



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Hill,
    2015 ONCA 616

DATE: 20150915

DOCKET:
C55423

Doherty, Gillese and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kent Hill

Appellant

Timothy E. Breen, for the appellant

Tracy Kozlowski, for the respondent

Heard:  July 23, 2015

On appeal from the conviction entered by a jury presided
    over by Justice P. Hambly of the Superior Court of Justice on December 2, 2010
    and the sentence imposed on July 28, 2011.

Doherty J.A.:

overview

[1]

The appellant strangled Tashina General on January 22, 2008.  He was
    charged with second degree murder.  The appellant pled guilty to the included
    offence of manslaughter.  The Crown rejected the plea and the trial proceeded
    on the charge of second degree murder.  The jury convicted.  The trial judge
    sentenced the appellant to life imprisonment without eligibility for parole for
    15 years.  The appellant appeals conviction and sentence.

[2]

The appellant testified at trial and admitted that he had choked Ms.
    General and caused her death.  He advanced two defences.  First, the appellant
    argued that the Crown had not proved beyond a reasonable doubt that he had the
    necessary intent for murder as defined in s. 229(a) of the
Criminal Code
. 
    Second, the appellant argued that if the Crown had proved the requisite intent,
    his offence should be reduced to manslaughter by the operation of the partial
    defence of provocation as defined in s. 232(1) of the
Criminal Code
. 
    Clearly, the jury rejected both defences.

[3]

Counsel for the appellant argues that the trial judge erred in his jury instructions
    on intent and the defence of provocation.  Counsel also submits that the Crown
    improperly cross-examined the appellant on the appellants prior statement to
    the police.

[4]

I see no merit in the complaint about the Crowns cross-examination of
    the appellant.  I am, however, satisfied that there is merit to the other two
    grounds of appeal.  I would allow the appeal and order a new trial on the
    charge of second degree murder for the reasons that follow.

[5]

I do not reach the sentence appeal.

the evidence

[6]

The appellant was 20 years old in January 2008.  He lived with his
    family on the Six Nations Reserve and attended college in the United States.  Several
    witnesses testified that the appellant had an excellent reputation in his
    community.  He was a good athlete and a role model for others.  He was known to
    be considerate, non-violent and kind.

[7]

Ms. General, who was 21 years old in January 2008, lived on the Six
    Nations Reserve with her mother and brother.  They were a close family.  Ms.
    General worked part-time.

[8]

The appellant and Ms. General knew each other for a number of years
    before January 2008.  They were involved in a casual sexual relationship for
    about three years.  The appellant had a girlfriend at the time and Ms. General
    had a boyfriend.

[9]

In November 2007, Ms. General learned that she was pregnant.  She
    initially thought that her boyfriend was the father, but by January 2008, had
    come to believe that the appellant was the father.  Ms. General told friends
    that she had spoken to the appellant about the pregnancy and he did not want
    her to have the baby.  According to the witnesses, the appellant told Ms.
    General that he had definite plans for his future, including university, and
    that a baby would ruin those plans.

[10]

The
    appellant testified that when Ms. General told him he was the father of her
    baby, he asked her to get a DNA test to confirm the paternity.  He said that
    Ms. General seemed prepared to raise the child herself, although she told him
    she needed his signature on a birth certificate so that the baby could be a
    status member of the Six Nations Reserve.  The appellant also indicated that he
    was prepared to help out with the baby if he could.

[11]

On
    January 22, 2008, the appellant was home from college and he and Ms. General
    agreed to meet to talk about the pregnancy.  He picked her up at her home and they
    drove to his house.  At some point in the late afternoon or early evening as
    they were leaving, the appellant strangled Ms. General causing her death.  The
    appellant buried Ms. Generals body in the bush near his home the next day. 
    Ms. Generals mother reported her missing on the January 23
rd
.  Her
    body was not found until April 25, 2008.

[12]

The
    appellant gave two different versions of the events culminating in Ms.
    Generals death at his home on January 22, 2008.  He gave the first version in
    a statement to the police made after his arrest on April 28, 2008, and the
    second version when he testified.

[13]

In
    the first version, the appellant told Detective Bickerton that as he and Ms.
    General were leaving his house, she tripped and fell down a step, landing on
    her knee or shin.  The appellant told the officer that Ms. General looked at
    him and said, If this babys like, this babys gone, its your fault, Im
    telling everyone it was you.

[14]

The
    appellant told Detective Bickerton that he intended to take Ms. General home,
    but she insisted on going to a friends home indicating shell tell her what
    happened.  The appellant continued:  And then I guess everything just,
    everything just hit me at once.

[15]

The
    officer asked what happened next? and the appellant replied:

I dont know, I just grabbed her and I dont know I just like
    start choking her and I dont know like I wanted to stop then I dont know I
    just felt like it was um, I had gone too far  no matter what I did at that
    point nothing could help me.

[16]

Later
    in the statement, Detective Bickerton asked the appellant to explain how he had
    choked Ms. General.  That question led to the following exchange:

(Kent HILL)  Um, ah, Im tryin to remember. Um, I just like,
    my thumbs were like this.

(Det BICKERTON)  With your thumbs?

(Kent HILL)  Yeah.

(Det BICKERTON)  With your hands up to her throat?

(Kent HILL)  Yeah.

(Det BICKERTON)  I mean youre a big strong guy and things
    probably didnt last too long.  How long do you think it, the whole thing
    lasted?

(Kent HILL)  Like three minutes or something like that.

(Det BICKERTON)  Three minutes?

(Kent HILL)  Maybe yeah.

[17]

In
    his trial version of the events, the appellant testified that he and Ms.
    General spent the afternoon at his home.  They talked about her pregnancy.  They
    were getting along well until Ms. General said she wanted to have sex with the
    appellant and he declined.  According to the appellant, Ms. Generals mood
    changed at that time.  They decided to leave the appellants home and return to
    Ms. Generals home at about 5:30 p.m.

[18]

As
    the appellant and Ms. General were leaving his home, she fell down the flight
    of steps from the porch at the back of the home.  Ms. General told the
    appellant that if she lost the baby, she would tell everyone that he had thrown
    her down the steps.  She was screaming obscenities at him and he could not calm
    her down.

