Her Majesty The Queen Appellant v. Paul Trevor Calnen, 2019 SCC 6

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 intentrequired for second degree murder. In this case, the accused’s destruction of the deceased’s body was inadmissible as evidence of intent for second degreemurder. While the accused’s conduct in destroying the body is relevant to the issue of whether he unlawfully caused the deceased’sdeath and was admissible for that purpose, it cannot assist in distinguishing between manslaughter and second degree murder.

Theevidence here did not yield any information about the extent of the injuries. Without evidence to that effect, an inference regarding mensrea is grounded on speculation about what the evidence might have revealed about the injuries. There is no logical connection linkingthe after-the-fact conduct evidence in this case to an intent for second degree murder that does not equally speak to the possibility ofmanslaughter. It flies in the face of logic to suggest that a person would only go to great lengths to cover up an intentional homicide, butnot an unintentional one.

Further, the evidence relating to motive and animus here cannot assist the jury in finding that the after-the-factconduct makes it more likely the accused had the intent for second degree murder rather than manslaughter, because it is equallysupportive of both. There is agreement with Martin J. that the failure to provide instructions warning the jury of the dangers of propensityreasoning requires a new trial in this case. Because the after-the-fact conduct evidence was admissible to show culpable homicide but notprove second degree murder, the jury required strong direction as to the limitations of its use.

The evidence relating to the relationshipbetween the accused and the deceased and to the circumstances surrounding the day of the deceased’s death did not provide anyevidence 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, 2007SCC 53, [2007] 3 S.C.R. 523; R. v. Jacquard, (SCC), [1997] 1 S.C.R. 314; R. v. White, 2011 SCC 13, [2011] 1 S.C.R.433; R. v. White, (SCC), [1998] 2 S.C.R. 72; R. v.

W. (D.), (SCC), [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, (SCC), [1981] 1 S.C.R. 336; R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, leave toappeal 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.), (SCC), [1997] 2 S.C.R. 716; R. v.

Sheriffe, 2015 ONCA 880, 333 C.C.C. (3d)330; R. v. Malik, ; R. v. Bukmeier (1998), (BC CA), 103 B.C.A.C. 303; R. v. F. (J.), 2011 ONCA220, 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), (ON CA), 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, (SCC), [1977] 2 S.C.R. 1067; R. v. Peavoy (1997), (ON CA), 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, (SCC), [1994] 2 S.C.R. 463; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433; R. v. Arp, (SCC), [1998] 3 S.C.R. 339; R. v. White, (SCC), [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, (SCC), [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), (ONCA), 32 C.R. (6th) 103; R. v. Jacquard, (SCC), [1997] 1 S.C.R. 314; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26; R. v.Cooper, (SCC), [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, (SCC), [1987] 2 S.C.R. 168; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Lifchus, (SCC), [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), (BC CA), 20 B.C.L.R. (2d) 384; R. v. B. (F.F.), (SCC), [1993] 1 S.C.R. 697; R. v. Burns, (SCC), [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, (SCC), [1988] 1 S.C.R. 670; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689; Quan v. Cusson, 2009SCC 62, [2009] 3 S.C.R. 712; R. v. S. (P.L.), (SCC), [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] 1S.C.R. 716; Thériault v. The Queen, (SCC), [1981] 1 S.C.R. 336; R. v. Chambers, (SCC), [1990] 2S.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, 2014NSCA 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.), (SCC), [1997] 2 S.C.R. 716; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520; R. v. St-Cloud, 2015SCC 27, [2015] 2 S.C.R. 328; Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759; McMartin v. The Queen, (SCC), [1964] S.C.R. 484; R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696; R. v. Leipert, (SCC), [1997] 1 S.C.R.281; R. v. Mills, (SCC), [1999] 3 S.C.R. 668. By Karakatsanis J. (dissenting) R. v. Creighton, (SCC), [1993] 3 S.C.R. 3; R. v.

White, (SCC), [1998] 2 S.C.R. 72; R. v.White, 2011 SCC 13, [2011] 1 S.C.R. 433; R. v. Arcangioli, (SCC), [1994] 1 S.C.R. 129; R. v. Rodgerson, 2015 SCC38, [2015] 2 S.C.R. 760; R. v. Teske (2005), (ON CA), 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.), 2017NSCA 49, 358 C.C.C. (3d) 362, [2017] N.S.J. No. 232 (QL), 2017 CarswellNS 825 (WL Can.), setting aside the accused’s convictionfor 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, mycolleague 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 againstgeneral propensity reasoning — namely, the reasoning that because Mr. Calnen was a person of bad character who engaged indisreputable and morally repugnant conduct, he was more likely to have committed the crime charged.

His failure to provide such alimiting 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 isproperly 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 anunreasonable verdict under s. 686(1)(a)(i).

The distinction is an important one from the Crown’s perspective because in an appropriatecase 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 requiredits use. [5] On the question of whether the trial judge was required to provide a limiting instruction against general propensityreasoning, 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 tomisdirection. [6] When the trial judge’s charge is considered fairly, contextually, and as a whole, I am satisfied that the jury wasproperly equipped to decide the case in the absence of a limiting instruction against general propensity reasoning. And I am not alone inthis. Experienced defence counsel at trial seemed to be of the same view. Were it otherwise, I would have expected him to seek the kindof limiting instruction which my colleague now says was both obvious and crucial — and to have forcefully objected had the trial judgenot capitulated.

