



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McCullough, 2021 ONCA 71

DATE: 20210203

DOCKET: C63642

Huscroft, Miller and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James McCullough

Appellant

Lance Beechener, for the appellant

Elise Nakelsky, for the respondent

Heard: October 19, 2020

On appeal from the conviction entered on
    April 25, 2016 by Justice Renee M. Pomerance of the Superior Court of Justice,
    sitting with a jury.

Huscroft J.A.:


OVERVIEW

[1]

There is no doubt that James McCullough killed
    Alexander Fraser. He admitted to stabbing him numerous times and dismembering
    his body. The issues at trial were whether he intended to do so; whether he was
    provoked; and whether the killing was planned and deliberate.

[2]

The appellant was convicted of first-degree
    murder and committing an indignity to a human body. He appealed both the
    convictions and the sentence but has abandoned the sentence appeal. He raises
    two issues in relation to his convictions. First, he argues that the trial
    judge erred in failing to instruct the jury concerning his post-offence
    conduct. Second, he argues that the trial judge erred in admitting evidence of
    his desire to commit cannibalism, evidence he says was prejudicial. The
    appellant contends that, as a result of these errors, he was denied his right
    to a fair trial.

[3]

In my view, the trial judge made no such errors.
    I would dismiss the appeal for the reasons that follow.

BACKGROUND

[4]

The background facts are not in dispute.

[5]

On September 8, 2013, following an evening spent
    drinking, the appellant and his friend Alexander Fraser decided to take a cab
    from Orangeville to London and rent a hotel room. A cab was dispatched to the appellants
    home and the appellant informed the driver that he and Fraser were heading to
    Motel 6 in London. The appellant gave the cab driver $320 cash for the trip.
    Shortly after leaving for London, the appellant directed the cab driver to return
    to his home and to wait for him. The appellant exited the cab and entered his
    home. He returned to the cab a few minutes later carrying two bags  a large
    hockey bag and a smaller duffle bag. The cab then proceeded to London.

[6]

The appellant and Fraser spoke with the cab
    driver throughout the trip. The appellant insisted that Fraser call him by the
    pseudonym, Josh Childress, rather than call him by name, but Fraser often referred
    to the appellant as James. Fraser told the driver he was drunk and asked her to
    stop the cab several times during the trip in order to allow him to urinate.

[7]

Although the appellant and Fraser were driven to
    Motel 6 and entered the motel, they did not stay there. They left that motel
    and headed to the nearby Ramada Inn. The appellant spoke with the clerk. Fraser
    was behind him, carrying both bags. The Ramada was full so they went to the
    Travelodge, where they got a room. By this point, it was around midnight. The
    Travelodge clerk testified that the appellant gave the name Josh Childress, did
    not provide any identification, and paid for the room in cash. The two men went
    to their room, each carrying one of the bags.

[8]

Early the following morning, the appellant
    registered for another night at the hotel and asked the clerk to inform
    housekeeping that he did not need to have his room cleaned. That afternoon, he
    sent a text message to a college friend, Lucas Verscheure, inviting him to the
    hotel, asking him to bring shoes, and telling him to come alone. Verscheure
    attended but brought along a mutual friend, Colby McGee. The appellant met them
    at the front door of the hotel and took them to his room. Verscheure described
    the appellants behaviour during the visit as highly disturbed and said that
    his behaviour became weirder and weirder. Verscheure did not consume alcohol or
    drugs during the visit, but McGee had beer and used cocaine with the
    appellant.

[9]

The appellant told the men that the two bags in
    the room contained stolen documents he needed to dispose of and offered
    Verscheure $600 to drive him to North Bay to dump the bags. The appellant then
    informed Verscheure that there were some body parts in the bags and asked him to
    help dump the bags in the Peterborough area or in London. Verscheure refused
    and he and McGee left the hotel.

[10]

Later that afternoon, the appellant called his
    uncle and told him that he had killed someone. His uncle described the
    appellant as distraught and in tears. He was concerned that the appellant was
    contemplating suicide and told him to call a lawyer and the police. The
    appellant called 911 at approximately 7:56 pm and said that there was a body in
    his room. He said that he had spoken with a lawyer, was unarmed, and wanted to
    turn himself in. He provided no further information.

[11]

The police entered the hotel room. They found an
    empty bottle of tequila and empty beer cans along with some full beer cans in
    the refrigerator; cigarette butts; and empty take-out bags from Kentucky Fried
    Chicken and Wendys with receipts dated that day. Two bags, two backpacks, and
    two belts were on the floor.

