R. v. Hartling, 2013 NSCA 51

NOVA SCOTIA COURT OF APPEAL Citation: R. v. Hartling , 2013 NSCA 51 Date: 20130429 Docket: CAC 372780 Registry: Halifax Between: Bernard Frederick Hartling Appellant v. Her Majesty The Queen Respondent Judge: The Honourable Justice Duncan R. Beveridge Appeal Heard: January 22, 2013 Subject: Criminal Law

Summary: The appellant was charged with first degree murder. The appellant admitted that he had shot the deceased with a shotgun but claimed he had brandished the gun in self-defence and the discharge of the gun was an accident. The jury convicted on the lesser charge of second degree murder.

The appellant says the verdict is tainted by errors in the jury charge; by the trial judge ’ s exclusion of evidence, and the admission of evidence without appropriate limiting instructions Issues: Did the trial judge err in his charge to the jury on self-defence; by not directing the jury on the partial defence of provocation, his evidentiary rulings and by not providing proper instructions on the evidence the jury heard. Result: The appeal is dismissed. Defence counsel at trial did not request the jury be charged on provocation, nor voice objection to any aspect of the judge ’ s instructions to the jury.

There was no air of reality to the defence of provocation. Therefore the trial judge did not err in law in failing to charge the jury on this defence. The jury heard a good deal of evidence that put the appellant in a bad light. Such evidence was admissible as a necessary part of the narrative, motive, and went to challenge the credibility of the exculpatory explanation by the appellant. It was legal error not to give a limiting instruction on the proper and potentially improper use the jury could make of this evidence, but the error caused no substantial wrong or miscarriage of justice.

While there were some slips in language in the jury charge, overall the charge was fair and adequately equipped the jury to carry out its adjudicative function.

This information sheet does not form part of the court ’ s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 52 pages. NOVA SCOTIA COURT OF APPEAL Citation: R. v. Hartling , 2013 NSCA 51 Date: 20130429 Docket: CAC 372780 Registry: Halifax Between: Bernard Frederick Hartling Appellant v. Her Majesty The Queen Respondent

Judges: Oland, Beveridge and Farrar, JJ.A. Appeal Heard: January 22, 2013, in Halifax, Nova Scotia Held: Appeal is dismissed as per reasons for judgment of Beveridge, J.A.; Oland and Farrar, JJ.A. concurring. Counsel: John M. Rosen and Emily S. Beaton, for the appellant Mark Scott, for the respondent Reasons for judgment : INTRODUCTION [ 1 ] A single shot from a sawed-off shotgun instantaneously took the life of Kenneth McNamara. There was never any dispute at trial that the appellant held the shotgun in his hands when it discharged. The jury was asked to consider a number of issues.

Two predominated: was the appellant justified in brandishing the shotgun in self-defence; and was the discharge accidental? [ 2 ] The jury found the appellant guilty of second degree murder, and he was sentenced to life imprisonment without eligibility for parole for thirteen years. The Crown says it is axiomatic that the jury must have concluded there was no reasonable doubt that: self-defence did not excuse the appellant ’ s actions; the discharge of the shotgun was not accidental; and the appellant had the requisite intent for murder.

The appellant says the jury verdict is tainted by errors in the jury charge – what the trial judge told the jury and by things omitted. In addition, the appellant complains about an evidentiary ruling, and no limiting instructions on evidence that was admitted. [ 3 ] I agree that the trial judge made some errors in his charge and should have given a limiting instruction with respect to the bad character evidence heard by the jury. [ 4 ] The appellant is entitled to a fair trial untainted by legal error.

Having found legal error, it was up to the Crown to convince us that any errors standing alone or collectively were harmless within the meaning of s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. I am satisfied that collectively the complained of errors caused no substantial wrong or miscarriage of justice. As a consequence, I would dismiss the appeal. BACKGROUND

[ 5 ] This trial was held September 6 - 20, 2011 before the Honourable Justice Arthur LeBlanc on an indictment charging the appellant with the first degree murder of Kenneth Gregory McNamara on November 14, 2009. It was the appellant ’ s second trial on the same charges. At his first trial, the jury could not agree. The result was a mistrial. Of course, we have no information on what issue or issues made unanimity beyond reach. [ 6 ] The basic facts revealed by the evidence are uncomplicated. The appellant grew marijuana in a room at his Cedar Street home.

