2011 QCCA 2250, 2011 QCCA 2250

Unofficial English Translation Seck c. R. 2011 QCCA 2250 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004234-082 (500-01-006196-031) DATE: December 7, 2011 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. JACQUES DUFRESNE, J.A. JEAN BOUCHARD, J.A. ALASSANE SECK APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] THE COURT; On appeal from a conviction handed down by a jury in the Superior Court, District of Montreal (presided by the Honourable Mr.

Justice Fraser Martin) on October 3, 2008, which found the appellant guilty of second degree murder; [ 2 ] For the reasons of Duval Hesler, C.J.Q., with which Dufresne and Bouchard, JJ.A. agree: [ 3 ] DISMISSES the appeal. NICOLE DUVAL HESLER, C.J.Q. JACQUES DUFRESNE, J.A. JEAN BOUCHARD, J.A. Mtre Mylène Lareau BROUILLARD, BIBEAU, GARIÉPY & ASSOC. For the appellant Mtre Julie Pelletier CRIMINAL AND PENAL PROSECUTOR For the respondent Date of hearing: September 28, 2011 REASONS OF DUVAL HESLER C.J.Q.

[ 4 ] The appellant was convicted of the second degree murder of Idrissa N'Diaye. [ 5 ] On July 14, 2000, the appellant and the victim had an altercation. As a consequence of this altercation, on August 23, 2000, the appellant was assaulted by the victim and was treated for a two-centimetre laceration on the back of his head and a superficial laceration on his lip. He left the hospital around 10:35 p.m. [ 6 ] The appellant then went to visit his friend, Erin Ness. Shortly thereafter, he borrowed a coat, armed himself with a knife, and left the apartment.

About an hour later, he returned and told Erin Ness that he had taken a taxi, seen the victim, gotten out of the taxi, and stabbed the victim in the back. [ 7 ] That same night, the appellant and Erin Ness contacted a friend, Vanora Dussart, and met with her in a café. After leaving the café, the three of them took a walk together. [ 8 ] At trial, Erin Ness, witness for the Crown, stated that on the night of the crime, the appellant told her that the knife had penetrated more deeply than he had expected and that he hoped the victim would not die.

After he described the location of the wound, he asked her which organs were close by. Vanora Dussart, also testifying for the Crown, confirmed that the appellant expressed the same concerns to her. The defence called no witnesses. [ 9 ] This was a second trial. The first had resulted in a verdict of first degree murder. [ 10 ] The Court of Appeal had ordered a new trial because inadmissible evidence of propensity had been adduced, thereby rendering the trial unfair to the appellant. [ 11 ] Reduced to their simplest terms, the grounds raised by the appellant are the following: 1.

The trial judge misdirected the jury in law regarding the admissions of the appellant described above; 2. The trial judge incorrectly explained the subjective nature of the requisite intent for second degree murder; and 3. The trial judge erred in law by not conducting an inquiry in response to the note from a juror who claimed to be a victim of intimidation. 1. Instructions concerning the accused's statements [ 12 ] First, the appellant faults the trial judge for the content of his instructions regarding the statements made to Ms. Ness and Ms.

Dussart, and in particular for making the following remarks: [ translation ] Second, did the accused in fact make a statement, and is the statement he made true? Now, is it as simple as that, because a statement contains many elements and you must consider the elements for yourself. Let me tell you that, and this is not a rule of law, this is a rule of common sense, if someone tells another person that they committed an offence, chances are that what he is saying is more true than false, because why would anyone make a statement against their own interest .

If it wasn’t true, why would I tell anyone that I shot into the air within the limits of the City of Montreal, knowing that I could be charged. So you should consider the elements of the statement that the person made to the witnesses, in this case, the witnesses Dussart and Ness, he did not necessarily tell them both exactly the same thing, and you can consider that what he said, did he tell the truth? All right, I've said that if the statement is against his own interest, it is more likely to be true than false.

If, however, it is a statement that mitigates the liability of the person making the statement, you should be alert to the possibility that it is a statement made to minimize liability.

But you should not reject it out of hand, you should take it into consideration with all the other aspects of the witness's testimony when you address the issue of the value you will attach to the statement and to the testimony of the person who made it. [1] [Emphasis added by the appellant.] [ 13 ] According to the appellant, the trial judge erred by encouraging the jury to weigh the different parts of his statement differently, according to whether they were inculpatory ([ translation ] "I stabbed him") or exculpatory ([ translation ] "I didn't think that the blade would penetrate so deeply, and I hope he won't die"), and particularly by suggesting that the first part of the statement was more reliable than the second, especially since the main argument of the defence is that the admissions made to Ms.

