



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Spence, 2017 ONCA 619

DATE: 20170726

DOCKET: C61556

Juriansz, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Byron Spence

Appellant

Christopher Hicks, for the appellant

Nadia Thomas, for the respondent

Heard: May 31, 2017

On appeal from the conviction entered by Justice Robert A.
    Riopelle of the Superior Court of Justice, sitting with a jury, on September
    25, 2014.

Trotter J.A.:

A.

introduction

[1]

Byron Spence was convicted of first degree murder for killing his half-brother,
    Jonah Trapper, by shooting him in the back with a shotgun. He appeals his
    conviction.

[2]

There is no doubt that the appellant killed Jonah. During an interview
    with the police, the appellant admitted shooting Jonah, but claimed that he
    only meant to scare him when he fired the shotgun. In the same interview, he
    suggested that he struggled with mental health issues.

[3]

The issues at trial were straightforward  did the appellant mean to shoot
    Jonah, and was the killing planned and deliberate? However, because of errors
    in the trial judges jury instructions on the intent for murder, a new trial is
    required.

B.

the facts

(1)

Introduction

[4]

The appellant was 25 years old at the time of the shooting. Jonah was 18.
    The two young men had the same mother. There was no indication of any
    pre-existing animosity between them.

[5]

The appellant sometimes stayed at his mothers home in Timmins, where Jonah
    lived. He was staying there on the day of the shooting, on October 24, 2009.
    The appellant and Jonah were the only people in the house at the time.

(2)

The Shooting and its Aftermath

[6]

It was not disputed that the appellant caused Jonahs death by firing a
    shotgun at him on the second floor of the house. The appellant did not testify
    at trial. The following narrative of events comes from the appellants utterances
    to the police, and to his aunt and uncle.

[7]

In the early evening, the appellant was watching television in the living
    room when Jonah came in and complained that the house was a mess: dirty dishes were
    stacked up in the kitchen, the sink was clogged, and the garbage was full. The
    appellant denied that it was a heated exchange, but said he felt upset and
    angry afterwards.

[8]

Jonah slammed the door and went up to a common area on the second floor
    where he used his computer and played loud music.

[9]

The appellant retrieved a shotgun from the basement. It was already
    loaded. The appellant was familiar with the gun because he had used it to hunt.
    Fifteen minutes passed before the appellant climbed the stairs to the second
    floor and went into a bedroom he used during his stay. This required him to
    walk through the second floor common room at the top of the stairs where Jonah
    was on the computer. Once in the bedroom, the appellant closed the door and
    cocked the shotgun.

[10]

The
    appellant swung the bedroom door open and, without saying a word, fired the
    shotgun, hitting Jonah in the back. The appellant cocked the gun again. Jonah looked
    at him. The appellant said, Im sorryI love you Jonah. Jonah stood up and fell
    down the stairs, coming to rest by the front door.

[11]

In
    the aftermath of the shooting, the appellant collected his bags and put them by
    the front door. This required him to walk over Jonah. Realizing that his
    mothers car keys were upstairs, he went back up to get them. He went to the
    computer and accessed the United Nations website. He then accessed his email
    account. In the body of an unaddressed message, he wrote: Sorry. Im very
    sorry. The appellant returned downstairs and left the house. He said that
    Jonah was still alive, making gagging sounds. However, a pathologist
    testified that Jonah would have died within 10 to 20 seconds of being shot.

[12]

The
    appellant drove to the nearby home of his aunt and uncle, Alex and Kathy
    Spence. He parked his vehicle partly in the driveway and went to the house,
    leaving the drivers side door wide open. He left the loaded and cocked shotgun
    on the front passenger seat, inside a shotgun bag.

[13]

The
    appellant told Alex Spence, I just shot somebody. When asked who it was, he
    said my brother. The appellant started to cry. His uncle asked whether his
    brother was dead. The appellant confirmed that he was.

[14]

Kathy
    Spence heard the appellant say, I shot him, hes dead. I know hes dead. She
    heard him repeat this three or four times.

[15]

Alex
    and Kathy Spence both agreed that the appellant seemed extremely upset or
    distraught. Kathy Spence also said that he was confused, and did not make a lot
    of sense. The appellant, sitting at the kitchen table, put his head down and mumbled.
    Kathy Spence said the appellant repeated, I should have shot the computer. I
    should have shot at it. She denied that he said, I meant to shoot the
    computer. Alex Spence had no memory of the appellant mentioning the computer.

