Introduction

[1]

Mr. Rothgordt appeals his conviction by a jury in Port Alberni on
12 January 2011, on one count of second degree murder for the death
of James Shannon on 13 February 2008.  Counsel for the appellant asserts a
number of errors, including errors related to alleged irregularities in the
trial process, an error in admitting the appellants criminal record, and a
number of errors in the charge to the jury.  The errors alleged in the jury
charge include the instruction on the defence of provocation, and the trial
judges suggestion that a conviction may be based on a lack of evidence.  The
appellant submits that these two errors are the most serious of all the grounds
of appeal.

[2]

Counsel for the Crown says that the judge did not err in any of the ways
alleged, that the defence did not raise any of these issues at trial, and that
if any errors were made they were inconsequential.  Counsel says the appeal
should be dismissed.

[3]

For the reasons that follow I would allow the appeal.  I will focus on
the issues related to provocation and the use of lack of evidence by the
trial judge.

II. 
Background

[4]

As I would allow the appeal and order a new trial, I will refrain from reviewing
the evidence in detail.  What is in these reasons is based on the trial
transcripts.  The appellant did not testify.

[5]

It was not disputed at trial that the appellant killed Mr. Shannon.  What
was at issue was whether the appellant acted in self-defence, was too
intoxicated to form the requisite intent for murder, or was provoked.

[6]

The theory of the Crown was that the two men met at the deceaseds home
and had consensual sex.  However, due to a crisis in his sexual identity, the
appellant was prompted to attack and kill the victim.  The Crown said that
after the accused was arrested for being drunk in a public place he faked a
suicide attempt so that he could lay low in the hospital while he considered
his predicament.  He told the hospital staff he had been sexually assaulted and
said the same thing to the RCMP officer who took a statement from him.

[7]

The learned trial judge summarized the Crowns position in the charge to
the jury as follows:

Here the Crown says that while
they don't have any specific motive to advance, there is evidence that Mr.
Rothgordt may have been sexually confused.  Crown points to evidence that this
was the accused's first homosexual experience and that he may have snapped when
actually confronted by it.  In terms of trial testimony tending to point to
self-defence, intoxication and provocation, Crown says you should treat it with
a high degree of scepticism, that it is a self-serving chronicle designed to
avoid criminal responsibility.

You
heard counsel express their views, but I want to refer to them again so that
you have them firmly in your mind when assessing my instructions.  The Crown
says that Mr. Rothgordt, for reasons that we will never know but perhaps
because of confusion over his sexual orientation, attacked Mr. Shannon in his
home with a hammer causing his death.  Crown then says that consumed with anger
or hatred, the accused committed further acts and attacks upon an already deceased
or dying Mr. Shannon...

[8]

The defence theory at trial was that the appellant was the victim of a
violent sexual assault and that he struck Mr. Shannon with a hammer in order to
defend himself from the attack.  Alternatively, the jury was asked to consider
provocation and intoxication in reducing the verdict to manslaughter.  The
learned trial judge summarized the position of the defence as follows:

The
defence says that Mr. Rothgordt engaged in on-line chats with Mr. Shannon out
of curiosity.  He had never had a homosexual encounter, but thought to add it
to his sexual experience.  However, says defence, he did not ever consent to
the violent sexual attack that is described in his statement to police.  Defence
maintains that the blows to Mr. Shannon occurred in an attempt to stop this
attack.  Alternately, if self-defence is rejected, then there is evidence of
intoxication and/or provocation so as to reduce the allegation in the
indictment to manslaughter.

III.
 The Charge to the Jury and Parties Positions on Appeal

[9]

The learned trial judge provided the jury with written copies of both
his preliminary remarks before any evidence was called, and of his charge to
the jury, before addressing them orally.  I will focus on the instructions as
they relate to the defence of provocation and the appropriate use of a lack of
evidence, as these are the two most serious grounds according to the appellant.


Provocation

[10]

The instructions on provocation and intoxication were generally
intertwined.  At two points, these instructions may have given the impression
that provocation worked in a manner similar to intoxication, such that it did
not apply if the intent to commit the murder was found to be present.  First,
when discussing intent, the trial judge stated:

I told you about the Crown's
burden to prove intent for murder beyond a reasonable doubt.  In considering
this burden, you must assess and take into account all of the evidence
respecting intoxication or provocation, about which I will refer further when
discussing the evidence, to determine whether the accused could have formed
this required intent.