[19]

The
    appellant and Ms. General walked towards his vehicle.  Ms. General slipped and
    fell a second time about five feet from the car.  She said, Im telling
    Shannon [her friend] what you did to me. The appellant testified that Ms.
    General was frantic, angry and continued to hurl obscenities at him.  Ms.
    General then struck the appellant with her right hand across the face, knocking
    his glasses off.  He testified that he put his hands on Ms. Generals shoulders
    to restrain her, but she continued to strike out and swear at him.

[20]

The
    appellant testified that he snapped.  He could not remember what he did next,
    but he recalled his hands being around Ms. Generals neck and releasing his
    grip on her neck.  She was lying motionless on the ground and did not have a
    pulse.

[21]

The
    appellant took Ms. Generals body into the barn on his property and covered
    it.  He went back to his house, washed up and went over to a cousins home for
    the night.  The next day, the appellant returned to his home, removed most of the
    clothing from Ms. Generals body, put her body in a sleeping bag, and dragged it
    into the bush near his house.  The appellant dug a grave and buried Ms.
    Generals body.  He eventually burned the sleeping bag and Ms. Generals
    clothing.

[22]

The
    appellant lied to various people about Ms. Generals whereabouts.  In early
    March 2008, Ms. Generals mother learned that the appellant had visited Ms.
    General on the day she disappeared.  She spoke with the appellant and asked
    about her daughters whereabouts.  The appellant told her that he had visited
    Ms. General and that they had driven around for a while.  She then asked the
    appellant to drop her off near to where she worked.  The appellant told Ms.
    Generals mother that he had not seen her since.

[23]

The
    police spoke to the appellant on March 16, 2008.  He confirmed that he had seen
    Ms. General on the day she disappeared and that they had discussed her
    pregnancy.  She told him that he was the father.  The appellant indicated he
    doubted that he was the father.  The appellant told the police that he had
    dropped Ms. General off near the pizza shop where she worked.  He had not seen
    her since.

[24]

The
    appellant spoke to the police again on March 20
th
and April 7
th
. 
    He basically repeated the story he had told the police on March 16
th
. 
    He added more detail about his casual sexual relationship with Ms. General.  He
    told the police that he doubted that he was the father of her child because he
    had worn a condom.  He also described Ms. General as promiscuous and identified
    other people who had sex with her.  In the April 7
th
meeting with
    the police, the appellant was specifically asked whether he had harmed Ms.
    General.  He replied, no way.

[25]

In
    late March, the appellant sent an email to his former girlfriend in which he
    set out a rather elaborate lie concerning his contact with Ms. General
    immediately before she disappeared.  He portrayed himself as having been
    abandoned by his former girlfriend, and as a friend who was prepared to lend a
    sympathetic ear to Ms. Generals troubles.  The appellant told his former
    girlfriend that Ms. General had changed her mind about speaking to the
    appellant and that he had dropped her off at her request.

[26]

In
    early April, the appellant forged a letter purportedly from Ms. General to her
    mother.  He left the letter in a neighbours mailbox with directions that it should
    be delivered to Ms. Generals mother.  In the letter, the appellant, pretending
    to write as Ms. General, apologized to her mother for leaving suddenly,
    indicating that she was fine, but would not be home for a while.  The neighbour
    who received the letter called the police and turned the letter over to them.

[27]

After
    the police discovered Ms. Generals body, the appellant knew he would be
    arrested.  He fled, but was arrested the next day in North Bay.

[28]

The
    appellant offered various explanations for his conduct between Ms. Generals
    death and his eventual arrest.  He testified that immediately after strangling
    Ms. General, he could not believe what had happened.  By the next day, he was
    remorseful and afraid that his actions would bring dishonour on his family.  The
    appellant also acknowledged that he was afraid of being questioned by the
    police and charged with the homicide.

[29]

The
    pathologist who performed the autopsy on Ms. Generals body could not give a
    precise opinion as to how long the appellant had applied force to Ms. Generals
    neck.  Based primarily on the bruising to the neck, he concluded that it was
    most likely that the force was applied for between two and four minutes.  He
    agreed that this was a broad estimation.

[30]

The
    post-mortem revealed bruising on Ms. Generals legs consistent with her falling
    or being pushed to the ground.  The appellants DNA was found under Ms.
    Generals fingernails.

[31]

The
    post-mortem confirmed that Ms. General was pregnant.  DNA from the appellant
    was consistent with the DNA profile of the fetus.

the conviction appeal

A.

The Cross-Examination of the Appellant

[32]

The
    appellant gave a 1½ hour videotaped statement to Detective Bickerton, the
    investigating officer, shortly after his arrest on April 28, 2008.  In the interview,
    Detective Bickerton presented himself as very sympathetic to the appellants
    position.  The officer explained that he used a blame the victim technique to
    encourage the appellant to talk about what had happened.

[33]

The
    appellant eventually described strangling Ms. General by the car after they had
    left his house.  He described how he put his hands around Ms. Generals throat
    and applied pressure.  Despite being given opportunities to do so by Detective
    Bickertons questions, the appellant made no reference in the course of the
    lengthy interview to any verbal abuse or physical assault by Ms. General.

[34]

The
    admissibility of the statement was not challenged at trial.

[35]

In
    his examination-in-chief, the appellant described at length Ms. Generals
    assaults and abusive language that immediately preceded the strangulation.  He
    also professed to have no recollection of the actual strangulation.

[36]

Counsel
    for the appellant (not Mr. Breen), during examination-in-chief made two or
    three references to the appellants statement to Detective Bickerton on April
    28
th
.  The most significant occurred in an exchange near the end of
    the examination-in-chief:

Q. Why, in your confession to the police, I know its not
    terribly detailed, but you dont mention in there about Tashina [Ms. General]
    striking you in the face?  Why is that?

A. I did not think that made any relevance because at the time
    I was 63, 215 pounds.  Like I, Im a very athletic person and she was a lot
    smaller than me.  I, I didnt think that made any relevance.

[37]

Not
    surprisingly, much of the appellants cross-examination focused on the many statements
    the appellant had made to the police and others denying any involvement in Ms.
    Generals death.  That cross-examination included extensive references to the appellants
    April 28
th
confession to Detective Bickerton.  The appellant
    acknowledged that when he spoke to Detective Bickerton, he was pouring his
    heart out and wanted to tell the truth so that Detective Bickerton would understand
    exactly what happened.