[16]

All
    three agreed that the police should be called. Kathy Spence made the call. The
    police soon arrived at the Spence home and arrested the appellant. He
    spontaneously told the arresting officer: I shot Jonah Trapper. Another
    officer transported the appellant to the police station. On the way, the
    appellant was crying. The officer asked the appellant if he was okay, but
    received no response. The officer did not notice anything unusual about the
    appellants behaviour beyond that of someone involved in a traumatic
    experience, when people are not quite themselves.

(3)

Evidence Relating to the Appellants Mental Health

[17]

Although
    the appellant did not testify, and no expert evidence was called on his behalf,
    there was some evidence that the appellant had mental health issues. This came from
    Alex Spences testimony and a police interview conducted by P.C. Mike Fortin in
    the early morning after the appellants arrest.

[18]

Alex
    Spence testified that schizophrenia runs in his family. He testified that he
    saw the appellant in downtown Timmins about a week before the shooting. The
    appellant told him that he had taken time off work because he was ill, but
    did not elaborate on the nature of his malady, nor did he specify whether it
    was physical or otherwise.

[19]

During
    his interview with P.C. Fortin, the appellant tried to talk about his mental
    health issues. However, the officer largely ignored these utterances. The
    appellant said that he had been through counselling. He mentioned that the past
    had been pretty bad for him and that he had been checked into the hospital
    for depression; however his mental health problems never got resolve[d] and were
    stillpiling underneath. When asked whether he was thinking clearly during
    the events, he answered no and again made reference to depression and
    counselling. The officer did not follow up on this answer.

(4)

The Appellants Intent When He Shot Jonah

[20]

There
    were no concerns about the appellants sobriety when he shot Jonah. Alex Spence
    asked him whether he was under the influence of alcohol or drugs. The appellant
    said that he was not. The appellant also denied drinking or using drugs the
    night of the shooting in his police interview.

[21]

The
    911 operator asked Kathy Spence whether the appellant had been drinking. She
    answered yes. Ms. Spence assumed that to be the case because she thought,
    Well, if someone did something like that, they mustve been under the
    influence of alcohol. However, at trial, she agreed there was no indication
    that the appellant had been drinking.

[22]

At
    the outset of the police interview, the appellant seemed somewhat confused.
    When asked whether he spoke to a lawyer, the appellant said, no I havent. He
    had to be reminded that he had spoken to a Legal Aid lawyer.

[23]

During
    the interview, the appellant made numerous utterances touching on his state of
    mind when he fired the shotgun. It is fair to describe the interview as a
    back-and-forth between the officer and the appellant, with the officer
    suggesting that the appellant intended to shoot Jonah, and the appellant
    maintaining that he did not. This is illustrated in the following excerpts:

·

I pulled the trigger. Im at, Im atthe computer is right
    thereI shoulda shot the computerI was thinking of shooting the stereo because
    it was blaringI dont knowIm kinda sick [unintelligible] gets in the wayI
    shouldnt have done that

·

I was gonna shoot that stereoI didnt meant to really hurt him.
    I just wanted to scare him and shoot the computer.

·

I wanted to shoot the stereo which was in his room and I wanted
    to shoot the computer but

·

I wanted to scare him.

·

I didnt mean to shoot him.

[24]

The
    following exchange between the appellant and the officer took place:

A.:     I was I was just gonna shoot the stereo                         firstI
    was gonna shoot, shoot the                                  computer but he was
    already in the way                       and the way the door          opens and
    I, I.I                      justI just went like that and          pulled the
                           trigger

Q:      But when you were pointing the gun at                              himyou
    must have known you were                     gonna hit himIt was pointing
    right at                         him

A:      Yeah.

Q.:     So you knew you were shooting him.

A.:     YeahI knew I shot him.

Q.:     Okay.

A.:     I didnt, I didnt directly go and try to
    shoot                        him.

[25]

The
    appellant further explained that he wanted to scare Jonah and It shouldnt
    have happened that waythats all Im saying.

