Marcus Spence Appellant And: Her Majesty the Queen Respondent, 2022 NLSC 121

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Spence , 2022 NLSC 121 Date : July 21, 202 2 Docket : 201904G0094 Between: Marcus Spence Appellant And: Her Majesty the Queen Respondent Before: Justice Peter N. Browne Reasons for Judgment On Appeal From: A Decision of the Provincial Court of Newfoundland and Labrador, File # 1317A00702 dated the 15 day of January, 2019. Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Hearing: May 22, 2022

Summary: The Appellant, Marcus Spence, appealed his convictions under s. 15(1) of the Motorized Snow Vehicles and All-Terrain Vehicles Act and Regulations (failure to remain at the scene of an accident) and s. 251 of the Criminal Code (having care or control of a motor vehicle involved in an accident and leaving the scene of the accident with the intent to escape criminal or civil liability). The Court upheld the convictions and found the trial judge did not commit an error in law when drawing the inference of guilt from circumstantial evidence that Mr. Spence was the operator of an ATV that was found overturned next to an injured person. Witnesses

testified that Mr. Spence subsequently left the scene on the ATV before the arrival of the police. The injured party testified he had nomemory of the incident and was not able to say whether he or Mr. Spence was the driver at the time of the accident. Appearances: Robby D. Ash Appearing on behalf of Marcus Spence Trina D. Simms Appearing on behalf of Her Majesty the Queen Authorities Cited: CASES CONSIDERED: Housen v. Nikolaisen, 2002 SCC 33; R. v. Ryan, 2011 NLCA 53; R. v. Noseworthy, 2021 NLSC 115; R. v.Villaroman, 2016 SCC 33; R. v. Dipnarine, 2014 ABCA 328; R. v. Yebes, (SCC), [1987] 2 S.C.R. 168; R. v.

Clark, 2005SCC 2; R. v. Duong, 2019 BCCA 299; R. v. Tahirsylaj, 2015 BCCA 7; R. v. K.P., 2019 NLCA 189; R. v. Robinson, 2017 BCCA 6,aff'd 2017 SCC 52; R. v. De Aquino, 2017 BCCA 36; R. v. Ngo, 2009 BCCA 301; R. v. Munif, 2009 BCCA 451; and R. v. Vickers, 2016BCCA 98; R. v. Boland, 2022 NLCA 30; R. v. Hall, 2010 ONCA 724; R. v. White, (SCC), [1998] 2 S.C.R. 72; and R.v. Calnen, 2019 SCC 6 STATUTES CONSIDERED: Motorized Snow Vehicles and All-Terrain Vehicles Act and Regulations, R.S.N.L. 1990, M-20; andCriminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Browne, J.: INTRODUCTION [1] In R. v.

Spence, 2019 NLPC 1317A00702, Mr. Marcus Spence was convicted of four offences on January 15, 2019. Three ofthe offences were under the Motorized Snow Vehicles and All-Terrain Vehicles Act and Regulations, R.S.N.L. 1990, M-20 (“the Act”)and the fourth was under the Criminal Code, R.S.C. 1985, c.

C-46. [2] He appeals two of the convictions, specifically: a. driving an all-terrain vehicle which was involved in an accident and failing to remain at the scene of an accident, contrary to s.15(1) of the Act; and b. having the care, charge or control of a motor vehicle which was involved in an accident and leaving the scene of the accident withthe intent to escape criminal or civil liability, contrary to s. 251 of the Criminal Code. [3] The grounds of appeal are that: a. the trial judge erred in convicting Mr.

Spence on the basis of circumstantial evidence when other reasonable inferences could havebeen drawn from the evidence tendered at trial; and b. the trial judge relied on post-offence conduct to infer guilt. [4] For the reasons that follow, I conclude the trial judge did not err in finding: a. the person operating the ATV at the time of the accident was Mr. Spence; and b. that Mr. Spence left the scene of the accident with the intent to escape criminal liability.

STANDARD OF REVIEW [5] The standard of appellate review on questions of law is correctness and on findings of fact it is palpable and overriding error.For questions of mixed fact and law and inferences of fact, generally the standard is palpable and overriding error although this can vary

depending on the inferences or the mixture of fact and law (see Housen v. Nikolaisen, 2002 SCC 33 and R. v. Ryan, 2011 NLCA 53). [6] Correctness is a lower standard than palpable and overriding error. If an error of law has occurred, thecorrectness standard permits appellate judges to substitute their findings for those of the trial judge.

