



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smith, 2014 ONCA 324

DATE: 20140425

DOCKET: C51732

Laskin, Rosenberg and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael James Smith

Appellant

Mark Halfyard and Victoria Rivers, for the appellant

Andreea Baiasu, for the respondent

Heard: October 30, 2013

On appeal from the conviction entered on June 24, 2009 by
    Justice Peter B. Hockin of the Superior Court of Justice, sitting with a jury.

Laskin J.A.:

A.

Overview

[1]

The appellant Michael Smith was convicted of the first degree murder of
    his estranged wife Eugena Smith.

[2]

The appellant and his wife were married in 2000 and had a daughter who
    was born in 2003.  By early 2007, however, the marriage had broken down.  On
    June 3, 2007, Eugena asked for a legal separation.  Four days later, in the
    early morning of June 7, the appellant went to her house unannounced and
    strangled her to death while she lay sleeping in bed with their daughter.

[3]

The Crowns theory was that the appellant was obsessed with getting
    Eugena back and that if he could not be with her, then no one could.  He went
    to her house to have sex with her one last time and then to kill her.

[4]

The appellant testified that he went to see Eugena to talk to her about
    a Facebook message she had sent a few hours earlier.  She freaked out when he
    woke her up.  So, he put his hand on her mouth to quiet her while he rocked the
    bed to lull their daughter back to sleep.  Three or four minutes later, he
    realized his hand was on Eugenas throat and she was dead.  Distraught, he took
    their daughter to his parents house, returned to Eugenas house, and then
    after trying to commit suicide, had sex with her dead body.

[5]

The trial judge instructed the jury that they could find the appellant
    guilty of first-degree murder on any one of three bases: the appellants murder
    of his wife was planned and deliberate (s. 231(2) of the
Criminal Code
);
    the appellant murdered Eugena while committing the offence of criminal
    harassment (s. 231(6) of the
Criminal Code
); or the appellant murdered
    Eugena while sexually assaulting her (s. 231(5)(b) of the
Criminal Code
).

[6]

The appellant advances three grounds of appeal.  His first and principal
    ground is that a verdict of first degree murder under either s. 231(2) or s.
    231(6) of the
Code
would be unreasonable because the evidence does not
    support a finding of planning and deliberation or criminal harassment. 
    Although a finding of first degree murder under s. 231(5)(b) was supportable,
    we do not know on which of the three bases the jury convicted the appellant. 
    Accordingly, the verdict of first degree murder cannot stand.

[7]

Second, the appellant argues that the printed decision tree given to
    the jurors was misleading because it misstated the elements of criminal
    harassment.  Third, the trial judge erred by failing to give a proper
W.(D.)
instruction on the burden of proof and the assessment of the appellants
    evidence.  The appellant asks that we set aside his conviction and either order
    a new trial or substitute a verdict of second degree murder.

[8]

The Crown responds that the verdict of first degree murder was
    reasonable on any of the three bases left with the jury, but was especially
    compelling under s. 231(5)(b), as the evidence was overwhelming that the
    appellant murdered Eugena while committing a sexual assault.  The Crown further
    says that the decision tree did not mislead the jury because they were told
    that it did not state the elements of any offence, but was given to them merely
    as a flow chart to aid their deliberations.  Finally, the Crown says that the
    trial judge properly explained to the jury the Crowns burden of proof and how
    to assess the appellants evidence.  The Crown asks that the appeal be dismissed. 
    If, however, the appellant succeeds on any of his grounds of appeal, the Crown
    seeks a new trial on first degree murder.

B.

Relevant Background Evidence

(a)

The parties marriage and its breakdown

[9]

The appellant and Eugena met in 1998, married in 2000, and had a
    daughter, Jaydn, in 2003.  In 2006 they bought a house at 9 Balaclava Street in
    St. Thomas.  However, soon after, the marriage began to unravel.  In January
    2007, Eugena asked the appellant to move out, which he did.  He blamed the
    separation on his co-worker Tim Veal, who he suspected was having an affair
    with Eugena.

[10]

One-and-a-half
    months later, Eugena asked the appellant to move back home, but soon asked him
    to leave again because she could no longer trust him.  On March 9, they signed
    a separation agreement.  The agreement named Eugena the primary caregiver for Jaydn.

[11]

Although
    the appellant rented an apartment, he spent a fair amount of time at 9
    Balaclava.  He described himself as Mr. Mom  he did household chores and
    prepared meals while Eugena worked.

