



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McGregor, 2019 ONCA 307

DATE: 20190417

DOCKET: C61775

Watt, Pardu and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert McGregor

Appellant

Richard Litkowski, for the appellant

Amy Alyea, for the respondent

Heard: June 28, 2018

On appeal from the conviction entered by Justice Anne
    Mullins of the Superior Court of Justice, sitting with a jury, on April 21,
    2015.

Watt J.A.:


[1]

J.M. had a new boyfriend. She planned to spend a Canada Day weekend
    with him.

[2]

Early in the morning on the day following Canada Day, J.M.s plans
    changed. They changed after a text and cell phone exchange with her former
    boyfriend about their five-year-old daughter.

[3]

The appellant, Robert McGregor, was J.M.s former boyfriend. The couple
    agreed to meet at a local coffee shop in Peterborough. They drove away in the
    appellants truck, in the direction of the appellants home where their
    daughter was staying.

[4]

No one saw J.M. alive again.

[5]

A few days later, the appellant directed police to a shallow grave in a
    wooded area not far from his home. There police found the body of J.M.

[6]

The appellant was charged with kidnapping and first degree murder in
    connection with the disappearance and death of J.M. A jury found him guilty of
    both offences.

[7]

The appellant challenges his conviction of first degree murder.
[1]
These reasons explain why I would allow the appeal, set aside the conviction of
    first degree murder and order a new trial on both counts of the indictment.

The Background Facts

[8]

In light of the disposition I propose for this appeal, an overview of
    the relevant circumstances will afford a sufficient background to consider and
    determine the grounds of appeal advanced.

The P
rincip
als

and their Relationship

[9]

The appellant and J.M. met in high school. Their daughter was born while
    both were still in high school. They remained together for about one year after
    their daughters birth.

[10]

For
    the most part, J.M. was the primary caregiver for the couples child. She lived
    with her aunt and her family in Apsley. The appellant lived outside
    Peterborough with his biological mother, her husband and her sister.

[11]

J.M.
    was small in stature. She was 55 tall and weighed 108 pounds. She was known
    to carry a small folding knife with a two to three inch blade in her purse. The
    only prior incident of violence between the couple occurred a few years prior
    to the deceaseds death when the appellant wanted to obtain custody of their
    daughter. The deceased was the aggressor. She ran at the appellant, choked him
    and punched him.

[12]

Although
    the appellant attempted to get back together with the deceased for the sake of
    their daughter, he had been involved in a relationship with another woman for
    over four years to whom he had become engaged about one week before the death
    of the deceased. The appellants fiancée was pregnant.

[13]

The
    deceased had begun dating another man about a month or more before she was
    killed. This man, D.J., was involved in the drug culture, engaged in the sale
    and use of marijuana and hallucinogens. The appellant was concerned about D.J.
    being around his daughter.

The Custody Issue

[14]

Until
    about three months prior to the death of the deceased, no formal agreement was
    in place about the custody of and access to the couples daughter. The deceased
    and appellant agreed on both issues. The deceased had custody. The appellant
    had liberal access.

[15]

In
    early March, the couple agreed that their child should temporarily live with
    the appellant. The reasons for this change are not entirely clear. About a week
    after their written agreement had been made, the deceased changed her mind. She
    wanted to retain custody of their daughter. The appellant was not in favour of
    this arrangement.

[16]

Both
    parties sought sole custody in court filings. At the conclusion of a mediation
    about ten days before the deceaseds death, the couple agreed that the deceaseds
    new boyfriend would not be around their daughter. The deceased would seek
    professional help for her possible depression. The appellant would have primary
    custody of their daughter until the end of the summer when the custody issue
    would be revisited.

[17]

The
    next scheduled court appearance was about ten days after the deceaseds death.
    Apart from signing the mediation agreement, nothing of substance was expected
    to happen. In the absence of a signed mediation agreement, the couples child
    continued to live with the deceased.

[18]

In
    the days immediately preceding the Canada Day weekend, the appellant complained
    about drug use by the deceaseds new boyfriend. A CAS investigator conducted a
    well-being check on the couples daughter, both at school and at the deceaseds
    home. About a day later, the investigator advised the appellant that the
    investigation was closed. That same day, the deceased and their daughter moved
    into the deceaseds parents home in Peterborough.

The Canada Day Weekend

[19]

On
    Canada Day, the deceased, D.J. and some friends attended the Festival of Lights.
    The appellants fiancée was also there. She reported to the appellant that she
    had seen the deceased and D.J. together, and that he had his arm around the
    deceased (this despite their disclaimer of any relationship). She then sent a
    text (allegedly at the appellants request) to the appellants cousin and best
    friend whom she asked to have D.J. and the deceased smashed out. The
    appellants cousin said that he would look into the request, but he did nothing
    and never spoke to the appellant about it.

The Next Day

[20]

The
    appellant became very upset when his daughter repeatedly struck herself in her
    vaginal area with her hand. She had apparently done the same thing on an
    earlier occasion. He spoke to her about it. When he did, she told him that D.J.
    had touched her head.

[21]

The
    appellant then began a series of texts to the deceased. He explained his
    concern that someone had inappropriately touched their daughter. He repeatedly
    asked the deceased to call him. He explained that they needed to take their
    daughter to the local hospital to have her examined for signs of abuse.

[22]

The
    deceased called the appellant and he explained his concerns about D.J. having
    touched their daughter. She agreed to meet the appellant at a local coffee shop
    that morning.

The Coffee Shop Meeting

[23]

The
    deceased arrived at the coffee shop at 9:08 a.m. She entered the passenger side
    of the appellants truck. The appellant was the only other occupant. The couple
    pulled out of the parking lot and turned in the direction of the appellants
    home.

The Trip to the Rock Pile

[24]

The
    appellant drove from the coffee shop to a rock pile about 300 metres beyond his
    home. Depending on traffic conditions, the trip would take about 17-21 minutes.
    The couple passed close by the appellants home. According to statements made
    later by the appellant, the couple smoked a bowl of marijuana at the rock
    pile. There, the appellant killed the deceased.

The Cause of Death

[25]

The
    deceased suffered 15 stab wounds and had an incised wound across the front of
    her neck. She bled to death after she suffered a wound that sliced through her
    carotid artery and into her spine, cutting through another artery. This wound
    would have quickly caused significant external bleeding and rapid loss of blood
    volume. She would have died from this wound within a small number of minutes.

[26]

The
    examining forensic pathologist identified a total of 15 stab wounds but could say
    nothing about their sequence, except that several had no bleeding associated with
    them. The lack of bleeding associated with the wound gave rise to two
    possibilities: that the wound was inflicted after death had occurred and blood no
    longer circulated, or that the deceased was in shock with her blood not being
    circulated effectively to the peripheral regions of her body.

[27]

The
    stab wounds were inflicted with what appeared to be a single-edged knife. Some
    wounds penetrated to the bone. The pathologist could not exclude the blade of a
    pocketknife five centimetres in length as having caused the wounds to the neck (4),
    front chest (4), back (3), left arm (4) and left-hand (1). The possibility that
    the wound to the left hand was a defensive wound could not be excluded.

[28]

An
    expert in both pharmacology and toxicology analyzed samples of the deceaseds
    blood and urine taken six days after her death. The THC level detected, coupled
    with the absence of metabolites, was consistent with marijuana use within hours
    or days prior to death. The findings were not expected if consumption had
    occurred within minutes of death, although severance of the carotid artery may
    have left insufficient time for the production of metabolites. That said, had
    the consumption of a marijuana product occurred within two to three minutes of
    death, the expert would have expected to find a significantly higher
    concentration of THC than that he detected in the deceaseds blood.

The Return Home

[29]

The
    appellant returned home about 45 minutes to 1 hour after he had left to meet
    the deceased. At 9:49 a.m., likely minutes after he arrived home, he spoke to a
    close friend who had called him. The appellant, who was out of breath as he
    spoke, told his friend that the deceased was missing. Her family was upset.

[30]

The
    appellant told his friend a story that he would repeat several times to others,
    including the police, over the next several hours if not days. Its essence was
    that he had been jumped by several men (the numbers varied from a low of two
    or three to a high of seven or eight) near Rehill. These men beat him up. He had
    blood on his shirt, which he burned. He changed his clothes.

[31]

The
    appellants mother and her husband were both at home when the appellant
    returned. The appellants mother said her son was sweaty and looked like he had
    a bloody nose. There was a bloody streak on his cheek. He did not appear to be high
    from drug use. Her husband saw no signs of fresh injury on the appellant who
    usually had some marks on him.

[32]

On
    several occasions, beginning before he met the deceased at the coffee shop, the
    appellant texted and called his fiancée and she explained that he had invited
    her to come out to his house. This was unusual. Although she had visited the
    appellants home, she did not usually do so when his daughter was there. She had
    never spent a weekend there. She stayed at the appellants home for the entire
    weekend but for a few hours on the Sunday evening.

[33]

After
    his fiancée arrived at his home around 11:00 a.m. on the Saturday of the
    deceaseds death, the appellant explained that the deceased had failed to show
    up at the time and place appointed for their meeting. He said that he had been jumped
    by five or six guys in the parking lot. The only sign of an injury his fiancée
    observed was the beginning of a bruise on his back.