Ness and Ms. Dussart demonstrate that he did not have the specific intent required for murder. At the very most, the defence argues, he could be found guilty of manslaughter. [ 14 ] The respondent answers that this instruction, known as the Duncan instruction, did not necessarily undermine the fairness of the trial. The context in which the instruction was given must be considered.

The respondent also points out that the trial judge did not tell the jury not to consider the exculpatory parts of the appellant's statements and did not present the instruction as a rule of law but rather as a rule of common sense. [ 15 ] The respondent adds that the trial judge stated on several occasions that the determination of facts and the value to be given to the testimony of each witness was up to the jury, and that the jury should not feel bound by any opinion that he may have expressed. [ 16 ] It is true that the Supreme Court discourages the use of a Duncan instruction, wherein a judge affirms that a statement should be assigned a different weight depending on whether it is inculpatory or exculpatory because a self-incriminating statement is more likely to be true. [2] The respondent argues, however, and rightly so, that a Duncan instruction does not automatically invalidate the fairness of the trial: 41 The question whether a Duncan -type instruction has resulted in an unfair trial in any given case, however, will depend entirely on the particular words used and their context.

For example, as the finding of the court in David exemplifies, where the instruction is couched in terms of a legal presumption, the prejudicial effect may be difficult to overcome. In this case, as I will explain, having regard to the permissive wording of the impugned instruction, the charge as a whole and the nature of the statements at issue, it is my view that the

instruction was more unfortunate than fatal. [3] [ 17 ] In Rojas , the Court ruled that the Duncan instruction did not undermine the fairness of the trial. The trial judge had in fact pointed out that the exculpatory part of the accused's statement could raise a reasonable doubt as to his guilt and that it did not need to be proved beyond a reasonable doubt. Thus, the burden of proof was not on the accused, and there was no need to set aside the conviction. [4] [ 18 ] In Illes , however, the majority of the Supreme Court ordered a new trial in part because of a Duncan instruction.

The Court noted that such an instruction was likely to adversely affect the fairness of the trial, particularly if the instruction that the accused's inculpatory statements are probably truthful is worded as a legal presumption: This prejudice to the defence is particularly acute when, as here, the instruction was couched in terms of a legal presumption . [5] [ 19 ] In this case, the trial judge in no way indicated that his Duncan instruction constituted a legal presumption.

In fact, as we have already noted, he stated that it was a rule of common sense. [6] [ 20 ] He also added that the exculpatory parts of the accused's statement should not be set aside but that their value should be determined in light of all of the evidence respecting this statement: [ translation ] But you should not reject it out of hand, you should take it into consideration with all the other aspects of the witness's testimony when you address the issue of the value you will attach both to the statement and to the testimony of the person who made it. [7] [ 21 ] Moreover, as noted above, the trial judge had duly advised the jurors that his opinion was not binding on them and that they were sole master of the facts. [ 22 ] Admittedly, the trial judge did not specifically tell the jury that the accused's exculpatory statements could be used to raise a reasonable doubt.

From the instructions as a whole, however, it is clear that it was open to the jury to consider the accused's exculpatory statements and that a reasonable doubt as to one of the essential elements of the offence was sufficient. [ 23 ] The trial judge, summarizing the appellant's argument, stated the following: [ translation ] Finally, the comments made by the accused to Ms. Ness and Ms. Dussart, after his act, are eloquent evidence of his lack of intent to kill and of his concern about the victim's wellbeing.

His questions about which organs were located in the back, where he stabbed the victim, demonstrate that he did not know that the injuries were likely to cause death and the fact that the primary concern he expressed at that moment – Idrissa's health – should lead to the conclusion that he did not have the intent to kill, as his behaviour is inconsistent with recklessness as to the death of the victim. An offence was committed in the evening of August twenty-third (23rd), you will remember that Mtre Lareau concluded by saying that it was manslaughter. [8] ...