[38]

In
    the course of the cross-examination, Crown counsel confronted the appellant
    with the absence of any reference in the statement to Ms. General repeatedly swearing
    at the appellant and hitting him in the face immediately before he strangled
    her.  The appellant responded that he was traumatized and very emotional
    while giving the statement.  He indicated that the statement omitted many
    details.

[39]

Crown
    counsel also cross-examined the appellant about the detailed description of the
    strangulation he had given in the statement.  The appellant insisted that he
    could not recall those details at trial, but could only remember letting go of
    Ms. Generals neck.  He also could not recall whether Ms. General fought back
    while he strangled her.  Eventually, the appellant testified that he did not
    lie in his statement to Detective Bickerton, but that theres a lot left out.

[40]

Ultimately,
    the Crown suggested to the appellant that his evidence was significantly
    different than his statement to Detective Bickerton because he was attempting to
    put himself in a much better light than he had when he confessed to Detective Bickerton. 
    The appellant denied that suggestion.

[41]

There
    was no objection to any part of Crown counsels cross-examination of the
    appellant on his April 28
th
statement to Detective Bickerton.

[42]

On
    appeal, counsel submits that the cross-examination amounted to an invitation to
    the jury to use the accuseds silence either as evidence of guilt or to impeach
    the credibility of his trial testimony.  Counsel submits that an accuseds
    failure to provide details in a statement to the police amounts to the exercise
    of the right to silence and that cross-examination about the failure to provide
    such details is the same as cross-examination on the exercise of the right to
    remain silent.

[43]

With
    few exceptions, an accuseds exercise of his right to silence when questioned
    by the police cannot be used as circumstantial evidence of guilt or to impeach
    the credibility of the accuseds trial testimony:
R. v. Turcotte
(2005), 200 C.C.C. (3d) 289, at paras. 46-58 (SCC);
R. v. Palmer
,
    [2008] O.J. No. 4753, at para. 9.  An accused who testifies can, however, be
    cross-examined on prior inconsistent statements, assuming those statements are
    admissible:
R. v. Paris
, [2000] O.J. No. 4687, at para. 41. 
    Cross-examination on a prior inconsistent statement may be used to impeach the
    credibility of the accused, or in an attempt to have the accused adopt the
    prior statement as true.

[44]

Counsel
    for the appellant submits that cross-examination on inconsistencies between a
    prior statement and trial testimony cannot extend to cross-examination on
    omissions from the prior statement.  On this approach, Crown counsels
    cross-examination of the appellant about his failure to mention Ms. Generals
    verbal abuse and assault would infringe the appellants right to silence, but
    Crown counsels cross-examination on the inconsistency between the appellants
    recollection of the act of strangling Ms. General in his statement and his
    inability to recall any of those details at trial would be appropriate.

[45]

With
    respect, the distinction counsel attempts to draw is not tenable.  Omissions
    can be integral to the existence of material inconsistencies between two
    versions of events.  An account of an event which leaves out important details may
    be viewed as inconsistent with a subsequent account that includes those
    details.

[46]

The
    propriety of cross-examination on a prior statement made by an accused to the
    police turns on the purpose of the cross-examination.  If the cross-examination
    is designed to challenge the credibility of an accuseds testimony based on
    inconsistencies between that testimony and a previous version of events
    provided by the accused, the cross-examination is appropriate.  If, however,
    the cross-examination invites the trier of fact to draw an adverse inference
    from the accuseds silence when questioned by the police, the cross-examination
    is inappropriate.  Sometimes, both purposes may be in play.  A trial judge can refuse
    or limit cross-examination on the prior statement when there is a legitimate
    concern that the cross-examination may trespass improperly on the accuseds
    right to silence.  The trial judge may also give a limiting instruction cautioning
    against misuse of the right to silence if the cross-examination merits that
    instruction.

[47]

This
    cross-examination presented no risk that the jury would draw an adverse
    inference from the appellants silence when questioned by Detective Bickerton. 
    The Crown did not suggest he remained silent about anything.  The
    cross-examination forcefully suggested that the appellants trial version of
    the relevant events was significantly different from his initial version given
    to Detective Bickerton in two important respects.  First, the trial version
    introduced a basis for a provocation claim that was entirely absent from the version
    given to Detective Bickerton.  Second, the trial version excluded the
    appellants description of the actual strangulation as provided in his first
    version of the events.  That description could go a long way to supporting the
    Crowns claim that the appellant intended to kill Ms. General.  These
    significant differences provided ample ground for the Crowns argument that the
    appellants testimony was fabricated in an effort to avoid the full force of
    the confession he had given to Detective Bickerton.  The cross-examination did
    not invite the jury to draw any inference from the appellants silence.

[48]

The
    cross-examination of the appellant on his failure to mention Ms. Generals
    verbal and physical abuse in his initial statement can be justified on a second
    basis.  Counsel for the appellant chose to specifically ask the appellant why
    he did not mention Ms. Generals conduct in his statement to the police.  The
    appellant gave an explanation for his failure to mention Ms. Generals conduct
    (
supra
, para. 35).  Counsels question opened the door to
    cross-examination challenging the appellants explanation for not mentioning
    Ms. Generals conduct.

B.

The Instruction on Intent

[49]

Counsel
    for the appellant submits that the trial judge made two errors in his
    instructions on intent.  First, he wrongly told the jury that the appellants
    conduct after he strangled Ms. General, including the burial of the body and
    the many lies told to the police and others by the appellant, could support an
    inference that the appellant intended to kill Ms. General, or intended to cause
    her bodily harm that he knew was likely to cause her death.  Counsel submits
    that while the appellants conduct provided strong evidence that he had
    unlawfully caused Ms. Generals death, it could not support a further inference
    that he had the
mens rea
required for murder when he strangled Ms.
    General.  Counsel contends that this error was particularly significant.  The
    appellants conduct after the homicide was largely unchallenged and placed the
    appellant in a very bad light.  Counsel submits that, based on the instruction
    given by the trial judge, the jury may well have improperly used that
    unchallenged discreditable conduct to find that the appellant had the necessary
    intent for murder.