And yet, as we shall see, defence counsel did neither, despite being acutely aware, as my colleague points out, of theemotive and discreditable evidence which, in her view, “very likely” caused the jury to reach a verdict on second degree murder that wasirreparably 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 theappeal 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 awhole 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, atpara. 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 thatmatters, and not whether a particular formula was recited by the judge. The particular words used, or the sequence followed, is a matterwithin 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, (SCC), [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 todecide 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 conductevidence and its potential for moral and reasoning prejudice. However, for reasons I will develop, I respectfully disagree with herapplication 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 balanced. Read as a whole, the jury instructions sufficiently protected against the risk of moral and reasoning prejudice from the evidence of Mr. Calnen’s after-the-fact conduct.

(1) Introductory Instructions and a Question From the Jury [ 21 ] At the outset of the trial, Mr. Calnen pleaded guilty to indecently interfering with Ms. Jordan’s remains by burning her body. In his opening instructions, the trial judge noted that Mr. Calnen’s guilty plea to indecent interference with Ms. Jordan’s remains could not be permitted to water down the presumption of innocence, stressing that “Mr. Calnen starts the trial with a clean slate” and that “[i]t is Crown counsel who must prove guilt beyond a reasonable doubt, not Mr. Calnen who must prove his innocence”: A.R., vol.

III, at p. 683. [ 22 ] On the second day of trial, in a note to the trial judge, the jury queried whether it could consider Mr. Calnen’s guilty plea “either during its daily discussions or in reaching its final verdict”: A.R., vol. III, at p. 936. The trial judge told the jury to “put Mr. Calnen’s guilty plea . . . out of [their] minds” because they required “all of the evidence” before coming to their decision at the end of trial: A.R., vol. III, at pp. 947-48. The Crown and the defence endorsed the trial judge’s response. [ 23 ] In proceeding this way, the trial judge insulated the jury from reasoning that Mr.

Calnen’s guilty plea to indecent interference with Ms. Jordan’s remains meant it was more likely that he committed second degree murder. This feature of the record militates against a conclusion that the instructions were inadequate — a conclusion that is strengthened when one considers the trial judge’s final instructions, which I will describe below.

(2) The Final Instructions [ 24 ] My colleague observes that there were many other rational inferences available from the circumstantial evidence in this case and the jury was therefore being “asked to engage in inferential reasoning”, increasing the risk that they would draw a forbidden inference based on impermissible propensity reasoning: Martin J.’s reasons, at paras. 167-74. Indeed, she goes so far as to say

that it is “very likely” the jury did just that in arriving at its verdict on second degree murder and that this irreparably tainted theoutcome: para. 191. With respect, I disagree.

When the trial judge’s final instructions are read fully and fairly, it becomes clear that thetrial judge properly equipped the jury to make reasonable inferences from the circumstantial evidence without resorting to speciousreasoning or speculation. [25] The record reveals that the trial judge was alive to the “substantial risk of jury error” from after-the-fact conductevidence and the temptation to “jump too quickly from evidence of post-offence conduct to an inference of guilt” without properconsideration of alternate explanations: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 23, citing R. v.

White, (SCC), [1998] 2 S.C.R. 72, at para. 57. The trial judge’s detailed limiting instructions on after-the-fact conduct evidence and his cautionagainst drawing speculative inferences from circumstantial evidence are significant factors when assessing the risk that the jury wouldengage in general propensity reasoning. [26] Several portions of the jury charge guarded against the risk of general propensity reasoning.

As detailed below, theseincluded the instructions on the risks associated with circumstantial after-the-fact conduct evidence, how to assess circumstantialevidence against the criminal standard of proof, how to draw reasonable inferences in a circumstantial case, the parties’ theories andinferences sought, and the principles articulated by this Court in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742. [27] The trial judge told the jury to leave the after-the-fact conduct evidence, in particular Mr.

Calnen’s burning of Ms.Jordan’s body, “somewhat at large, until the final stage of putting all the evidence together and seeing if it proves the case beyond areasonable doubt”: A.R., vol. I, at pp. 134 and 163-64. The jury was repeatedly told to keep an “open mind” (A.R., vol. I, at pp. 72, 76and 173); to use reason, logic, common sense and experience; and to render their verdict without “sympathy, prejudice or fear”: A.R.,vol. I, at p. 67. [28] The trial judge also explained the difference between direct and circumstantial evidence. He instructed the jury thatbefore drawing an inference about Mr.

Calnen’s state of mind based on the latter type of evidence, “you must examine all of theevidence, and only if, after examining all the evidence, you are satisfied the inference is proper to draw, can you then draw theinference”: A.R., vol. I, at p. 140. He added that “[i]n order to find Paul Trevor Calnen guilty on the basis of circumstantial evidence, youmust be satisfied beyond a reasonable doubt that his guilt is the only rational conclusion or inference that can be drawn from the whole ofthe evidence”: A.R., vol. I, at p. 83.