If the palpable and overridingerror standard applies, appellate judges must show great deference to trial judges with respect to their findings and inferences (see R. v.Noseworthy, 2021 NLSC 115). [7] Generally speaking, an appeal from conviction in a circumstantial case that seeks to challenge the inferences drawn or rejectedby a trial judge attracts a deferential standard of review. It is "fundamentally for the trier [of] fact to decide if any proposed alternativeway of looking at the case is reasonable enough to raise a doubt" (see R. v.

Villaroman, 2016 SCC 33 at para. 56, citing R. v.Dipnarine, 2014 ABCA 328 at para. 22). [8] In the present appeal, both parties concede the question to be addressed is one of mixed fact and law, namely whether the "trierof fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totalityof the evidence" (see Villaroman at para. 55, citing R. v. Yebes, (SCC), [1987] 2 S.C.R. 168). [9] Mr.

Spence’s counsel asserts that the trial judge’s error attracts the correctness standard whereas Crown counsel argues thetrial judge’s decision attracts deference using the palpable and overriding standard. [10] I must keep in mind the limited scope of appellate review that applies with respect to the inference-drawing process. As JusticeFish stated in R. v. Clark, 2005 SCC 2 at para. 9, ". . .

Appellate courts may not interfere with the findings of fact made and thefactual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. . . ." BACKGROUND [11] On June 11, 2017, Mr. Spence attended a shed party at a local residence in the town of Port aux Choix, NL. After spendingsome time at the party, Mr. Spence left, along with other attendees including Ms. Chantelle Ryan and Mr. Cody Atkins (both of whomtestified at trial), and walked to a nearby bar. [12] Around 3 a.m., Mr. Spence and Ms.

Ryan left the bar and walked across the street where they both got on an ATV. Mr. Spencedrove Ms. Ryan to her residence. At trial, Ms. Ryan testified that they arrived at her residence at approximately 3:45 a.m. and while enroute Mr. Spence received a telephone call from Mr. Atkins. When Mr. Spence dropped her off, he indicated he was going to pick up Mr.Atkins. [13] Sometime after leaving Ms. Ryan’s residence, Mr. Spence and Mr. Atkins were found on Main Street in Port aux Choix near anoverturned ATV. Mr. Atkins was lying on the ground unconscious with an apparent head injury. Mr.

Spence was seen standing in thearea. There were no eye witnesses to the accident. Mr. Spence was last seen operating the ATV after he left Ms. Ryan’s residence. [14] While there were several discrepancies among the witnesses who testified as to what they observed at the accident scene, thecommon thread of their evidence was that Mr. Spence left the accident scene on the ATV while Mr. Atkins was still on the roadway. Mr.Atkins testified he had no memory of riding on the ATV with Mr. Spence. ISSUES [15] The issues on this appeal are as follows: a. Did the trial judge err in finding Mr.

Spence guilty on the basis of circumstantial evidence when other reasonable inferences ofnon-guilt could have been drawn? b. Did the trial judge err in relying on evidence that Mr. Spence left the accident scene as post-offence conduct to infer guilt? Issue 1: Did the trial judge err in failing to draw an inference of non-guilt from the circumstantial evidence presented by the Crown? The position of the Appellant [16] In his factum, Mr. Spence’s legal counsel referred this Court to the Supreme Court of Canada decision in R. v. Villaroman atparas. 17 - 18, 26 and 30.

He posited the trial judge erroneously concluded Mr. Spence was operating the vehicle at the time of theaccident because: a. the accident occurred shortly after the injured party, Mr. Atkins, was picked up by Mr. Spence; b. Mr. Spence left the scene on the same ATV he had been driving earlier before the accident; and c. Mr. Spence left the scene when it was obvious Mr. Atkins was injured. [17] During oral submissions, Mr.