There is no specific way to approach the issues you have to decide, but I believe that the elements of the offence that the prosecution must establish beyond a reasonable doubt would be a good path that would ultimately lead you to a conclusion. [9] [ 24 ] According to the Supreme Court in Rojas , among the factors to consider when determining the effect of a Duncan instruction are whether it is couched in permissive wording and the charge as a whole. [10] I find that, in this case, in light of these other factors, the Duncan instruction has not adversely affected the fairness of the trial. [ 25 ] As for the sub-issue of the burden of proof applicable to the statements themselves, it is helpful to note that, in Morin , the Supreme Court affirmed that it is "clear that the jury is not to examine the evidence piecemeal by reference to the criminal standard". [11] [ 26 ] On this subject, authors Pierre Béliveau and Martin Vauclair are of the view that: [ translation ] This does not mean that the prosecution must prove all of the evidence beyond a reasonable doubt, but rather that the evidence as a whole must be weighed and must demonstrate, beyond a reasonable doubt, the guilt of the accused in light of each of the elements of the offence. [12] [ 27 ] In Evans , the Supreme Court expressed itself as follows: A preliminary issue as to the authenticity of a statement which is sought to be attributed to a party may also arise and may relate to whether the statement was actually made or whether it was made by the party against whom it is tendered.

This preliminary determination that the statements were those of the accused, or that the accused was in a position to make the statement, is required before the statements can be accepted as evidence of their truth. As in questions of admissibility, the appropriate standard for determining a preliminary question of fact as to authenticity is proof on a balance of probabilities .

The standard is the same in the two cases regardless of the fact that the preliminary determination is shifted to the fact-finding stage of the trial. [13] (Emphasis added.) [ 28 ] Sopinka J., for the majority, added the following: In my opinion, this is the correct approach to be applied in respect of the authenticity of admissions. If there is some evidence to permit the issue to be submitted to the trier of fact, the matter must be considered in two stages. First, a preliminary determination must be made

as to whether, on the basis of evidence admissible against the accused, the Crown has established on a balance of probabilities that the statement is that of the accused. If this threshold is met, the trier of fact should then consider the contents of the statement along with other evidence to determine the issue of innocence or guilt.

While the contents of the statement may only be considered for the limited purpose to which I have referred above in the first stage, in the second stage the contents are evidence of the truth of the assertions contained therein. [14] [ 29 ] In sum, the accused's incriminating out-of-court statements need not be proved beyond a reasonable doubt.

The reasonable doubt standard of proof applies only to the essential elements of the offence in light of the evidence as a whole, not to pieces of evidence considered in isolation, with the exception, however, of a case where such a statement constitutes the only evidence submitted by the prosecution. In such a case it must be proved beyond a reasonable doubt.

This Court confirmed this approach in Caron : [ translation ] "[I]f guilt is based on a single piece of evidence, the burden of proof regarding this element should meet the reasonable doubt standard". [15] [ 30 ] In this case, while the defence did not admit the appellant's statements, it also did not deny them, since the defence argument was that they demonstrate that the appellant lacked the requisite intent for murder.

The threshold of probability of the statements having been met, it was up to the jury to decide what the statements proved, in light of the adequate instructions it had received on the subject. [ 31 ] This brings us to the second ground of appeal: 2.

The subjective nature of the requisite intent [ 32 ] The appellant also maintains that the trial judge misdirected the jury on the subjective nature of the requisite intent for second degree murder, in the sense that the members of the jury were not duly informed that his statements could be used to raise a reasonable doubt as to the specific intent required for second degree murder. His criticism focuses on the following passage in particular: [ translation ]

(3) So, the next part, the next element of this little 2 is the following. Was the bodily harm such that it could cause death? So, ask yourself, where did he stab him with the knife? What kind of knife was it? Are you able to come to a conclusion about the force with which the knife entered the victim's body? Does a reasonably informed person know that a knife in the back or the thorax can injure the vital organs? Now, at that point, you will consider the statement, if you accept that he said it, are there any organs there? You will assess that. You will assess that . If you believe that it was said. ...

And once again, you will take several things into consideration: Dr. Lauzon's report, the depth of the wound, the internal damage caused by the wound, and, of course, if you believe him, the statement: [ translation ] "I hope he doesn't die". But I warned you, that was said after the incident . What you are looking for is, through a consideration of his actions, and you all must consider whether, at the moment the knife entered the body, he was reckless as to whether death would ensue. [16] [Emphasis added.] [ 33 ] And on the following passage: [ translation ] According to Ms.

Ness, he also asked which organs are found in this part of the body. Let us consider one thing at a time. First, the intent is not what is expressed some time after the incident, you must determine the intent at the moment the victim was attacked . [17] and [ translation ] What I am saying is, if you believe that this statement was made, if it is probable that this statement about the depth of the knife, of the penetration of the knife, was made, you can take this into consideration when you move on to the fourth element dealing with the issue of intent.

