



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Angelis, 2013
    ONCA 70

DATE: 20130201

DOCKET: C53313

Laskin, Goudge and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Demetrios Angelis

Appellant

Howard L. Krongold, for the appellant

Kimberly Crosbie, for the respondent

Heard: December 11, 2012

On appeal from the conviction entered on October 30, 2010
    by Justice Robert J. Smith of the Superior Court of Justice, sitting with a jury.

Laskin J.A.:

A.

introduction

[1]

The appellant, Demetrios Angelis, was charged with the second degree murder
    of his wife, Lien.  He accepts that he caused her death during a physical
    altercation.  The two principal issues at trial were whether he acted in
    self-defence, and whether he had the intent to commit murder.

[2]

After a 12-day trial before Smith J. and a jury, during which the
    appellant testified in his own defence, he was found guilty of second degree
    murder.  He was sentenced to life imprisonment, without eligibility for parole
    for 12 years.  He appeals his conviction.

[3]

There are two principal issues on the appeal: first, whether the trial
    judge erred by refusing to leave the defence of provocation with the jury; and
    second, whether the trial judge erred in his instructions to the jury on the
    appellants post-offence conduct.

[4]

On the first issue, the trial judge ruled that, as the appellant had
    testified he was not angry when he killed his wife, the subjective element of
    the test for provocation was not met and the defence had no air of reality.  The
    appellant submits that the trial judges ruling was wrong because there was
    other evidence, both direct and circumstantial, from which a properly
    instructed jury, acting reasonably, could find that provocation was made out.  The
    appellant and the Crown agree that if this first ground of appeal is
    successful, we ought to substitute a verdict of manslaughter.

[5]

On the second issue, the trial judge instructed the jury that they could
    take into account the appellants post-offence conduct in determining whether
    the appellant intended to kill his wife.  The appellant submits that this
    instruction was wrong because the appellants post-offence conduct was equally
    consistent with a finding of manslaughter as it was with a finding of murder.  He
    argues that the trial judge should therefore have instructed the jury that the
    evidence of post-offence conduct had no probative value on whether he had the intent
    for murder.  The appellant further submits that the trial judge should have specifically
    cautioned the jury about relying on his strange behaviour after his wife died
    as a basis to infer his guilt.  If this second ground of appeal succeeds, the
    appellant asks for a new trial because the trial judges charge on post-offence
    conduct may have affected the jurys assessment of both his intent and the
    defence of self-defence.

[6]

I would give effect to both grounds of appeal.  The defence of
    provocation had an air of reality; and the appellants post-offence conduct was
    not probative of whether he had the requisite intent for murder.  The appellant
    is entitled to a new trial on his second ground of appeal, and I would so
    order.

B.

background facts

[7]

As I would order a new trial, I will provide only a brief summary of the
    pertinent facts.  On Sunday morning, June 8, 2008, Lien Angelis died during a
    struggle with the appellant.  The struggle took place in front of their two young
    children in the living room of their small apartment.  The deterioration in the
    parties marriage in the months before Lien died, and the appellants conduct
    after her death are relevant to the two main grounds of appeal.

(1)

The parties marriage and its breakdown

[8]

The appellant and Lien met at university in 1990, and were married in
    1992.  They both became federal civil servants and lived in Ottawa.  Neither
    had a criminal record or any history of violence, and there had been no history
    of abuse in their relationship.

[9]

However, in April 2008, the marriage began to break down.  A
    precipitating incident was the appellants discovery that his wife had been
    having a covert affair with another man for 13 years.  Over the next two
    months, the relationship became highly acrimonious.  Lien was not interested in
    reconciling; she wanted a divorce.  Both parties consulted family law lawyers
    and prepared for a bitter custody battle.  In late May, the appellant served
    Lien with court papers seeking temporary sole custody of the children.  A
    hearing date was set for early July.

[10]

Although
    tensions escalated after April, neither party was willing to move out of the
    apartment or leave the children.  By May, Lien had stopped speaking to the
    appellant directly, and would communicate with him only through their 8-year
    old daughter, Nicki.

