



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Herlichka, 2020 ONCA 307

DATE: 20200522

DOCKET: C64615

van Rensburg, Miller and
    Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jessy Herlichka

Appellant

Delmar Doucette, Zahra Shariff and
    Nicolas Rouleau, for the appellant

Amy Alyea, for the respondent

Heard: January 15, 2020

On appeal from the conviction entered on
    May 1, 2015 by Justice Alfred J. Stong of the Superior Court of Justice,
    sitting with a jury.

Fairburn J.A.:

A.

OVERVIEW

[1]

Lorraine Ashkanase worked at Dinos Restaurant.
    She and her coworkers were in the process of closing the restaurant for the
    night when Jessy Herlichka, the appellant, and Paul McClung approached the back
    door. Claiming that he wanted salad, the appellant attempted to open the door.

[2]

Ms. Ashkanases partner, Andrew Mixemong, was
    waiting outside of the restaurant for her to finish work. When he saw the disturbance,
    he approached the appellant and Mr. McClung, telling them that there were no
    salads and to get away from the door. Over the next several minutes, the
    appellant punched, kicked, and stomped on Mr. Mixemong so badly that he died in
    the hospital a few hours later. Mr. McClung stood by, encouraging the appellant
    and ensuring that other horrified onlookers remained at bay.

[3]

The appellant and Mr. McClung were tried together
    before a jury on the charge of second-degree murder. As the appellant pled
    guilty to manslaughter on the first day of trial, the jury had only one issue
    to focus upon in relation to the case against him: did the appellant have the requisite
    state of mind for murder? The appellant said that his degree of intoxication
    should have given rise to a reasonable doubt as to whether he formed that state
    of mind. The jury disagreed, returning a verdict of guilty to second-degree
    murder. Mr. McClung was convicted of manslaughter.

[4]

This appeal is brought by Mr. Herlichka alone.
    Accordingly, these reasons focus upon the case against him.

[5]

The appellant suggests that the trial judge
    erred in three respects in that he:

(a)

gave flawed instructions on the defence of intoxication;

(b)

refused to qualify a proposed defence expert in
    a specific area of expertise; and

(c)

provided an inadequate curative instruction
    after a Crown witness suggested that the appellant murdered Mr. Mixemong.

[6]

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

B.

FIRST GROUND OF APPEAL: THE INSTRUCTIONS ON
    INTOXICATION

(1)

Overview

[7]

As the unlawful killing by the appellant was not
    in dispute, the central issue for the jurys determination was whether he had
    the state of mind for murder pursuant to either s. 229(a)(i) or (ii) of the
Criminal
    Code
, R.S.C. 1985, c. C-46
.
    There was evidence supporting both paths to the intention for murder: (a) a
    specific intention to kill Mr. Mixemong (s. 229(a)(i)); and (b) an intention to
    cause Mr. Mixemong bodily harm that the appellant knew was likely to cause
    death and being reckless whether death ensued (s. 229(a)(ii)). The Crown did
    not need to prove both paths and the jurors did not have to agree on the same
    path. Provided that each juror was satisfied that one of those paths had been
    proven beyond a reasonable doubt, then a second-degree murder conviction would
    be the only available verdict. If the jurors had a reasonable doubt in relation
    to both paths to intention, then a manslaughter conviction would be the only
    available verdict.

[8]

The appellant ran a straight intoxication
    defence. There was no dispute at trial that he was intoxicated at the time.
    Rather, the dispute was over the degree of his intoxication and the effect that
    it had on his state of mind. The appellant maintained that he was so
    intoxicated by alcohol and drugs that there was a reasonable doubt as to
    whether he formed the state of mind for murder. Indeed, as will be discussed
    later, the appellant went so far as to suggest to the jury that he was so
    intoxicated that he was incapable of forming that state of mind.

[9]

On appeal, the appellant argues that the trial
    judge erred in a number of respects in his instructions to the jury on the
    defence of intoxication and how it interacts with the state of mind for murder.
    Before turning to the alleged errors made by the trial judge with respect to
    the defence of intoxication, I first review the evidentiary context relating to
    the appellants degree of intoxication and its impact on his state of mind.

(2)

Evidence Relevant to Level of Intoxication and State of Mind

[10]

Multiple sources of evidence were capable of
    shedding light on the appellants level of intoxication and its impact on his state
    of mind at the time of the offence.

[11]

For instance, the injuries suffered by Mr.
    Mixemong had the potential to inform the question of state of mind for murder.
    They demonstrated the brutality of the attack, both in terms of the sheer force
    of the blows and the spread of the attack over different parts of the body,
    which spoke to the appellants foresight of likely death under s. 229(a)(ii). 
    Those injuries included, but are not limited to:

(a)

extensive fracturing of the upper and lower
    jawbone area, with the upper maxilla, which the teeth insert into, having come
    completely disconnected from the skull;

(b)

bruising and lacerations to the head;

(c)

patterned imprints on the skin of the face and
    chest;

(d)

multiple broken and displaced ribs, one of which
    perforated the victims diaphragm;

(e)

significant damage, including tears, to the
    mesentery attaching to the abdomen and to which the intestines are attached;
    and

(f)

1.2 litres of blood flowing freely in the
    abdomen.

[12]

As well, some of the interaction at the back
    door of the restaurant was caught on videotape, as was a significant portion of
    the beating. This video allowed the jurors to see for themselves the
    appellants level of coordination during the offence and the length of time over
    which it occurred, both of which could inform his state of mind at the time of
    the attack.

[13]

Much of the attack was also caught on a 9-1-1
    recording, allowing the jurors to listen to the terrified reactions of
    onlookers to the events and their pleas to the appellant to stop the attack.

[14]

In addition, there was a good deal of evidence
    about the appellants consumption of intoxicants over the course of the day
    leading up to the attack. The appellants testimony was largely consistent with
    what he told the defence expert - that in the lead-up to the attack he had consumed
    about 12 beers, large parts of a total of 100 oz. of vodka, two Percocets and
    four OxyNeo tablets. Other defence witnesses also testified about the
    appellants very heavy consumption of alcohol and drugs on the day in question
    and just prior to the killing. Importantly, both the Crown and defence experts
    testified that it was unlikely that the appellant could have consumed as much
    alcohol as he and his then girlfriend suggested at trial because, if he had, he
    would have been, at best, unconscious, and more likely dead.