I repeat, however, I repeat, however, that what is important is his intent, his state of mind.

Not when he was walking with his two friends, not after the incident occurred, but what was in his head when he stabbed him ? [18] [Emphasis added.] [ 34 ] According to the appellant, the trial judge unfairly explained the defence's argument by insisting on connecting the appellant's exculpatory statements to the temporal aspect of intent, that is, to the moment the illegal act was committed, thereby giving the jury the impression that this later statement was irrelevant to assessing his specific intent at the moment of the crime. [ 35 ] This argument must fail.

The trial judge was merely explaining that an accused's intent must be assessed at the moment he or she commits the illegal act, not afterwards.

This is a valid legal notion that needed to be explained to the jury. [ 36 ] The appellant also criticizes the trial judge for failing to give adequate instructions explaining that the foreseeability of death test in s. 229 ( a )(ii) of the Criminal Code is a subjective test that is of particular importance in this case since the defence strategy was to raise a doubt as to whether the appellant knew that the bodily harm he was inflicting was likely to cause death. [ 37 ] The appellant submits that the trial judge failed to specify this subjective nature on several occasions.

The misdirections were as follows: • During his explanation of the notion of intent and the difference between manslaughter and second degree murder: [ translation ]

It is a simplification to say that manslaughter is simply murder without the intent to kill. Manslaughter includes an illegal act, stabbing someone, hitting someone, committed intentionally, where there is foreseeability of the risk of bodily harm that is neither trivial nor transitory. What is absent from manslaughter is the foreseeability of the risk of death. ...

But that, in effect, is the distinction, it is the unforeseeability of the risk of death, that is the distinction between the two (2), at least in the situation that concerns us. [19] • The example provided to support this explanation: [ translation ] If we do the same thing using a hammer, or an iron bar, everything depends on the manner in which the blow was delivered and where on the body it was delivered. If the blow was made to the head, you must ask yourself whether it was done with sufficient force, if it was one (1) blow, or two (2) or three (3) or four (4), if the force was sufficient to lead you to

section 229 , which deals with murder, or whether you are in the presence of a situation where the [ translation ] "perpetrator didn't want to", where the risk of death was not foreseeable. [20] • The answer to a question from the jury during deliberations, also concerning the foreseeability of the risk of death: [ translation ] The essence of manslaughter is that he intended to cause the injuries, but the injuries that he caused, and the words that I used were the following. "The injuries that he caused did not entail the foreseeability or the risk of death". [21] [ 38 ] In R. v.

Daley , the Supreme Court of Canada took the following approach: [30] When considering the adequacy of a trial judge’s charge on these elements, it is important for appellate courts to keep in mind the following. The cardinal rule is that it is the general sense which the words used must have conveyed, in all probability, to the mind of the jury that matters, and not whether a particular formula was recited by the judge.

The particular words used, or the sequence followed, is a matter within the discretion of the trial judge and will depend on the particular circumstances of the case. [31] In determining the general sense which the words used have likely conveyed to the jury, the appellate tribunal will consider the charge as a whole. The standard that a trial judge’s instructions are to be held to is not perfection. The accused is entitled to a properly instructed jury, not a perfectly instructed jury: see Jacquard , at para. 2.

It is the overall effect of the charge that matters. [22] (TO COMPLETE) + footnote) [ 39 ] According to this approach, this ground of appeal cannot succeed. [ 40 ] As a matter of fact, if we consider the instructions to the jury as a whole, the trial judge indicated on numerous occasions that the accused must have intended to cause the injuries that he knew were likely to cause the victim's death; he also stated that it was important to assess the intent of the accused , which excludes the notion of an objective test. [ 41 ] The appellant refers to R. v.

Dempsey , wherein the British Columbia Court of Appeal ruled that the trial judge had erred in his instructions to the jury concerning the requisite intent for second degree murder by failing to mention the element of subjective knowledge. 27 Throughout his charge the judge repeatedly referred to "an attitude of recklessness" as to whether death would ensue. 28 The respondent acknowledges that this instruction was in error in that the judge did not charge the jury that in the absence of meaning to kill, the appellant could only be convicted of murder if he meant to cause bodily harm that he knew was likely to cause death and was reckless as to whether death ensued.