(b)

The appellants Facebook profile

[12]

The
    appellant was increasingly anguished about the separation.  So, he created a
    Facebook profile under a pseudonym, Jeremy Spencer, whom the appellant
    portrayed as a recently divorced man, to find out what [Eugena] felt.  After
    Eugena accepted Spencers friend request he sent her a message asking for
    relationship advice.  They then exchanged several messages.  Through his profile
    on Facebook, the appellant could read Smiths comments about her intention to
    leave him.  Eugena figured out the Facebook ruse and told her friends that the
    appellant was using the name Jeremy Spencer to get information about her.

(c)

June 3-7, 2007

[13]

On
    June 3, Eugena told the appellant that she wanted a legal separation.  After
    she told him, he sent her several text messages.  In the last one he said
    Finally had a good cry.  Goodbye my love.

[14]

However,
    Eugena was not convinced the appellant had accepted that their marriage was
    over.  On June 4, she wrote Spencer a Facebook message saying, Told him last
    night the separation is what I need to do, make it official.  He is convinced
    he will wait for me to come around.

[15]

On
    June 6, the appellant was at 9 Balaclava all day.  He left around 10:00 p.m. 
    Eugenas brother came over that day as well.  He was planning to move in with
    his sister to share expenses.

[16]

On
    June 7 at 2:32 a.m., Eugena posted her last message to Jeremy Spencer.  The
    message ended with some pointed advice: DONT PUSH her.  Step back  live YOUR
    life for a while.  U R trying too hard!!! Take charge of U and YOUR life Not
    HER LIFE!

[17]

The
    appellant read the message at 4:25 a.m. on June 7.  He then went to 9
    Balaclava, let himself in the back door and climbed into the bed where Eugena
    and Jaydn lay sleeping.  Eugena woke up and freaked out, so the appellant put
    one hand on Eugenas mouth and the other on her neck to prevent her from waking
    Jaydn.  However, he testified that Jaydn woke up and he told her, its okay I
    just want to talk to mommy  lay down, go back to sleep.  The appellant said
    that he rocked the bed with his hips to help Jaydn fall asleep.  Three or four
    minutes later he realized Eugena was dead.

[18]

The
    appellant took Jaydn out of the bedroom and drove her to his parents house. 
    He testified that he then returned to 9 Balaclava and tried to commit suicide
    by ingesting Benadryl, Tylenol, Robaxisal, and Toradol tablets.  He said that
    he thought he was dying so he decided to make love to Eugena one last time.

(d)

The Crime Scene and the Forensic Evidence

[19]

At
    6:40 a.m. on June 7, two police officers entered 9 Balaclava.  They found
    Eugena and the appellant lying naked in bed.  Eugena did not have a pulse; the
    appellant was breathing, but appeared unresponsive.  He was holding a cell
    phone in his hand, later determined to be Eugenas cell phone, which he had used
    to make several phone calls.

[20]

The
    forensic examination of Eugena showed blood in her genital area and on her
    inner thighs.  Dr. Shkrum, the forensic pathologist who performed the autopsy,
    concluded that the cause of death was strangulation through pressure applied to
    the neck.  However, he could not identify the mechanism by which the neck was
    compressed.  He did say, though, that a scenario in which the perpetrator
    strangled the victim by placing one hand on her mouth and another hand just
    below her head would not account for the injuries on the neck.

[21]

Dr.
    Peck from the Centre of Forensic Sciences testified about his analysis of
    bodily fluids and DNA.  Swabs from Eugenas vagina and external genitalia contained
    both blood and semen.  The rectal swab also contained blood, and though it was
    not positive for semen, it was positive for the chemical P30, which is found in
    semen and only rarely in non-semen samples.

[22]

The
    appellants DNA was found on the oral swab taken from inside Eugenas mouth. 
    Eugenas DNA was found in the blood on the appellants penis and on the inside
    fly of his jeans.

(e)

The Hospital Examination of the Appellant

[23]

As
    the appellant appeared unconscious when the police arrived at 9 Balaclava, he
    was taken to the emergency room of the local hospital.  The doctor who first
    examined him said that though the appellant was initially unresponsive, within
    minutes he became fully conscious.

[24]

Throughout
    the morning, three doctors examined the appellant.  None believed his life was
    ever at risk.  His blood tests showed only modestly elevated levels of Tylenol,
    and there was no evidence of an overdose on any other medication.