[50]

The
    appellant also submits that the trial judge failed to instruct the jury that
    even if it rejected the statutory defence of provocation, it was still required
    to consider the evidence of Ms. Generals alleged provocative acts and the
    appellants reaction to those acts in deciding whether the Crown had proved the
    requisite intent beyond a reasonable doubt.

(i)

Intent and after-the-fact conduct

[51]

At
    trial, the Crown did not take the position that the appellants post-homicide
    conduct was relevant to the appellants state of mind when he killed Ms.
    General.  The Crown argued that the conduct was relevant to the appellants
    credibility as a witness and to rebut the evidence of good character called by
    the appellant.  The defence agreed with the position taken by the Crown.

[52]

The
    trial judge, however, decided that the evidence of the appellants post-offence
    conduct was relevant to the issue of intent.  Under the heading The
    Post-Offence Conduct, the trial judge referred the jury to the evidence that
    the appellant had hid Ms. Generals body in the barn immediately after killing
    her, buried her body the next day, and told various lies to several people,
    including the police, about Ms. Generals whereabouts.  He then told the jury:

The evidence of what Kent Hill did and said after he killed
    Tashina General is not necessarily evidence of intent to murder

Whether what Kent Hill did and said after he killed Tashina
    General were attempts by him to conceal his involvement in assaulting her and
    killing her, as opposed to killing her with the intent which makes the killing
    murder, is for you to decide.  You must not let your natural disapproval of
    what Kent Hill did and what he said, to influence you in the use of this
    evidence to decide the central issue of whether or not he had the intent as
    defined in the law, to murder Tashina General.  You must look at this evidence
    in the context of all of the evidence.

[53]

This
    instruction echoed an earlier more general instruction in which the trial judge
    told the jury that in considering the appellants intention at the time he
    killed Ms. General, the jury should consider the appellants conduct before,
    at the time, and after the unlawful act that caused Tashina Generals death.

[54]

The
    appellant went to some lengths in the hours, days, weeks and months following
    Ms. Generals death to hide the fact that she was dead and that he had killed
    her.  His conduct strongly supported the inference that he had unlawfully
    caused her death.  Did it also support the further inference that he did so
    with the state of mind required for murder under s. 229(a)?

[55]

The
    Crown, on appeal, presents two alternative arguments to support the relevance
    of the appellants post-offence conduct to his state of mind at the time he
    killed Ms. General.  The Crown argues that, as a matter of common sense and
    human experience, a jury could infer that the appellant buried Ms. Generals
    body in an effort to destroy evidence that could show the nature and extent of
    Ms. Generals injuries.  The nature and extent of those injuries could support
    the Crowns case on the issue of intent:  see
R. v. Rodgerson
, 2015
    SCC 38, [2015] S.C.J. No. 38, affg 2014 ONCA 366;
R. v. Teske
, [2005]
    O.J. No. 3759 (C.A.).

[56]

The
    Crown also submits that the appellants burial of Ms. Generals body and his numerous
    lies about her whereabouts could reasonably support the inference that the
    appellant was motivated by a desire to avoid the responsibility of parenthood. 
    The appellants motive dictated not only that he kill Ms. General, but that he
    make her disappear.  On the Crowns argument, if the body was found, tests would
    demonstrate that the appellant was the father of the unborn child, thereby
    revealing his motive to kill Ms. General and potentially identifying him as the
    killer.  The Crown submits that as evidence of motive is relevant to intent,
    evidence of an attempt to hide that motive must also be relevant to intent.

[57]

I
    do not agree that the appellants conduct in hiding and then burying the body
    could be seen as an effort to destroy evidence capable of showing the nature
    and extent of the injuries which in turn were capable of supporting an
    inference of intent.  This was not a situation like
Rodgerson
in which
    the evidence of the injuries to the body, which the accused attempted to
    destroy as well as bury, and the blood at the scene, which the accused
    attempted to clean up, suggested a multi-blow attack consistent only with the
    intention required for murder under s. 229(a).  In this case, the condition of
    the body indicated that Ms. General had been strangled and little else.  The
    bruising on the neck did allow the pathologist to provide a broad estimate as
    to the length of time over which the appellant applied force to Ms. Generals
    neck.  That opinion was potentially significant on the issue of intent.  It is,
    however, farfetched to suggest that the appellant was aware of and appreciated
    the significance of the bruising and took steps to hide the body to avoid
    discovery of the telltale bruising.

[58]

As
    with any inference-drawing process, the primary facts are crucial.  It would be
    unreasonable to infer from the primary facts in this case that the appellant
    hid and buried the body to conceal the nature and extent of the bruising on Ms.
    Generals neck.

[59]

There
    is more substance to the Crowns second argument.  Evidence of motive is
    relevant to identity and to intent:  see
R. v. Luciano
,
2011 ONCA 89, 267 C.C.C. (3d) 16, at
    paras. 113-17.  Evidence of motive can be particularly significant when
    deciding whether an admitted unlawful killing amounted to murder or
    manslaughter.

[60]

Evidence
    that the appellant was the father of Ms. Generals unborn child was an
    important piece of evidence, relied on by the Crown to establish the motive
    alleged by the Crown for the homicide.  The burying of the body by the
    appellant and his attempt to lead others, including Ms. Generals mother, to
    believe she was still alive might reasonably support the inference that the
    appellant knew that the discovery of the body would reveal his motive for
    killing Ms. General and thereby implicate him in the murder.

[61]

Although
    Crown counsels argument connecting some of the appellants after-the-fact
    conduct to intent through proof of motive has merit, it does not assist the
    Crown on the appeal.  The trial judge did not leave the appellants
    after-the-fact conduct with the jury on the limited basis now suggested by the
    Crown.  He invited the jury to consider the after-the-fact conduct that he
    identified (hiding the body, burying the body, lying to various people) as
    evidence of intent without any explanation or qualification. This non-direction
    is identical to the error identified in
Rodgerson
, at para. 28.  The
    trial judges open-ended invitation to the jury to consider the appellants
    after-the-fact conduct as evidence from which it could infer the requisite
    intent for murder constituted an error in law.

