R. v. Calnen

R. v. Calnen
Collection
Supreme Court Judgments
Date
2019-02-01
Neutral citation
2019 SCC 6
Report
[2019] 1 SCR 301
Case number
37707
Judges
Moldaver, Michael J.; Karakatsanis, Andromache; Gascon, Clément; Rowe, Malcolm; Martin, Sheilah
On appeal from
Nova Scotia
Subjects
Criminal law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301
Appeal Heard: February 12, 2018 Judgment Rendered: February 1, 2019 Docket: 37707
Between:
Her Majesty The Queen
Appellant
and
Paul Trevor Calnen
Respondent
Coram: Moldaver, Karakatsanis, Gascon, Rowe and Martin JJ.
Reasons for Judgment: (paras. 1 to 71)
Reasons Dissenting in Part: (paras. 72 to 220)
Dissenting Reasons: (paras. 221 to 244)
Moldaver J. (Gascon and Rowe JJ. concurring)
Martin J.
Karakatsanis J.
R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301
Her Majesty The Queen Appellant
v.
Paul Trevor Calnen Respondent
Indexed as: R. v. Calnen
2019 SCC 6
File No.: 37707.
2018: February 12; 2019: February 1.
Present: Moldaver, Karakatsanis, Gascon, Rowe and Martin JJ.
on appeal from the court of appeal for nova scotia
Criminal law — Evidence — Admissibility — Circumstantial evidence — After‑the‑fact conduct — Accused charged with second degree murder in death of domestic partner — Evidence of accused’s after‑the‑fact conduct adduced at trial — Whether after‑the‑fact conduct admissible to prove requisite intent for second degree murder.
Criminal law — Charge to jury — After‑the‑fact conduct — General propensity reasoning — Evidence of accused’s discreditable conduct prior to and after victim’s death adduced at his trial for murder — Whether trial judge properly instructed jury on use of after‑the‑fact conduct — Whether trial judge was required to provide limiting instruction against use of general propensity reasoning given evidence of accused’s discreditable conduct.
The accused was charged with second degree murder and with indecent interference with human remains in the death of his domestic partner. He pled guilty to the interference charge, and was found guilty of second degree murder by a jury. The murder conviction was set aside by the Court of Appeal and a new trial was ordered on a charge of manslaughter. The majority of the Court of Appeal held that the trial judge had failed to properly instruct the jury on the use of evidence of the accused’s after‑the‑fact conduct, which included evidence that the accused had moved, burned, and disposed of his partner’s body, as it related to proof of intent for second degree murder.
Held (Martin J. dissenting in part and Karakatsanis J. dissenting): The appeal should be allowed and the accused’s conviction for second degree murder restored.
Per Moldaver, Gascon and Rowe JJ.: There is agreement with Martin J. that the evidence of the accused’s after‑the‑fact conduct was admissible as circumstantial evidence on both the issue of causation and the mental element for second degree murder. However, there is disagreement with Martin J. on the question of whether the trial judge was required to provide a limiting instruction against general propensity reasoning. Although the trial judge could have given such an instruction, the fact that he did not do so does not amount to reversible error. When the trial judge’s charge is considered fairly, contextually, and as a whole, the jury was properly equipped to decide the case in the absence of such an instruction.
There is agreement with Martin J.’s articulation of the legal principles governing the admissibility of discreditable conduct evidence and its potential for moral and reasoning prejudice. However, there is disagreement with her application of those principles to the facts of this case. Allegations of non‑direction amounting to misdirection must be assessed contextually, in line with the facts and circumstances of the particular case. At trial, the Crown led relevant and admissible evidence of discreditable conduct on the accused’s part that was extrinsic to the offence charged and which can be divided temporally into two broad categories: conduct which preceded the victim’s death and conduct which ensued it. This evidence did not pose such an elevated risk of propensity reasoning that the trial judge was required to provide a limiting instruction against general propensity reasoning.