Thus, the jury was correctly instructed that proof “beyond a reasonable doubt” meant that aconviction could rest on circumstantial evidence only if they were satisfied there was no rational inference inconsistent with guilt. [29] To that end, the jury was told repeatedly to consider potential innocent explanations for Mr. Calnen’s after-the-factconduct, and the trial judge provided detailed examples to consider. He explained the competing inferences available from Mr. Calnen’safter-the-fact conduct and situated that evidence in the context of the parties’ theories.

He further clarified that after-the-fact conduct wasmerely circumstantial evidence — that is, evidence capable of giving rise to various reasonable inferences when considered in light ofthe evidence as a whole — that may or may not assist the jury. Further, and crucially, he cautioned that the evidence of Mr. Calnenburning Ms. Jordan’s body could not, by itself, satisfy the standard of proof beyond a reasonable doubt; it was only a piece ofcircumstantial evidence to be considered with the whole. [30] Furthermore, owing to Mr. Calnen’s exculpatory police statement and videotaped re-enactment of Ms.

Jordan’s falldown the stairs, the trial judge articulated the principles from W. (D.) not once, but twice in the charge. [31] Against this backdrop, I have no trouble concluding that the jury understood the legal issues in this case, how theevidence related to those issues and the competing inferences available from the evidence. The jury would have considered the variouspotential explanations for Mr. Calnen’s after-the-fact conduct and would have drawn reasonable inferences from the whole of theevidence. [32] While my colleague stresses that the trial judge expressed his intention to address the prejudice of Mr.

Calnen’safter-the-fact conduct in his jury charge, the foregoing analysis reveals that, in fact, he did: see Martin J.’s reasons, at paras. 201-3. Notonly that, but evidently he did so to the satisfaction of defence counsel, who did not object. As I explain below, this failure to object wasin all likelihood tied to a defence strategy to use Mr. Calnen’s discreditable conduct to its own advantage while at the same timeavoiding a potentially damaging instruction on Mr. Calnen’s credibility. I turn to those two factors now — the failure to object and thedefence strategy.

Each plays a central role in my conclusion that a limiting instruction against general propensity reasoning was notnecessary in this case. B. Vetting the Charge and the Failure to Object on the Basis That a Limiting Instruction Was Required [33] As my colleague notes, the parties were alive to the issue of general propensity reasoning at trial. Indeed, defencecounsel raised this issue on three occasions in which he sought to have various pieces of evidence excluded.

And yet, when the timecame to vet the charge at the pre-charge conference, he chose not to raise the issue of general propensity reasoning, much less seek alimiting instruction on it. [34] Defence counsel first raised the issue of moral prejudice during a voir dire concerning the admissibility of Mr.Calnen’s police statement and re-enactment. The defence argued that Mr. Calnen’s after-the-fact conduct “paint[ed] him in a bad light”:A.R., vol. III, at p. 704. In his reasons for admitting parts of Mr.

Calnen’s statement and his entire re-enactment, the trial judge noted thathe would be seeking counsel’s input in the pre-charge conference in order to craft appropriate final instructions on how after-the-factconduct should be treated. [35] The issue arose a second time during the Crown’s direct examination of Mr. Weeks, when the defence objected toanticipated testimony that Mr. Calnen had forcibly removed a woman from his house.

The trial judge agreed that the proposed evidencewas inadmissible due to the risk of propensity reasoning, and the jury did not hear it. [36] The subject surfaced a third time when the defence submitted that Ms. Jordan’s “[h]e put his hands on me” textmessage to Mr. Weeks was inadmissible because it posed the risk of forbidden propensity reasoning. The Crown argued that it was

admissible evidence of animus and Ms. Jordan’s state of mind. The trial judge admitted all of Ms. Jordan’s text messages and gave a mid-trial hearsay instruction approved by the Crown and the defence. In that instruction, the trial judge reminded the jury to scrutinize thetext messages, asking whether Mr. Weeks may have been mistaken about their meaning. [37] Against this backdrop, defence counsel’s failure to raise the risk of general propensity reasoning at the pre-chargeconference cannot be explained by the possibility that he simply overlooked the issue.

To the contrary, the issue was squarely in hismind, as demonstrated on three separate occasions. Counsel was in the best position to assess whether, in the concrete reality of the caseat hand, a limiting instruction against general propensity reasoning was desirable. He did not request such an instruction and maintainedonly one objection to the final charge, submitting that Mr.

Calnen’s after-the-fact conduct was not probative of the mental element forsecond degree murder. [38] In my respectful view, defence counsel’s failure to object to the absence of a limiting instruction against generalpropensity reasoning of the kind my colleague now says was essential speaks not only to “the overall satisfactoriness of the jury chargeon this issue”, but also to “the gravity of any omissions in the eyes of defence counsel”; it may further be taken as an indication thatdefence counsel felt such an instruction would not have been in his client’s interests: R. v.

