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APPEALS - Grounds - Misapprehension of or failure to consider evidence - Unreasonable verdict - Powers of appellate court - New trial

Friday, August 18, 2017 @ 8:47 AM  


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Appeal by the accused from his convictions of first degree murder. The victim, a woman who was addicted to crack cocaine, was found naked in a wooded park area. Semen deposits in and on the victim’s body conformed to the accused’s DNA profile. In a recorded interview, the accused admitted to having intercourse with the victim. However, her cause of death was deemed “unascertained” following a post-mortem, which meant there was more than one possible explanation for why she died. The accused raised three grounds of appeal. First, the accused argued that the trial judge erred in admitting evidence of extrinsic misconduct (a sexual assault) and in instructing the jury on its use in determining whether the Crown had proven the accused’s guilt beyond a reasonable doubt. The trial judge characterized this evidence as evidence that established a specific propensity on the part of the accused to do what was alleged against him, namely to inflict a high degree of violence in the course of a sexual assault. The trial judge had instructed the jury that the evidence could assist the jury in a number of determinations, including whether the accused caused the victim’s death. Second, the accused argued that the jury’s verdict was unreasonable on the issues of causation and the fault element in murder. Last, the accused argued that the trial judge erred in his instructions to the jury on causation and on the fault element in murder. The accused also sought leave to introduce new expert evidence about the victim’s cause of death.

HELD: Appeal allowed. The conviction was set aside and a new trial was ordered. The trial judge erred in admitting the evidence of extrinsic misconduct and in instructing the jury about its use in determining whether the Crown had proven its case against the accused beyond a reasonable doubt. The case for the Crown was entirely circumstantial. The pathologist who conducted the post-mortem could not say positively how the deceased had died. These issues framed the inquiry into the admissibility of the evidence of extrinsic misconduct. Evidence of a subsequent event that lacked the degree of similarity necessary when tendered to establish identity and accompanied by significant moral prejudice, including a conviction for aggravated assault, an essential element in one of the offences with which the accused was charged, was admitted at trial when it should have been excluded. As such, the jury was not entitled to consider that evidence in reaching their verdict. The wrongful admission of the evidence, coupled with instructions that permitted its use beyond what would have been authorized had it been admissible on the issue of identity, tainted the verdicts reached at trial to such an extent that a new trial was required. However, the jury’s finding that the accused unlawfully caused the death of the deceased, a finding that was essential for them to make in concluding that the accused was guilty of first degree murder, was not set aside as unreasonable. Even if it had been admitted, the proposed fresh evidence would not have rendered unreasonable a contrary finding on the causation issue. The accused’s argument on the unreasonable verdict ground treated the pathological evidence of the unlikelihood of death as dispositive of the proof of the fault element required to make an unlawful killing murder. Although the expert evidence may have been of some assistance on the issue, it was not dispositive of it. It was unnecessary to decide whether the trial judge’s final instructions to the jury on causation and the fault element in murder were correct; however, the trial judge’s instructions on the fault element in murder were deficient in one respect, namely that he failed to point out the particular evidence that, although the head injuries could have caused death, it was unlikely they had done so.

R. v. McDonald, [2017] O.J. No. 3498, Ontario Court of Appeal, J.C. MacPherson, E.A. Cronk and D. Watt JJ.A., July 5, 2017. Digest No. TLD-August142017010