[12]

The police found Frasers torso stuffed into the
    large bag. His head, legs, arms, and penis were in the smaller duffle bag along
    with a 20 cm knife. The knife was in a paper bag and the head and penis were in
    a garbage bag. A piece of a leg bone was in a resealable Ziploc bag in one of
    the two backpacks. A small arm muscle was the only part of Frasers body that
    was missing.

[13]

The second backpack had personal items belonging
    to Fraser as well as the appellants knife sharpener. No cellphones were found.
    The Crown suggested that there was inculpatory evidence on the appellants
    cellphone and that he gave it to his mother before the police arrived but the
    appellant denied this.

[14]

Police examination of the room suggested that
    Fraser had lain between the two beds for a period of time and had been
    dismembered in the bathtub. He had been stabbed 29 times before being
    dismembered. There was no blood on the appellants clothes, save for a spot of
    blood on the back of his pants. There was no damage to Frasers clothes,
    suggesting that he had not been wearing them when he was stabbed. Fraser had
    both marijuana and a substantial amount alcohol in his system, well over the
    legal limit for driving.

THE EVIDENCE

Psychiatric evidence

[15]

The appellant had been seeing a psychiatrist before
    the killing as part of a psychosis intervention program. A psychiatric nurse,
    Brendan Carmichael, met with him on several occasions. Carmichael testified
    that the appellant told him of the need to slay celebrities as a sacrifice and told
    him that he had killed three cats and had been fascinated when he cut one of
    them open. The appellant told him he had thought of doing this to a human and
    would consider eating human flesh, expressing the view that by doing so you
    could acquire a persons traits. However, the appellant told Carmichael that he
    had no plans to do so and Carmichael thought that it was a fantasy.

[16]

Carmichael testified that the appellant told him
    on another occasion prior to the killing that he had exaggerated some things in
    an attempt to appear badass. He had killed only one cat, not three, and had
    only imagined killing and eating a human.

The rap lyrics

[17]

During a search of the appellants home the
    police found the following rap lyrics written by the appellant:

U no its me when i come thru the scene, homie

Another day another dollar
my only dream is
    get [illegible]

Yall faggotz soft being rich is only dream

Only things in my dreams is your girl and

Your money, homie thinks im joking but

aint a damn thang funny, Ill dig ur pockets

break your jaw and ram a knife thru

your tummy, you aint been thru half the

shit I been through, Ill go through,

Your whole crew, a routine Im

used to, chop em up mail their parts

to you, Im so fucking sick my favurite

drink is the blood of a jew, always in

the kitchen cooking but its never

stew, homie pass the pipe time for this rock
    to brew

The appellants testimony

[18]

The appellant admitted that he wrote the rap
    lyrics over one year prior to the offence and that the lyrics referenced
    chopping up people and drinking blood. He described the lyrics as death
    rap, which was designed to be as violent as possible, but he denied that the
    reference to stew was a reference to cooking body parts. He said it was a reference
    to cooking cocaine into crack cocaine but added that he had never in fact
    cooked crack cocaine.

[19]

The appellant said that he and Fraser planned to
    commit a home invasion robbery in London and had gone there for that reason.
    This explained the cab ride and hotel stay, the empty duffle bags, paying for
    everything with cash, and using the alias Josh Childress. The appellant
    testified that he regularly carried a knife in his backpack because he was a
    drug dealer and that his backpack also included a knife sharpener along with a
    bottle of tequila, cocaine, and two belts.

[20]

The appellant testified that he and Fraser
    chatted, drank, and smoked after they checked into their hotel room and that he
    consumed some cocaine. He took a shower about one hour later and when he went
    outside the bathroom to get his towel, he saw Fraser standing there nude. According
    to the appellant, Fraser informed him that he was attracted to him and wanted
    to have sex. The appellant said that he freaked out and that he grabbed his knife
    and started stabbing Fraser after Fraser attempted to grab his penis. The
    appellant said he remembered stabbing him in the chest only twice before blacking
    out. The appellant testified he had no memory of his actions after this. He
    said that he awoke to find Frasers dismembered body in the bathtub. He was
    upset and his first reaction was to attempt to cover it up. He cleaned the
    room, put the body parts into the two bags and Frasers personal items into the
    backpacks. At this point he sought the assistance of Verscheure.

