



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gough, 2020 ONCA 296

DATE: 20200511

DOCKET: C65222

Watt, Lauwers and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeremy Gough

Appellant

Andrew Furgiuele, for the appellant

Holly Loubert, for the respondent

Heard: October 11, 2019

On appeal from the conviction entered by
    Justice Joseph R. Henderson of the Superior Court of Justice, sitting with a
    jury, on May 17, 2017.

By the Court:


[1]

The appellant was convicted of first degree
    murder after a trial before a judge of the Superior Court of Justice sitting
    with a jury. He was sentenced to life imprisonment without eligibility for
    parole until he has served twenty-five years of the sentence. He appeals his
    conviction.

[2]

At the conclusion of oral argument, we dismissed
    the appeal. We said we would provide reasons for our conclusion. These are our
    reasons.

The Background Facts

[3]

The appellant and deceased lived together in a
    common-law relationship for over nine years. The couple had two children who
    attended elementary school.

The Separation

[4]

In mid-January, 2015, the deceased told the
    appellant their relationship was over. She wanted to separate and asked the
    appellant to leave their home.

[5]

The appellant was unhappy when told of the end
    of their union. He insisted they reconcile their differences and continue their
    relationship.

[6]

The appellants attempts at reconciliation proved
    unsuccessful. On January 31, 2015 he left the home and moved in with his
    brother.

The Early Days after Separation

[7]

In the weeks immediately following their
    separation, the appellant and deceased remained in regular contact, mainly
    about their children. The appellant continued his efforts to persuade the
    deceased to reconsider her decision to separate. The deceased rejected his
    entreaties.

[8]

As time passed, the appellant became
    increasingly jealous. He was convinced the deceased was seeing another man. Repeatedly,
    he asked the deceased whether she was seeing or involved with somebody else.

[9]

The appellant met another woman through a dating
    website. Shortly thereafter, they began a casual relationship.

The Weekend of February 21-22, 2015

[10]

During the weekend of February 21-22, 2015 the
    couples two children were staying with the appellant at his brothers house.
    The appellant messaged the deceased about whether she would be attending a
    bowling tournament in which one of the children was participating on February
    22, 2015. The deceased was non-committal in her response.

[11]

When the deceased did not appear at the bowling
    tournament, the appellant phoned her. He asked her why she had not attended and
    told her of their childs anger and disappointment.

[12]

Later that day the appellant returned the
    children to the deceaseds residence. He went upstairs to play basketball with
    his son. When the appellant walked by the deceaseds room, he noticed two
    pillows on her bed. This suggested to him that someone might have slept over.

[13]

After observing the pillows the appellant went
    down to the basement. He testified that he did so to check whether some of his
    possessions remained where he had left them. The Crown suggested his real purpose
    was to unlock the door that led from the basement to the yard, so he could
    surreptitiously enter the house the following day.

The Return Visit

[14]

Later on February 22, 2015 the deceased
    contacted the appellant and asked him to return a breathing apparatus one of
    the children had forgotten at the appellants brothers house. The appellant
    drove back to the deceaseds home to return the apparatus.

[15]

During this visit, the appellant shovelled snow
    that had fallen on the deceaseds driveway, at the side of the house and on the
    back stairs that led to the basement door. The appellant said that he did so
    because he was concerned that as the snow melted, the basement area would be
    flooded. The Crown contended that the real reason for the shovelling was to provide
    the appellant with an opportunity to ensure that the basement door remained
    unlocked.

The Morning of February 23, 2015

[16]

Shortly after 8:00 a.m. on February 23, 2015,
    the appellant and deceased exchanged messages and spoke on the phone. This was
    a school day. The deceased would take the children to school and return home around
    9:00 a.m.

[17]

The appellant told the deceased he would be
    dropping off the skating form for one of the children at the school that day.
    He asked about a helmet for their child since one was required for skating. He
    told the deceased, in a somewhat raised voice, to look in the basement for the
    helmet.

[18]

The appellant decided he would take the form to
    the school before classes began. He then asked his girlfriend, who was with him
    at his brothers house, whether she wanted anything for breakfast from Tim
    Hortons. He agreed to pick up a coffee and bagel for her. According to the
    appellants girlfriend, he left the house wearing a Blue Jays jacket.

[19]

The appellant drove off but forgot to bring the
    skating form with him. The deceased lived near the school. The appellant drove
    by her house to see whether anyone was at the house with her.

The Approach

[20]

The appellant parked on a street near the
    deceaseds home where his vehicle would not be visible from her house. Rather
    than a Blue Jays jacket, surveillance footage showed the appellant wearing a
    large black jacket and a dark hood pulled over a black hat. He also wore a backpack.
    The Crown theory was that he did so, so that he would blend in with others in
    the neighbourhood and not be recognized by the deceased if she drove by when
    taking the children to school.