He said it was for his own personal use and never for sale. He was friends with one Timmy Knowles who did sell marijuana. The deceased reputedly also sold marijuana. [ 7 ] In the fall of 2009, a search warrant was executed on the home of the deceased. Drug charges were laid against the deceased and his spouse, Amanda Cornett. They were due to appear in court in December 2009. The deceased suspected an informant. [ 8 ] In early November 2009, someone broke into the appellant ’ s Cedar Street home and stole marijuana plants.

The appellant says he was not really concerned about the theft as he had a significant amount of marijuana in his possession to meet his needs. Nevertheless, the appellant transported his equipment and supplies from Cedar Street to the property of David Gilmore, where he stored it. [ 9 ] There was a vague suggestion that the appellant had heard through the grapevine and, hence, harboured at least some suspicion that the deceased was involved in the theft of his plants.

The appellant discounted the suggestion, testifying that he had also suspected others and had really ruled out the deceased on the basis that the twelve plants that had been taken were young and of no value to an experienced grower such as the deceased. [ 10 ] The uncontradicted evidence of the appellant was that Timmy Knowles and the deceased had for many years maintained an intense dislike for each other.

The evidence did not shed any real light on the reason for the animosity. [ 11 ] Because the appellant would be advancing self-defence to excuse his conduct, the trial judge admitted what is sometimes referred to as “ Scopelliti evidence ” – that is, evidence that the deceased had a propensity for violence including prior use and possession of firearms. Jonathan Knowles, younger brother of Timmy, testified that he had been threatened with death by the deceased who, at the same time, pointed a rifle at him at close range.

This evidence was corroborated by the transcript of the deceased ’ s sentencing hearing for the assault with a weapon and for pointing the rifle at Jonathan Knowles. [ 12 ] Murray Scanlan also testified. He described how his house had burned in September 2008. Mr. Scanlan also said that the deceased had threatened him later that same day with an axe handle and admitted being responsible for the fire. The trial judge ruled other evidence inadmissible. I will discuss this evidence later. [ 13 ] Amanda Cornett described the events of November 13 and 14, 2009.

She testified that the deceased was agitated and worried on those two days. She said the deceased suspected someone had put a hit out on him. November 13 was a Friday. That evening they went to Canadian Tire to return some merchandise. On returning home, she saw that the deceased had purchased a can of bear spray. Later she overheard a heated telephone exchange between the deceased and another, whom she identified as Timmy Knowles. The discussion was about whether there was a hit on Mr. McNamara. [ 14 ] Ms.

Cornett acknowledged that she had never used the term “ hit ” in her police statement or at the first trial. She had said that Timmy Knowles had called and that his goons were going to come and take care of the deceased. The names of the appellant and one Jason Bronson were mentioned. [ 15 ] At approximately 9:00 am the next day, there was another similar call to the deceased. It was also loud and also involved the issue of a hit on him. The deceased left in his truck. He said he was going to talk to

Jason Bronson and the appellant and try to work it out like men. [ 16 ] The deceased drove to the home of the appellant. The appellant was not home. The deceased spoke with the appellant ’ s partner, Tammy Dowding. Although the tone of the conversation was normal, Ms. Dowding was upset by what the deceased said. There was talk of a threat on his life and a hit. He did not want “ that shit ” around his house, nor would she around hers. [ 17 ] Ms. Dowding called the appellant. She said she told him the whole conversation she had had with the deceased. The call ended uneventfully.

She said the appellant was not upset. His voice was normal. [ 18 ] She next heard from the appellant close to 11:00 later that morning. He instructed her to take a duffle bag out of their closet and take it to Dave Gilmore ’ s home. The appellant told her not to look in the bag – it was just Christmas presents and “ don ’ t be nosy ” . She did as instructed, arriving at Mr. Gilmore ’ s around 11:30 a.m. The appellant was not present. [ 19 ] The appellant called Ms. Dowding again in the afternoon. There was trouble with cell phone transmission, but the appellant was eventually able to communicate to Ms.

Dowding that his truck had broken down and he needed her to pick him up. She did so at 2:00 p.m. and took him to Dave Gilmore ’ s home. They talked on the way about moving back to Toronto. He stayed at Mr. Gilmore ’ s until late afternoon. Tammy Dowding left but returned to Mr. Gilmore ’ s when she heard that Kenny McNamara was dead from a gunshot. The appellant denied that he was involved in any way. [ 20 ] A short time later, the appellant went home, showered and shaved. His mother arrived. He told her it was an accident and that no one else was there.