[21]

The appellant gave a statement to the police,
    which was not in evidence, but portions of the statement were put to him in
    cross-examination. The appellant told the police that he had acted in self-defence
    after Fraser brandished the knife and attempted to sexually assault him. The
    appellant said: He [Fraser] was like some fucking monster, rapist. I dont
    even know how to describe. I was scared. At trial, however, the appellant
    testified that the narrative given to the police was untrue. He explained that
    he tried to make Fraser look as terrible as possible because he was trying not
    to take any responsibility. In particular, he claimed that he omitted to
    mention he was naked because he didnt want to police to think there was
    anything sexual going on. He said that he was lying in order to persuade the
    police he had acted in self-defence and that the death was an accident.

THE ARGUMENTS AT TRIAL

The defence theory

[22]

Counsel for the appellant conceded to the charge
    of manslaughter but argued that the appellant did not intend to kill or
    dismember Fraser and that he did so only suddenly, in immediate reaction to an
    unexpected sexual advance and sexual attack.

[23]

Counsel said that the appellant made his comments
    to Nurse Carmichael in an attempt to obtain a personality disorder diagnosis,
    which he wanted in order to obtain disability benefits from the Ontario
    government, and that his comments did not relate to or demonstrate a plan to
    kill Fraser. Nor did the rap lyrics demonstrate a plan to kill him. They were a
    red herring. The appellant was a drug dealer and carried a knife and knife
    sharpener because of his dangerous occupation.

[24]

The trip to London was explained by the appellants
    testimony that he and Fraser had gone there to party, perform a home invasion,
    and to go shopping. The bags were for use in the home invasion and one bag was
    also used to carry a box of beer. The intention to perform the home invasion
    explained the appellants use of the pseudonym Josh Childress.

[25]

The absence of cuts on Frasers clothing
    supported the appellants testimony that he was naked when he was stabbed and
    the absence of any significant blood on the appellants clothing suggested that
    he was also naked. Counsel argued that the appellants actions in cleaning up
    the scene, putting the body parts into the bags, and calling his uncle and
    Verscheure demonstrated a frantic reaction rather than a prior plan.

The Crowns theory

[26]

The Crown argued that Nurse Carmichaels
    evidence and the rap lyrics demonstrated that the appellant had a fantasy about
    killing a person and dismembering him. The appellant had obtained a work visa
    and was going to Australia shortly; he planned to kill and dismember Fraser
    before he left.

[27]

The plan involved taking Fraser to London,
    paying for the trip in cash, and using a pseudonym to avoid detection. The
    appellant had Fraser carry the bags into the motel so that if he were caught,
    he could claim that Fraser had brought them and that Fraser had intended to
    kill him. The Crown argued that the appellant brought the knife and knife
    sharpener for the purpose of dismembering Fraser. The belts were brought to
    restrain him if necessary.

[28]

The Crown theorized that Fraser did not live long
    after he arrived in the hotel room. He was stabbed while he lay between the two
    beds and was then dragged to the bathtub, where he was dismembered. The Crown
    argued that the appellant kept a piece of bone from Frasers leg in a Ziploc
    bag as a souvenir, then cleaned the hotel room to get rid of the evidence.

[29]

The Crown argued that the appellant lied to the
    police and at trial and that he had never blacked out. The sexual attack was a
    story he created to deny his plan to kill and dismember Fraser.

ISSUES ON APPEAL

[30]

The appellant raises two issues on appeal.
    First, he argues that the trial judge erred in failing to caution the jury
    about his post-offence conduct and the limited use to which it could be put. He
    submits that the judge had to inform the jury that this evidence had no
    probative value in relation to the appellants level of culpability and should
    have cautioned the jury concerning what he describes as bizarre demeanour
    evidence. This argument was the focus of the appellants submissions at the
    hearing. Second, the appellant argues that the trial judge erred in admitting
    evidence of his desire to commit cannibalism, evidence that he says was
    prejudicial.

THE POST-OFFENCE CONDUCT EVIDENCE

[31]

The post-offence conduct in question includes
    the following:

1)

The dismemberment of the victim;

2)

The extensive cleanup of the motel room;

3)

The attempt to dispose of the body;

4)

The appellants lies to the police and his
    acquaintances; and,

5)

The appellants calmness and ability to make
    rational decisions the day after the killing.

[32]

It also includes conduct the appellant characterizes as demonstrating
    his bizarre demeanor following the offence, including:

1)

Eating two fast food meals in the motel room
    with the dismembered body of the victim beside him;

2)

Laughing during the 911 call; and,

3)

Putting a piece of the victims leg bone into a
    resealable Ziploc bag.