First, the risk that the jury would engage in general propensity reasoning based on the evidence of the accused’s after‑the‑fact conduct was considerably offset by the trial judge’s introductory and final jury instructions, which were neutral, fair and balanced. The trial judge’s opening instructions and his answer to a question from the jury insulated the jury from reasoning that the accused’s guilty plea to indecent interference with the victim’s remains meant it was more likely that he committed second degree murder. Furthermore, when the trial judge’s final instructions are read fully and fairly, it is clear that he properly equipped the jury to make reasonable inferences from the circumstantial evidence without resorting to specious reasoning or speculation.
Second, experienced defence counsel, well aware of the issue of potential propensity reasoning, did not raise that issue, much less seek a limiting instruction, during the pre‑charge conference while vetting the proposed final jury instructions. Defence counsel was in the best position to assess whether, in the concrete reality of the case at hand, a limiting instruction against general propensity reasoning was desirable. His failure to object to the absence of limiting instructions may be taken as an indication that he felt such an instruction would not have been in the accused’s interest and that it was a deliberate tactical decision. These considerations weigh heavily against concluding that the charge was deficient.
Rather than seeking a limiting instruction against general propensity reasoning, the accused adopted a strategy of using the discreditable conduct to bolster the credibility of his exculpatory statement and re‑enactment, upon which his defence of accidental death rested. That the defence adopted a deliberate strategy to use the discreditable conduct evidence to its own advantage is an important factor that distinguishes this case from others where the discreditable conduct evidence plays no part in the defence theory and is little more than a breeding ground for the moral and reasoning prejudice about which Martin J. expresses concern. Given the strategy adopted by the defence, a limiting instruction against general propensity reasoning would have risked highlighting the negative impact of the accused’s discreditable conduct on his credibility and thereby unravelling his defence — a risk which the defence chose not to take. The defence made a legitimate tactical decision at trial and lost and it must live with the consequences of that decision. The accused had a fair trial. The jury instructions, which both Crown and defence counsel evidently considered to be fair and balanced, properly equipped the jury with the tools they needed to decide the case before it and, in particular, adequately guarded against the risk of general propensity reasoning. That they could have been more fulsome is not the issue. In the circumstances, the principle of finality must prevail.
Per Martin J. (dissenting in part): The after‑the‑fact conduct evidence in this case was admissible for the purposes of determining both causation and intent and the jury charge was sufficient to explain the uses that could be made of this after‑the‑fact conduct evidence and the possible general risks that it posed. However, there is disagreement with the majority that the jury instructions adequately guarded against the risk of propensity reasoning. The jury ought to have been warned about the specific risks of prohibited propensity reasoning associated with the after‑the‑fact conduct, as well as other evidence about the accused’s character, conduct and lifestyle. The appeal should therefore be allowed in part. The decision of the Court of Appeal to set aside the accused’s second degree murder conviction should be upheld, however, a new trial should be ordered on the charge of second degree murder.
After‑the‑fact conduct encompasses what the accused both said and did after the offence charged in the indictment was allegedly committed and it is highly context and fact specific. After‑the‑fact conduct is circumstantial evidence and like other forms of circumstantial evidence, it allows a fact finder to draw particular inferences based on a person’s words or actions. A range of inferences may be drawn from the after‑the‑fact conduct evidence but in order to draw inferences, the decision maker relies on logic, common sense, and experience. It will be for the jury or judge to determine which inferences they accept and the weight they ascribe to them. When evidence is admissible for one purpose, but not for another, the finder of fact, whether judge or jury, needs to be mindful of and respectful of its permissible and impermissible uses. In such cases, a specific instruction to a jury that certain evidence has a limited use or is of no probative value on a particular issue is required.
After‑the‑fact conduct evidence may give rise to imprecise reasoning because of its temporal element and may encourage decision makers to jump to questionable conclusions. To meet the general concern that such evidence may be highly ambiguous and susceptible to jury error, the jury must be told to take into account alternative explanations for the accused’s behaviour. In this way, jurors are instructed to avoid a mistaken leap from such evidence to a conclusion of guilt when the conduct may be motivated by and attributable to panic, embarrassment, fear of false accusation, or some other innocent explanation. Trial judges should also consider whether any further specific limiting instruction or cautions may be required to counter any of the specific reasoning risks associated with the particular after‑the‑fact conduct at issue.