Spence’s legal counsel asserted that while the trial judge stated the law surroundingcircumstantial evidence correctly (i.e. the Villaroman analysis), he erred on a “macro level” by failing to perform the necessary factualanalysis of the evidence when considering other plausible theories or possibilities advanced by the Defence that were otherwiseinconsistent with guilt. Appellant’s submissions at trial [18] At page 150 of the trial transcript, Mr. Spence’s legal counsel suggests to the trial judge that there were three scenarios under

which convictions could be entered: a. the Crown’s theory that Mr. Spence was driving the ATV with Mr. Atkins on the back with Mr. Atkins falling off and hitting his head; b. that Mr. Spence was operating the ATV, struck Mr. Atkins in the roadway and then left the scene; and c. Mr. Spence was operating one ATV and Mr. Atkins another ATV and Mr. Spence crashed into Mr. Atkins and failed to remain at the scene (based on the evidence that there was possibly a second ATV). [ 19 ] At page 151 of the trial transcript, Mr. Spence’s legal counsel then turns to what he considers “other equally likely outcomes” namely: a.

Mr. Atkins was the operator of the ATV with Mr. Spence being the passenger; b. Mr. Atkins was operating the ATV alone with Mr. Spence watching him; c. Mr. Atkins was operating a second ATV and could have fallen off; d. Mr. Spence found Mr. Atkins in the roadway injured after being struck by someone else. He concludes these alternate scenarios by suggesting to the trial judge it is more likely that what occurred involved a factual situation whereby Mr. Spence was not operating the ATV because he was uninjured and Mr. Atkins was. [ 20 ] Finally, at pages 152 - 153 of the trial transcript, Mr.

Spence’s legal counsel then addresses the issue of post-offence conduct (i.e. Mr. Spence leaving the scene). He asserts to the trial judge that post-offence conduct is “just another piece of circumstantial evidence” which can attract a number of different rational conclusions, namely: a. the Crown’s theory, Mr. Spence left the scene because he had care and control of the ATV and there was an accident so he left to escape criminal and civil liability; b. Mr. Atkins was in care and control of the ATV when he got injured and Mr. Spence became scared and emotional and left the scene; c. Mr. Spence let Mr.

Atkins operate the ATV intoxicated and if found out he could lose his ATV; d. Mr. Spence had his ATV on the roadway and had no helmet so not wishing to get caught by the police, he left the scene; and e. Mr. Spence did not wish Mr. Atkins to get in trouble for impaired operation of an ATV so he removed it from the scene. Appellant’s submissions on appeal [ 21 ] In failing to consider and provide an analysis of all of these possibilities in his reasons, the trial judge, instead, relied on post- offence conduct (i.e. evidence that Mr. Spence left the scene where Mr. Atkins was injured) to infer guilt.

This constitutes an error of law, so the standard of review to be applied by this Court should be “correctness” ( see Housen v. Nikolaisen at para. 8 ). [ 22 ] It is on this basis this Court should substitute its own opinion and enter an acquittal. The position of the Respondent [ 23 ] Crown counsel argues a reviewing court should assess the inferences drawn from the circumstantial evidence by considering the evidence as a whole.

It should refrain from taking a piecemeal approach or engage in speculation. [ 24 ] In the present appeal, a fair reading of the trial judge's reasons as a whole do not support the position that he lost sight of the proper process of inference -drawing (see R. v. Noseworthy at para. 77 ; R. v. Duong , 2019 BCCA 299 at para. 64 ; and R. v. Tahirsylaj , 2015 BCCA 7 at paras. 29 , 30 and 38). [ 25 ] She asserts the judge was fully aware of the alternative inferences proffered by Mr. Spence’s legal counsel, and he either implicitly or clearly and emphatically rejected such inferences .

It is not open to this Court to revive them. (See R. v. K.P. , 2019 NLCA 189 at para. 23 ; R. v. Noseworthy at paras. 81 - 83 ; R. v. Robinson , 2017 BCCA 6 at para. 38 , aff'd 2017 SCC 52 ; R. v.

De Aquino , 2017 BCCA 36 at para. 33 ; and Duong at para. 65 ). [ 26 ] I find particularly helpful the reasons of Justice Newberry in Robinson at para. 38 where she made the following comments: [38] . . . this court's task is to determine "whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable inference available on the totality of the evidence." ( Villaroman , at para. 55 .) This does not constitute a different standard of review for circumstantial cases; but it does provide finders of fact and appellate courts with an alternate formulation by which to assess such cases-in the words of Professor Berger, a kind of "inferential litmus test." (At para. 71.) In circumstantial cases, as in non- circumstantial cases , the appellate court may not interfere if the verdict is one that a properly instructed jury could reasonably have rendered. ( Yebes , at para.186.) It is generally the task of the finder of fact to draw the line between reasonable doubt and speculation. ( Villaroman , at para. 71 .) It is not open to a court of appeal to conceive of inferences or explanations that are not reasonable possibilities; nor to attempt to revive evidence or inferences that the trial judge reasonably rejected. ( Grover , at para. 2, quoting from the reasons of Jackson J.A. in the Court of Appeal.) If an appellant is to succeed, an inference other than guilt must be "reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense." ( Villaroman , at para. 36 ).

