Focus On

EVIDENCE - Methods of proof - Inferences - From conduct

Friday, December 29, 2017 @ 8:17 AM  


Lexis Advance® Quicklaw®
Appeal by the accused, Lumberjack, from a conviction for second degree murder. The accused and victim spent a day and evening drinking and socializing. An argument escalated to violence. The victim swung a baseball bat at the accused. The accused produced a knife. A prolonged fight ensued, during which the accused stabbed the victim eight times. The victim died from his injuries. After the fight, the accused called 911 and told the dispatcher that he stabbed the victim after the victim had tried to break into his house. The accused washed his clothes and the knife prior to the arrival of police. At a trial before a judge and jury, the accused advanced a defence of self-defence, and partial defences of provocation and intoxication. No limiting instruction was sought in respect of the accused's post-offence conduct. The Crown focused on whether the post-offence conduct supported an air of reality to the intoxication defence. The jury returned a verdict finding the accused guilty of second degree murder. The accused appealed.

HELD: Appeal allowed. The accused's attempt at concealment of physical evidence reflected consciousness of guilt, and was consistent with someone who was trying to cover up evidence of a stabbing. However, the post-offence conduct of concealment of physical evidence could not reasonably support an inference of intent to commit second degree murder as opposed to manslaughter. That conduct, apart from how it informed the issue of cognition and the degree of intoxication, was therefore equally consistent with manslaughter and murder. The trial judge failed to delineate the uses to which the evidence of concealment of physical evidence could be put, specifically, its probative value regarding intoxication and lack of probative value regarding intention. The trial judge also failed to address the dangers of the use of consciousness of guilt inherent in the concealment of physical evidence in that it was not probative of the intent for any specific offence, and that the jury might misuse the evidence or treat it as more persuasive than was warranted. The error was not inconsequential given the differential verdicts available. A new trial was ordered.

R. v. Lumberjack, [2017] S.J. No. 536, Saskatchewan Court of Appeal, G.R. Jackson, R.K. Ottenbreit and J.A. Ryan-Froslie JJ.A., December 7, 2017. Digest No. TLD-December252017008