There is no legal impediment to using after‑the‑fact conduct evidence in determining the accused’s intent. Whether or not a given instance of after‑the‑fact conduct has probative value with respect to the accused’s level of culpability depends entirely on the specific nature of the conduct, its relationship to the record as a whole, and the issues raised at trial. What steps were taken, when they were taken, and at what risk may all be factors to consider when assessing the nature of the conduct in a particular case. Finally, when assessing the actions of an accused and the inferences that may be drawn from the after‑the‑fact conduct at the admissibility or no probative value stage, the trial judge may take into account the disproportionality between the explanation proffered and the conduct at issue.
It is an error to relegate after‑the‑fact conduct evidence to a supporting or secondary role and there is a need to maintain the distinction between the threshold admissibility of evidence and the separate issue of whether the Crown has met its ultimate burden of establishing guilt of the accused beyond a reasonable doubt. The test for the admission of evidence is first focused on relevance and the tendency of the evidence to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence. It is at the end of the case, when all the evidence has been heard, that the fact finder is required to determine how much, if any, weight they will place on this evidence, how it fits with other evidence, and whether, based on the totality of the evidence, the Crown has proved the charges beyond a reasonable doubt. The absence of supporting physical evidence does not, as a general rule, make the inference sought speculative. If the totality of the evidence satisfies the chain of reasoning for a particular inference, then that inference is available — regardless of whether supporting physical evidence is part of the evidentiary record.
The mere existence of two or more plausible explanations for given after‑the‑fact conduct does not make that conduct equally consistent with those explanations such that a proffered inference may lose its probative force. The fact that multiple explanations can be produced for after‑the‑fact conduct does not automatically mean that that conduct is equally consistent with multiple offences — it simply means that alternative explanations exist and are arguable. As long as the evidence is more capable of supporting the inference sought than the alternative inferences, then it is up to the fact finder, after considering all explanations, to determine what, if any, inference is accepted, and the weight, if any, to be provided to a piece of circumstantial evidence.
Here, the nature of the conduct (the accused’s successful destruction of the deceased’s body and with it any evidence of her injuries), its relationship to the evidentiary record (which includes evidence of a relationship fraught with discord, including violence and threats of suicide), and the issues raised at trial (the Crown’s theory that the accused destroyed the body to hide the nature and extent of the injuries) indicate that the evidence was relevant to the accused’s level of culpability. The after‑the‑fact conduct evidence makes the proposition — that the accused intended to cause the deceased bodily harm knowing that it was likely to cause her death and was reckless as to whether death ensued —– more likely than that proposition would be in the absence of this evidence. It was open to the trial judge to determine that the accused’s attempts to conceal and destroy the deceased’s body were out of all proportion to either the claim that this was an accidental death and/or to the offence of manslaughter. The relevant, reasonable and rational inference that the jury could draw regarding the accused’s level of culpability, on the basis of the after‑the‑fact conduct evidence, is that the accused concealed and destroyed the deceased’s body in order to conceal the nature and extent of her injuries and the degree of force required to inflict them. His successful destruction of this evidence is out of all proportion to the explanation put forward of an accident and could support the inference that the accused sought to conceal this evidence and to hide not only the existence of a crime, but its extent.
Trial judges bear the ultimate responsibility for the content, accuracy and fairness of the jury charge, but both Crown and Defence counsel are obliged to assist the trial judge and identify what in their opinion is problematic with the judge’s instructions to the jury. Jury charges do not have to adhere to prescriptive formulas — it is the substance of the charge that matters. There is agreement with the majority that the jury charge in this case adequately guarded against the risks that are generally associated with after‑the‑fact conduct evidence. The jury instructions adequately differentiated between using the after‑the‑fact conduct evidence in relation to causation and intent.
