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PROCEDURE - Trial judge’s duties - Charge or directions - Inferences of guilt

Friday, July 13, 2018 @ 10:00 AM  

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Appeal by the accused, McLellan, from a conviction for first degree murder, and by the accused, Mullen, from a conviction for second degree murder. The two accused and their friend Barnett formulated a plan to rob a drug dealer’s residence. Mullen and Barnett were armed with loaded handguns. Just prior to entry, Mullen stated he would only proceed if he was not armed and passed the gun to McLellan. The group entered the home and demanded money and drugs. Seconds after the dealer stated he did not know where the drugs and money were hidden, McLellan shot and killed him. The group completed the robbery and left the home. The group was arrested shortly thereafter through tracking one of the victim’s cell phones. At trial, McLellan testified that the gun went off accidentally after the dealer made a sudden move at him and bumped the gun. A jury convicted McLellan of first degree murder. Mullen was acquitted of first degree murder and convicted of second degree murder. McLellan and Mullen appealed.

HELD: McLellan’s appeal dismissed and Mullen’s appeal allowed. The post-offence conduct comprised of the lack of reaction to the shooting, the completion of the robbery, and the failure to assist the victim, was highly relevant to the issue of intent and did not require a “no probative value” instruction to the jury. The post-offence conduct evidence was capable of supporting the inference that the shooting was not accidental, and that Mullen knew murder was a probable consequence of the robbery. Comprehensive and careful instructions mitigated against any potential misuse of the post-offence conduct evidence by the jury. The trial judge’s response to a jury request to rehear a portion of McLellan’s cross-examination did not require providing qualifying evidence to the jury, particularly given the absence of any such request from the defence. There was no basis to interfere with the jury’s finding that McLellan’s direction to the occupants to get on the ground prior to the shooting constituted forcible confinement supporting a first degree murder verdict. However, with respect to Mullen, the trial judge erred in his jury instruction on the mens rea for party liability to murder under s. 21(2) of the Criminal Code. Repeated erroneous instructions, together with the inclusion of the same error in the decision tree, raised the real possibility that the jury believed Mullen only needed to have foresight of death, rather than foresight that death would be caused by another participant with one of the requisite intents for murder. A new trial was ordered for Mullen.

R. v. McLellan, [2018] O.J. No. 2941, Ontario Court of Appeal, D.H. Doherty, P.S. Rouleau and B. Miller JJ.A., June 1, 2018. Digest No. TLD-July92018009