[34]

At
    11:34 a.m., about two hours after he stabbed her to death, the appellant sent a
    text message to the deceased: Your friends just beat me up im not going to let
    you u trick me into that again ill just meet u in court. He sent a further
    text about four hours later: Where are u everyone is worried call asap. The
    following day, he texted: Plz plz call or something everyone is worried
    including me.

The Burial of the Deceased

[35]

Later
    in the evening of the same day on which he had killed the deceased, the
    appellant returned to the area where he had left her body. He carried the body to
    a nearby wooded area, dug a hole and buried the deceased in a shallow grave.

The Post-Offence Conduct

[36]

Evidence
    was given about what the appellant said and did from the time the deceased
    disappeared until the appellant was arrested several days later. Although the
    evidence included testimony about some things the appellant did, much of it
    consisted of the appellants accounts to others, including the police, about
    what had happened between him and the deceased. In the end, after a series of
    contradictory and implausible accounts, the appellant told investigators that
    he had stabbed the deceased after she had attacked him with a knife.

The Positions of the Parties at Trial

[37]

The
    indictment contained counts of first degree murder and kidnapping. In their
    submissions to the trial judge during the pre-charge conference and in their
    closing addresses to the jury, counsel on both sides focused their attention on
    the count charging first degree murder.

[38]

The
    trial Crown (not Ms. Alyea) relied on two discrete provisions to establish the
    appellants guilt of first degree murder. She contended that the murder was first
    degree murder because the murder was:

i.

planned
    and deliberate; and

ii.

committed while
    the appellant was kidnapping the deceased.

[39]

The
    Crown argued that the appellants motive to kill the deceased was so that he
    could obtain sole custody of their daughter. He fabricated an allegation that
    the deceaseds new boyfriend, D.J., had sexually interfered with their
    daughter. This convinced the deceased to meet with him to take their daughter
    to the hospital so that she could be examined about these allegations. Part of this
    plan included a pre-fabricated story in which he and the deceased never met
    because of the intervention of several men who attacked him. In the end, the
    story, which was deeply flawed from the beginning, failed. The later version of
    repelling an attack by the diminutive deceased was an equally fictitious
    account of what occurred, advanced in exculpation of a killing that was a
    planned and deliberate murder.

[40]

The
    trial Crown also argued that the murder of the deceased was first degree murder
    because the appellant killed the deceased while kidnapping her. The appellant
    convinced the deceased to meet and accompany him to have their daughter
    examined by falsely accusing D.J. of sexual improprieties with their child.
    After gaining access to the deceased by these false representations, the
    appellant transported her to the rock pile under another false pretense and
    confined her there, intentionally killing her as he did so.

[41]

Trial
    counsel for the appellant (not Mr. Litkowski) acknowledged that the appellant
    unlawfully killed the deceased, and thus, was guilty of manslaughter but not of
    either first or second degree murder. Counsel invoked the appellants claim in
    his statement to investigators that the deceased attacked him with a knife that
    she carried in her purse. This was a wrongful act that reduced an intentional
    killing, if the jury found it to be so, to manslaughter, thus foreclosing a
    conviction of either first or second degree murder. And even if the statutory
    partial defence of provocation failed, the provoking conduct of the deceased,
    coupled with the other circumstances, raised a reasonable doubt about planning
    and deliberation, as well as the mental or fault element required to make the
    unlawful killing murder.

The Grounds of Appeal

[42]

The
    appellant advances five grounds of appeal. Each has to do with the trial judges
    charge to the jury. Some are concerned with what are said to be errors, getting
    an instruction wrong; others with omissions, leaving something out that should
    have been included.

[43]

As
    I would paraphrase the complaints, the appellant contends that the trial judge
    erred in:

i.

failing
    to instruct the jury that to convict the appellant of constructive first degree
    murder under s. 231(5)(e) arising out of the predicate crime of kidnapping, the
    jury must be satisfied that the appellant continued to dominate the deceased
    from the time of the kidnapping until the time of the murder;

ii.

giving
    contradictory instructions on the relevance of evidence of post-offence conduct
    on the issue of planning and deliberation;

iii.

instructing the
    jury that evidence of post-offence conduct was relevant to the availability of
    the statutory partial defence of provocation;

iv.

failing to
    include a separate box for the defence of provocation in the decision tree provided
    to the jury; and

v.

failing to
    provide instructions to correct various misstatements in the closing address of
    the trial Crown.

Ground #1: Jury Instructions on the Elements of Constructive First Degree
    Murder under Section 231(5)(e)

[44]

This
    ground of appeal focuses on what is said to be a fatal omission in the
    instructions on the essential elements of first degree murder under s.
    231(5)(e) arising out of the predicate offence of kidnapping. The issue raised
    is not concerned with what was said, but rather with what was left out.

[45]

The
    appellant also says that the evidence adduced at trial, largely from the
    statements of the appellant to the police, obligated the trial judge to provide
    this instruction. I will approach the issue by first considering whether an
    instruction of the nature urged by the appellant is a legal requirement of a
    jury instruction under s. 231(5)(e).

The Charge to the Jury

[46]

In
    her final instructions to the jury, the trial judge explained what the Crown
    was required to prove to establish the appellants guilt of first degree murder
    under s. 231(5)(e). She said:

Mr. McGregor is charged with first degree murder arising from
    kidnapping. For you to find Mr. McGregor guilty of first degree murder in
    relation to kidnapping, the Crown must prove each of these essential elements
    beyond a reasonable doubt.

i.

That Mr. McGregor caused the death of [J.M.];

ii.

That Mr. McGregor caused the death of [J.M.] unlawfully; and was not
    acting in self-defence;

iii.

That Mr. McGregor had the state of mind required for murder;

iv.

That the murder was not provoked;

v.

That Mr. McGregor had kidnapped [J.M.];

vi.

That the kidnapping and murder of [J.M.] were part of the same series of
    events.

If the Crown has not satisfied you beyond a reasonable doubt of
    each of these essential elements of constructive first degree murder, you must
    find Mr. McGregor not guilty of first degree murder.

If the Crown has satisfied you beyond a reasonable doubt of
    each and every [
sic
] of these essential elements, you must find Mr.
    McGregor

guilty of first degree murder.

The Arguments on Appeal

[47]

The
    basic proposition the appellant advances is that, in addition to what is
    required by
R. v. Harbottle
, [1993] 3 S.C.R. 306, the Crown must prove
    that the appellant continued to dominate the deceased from the time of the
    kidnapping until the time of the intentional killing in order for him to be
    found guilty of first degree murder under s. 231(5)(e) arising out of the
    predicate offence of kidnapping. The appellant says that to establish the while
    committing or attempting to commit element of constructive first degree murder,
    the Crown must prove a continuing domination of the victim that connects the
    predicate offence to the murder.

[48]

The
    appellant submits that the decision in
R. v.
Paré
, [1987] 2 S.C.R.
    618 added this element of continued domination. The argument continues, that in
    order to establish guilt, it is insufficient that the predicate offence and the
    murder be discrete offences but part of the same sequence of events. The Crown
    must also prove a continuing domination of the victim such that the murder is
    an exploitation of the accuseds position of dominance over the victim. And the
    jury must be instructed of the need for such a finding.

[49]

The
    appellant says that the proposition he advances is supported by the authorities
    which hold that the constitutional validity of s. 231(5) depends on its capture
    of only those murders committed when the killing is an exploitation of the
    accuseds position of continued dominance over the victim.

[50]

The
    murder must be temporally linked to the predicate offence. It must also be
    causally linked through continued domination to the predicate offence. Since
    this requirement of continued domination is a prerequisite to sustain the
    constitutional validity of s. 231(5), it must be included in final instructions
    to the jury. An instruction on the single transaction essential element of first
    degree murder under s. 231(5) is not sufficient to convey this essential causal
    link between the predicate offence and the murder.

[51]

The
    appellant concludes with the submission that although the instruction for which
    he contends may be redundant in some cases, it is not so here. And that is
    because there is an air of reality to the defence claim that the chain of
    domination was broken prior to the murder taking place. The appellant submits
    that the trial judges failure to instruct the jury on the element of continued
    domination was non-direction amounting to misdirection.

[52]

The
    respondent rejects the claim of error advanced by the appellant. The
    instruction for which the appellant contends is not required as a matter of law
    in cases where liability for first degree murder depends on s. 231(5). The
    decision in
Paré
, the respondent invites us to recall, described
    continuing domination as an organizing principle underlying the predicate offences
    listed in s. 231(5). It explains why these, of all the offences in the
Criminal
    Code
, have been selected, when combined with a contemporaneous murder, as
    displaying such an enhanced moral blameworthiness to warrant classification of
    the murder as first degree murder, and thus deserving of the most severe
    punishment permitted under our law. An organizing principle is not, nor does it
    become, an essential element of an offence.

[53]

As
    an organizing principle, continuing domination explains and supports Parliaments
    decision to classify murders committed as part of a series of continuous events,
    involving both a predicate offence and a murder, as sufficiently serious to
    warrant enhanced punishment. But this rationale for the inclusion of predicate
    offences in s. 231(5) forms no part of the essential elements of first degree
    murder under this basis of classification. A jury instruction, as here, that
    the predicate offence and murder be closely connected, part of the same series
    of events and constituting a single ongoing transaction, is all that is legally
    required. That instruction in this case attracted no objection from defence
    counsel at trial and conforms to the law in this province and elsewhere in
    Canada.