This case, however, would be very close to the line when it came to determining whether the Crown met its ultimate burden of establishing each constituent element of second degree murder beyond a reasonable doubt. There was no evidence as to the cause of death other than the accused’s statement and his after‑the‑fact conduct. The case was based on circumstantial evidence and the jury was asked to engage in inferential reasoning and there were reasonable inferences other than murder which could be drawn from the evidence. Further, the fine line between innocence and guilt was reflected in the fact that not only were the judges divided on the main legal issues, but the accused was discharged at a preliminary inquiry.
In admitting the contested after‑the‑fact conduct evidence, the trial judge correctly decided that the probative value of the evidence outweighed its prejudicial effects. However, the conclusion that the evidence was more probative than prejudicial did not negate the trial judge’s responsibility to meet and address any specific propensity prejudice of that evidence in the jury charge. Clear instructions to the jury about the uses that they could and could not make of the discreditable conduct evidence were essential. The after‑the‑fact conduct evidence, while admissible for the purposes of causation and intent, bore all the hallmarks of propensity evidence that could, absent proper limiting instructions, import both moral prejudice and reasoning into the jury’s analysis. The nature of the accused’s after‑the‑fact conduct was likely to elicit a strong emotional reaction in the jurors. Burning the deceased’s body was morally and viscerally repugnant. The disturbing nature of the conduct was made clear to the jury. The nature of the evidence, while admissible, ushered in a significant risk that the accused would be convicted of second degree murder not because the jury had concluded beyond a reasonable doubt that he had killed the deceased, but because his after‑the‑fact conduct had convinced the jurors that he was the sort of person who would kill. There was the further risk of reasoning prejudice. As the jurors assessed whether the totality of the evidence established causation and intent beyond a reasonable doubt, they were likely to be experiencing the precise mix of revulsion and condemnation that could deflect them from a rational and dispassionate analysis of the evidence. Without an express limiting instruction, jurors cannot be expected to know that at the same time that they are being told to use common sense, they are in fact prohibited from engaging in what many jurors may also see as just another form of common sense reasoning: propensity reasoning. The reason judges caution against propensity reasoning is precisely because this form of thinking is recognized as being so intuitive and powerful. In this instance, the jurors could not have understood the potentially poisonous nature of propensity evidence, and the manner in which the law has circumscribed its use, without an express instruction on the issue.
The failure of the trial judge to provide a limiting instruction on propensity reasoning is best seen here as an error of law under s. 686(1) (a)(ii) of the Criminal Code . There is an undeniable connection between the allegation of an unreasonable verdict and an error of law, because the error of law meant the jury was not properly instructed and was not, therefore, equipped to reach a reasonable verdict. Given that this was an error of law, the Crown would be able to rely on the curative proviso if the legal error was harmless or if the evidence against the accused was so overwhelming that a trier of fact would inevitably convict. In this case, however, the legal error was not harmless. Even though a jury charge does not have to be perfect, and this was a single omission in a comprehensive charge, the trial judge’s failure to provide a limiting instruction on propensity resulted in a jury that was not properly instructed to assess the key piece of evidence supporting the Crown’s theory of guilt. Further, the evidence was not such that the jury would inevitably convict on second degree murder. It was open to the jury to conclude that the evidence did not establish any criminal culpability. A verdict of not guilty, or guilty on manslaughter, rather than murder, was also possible in this case. The reasonableness of any verdict of second degree murder could only be assessed if jurors knew they could not reason that because the accused destroyed the deceased’s body in the manner that he did, he was the type of person who would have murdered her. The trial judge’s instructions were not correct in law on this point and the remedy is not an acquittal, but a new trial.
There is disagreement with the majority that Defence counsel’s failure to request a limiting instruction against general propensity reasoning at the pre‑charge conference may reasonably be taken as an indication that Defence counsel considered the charge to be satisfactory and that a limiting instruction would not be in his client’s interests. Great caution needs to be used when speculating about why counsel acted in a particular manner at trial. Whether the Defence counsel’s decisions were tactical or not, a lawyer’s position on the appropriate parameters of a jury charge, driven by tactical considerations, cannot change the law that a jury that engages in propensity reasoning is a jury that is not acting judicially.