C.

Analysis

First Issue
: Does the evidence
    support a finding of planning and deliberation or criminal harassment?

[25]

The
    appellant submits that a finding of first degree murder under s. 231(2) or s.
    231(6) of the
Criminal Code
would be unreasonable because there was no
    evidence to support a finding of planning and deliberation or criminal
    harassment.  The Crown submits that there was ample evidence to support either
    finding.

[26]

The
    test for an unreasonable verdict is well established.  Here, the appellant must
    show that a properly instructed jury, acting judicially, could not reasonably have
    rendered a verdict of a planned and deliberate murder or a murder while
    committing the offence of criminal harassment.

[27]

Two
    points relevant to this appeal flow from this test.  First, the reasonableness
    of the verdict has to be assessed on the evidence as a whole.  And, second,
    though the appellant can point to innocent explanations for individual pieces
    of evidence, he cannot succeed on this ground of appeal if competing
    explanations are available from which one can reasonably infer planning and
    deliberation or criminal harassment.

[28]

I
    now turn to the two specific questions raised under this ground of appeal.

(1)

Does the evidence reasonably
    support a finding of planning and deliberation?

[29]

Under
    s. 231(2) of the
Criminal Code
, a murder that is planned and deliberate
    is a first degree murder.  Planned means that the accused must have a
    previously formulated scheme; deliberate means slow in deciding, cautious, not
    impulsive.  The accuseds plan need not be complicated but if the murder is
    committed on sudden impulse without consideration, it will not be a planned and
    deliberate murder, even though it is an intentional killing.

[30]

The
    appellant submits that the evidence does not reasonably support a finding that his
    killing of Eugena was planned and deliberate.  Far from planning to kill his
    wife, he wanted to get back together with her.  When he read her Facebook
    message in the early morning hours of June 7, he wanted to go over and discuss
    it with her, hoping that their discussion would lead to reconciliation.

[31]

That
    is perhaps one view of the evidence.  However, a far more reasonable view is
    that the appellants murder of Eugena was indeed planned and deliberate.  After
    Eugena asked for a separation, the appellant became obsessed with getting her
    back.  He was also sexually obsessed with her.  And he was tormented by her
    suspected affair with his co-worker Tim Veal.  His torment escalated when
    Eugena asked for a final separation.  The appellant then realized that the
    marriage he desperately wanted to save was over.  He could not bear losing
    Eugena.  He decided that if he could not be with her, no one could.  He drove
    over to her house in the early morning of June 7 to have sex with her one final
    time and then to murder her.

[32]

The
    following list of considerations and supporting evidence, viewed cumulatively,
    reasonably support the inference that the appellants murder of his wife was
    planned and deliberate.

(a)

After Eugena asked for a separation in January 2007, the appellant was
    obsessed with getting her back.  He called Eugenas father and aunt, with
    increasing frequency, to talk about his marriage and how to make it work.  As
    late as June 2, he asked Eugenas friend Deanna Mizon if she had any ideas
    about how to get Eugena back.

The appellant also went on
    Facebook using a pseudonym, Jeremy Spencer, to see if he could secretly find
    out how Eugena felt about him.  After she accepted his friend request, they
    exchanged Facebook messages in which, under the guise of seeking relationship
    advice, the appellant tried to find out Eugenas feelings about their
    separation.

(b)

The appellant was sexually obsessed with Eugena.  He admitted to Deanna
    Mizon that after he separated from Eugena he went back to the house and peeked
    under the covers as she was sleeping.  He kept photos of Eugena, semi-naked.  And
    he made remarks to an acquaintance that showed his obsession with Eugenas
    appearance.

(c)

The appellant was tormented by Eugenas suspected affair with Tim Veal. 
    He told Eugenas father that he had access to phone records and could tell
    whether Eugena had called Tim or he had called her.  He tried to install a key
    logger on her Mac computer so he could monitor her emails.  And he exchanged
    several MSN messages with Tim Veal about his interference in the marriage.  In
    one of the messages, the appellant lamented that he could not trust Eugena
    anymore.

(d)

The appellant became increasingly depressed and desperate about his
    situation after Eugena told him on June 3 that she wanted a final separation.
    In addition, Eugenas brother testified that he told the appellant that he was
    moving in with her  a development about which the appellant was unhappy.  On
    June 6, the appellant told Eugenas father that he could not take it anymore
    and was driving around feeling very down.  He phoned Eugenas aunt to tell her
    how depressed he was because Eugena had made a final decision and there was no
    hope for their marriage. He did not know how he could live without her.

