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PROCEDURE - Trial judge’s duties - Charge or directions - Defences

Thursday, May 23, 2019 @ 8:29 AM  


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Appeal by the accused from convictions for first degree murder and kidnapping. The deceased was his former girlfriend. The couple met in high school and had a daughter. At the time of the murder, the appellant had custody of the daughter. He wanted sole custody. The deceased was last seen entering the appellant’s truck after meeting him in a coffee shop. Her body was discovered in a shallow grave near the appellant’s home. She was stabbed multiple times. After the deceased disappeared, the appellant told police that he had been jumped by several men who beat him up. He burned his blood-stained clothes. Two hours after he stabbed her to death, the appellant sent a text message to the deceased asking her where she was. After a series of contradictory and implausible accounts, the appellant told investigators that he stabbed the deceased after she attacked him with a knife. The trial Crown argued that the murder was first degree murder because it was planned and deliberate and committed while the appellant was kidnapping the deceased. A jury found him guilty of both offences. The trial judge entered a stay on the count of kidnapping. The appellant alleged the trial judge erred in his charge to the jury in several respects.

HELD: Appeal allowed. New trial ordered. The instructions on post offence conduct were unclear and incomplete and more likely to confuse than to educate the jury about proper use of this evidence. The trial judge erred in instructing the jury that the post offence conduct could be used to rebut the provocation defence. The trial judge’s legal instructions to not use evidence of post-offence conduct to help establish that the murder was planned and deliberate were at odds with the judge’s exposition of the Crown’s position that the appellant’s “I was jumped” disclaimer could be used for that purpose. To the extent that the jury might have resolved these contradictory instructions by considering that the “I was jumped” disclaimer was not evidence of post-offence conduct, and not subject to the cautions associated with this kind of circumstantial evidence, the appellant suffered prejudice as a result. The instruction about the use of post-offence conduct in assessing the statutory partial defence of provocation was prejudicial to the appellant because it related to the principal defence advanced on his behalf. The evidence of post-offence conduct was not relevant for the jury to consider in determining whether the murder of the deceased was reduced to manslaughter by the statutory partial defence of provocation. There was non-direction amounting to misdirection about the verdict and further deliberation consequences of the statutory partial defence of provocation. The cumulative effect of the errors in the trial judge’s charge to the jury compromised the integrity of the verdict the jury rendered. These errors were serious and related to the single defence ultimately advanced on the appellant’s behalf.

R. v. McGregor, [2019] O.J. No. 1998, Ontario Court of Appeal, D. Watt, G.I. Pardu and L.B. Roberts JJ.A., April 17, 2019. Digest No. TLD-May202019008