Lastly, the principle of finality does not come into play in the manner framed by the majority. This is not a case in which the Defence made a legitimate tactical decision at trial and lost. Rather, this is a case in which regardless of the Defence counsel’s tactical decisions, the jury was not properly instructed and was therefore unable to reach a reasonable verdict. At stake was nothing less than the accused’s right to a fair trial based on lawful reasoning. Where an individual is at risk of wrongful conviction, the principle of trial fairness outweighs that of finality as it is a fundamental principle of justice, protected by the Canadian Charter of Rights and Freedoms , that the innocent must not be convicted. In the case at bar, the jury was presented with highly prejudicial conduct evidence and was not adequately instructed on the prohibited uses of that evidence. The risk that the jury engaged in propensity reasoning is real and directly undermined the accused’s right to be presumed innocent until proven guilty. In such circumstances, the principle of finality cannot, and does not, supersede the accused’s right to a fair trial.
Per Karakatsanis J. (dissenting): There is agreement with the general principles set out by Martin J. regarding the admissibility of after‑the‑fact conduct, but there is disagreement with Martin J. and the majority on the application of those principles to the evidence in this case. The evidence in this case was not probative of intent for murder and a directed verdict of acquittal should have been granted. The appeal should be dismissed.
Evidence of after‑the‑fact conduct is not fundamentally different from other types of circumstantial evidence and may be used to demonstrate culpability. In certain circumstances, it may also be used to ground an inference with respect to an accused’s degree of culpability; that is, whether the accused had the mens rea required for a given offence. However, its relevance and probative value must be assessed on a case‑by‑case basis. Whether or not after‑the‑fact conduct is probative with respect to an accused’s intent for a specific offence depends entirely on the specific nature of the conduct, its relationship to the record as a whole, and the issues raised. To be relevant, such evidence must have some tendency to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence. However, if conduct could be equally explained by or equally consistent with two or more offences, it is not probative with respect to determining guilt as between the offences. Admissibility of evidence as to the state of the accused’s mind at the time of the offence turns on whether the after‑the‑fact conduct is capable of being more consistent with intent for murder than with manslaughter. It falls to the jury to determine whether the conduct was or was not equally consistent with murder and manslaughter beyond a reasonable doubt, if they can do so based on common sense, experience and logic, rather than bare speculation. However, a trial judge does not usurp a jury’s function, by determining that the conduct could not, in the circumstances of the case, assist in differentiating between second degree murder and manslaughter, and is thus inadmissible as evidence of the specific intent required for second degree murder.
In this case, the accused’s destruction of the deceased’s body was inadmissible as evidence of intent for second degree murder. While the accused’s conduct in destroying the body is relevant to the issue of whether he unlawfully caused the deceased’s death and was admissible for that purpose, it cannot assist in distinguishing between manslaughter and second degree murder. The evidence here did not yield any information about the extent of the injuries. Without evidence to that effect, an inference regarding mens rea is grounded on speculation about what the evidence might have revealed about the injuries. There is no logical connection linking the after‑the‑fact conduct evidence in this case to an intent for second degree murder that does not equally speak to the possibility of manslaughter. It flies in the face of logic to suggest that a person would only go to great lengths to cover up an intentional homicide, but not an unintentional one. Further, the evidence relating to motive and animus here cannot assist the jury in finding that the after‑the‑fact conduct makes it more likely the accused had the intent for second degree murder rather than manslaughter, because it is equally supportive of both.
There is agreement with Martin J. that the failure to provide instructions warning the jury of the dangers of propensity reasoning requires a new trial in this case. Because the after‑the‑fact conduct evidence was admissible to show culpable homicide but not prove second degree murder, the jury required strong direction as to the limitations of its use. The evidence relating to the relationship between the accused and the deceased and to the circumstances surrounding the day of the deceased’s death did not provide any evidence upon which a reasonable jury, properly instructed, could find the accused guilty of second degree murder.
Cases Cited
By Moldaver J.