(2)

Liens state of mind in the months before she died

[11]

There
    was some evidence led at trial that in the months before she died, Lien tried
    to uncover incriminating evidence about the appellant, and tried to provoke him
    to act badly  push my buttons, as he said in a letter to his family law
    lawyer.

[12]

For
    example, at the end of May, Lien started videotaping the appellant as he went
    about his daily activities in the apartment.  Apparently, Lien was trying to
    capture incidents where the appellant mistreated the children in order to
    advance her claim for custody.

[13]

On
    June 7, the day before she died, Lien invited her boyfriend over to steal the
    hard drive in the appellants computer  again hoping to find some discreditable
    conduct that would help her in the custody fight.

[14]

And,
    throughout this period, Lien was preoccupied with money.  The appellant says that
    during the marriage he used virtually all of his income to pay the familys
    household expenses.  Liens earnings went into investments in her name and
    RESPs for the children.  She accumulated over $100,000.  She told co-workers
    that she was divorcing the appellant because he spent too much, and that she
    was not going to let him get her money in the divorce.

[15]

Understandably,
    the appellant described the atmosphere in the apartment as unbearable.

(3)

The fatal struggle on Sunday June 8

[16]

The
    appellant was planning to take his children to church that morning.  Indeed
    that day, Nicki was to graduate from Sunday school.

[17]

The
    evidence is conflicting on what precipitated the physical fight between Lien
    and the appellant that ended in Liens death.  According to Nicki, her parents
    were fighting about money.  According to the appellant, Lien and Nicki had been
    arguing.  The appellant tried to intervene, clad only in his boxer shorts as he
    was getting dressed for church.

[18]

The
    struggle that ensued was brief, but violent.  The appellant said that Lien suddenly
    attacked him.  She scratched him on his face, lips, chest and torso; and she
    clawed his penis, drawing blood, and causing pain in his groin.  The appellant,
    in turn, tackled Lien, straddled her and tried to restrain her arms.  Lien told
    Nicki to call the police, but Nicki was too afraid to do so.  Nicki said that at
    one point the appellant covered her mothers mouth with his hand; the appellant
    said that if he covered Liens mouth, it was only in passing.

[19]

Lien
    ended up on the floor either on her stomach (the appellants account) or on her
    back (Nickis account).  The appellant was on top of her, straddling her again,
    and pinning her arms down.  Then Lien suddenly stopped breathing.  It was
    apparent to the appellant that his wife was dead.

[20]

Lien
    weighed 95 pounds and was 4 feet 9 inches tall; the appellant weighed 150
    pounds and was 5 feet 6 inches tall.  The pathologist could not determine the
    specific mechanism of death, but thought asphyxiation (deprivation of oxygen)
    was a possibility.  Asphyxiation can result from smothering (obstruction of the
    airways), strangulation, or burking (sitting on the chest or upper back and
    interfering with respiration), or a combination of these three mechanisms.  Regardless
    of the mechanism, the pathologist testified that once the air supply is blocked,
    unconsciousness comes very rapidly, likely in less than a minute, and death occurs
    quickly afterwards.

[21]

The
    appellant testified that he was not angry during this struggle.  He did not
    intend to hurt Lien or to cause her death.  His intent was to stop her from
    hurting him.

[22]

The
    Crown urged the jury to find that the appellant had intentionally killed Lien
    in a fit of sudden rage.

(4)

The appellants post-offence conduct

[23]

The
    appellants post-offence conduct, relied on by the Crown and the subject of the
    trial judges charge, can be viewed in two categories.

[24]

In
    the first category is the appellants inaction immediately after becoming aware
    that his wife had died.  Although the appellant is a trained nurse, he did not
    administer CPR to try to revive Lien.  Nor did he call 911.  He testified that
    he was in shock.

[25]

In
    the second category is the appellants behaviour in the three or four hours
    after Lien died.  He folded the living room carpet over her and dragged her
    body into the master bedroom.  He said that he did so to prevent his son, Theo,
    from touching his mother.  The appellant then put his wifes makeup on to hide
    his injuries.  He laid out six pairs of his underwear in the bathroom.  He
    claimed that he did so because blood from his penis kept soaking through each
    pair.