That is, there must be subjective foresight of death. [23] [ 42 ] Dempsey can be distinguished from the case before us. That case was more concerned with recklessness as to the impact of the injuries inflicted, not with the knowledge that these injuries could lead to the victim's death. [ 43 ] In R. v. Naldzil , the British Columbia Court of Appeal decided that the following instruction was sufficient to properly direct the jury regarding the subjective foreseeability of the consequences of the accused's actions: I am unable to come to that conclusion. The learned trial judge stated: ...

If the intention of an accused was to cause bodily harm by an unlawful act which he knew was likely to result in death and was reckless whether death ensued or not ... it would be murder. Those words indicated that the accused must have the subjective intention of causing bodily harm by an unlawful act which he knew was likely to result in death in order to be guilty of murder.

Those words incorporate the requirements of s. 229( a )(ii) of the Code : they also incorporate the requirement of proof of subjective foresight of death. [24] (Emphasis added.) [ 44 ] The appellant also criticizes the judge for having mentioned the reasonable person test while explaining the requisite intent of the accused to the jury. [ translation ]

Therefore, it is from this perspective that you should assess whether you will decide to accept the testimony that he was surprised about the depth to which the blade penetrated. As I said, there are blood vessels all over the human body, maybe not major blood vessels, but I believe that a reasonable person should generally know that the thorax contains certain vital organs. [25] [ 45 ] The trial judge returned to this point, answering a question from the jury about

section 229 of the Criminal Code : [ translation ] But I do not believe that one has to be a genius to know that if someone takes a knife, if you find that he took a knife, and he plunged a knife between the two shoulder blades, I do not believe that you would find it very hard to conclude that he intended to cause bodily harm. ... Does a reasonably informed person know that a knife in the back or the thorax can injure the vital organs? [26] [Emphasis added.] [ 46 ] The respondent submits that this statement does not constitute an error of law when considered in light of the instructions as a whole.

The trial judge had given the jury an instruction regarding the common sense inference that, generally speaking, one is aware of the foreseeable consequences of one's actions. [27] In this context, the judge's reference to a reasonable person’s knowledge did not have the effect of transforming the element of intent into an objective test as opposed to a subjective one. [ 47 ] Moreover, the respondent notes that, in its earlier judgment in this case, this Court ruled that subjective awareness can sometimes be inferred from the act itself. [ translation ] 27 In addition, as McLachlin C.J. wrote in R. v.

Théroux , subjective awareness may, in some circumstances, be inferred from the act itself: ... [there is] the oft-made observation that the Crown need not, in every case, show precisely what thought was in the accused's mind at the time of the criminal act. In certain cases, subjective awareness of the consequences can be inferred from the act itself, barring some explanation casting doubt on such inference.

The fact that such an inference is made does not detract from the subjectivity of the test. [Citation omitted.] 28 Here, the fact that he [ translation ] "stabbed an individual in the back, from right to left, to the extent that his vital organs, spinal cord, spine, and aorta were all affected" with no explanation on the part of the appellant, grounds the inference that he knew that he was committing

an act that was likely to cause death and that he was reckless as to whether death ensued. [28] [ 48 ] This means that, in this case, the trial judge could have told the jury that the appellant's subjective awareness could be inferred from his acts without compromising the fairness of the trial. [ 49 ] This ground is therefore without merit. [ 50 ] As for the appellant's criticism of the trial judge for having stated his opinion about the accused's awareness of the likelihood of the injury causing death when giving the instructions quoted in paragraph 40 above, it is also without merit. [ 51 ] The trial judge is free to comment on the evidence, provided that he or she is clear that the decision is up to the jury.

Here, the judge had in fact given the jury the usual instruction whereby he might express an opinion about a piece of evidence, but the jury was not bound by this opinion. The judge also repeated several times that the jury was master of the facts and that it was incumbent upon it to make the findings of fact. [ 52 ] According to the appellant, the judge also undermined the fairness of the trial by expressing his opinion to the jury when explaining the difference between manslaughter and second degree murder.

Specifically, in answer to a question from the jury regarding s. 229 ( a )(ii) of the Criminal Code , the trial judge gave the following answer: a blow with crutches to the legs causing death would probably lead a jury to a finding of manslaughter because it is not foreseeable that death would ensue.