Referred to: R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433; R. v. White, [1998] 2 S.C.R. 72; R. v. W. (D.), [1991] 1 S.C.R. 742; R. v. Kociuk, 2011 MBCA 85, 278 C.C.C. (3d) 1; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689; R. v. R.T.H., 2007 NSCA 18, 251 N.S.R. (2d) 236; Thériault v. The Queen, [1981] 1 S.C.R. 336; R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, leave to appeal refused, [2010] 3 S.C.R. vi; R. v. Minor, 2013 ONCA 557, 303 C.C.C. (3d) 382; R. v. T. (J.A.), 2012 ONCA 177, 288 C.C.C. (3d) 1; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908; R. v. Mariani, 2007 ONCA 329, 220 C.C.C. (3d) 74; R. v. Smith, 2007 ABCA 237, 225 C.C.C. (3d) 278; R. v. G. (S.G.), [1997] 2 S.C.R. 716; R. v. Sheriffe, 2015 ONCA 880, 333 C.C.C. (3d) 330; R. v. Malik, 2005 CanLII 15453; R. v. Bukmeier (1998), 103 B.C.A.C. 303; R. v. F. (J.), 2011 ONCA 220, 105 O.R. (3d) 161, aff’d 2013 SCC 12, [2013] 1 S.C.R. 565; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520; R. v. M. (P.S.) (1992), 77 C.C.C. (3d) 402; R. v. St‑Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328.
By Martin J. (dissenting in part)
United States of America v. Shephard, [1977] 2 S.C.R. 1067; R. v. Peavoy (1997), 117 C.C.C. (3d) 226; R. v. Mujku, 2011 ONCA 64, 226 C.R.R. (2d) 234; R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760; R. v. Rowbotham, [1994] 2 S.C.R. 463; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433; R. v. Arp, [1998] 3 S.C.R. 339; R. v. White, [1998] 2 S.C.R. 72; R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534; R. v. Allen, 2009 ABCA 341, 324 D.L.R. (4th) 580; R. v. Arcangioli, [1994] 1 S.C.R. 129; R. v. Jackson, 2016 ONCA 736, 33 C.R. (7th) 130; R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143; R. v. Teske (2005), 32 C.R. (6th) 103; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26; R. v. Cooper, [1993] 1 S.C.R. 146; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523; R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3; R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180; R. v. Yebes, [1987] 2 S.C.R. 168; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Lifchus, [1997] 3 S.C.R. 320; Harrison’s Trial (1692), 12 How. St. Tr. 833; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908; R. v. D. (L.E.) (1987), 20 B.C.L.R. (2d) 384; R. v. B. (F.F.), [1993] 1 S.C.R. 697; R. v. Burns, [1994] 1 S.C.R. 656; F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689; Quan v. Cusson, 2009 SCC 62, [2009] 3 S.C.R. 712; R. v. S. (P.L.), [1991] 1 S.C.R. 909; R. v. O’Brien, 2011 SCC 29, [2011] 2 S.C.R. 485; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823; R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716; Thériault v. The Queen, [1981] 1 S.C.R. 336; R. v. Chambers, [1990] 2 S.C.R. 1293; R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581; R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198; R. v. MacLeod, 2014 NSCA 63, 346 N.S.R. (2d) 222; R. v. R.T.H., 2007 NSCA 18, 251 N.S.R. (2d) 236; R. v. Smith, 2007 ABCA 237, 77 Alta. L.R. (4th) 327; R. v. G. (S.G.), [1997] 2 S.C.R. 716; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520; R. v. St‑Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328; Palmer v. The Queen, [1980] 1 S.C.R. 759; McMartin v. The Queen, [1964] S.C.R. 484; R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696; R. v. Leipert, [1997] 1 S.C.R. 281; R. v. Mills, [1999] 3 S.C.R. 668.
By Karakatsanis J. (dissenting)
R. v. Creighton, [1993] 3 S.C.R. 3; R. v. White, [1998] 2 S.C.R. 72; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433; R. v. Arcangioli, [1994] 1 S.C.R. 129; R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760; R. v. Teske (2005), 32 C.R. (6th) 103.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 11 (d).
Criminal Code, R.S.C. 1985, c. C‑46, ss. 182 (b), 235 , 548(1) , 686(1) (a)(i), (ii), (b)(iii).