The appellants position

[33]

The appellant notes that the Crown referred to
    the post-offence conduct evidence throughout her cross-examination of the
    appellant. The Crown also referred to the appellants post-offence conduct
    throughout her closing address, emphasizing that the appellant ate fast-food meals
    alongside the bags containing the dismembered remains of Fraser and that he
    kept a piece of Frasers leg bone, an action the Crown described as akin to
    keeping a trophy or souvenir of having lived out his fantasy. The appellant
    complains that the jury was given neither a post-offence conduct caution nor a
    no-probative-value instruction in respect of this evidence. He says that in the
    pre-charge conference the trial judge specifically asked the Crown, but not the
    defence, if she wanted a post-offence conduct instruction.

[34]

The appellant argues that the probative value of
    the post-offence conduct was equivocal at best, yet the jury would have been
    tempted to focus on this evidence  especially the dismemberment and the
    appellants ability to eat beside the dismembered body  and it could have
    played a powerful role in the jurys deliberation. The appellant submits that
    an instruction to the jury cautioning them about this evidence and explaining
    to them the limited uses to which it could be put was required. The lack of any
    instruction on the post offence conduct is a major error that requires a new
    trial.

The respondents position

[35]

The Crown acknowledges the absence of a specific
    instruction on post-offence conduct but says that none was necessary: the trial
    judge mitigated the main reasoning risk associated with post-offence conduct by
    instructing the jury to consider alternative explanations for the appellants
    conduct and carefully reviewing the alternative explanations provided by the
    appellant. The appellants conduct after killing Fraser was relevant to ascertaining
    his intent and to whether the murder was planned and deliberate; a no-probative-value
    instruction was not warranted. Although a caution concerning the risks of
    demeanour evidence would have been ideal, the failure to give one had minimal
    impact.

The principles governing review of the trial
    judges instructions

[36]

The general principles governing review of the
    trial judges instructions to the jury were recapitulated by Moldaver J. in
R.
    v. Calnen
, 2019 SCC 6, [2019] S.C.R.
    301,

at paras. 8-9:

An appellate court undertakes a functional
    approach in reviewing a jury charge, asking whether the charge as a whole
    enabled the trier of fact to decide the case according to the law and the evidence:
R.
    v. Mack
, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 49;
R. v. Jaw
,
    2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32. As Bastarache J. wrote in
R.
    v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 30:

The cardinal rule is that it is the general
    sense which the words used must have conveyed, in all probability, to the mind
    of the jury that matters, and not whether a particular formula was recited by
    the judge. The particular words used, or the sequence followed, is a matter
    within the discretion of the trial judge and will depend on the particular
    circumstances of the case.

In short, the test is whether the jury was
    properly, not perfectly, instructed:
R. v. Jacquard
, [1997] 1
    S.C.R. 314, at para. 62. At the end of the day, the overriding question is
    whether the jury was properly equipped to decide the case absent a limiting
    instruction against general propensity reasoning.

[37]

The dangers posed by post-offence conduct
    evidence are well known. The question is, did the trial judge provide the jury
    with what they needed to decide the case according to the law and the evidence?

DISCUSSION

[38]

The essential premise of the appellants
    position  that the appellants post-offence conduct was not probative of his
    level of culpability  is, as the Crown submits, simply incorrect. Post-offence
    conduct is a form of circumstantial evidence that may be relevant to a
    particular issue. In this case, regardless of the appellants concession to
    manslaughter, the impugned post-offence conduct was relevant to the issues of
    intention and planning and deliberation, and the trial judge made no error in
    instructing the jury in regard to it.

[39]

The appellant argued that he was distressed and
    remorseful for having killed his friend  that his post-offence behaviour was a
    frantic reaction to what had suddenly happened. The Crowns closing can be
    understood as highlighting the inconsistencies with this narrative. But more
    than this, by emphasizing the appellants calm and calculated actions following
    the killing, the Crown suggested that the appellant was untroubled by what he
    had done  that, far from being a frantic reaction to what the defence
    characterized as an attempted sexual assault, the appellants post-offence
    conduct logically suggested that the killing was intentional, planned and
    deliberate. This suggestion was made plain by the question the Crown posed to
    the jury in her address:

Use your good common sense. Does that sound
    like a man who is distressed and remorseful for killing his friend? Or does it
    sound like a man who cold bloodedly killed his friend for his own twisted
    interest and enjoyment. And who, therefore, has no problem sitting and enjoying
    a couple of meals beside his friends dismembered body or has any problem with
    drinking Tequila from a bottle splattered with his friends blood.