A blow with crutches or a baseball bat to the head, however, might lead the jury to a finding of murder because the attacker had the intent to cause injuries that he knew were likely to cause death and was reckless as to whether death ensued. [29] [ 53 ] The appellant argues that such a directive is unfair because it would be difficult for a jury to find that a knife plunged into a victim's back could constitute manslaughter if the trial judge told them that a blow with crutches to the head could constitute murder. [ 54 ] In Gunning , the Supreme Court stated the following on the issue: 27 It is perhaps trite but nonetheless fundamental law that on a jury trial, it is for the judge to decide all questions of law and to direct the jury accordingly; but the jury, who must take its direction on the law from the judge, is the sole arbiter on the facts.

The judge also has the duty, insofar as it is necessary, to assist the jury by reviewing the evidence as it relates to the issues in the case. The judge is also entitled to give an opinion on a question of fact and express it as strongly as the circumstances permit, so long as it is made clear to the jury that the opinion is given as advice and not direction . ... 31 Hence, it is never the function of the judge in a jury trial to assess the evidence and make a determination that the Crown has proven one or more of the essential elements of the offence and to direct the jury accordingly.

It does not matter how obvious the judge may believe the answer to be. Nor does it matter that the judge may be of the view that any other conclusion would be perverse. The trial judge may give an opinion on the matter when it is warranted, but never a direction. [30] (Emphasis added.)

[ 55 ] The example the judge used of a blow with crutches does not undermine the fairness of the trial.

It is legitimate for a judge to rely on examples to explain legal concepts to the jury. [31] In this case, the example simply aimed to explain that the part of the body where the injury was inflicted should be considered when assessing the subjective intent of the accused. [ 56 ] Finally, according to the appellant, the trial judge failed to refer to the cumulative nature of the constituent elements of the requisite intent for the offence of second degree murder under s. 229 ( a )(ii) of the Criminal Code , whereby the accused must have the intent to cause bodily harm that he knows is likely to cause the death of another person and that he must be reckless as to whether death ensues. [ 57 ] Contrary to the appellant's claims, the trial judge did in fact state that the elements of the intent defined in s. 229( a )(ii) are cumulative.

Here follows a passage from his instructions, already quoted in part: [ translation ] So it's these three elements that you have with respect to the second part of 229, that he has the intent to cause bodily injury . But I do not believe that one has to be a genius to know that if someone takes a knife, if you find that he took a knife, and he plunged a knife between the two shoulder blades, I do not believe that you would find it very hard to conclude that he intended to cause bodily harm. So, the next part, the next element of the little 2 is the following. Was the bodily harm such that it could cause death ?

So, ask yourself where did he stab him with the knife? What kind of knife was it? Are you able to come to a conclusion about the force with which the knife entered the victim's body? Does a reasonably informed person know that a knife in the back or the thorax can injure the vital organs? Now, at that point, you will consider the statement, if you accept that he said it, are there any organs there? You will assess that. You will assess that. If you believe that it was said.

And the last part asks for... requires that you draw a conclusion, that in doing so with a knife at that place, are you led to the conclusion that he was reckless as to whether death would ensue ? [32] [Emphasis added.] [ 58 ] Authors Morris Manning and Peter Sankoff make the following remarks concerning s. 229 ( a )(ii) of the Criminal Code : As drafted the

section seems to require the accused to possess two separate mental states during the commission of the murder. First, the accused must intend to cause bodily harm that he or she knows is likely to cause death. Second, the accused must be reckless about whether death ensues or not. In practice, however, this second element is effectively irrelevant, for once it is possible to establish that the accused intentionally caused bodily harm that he or she knew was likely to cause death, recklessness about whether death ensues is inevitable.

As Cory J. held in Cooper : The essential element is that of intending to cause bodily harm of such a grave and serious nature that the accused knew that it was likely to result in death of the victim. The aspect of recklessness is almost an afterthought. ... The aspect of recklessness can be considered an afterthought since to secure a conviction under this

section it must be established that the accused had the intent to cause such grievous bodily harm that he knew it was likely to cause death. One who causes bodily harm that he knows is likely to cause death must, in those circumstances, have a deliberate disregard for the fatal consequences which are known to be likely to occur. That is to say he must, of necessity, be reckless whether death ensues or not. [33] [ 59 ] Therefore, in this case, the trial judge's instructions regarding the cumulative nature of the elements in s. 229 ( a )(ii) of the Criminal Code were more than adequate. 3.