C.

issues on appeal

[26]

The
    primary focus of this appeal is on the trial judges instructions on the
mens
    rea
for murder in s. 229(a) of the
Criminal Code
, and his
    instruction on the definition of planned and deliberate in s. 231(2). The
    appellant also complains about the trial judges instructions on post-offence
    conduct, and his ruling to admit only one portion of the appellants interview
    with the police.

[27]

A
    new trial must be ordered because of shortcomings in the instructions on second
    degree murder. There is also an aspect of the instruction on first degree
    murder that requires discussion. It is unnecessary to address the remaining
    issues, which are best left for resolution by the judge presiding at the new
    trial.

D.

Analysis

(1)

The Intent for Second Degree Murder


i.

Introduction

[28]

The
    case against the appellant for murder was strong. After all, he shot Jonah in
    the back, at close range, after an argument that left him feeling angry. However,
    guilt for murder was not a foregone conclusion. The appellants utterances clearly
    raised the issue of whether he was aiming at Jonah when he fired the shotgun. And
    although the evidence of the appellants mental health struggles was rather
    thin, in combination with his claim of accident, it was capable of raising a
    reasonable doubt on the issue of intent.

[29]

The
    appellant did not assert a defence of not criminally responsible on account of
    mental disorder (NCRMD) under s. 16 of the
Criminal Code
. There was
    no basis to do so. The appellant led no medical evidence about his mental
    health issues or his state of mind when he shot Jonah. The Crown at trial asked
    the trial judge to explain to the jury that this was not a NCRMD case. Defence
    counsel and the trial judge agreed. This was a reasonable course of action.

[30]

In
    cases where NCRMD is asserted, if a jury rejects this defence, they must still
    consider all of the evidence, including evidence of mental illness, in
    determining whether the Crown has proved the fault requirements in s. 229(a)
    beyond a reasonable doubt: see
R. v. Allard
(1990), 57 C.C.C. (3d) 397
    (Que. C.A.), at p. 401; and
R. v. David
(2002), 61 O.R. (3d) 1 (C.A.),
    at para. 50. Even though the appellant did not rely on s. 16, the trial judge
    was obliged to instruct the jury along these lines.

[31]

Unfortunately,
    the trial judges instructions on the
mens rea
for murder, and how the
    appellants mental health issues and his claim of accident may negate that
mens
    rea
, were confusing and contained errors. These mistakes were repeated in
    the trial judges response to the jurys request for clarification on the issue
    of intent.


ii.

The
    Trial Judges Initial Instructions

[32]

The
    first troublesome portion of the charge occurred when the trial judge alluded
    to the defences that might be available to the appellant. The trial judge
    commenced with a discussion of the defence of accident. In accordance with
R.
    v. Mathisen
, 2008 ONCA 747, 242 O.A.C. 139, at paras. 70-73, the trial
    judge properly distinguished between an accident, in the sense of being an
    involuntary act (
i.e.
, accidentally discharging the firearm), as
    opposed to a voluntary act leading to unintended consequences (
i.e.
,
    discharging the gun but unintentionally shooting Jonah). However, he went on to
    say:

It is possible for you to find on the evidence presented at
    this trial that [the appellant] had no intent to kill, no intent to injure,
    that he just intended to scare his brother or shoot at the computer and that
    would be the kind of accident he is talking about.

Now, Byron Spence does not have to prove that this was
    accidental. It is up to Crown counsel to satisfy you beyond a reasonable doubt
    that the firing 
discharging of the firearm in that room was not an
    accident
and we will deal with that later, how the Crown has to satisfy
    that burden. [Emphasis added.]

In distinguishing between the two types of accident, the
    first paragraph is correct; the second paragraph is not  the appellant never
    denied intentionally discharging the firearm.

[33]

The
    trial judge then referred to the evidence of mental illness. This is where the
    instructions became problematic. As the trial judge said:

There has also been an air of suspicion of the  that the
    personal circumstances of Byron Spence could have affected his
ability to
    form the required intent
that is needed in order that he be guilty. I am
    referring here to the whiff of mental illness or these other issues.
There
    is a presumption at law that a person intends what he does voluntarily and
    where there is a rebuttal of that presumption, where there is guilt, it can be
    displaced by intoxication in terms of alcohol or drugs. It could be displaced
    as well by proof of mental issues.
So, some of those circumstances a
    defence  in some of those circumstances a defendant can excuse the guilt but
    the burden of proof, to call witnesses, to call experts to identify the mental
    illness, they have to show that the cause is such an incapacity that he is not
    aware of what he is doing and the consequences of what he is doing.
That is
    not our case here.