[26]

The
    appellant then collected the children and took them to church.  He said that he
    wanted to find some sense of maybe normalcy in an abnormal situation.  Nicki
    received her certificate for graduating from Sunday school.  The appellant took
    communion with Theo in his arms.  While at church the appellant telephoned his
    brother in Montreal to arrange for him to get the children.  His brother wanted
    a contact person in Ottawa so the appellant phoned his family law lawyer, but
    could not reach her.

[27]

About
    an hour and twenty minutes after leaving his apartment, the appellant returned.
     Once home, he retrieved some Christmas presents he had previously bought for
    the children and gave them to Nicki and Theo.  He said that he did so because
    he thought he might be separated from them for some time.

[28]

At
    around 2:10 p.m., about an hour and a half after returning home and between
    three and four hours after Lien died, the appellant called 911.  When he reported
    his wifes death to the operator, his tone of voice was calm and casual.  During
    their deliberations, the jury twice asked for the recording of this call to be played
    for them aloud in court.

C.

discussion

(1)

The trial judge erred by refusing to leave the defence of provocation
    with the jury

[29]

Under
    s. 232(1) of the
Criminal Code
, murder may be reduced to manslaughter
    if the person who committed the murder did so in the heat of passion caused by
    sudden provocation.  Section 232(2) defines provocation as [a] wrongful act
    or insult  sufficient to deprive an ordinary person of the power of
    self-control ... if the accused acted on it on the sudden and before there was
    time for his passion to cool.

[30]

From
    the statutory definition, it is evident that provocation has both an objective
    and subjective element.  The Supreme Court considered these elements in
R.
    v. Tran,
2010 SCC 58, [2010] 3 S.C.R. 350, at para. 23, citing with
    approval the following passage from Cory J.s majority judgment in
R. v.
    Thibert
, [1996] 1 S.C.R. 37, at para. 4:

First, there must be a wrongful act or insult of such a nature
    that it is sufficient to deprive an ordinary person of the power of
    self-control as the objective element. Second, the subjective element requires
    that the accused act upon that insult on the sudden and before there was time
    for his passion to cool. [Emphasis in original omitted.]

[31]

In
    this case, the trial judge ruled that the objective element of provocation had
    an air of reality.  Liens clawing of the appellants penis was a wrongful act
    sufficient to deprive an ordinary person of the power of self-control.  On
    appeal, the Crown does not challenge this aspect of the trial judges ruling.  However,
    the trial Crown argued and the trial judge agreed that the subjective element
    of the provocation defence had no air of reality because the appellant
    testified that he was not angry after Lien attacked him.

[32]

This
    ruling is wrong in law.  The air of reality test requires a trial judge to leave
    a defence with a jury where there is evidence upon which a reasonable jury
    acting judicially could find that it succeeds:
R. v. Tran
, at para.
    41.  In making this determination, a trial judge must examine the totality of
    the evidence:
R. v. Krasniqi
, 2012 ONCA 561, 295 O.A.C. 223, at para.
    52.

[33]

Although
    an accuseds testimony is an important consideration in assessing the viability
    of a provocation defence,
the trial
judge
    should always consider any other evidence capable of supporting an inference of
    sudden rage or loss of control.  Even where an accused denies being angry at
    the time of the offence, if there is other evidence on which a jury could find
    provocation was made out, the trial judge must leave the defence with the jury.

[34]

For
    example, in this case, the jury may have rejected the appellants testimony
    that he was not angry, and accepted other evidence about the altercation suggesting
    that he had, in fact, lost control when Lien attacked him:
R. v. Gill
,
    2009 ONCA 124, 241 C.C.C. (3d) 1, at paras. 17-19.  The trial judge was thus not
    justified in withdrawing the defence from the jury solely on the basis of the
    appellants disavowal of anger.  Instead, he was required to consider whether
    there was any evidence before the jury, from the appellants mouth or
    otherwise, establishing the subjective element of the defence.

[35]

I
    think that there was, for two reasons: the position taken by the Crown, and the
    other pieces of evidence, direct and circumstantial, that gave an air of
    reality to the defence.