[40]

The Crown fairly put this suggestion to the
    appellant in cross-examination and he denied it:

Q.      Im going to suggest, sir, you would
    never, if you had been distraught, overwhelmed, frantic because youre so upset
    that you killed you [sic] friend accidentally or in a drunken rage, Im going
    to suggest you would never have been able to eat not one but two meals while
    sitting in the hotel room with his dismembered remains during the course of
    that day?

A.      Well I was hungry, so.

Q.      So you clearly werent bothered enough
    by [the deceaseds] death or dismemberment to have lost your appetite?

A.      Not everyone loses their appetite when
    theyre under stress. That only happens in some people.

Q.      Im going to suggest, sir, you were
    quite interested in eating and concerned about eating throughout the course of
    that day because [the deceaseds] murder didnt bother you at all?

A.      No, cause I didnt know what jail was
    like. I didnt know when Id get my next meal and all that.

Q.      Im going to suggest to you, sir, it
    didnt bother you at all because you had wanted to kill him?

A.      No.

[41]

The appellant submits that the trial judge ought
    to have instructed the jury that the post-offence conduct evidence could not be
    used to establish planning and deliberation; it could be used only to rebut the
    appellants narrative of a frantic reaction.

[42]

This submission must be rejected.

[43]

The admissibility of post-offence conduct
    evidence and the formulation of limiting instructions are governed by the same
    principles that govern circumstantial evidence generally:
R. v. White
,
    2011 SCC 13, [2011] 1 S.C.R. 433, at para. 31,
per
Rothstein J. It is
    well established that post-conduct evidence may be relevant not only to
    contradict the defence narrative, but also to prove intention and planning and
    deliberation: see e.g.,
R. v. S.B.1
,
    2018 ONCA 807, 143 O.R. (3d) 81
;
R. v. McLellan
, 2018 ONCA
    510, 362 C.C.C. (3d) 183, leave to appeal to S.C.C. refused, [2019] S.C.C.A.
    No. 338;
R. v. Aravena
, 2015 ONCA 250, 333 O.A.C. 264, leave to appeal
    to S.C.C. refused, [2015] S.C.C.A. No. 497 (
Aravena
), [2015] S.C.C.A.
    No. 509 (
Gardiner
), [2015] S.C.C.A. No. 516 (
Mather
);
R. v.
    Khan
, 2007 ONCA 779, 230 O.A.C. 174; and
R. v. MacKinnon

(1999),
    132 C.C.C. (3d) 545 (Ont. C.A.).

[44]

In light of these authorities, there was nothing
    improper about the Crowns closing argument and nothing inappropriate about the
    jury being allowed to draw an inference of intention, planning and deliberation
    from the substantial body of post-offence conduct evidence. The evidence
    complemented the considerable body of pre-offence conduct. The post-offence
    conduct evidence demonstrates that the appellant acted in a cool and
    calculating manner after he killed and dismembered Fraser  not franticly, as
    he claimed. Not only could this evidence be used to refute the defences
    frantic reaction narrative; as a matter of common sense and experience it was
    also relevant to the inference of planning and deliberation. This inference
    arises most clearly from the appellants action in dismembering Frasers body
    and saving the bone fragment. Moreover, the defence relied on other aspects of
    the appellants post-offence conduct to suggest the
absence

of
    a plan. There was no basis to limit the jurys consideration of this evidence
    in the manner suggested by the appellant.

[45]

The appellant emphasized that, during the
    pre-charge conference, the trial judge stated, and trial counsel agreed, that
    many aspects of the after-the-fact conduct were of no probative value if the
    appellant admitted to manslaughter  including acts of concealment, cleaning up
    the room and so on  as they were equally likely to reflect cognition of
    manslaughter as murder.

[46]

The trial judges remarks in the pre-charge
    conference reflected what appears to have been a shared understanding that
    after-the-fact conduct was referring only to the post-offence conduct that
    supported an inference of consciousness of guilt. No unfairness resulted from
    this shared understanding. It is clear from the discussions concerning the
    post-offence conduct evidence  and in particular the dismemberment and bone
    fragment evidence  that it was accepted that the post-offence conduct evidence
    could be used to support inferences other than consciousness of guilt. The
    appellants actions following the killing were properly addressed by Crown
    counsel in her closing and by the trial judge in her charge.