Our case here,
there were no experts called on the issue of
    mental disability or diminished mental capacity. There were no experts at all
    on that issue. So, here it does not excuse guilt if you find there is guilt. At
    best, it is relevant to the issue of punishment, which I will deal with if
    there is a finding of guilty on this matter. Or it is also relevant, at best,
    to Byron Spences mental state of mind as to whether or not he had the required
    state for murder.
[Emphasis added.]

This passage contains numerous errors, which are
    discussed below. They were repeated when the jury asked for clarification on
    the issue of intent.

[34]

Later
    in his instructions, the trial judge focused on the mental element for murder.
    He paraphrased s. 229(a) in the following language:

[O]ne, he meant to kill Jonah Trapper or, two, he meant to
    cause Jonah Trapper bodily harm that Byron Spence knew was so dangerous and so serious
    that he knew it was likely to kill Jonah Trapper and he proceeded despite his
    knowledge of this risk.

[35]

The
    trial judge then instructed the jury to consider all of the evidence in
    determining the appellants state of mind. He said:

You may conclude as a matter of common sense that if a sane and
    sober person does something that has predictable consequences, that person
    usually intends or means to cause those consequences. But that is simply one
    way for you to determine a persons actual state of mind, what he actually meant
    to do. It is a conclusion that you may only reach, however, after considering
    all of the evidence. It is not a conclusion you must reach, it is for you to
    say whether you will reach that conclusion in this case.

In this case in determining whether, in all the circumstances,
    it is appropriate to draw this permissible inference that Byron Spence intended
    the natural consequences of his actions, you must take into account all of the
    evidence, including the evidence that he may have been in a reduced mental
    condition at the time of the killing. This evidence may of course rebut the
    common sense inference but, if after a consideration of all of the evidence you
    are left with a reasonable doubt as to whether or not it is appropriate to draw
    the inference that Byron Spence intended the natural consequences of his
    action, then you must not draw that inference.

[36]

This
    passage is unobjectionable. However, it was soon followed by another discussion
    of whether the shooting was accidental. The trial judge referred to the
    appellants reduced mental state and then said:

That is still subject to some circumspection because, as I
    indicated to you, there is a presumption that a person intends what he does
    voluntarily and that he knows the outcome of what he is doing and to displace
    that presumption there are defences that are available in the
Criminal Code

to displace those kinds
    of presumptions.
In a case of first degree murder there are, but none of
    those were proffered by the defence. So, they do not excuse guilt, as I have
    said earlier.
They may have something to do with sentencing when it is time
    to sentence but we did not hear from witnesses or experts about his diminished
    mental capacity. There is no evidence here identifying what his particular
    mental illness might be or might not be even if it exists.
[Emphasis added.]

This passage replicates some of the more problematic
    features of the excerpt reproduced in para. 33, above.


iii.

Objections
    to the Charge

[37]

The
    appellants trial counsel (not Mr. Hicks) asked the trial judge to clarify that:
    (1) the assertion of accident was not the discharge of the firearm, but the shooting
    of Jonah; and (2) despite the fact that the defence did not call expert
    evidence, the jury could still look at the evidence in its entirety on the
    issues of the intent for murder, as well as planning and deliberation.

[38]

In
    his re-charge, the trial judge properly explained both the concept of accident
    and how the jury could consider the appellants mental health when deciding whether
    he had the intent for murder. On the second issue, the trial judge referenced
    his earlier instructions and said:

I think it was fairly clear from what I said to you that there
    are limitations on which you can deal with [the appellants mental state]. But
    it does enter into your deliberations of whether or not there was intent to
    murder and if you feel that there was intent to murder, it still is something
    you have to consider when you go to the second stage. Was there planning? Was
    there deliberation? His mental health at the time was made an issue during the
    course of the trial so you know the evidence that was there. More of that
    evidence we have about what he was like after. We do not have any evidence of
    what he was like before. But we know some things.

Defence counsel said he was fine with this
    reinstruction.


iv.