[15]

There was also evidence from eyewitnesses to the
    events, leading up to, during and following the attack, each of whom was able
    to speak to some degree about various subjects, including the appellants
    apparent ability to comprehend what was happening around him, his
    responsiveness to others, his ability to communicate his thoughts, and his
    level of physical coordination during that period of time. For instance:

(a)

A young female employee of the restaurant
    testified about being approached by the appellant and Mr. McClung just prior to
    the attack. They harassed her and suggested she was an angel. She thought
    that they were only possibly drunk.

(b)

Another witness testified that, just prior to
    the attack, the appellant asked to bum a cigarette from him, while extending
    his hand for a handshake. This witness testified that the appellant was not
    slurring his words, not falling over and had no problem communicating. He
    seemed only slightly intoxicated.

(c)

Witnesses tried to physically intervene to offer
    assistance to Mr. Mixemong. A woman came to his assistance and told the
    appellant, dont do this, hes an old man. The appellant pushed the woman
    away and continued the attack. Mr. Mixemongs girlfriend, who had recovered her
    dogs leash from Mr. Mixemong, testified that she pounded the appellant in the
    back to try to get him to stop. The  appellant responded by telling her that he
    was going to kill [her] fucking dog.

(d)

Another witness described the attack as so
    brutal and prolonged that it wasnt just a fight, he was killing him, beating
    him to death.

(e)

A cyclist who was passing by testified that he
    saw a short man (McClung) say lets go. The men then walked away but the
    appellant returned to kick the unconscious man a few more times in the ribs.

(f)

Another witness who was waiting for his wife at
    the bank testified that he saw the appellant move away from the body for a bit
    and then return to stomp on him.

[16]

Police officers also testified about the
    appellants ability to communicate, respond and perform coordinated actions at
    the scene of the crime. They explained that, when they arrived on the scene,
    the appellant walked away with a strut. When they ordered him to the ground,
    he responded with a fuck that and continued walking. He was able to effectively
    resist arrest and run away, quickly, capably and in a straight line. One of the
    officers testified that, while attempting to arrest him, the appellant spoke
    clearly, seemed strong and quite capable. The appellant was eventually
    captured and subdued, but only with the use of pepper spray.

[17]

Things seemed very different once the appellant
    arrived at the police station. The jurors also had that video available for
    their consideration. During that period of time, the appellant was exhibiting clear
    difficulty with his movements, including difficulty standing up from the ground
    after he fell from the backseat of the police cruiser upon arrival at the
    station. The appellant refused help from the police to clean the pepper spray
    from his eyes. He was largely non-responsive to questioning and engaged in highly
    unusual behaviour, including putting his face in the toilet and stumbling
    around his cell. The trial Crown claimed that the difference in the appellants
    actions and appearance, between the crime scene and the police station, were
    accounted for by the fact that he had been pepper sprayed just prior to being
    taken to the police station.

[18]

Defence expert Dr. Julian Gojer, a forensic
    psychiatrist, testified that the video from the police station suggested that
    the appellant was ataxic, meaning he did not have full control of his bodily
    movements. According to Dr. Gojer, this was a clear indication of an extreme
    level of intoxication. Although the appellant may have appeared more
    coordinated at the crime scene, Dr. Gojer opined that this was because of a
    fight or flight response the appellant may have been experiencing, despite
    the fact that he was in a severe state of intoxication that would have put
    him closer to the end of the spectrum of severe intoxication that would have
    put him in a state of an automaton.

(3)

Appellants Objections on Appeal

[19]

The appellant maintains that the sole question
    for the jurys consideration was whether, taking into account the evidence of the
    consumption of alcohol and drugs, along with all of the other evidence shedding
    light on the appellants state of mind, the Crown had proven beyond a
    reasonable doubt that he had the state of mind for murder. He argues that there
    were three cascading errors in the jury instructions  the first in his
    original instructions to the jury, the second in the original decision tree,
    and the third in the revised decision tree and accompanying instruction - that combined
    to create confusion and reversible error on this point.

[20]

I will address each alleged error in turn.

(a)

Objection to the Original Charge

[21]

The appellant maintains that the trial judge
    erred in his original instructions to the jury, when he departed from the
    standard specimen instruction on the defence of intoxication and told the jury
    that it was for them to decide the effect of intoxication on the appellants
    ability to form the intention for murder. The appellant maintains that this
    instruction incorrectly focused the jury on whether the appellant had the capacity
    to form the intention for murder, rather than whether he actually formed that
    intention.

[22]

The appellants objection is rooted in the following
    passage from the original jury charge, where the trial judge instructed the
    jury as follows:

It is for you to decide the extent of the
    consumption of alcohol and drugs involved by [the appellant] and
the effect
    it had on his ability to form an intention
either to kill Andrew Mixemong
    or mean to cause him bodily harm with the foresight that the likely consequence
    was death, and was reckless whether death ensued or not. [Emphasis added.]

[23]

There was a time when juries were instructed in
    terms of capacity to form intention. However, leaning heavily upon
R. v.
    Daley
,
2007 SCC 53, [2007] 3 S.C.R. 523, the appellant suggests
    that those days have passed. He submits that the instruction is erroneous and,
    at a minimum, it would have injected serious confusion into the deliberation
    process in that it focused on the appellants capacity to form the requisite
    intention rather than his actual intention. The appellant argues that the confusion
    would have been aggravated by the fact that there was no equivalent instruction
    when it came to how the jury was told to approach their deliberations about Mr.
    McClungs state of mind for murder.