(a)

The Crowns position at trial

[36]

The
    Crowns position at trial was that the appellant intended to kill his wife
    because he was angry.  I accept, as Ms. Crosbie contends, that anger alone does
    not make out the defence of provocation.  Anger may fuel cold blooded revenge,
    which is the antithesis of a loss of control.  But anger may also fuel sudden
    rage, a loss of control, inflamed passions, a killing in the heat of the moment
    before regaining control of oneself.  However phrased, when an accused acts in
    this latter fashion, the provocation defence has an air of reality:
R. v.
    Krasniqi
, at para. 51.

[37]

The
    Crown repeatedly suggested to the appellant in cross-examination that he was
    extremely angry and that, in the midst of the struggle, he wanted his wife
    dead.  In her closing address to the jury, the Crown again forcefully argued
    that the appellant meant to kill Lien because he was enraged.  For example, she
    made the following comments to the jury:

·

I submit to you that Mr. Angelis killed his wife and he meant
    to.  That was his intent.  He was enraged.

·

were getting to this issue here of rage.

·

I would submit to you that Mr. Angelis state of mind in the
    weeks and days leading up to the murder was that building up to anger and
    ultimately, to rage.

·

You can find him guilty of murder even if you find that the
    intention to kill her happened during the assault.  This is not a situation
    where you need to find that he formulated some intent to kill her at any time
    prior to this happening  Intent can be formed very quickly before or even
    during the offence

[38]

And
    the Crown ridiculed the appellants claim that he was not angry.  She said: He
    never feels anger.  He only feels shock.  Its unexpected.  He never feels
    anger.  That makes no sense.  Who wouldnt feel anger?

[39]

The
    Crowns argument that the appellant became enraged immediately before or during
    the struggle suggests that there was some evidentiary basis for finding that he
    was provoked.  A Crown cannot argue to the jury a speculative position not
    founded on the evidence.  That would be improper:
R. v. Boudreau
, 2012
    ONCA 830, at para. 16.    By making these comments, the Crown thus implicitly
    acknowledged that there was evidence to show the subjective element of provocation
    could be made out.

[40]

Moreover,
    it seems to me that the Crown cannot have it both ways.  It cannot go to the
    jury and argue that the appellant killed his wife because he became suddenly enraged,
    and yet object to the defence of provocation being left with the jury.  That is
    simply unfair.

(b)

Evidence showing that the subjective element of provocation had an air
    of reality

[41]

Apart
    from the Crowns position, there was evidence, both direct and circumstantial,
    from which a jury could conclude that the subjective element of provocation was
    made out.  In other words, there was evidence that suggested the appellant lost
    control of his senses and, before regaining control, killed his wife in a
    sudden rage.  This evidence included the following:

The testimony of David Kenny
.  Mr.
    Kenny was a neighbour who lived down the hall from the appellants apartment,
    over 60 feet away. He testified that on the morning of Liens death, he heard
    shouting from another apartment and a male voice yell what sounded like the
    word bitch. As the Crown argued to the jury: Is there a word that is more
    evocative about how a man could feel about a woman than the word bitch?
    Kenny told the police that if it was only about a minute between the time the
    shouting started and ended. Kennys testimony is therefore credible evidence
    that the appellant acted out of sudden rage.

The witnesses to Liens death
.  The
    appellant killed his wife in front of their two children. Yet the appellant
    undeniably loved his children and was their primary caregiver. For him to have
    done what he did in front of his children suggests that he was not in control
    when he killed Lien.

The context of the relationship and the
    nature of Liens acts
. By June, the relationship between the appellant
    and Lien had become highly acrimonious and overlaid with strong emotions on
    both sides.  To repeat the appellants description, the atmosphere had become
    unbearable. Yet, the appellant and his wife and their children continued to
    live together in their apartment. In that context, Lien attacked the most
    intimate part of the appellants body. It would not be hard to infer that in
    this context, the clawing of the appellants penis caused him to lose control
    and suddenly turn on his wife.

The appellants nature
. It is hard
    to understand why a mild mannered civil servant with no history of violence or
    abuse in his relationship with his wife would turn on her in an instant and
    then panic after  unless he acted out of sudden rage.