The Governing Principles

[54]

The
    principles that control our decision on this ground of appeal are those that
    define the essential elements of first degree murder under s. 231(5) of the
Criminal
    Code
.

[55]

No
    one gainsays that s. 231 classifies murder for sentencing purposes as either,
    but not both, second degree murder or first degree murder. Section 231(1) says
    as much:
R. v. Farrant
, [1983] 1 S.C.R. 124, at pp. 140-142;
R. v.
    Droste
, [1984] 1 S.C.R. 208, at pp. 218, 220-222; see also
R. v. Nette
,
    2001 SCC 78, [2001] 3 S.C.R. 488, at para. 50.

[56]

Section
    231(5) is one of several subsections that describe the circumstances in which a
    murder will be classified for sentencing purposes as first degree murder. Those
    murders not classified as first degree murder are second degree murder under s.
    231(7) of the
Criminal Code
. Section 231(5) classifies murder as first
    degree murder where an accused causes the death of another in circumstances
    amounting to murder while committing or attempting to commit a listed offence
    involving the physical domination of another. The listed offences include in s.
    231(5)(e) kidnapping and unlawful confinement.

[57]

The
    organizing principle that underlies s. 231(5) is that where a murder is
    committed by someone already abusing his or her power by illegally dominating another,
    that murder should be treated as an exceptionally serious crime. Parliament has
    chosen to treat those murders as first degree murders:

Paré
,
    at p. 633. The murder represents an exploitation of the position of power
    created by the underlying crime and makes the entire course of conduct a single
    transaction:
Paré
, at p. 633.

[58]

An
    organizing principle is not a free-standing rule, rather it is a standard that
    helps to understand and develop the law in a coherent and principled way:
Bhasin
    v. Hrynew
, 2014 SCC 71, [2014] 3 S.C.R. 494, at para. 64.

[59]

The
    continuing illegal domination of the victim gives continuity to the sequence of
    events that culminate in the murder. The words while committing or attempting
    to commit in s. 231(5) include conduct that is part of the continuous sequence
    of events forming a single transaction with the underlying offence. A jury
    instruction on this issue should make it clear that there must be a connection
    between the underlying offence and the murder, but that those offences need not
    occur simultaneously:
Paré
, at p. 633.

[60]

The
    essential elements of constructive first degree murder under s. 231(5) are five:

i.

that the
    accused committed or attempted to commit a listed underlying crime;

ii.

that the accused
    murdered the victim;

iii.

that the accused
    participated in the murder in such a manner that he was a substantial cause of
    the victims death;

iv.

that no intervening act by
    somebody else resulted in the accused no longer being substantially connected
    to the victims death; and

v.

that the underlying
    crime and the murder were part of the same transaction.

See,
Harbottle
, at p. 325;
R. v. Magoon
,
    2018 SCC 14, [2018] 1 S.C.R. 309, at para. 17;
R. v. Parris
, 2013 ONCA
    515, 300 C.C.C. (3d) 41, at para. 44.

[61]

The
    essential elements of constructive first degree murder under s. 231(5) could be
    summarized as follows:

i.

predicate offence;

ii.

murder;

iii.

substantial cause;

iv.

no intervening act; and

v.

same transaction.

See,
Parris
, at para. 45.

[62]

Section
    231(5) refers to two crimes. Each must be a distinct criminal act. The first is
    the enumerated or predicate offence, which may be completed or merely
    attempted. The second is murder. The same or single transaction requirement
    demands that there be a temporal and causal relationship between the actual or
    attempted commission of the enumerated offence and the killing:
R. v.
    Pritchard
, 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 25.

[63]

Under
    s. 231(5)(e), murder becomes first degree murder where the murder and the
    predicate offence (here, kidnapping) are linked together both temporally and
    causally in circumstances that make the entire course of conduct a single transaction.
    This temporal-causal connection lies proven where the kidnapping creates a continuing
    illegal domination of the victim that provides the accused with a position of
    power which he or she chooses to exploit to murder the victim:
Paré
,
    at p. 633;
Pritchard
, at para. 35.

[64]

The
    underlying offence of kidnapping is not defined in the
Criminal Code
.

[65]

Kidnapping
    is an aggravated form of unlawful confinement. Kidnapping is also a continuing
    offence, one that is complete in law when the victim is first apprehended and
    moved, but not complete in fact until the victim is freed:
R. v. Vu
,
    2012 SCC 40, [2012] 2 S.C.R. 411, at paras. 6, 25, 33.

[66]

A
    final point concerns the relationship between illegal domination as an
    organizing principle of the classification of murder under s. 231(5) as first
    degree murder and the essential elements the Crown must prove to bring home
    liability to an accused under this section.

[67]

In
Paré
, Wilson J. used the organizing principle of illegal domination to
    inform her interpretation of the while committing or same transaction
    requirement. She did
not
add domination or illegal domination to the
    list of things that the Crown must prove to have a murder classified as first
    degree murder under s. 231(5):
R. v. Imona-Russell
, 2018 ONCA 590, at
    para. 13.

The Principles Applied

[68]

Several
    reasons persuade me that this ground of appeal fails.

[69]

To
    begin, consider the role of an organizing principle.

[70]

As
    we have seen, an organizing principle is
not
a free-standing rule. It
    is a standard that helps us understand and develop the law in a coherent and
    principled way. In this case, the organizing principle helps us understand why
    Parliament classified murders committed in connection with listed predicate
    offences as first degree murder. This was because an accused killed his or her
    victim whom he or she was already illegally dominating by committing the
    predicate offence. What must be proven to establish first degree murder under
    this classification is set out in s. 231(5). The characterization of the
    underlying crimes for descriptive purposes as offences involving illegal
    domination does not add a further essential element to the statutory language.

[71]

Second,
Paré
,
when examined
    carefully, does not provide any authority for the appellants argument.

[72]

In
Paré
, the central issue was
    whether Paré murdered the victim while committing an indecent assault. The
    argument advanced there was that a murder committed
after
the indecent assault ended
    could not satisfy the while committing element of what was then s. 214(5).
    The court was satisfied that the murder was temporally and causally connected
    to the underlying offence of indecent assault. The murder formed part of one
    continuous sequence of events and was part of the same transaction.

[73]

The
Paré
court recognized
    illegal domination as the organizing principle underlying the classification
    of murders committed while committing or attempting to commit an offence of
    indecent assault. What the court did
not
do was add a further element of continuing
    illegal domination to the essential elements included in the subsection.

[74]

Third, this argument
    finds no support in the decisions of the Supreme Court of Canada, or of this
    court, rendered after
Paré
,

which set out, as in
Harbottle
and
Magoon
, the essential
    requirements of proof to establish first degree murder under s. 231(5).

[75]

Fourth, the appellants
    submission fails to take into account the continuing nature of the crimes of
    domination listed in s. 231(5)(e)  kidnapping and unlawful confinement  which,
    when combined with instructions on the same transaction requirement, make it
    clear that both the underlying offence and the murder must be part of the same
    transaction.

[76]

Finally, the specific
    argument advanced here was made and rejected in
Imona-Russell
,
albeit in relation to a
    different predicate offence. At bottom, this court held that illegal
    domination is
not
a distinct element of first degree murder in s. 231(5)
    requiring express instruction beyond what is included under existing
    jurisprudence: see
Imona-Russell
, at paras. 13-15.

Ground #2: Instructions on Evidence of Post-Offence Conduct as Relevant to
    a Planned and Deliberate Murder

[77]

This
    ground of appeal takes issue with the trial judges instructions about the use
    jurors could make of evidence of post-offence conduct in reaching their
    verdict. The focus is more on the adequacy and clarity of the instructions,
    less upon the evidence that qualified as post-offence conduct.

The Relevant Evidence

[78]

At
    trial, evidence was given of many things the appellant said and did after he
    killed the deceased. Of particular prominence in this catalogue of sayings and
    doings was an obvious lie told and repeated by the appellant to family, friends
    and investigators. That lie consisted of a denial of having met the deceased on
    July 2, 2011, and of having been beaten by a number of men when he attended at
    their agreed-upon meeting place.

The Pre-Charge Conference

[79]

Extensive
    discussion took place at the pre-charge conference about the relevance of
    evidence of post-offence conduct and what the jury should be told about its use
    in reaching their verdict. One issue on which counsel were divided was whether
    this evidence could be used to determine whether the killing of the deceased
    was murder and whether the murder was planned and deliberate first degree
    murder.

[80]

The
    trial Crown took the position that evidence of the speed with which the
    appellant provided this exculpatory explanation, literally within minutes of
    having killed the deceased, was relevant and thus available for jury use in
    deciding whether murder, otherwise proven, was planned and deliberate.

[81]

Defence
    counsel advanced a different argument. He submitted that the evidence of post-offence
    conduct was only relevant and thus confined in its use by the jury to the issue
    of self-defence; in other words, to the decision about whether the killing of
    the deceased was unlawful or justified. Put somewhat differently, the evidence could
    help the Crown establish the appellants culpability, but not the legal character
    or classification of the unlawful killing.

[82]

The
    trial judge appears to have acceded to the defence position on this issue, at
    least so far as it related to the instructions she would later give to the
    jury.