The appellant then told Tammy Dowding that he was sorry; he was “ there ” ; and it was an accident. He was questioned – was there a third person? The appellant said, “ Me and Timmy ” . The appellant added that “ he could have let Timmy take the fall for the whole thing ” but did not have the heart to do it. [ 21 ] The appellant, with the assistance of counsel, turned himself in to the authorities the next day. Against the apparent advice of counsel, the appellant gave a statement describing his activities the previous day, including details of the shooting and what he did the rest of the day.

The statement was audio and video recorded. He later showed the police where he had hidden the shotgun. [ 22 ] The defences advanced at trial were based on the version of events described by the appellant. That version was before the jury in the form of his recorded statement to the police, a transcript of that statement, and the appellant ’ s oral testimony. Aside from some inconsistencies, his story was the same: he merely went to see Kenny McNamara to tell him he had nothing to do with any hit, and to tell him to stay away from his home. He parked at the end of the driveway but still on the road.

He called for the deceased. Mr. McNamara came out, went to his truck, retrieved an object and tucked it into the rear waistband of his pants. [ 23 ] The object was later discovered to be the can of bear spray. As the deceased approached, the appellant said the deceased made a movement to reach for what the appellant believed to be a gun tucked into his waistband. This caused the appellant to pull a shotgun to the window to demonstrate that he also had a gun. The gun discharged accidentally. He panicked and immediately drove away. He threw away the ammunition and hid the shotgun in the woods.

Additional details of his, and other, evidence will be set out later where necessary to address the appellant ’ s complaints of error. ISSUES [ 24 ] Originally the appellant filed his own Notice of Appeal. Counsel was engaged. An amended Notice of Appeal was filed. It set forth the following grounds of appeal:

1. The learned Trial Judge erred in his charge to the jury on self defence. 2. The learned Trial Judge erred in refusing to allow the defence to call the witness James Gamble. 3. The learned Trial Judge erred in his charge to the jury on the use the jury could make of the accused’s after the fact conduct. [ 25 ] However, the grounds of appeal set out in the appellant ’ s factum were re-stated and expanded.

The appellant submitted that the trial judge erred by: • Failing to properly charge the jury on self-defence; • Failing to properly charge the jury on accident; • Failing to properly charge the jury on the intent necessary for murder; • Failing to leave provocation with the jury; • Allowing the pathologist to give inadmissible opinion evidence that the shooting was not accidental, and then failing to give any limiting instructions; • Allowing the firearms examiner to testify that the altered shotgun was a prohibited weapon, and that 12 gauge shot was used to hunt large animals and not birds, and then failing to give any limiting instructions; • Allowing the prosecution to lead evidence of the Appellant's bad character through other witnesses as well as through the cross-examination of the Appellant, without first conducting a voir dire pursuant to R. v.

Handy , and then failing to give any limiting instructions; and • Refusing to allow the defence to call the proposed witnesses, James Gamble and Constable Quinn. [ 26 ] The Crown fairly conceded that it was not prejudiced by the expanded scope of the appeal. In addition, written submissions were sought on the issue of the jury charge on after-the-fact conduct by the appellant. The issues that I propose to address can be grouped into two broad categories: errors on admissibility of evidence, including no or inadequate jury instructions; and the adequacy of the jury charge.

ERRORS ON MATTERS OF EVIDENCE Allowing the pathologist to give inadmissible opinion evidence that the shooting was not accidental, and then failing to give any limiting instructions [ 27 ] Dr. Matthew Bowes, Chief Medical Examiner for the Province of Nova Scotia, was qualified as a forensic pathologist to give opinion evidence as an expert on the cause and manner of death. His “ Report of Medical Examiner ” and “ Report of Post Mortem Examination ” were exhibits. In the Report of Medical Examiner, he said the cause of death was a “ gunshot wound of the head ” ; and the manner of death was “ homicide ” .

No objection was taken to the introduction or contents of these exhibits.

[ 28 ] During the course of his direct examination, Dr. Bowes was asked to explain what he meant when he said the manner of death was homicide. He gave a lengthy, somewhat rambling, reply: A. Well, the definition of homicide is the killing of one by another. Suicide is the killing of one by oneself and an accident is an unintentional injury of some kind. Here it’s probably good to explain that my definition of homicide and the Court’s definition of murder or manslaughter, these two things are very separate activities. I’ll give you one example, actually.