[11]

Second, when discussing the possible verdicts, the trial judge stated:

On the evidence before you, there are three possible verdicts
on the count in the Indictment:

...

Not guilty of second degree murder but guilty of
manslaughter [if you find provocation or intoxication through ingestion of drugs/or
alcohol so as to negate the intent required for murder, or you have a
reasonable doubt about that].

[12]

The appellant submits that the judges instructions incorrectly mixed
the defences of intoxication and provocation.  The charge left the jury with
the mistaken impression that provocation only applied if they found that the appellant
did not have the required intent for murder.

[13]

The Crown submits that when read as a whole, the instructions did not
leave the jury with an erroneous impression of how provocation operates. 
Rather, it was clear that the instructions directed the jury to consider
whether or not the defence of intoxication prevented the appellant from forming
the requisite intent for murder.  The Crown submits that the instructions
properly provided the jury with the relevant
Criminal Code
sections,
which the appellant concedes indicate that the defence applies even where the
requisite intent for murder is present.


Lack
of Evidence

[14]

The pre-evidence instructions contained numerous references to how the
jury may use a lack of evidence.  Generally, these references involved using
a lack of evidence to support a reasonable doubt.  For example, the trial judge
stated:

It is extremely
important that you appreciate that this doubt must arise from the evidence or
lack thereof. It cannot be a doubt entirely unconnected with the evidence,
which I would call a capricious or fanciful doubt.

[15]

However, at the conclusion of his initial
discussion on reasonable doubt, the trial judge stated that a lack of evidence
may be used to support a conviction:

In short, if,
based upon the evidence before the court, or lack of evidence, you are sure
that the accused committed the offence, you should convict, since this
demonstrates that you are satisfied of his guilt beyond a reasonable doubt.

[16]

Following the closing addresses from counsel, in
his final instructions, the trial judge referred the jury back to his
pre-evidence instructions.  He repeated the above statements regarding the use
of lack of evidence, again concluding:

So, in short, if based upon the
evidence before the court, or lack of evidence, you are sure the accused
committed the offence, you should convict, since this demonstrates that you are
satisfied of his guilt beyond a reasonable doubt.

[17]

The appellant submits that the instruction that a lack of evidence can lead
to a conviction is clearly wrong in law.

[18]

Crown submits that the instructions on reasonable doubt were properly
based on the model provided in
R. v. Lifchus
, [1997] 3 SCR 320.  While
it would have been preferable if the suggestions that a conviction may be based
on a lack of evidence were not made, as a whole, the instructions provided the
proper guidance to the jury.  The instructions were clear that a reasonable
doubt may be based on an absence of evidence, that the burden of proof rested
on the Crown, and that the Crown must discharge this burden by presenting
evidence.  Read as a whole, there was no reasonable prospect that the jury
thought they could convict the appellant on an absence of evidence.

IV.  Analysis


Provocation

[19]

I will first consider the assertion that the jury was misdirected on the
defence of provocation, so that they may have been left with the impression
that the defence only applies if the jury found that the appellant did not have
the requisite intent for murder.  As noted above, there are at least two
instances where the instructions give rise to such a concern.

[20]

Where both intoxication and provocation are raised as defences, care
must be taken to ensure that the jurors are aware of the differences in how the
two defences operate.  As was suggested in
R. v. Kent
, 2005 BCCA 238, 196
C.C.C. (3d) 528, paras. 14-15, the preferred approach should be to instruct the
jury on intoxication first, including the logical connection between
intoxication and the requisite intent for murder.  The jury should be
instructed that if intoxication as a defence is accepted, then there is no
intent for murder and provocation need not be considered.  Second, the jury
should be instructed that, if the necessary intent for murder is found beyond a
reasonable doubt, they must then consider provocation.  In explaining
provocation where intoxication is also present, the instruction should explain how
the intoxication may have affected the appellant in relation to the elements of
provocation.  As Low J.A. stated, at para. 15, [e]vidence of intoxication
that falls short of negating intent is still to be considered when discussing
the defence of provocation.