(e)

The appellant made several statements in the days leading up to June 7,
    probative of both planning and deliberation.  He told Eugena that he could murder
    someone using a lethal, yet untraceable, mixture of nicotine and caffeine.  Eugena
    told her friend that she interpreted this as a threat that the appellant could
    kill himself, or her. When she told the appellant on June 3 that she wanted a
    final separation, he texted her that he wished they could be together one more
    time.

He told Deanna Mizon,
    Eugena wants her life private and I dont want to lose Jaydn.  I dont know
    what I would do to her.  On the morning of June 6, he sent Ms. Mizon a Facebook
    message from Jeremy Spencer, I dont want to be doing this but dont want to
    just make a person disappear.  What do you suggest?  And on the morning of
    June 7, he called Eugenas father and said simply, this is goodbye.

(f)

Although Eugenas Facebook message sent in the early morning of June 7
    in substance told the appellant to back off, he nonetheless went over to her
    house after he read it.  He did so unannounced, climbed into Eugenas bed while
    she was sleeping, and put one hand on her mouth and the other on her throat.

(g)

The appellant made two statements around the time of Eugenas death that
    were also probative of planning and deliberation.  Right after killing Eugena,
    he called her aunt and said I wish I could have been stronger. I listened to
    my mind.  Eugena is dead.  He used Eugenas cell phone to unsubscribe her from
    Tim Veals status updates on Facebook, and drafted a text message saying,
    dont count on hearing from either of us again.  Although the appellant
    contends that conduct after a killing cannot support an inference of planning
    and deliberation, common sense and case law suggest otherwise: see
R. v.
    Poitras
(2002), 57 O.R. (3d) 538 (C.A.); and
R. v. Penney
, [2004]
    O.J. No. 5914 (S.C.).

(h)

Months after the killing, while in custody at the Royal Ottawa Hospital,
    the appellant made a statement to nurses, suggestive of a planned and
    deliberate murder. He said, I know I probably shouldnt say this, but like the
    thought of choking someone and having sex with them makes me horny, but I feel
    like Im betraying my wifes memory.

[33]

From
    all of this evidence, a jury could reasonably infer that the appellants murder
    of his wife was planned and deliberate.  Therefore, a verdict of first degree
    murder on the basis of planning and deliberation would not be unreasonable.

(2)

Does
    the evidence reasonably support a finding of criminal harassment?

[34]

To
    obtain a conviction for first degree murder under s. 231(6) of the
Code
,
    the Crown had to prove beyond a reasonable doubt the underlying offence of
    criminal harassment under s. 264, and the added mental element under s.
    231(6).  Section 264 has two branches: the Crown had to show that the appellant
    engaged in harassing conduct by repeatedly following or communicating with
    Eugena, or watching her or engaging in threatening conduct towards her; and
    that this harassing conduct caused her to fear for her safety.  Section 231(6)
    required the Crown to show that the appellant intended to cause Eugena to fear
    for her safety.

[35]

The
    first branch of s. 264 is not contentious.  The appellant monitored Eugenas
    phone calls, tried to install tracking devices on her computer, tried to break
    into her email and MSN accounts, used a pseudonym on Facebook to communicate
    with her, and even went to her house at night to look at her under the covers
    while she was sleeping.  This was unquestionably harassing conduct.

[36]

However,
    the appellant submits that there was no evidence to support a finding under the
    second branch of s. 264 because Eugena was unaware of most of his harassing
    conduct.  Moreover, he argues that his conduct did not cause her to fear for
    her safety because she allowed him to work at the house, did not ask for his
    house key back, and continued to exchange messages with him on Facebook,
    knowing that he was Jeremy Spencer.

[37]

I
    do not agree with this submission.  The evidence of Eugenas girlfriends shows
    that Eugena was well aware of much of the appellants harassing conduct and
    that this conduct worried, upset, and scared her.  That she did nothing about
    it, continued to communicate with the appellant, let him come to the house, and
    even let him work there, is, as the appellant argues, open to the inference
    that she did not fear for her safety.  But this evidence is open to the
    competing inference that though Eugena feared for her safety, she was even more
    fearful the appellant would do something drastic if she pushed him further away.