ANALYSIS [27] In R. v. Villaroman at para. 55, the Supreme Court of Canada clarified that where the Crown's case depends on circumstantialevidence, the question is whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the onlyreasonable conclusion available based on the totality of the evidence. [28] In assessing each case, the trier of fact must consider the evidence and any gaps in the evidence that may result in inferencesother than guilt.

But those inferences must be reasonable and based on logic and experience applied to the evidence or the absence ofevidence, not speculative (see Villaroman, paras. 36 - 37). Circumstantial evidence does not have to totally exclude other conceivableinferences. Alternative inferences must be reasonable, not just possible (para. 42). [29] Villaroman makes clear that it is for the trier of fact in each case, and in this case that is the trial judge, to draw the line thatseparates reasonable doubt from speculation (para. 71).

The question is not whether every trier of fact would have inevitably reached thesame conclusion as did the trial judge, but whether that conclusion was a reasonable one (para. 69). [30] At paras. 44 - 45 of the trial judge’s decision, he noted he was required to consider other plausible theories inconsistent withguilt but that he was also required to consider the cumulative effect of the circumstantial evidence in the context of the entirety of theevidence. [31] At para. 54 and paras. 66 - 71, the trial judge directed his mind as to the legal elements of an offence under

section 251 of theCriminal Code as they bore relevance to the fact that Mr. Spence left the scene of the accident and whether an inference could be drawnthat he did so in order to escape criminal liability. [32] In so doing, however, he noted that the drawing of such an inference depended on the entirety of the evidence presentedparticularly in the context of section 252(2) of the Criminal Code (section 252 of the Code was repealed in 2018) and said the followingat paras. 54, 55 and 68: [54] Section 252(1) of the Criminal Code creates the offence of leaving the scene of an accident in order to escape liability. This sectionstates as follows:

(1) Every person commits an offence who has the care, charge or control of a vehicle, vessel or aircraft that is involved in an accidentwith (

a) another person, (

b) a vehicle, vessel or aircraft, or (

c) in the case of a vehicle, cattle in the charge of another person, and with intent to escape civil or criminal liability fails to stop thevehicle, vessel or, if possible, the aircraft, give his or her name and address and, where any person has been injured or appears to requireassistance, offer assistance. [55] The Supreme Court of Canada has held that the requirements in section 252(1) are to be read disjunctively (see R. v.

Roche, (SCC), [1983] 1 S.C.R. 491, at paragraphs 10 to 23). [68] Section 252(2) of the Criminal Code creates a presumption that in leaving the scene of an accident the driver of a vehicle intendedto escape liability: In proceedings under subsection (1), evidence that an accused failed to stop his vehicle, vessel or, where possible, his aircraft, as the casemay be, offer assistance where any person has been injured or appears to require assistance and give his name and address is, in theabsence of evidence to the contrary, proof of an intent to escape civil or criminal liability. [33] The trial judge’s analysis of the applicable evidence is contained at paras. 90 - 104 of the decision.

In particular, at paras. 102 -104 he explained how the totality of the evidence led him to conclude that Mr. Spence had been drinking before he picked Mr. Atkins upand was driving the ATV when the accident occurred. Shortly following the accident, Mr. Spence was told by a witness to leave and hedid so on the same ATV involved in the accident. [34] On the basis of this cumulative evidence, he concluded Mr.

Spence did so in order to escape criminal liability and the statutorypresumption of intent under section 252(2) applied. [35] In my view, the substance of this appeal is better seen as an argument that the verdict is unreasonable because the evidence leftopen reasonable inferences that were inconsistent with guilt. In relation to this question, the law is clear. Section 686(1)(a)(

i) ofthe Criminal Code provides that a conviction may be set aside on the grounds that "it is unreasonable or cannot be supported by theevidence." [36] The issue under s. 686(1)(a)(

i) is whether, on the whole of the evidence, the verdict is one which a properly instructed trier offact, acting judicially, could have reached.