Kociuk, 2011 MBCA 85, 278 C.C.C. (3d) 1, atpara. 86, cited with approval by Rothstein J. in R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 66; see also R. v. R.T.H., 2007NSCA 18, 251 N.S.R. (2d) 236, at paras. 98-99, per Cromwell J.A. (as he then was). As Bastarache J. explained in Daley, at para. 58: . . . it is expected of counsel that they will assist the trial judge and identify what in their opinion is problematic with the judge’sinstructions to the jury. While not decisive, failure of counsel to object is a factor in appellate review.

The failure to register a complaintabout the aspect of the charge that later becomes the ground for the appeal may be indicative of the seriousness of the alleged violation.See Jacquard, at para. 38: “In my opinion, defence counsel’s failure to object to the charge says something about both the overallaccuracy of the jury instructions and the seriousness of the alleged misdirection.” (See also Thériault v.

The Queen, (SCC), [1981] 1 S.C.R. 336, at pp. 343-44, where Dickson J. (as he then was) wrote:“Although by no means determinative, it is not irrelevant that counsel for the accused did not comment, at the conclusion of the charge,upon the failure of the trial judge to direct the attention of the jury to the evidence . . . .”) [39] Similarly, in R. v.

Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, at para. 96, leave to appeal refused, [2010] 3S.C.R. vi, Doherty J.A. stressed that counsel’s vetting and endorsement of the jury charge is a significant factor in assessing whether thejury was properly instructed: Counsel’s duty to assist the court in fulfilling its obligation to properly instruct the jury, referred to by Fish J. in R. v.

Khela, 2009 SCC 4, [2009] 1 S.C.R. 104 at para. 49, 238 C.C.C. (3d) 489, takes on added significance where counsel has been given a full copy ofthe proposed instructions and an ample opportunity to vet them, and has engaged in a detailed pre-trial dialogue with the trial judge. Inthose circumstances, counsel’s position at trial becomes very important when evaluating complaints, raised for the first time on appeal,that matters crucial to the defence were not properly addressed by the trial judge in her instructions. [Emphasis added.] [40] Finally, in R. v.

Minor, 2013 ONCA 557, 303 C.C.C. (3d) 382, at para. 89, in the context of a complaint that the trialjudge failed to adequately review the evidence for the jury, Strathy J.A. emphasized that defence counsel’s failure to object to the chargewas a factor to be considered when assessing the adequacy of the charge, adding that “counsel may have made a tactical decision not torequest further instructions out of concern that in so doing the judge might re-emphasize damaging evidence.” [41] With these principles in mind, in the circumstances of the present case, defence counsel’s failure to object on thebasis that the trial judge was required to provide a limiting instruction against general propensity reasoning may reasonably be taken asan indication that the defence considered the charge to be satisfactory and that a limiting instruction would not be in his client’s interests.Indeed, the record in this case strongly supports a finding that in all likelihood, defence counsel’s silence on the matter was no accident— it was instead a deliberate tactical decision.

C. Indicia of a Tactical Decision [42] The evidence of Mr. Calnen’s extrinsic discreditable conduct was relevant and admissible. If the defence hadrequested a limiting instruction, it would have included three main components: R. v. T. (J.A.), 2012 ONCA 177, 288 C.C.C. (3d) 1, atpara. 53. First, it would have identified the extrinsic discreditable conduct evidence. Second, it would have articulated the forbidden useof that evidence — namely, drawing an inference based on general propensity reasoning.

Third, and importantly, it would also haveidentified the permissible uses of that evidence, which in this case would have included its use in assessing Mr. Calnen’s credibility and,by extension, whether his police statement and re-enactment could be believed. [43] As I will explain, in light of the parties’ respective theories and treatment of the evidence, any limiting instructionagainst general propensity reasoning might well have accrued to Mr. Calnen’s detriment. This consideration weighs heavily againstconcluding that the charge was deficient.

(1) The Parties’ Theories [44] A proper understanding of the respective theories of the defence and the Crown is crucial to determining whetherthe defence likely made a tactical decision not to request a limiting instruction. Where, as here, the issue is whether the trial judgecommitted reversible error in not providing a limiting instruction against general propensity reasoning, two principles come to the fore.First, the Crown is not entitled to “ease its burden” by stigmatizing the accused: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para.72.

Thus, the Crown’s reliance on general propensity reasoning would be an important factor on appeal: see, e.g., R. v. Mariani, 2007ONCA 329, 220 C.C.C. (3d) 74, at para. 85. Second, the court should consider whether the accused attempted to benefit from thediscreditable conduct evidence by weaving it prominently into the defence theory: see, e.g., R. v. Smith, 2007 ABCA 237, 225 C.C.C.(3d) 278, at para. 27. (

a) Crown’s Theory

[ 45 ] The Crown’s theory was as follows. Mr. Calnen and Ms. Jordan were in a serious relationship which came to a sudden and violent end when Ms. Jordan announced she was finally leaving him and tried to steal his valuables. In a state of rage, Mr. Calnen killed her. At first, he tried to make it seem as though she had simply run off. The police then launched a homicide investigation, thereby raising the stakes. Mr. Calnen then made a calculated decision to burn Ms. Jordan’s body, thereby destroying the only evidence capable of establishing the cause of her death. Mr. Calnen’s story about how Ms.