[83]

Despite
    the trial judges apparent conclusion about how she would instruct the jury
    about their use of evidence of post-offence conduct in reaching their verdict,
    the trial Crown asked whether she could invite the jury to consider the
    appellants fabricated disclaimer as evidence that the deceaseds killing was
    planned and deliberate murder. The trial judge responded: I dont think I am
    troubled by that.

The Closing Address of the Crown

[84]

In
    her closing address to the jury, the trial Crown suggested that the appellants
    immediate and repeated disclosure of the fabricated disclaimer beginning almost
    immediately after the killing supported an inference that the killing had been
    thought out in advance, and a further inference that the unlawful killing of
    the deceased was, at once, intentional and planned and deliberate.

The Charge to the Jury

[85]

In
    her instructions to the jury on evidence of post-offence conduct, the trial
    judge characterized this testimony as a type of circumstantial evidence that
    could support inferences which, together with the rest of the evidence, the
    jury could use to determine whether the Crown had proven the appellants guilt
    beyond a reasonable doubt.

[86]

The
    trial judge then explained to the jury the permitted and prohibited use of this
    evidence in reaching their verdict:

As circumstantial evidence, evidence of after-the-fact conduct
    has only an indirect bearing on the issue of Mr. McGregors guilt, because you
    may only consider this evidence in relation to whether he acted in self-defence
    or whether he was provoked in the circumstances in which [J.M.] died. You may
    not infer that he is guilty of murder or kidnapping on the basis of his
    after-the-fact conduct, because there may be other explanations for his
    conduct.

[87]

The
    trial judge concluded her instructions on the evidence of post-offence conduct
    in this way:

If you do not or you cannot find that what Mr. McGregor said
    and did afterwards was related to the commission of the offences charged, you
    must not use his evidence in deciding or in helping you decide whether he acted
    in self-defence.

Remember that you must not consider any of the words or conduct
    of Mr. McGregor that occurred after the offences with which he is charged as
    evidence of any intention or planning to commit murder or kidnapping. You must
    not therefore, consider any of his post-offence conduct as evidence of either
    first or second degree murder, or kidnapping. His post offence words and
    conduct have no probative value as to whether there was an intention, or
    whether there was planning or deliberation to murder or kidnap [J.M.]. Remember
    to consider all of the evidence.

[88]

Later
    in her instructions to the jury, the trial judge reviewed the positions of the
    parties and outlined some of the evidence each marshalled in support of their
    position. In summarizing the evidence to sustain the Crowns position that the
    killing of the deceased was a planned and deliberate first degree murder, the trial
    judge said:

He had an alibi already, a story about being jumped by six men.
    It would cover off his delay, any injuries that might result in his
    confrontation with [J.M.], and explain that [J.M.] had never met with him and
    had simply disappeared. He would cover up with texts to [J.M.]s phone,
    inserting his alibi story, explaining he was worried about her, imploring her
    to call after he had killed her.

The Arguments on Appeal

[89]

The
    appellant says that the trial judge erred in failing to adequately instruct the
    jury on the limits within which it could use evidence of post-offence conduct,
    in particular, the fabricated disclaimer, in reaching its verdict. The
    authorities recognize that this kind of circumstantial evidence is notoriously
    susceptible to jury misuse. Clear and careful instructions are required to
    counteract this danger.

[90]

In
    this case, the appellant continues, the instructions given were confusing,
    contradictory, inadequate and incomplete. In her charge, the trial judge
    limited jury use of this evidence to the issues of self-defence and
    provocation. This was over-inclusive because the permitted use should have been
    confined to self-defence. The prohibited use instructions advising the jury
    that the evidence could not be used to assist in proof of kidnapping, murder or
    planned and deliberate first degree murder were correct. But those directions
    were compromised and ultimately undone for planned and deliberate first degree
    murder when the trial judge instructed the jury on the position of the Crown.
    There, the trial judge specifically referred to this evidence and implicitly
    advised of its availability for use in proof of planning and deliberation.

[91]

The
    appellant acknowledges that the authorities recognize that no
per se
or bright line rule enjoins the use of evidence of post-offence conduct to
    prove a mental or fault element that distinguishes levels of culpability, such
    as planning and deliberation. In each case, it is a matter of relevance. And
    the evidence of post-offence conduct, particularly the fabricated disclaimer,
    was not relevant to planning and deliberation in this case.

[92]

According
    to the appellant, taken as a whole, the charge is at best confusing, at worst
    misleading. To reconcile the facially inconsistent instructions, a copy of
    which was sent to the jury room, the jury may have thought that somehow the
    evidence of the fabricated disclaimer was not evidence of post-offence conduct
    when it was plainly so. And thus, the jury may have thought the fabricated
    disclaimer was not subject to the caution earlier given about this type of evidence.

[93]

The
    respondent joins issue with the appellant about the adequacy of the
    instructions. Read as a whole, the respondent says, the instruction adequately conveyed
    to the jury not only the need for caution in its handling of this evidence, but
    also the use it could and must not make of it in reaching its verdict. This
    included the evidence of the I was jumped fabricated disclaimer first uttered
    within an hour of the killing.

[94]

The
    respondent underscores the absence of any blanket rule governing the reception
    and use of evidence of post-offence conduct. Admissibility and use all comes
    down to relevance. And relevance is relative, not absolute. Context controls.
    The nature of the evidence. The issues at trial. The positions of the parties.

[95]

In
    this case, the respondent continues, what is relevant is not so much the
    content of the I was jumped disclaimer, but that it was ready at hand within
    an hour of the killing. That it was indicative of forethought. And in its turn,
    forethought supports an inference that the conduct it was deployed to displace was
    planned and deliberate, not the product of circumstances beyond the appellants
    choosing. In this respect, the instructions that foreclosed use of this
    evidence of post-offence conduct in relation to planning enured to the benefit
    of the appellant. It follows that its inclusion in the recital of the position
    of the Crown caused the appellant no prejudice.

[96]

The
    respondent acknowledges the absence of any specific directed caution about jury
    use of this evidence, but invites us to consider the instructions as a whole in
    testing their adequacy. What was said as a matter of law alerted the jury to
    the need for caution in drawing inferences; limited its use to the defences of
    self-defence and provocation; and prohibited recourse to it in determining
    whether the appellant kidnapped the deceased, intentionally killed her or
    planned and deliberated her murder.

[97]

The
    respondent also parts company with the appellant about the impact of the
    reference to the I was jumped disclaimer as relevant to planning and deliberation
    during the trial judges reprise of the position of the Crown. Especially in a
    case such as this where the jury was provided with a written copy of the judges
    final instructions, the members of the jury would readily distinguish between
    legal instructions by which they were bound and descriptions of the positions
    of the parties by which they were not. The claim of contradictory or confusing
    instructions should fail.

The Governing Principles

[98]

Evidence
    of post-offence, or more neutrally, post-event conduct, is the subject of a
    robust body of jurisprudence from the Supreme Court of Canada and courts of
    appeal across the country. The nature of the issue raised here relates to the
    adequacy of jury instructions about jury use of the evidence of post-offence
    conduct in reaching a verdict. But it is difficult to draw a bright line
    between issues of admissibility, on the one hand, and instructions on jury use,
    on the other. For each, relevance is critical. The principles that control
    admissibility determine use and thus what must be said about it to the jury.

[99]

Evidence
    of post-offence conduct refers to evidence of what an accused is alleged to
    have said or done after the offence charged was committed. This covers a vast
    expanse of possible circumstances bordered only by the limits of human
    experience. It necessarily follows from the breathtaking sweep of circumstances
    that may constitute evidence of post-offence conduct that the proper treatment
    of this evidence is both context and fact-specific:
R. v. Calnen
, 2019
    SCC 6, at para. 106, per Martin J.

[100]

Evidence of post-offence
    conduct is circumstantial evidence. It invokes a retrospectant chain of
    reasoning. The trier of fact is invited to infer from later words or conduct the
    accuseds prior conduct or a state of mind:
Calnen
, at para. 111. Like
    other items of circumstantial evidence, evidence of post-offence conduct may
    give rise to a range of inferences. But the mere fact that the evidence gives
    rise to a range of inferences, some inculpatory others not, does not deprive
    this evidence of probative value or render it null. In most cases it will be
    for the trier of fact to determine which inferences to draw and the weight to
    assign to them in reaching a conclusion about guilt:
Calnen
, at para.
    112;
R. v. Allen,
2009 ABCA 341, 249 C.C.C. (3d) 296, at para. 68, affd
    2010 SCC 42, [2010] 2 S.C.R. 648.

[101]

The inferences
    that may be drawn from evidence of post-offence conduct must be reasonable when
    adjudged by the measuring stick of human experience. Those inferences will
    depend on the:

i.

nature of the conduct;

ii.

inferences sought to be drawn from that conduct;

iii.

positions of the parties; and

iv.

totality of the evidence.

See,
Calnen
, at para. 112;
R. v. Smith
,
    2016 ONCA 25, 333 C.C.C. (3d) 534, at para. 77.