The suddenness of the attack and the brevity
    of the encounter
. The appellant was unprepared for what occurred. He was
    getting ready to go to church. Both his evidence and Kennys evidence suggest
    that what occurred happened fast. Indeed, it was for this reason that the
    Crown suggested to the jury the appellants intent to kill could have formed
    suddenly during the course of the struggle. Equally plausible, the appellant
    could have suddenly become so enraged that he killed his wife before his anger
    subsided.

[42]

Thus,
    there was an air of reality to the defence of provocation.  The trial judge
    erred by refusing to leave this defence with the jury.  Accordingly, the
    appellants conviction for second degree murder cannot stand.  The appellant
    and the Crown agree that this error, standing alone, leads to a substituted
    verdict of manslaughter.  However, the trial judge also erred in his charge to
    the jury on the appellants post-offence conduct.

(2)

The trial judge erred in his charge to the jury on the appellants post-offence
    conduct

(a)

The charge and the parties positions on appeal

[43]

Because
    the jury could not consider provocation, the appellants intent became the
    central issue in the case.  If the jury was satisfied that the appellant had
    the intent to kill, then his defence of self-defence could not succeed.  A
    conviction for murder was inevitable.

[44]

The
    trial judge repeatedly instructed the jurors  no less than eight times  that
    they could use the appellants post-offence conduct to decide whether the
    appellant intended to kill his wife.  The critical portion of his charge is as
    follows:

Evidence of what a person said, did or did not do after an
    offence was committed may help you decide whether the accused
intended to kill
his wife Lien. It may help, or it may
    not.

What a person said, did or did not do after an offence was
    committed may indicate that he acted in a way which, according to human
    experience and logic, is consistent with the conduct of a person who
intended to commit the offence and inconsistent with the
    conduct of someone who did not intend to do so
. On the other hand, there
    may be another explanation for what Demetrios Angelis said, did or did not do
    afterwards, which was something unconnected with his intention to commit the
    offence charged.

You have heard evidence that after the offence charged was
    committed, the accused did not attempt to resuscitate Lien or immediately call
    9-1-1, but rather, rolled Liens body into the carpet and dragged her body into
    the bedroom. The accused admitted that he was trained as a nurse and that he
    admitted that he knew how to administer CPR, but did not do so. Nicki testified
    that the accused told her and Theo that mommy was dead, that it was okay to be
    sad and to cry, that he could go to jail for a long time and that he would give
    them presents to make them happy. The accused then got dressed, dressed the
    children, took the children to Sunday school. He only called 9-1-1 at
    approximately 2:10 p.m., after attending church on Sunday afternoon, after
    making three calls to his brother, one from a pay phone, and two calls to his
    Family law lawyer, and after he had been at the apartment for an hour and 30
    minutes. You heard a tape recording of the accused when he spoke for some time
    with the 9-1-1 dispatcher, which you can consider as evidence of the accuseds
    mental state at that time.

The evidence of what the accused said, did or did not do after
    Lien died is not disputed. You must next consider whether this was because
    Demetrios Angelis was
conscious of intentionally killing his
    wife
or for some other reason. You must be careful not to immediately
    conclude that what he said, did or did not do was because he was conscious of intentionally
    killing his wife.



You must not use this evidence about what Demetrios Angelis
    said, did or did not do afterwards in deciding or helping you decide that
    Demetrios Angelis
intended to kill Lien
unless you
    reject any other innocent explanation for it.

If you find that what Demetrios Angelis said, did or did not do
    afterwards was because he was conscious of having
intentionally
    killed Lien
, you may consider this evidence, together with all of the
    other evidence, in reaching your verdict.

On the other hand, if you do not find that Demetrios Angelis
    said, did or did not do those things because he was
conscious
    of intentionally killing Lien
, then you must not use this evidence in
    helping you decide that Demetrios Angelis committed the offence charged.
    [Emphasis added.]