[62]

The
    error was potentially significant.  Intent was one of two live issues at
    trial.  Given the nature of the after-the-fact conduct, a jury could easily
    have concluded that the appellant acted in a callous and calculating manner for
    over three months in an attempt to avoid responsibility for his actions.  A
    jury could further conclude that the callous and calculating nature of the conduct
    was consistent with the conduct of a murderer as opposed to someone who had not
    intended to kill Ms. General.  Absent a proper instruction, a jury may well
    have improperly inferred from the nature of the accuseds conduct after Ms.
    Generals death that he killed her with the intent required for murder.

(ii)

The failure to relate the evidence of provocation to the issue of intent

[63]

Apart
    from his instruction that some of the appellants after-the-fact conduct was
    relevant to intent, the trial judge did not relate any of the evidence to the
    issue of intent.  He did tell the jury that it could conclude that the
    appellant intended the natural consequences of his actions when he strangled
    Ms. General.  He also told the jury that it was the defence position that the
    appellant had snapped and had not meant to cause death or bodily harm.

[64]

Counsel
    for the appellant submits that the trial judge should have told the jury that
    the appellants evidence that he snapped in reaction to Ms. Generals verbal
    abuse and physical assault was evidence that the jury must consider in
    determining whether the appellant had the necessary intent for murder.  Counsel
    submits that the appellants evidence concerning his response to Ms. Generals provocative
    acts was logically relevant to his state of mind when he caused her death. 
    Counsel further submits that it was necessary for the trial judge to
    specifically link that evidence to the issue of intent because the trial judge
    did specifically relate that evidence to the statutory defence of provocation. 
    Counsel argues that without an instruction indicating that the evidence was
    also relevant to intent, the jury may well have viewed that evidence as
    relevant only to provocation.  The provocation defence, of course, assumes that
    the appellant had the requisite intent for murder.

[65]

This
    court has held that if evidence is relevant to a specific defence like
    provocation, but also relevant to the issue of intent, the trial judge should
    make both potential uses of the evidence clear to the jury:
R. v. Fraser
(2001), 56 O.R. (3d) 161, at paras.
25-26 (Ont. C.A.);
R.
    v. Flores
,
2011 ONCA 155,
    269 C.C.C. (3d) 194, at paras.
72-85. In
Flores
, Watt J.A., at
    para. 75, explained why evidence relevant to both intent and a discrete defence
    should be related separately to both issues by the trial judge:

In the end, whether by express words or otherwise, what jurors
    must understand is that, in deciding whether the prosecutor had proven either
    state of mind essential for an unlawful killing to be murder, they must
    consider all of the evidence that sheds light on the accuseds state of mind at
    the time of the killing, even if they have rejected the specific defence,
    justification or excuse to which that evidence is also relevant.

[66]

The
    trial judge should have specifically told the jury that apart from the defence
    of provocation as he had explained it to them, the jury should consider the
    appellants evidence concerning his response to Ms. Generals alleged verbal
    and physical abuse when determining whether the appellant had the requisite
    intent for murder.

C.

The Provocation Instruction

(i)

Was the defence available on the evidence?

[67]

Before turning to the alleged errors in the instruction on provocation, I
    will address the Crowns argument that any errors in the instruction are
    irrelevant as the defence should not have been left with the jury.  The Crown
    contends that there was no air of reality to the defence as that term was
    explained in
R. v. Pappas
, 2013 SCC 56, [2013] 3 S.C.R. 452, at para.
    21:

The question is whether a properly instructed jury, acting
    reasonably, could be left in a state of reasonable doubt as to whether the
    accused is guilty of murder on the basis of the defence of provocation.  There
    must be an evidential foundation for both the objective and subjective elements
    of the defence, which s. 232(3) of the
Criminal Code
states are
    questions of fact.

[68]

The
    limited weighing of the evidence contemplated by the air of reality test
    requires that the trial judge determine whether the evidence viewed as a whole
    is reasonably capable of supporting a credible narrative of events that would
    warrant an acquittal on the charge of murder by a jury properly instructed on
    the elements of provocation.  A credible narrative does not exist where the
    only evidence of provocation consists of isolated shreds of evidence ripped
    from the context of the narrative as a whole.

[69]

The
    appellants trial evidence, and to a lesser extent parts of his statements to
    Detective Bickerton, provided an evidentiary basis upon which a jury could have
    a reasonable doubt as to whether the appellant, in strangling Ms. General,
    acted on the sudden in response to the unanticipated verbal and physical abuse
    from Ms. General.  His evidence provided a basis upon which the jury could
    conclude that the provocative conduct came upon the appellant on the sudden and
    that he reacted immediately to the provocative conduct:  see
Pappas
,
    paras. 34-38.

[70]

The
    Crowns submission that there is no air of reality to the provocation defence
    is strongest in respect of the objective component of that defence.  One is
    hard pressed to conclude that an ordinary person of the appellants age and in
    the circumstances of the appellant would lose control and kill Ms. General
    because of the relatively minor assault and insults directed at him by her. 
    However, as pointed out in
Pappas
, at para. 33:

What would suffice to cause an ordinary person to lose
    self-control is a question of degree that the jury is well placed to decide,
    and which, in cases of doubt should be left to the jury.

[71]

I
    would characterize this as one of those cases of doubt.  Unless the jury
    entirely rejected the appellants testimony, the defence of provocation was
    available.

(ii)

The alleged errors in the provocation instruction

[72]

The appellant alleges five errors in the trial judges instruction on
    provocation.  Most of the submissions target the trial judges response to the
    jurys question seeking clarification of the definition of loss of
    self-control as it related to the ordinary person test.  Three of the
    submissions can be addressed summarily.

[73]

The
    appellants contention that the trial judges response to the question reversed
    the burden of proof on provocation ignores the trial judges repeated correct instructions
    on the burden in his initial charge.  The jurys question was not addressed to
    the burden of proof.  Nor was the answer.  The jury would not have been misled
    as to the burden of proof by the trial judges response to their question.