[24]

The respondent disagrees, pointing out that a
    capacity instruction is not fatally defective, provided it is given in
    conjunction with a roadmap on how to properly determine whether the appellant
    actually formed the requisite intention for the crime. The respondent
    encourages the court to look at the impugned instruction within its proper
    context. The surrounding instructions were legally correct. Taking that context
    into account, the jury would have understood the impugned instruction as
    nothing more than a reminder to reflect upon the amount of drugs and alcohol
    the appellant had consumed on the night in question and the impact of those
    intoxicants on whether he formed the intention for murder.

[25]

As I will explain, having regard to the law on
    capacity and the record as a whole, I see no error in what the jury was told in
    the original jury instructions.

(i)

Case Law: Capacity to form intention

[26]

The appellant is right that in
Daley
,
the Supreme Court recommended to trial judges that they move away from instructing
    juries in terms of capacity to form intention in all future charges on
    intoxication:
Daley
,
at para. 102. This does not mean, though,
    that a capacity instruction will inevitably lead to error:
R. v. Chretien
,
    2014 ONCA 403, 309 C.C.C. (3d) 418, at para. 90. To explain why this is so,
    requires a brief review of the law leading up to the
Daley

pronouncement.

[27]

The genesis of the debate over whether to give
    or not give an instruction on the relationship between intoxication and an
    accuseds capacity to form intention is rooted in two decisions:
R. v. MacKinlay

(1986), 28 C.C.C. (3d) 306 (Ont. C.A.), and
R. v. Canute

(1993),
    80 C.C.C. (3d) 403 (B.C.C.A.).

[28]

In
MacKinlay
,
Martin J.A.
    recommended the following two-step approach to deliberations relating to the
    state of mind for murder where the defence of intoxication is raised: (a) did
    the accused [have] the capacity to form the necessary intent?; and, if so,
    (b) taking into account the consumption of liquor and the other facts has the
    prosecution satisfied [the jury] beyond a reasonable doubt that the accused in
    fact had the required intent?: at p. 322.

[29]

A number of years following
MacKinlay
,
    a new one-step approach to the defence of intoxication emerged, dubbed the
Canute
approach, in which the British Columbia Court of Appeal concluded that
    instructing a jury to first consider the question of capacity was redundant:
    What reason could there be for requiring a jury to struggle with the elusive
    concept of capacity to form an intent, when at the end of that exercise they
    will only be required to turn their consideration to the real legal issue,
    namely, the actual intent of the accused: at pp. 418-419. Accordingly,
Canute

took the second step from
MacKinlay
,
and made it the sole
    step for consideration when intoxication is in issue.

[30]

A few years after
Canute
, the Supreme
    Court of Canada decided three cases dealing with jury instructions relating to
    the defence of intoxication:
R. v. Robinson
,
[1996] 1 S.C.R. 683;
R. v. Seymour
,

[1996]
    2 S.C.R. 252
;
R. v. Lemky
, [1996] 1 S.C.R. 757. In
Robinson
,
    while Lamer C.J.

commended the one-step approach as a useful model for
    trial judges, he did not jettison the two-step
MacKinlay
-
type approach:
    at para. 49. He noted that there are particular cases where a capacity
    instruction may still be appropriate, such as where it is difficult to
    conceive of a successful intoxication defence unless the jury is satisfied that
    the accused was so drunk that he or she was not capable of forming an intent to
    kill:
Robinson
,
at para. 52. He gave the example of an accused
    shooting someone in the head at point blank range, as a situation where
    anything short of incapacity may not succeed. Equally, Lamer C.J. noted that there
    may be situations where expert evidence or a defence position justifies
    reverting to a two-step approach:
Robinson
,
at para. 53. See
    also:
Seymour
,
at para. 17;
Lemky
,
at para. 15.

[31]

Daley
was decided
about ten years following the trilogy, where
Bastarache J. observed that leaving the door open to a two-step approach
    had become somewhat problematic in that it had permitted after-the-fact
    complaints on appeal as to whether a one- or two-step instruction should have
    been given. Accordingly, it was in the interests of simplicity and clarity, that
    a one-step approach was recommended for all future cases:
Daley
, at
    para. 102.

[32]

This historical review demonstrates that there
    is nothing inherently wrong with giving a capacity instruction. This is
    particularly true where the factual backdrop for the killing is one where, to
    use Lamer C.J.s words from
Robinson
,
it is difficult to
    conceive of a successful intoxication defence unless the jury is satisfied that
    the accused was so drunk that he or she was not capable of forming an intent to
    kill, and/or where an expert uses capacity-like language and/or where the
    defence makes capacity to form intention a live issue at trial.

[33]

It is undoubtedly preferable to keep jury
    instructions as streamlined and straightforward as possible, focussing on only
    those issues that require determination. While the recommendation in
Daley

to forgo the two-step
MacKinlay

approach meets that
    objective, and is therefore a commendable goal, I do not accept that injecting
    capacity-like language into a jury instruction will necessarily constitute legal
    error. It may just reflect what was going on at trial. Despite appellant counsels
    compelling submissions, that is precisely what I conclude led to the injection
    of the now impugned passage into the jury charge in this case.

(ii)

The defence position led to the instruction

[34]

The now impugned jury instruction was entirely
    consistent with the defence position at trial, which was rooted in the
    suggestion that the appellant did not have the capacity to form the intention
    for murder. Indeed, the defence closing submissions repeatedly referred to the
    appellants lack of capacity. A few examples taken from the defence closing
    make the point:

It is for you to decide what brought on [the
    appellants] fit of rage, and whether or not he understood or appreciated what
    it was that he was doing, or even because of the alcohol and the drugs that he
    had ingested,
if he had the ability at the time to understand and appreciate
    the consequences of his actions
.

If you have a doubt about [the appellants]
    state of mind,
his intent or his capacity to form intent
, you must not
    conclude that he intended or meant to bring about the death of Andrew Mixemong.

Ask yourself, if despite his cons, his, his
intoxication
    you feel that he did have the capacity to see and foresee what he was doing
,
    were his actions so fuelled by that alcohol that he failed to realize and to
    think about the consequences of his actions. [Emphasis added.]