[37] In reviewing the verdict, this Court may engage in a re-examination and re-weighing of the evidence, through the lens ofjudicial experience, for the limited purpose of deciding whether the verdict is reasonable. We do not substitute our view of the evidencefor that of the trial judge. [38] Instead, we defer to the trial judge's findings of fact and factual inferences, interfering only if the judge made a palpable andoverriding error. The analysis is the same whether the case is based on direct or circumstantial evidence (see R. v. Ngo, 2009 BCCA301at paras. 6 - 7, 60 and 65; R. v.

Munif, 2009 BCCA 451at paras. 9 – 12; and R. v. Vickers, 2016 BCCA 98 at para. 29). [39] Based on my review of the evidence and the trial judge’s reasons as noted above, this is not a situation of the trial judge tooquickly overlooking reasonable alternative inferences (see R. v. Boland, 2022 NLCA 30 at para. 27). Nor do I agree with Mr.

Spence’slegal counsel that the trial judge’s failure to analyze each and every theory postulated in his closing argument, no matter howspeculative, constitutes an error of law. [40] Rather, I find the trial judge assessed all the evidence and the absence of evidence logically in light of human experience andcommon sense and concluded that the evidence excluded any other reasonable alternative. [41] Therefore, I am of the view he did not make an error of mixed fact and law when drawing the factual inference that Mr. Spencewas in care and control of the ATV on which Mr.

Atkins was a passenger at the time of the accident and that he left the scene to avoidcriminal liability. [42] Accordingly, I dismiss this ground of appeal. Issue 2: Did the trial judge err in relying on evidence that Mr. Spence left the accident scene as post-offence conduct to infer guilt? The position of the Appellant [43] Relying on the Ontario Court of Appeal’s analysis in R. v. Hall, 2010 ONCA 724 at para. 131, legal counsel for Mr.

Spenceargues that the trial judge incorrectly described his client’s conduct in leaving the accident scene as “after the fact” or “post-offenceconduct” when it is, in fact, part of the offence at issue: [131] However, the problem with post-offence conduct evidence is that it is often at best equivocal, and as the court stated in White atpara. 22, "susceptible to jury error". Evidence of post-offence conduct is not evidence of the commission of a crime or its planning,which a jury can assess to determine the facts of an event and the identity of the perpetrator.

Rather, it is evidence of what someone didafter an event, which proves nothing directly, but from which the jury is asked to conduct a psychological analysis of what a personlogically would or might do in given circumstances. [44] More specifically, the trial judge fell into a logical fallacy when exercising his judicial reasoning to infer that Mr. Spence wasthe driver because he left the scene and that he left the scene because he was the driver thereby making it an error of law. [45] Citing the Supreme Court of Canada decisions in R. v.

White, (SCC), [1998] 2 S.C.R. 72 at para. 22 andVillaroman at paras. 30 and 37, Mr. Spence’s legal counsel contends that for guilt to be inferred from circumstantial evidence it must bethe only reasonable inference permitted by the evidence. Plausible theories or reasonable possibilities that are inconsistent with guilt mustbe considered before reaching the conclusion of guilt. The position of the Respondent [46] The Crown acknowledges that the references in the trial judge’s decision to the evidence regarding Mr.

Spence leaving thescene should not have been described as “post-offence conduct” and, while he was incorrect in using the term, this did not constitute anerror of mixed fact and law. Instead, the trial judge was entitled to consider this evidence cumulatively with the other evidence toconclude Mr. Spence was the driver at the time of the accident and, therefore, guilty of the offence. [47] Despite the appearance of the trial judge’s circular reasoning, the Crown argues he properly treated the evidence of Mr.

Spenceleaving the scene as a piece of circumstantial evidence in relation to establishing that he was driving at the time of the accident. [48] In support of her argument, the Crown points to paragraphs 102 - 103 of the trial judge’s reasons where he made the factualdetermination that Mr. Spence was the driver based on the assessment of the evidence as a whole. This assessment included the directevidence of the witness, Thomas Lavers. [49] At paras. 46 - 47 of the decision, the trial judge explained his assessment as follows: [46] The evidence establishes that Mr. Spence was at the scene of the accident and left.

This evidence can be considered in three ways. Firstly, it is part of the actus reus of the offences of leaving the scene of an accident. Secondly, it can be considered as evidence of intentto escape liability (see section 252(2) of the Criminal Code). Thirdly, it can be considered as evidence of consciousness of guilt because“post-offence conduct is circumstantial evidence which may, in some cases, be probative of guilt” (see R. v. Gillespie, 2019 BCCA 8, atparagraph 48). [47] Thus, I must consider whether Mr.