If ... if you were ... and this actually happened in Toronto a number of years ago. There was a mentally disturbed individual on a streetcar in Toronto and he had a hammer in his hand and he was threatening to kill a young mother on the streetcar, a frightening situation. And a young police officer was trying to diffuse the situation but she had to shoot him. Now, that’s a homicide. This is the killing of one, the emotionally disturbed person, by another, the policeman. Now, is that murder? Well, I can tell you that there was no determination of murder in that ... in that scenario.

It was considered that that police officer was acting in the defence of the life of another. In similar fashion, you know, you can imagine the number of self-defence kind of scenarios. But my determination is homicide whether it falls into murder or any of those other varieties of killing.

So the reason why I thought this is a homicide and not a suicide or an accident is that, you know, I already had information from the scene and from the police but more importantly, I have my autopsy and I can tell you that the shot grouping in this man’s face tells me that the ... the weapon was really too far away for him to have activated it himself.

But, of course, in your determination here today you’ll hear a lot of different evidence that will either dissuade you or show you the way there. [ 29 ] The appellant argues that the evidence was not admissible as it went well beyond the scope of the doctor ’ s expertise.

Furthermore, once the jury heard it, the judge should have directed the jury to disregard it or give limiting instructions as it could have had an impact on the very heart of the defence, whether the gun was accidentally discharged. [ 30 ] It may well have been better had the doctor not wandered into an unnecessary discussion of homicide, suicide, accident, murder, and self-defence. It was completely unnecessary because there was no dispute that the appellant had caused the death of Kenneth McNamara. Hence, his death was a homicide.

But I fail to see how the jury would have been misled or confused, or the defence prejudiced, by the evidence of Dr. Bowes. I will give a brief explanation for my conclusion. [ 31 ] Earlier, Dr. Bowes had explained what was meant by the two terms, cause of death and manner of death. He said “ manner of death ” was easy to explain. In his field there are only five: homicide, suicide, accident, natural, and undetermined. As already mentioned, there was no dispute as to the cause or manner of death. A gunshot wound to the head of Mr. McNamara was the instantaneous cause of death.

I agree with the Crown that the proper

interpretation of Dr. Bowes ’ evidence, which must have been clear to all parties, was that this was neither suicide nor an accident in the sense of being self-inflicted. [ 32 ] No one argued that the impugned evidence of Dr. Bowes had any bearing on the issues of self-defence and accidental discharge of the shotgun. No objection was taken to the evidence of Dr. Bowes. He was not cross- examined on it, and no limiting instruction was sought. In addition, the trial judge told the jury that it is not always a crime to cause another person ’ s death.

The act that causes death must be unlawful in order for the homicide to be a crime. I am unable to agree that the trial judge erred in admitting this evidence or by failing to give a limiting instruction. Allowing the firearms examiner to testify that the altered shotgun was a prohibited weapon, and that 12 gauge shot was used to hunt large animals and not birds, and then failing to give any limiting instructions [ 33 ] Terry Pipes was a civilian member of the R.C.M.P.

He was qualified, without objection, to give opinion expert evidence in the field of the identification and science of firearms, including, but not limited to: the identification, legal characteristics, classifications and mechanical assessment of firearms; the identification of components; and impact damage assessment. Mr. Pipe ’ s curriculum vitae was an exhibit. [ 34 ] Mr. Pipes examined the components of the shotgun. It was in good condition from a mechanical and functional point of view. He assembled it and test fired it. He also did a trigger-pull test and tested the gun for shock discharge. Mr.

Pipes explained that the normal factory specifications to activate the trigger on this model of gun was anywhere from three to five and a half pounds of pressure. On his trigger-pull test, the lowest pressure to cause the shotgun to discharge was 4.4 pounds. In other words, it was within normal limits.

[ 35 ] For the shock-discharge test, the gun was loaded, cocked and with the safety off. It was struck in various locations with a hammer. It did not discharge. The gun was then dropped from a height of four feet, from a number of different orientations, onto a floor. Again, it did not discharge. Mr. Pipe ’ s opinion was that the shotgun was not prone to shock discharge. [ 36 ] Mr. Pipes also gave a basic description of the shotgun. It was a firearm within the meaning of the Criminal Code and, because of the length of the barrel, it was a prohibited weapon.