Jordan died in an accident after falling down the stairs was, according to the Crown, incredible. Mr. Calnen lied to the police and Ms. Jordan’s friends and family in the wake of her disappearance, disclaiming any knowledge of her whereabouts. He buttressed his story by sending a misleading text message to Mr. Weeks from her cellphone. He also minimized the significance of his relationship with Ms. Jordan. (

b) Defence Theory [ 46 ] The defence theory was that Mr. Calnen’s account of Ms. Jordan’s accidental fall down the stairs should be believed. Mr. Calnen’s defence of accident hinged on the truthfulness of his police statement and videotaped re-enactment. The defence highlighted the physical evidence tending to corroborate Mr. Calnen’s narrative, including the steps he took to burn Ms. Jordan’s body. The crucial question for the jury was his motivation for doing so. [ 47 ] Mr. Calnen was, in the defence’s submission, in an open relationship with Ms. Jordan. He was neither jealous nor possessive. Ms.

Jordan was angry, verbally abusive and harboured animosity against Mr. Calnen. Mr. Calnen, by contrast, was more sad than angry at her wanting to leave him. She chased him around the house, threw a bottle of pop at him, then took a swing at him that caused her to lose her balance and fall down the stairs. High on crack cocaine, Mr. Calnen made the initial mistake of moving her body, setting in motion a chain of events in which he took increasingly desperate measures to cover up her death. Mr. Calnen initially misled Ms.

Jordan’s mother and the authorities because he did not trust that anyone would believe it was an accident. Each subsequent step was fueled by further crack cocaine consumption and growing panic at failed attempts to conceal and then destroy her body.

(2) The Parties’ Treatment of the Evidence [ 48 ] As indicated, the defence attempted to bolster Mr. Calnen’s police statement and re-enactment by marshalling the discreditable conduct evidence in his favour. Mr. Calnen’s crack cocaine use explained his irrational decisions to move and then burn Ms. Jordan’s body. His open and sexually adventurous relationship with Ms. Jordan demonstrated his lack of possessiveness or jealousy, despite her decision to leave him. The physical evidence of burning Ms.

Jordan’s body corroborated what he described to the police in his statement and re-enactment. [ 49 ] The Crown, for its part, emphasized the very narrow relevance of Mr. Calnen’s attempts to burn Ms. Jordan’s body and the circumstantial evidence which pointed to a tumultuous breakup. (

a) Burning of Ms. Jordan’s Body [ 50 ] There is no indication in the record of a defence application to sever the charge of interference with human remains from the indictment to facilitate Mr. Calnen’s guilty plea. Hence, it would appear the defence decided, as a strategic matter, that the jury should learn that Mr. Calnen took responsibility for burning Ms. Jordan’s body. [ 51 ] Mr. Calnen’s defence of accident depended on the truthfulness of his exculpatory statement. The defence submitted that Mr. Calnen’s willingness to take responsibility for his actions made that statement more believable.

The defence knew that the Crown was relying on the burning of Ms. Jordan’s body, along with evidence of Mr. Calnen’s animosity towards her, as the crux of its case. The defence methodically highlighted the physical evidence, including the steps Mr. Calnen took to burn Ms. Jordan’s body, to corroborate his narrative. [ 52 ] The Crown, for its part, did not invite the jury to engage in propensity reasoning based on Mr. Calnen’s guilty plea.

To the contrary, Crown counsel exhorted the jury to keep the guilty plea separate and not to use it in respect of the murder charge, stressing that “it’s important that you don’t take the fact that he pled guilty to one charge and apply it to this [murder charge]. He remains innocent of this charge till we fully prove he’s guilty of it”: A.R., vol. III, at p. 2191. [ 53 ] The chain of inferences that the Crown urged upon the jury was straightforward: Mr. Calnen took a series of calculated and extreme risks to obliterate any evidence of how Ms.

Jordan died, and he did so because her cause of death would have revealed that he murdered her. (

b) Use of Crack Cocaine [ 54 ] The Crown’s theory hinged on the notion that Mr. Calnen was calculating and rational, calmly weighing the risks of each attempt to conceal and destroy evidence. The Crown minimized Mr. Calnen’s drug use, relying on Mr. Weeks’s observation that Mr. Calnen handled the effects of crack cocaine well. [ 55 ] By contrast, the defence sought to paint Mr. Calnen as a heavy crack cocaine user incapable of making rational decisions. [ 56 ] In sum, the defence looked to amplify the significance of his drug use, while the Crown argued it was immaterial. (

c) Open Relationship and Ms. Jordan’s Sex Work [ 57 ] The Crown sought to show that Mr. Calnen cared deeply about Ms. Jordan and could not stand the thought of her leaving him. The Crown submitted that Mr. Calnen’s statement to police that he was not in a real relationship with Ms. Jordan — “the sex is good” and “she’s only a hooker” — was an insincere attempt to distance himself from her disappearance: A.R., vol. III, at p. 2220. [ 58 ] By contrast, the defence argued that Mr. Calnen and Ms. Jordan had an open and sexually adventurous relationship,

incompatible with feelings of possessiveness, jealousy and animosity. The defence emphasized the unconventional nature of therelationship, whereas the Crown downplayed that evidence. (

d) Ms. Jordan’s “He Put His Hands on Me” Text [59] As indicated, Ms. Jordan sent a text message to Mr. Weeks which said that Mr. Calnen “put his hands on [her].”There was no suggestion at trial, however, that she had disclosed any abuse to her mother or her other friends. To the contrary, hermother held Mr. Calnen in high esteem, perceiving him to be “a stable man” and “a good influence”: A.R., vol. III, at p. 1327. Mr.Calnen and Ms. Jordan would often stay over at her parents’ home. The trial judge gave mid-trial and final limiting instructions, askingthe jury to consider whether Mr. Weeks misinterpreted Ms.