[38]

A
    most telling piece of evidence is her conversation with her friend Amanda
    Harding just days before she was killed.  She told Ms. Harding of the
    appellants threat he could kill someone with a lethal mixture of caffeine and
    nicotine.  Eugena was crying and upset when she related the appellants threat
    to Ms. Harding.  She was afraid that if she left the appellant, he would kill
    himself, or her.

[39]

I
    am satisfied that the jury could reasonably infer from the evidence that the
    appellants harassing conduct caused Eugena to fear for her safety.

[40]

That
    leaves the added mental element under s. 231(6).  The appellant contends that
    there was no evidence from which the jury could infer he intended to cause
    Eugena to fear for her safety.  I do not agree with the appellants contention.

[41]

The
    case law shows that a single act can amount to criminal harassment: see
R. v.
    Kosikar
(1999), 138 C.C.C. (3d) 217 (Ont. C.A.), at para. 26, leave to
    appeal to S.C.C. refused, [1999] S.C.C.A. No. 549.  By extension, the added
    mental element in s. 231(6) of the
Code
can also be inferred from a
    single act.  That single act occurred in the early morning of June 7, 2007. 
    Eugenas Facebook message to Jeremy Spencer told the appellant not to push her;
    to step back; to take charge of his life, not hers.  Yet on reading this
    message, the appellant went to Eugenas house in the middle of the night, did
    not tell her he was coming, and climbed into her bed while she was sleeping.
    From this evidence, the jury could reasonably infer that the appellant intended
    to cause his wife to fear for her safety and that he realized his actions would
    do so.  That she did fear for her safety is borne out by his testimony that
    she freaked out.  That she was right to be afraid is borne out by the
    appellants response to her reaction: he put one hand on her mouth and the
    other on her throat.

[42]

I
    would not give effect to this ground of appeal.

Second Issue
: Did the decision
    tree mislead the jury?

[43]

The
    trial judge gave the jurors a printed decision tree to take with them to the
    jury room during their deliberations.  The decision tree specified that to
    decide whether the appellant was guilty of first degree murder under s. 231(6),
    the jury had to answer two questions. First, did the appellant commit the
    offence of criminal harassment?  If the answer to this question was yes, did
    the appellant murder Eugena Smith while committing the offence of criminal
    harassment?

[44]

The
    appellant submits that what was missing from the decision tree was the added
    element the Crown must prove to convict him under s. 231(6) of the
Code
:
    that he intended to cause Eugena to fear for her safety.  The appellant argues
    that the trial judges instructions in his charge did not compensate for this
    shortcoming in the decision tree, especially as the charge was given orally,
    while the decision tree was printed and available to the jurors during their
    deliberations.  The appellant points out defence counsel at trial objected to
    the omission in the decision tree of a question on the mental element under s.
    231(6), but the trial judge refused to add this question.

[45]

I
    would not give effect to the appellants submission.  Twice, the trial judge
    told the jury that the decision tree was merely a flow chart to aid their
    deliberations, that it did not contain the elements of the offences, and that
    he would instruct them on those elements.  He said:

Now this is sort of a flowchart and it may be an assist for you
    when you go back to your room.  Now, I am going to come in a moment to discuss
    the essential elements of the definition of murder and first degree murder. 
    What this document does not do is define that for you.  So, do not think that,
    in these questions, is what this case is all about, it is simply a flow.  Do
    you understand that?  I will discuss, in a moment, unlawful act, the intention
    for murder, sexual assault and harassment and so forth in some detail.  You can
    see looking at the document the detail is not there but you must incorporate
    completely the definitions as I give them to you.  Life in this case is not so
    simple as to think you can simply answer these questions.  It helps you go
    through it but it does not give you the essential elements, the meaning of the
    essential elements of murder, planning and deliberation, sexual assault, series
    of events and so on and so forth.  Understood? Okay.

[46]

And
    then later in this charge he returned to the decision tree:

Now the decision tree, to go back to it, is a helpful guide and
    will provide a framework for the step-by-step process which I tell you you
    should follow at arriving at a verdict in relation to Mr. Smith.  To repeat,
    however, it does not contain the essential elements.  I have defined those for
    you.  That is what I have been talking about for the last hour-and-a-half or
    so.  To repeat, this is not meant to be, this charge, in any sense a test of
    your memory.  If you wish that I repeat something later then you can ask that
    in the form of a question or instruction on a piece of paper, written and
    handed to Madam Constable and I am happy to oblige.