[45]

The
    appellants submission that the trial judge erred in giving these instructions rests
    primarily on two grounds.  First, the appellant submits that the instructions
    invited the jury to infer a specific intent to kill on an unsound,
    impermissible basis  his post-offence conduct.  He argues that his behaviour
    after his wife died was equally consistent with murder and manslaughter, and therefore
    could not be probative of his intent at the time of the offence.  The appellant
    accepts that the jury was entitled to use his post-offence conduct to determine
    whether he had committed a culpable act, potentially undermining his claim of
    self-defence; however, he submits that they were not entitled to use it to
    infer his degree of culpability.

[46]

Second,
    he submits that the trial judge should have cautioned the jury about relying on
    the post-offence conduct evidence at all.  He contends that his strange
    demeanour in the wake of Liens death is the type of evidence that has highly
    suspect probative value and [is] easily misinterpreted:
R. v. Bennett
(2003),
    67 O.R. (3d) 257,

at para. 147.  The judge was therefore obliged to specifically
    instruct the jury not to draw any inference from it or, at the very least, to
    exercise caution before relying on it.

[47]

The
    appellant acknowledges that defence counsel failed to object to these
    instructions at trial.  However, he contends that because the errors went to
    the central issue at trial, the conviction cannot stand.

[48]

The
    Crown submits that the post-offence conduct principally relied on by the trial
    Crown was the appellants failure to perform CPR on Lien or immediately call
    911  what I have described as the first category of the appellants
    post-offence conduct.  She argues that this is the type of post-offence conduct
    from which a jury can properly infer an intent to kill.  The Crown further submits
    that the trial judge did caution the jury that there may be another
    explanation for what [the appellant] said, did or did not do afterwards, which
    was something unconnected with his intention to commit the offence charged.  This
    general caution was adequate to prevent the jurors from placing undue weight on
    evidence of the appellants behaviour after his wife died.

[49]

Alternatively,
    the Crown submits that even if the trial judge erred in his instructions, no
    miscarriage occurred, and we should apply the curative proviso under s.
    686(1)(b)(iii) of the
Criminal Code
.

[50]

I
    agree with the appellant that the trial judge erred by telling the jury that
    they could infer from the appellants post-offence conduct that he had the
    intent to kill his wife.  I also agree with the appellant that the error was
    neither harmless nor the result of a tactical decision by defence counsel. 
    Therefore, I would not apply the proviso, despite the absence of an objection
    at trial.

(b)

The use of post-offence conduct to determine culpability: general
    principles

[51]

An
    accuseds post-offence conduct is generally admissible to show that the accused
    acted in a manner which, based on human experience and logic, is consistent
    with the conduct of a guilty person and inconsistent with the conduct of an
    innocent person:
R. v. Peavoy
(1997), 34 O.R. (3d) 620 (C.A), at p.
    629.

[52]

However,
    evidence of post-offence conduct may be susceptible to jury misuse, especially when,
    as in this case, the accused has admitted to committing the
actus reus
of an offence and the Crown is relying on the post-offence conduct to
    demonstrate a specific level of intent.  Although this evidence will often be
    prejudicial to the accused, it will rarely have any significant probative value
    going to the accuseds state of mind during the commission of the criminal
    act.  That people will generally behave one way after they kill someone
    purposefully and another way after they kill someone accidentally is often a dubious
    assumption.

[53]

Therefore,
    in a long line of cases, both the Supreme Court of Canada and various courts of
    appeal, including this court, have held that an accuseds post-offence conduct
    may be probative of an accuseds culpability, but not of the level of that
    culpability.  These courts have so held because the accuseds post-offence
    conduct is as consistent with an inference that the accused committed
    manslaughter as it is with an inference that the accused had the intent for
    murder.  Where self-defence is raised as a defence, an accuseds post-offence
    conduct is circumstantial evidence from which a jury can infer that the accused
    committed a culpable act, and thus did not act in self-defence.  But,
    ordinarily, 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: see
R. v. Arcangioli
, [1994] 1 S.C.R. 129, at
    pp.145-146;
R. v. Marinaro,
[1996] 1 S.C.R. 462, adopting the
    dissenting reasons in (1994), 95 C.C.C. (3d) 74 (Ont. C.A.);
R. v. Peavoy
,
    at para. 34;
R. v. White (1998),
[1998] 2 S.C.R. 72, at p. 89;
R.
    v. Swanson,
2002 BCCA 528, 168 C.C.C. (3d) 1, at para. 18;
R. v.
    Rodrigue,
2007 YKCA 9, 223 C.C.C. (3d) 53, at paras. 47-49;
R. v.
    Figueroa
, 2008 ONCA 106, 232 C.C.C. (3d) 51, at paras. 35-37.

