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EVIDENCE - Methods of proof - Inferences - From conduct

Friday, February 01, 2019 @ 1:49 PM  

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Appeal by the Crown from a judgment of the Nova Scotia Court of Appeal setting aside the accused’s conviction for second degree murder and ordering a new trial. Calnen was charged with second degree murder and indecent interference with human remains in the death of Jordan, his domestic partner. His statement to the police was entirely exculpatory on the second degree murder charge, claiming that Jordan’s death was an accident, but it explained what he did with Jordan’s body. The Provincial Court judge discharged Calnen on the charge of murder as she concluded that no reasonable inference could be drawn that he had animus toward Jordan or intended to kill her. The Crown then proceeded by way of a direct indictment. At trial, the Crown’s case was entirely circumstantial, and it was Calnen’s after-the-fact conduct evidence that supported the strongest inferences about his guilt. The trial judge allowed the after-the-fact conduct as evidence of intent, and the jury convicted Calnen of second degree murder. The majority at the Court of Appeal held that the trial judge had failed to properly instruct the jury. The appeal concerned the inferences that could logically, and legally, be supported by certain after-the-fact conduct evidence.

HELD: Appeal allowed. The test was whether the jury was properly, not perfectly, instructed. The evidence of Calnen’s after-the-fact conduct was admissible as circumstantial evidence on both the issue of causation and the mental element for second degree murder. The trial judge’s detailed limiting instructions on after-the-fact conduct evidence and his caution against drawing speculative inferences from circumstantial evidence were significant factors when assessing the risk that the jury would engage in general propensity reasoning. Both parties were alive to this issue at trial as it was raised on three occasions. Defence counsel’s failure to object on the basis that the trial judge was required to provide a limiting instruction against general propensity reasoning could reasonably have been taken as an indication that the defence considered the charge to be satisfactory and that a limiting instruction would not have been in his client’s interests. Defence counsel made a tactical decision to avoid highlighting the discreditable conduct evidence. The discreditable conduct evidence was used to bolster the truthfulness of Calnen’s exculpatory statement and re-enactment. A limiting instruction against general propensity reasoning risked highlighting the negative impact of Calnen’s discreditable conduct on his credibility. The jury instructions, which both Crown and defence counsel evidently considered to be fair and balanced, properly equipped the jury to decide the case before it. The Crown’s appeal was allowed and Calnen’s conviction for second degree murder restored.

R. v. Calnen, [2019] S.C.J. No. 6,  Supreme Court of Canada, M.J. Moldaver, A. Karakatsanis, C. Gascon, M. Rowe and S.L. Martin JJ., February 1, 2019. Digest No. TLD-January282019012-SCC