[102]

To be
    receivable, evidence of post-offence conduct must be relevant, material and not
    offend any other exclusionary rule of evidence, including the requirement that
    its probative value exceed its prejudicial effect:
Calnen
, at para.
    107. Since receivability falls to be decided on this principled basis, no
per
    se
rule confines the answer to the receivability issue in any case. No
    prefabricated rule imposes a label of always relevant or never relevant
    when evidence of post-offence conduct is proposed for use in establishing a
    particular fact or issue:
Calnen
, at para. 119. So, for example, no
    legal impediment bars use of evidence of an accuseds post-offence conduct in
    determining his or her state of mind, and thus in distinguishing between or
    among different levels of culpability:
Calnen
, at para. 119;
R. v.
    White
, [1998] 2 S.C.R. 72, at para. 32;
R. v. White
, 2011 SCC 13,
    [2011] 1 S.C.R. 433, at para. 42;
R. v. Rodgerson
, 2015 SCC 38, [2015]
    2 S.C.R. 760, at para. 20.

[103]

The context and
    fact-specific nature of the inquiry into and determination of receivability of
    evidence of post-offence conduct has implications for the trial participants
    including counsel, the trial judge and the trier of fact.

[104]

Counsel and the trial
    judge should specifically define the issue, purpose and use for which the
    evidence is tendered and articulate the reasonable and rational inferences that
    might be drawn from it:
Calnen
, at para. 113.

[105]

Evidence of post-offence
    conduct admitted for a particular purpose is to be used only for that purpose.
    Counsel are as much bound in their use of this evidence, as for example in
    closing submissions, as the trier of fact is in its consideration of that same
    evidence in reaching a verdict. And in a jury trial, it is incumbent on the trial
    judge to instruct the jury about the permitted and prohibited use of that
    evidence in their deliberations:
Calnen
, at para. 113.

[106]

Instructions
    limiting the use of evidence by the trier of fact typically include three
    elements:

i.

identification
of the evidence to which the instruction
    applies;

ii.

an instruction on the
permitted
use of the evidence; and

iii.

an instruction on the
prohibited
use of the evidence.

See,
Calnen
, at para. 42, per Moldaver J., citing
R. v. T. (J.A.)
, 2012 ONCA 177, 288 C.C.C. (3d) 1, at para. 53.

[107]

When the
    evidence of limited use is evidence of post-offence conduct, some unique
    reasoning risks may require more refined instructions. This evidence is often
    removed temporally from the event to which it is said to relate. An appropriate
    inference may be harder to draw because of this separation. The evidence may
    appear more probative than it is. It may be inaccurate. It may encourage
    speculation, immature reasoning and premature conclusions:
Calnen
, at
    para. 116.

[108]

To meet these
    general concerns, instructions on evidence of post-offence conduct must tell
    jurors to take into account alternative explanations for the accuseds conduct,
    thus to avoid a mistaken leap from the evidence to a conclusion of guilt:
Calnen
,
    at para. 117. But sometimes more is required because cautions and limiting
    instructions must pay heed to the actual evidence and the specific risks it
    poses in the case at hand:
Calnen
, at para. 118.

The Principles Applied

[109]

I would give
    effect to this ground of appeal. In my view, the instructions were unclear and
    incomplete and more likely to confuse than to educate the jury about proper use
    of this evidence.

[110]

At the
    pre-charge conference, counsel and the trial judge had a lengthy discussion
    about the several items of evidence of post-offence conduct and how the jury
    could and could not use them in reaching its verdict. The trial judge concluded
    that this evidence, including the I was jumped disclaimer uttered repeatedly
    shortly after the killing, was
not

relevant to the level of the
    appellants culpability or to the statutory partial defence of provocation. In
    other words, the evidence could
not
be used by the jury to conclude
    that the killing of the deceased was murder or planned and deliberate first
    degree murder. Nor could it be used to rebut the statutory partial defence of
    provocation or to establish that the appellant kidnapped the deceased. The use
    to which this evidence was limited was to rebut the claim of self-defence, thus
    to assist in establishing the unlawful character of the killing.

[111]

In large
    measure, the instructions provided to the jury on the use of the evidence of
    post-offence conduct were faithful to what had been decided. But, contrary to
    what had been determined at the pre-charge conference, the trial judge also
    instructed the jury that the evidence of post-offence conduct could be used to
    rebut the provocation defence. In this respect, as I will explain later, the trial
    judge erred.

[112]

Two other trial
    events, considered together, compromise the judges instructions about jury use
    of the evidence of post-offence conduct. Both related to the position of the
    Crown. The first appeared in the closing address of the trial Crown. The second
    emerged in the trial judges instructions to the jury about the position of the
    Crown.

[113]

Recall that at
    the pre-charge conference, the trial judge decided to instruct the jury that
    the evidence of post-offence conduct was not relevant to, and thus could not be
    considered by the jury, in deciding whether the murder of the deceased was
    planned and deliberate. Despite this determination, the trial Crown asked
    whether, in her closing address, she could invite the jury to consider the I
    was jumped disclaimer and the circumstances in which it was uttered as
    evidence that the killing was murder and that the murder was planned and
    deliberate. The trial judge permitted the Crown to do so and the Crown made
    submissions on this use of the evidence.

[114]

In her charge to
    the jury, the trial judge summarized the positions of the parties. Included in
    her review of the position of the Crown was a reference to the use of this
    evidence to establish that the murder of the deceased was planned and
    deliberate. In the end, the trial judges legal instructions to not use evidence
    of post-offence conduct to help establish that the murder was planned and
    deliberate were at odds with the judges exposition of the Crowns position
    that the I was jumped disclaimer could be used for that purpose. While it
    could be said that a contemporary Canadian jury, equipped with a written copy
    of the charge, could distinguish between legal instructions they were bound to
    follow and positions of the parties by which they were not bound, the
    instructions injected an unnecessary confusion into the use of evidence that
    occupied a position of prominence in the Crowns attempt to establish the
    appellants guilt of planned and deliberate first degree murder.

[115]

To the extent
    that the jury may have resolved these contradictory instructions by considering
    that the I was jumped disclaimer was
not
evidence of post-offence
    conduct, and
not
subject to the cautions associated with this kind of
    circumstantial evidence, the appellant suffered prejudice as a result.

Ground #3: Evidence of Post-Offence Conduct and the Statutory Partial
    Defence of Provocation

[116]

This ground of
    appeal also relates to evidence of post-offence conduct and the trial judges
    instructions to the jury about its use. The evidence is the same as that
    involved in the second ground of appeal, including the I was jumped
    disclaimer. Likewise, the principles that govern instructions about jury use of
    this evidence are those canvassed earlier. Neither requires repetition here.

The Pre-Charge Conference

[117]

During the
    lengthy pre-charge discussions about evidence of post-offence conduct and how
    the jury should be instructed about its use, defence counsel submitted that the
    evidence was
not
relevant to the statutory partial defence of
    provocation being advanced on the appellants behalf. The trial Crown agreed. And
    seemingly, so did the trial judge.

The Charge to the Jury

[118]

In her final
    instructions to the jury, the trial judge left two defences:

i.

self-defence
    under current s. 34 of the
Criminal Code
[2]
;
    and

ii.

provocation
    under former s. 232.

She also provided jurors with a rolled up instruction
    on proof of the intent required for murder.

[119]

Before
    summarizing the evidence of post-offence conduct, the trial judge explained the
    use jurors could make of this evidence in reaching their verdict:

As circumstantial evidence, evidence of after-the-fact conduct
    has only an indirect bearing on the issue of Mr. McGregors guilt, because you
    may only consider this evidence in relation to whether he acted in self-defence
or whether he was provoked in the circumstances in which [J.M.] died
.
    You may not infer that he is guilty of murder or kidnapping on the basis of his
    after-the-fact conduct, because there may be other explanations for this
    conduct. [Emphasis added.]

[120]

In concluding
    her instructions on this issue, the trial judge told the jury:

If you do not or you cannot find that what Mr. McGregor said and
    did afterwards was related to the commission of the offences charged, you must
    not use his evidence in deciding or in helping you decide whether he acted in
    self-defence.

Remember that you must not consider any of the words or conduct
    of Mr. McGregor that occurred after the offences with which he is charged as
    evidence of any intention or planning to commit murder or kidnapping. You must
    not therefore, consider any of his post-offence conduct as evidence of either
    first or second degree murder, or kidnapping. His post offence words and
    conduct have no probative value as to whether there was an intention, or
    whether there was planning or deliberation to murder or kidnap [JM]. Remember
    to consider all of the evidence.

[121]

Defence counsel
    objected to the inclusion of provocation and the instructions about jury use of
    the evidence of post-offence conduct. Counsel for the Crown reminded the judge
    of the agreement during the pre-charge conference that the evidence was
    relevant only to the availability of self-defence as a justification for the
    killing, not to provocation. The trial judge did not modify the charge or re-charge
    the jury.

The Arguments on Appeal

[122]

The appellant
    begins by emphasizing that the statutory partial defence of provocation was the
    principal defence advanced at trial. The wrongful act upon which the defence
    was grounded was the knife attack described by the appellant after he finally
    admitted that he had stabbed the deceased to death. Defence counsel also
    suggested that, apart from the statutory partial defence, the deceaseds
    provoking conduct was relevant in an assessment of whether the Crown had proven
    the mental element in murder beyond a reasonable doubt.