Authors Cited
Paciocco, David M. “Simply Complex: Applying the Law of ‘Post‑Offence Conduct’ Evidence” (2016), 63 Crim. L.Q. 275.
Tanovich, David M. “Angelis: Inductive Reasoning, Post‑Offence Conduct and Intimate Femicide” (2013), 99 C.R. (6th) 338.
APPEAL from a judgment of the Nova Scotia Court of Appeal (MacDonald C.J. and Scanlan and Bourgeois JJ.A.), 2017 NSCA 49, 358 C.C.C. (3d) 362, [2017] N.S.J. No. 232 (QL), 2017 CarswellNS 825 (WL Can.), setting aside the accused’s conviction for second degree murder and ordering a new trial. Appeal allowed, Martin J. dissenting in part and Karakatsanis J. dissenting.
Jennifer A. MacLellan, Q.C., and Kenneth W. F. Fiske, Q.C., for the appellant.
Peter Planetta, for the respondent.
The judgment of Moldaver, Gascon and Rowe JJ. was delivered by
[1] Moldaver J. — I have had the benefit of reading the reasons of my colleague Justice Martin. In her reasons, my colleague provides a thorough and comprehensive review of the facts, and I see no need to replicate her work.
[2] Furthermore, I agree with Justice Martin, for the reasons she has given, that the evidence of Mr. 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. Accordingly, I also agree with my colleague that it is unnecessary to address the directed verdict issue.
[3] My colleague takes the position that it was essential for the trial judge to provide a limiting instruction against general propensity reasoning — namely, the reasoning that because Mr. Calnen was a person of bad character who engaged in disreputable and morally repugnant conduct, he was more likely to have committed the crime charged. His failure to provide such a limiting instruction, in her view, renders the jury’s verdict of second degree murder suspect and warrants a new trial.
[4] As a preliminary matter, I am of the view that the alleged error upon which my colleague would order a new trial is properly characterized as an alleged error of law under s. 686(1) (a)(ii) of the Criminal Code, R.S.C. 1985, c. C-46 , as opposed to an unreasonable verdict under s. 686(1) (a)(i). The distinction is an important one from the Crown’s perspective because in an appropriate case where the error comes within s. 686(1) (a)(ii), the Crown would be able to rely on the curative proviso under s. 686(1) (b)(iii) — something it could not do if the case truly involved an unreasonable verdict as contemplated under s. 686(1) (a)(i). To be clear, however, this is not a case where the Crown needed to rely on the curative proviso because, as I will explain, there was no legal error that required its use.
[5] On the question of whether the trial judge was required to provide a limiting instruction against general propensity reasoning, I must respectfully part ways with my colleague. In my view, although the trial judge could have given such an instruction, the fact that he did not do so does not amount to reversible error. Put simply, this is not a case of a non-direction amounting to misdirection.
[6] When the trial judge’s charge is considered fairly, contextually, and as a whole, I am satisfied that the jury was properly equipped to decide the case in the absence of a limiting instruction against general propensity reasoning. And I am not alone in this. Experienced defence counsel at trial seemed to be of the same view. Were it otherwise, I would have expected him to seek the kind of limiting instruction which my colleague now says was both obvious and crucial — and to have forcefully objected had the trial judge not capitulated. And yet, as we shall see, defence counsel did neither, despite being acutely aware, as my colleague points out, of the emotive and discreditable evidence which, in her view, “very likely” caused the jury to reach a verdict on second degree murder that was irreparably tainted by moral and reasoning prejudice: Martin J.’s reasons, at para. 191.
[7] With respect, for reasons that follow, I do not share my colleague’s concerns. Accordingly, I would allow the appeal and restore Mr. Calnen’s conviction for second degree murder.
I. Standard of Review
[8] An appellate court undertakes a functional approach in reviewing a jury charge, asking whether the charge as a whole enabled the trier of fact to decide the case according to the law and the evidence: R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 49; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32. As Bastarache J. wrote in R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 30:
The cardinal rule is that it is the general sense which the words used must have conveyed, in all probability, to the mind of the jury that matters, and not whether a particular formula was recited by the judge. The particular words used, or the sequence followed, is a matter within the discretion of the trial judge and will depend on the particular circumstances of the case.