Jordan’s hearsay text messages. [60] In its final address, the Crown made no reference to the “[h]e put his hands on me” text and did not argue frompropensity. The defence argued that Ms. Jordan emotionally manipulated Mr. Weeks with the “[h]e put his hands on me” text so that hewould help her to steal Mr. Calnen’s property and move out of his basement. This was a major theme of Mr. Weeks’ cross-examination.According to Mr. Weeks, in his visits to their home, he had never witnessed violence or jealousy between Mr. Calnen and Ms. Jordan.

(3) Tactical Considerations [61] In light of the parties’ treatment of the evidence, there are two aspects to the tactical bargain that the defence appearsto have made. [62] First, the defence used the discreditable conduct evidence — Mr. Calnen’s crack cocaine use, the nature of his openrelationship with Ms. Jordan, and the corroborative physical evidence that he burned Ms. Jordan’s body — to bolster the truthfulness ofMr.

Calnen’s exculpatory statement and re-enactment: see, e.g., Smith, at paras. 27-29. [63] Second, the defence would have realized that a limiting instruction against general propensity reasoning riskedhighlighting the negative impact of Mr. Calnen’s discreditable conduct on his credibility. It was within the ambit of defence counsel’stactical discretion to attempt to avoid such an instruction with a view to bolstering Mr. Calnen’s narrative. The absence of the proposedlimiting instruction meant, in effect, that the jury was not informed, anywhere in the charge, that Mr.

Calnen’s discreditable conductcould be used to undermine his credibility and, by extension, the trustworthiness of his exculpatory statement and re-enactment,notwithstanding the fact that, as I will explain, it would have been open to the jury to use the evidence for these purposes. [64] As the majority of the Court of Appeal noted, the evidence of Mr. Calnen’s after-the-fact conduct was admissible onthe question of his credibility. Evidence of extrinsic discreditable conduct that is otherwise relevant and admissible with respect to anissue in the case may be used to assess the accused’s overall credibility.

In R. v. G. (S.G.), (SCC), [1997] 2 S.C.R. 716,at para. 70, Cory J. laid to rest any doubt about this common sense proposition: To require a jury to compartmentalize its thinking even further than this would be artificial and unnecessarily convoluted. It is amatter of common sense that evidence of bad character may reflect badly on the accused’s credibility, and that the jury can use it as afactor in determining if the accused is likely to be telling the truth.

This is not the same thing as suggesting that the accused is guiltybecause she is a bad person, or may have a disposition to commit the type of crime for which she is charged. (See also R. v. Sheriffe, 2015 ONCA 880, 333 C.C.C. (3d) 330, at para. 70.)[1] [65] This general principle holds true of discreditable conduct that occurred after the fact: Jaw, at para. 39. Had the trialjudge given the limiting instruction that my colleague now says was essential, the charge would necessarily have included a damaginginstruction on Mr. Calnen’s credibility flowing from the discreditable conduct evidence.

This, in turn, could well have shaken thefoundation of his defence, which hinged on the jury’s assessment of the truthfulness of his statement to the police and the videotaped re-enactment. In this regard, while my colleague takes the view that such an instruction would have been discretionary, I respectfullydisagree.

I say this because Crown counsel would unquestionably have insisted on such an instruction so as to level the playing field. [66] Relatedly, my colleague emphasizes that Crown counsel could have requested such an instruction on credibility atany time and clearly chose not to do so: see Martin J.’s reasons, at para. 209. However, the reality is that while Crown counsel evidentlyconsidered the charge given by the trial judge to be fair and balanced, there is no reason to assume Crown counsel would have felt thesame way had the charge included a limiting instruction against general propensity reasoning.

Had such a limiting instruction been addedto the charge, the natural consequence would have been Crown counsel’s legitimate insistence on an instruction on credibility, whichwould have gone hand in hand with the limiting instruction against general propensity reasoning. In the absence of the latter instruction,it is not at all surprising that the Crown saw no need to insist on the former.

(4) Conclusion on the Indicia of a Tactical Decision [67] In light of all the circumstances, including defence counsel’s failure to ask the trial judge for a limiting instructionand the absence of any suggestion that defence counsel was ineffective, much less incompetent, the record strongly supports theconclusion that defence counsel made a tactical decision to avoid highlighting the discreditable conduct evidence. This weighs heavilyagainst finding that the jury charge was inadequate: see, e.g., R. v. Bukmeier (1998), (BC CA), 103 B.C.A.C. 303, atpara. 37; R. v.