The
    Question from the Jury

[39]

Later
    that same day, the jury sent a note to the trial judge that said: Need more
    guidance or instruction on state of mind required for murder.

[40]

The
    trial judge discussed this request with counsel. All agreed that the question
    was broad. The trial judge decided to ask the jury to clarify its question if they
    could. Moreover, because it was almost 10 p.m. when the question was received,
    the trial judge decided to answer the question the following morning. As this
    was explained to the jury, the trial judge said that he would be replaying the court
    recording of the relevant portions of his instructions. He said: That is the
    way it is normally done. It is not that I sit down and re-explain it to you in
    a different way. You have to hear it exactly the same way that it was played
    originally.

[41]

The
    following morning, the jury clarified its request for assistance. It asked the
    trial judge to replay the direction for deciding box three. This was a reference
    to a part of the Decision Tree used by the trial judge to explain the intent
    for murder in s. 229(a) of the
Criminal Code
. The trial judge replayed
    all aspects of his original instructions on this issue, as well as those
    following defence counsels objections. The playback concluded at 11:35 a.m. At
    just after 4:00 p.m., the jury found the appellant guilty of first-degree
    murder.


v.

The
    Errors in the Charge

[42]

In analyzing jury instructions, appellate courts must review the
    charge as a whole, and not dissect isolated passages: see
R. v. Jacquard
, [1997] 1 S.C.R. 314, at para. 2. In
R. v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523, the Court held, at para. 31:

In determining the general sense which the
    words used have likely conveyed to the jury, the appellate tribunal will
    consider the charge as a whole. The standard that a trial judge's instructions
    are to be held to is not perfection. The accused is entitled to a properly
    instructed jury, not a perfectly instructed jury: see
Jacquard
, at para. 2. It is the overall effect of the charge that matters.

Having abided by this direction, I
    conclude that the trial judges instructions on the intent for murder were seriously
    flawed.

[43]

The
    most problematic part of the charge is reproduced in para. 33, above, where the
    trial judge attempted to explain that the case did not engage the defence of NCRMD.
    This passage contains several errors.

[44]

First,
    the trial judges identification of a presumption at law that a person intends
    what he does voluntarily, and his explanation that the presumption may be
    rebutted by evidence of alcohol, drugs or mental illness, is incorrect. There
    is no such presumption in law.

[45]

The
    passage conflates the presumption of sanity or criminal responsibility in s.
    16(2) of the
Criminal Code
with the so-called common sense inference
    that a sane and sober person intends the natural and probable consequences of
    his or her actions. The former is a statutory legal presumption that may be
    rebutted on a balance of probabilities. The latter is not a legal presumption
    at all; it is a permissible inference that may be drawn in appropriate
    circumstances: see
R. v. Seymour
, [1996] 2 S.C.R. 252, at paras. 19-20;
    and
Daley
, at para. 50. When evidence points in a different direction
    (for example,

evidence of intoxication or mental illness), the jury
    should be instructed to consider this evidence, along with all other evidence,
    in deciding whether to draw the common sense inference: see
Seymour
,
    at para. 21;
R. v. Walle
, 2012 SCC 41, [2012] 2 S.C.R. 438, at paras.
    55-67; and
R. v. Chretien
, 2014 ONCA 403, 321 O.A.C. 150, at para. 91.

[46]

The
    trial judge never made it clear for the jury that his comments were restricted
    to the inapplicability of s. 16. There was a real risk that the jury would have
    understood these instructions to apply to the issue of intent at large.

[47]

The
    second error flows from the first. By speaking of a legal presumption in this
    context, the trial judge essentially reversed the burden of proof, requiring
    the appellant to prove that the intent for murder was compromised by mental
    illness. In a true NCRMD case, if the accused raises the issue, the burden is
    reversed by the operation of the presumption in s. 16(2). Given the manner in
    which it was explained, at the very least, the jury would have been confused about
    whether the appellant had the onus of calling medical evidence to support his
    position that he lacked the intent for murder.

[48]

Thirdly,
    the trial judges references to ability to form the required intent,
    incapacity and capacity further muddied the waters. The use of these terms
    is appropriate in the context of s. 16, which speaks of a mental disorder rendering
    a person incapable of appreciating the nature and quality of the act or omission
    or of knowing that it was wrong. Outside of s. 16, the focus is on actual
    intent, or intent in fact, not on an accuseds capacity to form the intent: see
David
, at para. 50.