[21]

The appellant testified that he walked from his
    car to the front door of the deceaseds home. He knocked and was let inside by
    the deceased.

[22]

After the body of the deceased had been found
    later on February 23, 2015, investigators found a set of footprints in the
    snow. Footprints led through the backyard of a neighbours property immediately
    behind the deceased home up to and over a fence separating the two properties.
    The footprints resumed in the backyard of the deceaseds home and continued
    towards the stairs to the back door of the basement.

The Death of the Deceased

[23]

The body of the deceased was found on the basement
    floor steps away from the back door leading from the basement to the yard.

[24]

The deceased suffered 8-10 blunt force injuries
    to her scalp. These wounds caused significant blood loss and would have
    resulted in her death within a few minutes. In addition, the deceased had been
    stabbed in the back 24 times, likely when she was already dead.

[25]

A blood spatter analyst testified that the
    deceaseds blunt force injuries occurred in two separate places in the
    basement. Some were inflicted in the hallway between the laundry room and back
    door while the deceased was on all fours. Others took place in the laundry room
    itself while the deceased was laying down. Significant amounts of blood spatter
    were visible on all surfaces within the vicinity of the attacks.

[26]

In the deceaseds bedroom, police found that her
    bedside table had been overturned and ransacked. One of the murder weapons, a
    large bloodied kitchen knife, was found beside the overturned table. In the
    kitchen, police found the deceaseds iPhone. Its screen had been smashed.

[27]

In his testimony at trial, the appellant
    explained that after the deceased opened the front door, he told her that he
    wanted to talk. She let him into the house. He asked several times whether she
    was seeing someone. Eventually the deceased admitted she was. She explained
    that if the person she was seeing got a new job elsewhere, she might move away
    with him and take the children with her. The appellant asked her how he would
    see the children if the deceased moved away. She replied that how he would see
    the children was his problem. Then she laughed.

[28]

When the deceased made the comment about moving
    away with the children, the appellant said he snapped. He did not intend to
    kill the deceased. Overcome with emotion because of a previous experience with
    a former spouse moving away and taking their child with her, the appellant
    grabbed a fish bonker and hit the deceased on the head. She fell down the
    stairs to a landing. There, he hit her two or three more times. She fell down
    the balance of the stairs to the basement floor. In a rage, he hit her again.
    He saw blood on the walls and in the deceaseds hair. He put the fish bonker in
    his hoodie, walked back upstairs and left the house.

[29]

The appellant claimed no memory of holding a
    knife or of stabbing the deceased. He believed that he blacked out as had
    happened to him in the past.

[30]

Forensic investigation of the stairs and
    staircase area revealed a relative lack of blood and blood spatter on the staircase.
    Several items on the stairs, including a snow shovel, cardboard box and the
    deceaseds boots, appeared undisturbed.

The Post-Incident Conduct
[1]


[31]

According to a surveillance video, the appellant
    returned to his car at 9:25 a.m. Another video recorded his entry at a Tim
    Hortons at approximately 9:43 a.m. where he picked up coffee and a bagel for
    his girlfriend. Before entering Tim Hortons, the appellant removed a sweatshirt
    he was wearing. Once inside, he washed his hands and face in the washroom. He changed
    clothes again at his brothers house because he was going to pick up some furniture
    for his girlfriend.

[32]

Later in the morning, the appellant sent two
    texts to the deceased asking whether she had found a hockey helmet for the
    skating trip and explaining that he had dropped off the skating form at the
    school. He testified that he sent the first text because he wasnt sure whether
    the deceased was dead and the second, by which time he assumed she was dead, to
    cover his tracks.

[33]

The appellant and his girlfriend dropped off the
    skating form at the childrens school shortly after noon on February 23, 2015. The
    form suggested the child was not scheduled to go skating until March 4, 2015.

The Trial Proceedings

[34]

At trial, there was no dispute that the appellant
    unlawfully killed the deceased. The contested ground was the legal character of
    the unlawful killing. The Crown said it was a planned and deliberate first
    degree murder. The defence contended it was manslaughter because the appellant
    did not intend to kill the deceased or, if he did, the statutory partial
    defence of provocation applied.

[35]

Before closing addresses, counsel discussed with
    the trial judge the manner in which counsel could refer to the evidence of post-incident
    conduct in their closing addresses and what, if anything, the trial judge would
    say about this evidence in his charge.