F. (J.), 2011 ONCA 220, 105 O.R. (3d) 161, at paras. 57-59, aff’d on other grounds, 2013 SCC 12, [2013] 1 S.C.R. 565.Moreover, it is not for this Court to pass judgment on the merits of defence counsel’s tactical decision, particularly in the absence of anallegation by Mr. Calnen that his trial counsel failed to assist him effectively: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at paras.33-35. III.

Summary and Conclusion

[68] At trial, as I have explained, Mr. Calnen did not seek a limiting instruction against general propensity reasoning.Rather, he adopted a strategy of using the discreditable conduct to bolster the credibility of his statement and re-enactment, upon whichhis defence of accidental death rested. That the defence adopted a deliberate strategy to use the discreditable conduct evidence to its ownadvantage is an important factor that distinguishes this case from others where the discreditable conduct evidence plays no

part in thedefence theory and is little more than a breeding ground for the moral and reasoning prejudice about which my colleague expressesconcern. Given the strategy adopted by the defence, a limiting instruction against general propensity reasoning would have riskedhighlighting the negative impact of Mr.

Calnen’s discreditable conduct on his credibility and thereby unravelling his defence — a riskwhich the defence chose not to take. [69] Despite my colleague’s rejection of that thesis, respectfully, I see no other reasonable explanation for defencecounsel’s failure to seek the kind of limiting instruction which my colleague now says was both obvious and crucial — and indeed fatalto sustaining Mr. Calnen’s conviction for second degree murder. [70] This Court has stated that the principle of finality is “essential to the integrity of the criminal process”: G.D.B., atpara. 19, citing R. v.

M. (P.S.) (1992), (ON CA), 77 C.C.C. (3d) 402 (Ont. C.A.), at p. 411, per Doherty J.A.; R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 130. It has also stated, as my colleague rightly points out, that the due diligencecriterion for the admission of fresh evidence on appeal, which exists to ensure finality, “must yield where its rigid application might leadto a miscarriage of justice”: G.D.B., at para. 19. But here, in my respectful view, there is simply no basis on which to conclude that theapplication of the finality principle might lead to a miscarriage of justice.

As I see it, the defence made a legitimate tactical decision attrial and lost. With respect, it must live with the consequences of that decision. Mr. Calnen had a fair trial. The jury instructions, whichboth Crown and defence counsel evidently considered to be fair and balanced, properly equipped the jury to decide the case before itand, in particular, adequately guarded against the risk of general propensity reasoning. That they could have been more fulsome is notthe issue.

In the circumstances, I am of the view that the principle of finality must prevail. [71] For these reasons, I would allow the Crown’s appeal and restore Mr. Calnen’s conviction for second degree murder. The following are the reasons delivered by [72] Martin J. (dissenting in part) — This appeal concerns the inferences that can logically — and legally — be supportedby certain after-the-fact conduct evidence. Is it open to the jury to infer the requisite intent for second degree murder from the accused’ssuccessive steps to reduce a human body to ash? In my view, on these facts, the answer is yes. I.

Facts [73] Paul Trevor Calnen was charged with second degree murder and indecent interference with human remains in thedeath of Reita Louise Jordan, his domestic partner. He was tried by a judge and jury. At the outset of the trial, he pled guilty to theinterference charge. The jury found him guilty of second degree murder. [74] Mr. Calnen, then 50, and Ms. Jordan, 35, had been in a relationship for about two years, and they had been livingtogether in Mr. Calnen’s home in Hammonds Plains, Nova Scotia. Ms. Jordan was reported missing on March 28, 2013.

After hermother and sister contacted the police, the police commenced a missing person investigation. Mr. Calnen was first interviewed on April5, 2013 and he told the police that he had last seen Ms. Jordan when he left their home for work on the morning of March 18, 2013. [75] With the passage of time, the police found no trace of Ms. Jordan. The missing person investigation became ahomicide investigation. [76] The police suspected Mr. Calnen of murder and he was arrested on June 17, 2013. Near the end of his questioning onJune 18, the police brought Ms. Jordan’s mother into the interview. She embraced Mr.

Calnen and begged for information about herdaughter. Mr. Calnen began talking. He described how Ms. Jordan died, and explained what he did with her body both immediately afterher death and subsequently. His statement to the police was entirely exculpatory on the second degree murder charge: he claimed thatMs. Jordan’s death was an accident, and that it did not involve or result from any force on his part. [77] In describing the circumstances of her death, Mr. Calnen claimed that Ms. Jordan died on March 18, in his presence,in the home they shared. He explained that when he returned home from work that day, Ms.

Jordan had her bags packed at the front doorand was leaving. Ms. Jordan asked about his contact with another woman and they argued. Mr. Calnen discovered that she had taken hislaptop and his gold ring, and “[t]hat kind of got [him] pissed off”: A.R., vol. II, at p. 695. However, he later claimed to have noknowledge of various texts between Ms. Jordan and a male friend, Mr. Wade Weeks, discussing plans to steal Mr. Calnen’s vehicle andother property. [78] According to Mr. Calnen, Ms. Jordan demanded that he call a taxi for her, and that he give her money.