[49]

Fourth,
    the trial judges statement that [s]o, here it does not excuse guilt if you
    find there is guilt was wrong. As previously noted, outside of the s. 16
    framework, evidence of mental illness is capable of undermining the mental
    element for murder in s. 229(a) (thereby reducing liability from second degree
    murder to manslaughter). It may also undermine the added mental elements of
    planning and deliberation in s. 231(2): see
More v. The Queen
, [1963] S.C.R. 522, at pp. 533-535; and
McMartin
    v. The Queen
, [1964] S.C.R. 484, at pp.
    493-495.

[50]

Fifth,
    the trial judges reference to mental illness being relevant at best to the
    issue of punishment was wrong. It was also misleading. Punishment had nothing
    to do with the jurys task in determining whether the appellant had the
    requisite intent for murder. Moreover, although mental illness may have some role
    to play in sentencing an accused for manslaughter or second degree murder, it
    can have no impact on the mandatory sentence for first degree murder, which
    requires life imprisonment without parole eligibility for 25 years:
Criminal
    Code
, s. 745(a). The reference to punishment ought to have been left out
    completely.

[51]

I
    repeat the last sentence from the impugned passage: Or it is also relevant, at
    best, to Byron Spences mental state of mind as to whether or not he had the
    required state for murder. This was a correct statement of law, although it
    was improperly qualified by the expression at best.

[52]

Responding
    to these shortcomings in the trial judges instructions, Ms. Thomas for the
    Crown rightly submits that this passage (in para. 33) should not be considered
    in isolation. She acknowledges that the trial judge erred in describing the
    presumption at law discussed above, but contends that, considered as a whole,
    the instructions properly explain the intent for murder. With respect, I
    disagree.

[53]

I
    acknowledge that the trial judge correctly discussed the common sense inference
    and related it to the issue of mental illness: see para. 35, above. However, he
    failed to distinguish this instruction from his earlier erroneous instruction on
    the so-called legal presumption. The commonality in language shared by the two
    concepts (a presumption at law that a person intends what he does voluntarily
    versus if a sane and sober person does something that has predictable
    consequences, that person usually intends or means to cause those
    consequences) would have been confusing for the jury. Indeed, in the excerpt
    in para. 35 above, the trial judge repeated his instruction on the legal
    presumption right after his discussion of the common sense inference.

[54]

I
    also agree with Ms. Thomas that the trial judges response to defence counsels
    objections (in para. 38, above) was correct. However, it was not sufficient to
    undo the errors contained in other portions of his instructions.

[55]

As
    a whole, the charge to the jury on the intent for murder was confusing. This
    conclusion is borne out by the jurys request for assistance: need more
    guidance or instruction on state of mind required for murder.

[56]

I
    need say very little about the substance of the trial judges response to this
    request for help. The trial judge repeated the problematic parts of the charge discussed
    above. The re-charge compounded the problem.

[57]

Mr.
    Hicks also argues that the trial judges approach to answering the jurys question
    was wrong. He submits that, instead of simply repeating his original instructions,
    the trial judge ought to have responded to the jurys concerns more
    effectively, by explaining matters in a different way.

[58]

In
    fairness to the trial judge, he attempted to get at the heart of the jurys concerns
    by asking them to be more specific. This is a common and useful practice.
    However, his request for clarification, and the implicit promise of further
    assistance that it conveyed, was undermined by what he told the jury  You
    have to hear it exactly the same way that it was played originally. The jury
    seemed to take this limitation to heart  they simply asked the trial judge to
    replay his instructions on intent.

[59]

The Supreme Court of Canada has stressed the importance of
    answering questions of jurors in the most responsive manner possible. In
R.
    v. Naglik
, [1993] 3 S.C.R. 122, at p. 139, the Court ascribed
    superordinate importance to questions from a jury because they signify the
    areas in which they require assistance in deciding the case. See also
R. v.
    W.D.S.
,
[1994] 3 S.C.R. 521
, at pp. 528-531.