[21]

In this case, as in
Kent
, the jury instruction did not clearly
separate the two defences, potentially leading to confusion concerning how each
defence operates.  In
Kent
, Low J.A. summarized the concern, at para.
18:

The appellant contends that the
learned trial judge, when instructing and re-instructing the jury, did not
sufficiently separate the element of intent and the defence of provocation
thereby creating confusion in the minds of the jurors.  He says the charge
and recharge considered in their entirety give rise to a serious concern that
the jury did not appreciate that the defence of provocation was available to
the appellant even if the Crown proved that he had a murderous intent ... 
I am compelled to agree...

[22]

The Crown submits that
Kent
can be distinguished from the present
case on two points.  First, in
Kent
, the jury asked a number of
clarification questions which demonstrated that they were confused on the
question of how provocation operated. In this case, no clarification questions
were asked.  Second, in
Kent
, the jury was not provided with the
relevant sections of the
Criminal Code
.  In his reasons, Low J.A.
suggested that it would have been preferable for the jury instruction in that
case to have included the sections.  In this case, the jury instruction
contained the relevant sections to the
Criminal Code
on the defence of
provocation.

[23]

With respect, I do not consider
Kent
as distinguishable on either
of these two points.  The central question both here and in
Kent
is
whether or not the instructions, read as a whole, were likely to produce
confusion on the defence of provocation.  In
Kent
, the source of that
confusion was the recharge.  In this case, the source of the confusion is the
initial charge.  Further, while Low J.A. found that providing the
Criminal
Code
sections to the jury in that case would have been preferable to a
confusing summary of the sections, that does not mean providing the sections
alone is sufficient.  Again, the question is whether or not the charge, read as
a whole, left the jury with the erroneous idea that provocation did not apply
if they found that the accused had the requisite intent for murder.

[24]

Having read the charge as a whole, I conclude that the instructions may
have left the jury with that incorrect understanding of the defence.  The
instructions twice suggested that provocation was to be used in a manner
similar to intoxication.  While the sections of the
Criminal Code
were
provided, this alone was unlikely to have removed the confusion.  Simply
providing
Criminal Code
sections does not discharge a trial judges duty
properly to instruct a jury, particularly where other elements of the charge
contradict the meaning of those sections.  Further, the instruction did not properly
address the individual elements of the defence of provocation, or how
intoxication may be considered in relation to these elements.

[25]

Read as a whole, I do not consider that the instructions sufficiently
explained how the defence of provocation may apply, and had the effect of
depriving the appellant of the full force of this defence.  Accordingly, I
would give effect to this ground of appeal.


Lack of evidence

[26]

A second ground of appeal is the way the judge referred to lack of
evidence in the instructions.  At numerous points, the trial judge said that a
reasonable doubt may be based on either evidence or the absence of evidence.  This
is a correct instruction, and had the references to the lack of evidence
ended there, I would see no merit in this ground of appeal.  However, in both
his opening remarks to the jury and his closing remarks, the trial judge
concluded his discussion of the presumption of innocence and proof beyond a
reasonable doubt with the following statement:

In short if, based upon the evidence before the Court
or
lack of evidence
, you are sure that the accused committed the offence you
should convict since this demonstrates that you are satisfied of his guilt
beyond a reasonable doubt.

[Emphasis added.]

[27]

This language is effectively identical to the language originally proposed
as a model jury instruction on reasonable doubt in
R. v. Lifchus
, as
printed in:  [1997] 216 N.R. 215 (S.C.C.), para. 39.  However, the suggested
language in
Lifchus
was subsequently amended following a rehearing to
remove the statement that a conviction could be based on a lack of evidence.  The
amended wording, as printed in
R. v. Lifchus,
[1997] 3 SCR 320, para.
39, now reads:

In short if, based upon the
evidence before the court, you are sure that the accused committed the offence
you should convict since this demonstrates that you are satisfied of his guilt
beyond a reasonable doubt.

[28]

As was stated in
R. v. G.(G.)
, 2001 BCCA 462, 156 C.C.C. (3d) 497,
para. 23
,
if a trial judge wishes to use the language from
Lifchus
,
it is the more recent version that must be used.  Stating that a conviction may
be based on an absence of evidence is an incorrect instruction:
R. v. G.(G.)
;
R. v. G.(M.)
(2001), 155 C.C.C. (3d) 353, 147 O.A.C. 348 (CA), para. 24.