The note from Juror J-6 [ 60 ] During deliberations, the trial judge received the following note: [ translation ] Being seriously at odds in with the group, I believe and I am absolutely certain that giving a verdict among the present jurors would be very harmful to me. Some have already begun to commit acts of intimidation against me. I ask you firmly and I insist on being exempted from this jury.

My judgment no longer being reasonable. [34] [ 61 ] The appellant criticizes the trial judge for not having conducted an inquiry and for merely giving instructions calling for calm, without stating that intimidation would not be tolerated.

In these circumstances, the appellant argues, there is no way to be certain of the impartiality of the juror concerned. [ 62 ] The respondent points to the very broad discretion enjoyed by the trial judge in such matters. [35] An appellate court must therefore show considerable deference and may intervene only in clear cases. [ 63 ] The respondent adds that, after note J-6 was submitted, deliberations seem to have resumed with no particular problems.

Moreover, the day after the note was submitted, the judge revisited this event briefly, reminding the jurors that they could inform him in writing if any problems remained. [36] Later that same day, however, the jurors delivered their verdict. [ 64 ] The appellant cites Budai , wherein the British Columbia Court of Appeal circumscribed the exercise of judicial discretion in such cases.

In that case, the Court ruled that the trial judge had erred in law by not conducting an inquiry about a juror whose impartiality appeared questionable. [37] The juror and one of the co-accused had been exchanging looks during the trial and, on several occasions, had nodded when they saw each other at lunchtime. [38] It was later discovered that the accused and the juror in question were in a romantic relationship.

[65] The British Columbia Court of Appeal explained the steps that should be taken by a trial judge where there is a fear of a juror’spartiality: 39 A trial judge who becomes aware of circumstances which raise a question as to the impartiality of a juror is empowered to dischargethat juror pursuant to s. 644 of the Criminal Code or to dismiss the jury and declare a mistrial. Whether to take such a step is a matterwhich falls within the discretion of the trial judge and an appeal court will generally exercise caution before interfering with the exerciseof that discretion. See: R. v.

Horne (1987), 1987 ABCA 108 , 35 C.C.C. (3d) 427 (Alta. C.A.); R. v. Andrews, Farrant & Kerr(1984), 13 C.C.C. (2d) 207 (B.C.C.A.); R. v. Hanna (1993), (BC CA), 80 C.C.C. (3d) 289 at 312 (B.C.C.A.). 40 However, the trial judge must exercise that discretion in accordance with the applicable legal principles that govern the exercise ofthe discretion. Specifically, if an issue of potential bias of a juror arises from reports made to the trial judge he or she must, in order toproperly exercise his discretion.

a) apply the proper legal test for determining whether the information gives rise to a reasonable apprehension of bias. See: R. v. Spencer,supra, at pp.279-80 and 290-91; R. v. Gough, supra, at p.669; R. v. Blackwell, [1995] 2 Cr. App. 625 (C.A.) at p.635 (paras. B/C);

b) at a minimum, conduct an inquiry into the circumstances in order to obtain the necessary information upon which to exercise his orher discretion. This is his duty. See: R. v. Blackwell, supra, at pp. 633-64; R. v. Hertrich (1982), (ON CA), 67 C.C.C.(2d) 510 at 541; R. v. Andrews, Farrant & Kerr, supra, at pp. 212-13 and see: with regards to the obligation of "obtaining ... the requiredinformation": R. v. R.D.S., supra, at para. 111 and R. v. Afghanzada, supra. Regardless of the positions taken by counsel, the court has anindependent duty to ensure the fair conduct of the trial. See R. v.

Hodgson, (SCC), [1998] 2 S.C.R. 449; 127 C.C.C.(3d) 449 at paras. 41 (per Cory J.) and 100 (per L'Heureux-Dubé J., concurring). [Emphasis added.][39] [66] As the respondent points out, however, an appellate court must show a high degree of deference toward a trial judge'sassessment of the potential risk of partiality of a member of the jury. [67] In Pan, the Supreme Court, per Charron J., emphasized the discretionary powers of the trial judge in such matters: [96] With respect to s. 644 of the Criminal Code, when it comes to the attention of the trial judge that a juror has been subject toimproper external influences or is unable or unwilling to properly fulfil his or her role as a juror, the judge may hold a hearing toascertain the nature of the problem, if any, and has the discretion to discharge the juror where the circumstances so warrant ... . [97] ...