[35]

Accordingly, the appellants defence at trial
    was not simply that he did not form the state of mind for murder, but that he was
    so intoxicated that he did not have the capacity to do so. The position taken
    by the appellants experienced trial counsel is an entirely understandable one
    when considered against the factual underpinnings for the killing. While Lamer
    C.J. gave an example of an accused shooting a victim in the head as a situation
    where it is difficult to conceive of an intoxication defence succeeding short
    of incapacity to form the intent to kill, this case arguably fell within that
    same category of gravity.

[36]

This case is unlike more typical murder cases
    involving the defence of intoxication, where the victim is injured by a simple push
    to the sidewalk, resulting in a strike to his or her head, or single kick to the
    head. In those cases, even in the absence of intoxication, foreseeability of
    likely death is a trickier subject for a jurys consideration. That was not
    this case. Like a bullet to the head at close range, the blistering, vicious
    and unrelenting nature of the attack on Mr. Mixemong had the unmistakable
    markings of death. Indeed, this would have been why the jury was instructed
    under both ss. 229(a)(i) and (ii) of the
Criminal Code
.
So
    brutal and prolonged was the attack that the specific intention to kill was an
    available path to the state of mind for murder. Experienced defence counsel no
    doubt spoke in terms of capacity because he no doubt understood that anything
    short of the appellants inability to appreciate what everyone else witnessing
    the attack appreciated would have little traction with the trier of fact.

[37]

Moreover, the defence expert witness evidence
    supported this approach. While not entirely clear on the point, recall that Dr.
    Gojer testified that the appellant, while not in the state of an automaton, was
    in such a severe state of intoxication that it would have put him closer to
    the end of the spectrum of severe intoxication that would have put him in a
    state of an automaton.

[38]

Accordingly, the circumstances surrounding the
    killing, the defence position and the expert evidence combine to explain the trial
    judges reference to the appellants ability to form the intention for
    murder. It also explains why there was no objection to the now impugned
    instruction.  Indeed, defence counsel specifically turned his mind to the now impugned
    instruction and assisted the trial judge with tailoring it to even better meet
    the defence position. In my view, this is the best indication that the defence
    wanted the jury instructed in this fashion and that it was a strategic call,
    one that was not legally incorrect.

(iii)

The impugned passage considered in context

[39]

Jury instructions must be considered as a whole,
    against the backdrop of the entire trial and the positions of counsel, asking
    the ultimate question as to whether the jury was properly equipped to render a
    true verdict:
R. v. Srun
,
2019 ONCA 453, 146 O.R. (3d) 307, at
    para. 54;
R. v. Calnen
,
2019 SCC 6, [2019] 1 S.C.R. 301, at
    para. 8;
Daley
,
at para. 30.  At the end of the day, the core
    question is whether the jury understood its ultimate task: whether, taking into
    account the evidence of the consumption of alcohol and drugs, along with all of
    the other evidence shedding light on the appellants state of mind, the jury
    was satisfied beyond a reasonable doubt that the accused had the state of mind
    for murder. Reading the charge as a whole, I am satisfied that this jury
    understood that task.

[40]

The appellant acknowledges that, aside from the
    impugned passage about the ability to form the intention for murder, the
    balance of the original instructions to the jury relating to the defence of
    intoxication, and how it intersects with the state of mind for murder, largely
    tracks the specimen jury instructions taken from
Watts
Manual of
    Criminal Jury Instructions
,
2nd
ed.

(Toronto: Thomson Reuters, 2015), Final 69A, Intoxication. He takes
    no objection to those instructions.

[41]

Accordingly, the appellant fairly accepts that
    the instructions that preceded and followed the impugned instruction are
    legally correct. They clearly reminded the jury that, before convicting the
    appellant of second-degree murder, the jury had to be satisfied beyond a
    reasonable doubt that the appellant had the actual state of mind for murder.
    They also linked intoxication to the formation of that state of mind. Among
    other things, the instructions highlighted that:

Crown counsel must prove beyond a reasonable
    doubt that [the appellant] intended either to kill Andrew Mixemong or to cause
    him bodily harm with the foresight that the likely consequence was death. To
    decide whether [the appellant] had either intent, you should take into account
    the evidence about his consumption of alcohol and drugs, along with the rest of
    the evidence that throws light on his state of mind at the time the offence was
    allegedly committed.

[42]

As well, the trial judge was careful to instruct
    the jury that, while a sane and sober person usually knows the predictable
    consequences of his or her actions and means to bring them about, the
    appellants degree of intoxication may work to remove that otherwise available
    inference.

[43]

Taken as a whole, I am satisfied that this jury
    was well equipped to properly deliberate on whether the appellant had the state
    of mind for murder.

(iv)

Conclusion re: Original Charge

[44]

The appellants objection to the charge proper
    comes down to a single paragraph that: (a) he did not object to at trial; (b)
    he implicitly endorsed at trial by adding to it; (c) was understandable in
    light of the circumstances surrounding the killing; (d) was consistent with the
    appellants position at trial, including that of the defence expert witness;
    and (e) was surrounded by instructions that properly explained the relationship
    between intoxication and the state of mind for murder.  I would not accede to
    this ground of appeal.

(b)

The Original Decision Tree and Amplifying Instructions

[45]

The appellant raises a second objection: he
    argues that the original decision tree and amplifying instructions were wrong
    because they suggested to the jury that the intention for murder could be
    considered separate and apart from intoxication. Although he acknowledges that
    this error alone would not constitute reversible error, this error is pointed
    out to show how the errors relating to the defence of intoxication built, each
    on the other, to make for a very confusing picture.

[46]

The original decision tree contained three
    boxes. Owing to the plea of guilty to manslaughter, the questions in the first
    two boxes on the decision tree were not in dispute at trial: (a) whether the
    appellant caused Mr. Mixemongs death; and (b) whether he did so unlawfully.

[47]

The third box related to the sole issue in
    dispute at trial: the state of mind for murder. Two questions were placed
    within the third box: (1) Did [the appellant] have a state of mind required
    for murder?; and (2) Taking into account the evidence of consumption of
    alcohol along with the rest of the evidence that throws light on his state of
    mind, did he have the state of mind required for murder?