[47]

In
    addition, at least three times in his charge, the trial judge instructed the
    jury on the mental element the Crown must prove under s. 231(6).  For example,
    he told them:

And finally, it must be established beyond a reasonable doubt
    that the accused knew that Eugena Smith was harassed and he intended or meant
    her to fear for her safety.  All of these elements of the offence must be
    established beyond a reasonable doubt.

[48]

Finally,
    in a brief recharge on criminal harassment, at the defences request, the trial
    judge reminded the jury that the appellant testified he went to see his wife in
    the early morning of June 7 to discuss her Facebook message.  This recharge reinforced
    the appellants position that he had no intention of harming or scaring Eugena.

[49]

For
    these reasons, I conclude that the decision tree did not mislead the jury. 
    Accordingly, I would not give effect to this ground of appeal.

Third Issue
: Did the trial judge
    err by failing to give a proper
W.(D.)
instruction?

[50]

The
    Supreme Court of Canadas judgment in
R. v. W.(D.)
, [1991] 1 S.C.R. 742,
    has likely been cited more often than any other case in Canadian criminal law. 
    In that judgment, at p. 758, Cory J. proposed a three-step formula for
    assessing credibility:

First, if you believe the evidence of the accused, obviously
    you must acquit.

Second, if you do not believe the testimony of the accused but
    you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the
    accused, you must ask yourself whether, on the basis of the evidence which you
    do accept, you are convinced beyond a reasonable doubt by that evidence of the
    guilt of the accused.

[51]

The
    purpose of this formula is to ensure that triers of fact  judges and juries 
    apply the reasonable doubt standard and do not find an accused guilty because
    they prefer the evidence of the Crown to that of the accused.

[52]

Many
    judges recite the
W.(D.)
formula word for word in their jury charges. 
    However, as recent case law has shown, a precise incantation of the
W.(D.)
formula is not required.  What is required is that, in their charges, judges
    explain the substance of
W.(D.)
to the jury.

[53]

The
    trial judge in this case did not give a standard
W.(D.)
instruction to
    the jury.  Although acknowledging that a standard instruction was not
    necessary, the appellant nonetheless submits that the instructions the trial
    judge did give did not convey the substance of
W.(D.)
to the jury. 
    They did not, the appellant contends, explain the second and third steps in
W.(D.)
,
    and in particular, did not explain how the jury should assess his evidence.

[54]

I
    do not agree with the appellants submission.  This case did not lend itself to
    a standard
W.(D.)
instruction, because even if the appellants
    evidence raised a reasonable doubt, he was not entitled to an acquittal.  In
    his evidence, he acknowledged that he strangled his wife.  Thus, at the very
    least, even on his own evidence that he did not do so intentionally, he was
    guilty of manslaughter.

[55]

The
    trial judge recognized the inapplicability of a standard
W.(D.)
instruction and therefore appropriately decided the substance of
W.(D.)
had to be explained differently to the jury.  The trial judge did this in two
    ways.

[56]

First,
    he instructed the jury on the presumption of innocence and the Crowns burden
    to prove the case against the appellant beyond a reasonable doubt.  In doing
    so, he expressly told the jury that rejection of the accuseds evidence is not
    evidence of guilt:

In this case Mr. Smith gave evidence and so I have this
    instruction for you with respect to his evidence from the witness box.  When he
    gave evidence he was under no obligation to do so.  However, when a person charged
    with a crime gives evidence he is no different from any other witness.  My
    earlier instruction on how you may approach the assessment of a witness on
    credibility and reliability applies with equal force to the evidence of the
    accused from the witness box.  Like other witnesses, you may believe some, none
    or all of what he said.  In other words, you will consider the evidence of Mr.
    Smith by applying the same approach to his credibility as you will with the
    other witnesses.  I remind you, however, that there is no obligation on the
    accused to prove anything whether the accused gives evidence or not.  Rejection
    of the accuseds evidence is not evidence of guilt.  The obligation is always
    on the Crown to prove its case beyond a reasonable doubt.