Due to the stock being cut, it would be difficult to aim as it could not be held against the shoulder. Mr. Pipes also described the usual spread pattern of shotgun pellets as the distance from muzzle to target increased. [ 37 ] The appellant has two complaints about the evidence given by Mr. Pipes. First, he says whether the shotgun was a prohibited weapon was irrelevant to whether the appellant was guilty of murder. I pause to mention that no one suggested at trial the appellant ’ s brandishing a prohibited weapon, itself an unlawful act, mandated a manslaughter verdict.

I will say nothing more about this potential avenue to criminal liability for culpable homicide. [ 38 ] Second, the appellant complains about what Mr. Pipes said about ammunition and its uses. He testified: Q. Now, on this issue of buckshot and the sizes of shot ... A. Yes. Q. ... can you indicate usually or typically what the larger buckshot would be used for as compared to a much smaller shots? A. Well, typically used for hunting. The buckshot would be more larger animal, deer perhaps.

As you come down, like number 12, that would be upland birds like pheasant, grouse and then as you get down to five, four, three, two, number two shot, more like waterfowl, ducks, geese . [ 39 ] This was not his only evidence about ammunition. In direct examination, he offered the opinion that the sixteen metal fragments removed from the skull of the deceased were consistent with a 12 gauge shotgun shell loaded with lead buckshot. He described the three categories of buckshot: single aught, double aught and triple aught buckshot.

He could not offer any further opinion on which category the metal fragments belonged to. [ 40 ] He also described other types of shot used in 12 gauge shotguns. He said they range from the smallest (number 12, containing four or five hundred pellets per shell) up to number 2. The largest type of shot is buckshot which would contain nine, twelve or fifteen pellets per shell. [ 41 ] Mr. Pipes was cross-examined on the size and weight of buckshot and of .22 calibre ammunition.

He agreed that, depending on the experience of the hunter, someone could hunt small game effectively with double aught buckshot and not destroy their game. In re-direct, he was asked to speak to the condition of a bird if it was hit with buckshot from a 12 gauge shotgun. He said, depending on the bird, it would probably make a mess of it. It would also depend on distance and the skill of the hunter.

If a grouse was hit at close range, it would probably disintegrate. [ 42 ] The appellant says this evidence was inadmissible or required a limiting instruction as it suggested the appellant was lawless (having a prohibited weapon) and brutal (by using inappropriately large buckshot to disintegrate birds). Hence, a person who would be more likely to commit murder. With respect, I do not entirely agree. As I will describe later, a limiting instruction on the volume of evidence that could prejudice the appellant in the eyes of the jury should have been

given. However, I am not persuaded that this evidence was inadmissible or that the failure to give a limiting instruction could have tainted the verdict reached by the jury. [ 43 ] The credibility of the appellant ’ s version of events was of key import. He had told the police in his statement that he had shortened the barrel and stock of the shotgun about two weeks prior to November 14, 2009. The reason he gave was that it was for ease of getting through the bush when he hunted for small game. [ 44 ] The shotgun just happened to be on the bench seat of his truck as he had gone bird hunting that very morning.

He had loaded it with two shells. Although he said he did not know the type of shell, he acknowledged to the police that he usually tried to avoid a direct hit when he shot as otherwise there would not be much left of a bird or rabbit. [ 45 ] After hunting that morning, he said he put the shotgun on the bench seat, pointed in his direction, loaded, cocked and with the safety off. It remained there when he went to see Mr. McNamara later that morning. He produced it for display only when Mr. McNamara reached for, what the appellant believed to be, a gun tucked into the deceased ’ s waistband behind his back.

The appellant did not know how the shotgun discharged. He told the police he did not think he squeezed the trigger; he thought he hit it with his sleeve. He was more emphatic in his trial testimony – he did not touch the trigger. [ 46 ] The theory of the Crown was somewhat fluid. The police certainly believed that Timmy Knowles had been present when the deceased was shot. The Crown even suggested this to the appellant in cross-examination. Yet the police acknowledged that their investigation caused them to conclude that Mr. Knowles was not present. Whether Mr.

Knowles was present or not, the Crown ’ s position was that the appellant had taken the shotgun to the home of the deceased with a plan to kill him. This theory of liability inevitably triggered an all out attack on the credibility of the appellant ’ s story of why he sawed off the barrel and stock of the shotgun and why he had it loaded, cocked, and with the safety off as Mr. McNamara approached his truck. The evidence of Mr.