[48]

Before they retired to deliberate, the trial
    judge instructed the jury to approach the questions in the third box on the
    decision tree as follows:

·

if the jury had a reasonable doubt about the
    first question, then they were to acquit of murder and convict of manslaughter.

·

if the jury was satisfied beyond a reasonable
    doubt about the first question, then they were to move to the second question.

·

if the jury had a reasonable doubt about the
    second question, then they were to acquit of murder and convict of
    manslaughter.

·

only if the jury was satisfied beyond a
    reasonable doubt about the second question, were they to convict of murder.

[49]

The appellant argues that it was wrong and
    confusing for the jury to separate the essential element relating to the
    appellants state of mind for murder into two questions. He contends that the
    second question was the only question that the jury had to decide.

[50]

Despite the superfluous nature of the first
    question in the third box on the original decision tree, no harm resulted. Again,
    the core question that needed to be decided was whether, taking into account
    the evidence of the consumption of alcohol and drugs, along with all of the
    other evidence shedding light on the appellants state of mind, the jury was satisfied
    beyond a reasonable doubt that the accused had the state of mind for murder
.
Despite the presence of the first question in the third box on the decision
    tree, the central issue for the jurys consideration was nicely covered off in
    the second question: Taking into account the evidence of consumption of
    alcohol along with the rest of the evidence that throws light on his state of
    mind, did he have the state of mind required for murder?

[51]

Accordingly, there is nothing about the first
    decision tree that would have diverted the jury from the critical question for
    determination at trial and I see no prejudice having arisen from the
    superfluous first question having been left.

[52]

In any event, the jury did not use that first
    decision tree in its deliberations.  As I will now explain, that decision tree
    was replaced by a new one, a replacement adopted at the request of counsel.

(c)

The Replacement Decision Tree and Accompanying Instructions

(i)

The Context for the Objections on Appeal

[53]

The appellant argues that the trial judge also
    erred when he called the jury back after they had already commenced their
    deliberations and replaced the original decision tree with another one.

[54]

After the jury originally retired to deliberate,
    counsel for the appellant raised concerns about the original decision tree,
    specifically the third box containing the two questions. He apologized for not
    having seen the issue before. In a bit of a twist, though, the objection at
    trial is not what is objected to on appeal.

[55]

Trial counsel did not object to the existence of
    the two questions or to the manner in which the questions were phrased. Rather,
    he objected to the order in which the questions appeared within the third box
    on the decision tree. Trial counsel asked that the questions be separated into
    two boxes and reversed in order. In making that submission, trial counsel again
    used capacity-type language. For instance, he made the following submissions:

If youre intoxicated you cant have the
    intent. So you cant put intent and then go down to intoxication. You have to
    put the intoxication and then go down to intent.
Was he capable of forming
    the intent necessary for murder? If he was, then did he have the intent
    necessary for murder?
If he did have the intent necessary for murder, then
    hes guilty.

It just doesnt make sense to me that you
    would be able to form the intent and then you would never get to intoxication
because
    if youre intoxicated you cant form the intent if you lack the capacity
. [Emphasis
    added.]

[56]

Although the trial Crowns position fluctuated,
    it appears that Crown counsel at trial also eventually came around to the
    defence view: Theres a logic to that. If he doesnt [have] capacity he cant
    form intent. The trial Crown ultimately agreed with the defence proposal to
    change the decision tree as requested by the defence.

[57]

After lengthy discussions about how to approach
    the matter, the decision tree was amended and the jury was brought back into
    the courtroom. In explaining why the decision trees were being replaced, the
    trial judge said that he had acceded to the observations of counsel.
[1]
He also said that the new decision
    tree should be considered in conjunction with his original jury instructions.

[58]

Notably, the replacement decision tree is not
    available on appeal as it was never marked as an exhibit and the parties have
    been unsuccessful in recovering it. Despite its absence from the record on
    appeal, I am satisfied that we know how the replacement decision tree read. The
    transcript reveals a clear defence request to separate into different boxes the
    questions that were previously contained within box three of the original
    decision tree and to reverse their order: switch what you have there. All
    indications are that this request was acceded to, and there is no suggestion on
    the record that the wording of the questions was changed.

[59]

The appellant also highlights the jury
    instructions that accompanied the replacement decision tree, suggesting that
    they aggravated the error contained within the tree. In particular, he points
    to places in those instructions where the trial judge is said to have decoupled
    the evidence of intoxication from a determination of the state of mind for
    murder.

[60]

In short, the appellant argues that everything is
    wrong with how this issue unfolded after the jury originally retired to
    deliberate, including that counsels submissions were wrong about what the
    problem was with the original decision tree and how it should be remedied; the
    replacement decision tree was wrong in that it left the ultimate question of
    the state of mind for murder detached from the defence of intoxication; and the
    instructions accompanying the replacement decision tree were wrong in that they
    left the incorrect impression that the jury should consider intoxication separately
    from the state of mind for murder.

(ii)

The content of the replacement decision tree

[61]

When considering the alleged error contained
    within the replacement decision tree, it is important to recall that this is
    not simply a case involving a failure to object to an alleged misdirection:
R.
    v. Jacquard
, [1997] 1 S.C.R. 314
,
    at para. 38;
Daley
, at para. 58. Nor is it a case where counsel
    expressed satisfaction with an instruction that is later said to be erroneous:
R.
    v. Patel
, 2017 ONCA 702, 356 C.C.C. (3d) 187, at para. 82. Rather, this is
    a case where the exact change advocated for by defence counsel was acceded to
    by the trial judge. That the defence specifically asked for what is now
    objected to on appeal properly sets the context within which the overall seriousness
    of the alleged misdirection should be considered:
Jacquard
,
at
    para. 38.

[62]

Like the first decision tree, I see no harm arising
    from having instructed the jury to consider two separate questions in relation
    to the state of mind for murder. While only the first question on the
    replacement decision tree was necessary, there is no reasonable possibility
    that the jury was misled by the existence of the two questions.