[123]

According to the
    appellant, the trial judges instruction, which left a vast expanse of evidence
    of post-offence conduct as relevant to whether the murder of the deceased was
    provoked and thus manslaughter, amounted to a serious legal error. By pitting
    this evidence against the appellants account of a sudden attack by an armed
    aggressor and an equally sudden response, the effect of the instruction was to
    eliminate the prospect of any reasoned assessment of the defence.

[124]

The appellant
    says the prejudice created by the instruction linking the evidence of
    post-offence conduct to the provocation defence was exacerbated in two ways.
    The first is inherent in evidence of post-offence conduct: the recognized
    tendency of a jury to overemphasize and overvalue this evidence as probative of
    guilt. The second perpetuated the prejudice: the jury received a written copy
    of the judges charge to review during their deliberations.

[125]

The respondent
    concedes that in the circumstances of this case, the evidence of post-offence
    conduct was not relevant to the jurys decision on provocation. But the
    instruction to the contrary, said only once, caused the appellant no prejudice.

[126]

The respondent
    contends that a contemporary Canadian jury would appreciate that the evidence
    of post-offence conduct had nothing to do with provocation in light of the trial
    judges instructions on this evidence considered as a whole. Further, the
    defence at trial had conceded that a conviction of manslaughter was appropriate
    despite advancing self-defence on the basis of the self-same conduct of the
    deceased.

[127]

The respondent
    points out that linking the evidence of post-offence conduct to provocation
    contributed little if anything to the failure of the statutory partial defence.
    The account itself was inherently implausible and at odds with the
    incontrovertible physical evidence. And this was apart from the chronology of
    falsehood heaped upon falsehood as each story crumbled when confronted with
    contradictory evidence. In any event, says the respondent, the wording of the
    instruction may have had a minimal impact because it was essentially the same
    as limiting that instruction to self-defence, and was merely a lead-in to the
    main instruction. The main portion of the instruction provided that evidence of
    post-offence conduct only pertained to self-defence, without mention of
    provocation.

The Governing Principles

[128]

The prior
    canvass of precedent on the instructions required when evidence of post-offence
    conduct is adduced in a jury trial is sufficient to inform the decision on this
    ground of appeal. But one point deserves emphasis. And that is that the
relevance
of the evidence of post-offence conduct in the concrete reality of the case in hand
    determines its use and the necessity for, and content of, any instructions about
    jury use of the evidence.

The Principles Applied

[129]

As I will
    briefly explain, I would give effect to this ground of appeal. In the
    circumstances of this case as the parties agreed at trial and the respondent
    concedes here, the evidence of post-offence conduct was not relevant for the
    jury to consider in determining whether the murder of the deceased was reduced
    to manslaughter by the statutory partial defence of provocation.

[130]

To be clear, I
    reach this conclusion in the circumstances of this case, not on the basis of
    any bright line rule that bars use of evidence of post-offence conduct in
    assessing the viability of the statutory partial defence of provocation.
    Relevance controls the decision, not bright line rules.

[131]

In some cases
    where an accused is charged with a first degree murder alleged to have been
    planned and deliberate and responds in part by claiming that the murder was
    provoked under s. 232 of the
Criminal Code
, evidence of post-offence
    conduct supportive of an inference of planning and deliberation would also seem
    likely relevant to rebut the statutory partial defence of provocation. But
    neither party suggest that this is such a case.

[132]

In this case,
    the instruction about the use of evidence of post-offence conduct in assessing
    the statutory partial defence of provocation was prejudicial to the appellant
    because it related to the principal defence advanced on his behalf. While
    mentioned only once during final instructions, the reference was contained in
    the written version of the charge provided to jurors. Despite objection by
    defence counsel, the trial judge failed to correct the error.

Ground #4: Provocation and the Decision Tree

[133]

This ground of
    appeal takes issue with the contents of a portion of the decision tree provided
    to the jury as an aid to assist them in their deliberations.

[134]

Some brief
    background will help to better understand the nature of this grievance.

The Pre-Charge Conference

[135]

During the pre-charge
    conference, counsel and the trial judge discussed the structure and content of
    a decision tree the trial judge proposed to provide to the jury as a
    deliberation aid. Defence counsel asked the trial judge to include a separate box
    for the statutory partial defence of provocation and proposed that the box be
    inserted below the box that referred to the mental element necessary to prove
    an unlawful killing was murder.

[136]

The trial Crown
    resisted the defence request. Her resistance appears to have been grounded, at
    least in part, in her view that the defence of provocation is somehow related
    to the mental or fault element in murder. It followed, according to the trial
    Crown, that the entry dedicated to proof of the state of mind required for
    murder covered this issue of provocation and rendered any separate entry
    unnecessary.

[137]

The trial judge
    seemed to be of the same view as the trial Crown. She declined to accede to the
    defence request. The decision tree provided to the jury contained no separate
    entry for provocation.

The Decision Tree

[138]

The decision
    tree provided to the jury appears as Appendix A to these reasons. It includes
    this entry:

Did Mr. McGregor have a
state of mind
required for
murder
,
    (not provoked)?

as well as directional arrows pointing to the
    consequences of an affirmative or negative response to the question.

The Charge to the Jury

[139]

In introducing
    the statutory partial defence of provocation in her final instructions to the
    jury, the trial judge began in this way:

Provocation becomes an issue for you to decide if the Crown has
    satisfied you beyond a reasonable doubt that Robert McGregor committed murder.
    If you are not satisfied beyond a reasonable doubt that Robert McGregor
    committed murder, you do not consider the issue of provocation that I am about
    to describe to you.

[140]

The written
    version of the charge provided to jurors contains the same instruction. Neither
    advised the jury how to use the decision tree.

The Arguments on Appeal

[141]

The appellant
    says that the trial judge erred in failing to include a separate entry or box
    for the statutory partial defence of provocation in the decision tree. This was
    required to ensure that the jury understood that the statutory defence was
    separate and apart from the mental element required to establish an unlawful
    killing as murder. Provoking words or conduct by a deceased are relevant in
    assessing whether the Crown has proven a requisite state of mind to establish
    an unlawful killing as murder, but the statutory partial defence in s. 232 is
    only engaged when murder has been proven beyond a reasonable doubt.

[142]

According to the
    appellant, the impact of failing to include a separate entry or box for
    provocation was exacerbated by the reference was not provoked in the box in
    the decision tree relating to proof of murder. The reference is at best
    ambiguous. At worst, it is misleading because it leaves the impression that
    provocation has to do with the state of mind for murder. Provocation under s.
    232 has nothing to do with the mental element. Indeed, it is engaged only when
    that mental element has been proven beyond a reasonable doubt.

[143]

The respondent
    begins with an observation that whether the trial Crown and trial judge were
    under a misapprehension about the relationship between the statutory partial
    defence of provocation and the mental element in murder is beside the point.
    The real issue is whether, in all the circumstances, the omissions or
    inclusions in the decision tree prejudiced consideration of the appellants
    defence of provocation.

[144]

The respondent
    says that the jury was properly instructed on the mental element in murder and
    the evidence relevant for them to consider in deciding that issue. The evidence
    included anger, instinctive reaction, and an unthinking response. The trial
    judge made it clear that those considerations were entirely distinct from
    provocation about which she would instruct them later. And as she turned to the
    statutory partial defence of provocation, the trial judge made it clear that
    this defence
only
required consideration where the jury was satisfied
    that the appellant had committed murder. These instructions were contained in
    the written copy of the charge provided to the jury.

[145]

In the end, the
    respondent concludes, the failure of the trial judge to include a separate box
    for provocation in the decision tree was
not
a legal error. Even if we
    were to consider it to be a legal error, the appellant suffered no prejudice
    because the jury was instructed correctly on this issue.

The Governing Principles

[146]

In a prosecution
    of a culpable homicide as murder, evidence of provoking conduct by the deceased
    and of an accuseds reaction to it may be relevant for the jury to consider in
    either or both of two
[3]
ways in reaching its verdict.

[147]

First, evidence
    of the deceaseds provoking conduct and the accuseds reaction to it, together
    with evidence of other circumstances surrounding the killing, including those
    relating to the mental state and condition of the accused, is relevant for the
    jury to consider in determining whether the Crown has proven either state of
    mind required to establish the unlawful killing was murder:
R. v. Bouchard
,
    2013 ONCA 791, 305 C.C.C. (3d) 240, at paras. 54, 60-62, affd 2014 SCC 64, [2014]
    3 S.C.R. 283. This evidence is often an integral part of a rolled up
    instruction on the mental element in murder:
R. v. Robinson
, [1996] 1
    S.C.R. 683, at para. 59;
R. v. Flores
, 2011 ONCA 155, 269 C.C.C. (3d)
    194, at paras. 72-76, 83-86.

[148]

Evidence of
    provoking conduct by the deceased and of the accuseds reaction to it relevant
    to proof of the state of mind essential to make the unlawful killing murder
    need
not
qualify as provocation as defined in s. 232(2) of the
Criminal

Code
:
Bouchard
, at paras. 60, 62;
Flores
, at paras.
    72-73, 83-86.