Pipes about the buckshot and the characteristics of the shotgun and ammunition uses was plainly relevant to challenging the appellant ’ s story of altering the gun for ease of transport through the bush in order to facilitate hunting birds and rabbits. [ 47 ] Furthermore, the training and qualifications listed in Mr. Pipes ’ curriculum vitae clearly imply expertise to speak to various types and sizes of ammunition and their intended uses. Defence counsel at trial (not counsel on appeal) did not object to the evidence. He secured the admission from Mr.

Pipes that an experienced hunter could in fact hunt small game using buckshot. The result of a direct shot was admitted by the appellant. The evidence was admissible and in no way upset the fairness of the trial. Allowing the prosecution to lead evidence of the appellant's bad character through other witnesses as well as through the cross-examination of the appellant, without first conducting a voir dire pursuant to R. v.

Handy, and then failing to give any limiting instructions [ 48 ] The appellant submits that the trial judge erred by failing to provide limiting instructions on the use the jury could and could not make of the appellant ’ s admitted or alleged misconduct not charged in the indictment. The appellant says the jury heard evidence that the appellant: • Had trouble maintaining employment; • Had a troubled relationship with his common law partner, Dowding; • Came and went at all hours of the night; • Struggled with alcohol and drug addiction;

• Smoked and grew marijuana and was involved in the "drug scene" in Pictou; • Had a criminal record; • Drove an unregistered vehicle; • Hunted without a hunting license, without the requisite training and without the requisite "hunter's orange" vest; • Possessed a prohibited weapon, namely the altered shotgun, which he carelessly stored (without a case or trigger lock) either inhis truck or under the couch in his residence. [49] The appellant urges that the trial judge was obliged to tell the jury that thisevidence could not be used to infer that the appellant is the type of person who openly and continually engages in unlawful anddangerous conduct and, therefore, the type likely to commit murder.

I have no difficulty with this general proposition, and I agree that alimiting instruction would have been a prudent course. But in the circumstances I would do not give effect to this ground of appeal. Iwill explain. [50] I fail to see any relevance of R. v. Handy, 2002 SCC 56. That case dealt with theadmissibility of similar fact evidence, albeit the reasons for judgment contain a fulsome discussion about the potential dangers(reasoning and moral prejudice) of a trier of fact hearing evidence of the bad character of an accused.

I do not agree any of the impugnedevidence required a voir dire. [51] The defence well knew what the Crown’s case was. This was a re-trial. Voirdires were held with respect to other matters that the defence thought objectionable. There was no objection prior to or during the trial tothis evidence. Furthermore, the appellant in oral argument conceded, rightly in my view, two things: the so-called bad characterevidence was admissible; and much of it was in fact introduced by the appellant himself. [52] I see no need to review the itemized list of the evidence the appellant saysrequired a limiting instruction.

In my opinion, some of it was not bad character evidence at all but merely part of the narrative to put intocontext the relationship of the appellant to a number of individuals. In addition, much of the impugned evidence came from theappellant himself. [53] There is no doubt that the Crown cannot call evidence for the sole purpose ofdemonstrating that the accused is a bad person. But evidence that goes to motive or to assess the credibility of an accused’s version ofevents is relevant and admissible, even if it puts the accused in a bad light. These principles were set out by Cory J. in R. v.

G.(S.G.), (SCC), [1997] 2 S.C.R. 716: [63] It is trite law that "character evidence which shows only that the accused is the type of person likely to have committed theoffence in question is inadmissible" (emphasis in original): see for example Morris v. The Queen, (SCC), [1983] 2S.C.R. 190, at pp. 201-2; R. v. B. (F.F.), (SCC), [1993] 1 S.C.R. 697, at p. 730. However, there are three generalexceptions under which evidence of bad character of the accused can be adduced: (1) where the evidence is relevant to an issue in the case: see, for example, Morris, supra, at p. 202; B. (F.F.), supra, at p. 731.

See alsoR. v. Lepage, (SCC), [1995] 1 S.C.R. 654, at pp. 672-74; R. v. Hinchey, (SCC), [1996] 3 S.C.R. 1128,at para. 135, per Cory J. (2) where the accused puts her character in issue: see, for example, R. v. McNamara (No. 1) (1981), (ON CA), 56

C.C.C. (2d) 193 (Ont. C.A.), at p. 352, leave to appeal granted on other grounds (1981), (SCC), 56 C.C.C. (2d) 576(S.C.C.); (3) where the evidence is adduced incidentally to proper cross-examination of the accused on her credibility: see, for example, Lucas v.The Queen, (SCC), [1963] 1 C.C.C. 1 (S.C.C.); R. v. Chambers, (SCC), [1990] 2 S.C.R. 1293.