[54]

Recently,
    in
R. v. White (2011)
, 2011 SCC 13, [2011] 1 S.C.R. 433, the Supreme
    Court considered the use of post-offence conduct to support an inference of
    intent.  Rothstein J., writing for the majority, clarified at para. 31 of his
    reasons that post-offence conduct should be treated like any other type of
    circumstantial evidence:

Given that [e]vidence of post-offence conduct is not
    fundamentally different from other kinds of circumstantial evidence, the
    admissibility of evidence of post-offence conduct and the formulation of
    limiting instructions should be governed by the same principles of evidence
    that govern other circumstantial evidence.  In particular, to be admissible,
    such evidence must be relevant to a live issue and it must not be subject to a specific
    exclusionary rule (e.g. hearsay rule); it may also be excluded pursuant to the
    exercised of a recognized judicial discretion, such as the discretion to
    exclude evidence whose prejudicial effect outweighs its probative value.  These
    same principles also determine the need for and scope of a limiting
    instruction. [Internal citations omitted.]

[55]

Post-offence
    conduct, therefore, is not subject to blanket rules.  It is circumstantial
    evidence whose probative value depends on the nature of the evidence, the issues
    at trial and the positions of the parties.  Thus, we do not automatically label
    certain kinds of post-offence conduct as always or never relevant to a
    particular issue.  Rather, we must consider all the circumstances of a case to
    determine whether the post-offence conduct is probative and, if so, what use the
    jury may properly make of it.  In the words of Rothstein J., at para. 36 of
R.
    v. White (2011)
, the overriding question is this: what do logic and human
    experience suggest that a jury can legitimately or rationally infer from the
    accuseds post-offence conduct?

(c)

The principles applied to this case

[56]

In
    this case, the trial judge should not have invited the jury to use the
    appellants post-offence conduct to infer the level of his culpability  to
    infer that he was guilty of murder, not manslaughter.  As a matter of logic and
    human experience, the appellants post-offence conduct could not support a
    rational inference of an intent to kill.  That it could not do so is evident
    from the circumstances.  The appellant and his wife had no history of violence
    or abuse in their relationship.  Yet, they had just had a sudden and very
    physical altercation.  The altercation occurred in front of their two
    children.  It was brief.  It left the appellant disoriented and bleeding
    profusely from his genitals.  And when it was over he knew only two things:
    Lien was dead, and he had killed her.

[57]

In
    these circumstances, logic and human experience suggest that the appellants
    post-offence conduct was as consistent with a panicked reaction to Liens
    sudden and unintended death, as it was with a panicked reaction to her sudden
    and intended death.  Thus, the jury should not have been repeatedly instructed
    that they could use this evidence to decide whether the appellant had the
    intent for murder.

[58]

Even
    if one were to focus on what was likely the most cogent of the appellants
    post-offence conduct  the first category, namely, his failure to administer
    CPR to Lien or to immediately call 911  I am not persuaded that his conduct
    could rationally support an inference of an intent to kill, rather than simply
    an inference of having done something wrong.  Indeed, recent case law from this
    court suggests that an accuseds failure to render assistance after learning
    the victim may be dead is not probative of an accuseds level of culpability: see
R. v. Anthony
, 2007 ONCA 609, 228 O.A.C. 272, at paras. 52-58;
R. v.
    Cudjoe
, 2009 ONCA 543, 251 O.A.C. 163, at para. 88;
R. v. McIntyre
,
    2012 ONCA 356, 291 O.A.C. 359, at para. 40.