Likewise, there are limits to the use of s. 644 of the Code as a mechanism for discharging jurors in the course of the trial. Section644 only permits jurors to be discharged in the course of the trial where a serious issue arises as to their fitness as a juror. It is notdesigned to encourage jurors to bring trivial complaints about their fellow jurors to the attention of the trial judge in the course of thetrial, nor does it contemplate the discharge of jurors over minor concerns.

Trial judges can be left to decide how best to instruct the juryon these issues. ...[40] [Emphasis added, citations omitted.] [68] In R. v. Giroux, the foreperson of the jury submitted a note to the trial judge stating that certain members of the jury feltintimidated by another jury member who had verbally abusive to them and had slammed a table. The note asked that the juror in questionbe discharged.

The trial judge conducted an inquiry and decided to discharge the juror.[41] This decision was confirmed by the Court ofAppeal of Ontario. 26 In my view, the trial judge committed no reversible error in discharging the juror or in her conduct of the proceedings leading up tothat decision. [27] There is no doubt — to quote Dickson J. in Basarabas v.

The Queen (1982), (SCC), 2 C.C.C. (3d) 257 (S.C.C.)at 265 — that "an accused should not be lightly deprived of his or her right to be tried by a jury of twelve persons." However, s. 644 ofthe Code provides the trial judge with a broad discretion to discharge a juror if satisfied the juror cannot continue to act "by reason ofillness or other reasonable cause", and the judge's decision is entitled to considerable deference in that regard. [28] Nor is there any doubt that cases involving internal strife amongst jurors pose particularly problematic issues, and must be dealtwith in a careful and sensitive fashion — as the trial judge did here.

It is imperative that neither the court, in addressing the situation, northe jury, in responding to it, violates the rule preserving the confidentiality of jury deliberations. However, adherence to this cardinalprinciple constrains the court's ability to make inquiries about the internal strife.

In addition, the court must be alert to the possibility thatthe internal strife in question is merely reflective of an inability on the part of the jury to agree, as opposed to an inability to deliberate.There is always the potential that the request to eliminate the strife issue is merely an attempt by a majority of jurors to cast off adissenting minority opinion.

Finally, the court must be conscious of the danger that the entire jury may be tainted by the internal strife —not just the particular juror or jurors who are subject to the inquiry — and its ability to deliberate compromised, thus impairing theintegrity of the jury deliberation process.[42] (Emphasis added.) [69] In Lessard, this Court made the following pronouncement: [translation] The discretionary power of a judge to discharge a juror under s. 544 Cr. C. or to bring the trial to an end must be exercised judicially andin light of the [translation] "real danger" test. ...

The attempt to corrupt a juror is obviously objectively very serious and, whatever the outcome of the trial, will adversely affect theintegrity of the process. It is the trial judge, much more than the judges at the Court of Appeal several years later, who is in the best position to assess its actual,

concrete, and practical impact on the jury, taking into consideration the general atmosphere in which the trial unfolded, the circumstances of the case, what the judge was able to observe during all phases of the trial, and the reaction of the jurors when he made his comments on the incident. The trial judge is also in the best position to find the solution that will neutralize the poison injected into the minds of the jurors.

The decision the judge makes must therefore be granted the greatest deference and, in my view, the intervention of an appellate court is possible and necessary only where the evidence reveals that he or she clearly erred and failed to exercise his or her discretion properly . [43] (Emphasis added.) [ 70 ] This principle was recently reiterated in Laroche . [44] [ 71 ] This case is clearly distinct from the circumstances in Budai , supra , and the above passages from Giroux reveal the pitfalls that this type of note from the jury can create, as well as the importance of showing deference toward the trial judge's discretion, absent obvious error. [ 72 ] Here, the note from the juror made no reference to specific circumstances such as verbal or physical abuse.

Nothing alerted the judge to the existence of a [ translation ] "real danger" opening the door to an examination of the jury’s deliberations. Rather, he deemed that the note was an expression of a lack of courtesy and harmony amongst the members of the jury, and that the juror who had written it was looking for a [ translation ] "way out". His remedy was to give an instruction calling for calm, which in fact ended up bearing fruit over the next few hours. In the overall context of the trial, nothing grounds the conclusion that he exercised his discretion improperly.

Therefore, this last ground must also fail. [ 73 ] For these reasons, I would dismiss the appeal. NICOLE DUVAL HESLER, C.J.Q. [12] Pierre Bél iveau & Martin Vauclair, Traité général de preuve et procédure pénales , 17th ed. (Montreal: Yvon Blais, 2010) at para. 522.