[29]

Unfortunately, the error is not uncommon, presumably due to the
confusion stemming from different wording existing in different reported
versions of the
Lifchus
decision.  For example, see:
R. v. Benmore
,
2011 CanLII 77762 (NL PC);
R. v. Storey
, 2010 NBQB 86.

[30]

I accept the Crowns submissions that the trial judge correctly
instructed jurors that an absence of evidence may be used to find a reasonable
doubt, that the burden of proof rests on the Crown, and that the burden is to
be discharged by presenting evidence.  I also accept that a jury charge is to
be assessed on whether or not it substantially complied with the principles
laid out in
Lifchus
, and need not be faulted for imprecise language:
R.
v. Avetysan
, 2000 SCC 56, 2 S.C.R. 745, para. 12.

[31]

In this charge, the statements that a conviction may be based on a lack
of evidence cannot be said to substantially comply with the principles in
Lifchus
. 
This is not to say that an absence of evidence is never relevant in leading to
a conviction.  For example, where the absence of evidence means there is no air
of reality to a particular defence, the judge may decide not to put a defence
to the jury.  However, to inform a jury that a conviction may be based on a
lack of evidence, without proper guidance or explanation on how to use, and not
misuse, this principle, is an error.  It threatens to contradict the onus that
the Crown proves its case beyond a reasonable doubt.

[32]

This error is particularly prejudicial in a case such as this, where the
appellant did not testify and elected to not call any evidence.  Accordingly, I
would also give effect to this ground of appeal.

[33]

Having identified the two errors above, I do not see it as necessary to
address the other grounds of appeal.


Curative Proviso

[34]

Neither party has provided arguments specifically directed to the
curative proviso in s. 686(1)(b)(iii) of the
Criminal Code
.  The Crown
has suggested that the case against the appellant was overwhelming, which is a
consideration in determining whether or not the proviso should apply.  Accordingly,
I will briefly address the proviso here.

[35]

The curative proviso can apply in two situations.  First, it may apply
where the errors are harmless.  Harmless errors are those that are minor, and
have no prejudicial effect on the accused.  The errors in this case cannot be
said to be harmless.  The misdirection regarding the defence of provocation risked
depriving the appellant of one of his defences.  The instruction that a
conviction may be based on a lack of evidence was prejudicial to the appellant
given, as noted above, that he did not testify and decided against calling
evidence at trial.

[36]

Second, the curative proviso may apply to serious errors where the
evidence against the accused was so overwhelming that no substantial wrong or
miscarriage of justice occurred.  In

R. v. Trochym,
2007
SCC 6, 1 S.C.R. 239, Deschamps J. summarized this higher standard for
serious errors as follows:

[82]  The
instant case is one that falls squarely within the second category of serious
errors that will justify a new trial unless the properly adduced evidence is so
overwhelming that a conviction is inevitable, or would invariably result. 
This standard should not be equated with the ordinary standard in a criminal
trial of proof beyond a reasonable doubt. The application of the proviso to
serious errors reflects a higher standard appropriate to appellate review. The
standard applied by an appellate court, namely that the evidence against an
accused is so overwhelming that conviction is inevitable or would invariably
result, is a substantially higher one than the requirement that the Crown prove
its case beyond a reasonable doubt at trial.  This higher standard
reflects the fact that it is difficult for an appellate court, in particular
when considering a jury trial, since no detailed findings of fact will
have been made, to consider retroactively the effect that, for example,
excluding certain evidence could reasonably have had on the outcome.

[37]

Having reviewed the evidence, I cannot conclude that the evidence meets
this higher standard.

[38]

There was no dispute that the appellant killed Mr. Shannon.  However, his
counsel argued that self-defence, intoxication, and provocation each could
apply.  Each of these defences found some support in the evidence.  In
particular, the appellants statement to police provided a version of the
events upon which the defences may have been established, or a reasonable doubt
may have been raised about their applicability.  While the appellants
statement to police was inconsistent with some of the other evidence, whether
to accept it or not was a decision for the jury.  Having been improperly
instructed on one of these defences, as well as on the meaning of proof beyond
a reasonable doubt generally, I cannot say that the jury would have necessarily
reached the same verdict had these errors not been committed.

[39]

For these reasons, I would allow the appeal, set aside the conviction,
and order a new trial.

The Honourable Chief Justice Finch

I Agree:

The Honourable Madam Justice
Neilson

I Agree:

The Honourable Mr. Justice Harris