In my view, the evidence of bad character of the accused in the instant appeal was admissible as relevant to significant issues in the case,and it is therefore unnecessary to consider whether it might also have been properly admitted under the other two exceptions to theexclusionary rule. [64] Evidence which incidentally demonstrates bad character can also be directly relevant to a key element of the Crown's theory ofthe case, such as motive, opportunity or means: see R. v. Davison (1974), (ON CA), 20 C.C.C. (2d) 424 (Ont. C.A.);Hinchey, supra, at para. 135.

Evidence of motive, for example, is always relevant in that it makes it more likely that the accusedcommitted the crime, although it is not an essential element of criminal responsibility: Lewis v. The Queen, (SCC),[1979] 2 S.C.R. 821. [54] The Crown led evidence about the relationship between the appellant and TimmyKnowles in an effort to establish its theory that the appellant had acted in concert with, or at the behest of, Mr. Knowles in a planned anddeliberate murder of Mr. McNamara. In addition, it sought to establish that the appellant grew marijuana at his Cedar Street residence.

A break-in had occurred just two weeks prior to November 14, 2009. Marijuana plants were stolen. Evidence was led that the appellantsaid to others that he suspected Kenneth McNamara was the culprit. All of this evidence was admissible to establish motive and theCrown’s theory on liability. [55] Much of the other evidence about possession of the prohibited weapon, how theappellant said he stored it, and the fact that he hunted, all in violation of federal and provincial strictures not to mention common sense,was relevant to challenge the credibility of his version of events.

There was other evidence as to how and where he grew and stored hisconsiderable stash of marijuana. This evidence put him in a bad light as someone who was habitually engaged in discreditable or criminalacts quite apart from the conduct charged in the indictment. In my opinion, it was legal error not to provide a limiting instruction. Thereal issue is whether the failure to do so can be cured by the application of the proviso set out in s. 686(1)(b)(iii) of the Criminal Code. [56] All persons tried for a criminal offence are entitled to a trial untainted by legalerror.

But a conviction may nevertheless be upheld under s. 686(1)(b)(iii) if an appeal court is satisfied there was no substantial wrongor miscarriage of justice caused by the legal error. The overarching test is whether there is any reasonable possibility that the result ofthe trial could have been different had the error or errors not been made. [57] The correct approach to the application of the proviso was canvassed by theSupreme Court in R. v. Van, 2009 SCC 22.

LeBel J., for the majority, wrote: [36] An appellate court can also uphold a conviction under s. 686(1)(b)(iii) in the event of an error that was not minor and that cannot besaid to have caused no prejudice to the accused, if the case against the accused was so overwhelming that a reasonable and properlyinstructed jury would inevitably have convicted (Khan, at para. 31). The ability to uphold a conviction in the face of a serious error attrial was aptly expressed by Sopinka J. in R. v.

S. (P.L.), (SCC), [1991] 1 S.C.R. 909, who wrote that "depriving theaccused of a proper trial is justified on the ground that the deprivation is minimal when the invariable result would be anotherconviction" (p. 916, affirmed in Khan, at para. 31). The high standard of an invariable or inevitable conviction is understandable, giventhe difficult task for an appellate court of evaluating the strength of the Crown's case retroactively, without the benefit of hearing thewitnesses' testimony and experiencing the trial as it unfolded (Trochym, at para. 82).

It is thus necessary to afford any possible measureof doubt concerning the strength of the Crown's case to the benefit of the accused person. The rationale for upholding a conviction inthese circumstances is persuasive; in the words of Binnie J. in R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, at para. 46: Where the evidence against an accused is powerful and there is no realistic possibility that a new trial would produce a different verdict,it is manifestly in the public interest to avoid the cost and delay of further proceedings. Parliament has so provided.

This reasoning was echoed in my concurring reasons in Khan (at para. 90). Thus, an appellate court is justified in refusing to allow anappeal against a conviction in the event of minor errors that could not possibly have affected the verdict and more serious errors that werecommitted in the face of an overwhelming case against the accused, since the underlying question is always whether the verdict wouldhave been the same if the error had not been committed: R. v. Bevan, (SCC), [1993] 2 S.C.R. 599. (See also R. v.