[59]

Moreover,
    although the Crown did focus on the first category of the appellants
    post-offence conduct, the trial judges instructions did not.  They referred to
    all of the appellants conduct after Lien died, including the appellants strange
    demeanour in the hours following the fight.  Even the Crown fairly acknowledges
    that the evidence falling in that second category could not, on any common
    sense view, be probative of whether the appellant intended to kill his wife.

[60]

For
    these reasons, the trial judge erred when he expressly instructed the jury that
    they could take the appellants post-offence conduct into account in
    determining whether he intended to kill his wife.  Instead, he should have
    instructed the jury that the appellants post-offence conduct was relevant only
    to the question whether the appellant had committed a culpable act or had acted
    in self-defence.  And, because the appellants post-offence conduct was not
    relevant to the issue of his intent, the trial judge should have further
    instructed the jury this evidence had no probative value on the question
    whether the appellant was guilty of murder or manslaughter:  see
R. v.
    White (2011)
, at para. 60.

[61]

I
    do not think it can be said that the trial judges erroneous instructions on
    the appellants post-offence conduct caused no substantial wrong.  The
    erroneous instructions were potentially highly prejudicial to the appellant as
    they went to the central issue in the case: his intent.  Therefore, even though
    defence counsel had the trial judges charge in advance and did not object to
    the instructions on post-offence conduct, I would not apply the proviso. 
    Because the post-offence conduct instructions potentially affected the
    appellants claim of self-defence, this error warrants a new trial.

(d)

The absence of a caution

[62]

Post-offence
    conduct evidence may not be relevant to one issue but probative of another. 
    For example, the appellant acknowledges before this court that a jury can
    legitimately infer from post-offence conduct that an accused is aware of having
    committed a culpable act.  In this case, that inference might be capable of
    undermining the appellants defence of self-defence.

[63]

However,
    the appellant argues that, because of the nature of the post-offence conduct in
    question, the trial judge should have specifically cautioned the jury against
    relying on this evidence at all.  He contends that the conduct falling within
    the second category  his odd behaviour after his immediate inaction when Lien
    died  qualifies as demeanour evidence.  And, he submits, because demeanour
    evidence is especially susceptible to juror misuse, the generalized caution
    given by the trial judge in this case was not sufficient.  In support of his
    submission, he relies on the following cases:
R. v. Levert
(2001), 159
    C.C.C. (3d) 71 (Ont. C.A.), at paras. 26-27;
R. v. Trotta
(2004), 190
    C.C.C. (3d) 199 (Ont. C.A.), revd on other grounds, 2007 SCC 49, [2007] 3
    S.C.R. 453, at para. 40;
R. v. White (2011)
, at paras. 107, 133 and
    138.

[64]

The
    appellants demeanour after his wife died was undeniably bizarre  wrapping his
    wife in a carpet, putting on his wifes makeup, taking his children to church,
    bringing his children back to the apartment and giving them presents bought for
    Christmas in the middle of June, and finally making a 911 call in a completely
    calm, almost detached voice.  This evidence could have played a powerful role
    in the jurys deliberations.  Jurors tend to focus on this sort of evidence. 
    They find it cogent and significant.  It is seemingly hard to explain away. 
    Defence counsel acknowledged as much when he characterized the appellants
    post-offence conduct as the elephant in the room.

[65]

As
    I would order a new trial on the error in the trial judges express post-offence
    conduct instructions, I need not decide whether the trial judge erred by
    failing to specifically caution the jury about relying on the appellants demeanour
    after Lien died.  It will be up to the trial judge at the new trial to
    determine whether a caution is called for.

(3)

Other grounds of appeal

[66]

The
    appellant argued several other grounds of appeal.  It is unnecessary to
    consider these other grounds in view of my disposition of the two main grounds
    of appeal.

D.

conclusion

[67]

The
    trial judge erred by refusing to leave the defence of provocation with the
    jury.  The trial judge also erred in his instructions to the jury on the
    appellants post-offence conduct. I would therefore allow the appeal, set aside
    the appellants conviction and order a new trial.

Released: Feb. 1, 2013                                          John
    Laskin J.A.

JL                                                                    I
    agree S.T. Goudge J.A.

I
    agree E.E. Gillese J.A.