[74]

The
    appellant submits that the trial judge misstated the evidence in his response
    to the jury.  The trial judges indication that the only evidence of what the
    appellant did in response to the alleged provocative conduct of Ms. General
    came from the respondents statement was not an unfair description of the state
    of the evidence.  In his trial testimony, the appellant purported to have no
    recollection of what he did in response to Ms. Generals verbal and physical
    abuse.  His first recollection was releasing his grip from her throat.

[75]

The
    appellants submission that the trial judges response to the jurys question
    wrongly described provocation as negating intention cannot be accepted.  In the
    impugned passage, the trial judge simply reminded the jury that it was the
    Crowns position that the appellant had never lost control and had
    intentionally choked Ms. General.  This brief articulation of the Crowns
    position would not have confused the jury as to the operation of the defence of
    provocation.

[76]

Two
    arguments arising out of the provocation instruction require a more detailed
    analysis.  The trial judge told the jury that in considering whether the
    ordinary person would have been deprived of the power of self-control by the
    alleged provocative acts, the jury should endow that ordinary person with the
    same physical makeup as the appellant, and should consider the relative sizes
    of the appellant and Ms. General.  The appellant was 62, 215 pounds and a
    well-conditioned athlete.  Ms. General was 55 and weighed 140 pounds.

[77]

Counsel
    submits that the trial judge erred in instructing the jury that the appellants
    size and physical condition, as well as the relative sizes of the appellant and
    Ms. General were relevant to a determination of whether the ordinary person
    would have lost control.  He contends that this instruction, especially when coupled
    with the Crowns closing argument in which Crown counsel urged the jury to
    consider the reasonableness of the appellants response to the alleged provocative
    acts, would suggest to the jury that the provocation defence was available only
    if the response to the provocation was justified or at least proportional to
    the provocative conduct.  Counsel argues that killing under provocation can be
    the antithesis of a proportional response and still fall within the partial
    defence created by s. 232:  e.g. see
R. v. Squire
(1975), 29 C.C.C.
    (2d) 219, at 234 (Ont. CA.), revg on other grounds (1976), 29 C.C.C. (2d) 497
    (SCC),
contra
Mancini v.
    D.P.P.
, [1942] A.C. 1 at 9.

[78]

The
    ordinary person or objective component of the provocation defence is embedded
    in the language of s. 232(2) which requires that the provocative act must be
    sufficient to deprive an ordinary person of the power of self-control.  This
    objective component of the defence imposes a minimum standard of self-control
    on all members of the community and seeks to reflect the fundamental values
    that animate and order Canadian society:
R. v. Hill
, [1986] 1 S.C.R.
    313, at paras. 17-18;
R. v. Tran
, 2010 SCC 58, [2010] 3 S.C.R. 350, at
    paras. 30-34;
R. v. Cairney
, 2013 SCC 55, [2013] 3 S.C.R. 420, at
    para. 37.

[79]

The
    ordinary person, for the purposes of s. 232(2), is a sober person of normal
    temperament who is not exceptionally excitable or pugnacious:
R. v. Hill
,
    at para. 34.  The ordinary person also assumes any general characteristic of
    the accused that is relevant either to the level of self-control expected of a
    normal person, e.g. age, or to the significance of the provocation in question,
    e.g. race if the provocative act is a racial slur.

[80]

The
    impact of the provocative act on the ordinary person must also be contextualized,
    meaning it must be considered in the context of the circumstances faced by the
    accused.  The question is  would an ordinary person, placed in the
    circumstances of the accused, be deprived of the power of self-control?  The
    circumstances for the purposes of the ordinary person inquiry include any factor
    relevant to the gravity of the provocation:
R. v. Hill
, paras. 35-37;
R.
    v. Cairney
, at para. 38; K. Roach, Criminal Law, 5
th
ed., Owen
    Law Inc. 2012, at p. 418.

[81]

The
    trial judge told the jury:

In this case an ordinary person would be someone of the same
    age and gender as Mr. Hill, who shares with him those other characteristics
    that would give the wrongful act or insult a special significance in the
    circumstances.  The ordinary person would also be one who has experienced the
    same series of acts or insults as Mr. Hill, and shares the past history and
    relationship between Mr. Hill and Tashina General.

[82]

This
    instruction contextualizes the ordinary person standard in accordance with
Hill
and subsequent cases from the Supreme Court of
    Canada.  However, the trial judge went on to say
:

Even if you accept Mr. Hills evidence, you will consider
    whether the ordinary person who is 62, 215 pounds and a well-conditioned
    athlete, would lose his self-control because of the conduct of a woman who is
    55 and 140 pounds.

[83]

In
    response to the jurys question, the trial judge again referred to the
    appellants size and athletic prowess:

If you accept that immediately before his doing this, that
    Tashina General did and said the things he said she did and said, the question for
    you to decide is whether this conduct was sufficient to deprive an ordinary
    person of Mr. Hills objective characteristics, namely, male, age 20, 62 215
    pounds, and a well-conditioned athlete, to lose self-control and to do the
    things that he told Detective Bickerton he did.

[84]

The
    general characteristics of an accused, which should be attributed to the
    ordinary person and the factors that will affect the gravity of the provocation
    for the purposes of the ordinary person test, will depend on the specifics of
    the evidence in each case.  The loss of control essential to a provocation
    claim will in most cases be the product of extreme anger or rage.  On occasion,
    the loss of control will flow from extreme fear or a combination of fear and
    anger:  see G. Williams, Textbook of Criminal Law, (1978) Stevens and Sons
    London, at p. 477.  The appellants provocation claim had nothing to do with
    any alleged fear of Ms. General.  This was a pure rage-based provocation
    claim.  The characteristics to be attributed to the ordinary person and the
    factors to be taken into account in assessing whether an ordinary person would
    have lost control must have regard to the nature of the provocation claim
    advanced by the appellant.

[85]

The
    appellants size and athletic ability are not characteristics that have any inherent
    relevance to the degree of self-control expected of an ordinary person.  Large
    people or good athletes are not expected to have more or less self-control than
    small people who are not athletic.

[86]

It
    is unnecessary to fix the ordinary person with the appellants size and
    athletic ability to properly assess whether the alleged provocative conduct was
    sufficient to cause an ordinary person to lose the power of self-control.