Spence’s conduct in leaving the scene of the accident “is related to the crime charged rather thanto something else and, if so, how much weight, if any, should be assigned to it in the final determination of the adequacy of the case forthe Crown” (see R. v. Rosen, 2018 ONCA 246, at paragraph 50). In addition, however, it is important to recognize that post-offenceconduct “raises special concerns, since an accused’s after-the-fact behaviour may support more than one explanation – some consistentwith innocence, others consistent with guilt” (see R. v. Keror (2017), 2017 ABCA 273 , 354 C.C.C. (3d) 1 (Alta.

C.A.), atparagraph 61). Similarly, in R. v. Bonnell, [2015] N.B.J. No. 18 (C.A.), it was pointed out that although “post-offence conduct evidence

is generally relevant and admissible, judicial experience has shown that certain types of evidence of post-offence conduct, even though of slight probative value, may be much more equivocal than they first appear” (at paragraph 93). [ 50 ] At the request of this Court, the Crown addressed the issue of whether the Supreme Court of Canada’s decision in R. v. Calnen , 2019 SCC 6 bore any relevance to the issues under consideration in the current appeal.

In response, the Crown cited several passages from the reasons of Martin, J. who, while dissenting in part, wrote for the majority in relation to the court’s analysis of post-offence conduct. [ 51 ] According to Martin, J., as with other types of evidence, evidence of after-the-fact conduct is admissible if it is relevant to a “live, material issue in the case, its admission does not offend any other exclusionary rule of evidence, and its probative value exceeds its prejudicial effects” (see paras. 206 - 207). [ 52 ] There is no legal impediment to its use to determine an accused’s intent and may be used to distinguish between different levels of culpability (see para. 119). [ 53 ] As for its use in circumstances where there is more than one possible inference to be drawn Martin, J. had the following to say at para. 124: 124 After-the-fact conduct evidence will not always or necessarily be equally consistent with two offences, and it is open to the trier of fact to conclude that the conduct is more consistent with one offence than the other: see White (1998) , at para. 27.

The key is therefore determining what "equally explained by" or "equally consistent with" means. This Court has never said that every time multiple possible explanations for conduct are proposed, they become "equally probable" and the evidence in question therefore loses relevance (because it does not make any fact more or less likely). The existence of alternative explanations for the accused's conduct does not mean that certain evidence is no longer relevant.

The overall conduct and context must be such that it is not possible to choose between the available inferences as a matter of common sense, experience and logic. This is a composite standard in which the three considerations interact and one may take on greater significance in a particular case. For example, when hypothetically it could be one offence or another, common sense and experience may support one inference over the other. Pure logic is not the only, or even primary consideration.

Any threshold determination of relevance must also respect that it is normally the function of the trier of fact to determine what inference is accepted and the weight to be given to it, and "[f]or the trial judge to interfere in that process will in most cases constitute a usurpation of the jury's exclusive fact-finding role": White (1998) , at para. 27. ANALYSIS [ 54 ] Without repeating my analysis under Issue 1, I conclude that the trial judge did not commit an error of mixed fact and law by failing to restrict his use of post-offence conduct evidence to the ultimate determination of guilt.

Rather, he treated it as evidence of Mr. Spence’s state of mind (i.e. to escape liability) with respect to leaving the scene. I find this was a permissible use of the evidence as contemplated by the Supreme Court in the Hall decision. [ 55 ] In the present appeal, the trial judge left the evidence of flight at large until the final stage of putting all of the evidence together and seeing if it proved the case beyond a reasonable doubt (see para. 133 in Hall ). [ 56 ] I, therefore, dismiss this ground of appeal.

SUMMARY AND DISPOSITION [ 57 ] In the result, the trial judge did not err. When providing his written reasons, he did not explicitly address the theories advanced by the Defence that could possibly explain a verdict other than guilt before determining that Mr. Spence’s guilt was the only reasonable conclusion available on the totality of the evidence. While incorrectly referencing Mr.

Spence’s departure from the accident scene as “post-offence conduct” the trial judge nevertheless correctly left the evidence of flight at large until the final stage of putting the evidence together in order to determine whether the Crown had proven the case beyond a reasonable doubt. [ 58 ] Accordingly, the appeal is dismissed. _____________________________ Peter N. Browne Justice