No special caution was required

[47]

The appellant focuses on three aspects of his
    post-offence conduct that he characterizes as bizarre: evidence that he laughed
    during the 911 call; ate two fast-food meals alongside the dismembered body of
    the victim; and put a piece of the victims leg bone into a resealable Ziploc
    bag. He submits that the need for a caution concerning this evidence is clear
    from the findings from the inquiry into the wrongful conviction of Guy Paul
    Morin. Accused persons may act strangely or do stupid things following a
    traumatic experience. Or their behaviour may simply appear to be different from
    normal behaviour  a matter that is difficult to assess in any event given
    different cultural backgrounds and possible mental health issues.

[48]

In my view, it was not necessary to caution the
    jury specifically concerning the bizarre aspects of the appellants
    post-offence demeanour.

[49]

The appellants alleged laughter was not
    significant evidence. He denied laughing and neither party referred to the
    matter in their closing addresses.

[50]

As for keeping a bone fragment in a Ziploc bag,
    the Crown did not rely on this simply as evidence of bizarre behaviour or as post-conduct
    evidence that indicated consciousness of wrongdoing. The Crown suggested that
    the appellant had kept the bone fragment as a trophy or souvenir of the killing.
    The appellant denied that it was a souvenir, testifying that he put the bone
    fragment in the Ziploc and into his backpack because he was trying to get rid
    of evidence and wasnt thinking straight. The trial judge instructed the jury
    that this evidence had to be considered in determining whether the killing had
    been intentional and reminded them of the alternative explanations for this
    evidence. Trial counsel expressed no concerns about how this evidence was
    handled, and I see no basis to impugn the trial judges instructions on appeal.

[51]

The evidence that the appellant ate two meals
    alongside the dismembered remains of the victim is bizarre but, again, it was
    not proffered as evidence that the appellant was more likely to be guilty
    simply because his actions were bizarre or abhorrent, nor was it proffered as
    post-conduct evidence that indicated consciousness of wrongdoing. Instead, as
    with the other evidence showing that the appellant acted calmly following the
    killing and dismemberment, the evidence that the appellant ate two meals
    alongside the dismembered remains of the victim countered the appellants
    narrative that he was distraught and overwhelmed following the killing and logically
    supported the inference invited by the Crown that the killing was intentional, planned
    and deliberate. It would have been wrong for the judge to have cautioned the
    jury
not
to consider it regardless of whether it could be characterized
    as bizarre.

[52]

It was not disputed that the appellant killed
    Fraser and dismembered his body. All that was at issue was whether the killing
    was intentional and, if so, whether it was planned and deliberate. The appellants
    behaviour in putting the bone fragment into a Ziploc bag and eating fast-food
    meals beside the dismembered remains of the victim was probative of these
    issues. Although it was open to the trial judge to instruct the jury that they
    should not infer guilt simply from the apparent oddity of the appellants actions,
    the question is not whether the charge might have been improved; the question
    is whether the jury was charged properly.

[53]

I am satisfied that it was. There was no danger
    that the jury might wrongly conclude that the appellant was guilty simply
    because his actions following the killing and dismemberment were bizarre.
    Indeed, it is possible that an instruction as to the bizarre nature of these
    particular actions may have prejudiced the appellant by highlighting them. Perhaps
    that is why no such instruction was requested. In any event, the trial judge
    did not give such an instruction and did not err in not doing so.

[54]

Nor did the trial judge err in not providing a
    caution concerning the risks of demeanour evidence generally. The evidence of
    the appellants demeanour following the killing did not depend on witnesses
    powers of observation and interpretation. The subjective interpretation risk
    associated with demeanour evidence therefore did not arise. A general
    instruction on demeanour evidence might have been ideal, as the Crown
    suggested, but it was not necessary. In any event, even assuming that the trial
    judge erred in failing to provide such an instruction, in my view the error
    would be inconsequential and the curative proviso in s. 686(1)(b)(iii) would
    apply. The relevance of the appellants actions following the killing to the
    issues of intention and planning and deliberation was clear and
    straightforward, and the jury was aware of the alternate explanations. There was
    no substantial wrong or miscarriage of justice.

The trial judge properly instructed the jury
    about alternative explanations

[55]

The trial judges primary responsibility in
    regard to the appellants post-offence conduct evidence was to ensure that the
    jury was aware of alternative explanations for that conduct in order to guard
    against the danger that the jury might jump to an inference of guilt. It is
    clear that she did so. For example, concerning the dismemberment  which the
    defence conceded was relevant to planning and deliberation  the trial judge
    instructed the jury as follows:

You may consider the act of dismemberment. Was
    this part of the original plan that was carried out? Had he planned to
    dismember the body after killing Mr. Fraser? If so, is this evidence that the
    plan was actually implemented? Or was the dismemberment something that was not
    planned. Was it a panicked reaction to the realization that he had killed his
    friend and he did not wish to be discovered with the body? If the decision to dismember
    the body only arose after the killing, then it was not a planned event and does
    not shed light on whether the murder itself was planned and deliberate.