[149]

Second, provocation
    which meets the requirements for the statutory partial defence as defined in s.
    232(2) reduces an unlawful killing
proven
to be murder to
    manslaughter.
[4]
This statutory partial defence does
not
relate to the mental element
    in murder. This is so because the opening words of s. 232(1) provide that [c]ulpable
    homicide that otherwise would be murder may be reduced to manslaughter:
R.
    v. Gilling
(1997), 117 C.C.C. (3d) 444 (Ont. C.A.), at para. 22, citing
R.
    v. Conway
(1985), 17 C.C.C. (3d) 481 (Ont. C.A.), at p. 485.

[150]

Since the term provocation
    may be used in either or both of these senses, it is critical to the jurys
    understanding that the trial judge explain the difference between them and
    confine their use to the issue to which each is relevant:
Bouchard
, at
    paras. 65, 67. This can be achieved in different ways, as for example by
    describing the statutory partial defence of provocation as the defence of
    provocation and making it clear that it only arises for consideration where
    the jury has been satisfied beyond a reasonable doubt that the unlawful killing
    of the deceased was murder:
Bouchard
, at paras. 54, 60. And by
    eschewing the language of defence and provocation" in favour of terms
    such as provoking words and conduct, when linking it to proof of the state of
    mind required for murder and thus distinguishing it from the statutory partial
    defence:
R. v. Mitchell
, [1964] S.C.R. 471, at p. 476; see also
R.
    v. Cudjoe
, 2009 ONCA 543, 68 C.R. (6th) 86, at para. 114.

[151]

The role of
    decision trees in jury instructions and deliberations requires brief
    examination.

[152]

A decision tree
    is a deliberation aid routinely provided to jurors in this province, along with
    a written version of final instructions and a verdict sheet. The questions
    posed in the boxes portrayed in the decision tree duplicate the language used
    for the same questions in the charge. Each reflects an essential element of the
    offence charged. The boxes are arranged in the same sequence as the questions
    in the charge. Each represents a step along the way to a final verdict. The
    consequences of yes or no answers to each question for further
    deliberations or verdicts are displayed. See generally,
R. v. B.(P.)
,
    2015 ONCA 738, 331 C.C.C. (3d) 511, at para. 142.

[153]

The manner in
    which trial judges integrate instructions on defences, justifications and
    excuses into decision trees on offences is left largely to individual judges.
    Some defences are linked to discrete essential elements of an offence. For
    example, self-defence relates to the unlawful act requirement in a prosecution
    for a crime of culpable homicide. But not so for every defence. And not so for
    the statutory partial defence of provocation. Properly sequenced, the
    provocation question should appear following an affirmative answer to the
    question about proof of the mental element in murder. Recall the words [c]ulpable
    homicide that otherwise would be murder.

[154]

Final
    instructions to the jury at the conclusion of a criminal trial must not only be
    comprehensive, but also comprehensible. Sometimes, however, instructions may
    become so unnecessarily confusing that they amount to legal error:
Rodgerson
,
    at para. 42.

The Principles Applied

[155]

In my assessment
    of this ground of appeal, I have considered the final instructions and the
    decision tree as part of a whole. I have assessed them functionally to
    determine whether, together, they adequately equipped this jury to reach an
    informed conclusion. As I will explain, I have concluded that the instructions
    fell short of the standard required of them. My reasons proceed through a
    series of steps.

[156]

In her charge to
    the jury, the trial judge distinguished between evidence of provoking conduct
    and of the appellants reaction to it, on the one hand, and the statutory
    partial defence of provocation, on the other.

[157]

In connection
    with the
mental element
in murder, the trial judges instructions
    invited the jury to consider the cumulative effect of the evidence of the
    circumstances in which the deceased died. The trial judge included in this
    inventory evidence that the appellant acted instinctively, in the sudden
    excitement of the moment, without thinking of the consequences of what he was
    doing. Surprise and anger were folded into the mix. The trial judge segregated
    this evidence from that associated with the statutory partial defence with the
    language apart altogether from what I will tell you later about this subject
    of provocation. After briefly summarizing some of the evidence, the judge
    reminded the jury of their obligation to consider all this evidence on the
    issue of the intent for murder.

[158]

The trial judge
    then turned to the statutory partial defence of provocation. She began by
    pointing out that this provocation only became an issue for the jury if they
    were satisfied beyond a reasonable doubt that the appellant committed murder:

Provocation becomes an issue for you to decide if the Crown has
    satisfied you beyond a reasonable doubt that Robert McGregor committed murder.
    If you are not satisfied beyond a reasonable doubt that Robert McGregor
    committed murder, you do not consider the issue of provocation that I am about
    to describe for you.

[159]

In concluding
    her instructions on the statutory partial defence of provocation, the trial
    judge substantially repeated her instructions on the intent required for murder
    but added and that he was not provoked thereby conflating the issue of the
    intent required for murder and the statutory defence of provocation.

If you are not satisfied beyond a reasonable doubt that Mr.
    McGregor had either state of mind to make his unlawful killing of [J.M.]  if
    you are not satisfied beyond a reasonable doubt that Mr. McGregor had either
    state of mind required to make his unlawful killing of [J.M.], you must find
    Mr. McGregor not guilty of first degree murder, but guilty of manslaughter and
    your deliberations would be over.

If you are satisfied beyond a reasonable doubt that Mr.
    McGregor had either state of mind, that Mr. McGregor either meant to kill [J.M.]
    or to cause her bodily harm that he knew was likely to kill her, and was
    reckless whether she died or not and that he was not provoked, wherefore he
    committed murder, you must go on to the next question.

[160]

In the last excerpted
    passages, the trial judge was concluding her instructions on the statutory
    partial defence of provocation. That defence only became pertinent for the jury
    to consider after they had found that the killing was unlawful and amounted to
    murder. What was left for the trial judge to explain at this point of her
    instructions on the statutory partial defence was the impact of the jurys
    finding about it on further deliberations and the verdict.

[161]

In the usual
    course, the instructions would conclude in the following or similar language:

If you are satisfied beyond a reasonable doubt that in
    unlawfully killing the deceased, the accused committed murder (as I have
    defined it for you), and if you find or have a reasonable doubt that when he
    did so the accused was acting under (the defence of) provocation, as I have
    just defined it for you, then you shall find, record and return a verdict of
    not guilty as charged, but guilty of manslaughter.

If you are satisfied beyond a reasonable doubt that in
    unlawfully killing the deceased, the accused committed murder (as I have
    defined it for you), and if you are also satisfied beyond a reasonable doubt
    that, when he did so, the accused was not acting under (the defence of)
    provocation, as I have just defined it for you, you must go on to the next
    question.
[5]


[162]

The first
    paragraph of the judges instructions excerpted above, at para. 160, is
    misplaced in a concluding instruction on the statutory partial defence of
    provocation. This is because it assumes a reasonable doubt about proof of the
    state of mind required to establish the unlawful killing as murder. This has
    nothing to do with the statutory defence; rather, it describes involuntary
    manslaughter on the basis of inadequate proof of the mental element in murder.
    Evidence of provoking conduct and the accuseds reaction to it may assist in
    raising a reasonable doubt about proof of the state of mind required for
    murder, but the statutory partial defence does not, and cannot do so, for it
    assumes that murder has been committed.

[163]

The reference to
    and that he was not provoked in the second paragraph of the charge excerpt,
    and to (not provoked) in the box of the decision tree relating to the mental
    element in murder, resulted in an instruction that was flawed by ambiguity
[6]
.
    In the result, there was non-direction amounting to misdirection about the
    verdict and further deliberation consequences of the statutory partial defence
    of provocation.

Ground #5: The Closing Address of the Crown

[164]

The final ground
    of appeal repeats objections made at trial about the Crowns closing address to
    the jury and alleges error in the trial judges failure to provide correcting
    instructions in her charge to the jury.

[165]

The conclusions
    I have reached concerning the cumulative effect of errors in the charge about
    evidence of post-offence conduct and the issue of provocation make it
    unnecessary to engage in a line-by-line dissection of the closing address of
    the Crown. It is sufficient in the circumstances to characterize the nature of
    the complaints, consider whether remedial action was required, and assess the
    impact of any failure to do so.

The Complaints

[166]

In general
    terms, the complaints about the trial Crowns closing address to the jury fall
    into four groups:

i.      inviting
    speculation about events taking place culminating in the death of the deceased;

ii.

overstating the evidence;

iii.

suggesting
    improper use of evidence; and

iv.

using
    emotive language to conjure sympathy for the deceased.

The Arguments on Appeal

[167]

The appellant
    says that the trial judge erred in failing to provide appropriate correcting
    instructions for several aspects of the trial Crowns closing address which
    exceeded well-defined limits.

[168]

In her closing
    address, the appellant contends, the Crown advanced a theory of the events that
    preceded and culminated in the death of the deceased which did not, indeed
    could not, arise by reasonable inference from the evidence adduced at trial.
    These submissions were grounded in pure speculation. They included assertions
    that:

i.      the
    appellant must have got hold of the deceaseds phone since she failed to
    respond to calls and texts as was her usual habit;

ii.

the deceased would not have gone to the rock pile to smoke a bowl as
    the appellant claimed, without having first seen their daughter who was the
    purpose of their meeting in the first place; and

iii.

the
    appellant pursued the deceased over a distance, caught up with her and stabbed
    her to death.