[63]

At the end of the day, the correct question was
    left with the jury: [t]aking into account the evidence of consumption of
    alcohol along with the rest of the evidence that throws light on his state of
    mind, did he have the state of mind required for murder? Accordingly, the jurors
    knew that unless they were satisfied beyond a reasonable doubt that the answer
    to the now first question  the right question  was yes, they must acquit
    and find the appellant not guilty of murder.

[64]

If anything, as pointed out by the respondent, reversing
    the order of the questions may well have inured to the benefit of the
    appellant. After all, if the now first question was answered in the affirmative
     that the jury was satisfied that [t]aking into account the evidence of
    consumption of alcohol along with the rest of the evidence that throws light on
    his state of mind, the appellant had the state of mind required for murder 
    then a verdict of guilty of second-degree murder was the only available option.
    Requiring the jury to go on and answer a second question before arriving at
    that verdict  Did [the appellant] have a state of mind required for murder?
     simply reminded the jury that even if the defence of intoxication failed, before
    convicting the appellant of murder they had to be satisfied beyond a reasonable
    doubt that the appellant had the state of mind for murder. The second question acted
    as nothing more than an unnecessary, but defence friendly, safety valve before
    proceeding to a finding of guilt on murder.

(iii)

The instructions accompanying the replacement decision tree

[65]

The appellant objects to the following
    instructions that accompanied the delivery of the replacement decision tree. After
    the trial judge informed the jury that he had moved the reference to the
    consumption of alcohol up into the third box, he said:

So the first consideration in your process is
    to consider the consumption of alcohol.

Now, youre
satisfied that alcohol played
    no role in this
, then you drop down to  you still have to consider whether
    there was intent to commit murder. Thats still open. So thats why I separated
    the two boxes so that you would follow your thinking process in that order and
    not be confused about where you go. [Emphasis added.]

[66]

He concluded his instructions in relation to the
    replacement decision tree by saying:

So what Ive basically done at the suggestion
    of counsel is
separate the consideration of the effect of alcohol and drugs
    from the overall consideration
that you have so that you can make sure that
    you are considering each factor on its own as well so you come to the
    conclusion without realizing that
in the absence of alcohol or drugs you
    still have to determine whether theres specific intent
. [Emphasis added.]

[67]

The appellant argues that these instructions would
    have led the jury to think that the evidence of intoxication was to be
    considered separate and apart from the state of mind for murder. He argues that
    this is particularly true given that there was no reality to the suggestion
    that alcohol played no role in the offence. After all, even the trial Crown
    accepted that the appellant was intoxicated. The appellant contends that the
    direction to separate the consideration of the effect of alcohol and drugs
    from their overall consideration constitutes clear reversible error and,
    combined with all of the other confusion that came before, would have left the
    jury without the correct legal tools to determine if the appellant had the
    state of mind for murder.

[68]

Taken on their own, I agree that the
    instructions that accompanied the replacement decision tree could have been somewhat
    confusing. They must not, though, be considered in a silo. The exercise on
    appeal is not to parse the words for legal perfection, but to strive to
    understand them in context, with a mind to how the jury would have understood
    those instructions. Taken in context, I am satisfied that the jury would have
    understood the legally correct way to approach the essential element of the
    state of mind for murder.

[69]

First, the impugned instructions were given
    while the jury was looking at the replacement decision tree that trial counsel
    had asked for. Accordingly, when the trial judge referred to their first
    consideration being the consumption of alcohol, he was referring to the box
    on the decision tree that stated the legally correct question that they had to
    ask themselves: Taking into account the evidence of consumption of alcohol
    along with the rest of the evidence that throws light on his state of mind, did
    he have the state of mind required for murder? Read within that context, the
    instruction makes sense.

[70]

Second, I disagree that by suggesting to the
    jury that they may conclude that alcohol played no role in this, the trial
    judge injected confusion. While the appellant is right that the trial Crown
    accepted that the appellant was intoxicated, the trial Crown did not accept
    that alcohol played a role in the appellants state of mind for murder.
    Indeed, the trial Crown was careful to point out that important distinction,
    suggesting to the jury that an intoxicated person can still form the intention
    for murder. This was reinforced by the trial judge in his instructions to the
    jury, when he said: Intoxication that causes a person to cast off restraint
    and to act in a manner in which he would not act, if sober, is no excuse for
    committing an offence if he had the state of mind required to commit the
    offence. An intoxicated state of mind is nonetheless a state of mind.

[71]

Although the trial judge may have chosen
    different wording to convey the idea, I am satisfied that the jury would have
    understood his reference to alcohol play[ing] no role in this, as meaning
    that, despite the appellants level of intoxication, the jury was still
    satisfied beyond a reasonable doubt that he had formed the intention for
    murder.

[72]

Finally, I do not accept that the trial judge
    caused any harm when he told the jury that, at the suggestion of counsel, he
    had separated the consideration of the effect of alcohol and drugs from the
    overall consideration. Read in isolation, the passage appears problematic.
    Read in context, it creates no harm.

[73]

What the trial judge was doing in this impugned
    passage was giving the jury an explanation as to why the two questions in the
    first decision tree had been separated into two separate boxes in the
    replacement decision tree. Due to the ordering of those boxes, he referred to
    the last box as the overall consideration. But remember that the jury had the
    replacement decision tree in front of them. They knew the questions they had to
    answer. Importantly, as a result of the original jury instructions and the way
    that the questions were put on the replacement decision tree, what is critical,
    is that they knew that they could not bring back a verdict of guilty to second-degree
    murder unless they were satisfied beyond a reasonable doubt that, having taken into
    account the evidence of consumption of alcohol along with the rest of the evidence
    that throws light on his state of mind for murder, the appellant had that state
    of mind under either ss. 229(a)(i) or (ii) of the
Criminal Code
.

(4)

Conclusion relating to the instructions on intoxication

[74]

For these reasons, I would dismiss this ground of
    appeal.