She becamephysically aggressive and threatened to trash the house. She kicked some furniture and threw a bottle of pop at him, which he avoided. [79] Mr. Calnen told the police that he then moved to the front door, and Ms. Jordan followed. With her back to thestairs, she attempted to punch him. He ducked, and the momentum of her swing caused her to fall down the stairs. He tried to resuscitateher, to no avail. He thought she must have hit her head and said that no blood came from her head. Mr. Calnen also conducted a re-enactment for the police on June 18 concerning what he said occurred at the home. [80] Mr.

Calnen said that he panicked. He had used crack cocaine on the way home, and he used it again after Ms. Jordandied. He moved her body from the bottom of the stairs to the top of the stairs. He claimed that he wrapped her body in a blanket and puther body and her belongings in his truck. He drove around for a while, first into town and then to Peggy’s Cove, and then he eventuallyhid her body near a logging road in the woods close to Ingramport. He went through her bags to make sure she did not have anything elseof his.

Then, either at that time or the next day, he burned her belongings, including her cell phone, about a thousand feet away from thebody on the same logging road.

[81] After work the next day, he went back to the same woods near Ingramport. When he saw that Ms. Jordan’s elbowwas visible from the logging road, he dragged her further into the woods and covered her body with spruce boughs. He took the metalitems that would not burn, like her earrings, perfume bottle, and cell phone parts, and “tossed it wherever” further into the woods: A.R.,vol. II, at p. 717. [82] On April 11, the police told Mr. Calnen that the missing person inquiry had become a homicide investigation. Mr.Calnen said that on April 12, he purchased drugs, retrieved Ms.

Jordan’s body from the first logging road, and transported it in his truckto a remote logging road in Pleasant Valley. He got stuck and obtained road side assistance. Mr. Calnen then went down a third loggingroad, where he gathered branches and trees, built a large fire and burned Ms. Jordan’s remains. While he was doing this, the policetelephoned him and sought a meeting. Mr. Calnen told them that he was at a plumbing job elsewhere. At this point, Mr. Calnen put outthat fire and placed the remaining portion of Ms. Jordan’s body — the torso — into a canvas bag.

He then drove home with this canvasbag in the closed back compartment of his truck. [83] On April 13, Mr. Calnen met the police at his home, where they executed a search warrant. He later claimed thatMs. Jordan’s torso was in his truck when he met the police at his home. On that day, the police took extensive photographs of the house.They conducted a room by room search, and looked for blood stains using a white light and forensic laser. The police testified that after athorough review, they found nothing of forensic value in the home.

They did, however, report a sticky substance on the television andthe floor, which was not blood. [84] Sometime later — either on the night of April 14 or 19 — Mr. Calnen finished burning Ms. Jordan’s remains in thefire pit behind his home. He put her ashes in a bucket, drove to a lake near the Jordan family cottage, and placed her ashes near thediving rock. The next night he took the parts of her that were not consumed in the fire and used a boat to put these further remains in thesame lake. He told the police that he put her remains in the lake because that is what he and Ms.

Jordan had discussed previously aboutwhat they each wanted done with their respective remains. [85] Mr. Calnen stated: “. . . I’ve been on drugs like it’s nobody’s business and -- but I did not kill her” (A.R., vol. II, at p.703). [86] The investigators found the burn site in Ingramport and physical items of a personal nature like a frame, perfumebottle, lipstick, and belt buckle, which appeared to have been burnt. Police divers also found unidentifiable bone fragments in the lake —fragments which also appeared to have been burnt. Further investigations at the home where Ms.

Jordan died were conductedsubsequently, in June. At that time, the police found no signs of blood or clean-up activities and no visible impact areas or damage in thearea of the stairwell, either to the drywall, gyproc, or railings. [87] The evidence at trial also included text messages, which suggested a disintegrating relationship between Mr. Calnenand Ms. Jordan; allegations in a text from Ms. Jordan’s phone of Mr. Calnen’s abusive behaviour towards Ms. Jordan; and plans by Ms.Jordan to leave Mr. Calnen and steal his property with the help of Mr. Weeks.

On the day she died, text messages indicated that Mr.Calnen and Ms. Jordan were fighting and Mr. Calnen threatened suicide. Ms. Jordan’s mother testified that Ms. Jordan wanted to movehome prior to her death, but there was insufficient room for her. [88] Mr. Calnen was arrested on June 17, 2013, and charged with second degree murder, contrary to s. 235 of theCriminal Code, R.S.C. 1985, c. C-46, and indecent interference with Ms. Jordan’s remains, contrary to s. 182(

b) of the Criminal Code.At trial, he pled guilty to indecent interference. [89] In relation to the charge of second degree murder, the Crown was required to establish that Mr. Calnen caused Ms.Jordan’s death, and that he did so intentionally or that he intended to cause her bodily harm that he knew was likely to cause her deathand was reckless as to whether death ensued. Mr. Calnen has argued throughout that the Crown has failed to prove causation and intent:in essence, he claims that he did not cause or intend Ms.

Jordan’s death, that her death was an accident, and that there is no unlawful actfor which he bears any responsibility. [90] No admissibility concerns were raised regarding certain aspects of Mr. Calnen’s after-the-fact conduct, such asfailing to call emergency services when Ms. Jordan died, telling the police and others that she had lef

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