[60]

Sometimes
    repetition of the original instructions will be sufficient (assuming they are
    correct); in other situations, it may be necessary to explain things
    differently: see
R. v. Layton
, 2009 SCC 36, [2009] 2 S.C.R. 540, at
    para. 23. This will depend on the issues in play, the nature of the request for
    assistance, and whether the jury has been provided with a written version of
    the trial judges instructions.

[61]

I
    acknowledge that I come at the issue with the luxury of hindsight, equipped
    with a written version of all instructions to the jury, and augmented by the
    thoughtful submissions of appellate counsel made years after the fact.
    Nevertheless, the trial judge undermined the opportunity to be of assistance to
    the jury by offering only a simple playback of his original instructions. Given
    the serious problems with the instructions on intent in the original charge,
    the jury would have benefited from having things explained differently. Had this
    been done, repetition of the erroneous portions may have been avoided, and the
    instructions as a whole possibly salvaged.

[62]

Lastly,
    I deal with the lack of objection by counsel. Although defence counsel objected
    to some portions of the charge, the most problematic passages were left
    unchallenged.

[63]

On
    appeal, the Crown argues that this lack of objection is an indication that the
    charge was adequate. However, this argument cannot win the day because the
    impugned passages contain legal errors going to the heart of the case: see
R.
    v. Newton
, 2017 ONCA 496, at para. 24; and
R. v. Maciel
(2007),
    219 C.C.C. (3d) 516 (Ont. C.A.), leave to appeal refused, [2007] 3 S.C.R. xi
    (note), at para. 97.

[64]

I
    agree that defence counsel ought to have been alive to these issues and should
    have brought them to the trial judges attention. The Crown should also bring
    legal errors it spots in a charge to the trial judges attention. Had either
    defence or Crown identified the problems with the trial judges instructions, the
    need to order a new trial may have been avoided.

[65]

In
    conclusion, I would allow the appeal and order a new trial on this ground.

(2)

The Instruction on First Degree Murder

[66]

The
    appellant submits that the trial judge erred in the manner in which he defined
    the word deliberate for the jury. He also contends that the trial judge
    failed to sufficiently relate the evidence to the elements of planning and
    deliberation. Because there must be a new trial, discussing how this trial
    judge reviewed the evidence for the jury serves little purpose. However, the
    manner in which the trial judge defined the term deliberate deserves
    consideration. As I will explain, the trial judges instructions on the
    deliberation needed for first degree murder were not ideal, but neither were
    they inadequate.

[67]

Section
    s. 231(2) of the
Criminal Code
provides that: Murder is first degree
    murder when it is planned and deliberate. The
Code
provides no
    further guidance on the meaning of these terms.

[68]

Over
    the years, the courts have grappled with finding the best way to instruct
    juries on this concept: see e.g.
More
, at pp. 533-534; and
The
    Queen v. Mitchell
, [1964] S.C.R. 471, at pp. 474-475. See also the
    discussion in Don Stuart,
Canadian Criminal Law  A Treatise
, 7th ed.
    (Toronto: Carswell, 2014), at pp. 273-275. In
R. v. Nygaard
, [1989] 2
    S.C.R. 1074, the Court held that the following definition was appropriate to
    leave with juries, at p. 1084:

As far as the word deliberate is concerned, I think that the
Code
means that it should also carry its natural meaning of considered, not
    impulsive, slow in deciding, cautious, implying that the accused must take
    time to weigh the advantages and disadvantages of his intended action.

[69]

This
    definition is used in David Watt,
Watts Manual of Criminal Jury
    Instructions
, 2nd ed. (Toronto: Carswell, 2015). In Final Instruction
    231-A (Planned and Deliberate First Degree Murder), at p. 691, the following
    definition for deliberate is recommended:

Deliberate is
not
a word that we often use when
    speaking to other people. It means considered, not impulsive, carefully
    thought out, not hasty or rash, slow in deciding, cautious.

A
deliberate
act is one that the actor has taken time
    to weigh the advantages and disadvantages of. The deliberation must take place
before
the act of murderstarts. A murder committed on sudden impulse and without
    prior consideration, even with an intention to kill is
not
a
    deliberate murder. [Emphasis in original.]