C.

SECOND GROUND OF APPEAL: THE REFUSAL TO QUALIFY
    THE EXPERT IN A SPECIFIC AREA

(1)

Appellants Position

[75]

Dr. David Rosenbloom, a pharmacist and professor
    in McMaster Universitys Department of Medicine, was offered by the defence as
    an expert witness on the effects of
alcohol and
    narcotics on the function of the brain, particularly with respect to cognition,
    memory and behaviour
. The trial judge refused to qualify him in that particular
    area of expertise, but allowed that he could testify in relation to the
    absorption, distribution and elimination of alcohol in other words, the
    physical effects of those items on the human body. In the end, the defence
    chose not to call him.

[76]

The appellant contends that the trial judge
    erred in limiting the subject areas upon which Dr. Rosenbloom could opine. The
    appellant says that the ruling was rooted in the trial judges finding that Dr.
    Rosenbloom was not objective and could not perform the proper role of an expert
    in this case. He maintains that the trial judge erred in coming to that
    conclusion.

[77]

In limiting the experts opinion to a particular
    subject area, the appellant argues that the trial judge removed a major prong
    of his defence, an ability to demonstrate to the jury that alcohol can be
    mechanistically selective, meaning that it can impact the brain and motor
    functions differently and at different rates. He maintains that this could have
    provided an explanation for the jury as to why the appellant may have
    demonstrated good motor skills in and around the time of the murder, but may
    not have had the foresight of likely death when he was killing Mr. Mixemong.

[78]

In my view, the trial judge did not error in
    limiting the area of expertise.

(2)

The Expert Opinion Was Properly Limited

[79]

I start with the standard of review relating to a
    ruling on the admissibility of an expert witness opinion. Unless the decision
    is clearly unreasonable, contaminated by an error in principle or reflective
    of a material misapprehension of evidence, deference applies:
R. v. Shafia
,
    2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 248;
R. v. Mills
, 2019
    ONCA 940, at para. 47. I would defer to the trial judges conclusion in this
    case.

[80]

There is a two-stage framework for the admission
    of expert opinion evidence. At the threshold stage, four questions are asked:
    (i) relevance; (ii) necessity; (iii) the absence of an exclusionary rule; and
    (iv) the need for a properly qualified expert:
White Burgess Langille Inman
    v. Abbott and Haliburton Co.
, 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 19;
R. v. Abbey
, 2017 ONCA 640, 140 O.R. (3d) 40, at para. 48.
[2]


[81]

White Burgess
,
    decided shortly after the ruling in this case, determined that at the first
    admissibility stage, and as part of determining whether the expert is properly
    qualified, the court must take into account the proposed experts ability to
    understand and to fulfill his or her duty to the court to provide impartial,
    independent and unbiased evidence:
White Burgess
, at para. 53;
Abbey
,
    at para. 48.
The appellant emphasizes that
expert
    evidence should only be excluded on that basis in rare and very clear
    cases:
White Burgess
, at para. 49;
Mills
, at para. 42.

[82]

At the second admissibility stage  the gatekeeper
    stage  the trial judge exercises a residual discretion to exclude the evidence
    after having considered whether the benefits of admitting it outweigh its
    potential risks:
Mills
, at para. 44;
Abbey
, at para. 49. The
    trial judge must continue to take into account any concerns respecting the
    experts independence and impartiality at the gatekeeping stage:
White
    Burgess
, at para. 54;
Mills
, at para. 45. Accordingly, the
    experts impartiality, independence and willingness to provide an unbiased
    opinion is considered at both of the admissibility stages.

[83]

Although I do not agree that the sole reason for
    limiting the experts opinion in this case rested on bias, it was undoubtedly a
    significant factor in the trial judges decision limiting the area of Dr.
    Rosenblooms expertise. As noted by the trial judge:

Doctor Rosenbloom might ordinarily in another
    case qualify as an expert because he does possess knowledge beyond the scope of
    that enjoyed by laypersons. However, having reviewed his report and listened to
    his evidence, I am satisfied that he does not qualify in these circumstances to
    give evidence as an expert or give his opinion .

[84]

The trial judge then went on to give numerous
    reasons for why he found Dr. Rosenbloom was not an appropriately neutral expert
    witness in relation to the disputed subject area. The appellant argues that the
    trial judge erred in relation to each of those reasons.

[85]

The appellant says that the trial judge overstated
    the matter when he said that Dr. Rosenblooms choice of language was more
    befitting an advocate than an expert. However, this was an issue for the
    trial judge to determine and there are examples supporting his conclusion. For
    instance, Dr. Rosenbloom saw his role as critiquing the Crown experts opinion,
    as evidenced in the use of a heading in his report: Critique of Rachelle
    Wallages Report. Under that section, Dr. Rosenbloom said he would like to
    take issue with a number of the points raised in the Wallage report. He
    further stated in his report that he would strongly argue a certain point. These
    are no doubt some of the comments that concerned the trial judge, and for good
    cause.

[86]

The appellant also expresses concern that the
    trial judge failed to provide examples for why he concluded that there was a
    loss of objectivity during the cross-examination. While he may not have pointed
    to examples in his mid-trial ruling from the bench, there is much to support
    that comment. For instance, Dr. Rosenbloom claimed in-chief that he had been
    qualified as an expert in all but one case. In cross-examination he admitted
    that he had not been qualified in particular areas on at least three prior occasions,
    at least two of which related to the subject area he was proffered to opine on
    here. He also admitted that he had never authored an unfavourable report for
    someone who had retained him. He had no first-hand knowledge of how people act
    on certain drugs and his last opportunity to obtain that knowledge was over 30
    years ago. These are just examples.

[87]

The appellant further argues that the trial
    judges reference to the fact that Dr. Rosenbloom did not even mention the
    intervening event between the homicide and the police station, involving the
    appellant having been pepper sprayed, is a misapprehension of evidence as there
    is no suggestion that Dr. Rosenbloom even knew about the pepper spray. That may
    be so, but the point is that Dr. Rosenbloom admitted that he had only spent 20
    minutes with the appellant and had relied largely upon two handwritten pages of
    notes he made during conversations with trial counsel to opine on the matter. That
    alone should have given rise to concern about how much the expert actually knew
    before he was prepared to offer such a definitive opinion.

