



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Campbell, 2018 ONCA 837

DATE: 20181019

DOCKET: C54841

Strathy C.J.O., Nordheimer J.A. and McKinnon J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Campbell

Appellant

Joseph Wilkinson, for the appellant

Shawn Porter, for the respondent

Heard: October 16, 2018

On appeal from the conviction entered on December 6, 2011,
    by Justice John Sproat of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

Mr. Campbell appeals his conviction for first degree murder.

[2]

Two grounds are raised on the appeal.  The first ground is that the
    trial judge erred in concluding that the appellant's March 11, 2009 statement
    given to the police (his second statement) was voluntary.  The second ground is
    that the trial judge erred in his instructions to the jury on the use that
    could be made of the post-offence conduct evidence with respect to the issue of
    intent.

[3]

The basic facts are that the appellant owed the deceased money with
    respect to a gambling debt.  The deceased attended at the appellants home in
    Whitby to collect the debt.  The deceased was not seen again until five days
    later when his body was found in his car in Brampton.  The deceased had been
    shot four times in his upper body.

[4]

The police became aware of the connection between the appellant and the
    deceased.  The police interviewed the appellant twice.  Both times the
    appellant lied about the deceased coming to his home.

[5]

It is the second of these two interviews that involves the first ground
    of appeal.  By the time of the second interview, the police had found the
    deceaseds body.  It was uncontested that the police considered the appellant a
    suspect in the deceaseds murder.  However, the police told the appellant the
    reason that they wanted to interview him a second time was because the
    interviewing officer was having trouble reading the notes of the officer who
    had conducted the earlier interview, and also to follow up on concerns that the
    appellant had expressed to the police about people driving by his home. 
    Neither of these reasons was the true reason why the police were
    re-interviewing the appellant.

[6]

At the outset of the interview the interviewing officer told the appellant,
    in part:

Detective: Um, I am a police officer.
    Um, I am investigating a murder. Um, so anything that you say to me could be
    used. If your were gonna be charged ...

Appellant:  Mm-hmm.

Detective:... for murder. ..

Appellant:  Yeah.

Detective:... what you'd tell me I could use.

Appellant:  Yeah.

Detective: Um, and I can use that in court. Um, and then the
    other thing is, is that if you spoken to any police officer or anybody in
    authority that says you know, if the police come by you have to talk to them
    ...

Appellant:  Mm-hmm.

Detective:... don't pay any attention to that, okay?

Appellant:  Yeah.

[7]

The appellant argued at trial, and repeats the argument here, that the
    statement ought to have been excluded because, while the officer cautioned the
    appellant, he did not tell the appellant that he was a suspect and that the
    police had reasonable and probable grounds to arrest him for murder.  The
    police therefore did not advise the appellant of the full extent of his
    jeopardy.

[8]

The appellant essentially asks us to engraft onto the existing law
    respecting police cautions, a requirement that the police advise a person that
    they are a suspect.  The trial judge rejected that invitation as do we.  While
    the words used by the interviewing officer were not particularly elegant, they
    conveyed the salient points to the appellant.  In particular, the interviewing
    officer told the appellant that the police were investigating a murder and that,
    if the appellant was charged with murder, anything he said could be used
    against him.  The appellant was, in our view, given the requisite information
    to allow him to make a meaningful choice whether to speak to the police. 
    Nothing more was required.

[9]

Further, the appellants effort to characterize the failure of the
    police to tell the appellant that he was a suspect as trickery (
R. v.
    Oickle
, 2000 SCC 38, [2000] 2 S.C.R. 3) does not succeed.  It is important
    to remember that the court in
Oickle
referred to trickery as conduct
    that would shock the community (at para. 66).  Assuming that the failure to
    advise a person that they are a suspect could amount to trickery, the
    circumstances here would not rise to the shock the community standard.

[10]

The
    second ground of appeal deals with the post-offence conduct issue.  In this instance,
    the post-offence conduct was the appellants failure, immediately after the
    shooting, to perform CPR on the deceased or to call 911.
[1]
The post-offence conduct in issue did not arise, as it might normally, as
    evidence going to the issue of guilt
per se
.  Rather, it was used by
    the trial judge as one of 13 factors that he listed for the jurys
    consideration on the issue of the state of mind of the appellant.  In other
    words, this post-offence conduct was used solely in relation to the mental
    intent for murder  an issue that the jury would only reach after they had
    rejected the appellants self-defence claim.

[11]

In
    our view, the evidence here is akin to evidence of the presence or absence of hesitation,
    which was at issue in
R. v. White
, 2011 SCC 13, [2011] 1 S.C.R. 433. 
    In deciding that evidence was relevant post-offence conduct, Rothstein J. said,
    at para. 74:

In my view, the situation in the
    present case is no different. A jury could legitimately infer that Mr. White's
    lack of hesitation after the gun was fired belied his claim that the shooting
    was accidental. Evidence of such a failure is thus relevant to the question of
    whether he had the requisite intent for second degree murder.

A similar result was reached in
R. v. McLellan
,
    2018 ONCA 510, 362 C.C.C. (3d) 183 at para. 44.

[12]

Evidence
    that a person did not render aid to someone, who they had shot, is more
    consistent with intending (or being reckless regarding) the death of the person
    than not.  Consequently, this post-offence conduct was a relevant consideration
    on the issue of the mental element for murder.  The issue that the jury had to
    decide respecting the appellants state of mind was whether the appellant meant
    to kill the deceased, or meant to cause the deceased bodily harm that the
    appellant knew was likely to kill the deceased and was reckless whether the
    deceased died or not.  In our view, whether the appellant took steps to prevent
    the deceased from dying is a relevant consideration in that analysis.

[13]

We
    would repeat, on this point, that this single item of post-offence conduct was
    included by the trial judge among a list of evidence bearing on the issue of
    intent to commit murder.  The trial judge did not separately address this
    evidence as post-offence conduct as he had with respect to certain other pieces
    of evidence.  Rather, he added it into a long list of factors bearing on the
    issue of intent, including factors favourable to the appellant.  Any of the
    traditional concerns regarding post-offence conduct were thus entirely ameliorated
    by the very limited manner in which the trial judge used this evidence in his
    instructions to the jury.

Conclusion

[14]

We
    would reject both grounds of appeal.  The appeal is dismissed.

George
    R. Strathy C.J.O.

I.V.B.
    Nordheimer J.A.

Colin
    McKinnon J.





[1]

The appellant acknowledged that he had been trained in CPR.