[169]

The appellant
    adds that the trial Crown also overstated the evidence about the appellants
    expectations on the couples next appearance in family law proceedings.
    Although the appellant was concerned about the litigation, the evidence was
    that no final decision was imminent and there was a lack of evidence that the
    appellant expressed fear about losing custody.

[170]

In addition, the
    appellant claims that the Crown invited the jury to make improper use of an
    alleged prior consistent statement of a witness (D.J.) as evidence of the
    reliability of his testimony and used emotive language to conjure sympathy for
    the deceased and consequently prejudice against the appellant.

[171]

The respondent
    begins with a reminder that the central or controlling question is whether the
    Crowns closing deprived the appellant of a fair trial or caused a miscarriage
    of justice. In this case, the respondent says, whether considered individually
    or cumulatively, the closing address of the Crown did not extend beyond the
    limits of proper advocacy, let alone cause a miscarriage of justice or
    prejudice the appellants right to a fair trial.

[172]

After counsel
    had concluded their closing addresses, the respondent points out, counsel on
    both sides complained about the others address. The trial judge heard the
    complaints, engaged counsel in a colloquy and decided not to provide correcting
    instructions so as not to unbalance the charge to the prejudice of either
    party. That was a decision the trial judge was entitled and best positioned to
    make. She was there. She saw and heard the addresses and was eyewitness to the
    jurys reaction. Her decision is entitled to significant deference in this
    court.

[173]

The respondent
    also disputes the substance of each of the appellants discrete complaints.

[174]

The invitations
    to the jury to speculate about which the appellant complains were in fact
    requests to draw reasonable inferences well-grounded in the evidence about the
    deceaseds usual habit of responsiveness to texts and calls to her cell phone, the
    evidence of unanswered texts and calls during the time period she was in the
    appellants company, and the physical findings consistent with a destroyed
    personal communication device at the scene.

[175]

The same may be
    said in connection with the submissions about the likelihood of the deceased
    going to the rock pile to smoke a bowl without seeing their daughter. This
    too was a reasonable inference, not idle speculation. After all, this was the
    singular purpose of their meeting  to permit examination of their child to
    determine the validity of the appellants claim of inappropriate interference
    by D.J.

[176]

Likewise, the
    respondent continues, the trial Crowns submissions that the attack took place
    over some distance is firmly rooted in the evidence at trial. The physical
    findings in various places along the way. And the evidence of the examining
    forensic pathologist about the wounds inflicted and the relative position of
    the deceased when those wounds were inflicted. In a similar way, the evidence
    supported the submissions about the appellants concern over the impending
    family law proceedings.

[177]

Nor can the
    submission that the Crown invited the jury to make impermissible use of a prior
    consistent statement of D.J. be sustained. The impugned reference falls well
    short of the mark. Equally so, the claim of emotive language.

The Governing Principles

[178]

The principles
    that govern the limits imposed on Crown counsel in closing to a jury in a
    criminal trial are well-settled and not in need of restatement. Leaving to one
    side the prohibition against inflammatory rhetoric, demeaning commentary and
    sarcasm, some specific principles are worthy of brief restatement because of
    the complaints advanced here.

[179]

To begin,
    consistent with the divide between reasonable inference, on the one hand, and
    speculation, on the other, the Crown is not entitled to corrupt the fair reach
    of the evidence by inviting the jury to speculate in order to find guilt
    established:
R. v. Roberts
, 2018 ONCA 411, 360 C.C.C. (3d) 444, at para.
    120.

[180]

Second, Crown
    counsel is not entitled to invite the jury to use an item of evidence in
    reaching its verdict for a purpose other than that for which it was admitted
    and the law permits:
Calnen
, at para. 113;
R. v. Boudreau
,
    2012 ONCA 830, at para. 16, leave to appeal refused, [2013] S.C.C.A No. 330. The
    same restrictions apply to defence counsel.

[181]

We accept that
    closing addresses may contain some measure of argument and advocacy. Counsel on
    both sides are entitled to a fair degree of latitude in their closing
    addresses. The Crown is entitled to advance her position forcefully and
    effectively. Juries expect and are entitled to nothing less:
Boudreau
,
    at para. 15.

[182]

None can gainsay
    that the trial judge is in the best position to gauge the impact of closing
    submissions made by either counsel. The trial judge can take the temperature of
    the trial. As an eye and ear witness to the entire proceedings, including both
    jury addresses. In that position the trial judge can assess the apparent
    significance or otherwise of the impugned remarks, and determine whether and to
    what extent correction or other remedial action may be required:
R. v. Sarrazin
,
2016 ONCA 714, at para. 57;
R. v. Zvolensky
,
    2017 ONCA 273, 352 C.C.C. (3d) 217, at para. 186;
R. v. Rose
, [1998] 3
    S.C.R. 262, at para. 126. We accord substantial deference to the trial judges
    conclusions on these issues. This is as it should be.

[183]

In many cases in
    which complaints are made at trial about the propriety of Crown counsels
    closing address, the response of a random selection of trial judges would not
    be uniform. Some would react in one way. Others in another. But inaction does
    not become error simply because another judge presiding in the same case might
    have reacted differently:
R. v. L. S.
, 2017 ONCA 685, 354 C.C.C. (3d)
    71, at para. 35;
R. v. McDonald
, 2018 ONCA 369, 360 C.C.C. (3d) 494, at
    para. 14.

[184]

A final point
    concerns the standard to be met for appellate intervention. For this court the
    issue is whether, considered in the context of the trial as a whole, including
    the evidence adduced and the positions advanced, the substance or manner of the
    Crowns closing address has caused a substantial wrong or miscarriage of
    justice, including by prejudicing the accuseds right to a fair trial:
Roberts
,
    at para. 121;
Sarrazin
, at para. 57.

The Principles Applied

[185]

I would not give
    effect to this ground of appeal. My reasons for rejecting it are brief.

[186]

To begin, the
    invitation to speculate. This is a familiar claim where counsel invites the
    jury to draw certain factual conclusions from several strands of circumstantial
    evidence. For the proponent, it is inviting inference. For the opponent, it is
    summoning speculation. In this case, I am not prepared to say that the factual
    findings Crown counsel invited the jury to make from the evidence on which she
    relied extended beyond the field of inferences reasonably available from that
    evidence taken as a whole.

[187]

Nor am I
    persuaded that the closing address of the Crown overstated the appellants apprehension
    about the imminent court appearance in family law proceedings. His attempt at
    CAS intervention failed. The mediated agreement had not been signed and the
    deceased appeared reluctant to sign it. And as the appellant said in a text
    message:

I cant do this anymore Im done fighting for  my lawyer said
    everything I have I cant use against her I can only hope she agrees to the
    agreement so Im screwed

[188]

The trial Crown,
    the appellant concedes, did not expressly invite the jury to find that D.J. had
    made a prior statement consistent with his trial testimony or to rely on that
    prior statement to bolster the witness reliability or credibility. There was
    no evidence of a prior consistent statement, much less of its contents. Nor can
    it be said that the jury would have taken from the Crowns closing anything
    about the contents of any statement or that it could use it to infer reliability
    or credibility from consistency.

[189]

In her final
    instructions, the trial judge made it clear to the jury that their first duty
    was to decide what the facts were. To make that decision, the jurors were to
    consider the evidence, but only the evidence. They were not to speculate or to
    guess or to make up theories in the absence of evidence. Their consideration of
    the evidence was to be free of sympathy, prejudice, and fear and uninfluenced
    by public opinion. What was required of them was an impartial assessment of the
    evidence, not an emotional reaction to it.

[190]

In these
    circumstances, I am unable to conclude that the closing address of the Crown
    prejudiced the appellants right to a fair trial or otherwise resulted in a
    miscarriage of justice.

conclusion

[191]

The cumulative
    effect of the errors in the trial judges charge to the jury compromises the
    integrity of the verdict the jury rendered. These errors were serious and
    related to the single defence ultimately advanced on the appellants behalf.
    The Crowns case was formidable, but not overwhelming.

[192]

For these
    reasons, I would allow the appeal, set aside the conviction of first degree
    murder and the stay on the kidnapping count and order a new trial on both
    counts of the indictment.

Released: DW APR 17 2019

David Watt J.A.

I agree. G. Pardu
    J.A.

I agree. L.B.
    Roberts J.A.










SUGGESTED DECISION TREE

Planned and Deliberate First Degree Murder and
    Provocation






[1]
The trial judge entered a stay on the count of kidnapping on the basis of
Kienapple
    v. R.,
[1975] 1 S.C.R. 729.



[2]
This was in error. The death of the deceased occurred and the appellant was
    charged prior to March 11, 2013, when the new provisions came into force. See,
R.
    v. Bengy
, 2015 ONCA 397, 325 C.C.C. (3d) 22.



[3]
Where the charge is first degree murder based on planning and deliberation,
    provoking words and conduct not reached by s. 232(2) are also relevant to proof
    of deliberation:
R. v. Mitchell
, [1964] S.C.R. 471, at pp. 475-476.



[4]
This case was tried and decided prior to the amendment made by S.C. 2015, c.
    29, s. 7, proclaimed in force on July 17, 2015.



[5]
Where the offence charged is second degree murder, the last clause would read
    you must find the accused guilty as charged.



[6]
A suggested form of Decision Tree for planned and deliberate first degree
    murder, including the statutory partial defence of provocation, appears as
    Appendix B.