[88]

The appellant also expresses concern over the
    trial judges dissatisfaction with Dr. Rosenblooms intrusion upon the role of
    the jury. The appellant says that, to the extent that Dr. Rosenblooms report
    crossed the line, he should have been extended the same courtesy as other
    experts who had been offered the opportunity to amend problematic aspects of their
    reports. The difficulty is that Dr. Rosenbloom opined that: Under the
    circumstances described, I think it is highly unlikely that [the appellant] had
    in[s]ight or awaren[e]ss of his actions and could not form the intent to commit
    the attack. This was not a simple crossing of the line. It was a giant leap
    across the expert line, clearly and unequivocally exposing the proffered expert
    as someone who did not understand the fundamental role of an expert.

[89]

In the end, the trial judge performed his role
    as a gatekeeper in limiting the scope of Dr. Rosenblooms expert evidence. He
    articulated why the witness could not opine on the area he was offered to opine
    upon. I would defer to the trial judges decision in that regard.

[90]

Moreover, and as a final observation, I do not
    accept that the defence was left at such a significant deficit as suggested.
    While the defence did not have Dr. Rosenblooms evidence on the point, Dr.
    Gojer more than made up for what was lost.

[91]

Dr. Gojer gave an expert opinion explaining how
    alcohol does not always have the same impact on bodily functions as it does on the
    brain. In other words, he explained to the jury how intoxication can impact
    motor and brain functions differently. He referred to this as fight or flight,
    something that could explain an apparent level of physical coordination at the
    crime scene, despite a severe cognitive deficit. While Dr. Gojers explanation
    for the potential difference between physical and cognitive functioning was not
    the same as Dr. Rosenblooms, the fact remains that the appellant was not left
    empty-handed on this point. The jurors received an expert explanation as to how
    the appellants behaviours in and around his attack of Mr. Mixemong could still
    be consistent with a failure to foresee the likelihood of death.

[92]

For these reasons, I would dismiss the
    appellants second ground of appeal.

D.

THIRD GROUND OF APPEAL: THE CURATIVE INSTRUCTION

[93]

The appellant argues that the trial judge failed
    to adequately address a problem that arose during a civilian witness evidence,
    where that witness said in cross-examination that the appellant murder
    Andrew.

[94]

Unfortunately, after the witness made reference
    to the murder, the appellants second counsel decided to wade into the matter,
    exploring the witness understanding of the legal meaning of the term murder.
    The following exchange occurred:

Q  I know you believe he murdered ..

A.  and I saw

Q. Mr. Mixemong, sir, but whether he did it,
    murdered or not, which is a legal word, that will be left to the jury

A. What do you mean its a legal

Q.  do you understand that?

A.  what you mean a legal

Q. Well murder means

A.  you just said a legal

Q.  murder means that there has to be intent,
    sir

A.  He, he did intends

Q.  right, whether there

A.  he was drunk

Q.  whether Mr

A.  and he was stupid there

[95]

Eventually counsel asked the trial judge for
    assistance. The trial judge made the observation that counsel had led the
    witness into the definition of murder and that the witness was not qualified to
    answer those questions about legal definitions.

[96]

Counsel asked for and received a curative mid-trial
    instruction. The jury was told that they would receive instructions about the
    law of murder and the use of the word murder, a legal instruction they would
    be required to abide by. They were told not to be overly influenced or
    persuaded by a witness using the word, no matter how many times in his
    evidence. The trial judge concluded by saying: So just I caution you not to
    be influenced by that, because the instruction on that is going to come from me
    later.

[97]

The appellant argues that this direction
    constitutes legal error. In particular, the reference to the fact that the jury
    should not be overly influenced by a witness using that term, left the
    suggestion that they could impute some, just not too much, of a murderous
    intent from the witness evidence.

[98]

I do not read the instruction in that fashion.

[99]

First, trial counsel was in the best position to
    gauge whether the instruction was fit for the task and there was no objection
    taken. Indeed, trial counsel expressed satisfaction with the instruction,
    thanking the trial judge for having given it.

[100]

Second, during the evidence of another witness, the jury was again
    reminded not to take any legal direction from witnesses use of legal
    terminology.  This second witness also made reference to a murder having
    taken place. The trial judge used this as an opportunity to remind the jury
    that the terminology that a witness uses in giving evidence may or may not be
    consistent with the legal definition of the term used, and so to keep that in
    mind, that you have to take the definition from me in law as I give it to you,
    and I will be giving to you later, but not to be unduly persuaded by the use of
    the word by a witness. Again, no objection was taken to the mid-trial
    instruction.

[101]

Third, the jury received careful final instructions. They were told
    that they must take the law from the trial judge and the trial judge alone. He
    indeed explained what constitutes murder.

[102]

In my view, the trial judge gave good and cautious mid-trial
    instructions. Any potential risk that the jury would have taken legal direction
    from a witness, arising simply from the use of the term murder, or imputed a
    murderous intent from the use of that terminology, was neutralized by the
    mid-trial and final instructions.

[103]

I would not accede to this ground of appeal.

E.

CONCLUSION

[104]

The appellants trial involved one issue  did the Crown prove
    beyond a reasonable doubt that he had the intention for murder? I am satisfied
    that the jury understood how to approach that issue. I am also satisfied that
    there is no reversible error demonstrated on appeal.

[105]

I would dismiss the appeal.

Released: K.M.v.R.
    May 22, 2020

Fairburn J.A.

I agree. K. van Rensburg J.A.

I agree. B.W. Miller J.A.





[1]
Changes were also made to the decision tree pertaining to Mr.
    McClung.



[2]
Where applicable, the reliability of novel or contested science or
    science used for a novel purpose is also considered at the first admissibility
    stage:
Abbey,
at para. 48.