[87]

Finally,
    the difference in size between the appellant and Ms. General is not a factor that
    is necessary to a proper understanding of the potential effect of the
    provocative conduct on the ordinary person.  Were this a case in which the alleged
    loss of control by the appellant was at least partially fear-based, the
    relative sizes of the provocateur and the appellant may have been relevant to a
    consideration of whether the ordinary person would have lost control.  However,
    this provocation claim was entirely rage-based.  In my view, the relative sizes
    of the appellant and Ms. General did not have any relevance in the
    circumstances of this case to an assessment of the impact of the alleged provocative
    conduct on the ordinary person component of the provocation test.

[88]

The
    trial judge erred in referring to the appellants size and athletic ability and
    the difference in size between the appellant and Ms. General when instructing
    the jury on the ordinary person component of the provocation defence.  There is
    merit to the submission that by inviting the jury to compare the respective
    size of the appellant and Ms. General as part of the ordinary person test, the
    jury may have taken the trial judge to be instructing them that the reasonableness
    or even justifiability of the appellants response to Ms. Generals provocative
    acts was a relevant consideration in the application of the ordinary person
    test.  Unlike some defences, e.g. self-defence and duress, provocation does not
    measure the conduct of the accused against standards of reasonableness or
    proportionality:
R. v. Tran
, at para. 22; W. Renke, Calm like a Bomb: 
    An Assessment of the Partial Defence of Provocation (2010), Vol. 47 No. 3
    Alta. L. Rev. 729 at p. 746;
R. v. Timoti
, [2005] NZSC 37, at paras.
    33-43.  It was certainly no part of the appellants provocation claim that he
    acted reasonably or with justification.  The instruction may have undermined
    the provocation defence by inviting the jury to measure the viability of that
    defence against the justifiability or reasonableness of the appellants
    conduct.

[89]

The
    appellants last argument advanced in relation to the provocation instruction
    focuses on the very last words that the trial judge said to the jury in
    response to their question about provocation.  His instructions are quoted
    above (para. 83).  For convenience, I will repeat them here:

If you accept that immediately before his doing this, that
    Tashina General did and said the things he said she did and said, the question
    for you to decide is whether this conduct was sufficient to deprive an ordinary
    person of Mr. Hills objective characteristics, namely, male, age 20, 62 215
    pounds, and a well-conditioned athlete, to lose self-control and to do the
    things that he told Detective Bickerton he did.

[90]

Counsel
    for the appellant submits that the trial judge erred in telling the jury that
    the ordinary person test required that the provocative conduct be sufficient to
    cause an ordinary person, not only to lose self-control, but to do the things
    that he [the appellant] told Detective Bickerton he did.  He submits that s.
    232(2) speaks only to the ordinary persons loss of control and does not
    require the jury to consider whether the ordinary person, having lost control,
    would have done exactly what the accused did.  Counsel contends that the
    ordinary person test is intended to protect against affording a defence to persons
    whose conduct does not conform to the minimum level of self-control expected of
    everyone in the community.  He argues that the purpose of the objective component
    of the provocation test is fully served once it is determined that the
    provocative act was sufficient to deprive an ordinary person of the power of
    self-control.  What the ordinary person would have done having lost control,
    counsel argues is both irrelevant and unknowable.

[91]

Counsel
    relies on two authorities from this court:
R. v. Carpenter
(1993), 83
    C.C.C. (3d) 193, at 197 (Ont. C.A.);
R. v. Keller
, [1993] O.J. No.
    2101, at paras. 19-20 (Ont. C.A.).  In
Carpenter
, Austin J.A. said, at
    p. 197:

The ordinary person test is directed to loss of control, not
    the conduct flowing from that loss of control.  The question is not whether an
    ordinary person would have done as the accused did, but whether an ordinary
    person would have lost the power of self-control.

[92]

The
    model jury instruction provided in Watts Manual of Criminal Jury Instructions
    (2d edition), at p. 1235, is consistent with these authorities:

The question is not whether the ordinary person would have lost
    his/her self-control and end up doing exactly what (N.O.A.) did in this case. 
    In other words, what is important is the loss of self-control, not the precise
    form it took.

[93]

At
    common law and under English legislation, jurors are routinely told to consider
    whether the ordinary person would have reacted to the provocative conduct as
    the accused did:
D.P.P. v. Camplin
, [1978] A.C. 705, at 718,
Homicide
    Act, 1957
, 5 and 6 Eliz. Ch. 11, s. 3; see also
Coroners and Justice
    Act, 2009
, c. 29, s. 54.  Unlike the English legislation, s. 232(2) does
    not specifically require that the ordinary person, having lost control, act as
    the accused acted.  The focus is on the loss of control.  The distinction may
    be important in a case in which the reaction of the accused to the provocative
    conduct is particularly extreme.  A jury told to consider whether the ordinary
    person would have acted as the accused did might find against the accused on
    the basis that while the ordinary person may have lost control and murdered the
    victim, the ordinary person would not have engaged in the extreme acts of
    violence perpetrated by the accused.

[94]

I
    do not, however, read the authorities from this court, or the model jury
    charge, as suggesting that any level of loss of self-control by the
    hypothetical ordinary person would satisfy the ordinary person component of the
    provocation test:  see
R. v. D.L.
, 2005 ONCJ 343, [2005] O.J. No. 3182,
    at para. 26.  For example, if the provocative conduct was sufficient to cause
    an ordinary person to lose control to the extent that the ordinary person would
    verbally abuse the author of the provocative conduct, that degree of loss of
    control could not satisfy the ordinary person component of the provocation test
    in s. 232.  The question for the jury in applying the ordinary person test is
    not whether the ordinary person would have done the same thing that the accused
    did, but whether the provocative conduct would be sufficient to cause an
    ordinary person to lose control to the degree that the ordinary person would
    form the necessary intention for murder under s. 229(a) and act on that intention.

[95]

The
    proper approach is found in
Masciantonio v. The Queen
(1994-95), 183 CLR
    58, at 69 (H.C.).  In reference to the common law defence of provocation, the majority
    said:

the conduct in question must have been capable of provoking
    an ordinary person to retaliation of the like nature and extent as that of the
    accused.  The question is not whether an ordinary person, having lost his
    self-control, would have regained his composure sooner than the accused nor is
    it whether he would have inflicted a lesser number of wounds.  It is whether an
    ordinary person could have lost control to the extent that the accused did. 
    That is to say,
the question is whether the provocation, measured in
    gravity by reference to the personal situation of the accused, could have
    caused an ordinary person to form an intention to kill or do grievous bodily
    harm and to act upon that intention, as the accused did, so as to give effect
    to it.
[Emphasis added.]