The Pre-Charge Discussion

[36]

As the discussions began, the trial Crown (not
    counsel on appeal) contended that the evidence of post-incident conduct  the
    trip to Tim Hortons, the text messages about skating and the delivery of the
    skating form  were all part of the plan formulated by the appellant prior to
    the killing to distance himself from involvement in it. The plan to carry out
    these activities was made in advance of the killing and executed thereafter.
    This evidence was thus relevant to prove the killing was intentional and a
    planned and deliberate murder.

[37]

The initial comments of defence counsel (not counsel
    on appeal) focused on the need for a caution to jurors about the dangers of
    placing any reliance on evidence of the appellants demeanour after the
    killing.

[38]

When the pre-charge discussion resumed the
    following week, the trial Crown focused her submissions on the post-incident
    activities of the appellant as the implementation of a plan made in advance of
    the killing, and their consequent relevance to the planned and deliberate
    nature of that killing. The trial judge expressed concern about an instruction
    on use of evidence of post-incident conduct drawing too much attention to a small
    piece of evidence. The trial Crown acknowledged this danger and said it may be
    best if the trial judge made no comment about the evidence.

[39]

Defence counsel added their concern about the
    danger that an instruction on post-incident conduct might result in the jurys
    assigning too much importance to evidence with no real probative value.

The Ruling of the Trial Judge

[40]

Prior to closing addresses, the trial judge
    ruled on the use that counsel could make of the evidence of post-incident
    conduct in their closing addresses and what he would say about it in his charge
    to the jury.

[41]

The trial judge was satisfied there was no
    evidence that fell within the classic paradigm of evidence of post-incident
    conduct; thus he would not provide the standard charge on the issue. However,
    the judge was satisfied that the jury could use the evidence that, after
    killing the deceased, the appellant:

i.

went to Tim Hortons;

ii.

messaged the deceased; and

iii.

dropped off the skating form at school

as evidence that the killing was
    planned and deliberate. These activities had been planned in advance.

[42]

The trial judge declined to give the jurors a
    specific instruction about their use of evidence of post-incident conduct or a
    no probative value instruction about that evidence. He concluded:

That being said, it would be unwise for me to
    specifically focus on this evidence in my instructions to the jury. The post-incident
    conduct here may be useful to the jury and it may not. They can certainly
    consider it. Counsel are free to make submissions to the jury in their closing
    statements as to how the jury can use this evidence. I can then reference their
    submissions when I explain the theory of the Crown and the theory of the
    defence to the jury. For those reasons, I will not be giving a specific
    instruction on post-incident conduct to the jury.

[43]

The trial judge did not instruct the jury on its
    use of evidence of post-incident conduct, nor tell the jury that the evidence
    was of no value to them in their deliberations.

The Closing Addresses of Counsel

[44]

Defence counsel addressed the jury first. She
    briefly mentioned the evidence of post-incident conduct and proposed an
    explanation: the appellant 
wanted to make things look

normal so that no one would suspect him.

[45]

The trial Crown
referred to the evidence of post-incident conduct on a few
    occasions in his closing address. On each occasion, he linked it to evidence of
    the arrangements made by the appellant in advance of the killing. What occurred
    thereafter was neither more nor less than the execution of a plan made
    beforehand.

[46]

Defence counsel did not object to the closing
    address of the trial Crown.

The Appeal

[47]

In this court, the appellant advances two
    grounds of appeal. Both relate to the evidence of the appellants post-incident
    conduct. In brief compass, that evidence consists of:

i.

the attendance at Tim Hortons;

ii.

the messages about skating; and

iii.

the delivery of the skating form.

[48]

The appellant submits that none of this evidence
    was relevant to either of the material issues at trial: the appellants intent
    and whether the killing was planned and deliberate.

[49]

Accordingly, the appellant says, the trial judge
    erred in permitting the Crown to rely on the post-incident conduct evidence in
    its closing address to the jury. The trial judges error was compounded by his
    failure to provide a limiting instruction, particularly given the Crowns
    repeated references to the post-incident conduct in his closing address. In
    combination, these errors permitted the jury to find that the appellant
    committed murder and planned and deliberate first degree murder on the basis of
    evidence that was not admissible on either issue. A new trial is required.

Analysis

[50]

As we explain, both claims of error fail.