[9] In short, the test is whether the jury was properly, not perfectly, instructed: R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 62. At the end of the day, the overriding question is whether the jury was properly equipped to decide the case absent a limiting instruction against general propensity reasoning.
II. Analysis
[10] I agree with my colleague’s articulation of the legal principles governing the admissibility of discreditable conduct evidence and its potential for moral and reasoning prejudice. However, for reasons I will develop, I respectfully disagree with her application of those principles to the facts of this case.
[11] Allegations of non-direction amounting to misdirection must be assessed contextually, in line with the facts and circumstances of the particular case. At trial, the Crown led relevant and admissible evidence of discreditable conduct on Mr. Calnen’s part that was extrinsic to the offence charged. That evidence can be divided temporally into two broad categories.
[12] First, the Crown adduced discreditable conduct evidence from the period preceding Ms. Jordan’s death. There was evidence that Mr. Calnen habitually used crack cocaine. Further, he apparently had an open and sexually adventurous relationship with Ms. Jordan, in which he encouraged her to perform sex work out of his basement. Also, she once texted a friend, Mr. Weeks, that Mr. Calnen “put his hands on [her]”.
[13] Second, the Crown led discreditable conduct evidence of Mr. Calnen’s conduct after Ms. Jordan’s death, including evidence that he moved and then burned Ms. Jordan’s body while high on crack cocaine and made other attempts to cover up her death, including lying to the police about her disappearance.
[14] Mr. Calnen challenged the admissibility of much of this evidence at trial and again on appeal. Defence counsel argued that Mr. Calnen’s police statement and re-enactment, in which he admitted to burning Ms. Jordan’s body in a drug-fueled panic and lying to various people including the police, was involuntary and lacked probative value. The defence submitted that Ms. Jordan’s text message conversation with Mr. Weeks was inadmissible hearsay, unreliable and incapable of proving motive. Despite these submissions, the trial judge and the Court of Appeal held that most of the disputed evidence was admissible. Furthermore, for the reasons given by my colleague, I am satisfied that the evidence of Mr. 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.
[15] The question remains: Did the relevant and admissible discreditable conduct evidence pose such an elevated risk of propensity reasoning that the trial judge was required to provide a limiting instruction against general propensity reasoning and that his failure to do so amounted to reversible error? My answer to that question proceeds in two parts.
[16] First, the risk that the jury would engage in general propensity reasoning based on the evidence of Mr. Calnen’s after-the-fact conduct was considerably offset by the trial judge’s introductory and final jury instructions, which were neutral, fair and balanced.
[17] Second, experienced defence counsel, well aware of the issue of potential propensity reasoning, did not raise that issue, much less seek a limiting instruction, during the pre-charge conference while vetting the proposed final jury instructions. In short, he signed off on the trial judge’s charge knowing full well that it did not contain the kind of limiting instruction that my colleague now says was both obvious and crucial — and indeed fatal to sustaining Mr. Calnen’s conviction for second degree murder.
[18] In these circumstances, I consider it fair to ask: Why did defence counsel not raise the issue of general propensity reasoning with the trial judge and seek a limiting instruction of the kind that my colleague now says was essential? The answer, as I will explain, is that in all likelihood defence counsel made a deliberate and conscious tactical decision to marshal the discreditable conduct evidence in an attempt to bolster the truthfulness of Mr. Calnen’s out-of-court statement and re-enactment, upon which his defence rested. In these circumstances, while it would have been open to the trial judge to provide a limiting instruction against impermissible propensity reasoning, such an instruction would have had the potential to undermine Mr. Calnen’s credibility and thereby undercut his defence.
[19] I will address these features in turn.
A. Neutral, Fair and Balanced After-the-Fact Conduct Instructions
[20] For reasons that follow, I am satisfied that the trial judge’s introductory instructions on the significance of Mr. Calnen’s guilty plea to indecent interference with Ms. Jordan’s remains, and his final instructions on Mr. Calnen’s after-the-fact conduct, were neutral, fair and bal