[57]

The
    trial judge then elaborated on how to assess the appellants evidence and on
    the Crowns burden of proof:

Issues of credibility and the proper inferences to be drawn
    arise between the Crown and the accused in this case.  In arriving at your
    verdict you should know that your obligation does not include having to make
    the choice of accepting the Crown evidence or the defence evidence.  The reason
    for that is this.  An either or approach might exclude the possibility that you
    may not accept as true the defence but from that evidence be left, nonetheless,
    with a reasonable doubt.  The either or approach may exclude the legitimate
    possibility that the events of June 6
th
and 7
th
occurred
    in a different way [than] has been suggested by the Crown or by the defence. 
    The issue is not which version is true but whether, on all the evidence
    including the evidence of the accused and Dr. Booth, the Crown has proved
    beyond a reasonable doubt the offence charged.

[58]

This
    passage captures the purpose and substance of
W.(D.)
: the jury is not
    to reach a verdict by deciding whether they prefer the Crowns evidence or the
    appellants evidence; rather, the Crown must prove on all of the evidence that
    the appellant is guilty beyond a reasonable doubt.

[59]

Second,
    the trial judge instructed the jury on the substance of the first two steps in
W.(D.)
as he instructed them on the specific counts in the indictment.  For example,
    on whether the murder was planned and deliberate, the trial judge told the jury
    that if they accepted the appellants evidence that there was no planning or
    deliberation, or were left with a reasonable doubt by that evidence, they must
    find the appellant not guilty of a planned and deliberate first degree murder:

If you are satisfied beyond a reasonable doubt that the murder
    of Eugena Smith was both planned and deliberate you will have found the accused
    guilty of first degree murder and your deliberations will be at an end.  You
    will have answered the question in box 3, yes.  If you find planning and
    deliberation, as I have instructed, you answer yes, then you have found the
    accused guilty of first degree murder, in that event your deliberations are at
    an end.

However, if you accept the accuseds evidence of no plan and
    deliberation or it leaves you with a reasonable doubt or, on all the evidence
    including of course his evidence and Dr. Booths evidence, you are not
    satisfied beyond a reasonable doubt that the Crown has established planning and
    deliberation, you will have answered the question at box 3, no, that is in the
    negative and you will then continue to box 4, to the next step in other words,
    to the Crowns allegation of murder in the course of or while committing a
    sexual assault upon Eugena Smith.  Are you with me?

[60]

Similarly,
    the trial judge instructed the jury that if they accepted the appellants
    evidence that he did not kill his wife while sexually assaulting her or were
    left with a reasonable doubt by that evidence, they must find him not guilty of
    first degree murder on that basis:

I would have thought that if you should find as a fact that
    either the accused strangled Eugena Smith while having sex with her or that he
    killed her with the idea or intention that he would return to have sex with her
    [then] you will have answered questions 4 (a) and (b) in the affirmative and
    found the accused guilty of first degree murder.  It goes without saying that
    if you find that there was no sexual assault then he is not guilty of first
    degree murder.  I spent most of the time in this charge talking about whether a
    sexual assault occurred during the course of, or while committing, or was part
    of a series of events.

However, if you accept as true, the accuseds evidence that the
    sex occurred only once and the decision to have sex was made after he realized
    he might die or this evidence leaves you with a reasonable doubt that the
    killing and sexual assault were one transaction, then you will have answered
    box 4 in the negative and you will then move onto  the final two questions in
    box 5.  Let me repeat that.  I will go through those two statements again so
    that you have them straight.

[61]

The
    trial judge omitted  I expect inadvertently  to give a similar instruction on
    the charge of first degree murder by criminal harassment.  However I am
    satisfied that from the instructions I have outlined in this section of my
    reasons, the jury would have understood that if the appellants evidence left
    them in a reasonable doubt about whether he criminally harassed Eugena or
    intended to cause her to fear for her safety, they must find him not guilty of
    murdering his wife while committing the offence of criminal harassment.

[62]

I
    conclude that the trial judge adequately explained the substance of
W.(D.)
to the jury.  He correctly instructed them on the assessment of the appellants
    evidence and on the Crowns burden of proof.  Therefore, I would not give
    effect to this ground of appeal.

D.

Conclusion

[63]

I
    would dismiss the appeal.  The evidence reasonably supported a finding of first
    degree murder on the basis of a planned and deliberate murder or a murder while
    committing criminal harassment, as well as murder while committing sexual
    assault.  Further, the decision tree given to the jurors was not misleading. 
    Finally, the trial judge properly instructed the jury on the burden of proof
    and the assessment of the appellants evidence.

Released: April 25, 2014 (M.R.)

John Laskin J.A.

I agree. M. Rosenberg J.A.

I agree. Gloria Epstein J.A.