[96]

The
    same approach is favoured in New Zealand.  In
Timoti
, at para. 46, the
    court, in interpreting a provision that was very similar to s. 232, said:

When s 169(2)(b) speaks of provocation which has deprived the
    offender of the power of self-control and has thereby induced the act of
    homicide, it is implicit that the act of homicide encompasses not only the
    physical action which caused the death but also the necessary murderous
    intent.  It follows that for the purposes of the evaluative question the provocation
    must have been sufficient to cause the statutory hypothetical person to lose
    the power of self-control to the point of forming the necessary murderous
    intent as well as performing an action which caused death.  In short, the
    provocation must have been sufficient to cause in the hypothetical person loss
    of self-control inducing both a murderous act and murderous intent.
What
    is not relevant to the evaluative question is the degree of the loss of
    self-control beyond that point
.
[1]
[Emphasis added.]

[97]

The
    Crown relies on
R. v. Mayuran
, 2012 SCC 31, [2012] 2 S.C.R. 162, at
    para. 31, to support the trial judges instruction.  In that case, in the
    course of holding that there was no air of reality to a provocation defence,
    the court said:

Based on this record, a properly instructed jury could not
    conclude that an ordinary person in [the appellants] circumstances would be
    deprived of self-control when scolded about her level of education to such a
    degree that she would stab the person 45 times in a responsive rage.  This, it
    seems to me, has absolutely no air of reality.

[98]

The language in
Mayuran
does suggest that the jury should consider whether the ordinary person
    would have done the same thing that the accused did in considering the defence
    of provocation.
Mayuran
was not, however, concerned with the essential elements of the ordinary person
    component of the provocation test, but turned on the application of the
    well-known air of reality test to the evidence said to support a provocation
    instruction. The evidence that the accused stabbed the victim 45 times clearly
    signalled that the accused intended to kill the victim.  I think the
    above-noted passage from
Mayuran
can be read as a finding that the relatively trivial
    nature of the unlawful conduct said to have precipitated the multiple stabbing,
    could not have caused an ordinary person to lose control to the point of forming
    the intention to murder the victim and acting on that intention.  I certainly
    do not read
Mayuran
as
    suggesting that there may have been some air of reality to the provocation
    defence had the appellant stabbed the victim fewer times than she did.

[99]

The closing words of the
    recharge could have been understood by the jury as instructing them to consider
    whether the ordinary person would have lost control and strangled Ms. General
    as the appellant did.  It would have been more accurate to tell the jury that
    the provocative conduct must be sufficient to cause an ordinary person to lose
    control, form the intention for murder as described in s. 229(a), and act upon
    that intention, even if not necessarily in the same way as the appellant.

[100]

I am satisfied, however,
    that the more complete instruction would not have assisted the appellant.  This
    was not a case in which the appellants conduct, assuming provocation, would have
    been regarded as so extreme by the jury as to be beyond the reaction of the
    ordinary person, even if that ordinary person had been provoked and lost
    control.  Furthermore, the more complete instruction outlined above would only have
    emphasized the requirement that the provocative act be such as to cause the
    ordinary person to lose control and form the intention to commit murder under
    s. 229(2).  This instruction emphasizes the high degree of provocation required
    to give rise to the partial defence.  An instruction clearly identifying the requirement
    that the ordinary person lose control to the point of forming the intention to
    commit murder could not have assisted the appellant given the relatively minor
    nature of the provocative conduct described by the appellant.

D.

The application of the Curative
    Proviso

[101]

Section 686(1)(b)(iii)
    may be applied where the Court of Appeal is satisfied that any errors in law
    caused no substantial wrong or miscarriage of justice to an accused.  When
    there is more than one error, the effect of the errors taken together must be
    considered.  The curative proviso can be applied if the error is so minor as to
    be harmless or if the evidence against an accused is overwhelming:  see
R.
    v. Mayuran
, at para. 45;
R.
    v. Sarrazin
, 2011 SCC 54, [2011] 3
    S.C.R. 54, at paras. 25-28.

[102]

The misdirection as to
    the potential relevance of the appellants after-the-fact conduct to his
    intention cannot be described as minor.  Absent a proper instruction, there was
    a real risk that the jury could look to that evidence, largely uncontested, as
    a significant consideration in deciding whether this was a case of murder or
    manslaughter.  The other errors identified above were less serious than the
    misdirection on the after-the-fact conduct evidence.  They do, however, add
    some weight to the appellants submission that the proviso cannot be applied.

[103]

The case for the Crown
    was formidable, but not overwhelming.  Having regard to parts of the
    appellants statement to Detective Bickerton, his testimony, and the character
    evidence, a reasonable jury, properly instructed, could have returned a verdict
    of manslaughter.

[104]

The curative proviso
    cannot be applied.

E.

Conclusion

[105]

I would allow
    the appeal, quash the conviction and direct a new trial on the charge of second
    degree murder.  I add one caveat.  Nothing in these reasons is intended to
    predetermine, for the purposes of the retrial, the appropriate instruction on
    the relevance of after-the-fact conduct to the question of intent.  As
    discussed in these reasons, the evidence may have relevance to motive and
    therefore indirectly to intent.  It will fall to the trial judge to decide,
    based on the evidence and arguments at the retrial, whether there is a
    reasonable basis upon which some or all of the after-the-fact conduct may
    assist the jury in determining the issue of intent.

RELEASED:   DD SEP 15 2015

Doherty J.A.

I agree E.E. Gillese
    J.A.

I agree D.M. Brown
    J.A.





[1]
New Zealand has abolished the defence of provocation:  see
Crimes
    (Provocation Repeal) Amendment Act 2009
,
    s. 4
.  New Zealand law does, however, give trial judges a narrow
    discretion to impose a sentence other than life imprisonment on persons
    convicted of murder:  see
Sentencing Act 2002
, s. 102
.