[56]

With respect to the appellants efforts to clean
    up, the trial judge instructed the jury:

The same may be said of the decision to clean
    up the room and remove visible signs of blood. Was that part of an original
    plan to kill Alex Fraser? Or was that an after-the-fact reaction? It is for you
    to decide.

[57]

As for the appellants decision to keep a bone fragment
    in a Ziploc bag, the trial judge instructed the jury:

Was this a souvenir that Mr. McCullough was
    keeping to remind himself of the murder? If so, does that suggest that the
    killing was intentional? In answering the question, consider Mr. McCulloughs
    testimony that he kept the shard of bone as part of his effort to clean up the
    scene. He clearly did clean up the scene and was sufficiently successful that
    very little blood was visible to the naked eye. Is that a reasonable
    explanation? That is a question for you to decide.

[58]

The trial judge was fair and balanced in her
    treatment of the evidence. She ensured that the jury was aware of alternative
    explanations for the conduct in question. Nothing more was required.

The trial judges process

[59]

I conclude my consideration of the appellants
    arguments with these observations.

[60]

This is yet another case in which jury
    instructions have been impugned on appeal, despite trial counsel having raised
    no objection when the charge was made. As always, this court acknowledges that
    responsibility lies with the trial judge to get the charge right. But in this
    case not only did experienced trial counsel not object to the charge that is
    now impugned; she was consulted at every step in a cooperative process employed
    by the trial judge in crafting that charge.

[61]

There is no merit to the appellants submission
    that the trial judge treated the parties unequally by asking only the Crown
    whether she wanted a post-offence conduct instruction. The trial judge sought
    input from both counsel on the matter and simply raised the post-offence
    conduct instruction as an example of the input she sought from both counsel.

[62]

The trial judge provided the parties with a
    draft of her charge and reviewed the draft point by point, seeking and
    obtaining their comments and submissions and, ultimately, their agreement.

[63]

The trial judge informed the parties that she would
    instruct the jury that they must consider the evidence in an objective and
    dispassionate manner, free of any emotional reaction to unusual, graphic
    and potentially disturbing evidence, and that they must analyze the case
    based on logic, common sense, and good judgment. Defence counsel indicated that
    she was very content with that. Finally, the trial judge asked the parties
    whether they required anything further  whether there were any items on your
    shopping lists that we havent addressed or anything in particular that you
    would like to request. Both the Crown and defence stated that they needed
    nothing further.

[64]

The result was a charge that should have
    satisfied both parties and surprised neither. There was no reason to object to
    the charge and there is no basis to impugn the charge on appeal.

THE EVIDENCE OF CANNIBALISM

[65]

The appellant argues that the trial judge erred
    in admitting evidence of his desire to commit cannibalism. It was not relevant
    to motive because it would be pure speculation to find that the appellant had
    committed the offence in order to eat the victim, as there was no evidence of
    cannibalism having occurred. The evidence was prejudicial and should have been
    edited out of the nurses statement.  Additionally, the appellant argues, the
    rap lyrics were prejudicial and should have been excluded as a whole, as there
    was a very weak connection between the content of the lyrics and the offences
    with which the appellant was charged.

[66]

The starting point for assessing this argument is
    that this was evidence of bad character/extrinsic misconduct and as such it was
    inadmissible if proffered to show only that the appellant was the sort of
    person likely to have committed the offence. But bad character evidence is
    admissible if it is relevant and material, is not otherwise covered by an
    exclusionary rule, and its probative value outweighs its prejudicial effect:
R.
    v. J.A.T.
,
2012 ONCA 177, 290
    O.A.C. 130, at para. 51.

[67]

The trial judge found that the appellants
    statements to the nurse had significant probative value on the issues the jury
    had to decide. Whether the appellant had killed three cats, as he told his
    nurse initially; only one, as he said in a later interview; or in fact any cats
    at all was beside the point. The probative value of the statements lay in the appellants
    fantasies linked to killing a cat  specifically, what he fantasized about
    doing to a human being  and their relationship to the Crowns theory of
    planning and deliberation. As a practical matter, it was not possible to edit
    his statement about cats from his statement about what he wanted to do to a
    human being. The trial judge recognized the potential for prejudice but
    concluded that it was outweighed by the probative value of the evidence and
    that the prejudice could be addressed with a proper limiting instruction.