[51]

In cases where evidence of post-incident conduct
    is tendered to prove an essential element of the Crowns case, its admission is
    governed by general evidentiary principles. The evidence must be relevant to a
    material issue at trial. It must be admissible. And its probative value must
    outweigh its prejudicial effects:

R. v. Adan
, 2019 ONCA 709, at para. 65.

[52]

D
etermining the
    relevance of post-incident conduct evidence is necessarily a case-by-case,
    fact-driven exercise:
R. v. Calnen
, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 108,
per
Martin J. (dissenting, but not on
    this point). In some cases,
this evidence may be
    relevant to the issue of intent and to distinguish between different levels of
    culpability:
Calnen
, at para. 119,

per
Martin J. (dissenting, but not
    on this point).
In others, it may be used to prove that
    a murder was planned and deliberate:
R. v. MacKinnon
(1999),
    132 C.C.C. (3d) 545 (Ont. C.A.), at paras.
14-15;
R. v. Poitras
(2002), 57 O.R. (3d) 538 (C.A.), at para.
11;

R. v. Azzam
, 2008 ONCA 467, 91 O.R. (3d) 335, at paras. 46, 49;
and
R. v. Khan
, 2007 ONCA 779,
230 O.A.C. 174,
at para. 5.

[53]

Despite its reception, evidence of post-incident
    conduct may pose unique reasoning risks. The separation in time of the events
    which form the subject-matter of the charge may make it more difficult to ground
    the inference that the murder was planned and deliberate. The evidence may have
    a veneer of cogency disproportionate to its true probative value. It may spur
    speculation, spawn imprecise reasoning and encourage decision makers, such as
    an untutored jury, to jump to dubious conclusions:
Calnen
, at para. 116,

per
Martin J. (dissenting, but not on this point)
.

[54]

In many cases, the nature and magnitude of these
    risks will require a specific cautionary instruction to the jury.
The content of such an instruction will depend on the specific
    risks posed by the particular type of after-the-fact conduct at issue in any
    given case:
Calnen
,
    at para. 119,

per
Martin J. (dissenting, but not on this point). On appeal, 
the test is whether the jury was properly, not perfectly,
    instructed:
Calnen
,
at para
. 9.

[55]

An application of these principles to the
    appellants case belies his claims of error. The evidence was properly
    admitted. And the jury was adequately equipped
to
    decide the case according to the law and the evidence
:
Calnen
, at para. 8.

[56]

First, this is not a case in which the evidence
    of post-incident conduct was required to bear the entire burden of proving that
    the unlawful killing of the deceased constituted planned and deliberate murder.
    As the evidence adduced at trial revealed, this was a calculated scheme or
    design to surreptitiously gain entry to the deceaseds home while she was
    alone. The appellant was disguised and had with him changes of clothing. He had
    set up a plan in advance to make it appear as an ordinary day in his life,
    thereby distancing him from any connection to the deceaseds death. He executed
    that plan.

[57]

Second, in this case there exists a positive
    link between the appellants pre-offence and post-incident conduct such that
    the reasoning risks posed by evidence of post-incident conduct on its own are
    substantially attenuated, if not eliminated. The appellants actions were set
    up before and executed after the killing, as part of a continuous course of
    conduct. The concerns that underpin the requirement of a limiting or cautioning
    instruction are not present here.

[58]

Third, as we have seen, there is no
per se
or bright line rule that evidence of post-incident conduct cannot be used to
    prove an accuseds state of mind during the commission of an alleged crime.
    More particularly, evidence of post-incident conduct may assist in proving that
    an unlawful killing was murder and that the murder was planned and
deliberate
.
Prov
ided the evidence of post-incident conduct is
    relevant to these issues, does not offend any exclusionary rule of the law of
    evidence and that its probative value exceeds its prejudicial effect, the
    evidence may be received for these purposes. The evidence in this case met
    those requirements. It was available for that use here and the Crown was
    entitled to invoke it for that purpose. That the trial judge did not instruct
    the jury accordingly is an omission about which the appellant cannot complain.

[59]

Fourth, two experienced trial counsel did not
    object either to the closing address of the Crown or to the judges charge on
    this issue. While not dispositive, this failure affords some indication
that counsel did not consider that either
    was prejudicial to the appellants defence or otherwise rendered his trial unfair:
R. v
.
Jacquard
, [1997] 1 S.C.R. 314, at para.
    38
.

[60]

Finally, we are
    satisfied that the jury was properly instructed and left to decide the case on
    a proper legal foundation
.

DISPOSITION

[61]

For these reasons, the appeal from conviction was
    dismissed.

Released: DW May 11, 2020

David Watt J.A.

P. Lauwers J.A.

David M. Paciocco J.A.





[1]
The term post-incident conduct is used in these reasons to avoid
    the potential prejudice associated with the label post-offence conduct, which
    presumes the commission of an offence: see
R. v. Adamson
, 2018 ONCA 678, 364 C.C.C.
    (3d) 41, at para.
55 n.1;
R. v. Samuels
(2005), 196 C.C.C. (3d) 403 (Ont. C.A.), at
    paras.
44-45.