[70]

During
    the Pre-Charge Conference, the trial judge advised counsel that he would not
    rely upon this definition in its entirety.
[1]
He decided to remove the words slow in deciding and cautious. He explained:
    They have nothing to do with this context. It doesn't mean anything in English
    anyway. The trial judge instructed the jury as follows:

A deliberate act is one that the actor has taken time to weigh
    the advantages and disadvantages of. Deliberate in this context means
    considered not impulsive, carefully thought out, not hasty or rash. That
    deliberation must take place before the act of murder, before, in this case the
    discharging of the firearm. A murder committed on a sudden impulse and without
    prior consideration, even with an intention to kill, is not a deliberate
    murder.

[71]

Neither
    defence counsel nor Crown counsel at trial objected to this definition. The
    appellant now contends that the removal of the words slow in deciding and
    cautious was capricious, amounting to reversible error. I disagree.

[72]

The
    characterization of the trial judges decision as capricious is unnecessary
    and unhelpful. Clearly, the trial judge was attempting to assist the jury in
    understanding s. 231(2) of the
Criminal Code
.

[73]

The
    Crown argues that there is no singular way to instruct a jury on the elements
    of planning and deliberation. She contends that the definition the trial judge employed
    properly conveyed the meaning of that section of the
Criminal Code
:
    see
Daley
, at para. 30.

[74]

The terms slow in deciding and cautious have long been considered
    to be an important part of the definition of deliberate in this context. In
    this province, the use of this terminology can be traced back to
R.
    v. Widdifield
(September 29 1961), (Ont.
    H.C.J.), an unreported trial decision of Gale J., as he then was, whose jury
    charge was reproduced in part in Capital MurderDrunkenness (1963-64), 6
    Crim. L.Q. 152, at p. 153. It is used regularly by trial judges in this
    province, and elsewhere. The formulation also has been endorsed by this court:
    see
R. v. Reynolds
(1978), 22
    O.R. (2d) 353 (C.A.), at pp. 361-62;
R. v. Hay
, 2009 ONCA 398, 249 O.A.C. 24, revd on other grounds, 2013 SCC 61,
    [2013] 3 S.C.R. 694, at paras. 80-81;
R. v. Stiers
, 2010 ONCA 382, 255 C.C.C. (3d) 99, leave to appeal refused, [2011]
    S.C.C.A. No. 150, at para. 66; and
R. v. Smith
,
    2014 ONCA 324,
308 C.C.C. (3d) 254
, at para. 29. As
    noted above, the Supreme Court of Canada approved of this wording in
Nygaard
. Moreover, Watt J.A.s Final Instruction 231-A was specifically
    approved of by the Supreme Court of Canada in
R. v. Banwait
, 2010 ONCA 869, revd 2011 SCC 55, [2011] 3 S.C.R. 533, at paras.
    181-82.

[75]

In
    my view, there is little reason to depart from the settled definition of
    deliberate, which has stood the test of time, and which has received the
    stamp of approval from the Supreme Court of Canada. With respect to the trial
    judge, I am unable to understand why he considered these terms to be
    inapplicable or unhelpful in this case.

[76]

However,
    in all of the circumstances, I would not give effect to this ground of appeal.
    I accept Ms. Thomas submission that, notwithstanding the trial judges ill-advised
    departure from accepted parlance, the meaning of planned and deliberate was
    adequately conveyed to the jury.

[77]

At
    trial, counsel for the appellant did not object to this alteration to the standard
    instruction. This is not surprising. The appellants own utterances overwhelmingly
    support the view that he
did
plan and deliberate on his actions. He
    remained in the basement with the gun for 15 minutes before going upstairs. The
    central issue was
what

the appellant planned to do  kill Jonah,
    or merely scare him. In his closing address to the jury, defence counsel spent
    very little time on the issue of planning and deliberation. His main focus was
    on the intent for murder in s. 229(a) of the
Criminal Code
.

E.

Conclusion and disposition

[78]

I
    would allow the appeal and order a new trial on the charge of first-degree
    murder.

Released:

SP                                                    G.T.
    Trotter J.A.

JUL 26 2017                                    I agree
    R.G. Juriansz J.A.

I
    agree S.E. Pepall J.A.





[1]
The trial judge used the earlier version of Justice Watts book:
Watts
    Manual of Criminal Jury Instructions
(Toronto: Carswell,
    2005), Final Instruction 231-A (Planned and Deliberate First Degree Murder), at
    p. 438.