[68]

As
    for the rap lyrics, the trial judge acknowledged that they were open to
    different interpretations and that many listen to songs with violent imagery.
    Nevertheless, it was a reasonable interpretation of the appellants lyrics that
    they meant what they literally said. To the extent that the lyrics refer to
    knifing and chopping up people, drinking blood and cooking in the kitchen, they
    were probative of the central issue at trial  whether the killing was
    intentional, planned and deliberate. Ultimately, it was for to the jury to
    determine whether the rap lyrics referred to killing, dismemberment, and
    cannibalism. Again, the trial judge recognized the potential for prejudice, but
    concluded that it was outweighed by the probative value of the evidence and
    could be addressed by a proper limiting instruction.

[69]

Having admitted the appellants statements to
    the nurse and the rap lyrics on the issues of motive, intention, and planning
    and deliberation, the trial judge also addressed whether the evidence was
    admissible on a propensity basis  that is, whether the evidence of the appellants
    fantasy of killing, dismembering, and cannibalizing could help establish that
    he killed Fraser and dismembered the body. This was necessary because the
    appellants position on dismemberment was not clear at the time, and the Crown
    might be put to the proof of each element of the charge, including identity. The
    trial judge found that there was insufficient evidence of cannibalism to place
    the allegation before the jury; there was no evidence that the appellant had
    consumed the victims flesh and the theory that he had done so was too
    speculative. However, the trial judge also found that the evidence disclosed a
    specific rather than general propensity in regard to the dismemberment and that
    the appellants statements to the nurse and the rap lyrics were probative both of
    his intention and the voluntariness of his actions. The evidence, she found,
    posited not a general tendency to violence, but a highly specific and unusual
    manifestation of violence  the dismemberment of a human body. The trial judge
    found that the prospect of prejudice was outweighed by the probative value of
    the evidence and admitted it.

[70]

The trial judge carefully weighed the probative value of the
    evidence and the potential prejudice to the appellant in deciding whether or
    not to admit the bad character evidence. Her decision was neither unreasonable
    nor marred by legal error or a misapprehension of the evidence. It is entitled
    to deference.

[71]

The appellant says that the absence of evidence
    that he engaged in cannibalism after the killing and dismemberment suggests
    that his interest in cannibalism formed no part of his motive to kill and
    dismember the victim. But this is illogical. The absence of evidence that he
    engaged in cannibalism does not preclude a finding that he had been motivated
    to do so initially.

There are any number of possible explanations for
    not following through on a motivation to act in a particular way, none of which
    negates the existence of the initial motivation.

[72]

The trial judges mid-trial and closing
    instructions on the use of the evidence were impeccable. She instructed the
    jury that they could not find that there was an act of cannibalism and instructed
    the jury not to speculate about the missing muscle tissue. The trial judge limited
    the use of the ideation and rap lyric evidence to issues of motive, intention,
    planning, and deliberation, in response to the Crowns argument.

[73]

It goes without saying that lyrics are open to
    different interpretations and that, in any event, the writers of songs are not
    to be presumed to share the views they present in their songs. The trial judge instructed
    the jury to consider whether the rap lyrics were a form of artistic expression
     specifically, whether the appellant was interested in the lyrics as a form of
    art or entertainment, as he testified. If the appellants interest was purely
    artistic, the rap lyrics were not to be used to determine whether or not the
    appellant was guilty of the offences charged. If, however, the jury determined
    that his interest was more than purely artistic, they were required to consider
    what the lyrics referred to  cooking drugs, as the appellant testified, or
    killing, dismemberment, and cannibalism.

[74]

The trial judge instructed the jury that if it
    found that the lyrics referred to drugs, they were not to be used to determine
    whether the appellant was guilty. Even if the jury found the lyrics referred to
    killing, the evidence could be considered only as it related to the appellants
    motive, intention, and state of mind when he killed Fraser. The trial judge
    went on to admonish the jury not to allow emotional reactions to the graphic
    and morbid nature of the lyrics to affect their assessment of the evidence. She
    specifically instructed the jury not to conclude that the appellant was a bad
    person more likely to have committed the offences, or the kind of person likely
    to have committed the crimes, and to convict on either basis. The trial judge
    reiterated that meaning of the lyrics was to be assessed in an objective and
    dispassionate manner. Nothing more was required.

[75]

This ground of appeal must also be rejected.

Conclusion

[76]

I would dismiss the appeal.

Released: February 3, 2021 (G.H.)

Grant
    Huscroft J.A.

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

I agree.
    Harvison Young J.A.