West, 2010 NSCA 16 at para. 185.) [58] I am satisfied that, in the circumstances of this trial, the legal error in notspecifically cautioning the jury as to the potential danger for their improper use of the bad character evidence did not impact on thereliability of the verdict. I come to this conclusion for a number of reasons. First, the nature of the evidence did not engage the dangersof propensity reasoning. That is, the so-called bad character evidence had nothing to do with the type of offence being tried. There wasno suggestion that the appellant was violent or in any way even aggressive.

The danger posed by the bad character evidence, if any, wasthat the jury may view the appellant in a bad light - that is, as a person who often engages in unlawful conduct; being a bad person, he isdeserving of punishment.

In my opinion, the likelihood of such prohibited reasoning is minimal. [59] Second - and this reason is connected to the minimal risk of prejudicial reasoningby the jury - the defence tendered what was arguably evidence of the appellant’s good character, along with a good deal of the evidencethat the appellant now says fatally taints the outcome absent a limiting instruction. [60] At the outset of the testimony of the appellant, the defence tendered theappellant’s criminal record as an exhibit. It set out six convictions, mostly for property offences, committed in 1997 and 1998.

Theappellant described in some detail the circumstances of those offences to minimize the impact these convictions may otherwise have. The Crown asked him no questions in cross-examination about his criminal record or his attempts to minimize the apparent seriousnessof some of the convictions. [61] The appellant then led what is, at least arguably, evidence of his good character. He described his employment in Ontario.

He tendered his income tax notice of assessments for the years 2004 to 2009, demonstratinghis significant income from legitimate employment of a high of almost sixty-five thousand dollars to a low of around nineteen thousandin 2009, which he said was due, in part, to being in jail. [62] The appellant also testified in direct examination to his alcohol and drug addictionand his cultivation of and daily consumption of marijuana. These latter details had already been elicited by the defence in cross-examination of Tammy Dowding.

This evidence was an obvious attempt to humanize the appellant in the eyes of the jury and to providea relatively innocent explanation for his possession of a duffle bag containing jars of marijuana. [63] It was during the appellant’s direct examination that he explained the shotgun wasnot registered, he had no Firearms Acquisition Certificate or hunting licence, nor did he wear hunter orange as required. He sawed theshotgun off to make it easier to push through the bush to go “road hunting”. He knew “road hunting” was not legal.

The appellant’sinterest in bird hunting and claimed participation in it the morning of November 14, 2009 was an integral part of his innocentexplanation for why he had, on the seat beside him, at Mr. McNamara’s residence, a sawed-off shotgun which was loaded, cocked, andwith the safety off. Obviously the credibility of this explanation was key to his denial of criminal liability.

Perhaps to take the sting outof the seeming incongruity of such conduct, the defence acknowledged in direct examination many of the things that made the details ofhis explanation contrary to both common sense and a variety of legal strictures. [64] Third, the trial judge gave a correct and complete instruction on the use the jurycould and could not make of the appellant’s other evidence of disreputable conduct as set out in his criminal record. The instruction was: You heard evidence that Mr. Hartling had been convicted of criminal offences. He freely admitted those to you. You must not concludejust because Mr.

Hartling has committed a crime or crimes in the past, he must have committed this one. You can only use the fact orthe number of convictions and the nature of that conviction to help you decide how much or how little of the testimony of Mr. Hartlingyou will believe or rely on. Some convictions, for example, ones that involve dishonesty, may be more important to you than others.

Consider, as well, whether the previous conviction is recent or happened a number of years ago. A previous conviction does notnecessarily make the evidence of Mr. Hartling unbelievable or unreliable. It is only one of the many factors for you to consider in yourassessment of Mr. Hartling's testimony. I emphasize that you must not use the fact, number or the nature of the previous conviction todecide or help you decide that Mr. Hartling is the sort of person who would commit the offences he is charged in this trial. [65] As Cromwell J.A., as he then was, pointed out in R. v.

RTF, 2007 NSCA 18 (atpara. 94), in considering if the proviso should be invoked, it is appropriate to take into account the fact that the legal error with respect toa lack of an appropriate caution about bad character evidence came from non-direction rather than misdirection. This scenario differsfrom cases such as Farler v. The Queen (2006), 2006 NSCA 42 , 243 N.S.R. (2d) 237; Rarru v. The Queen, (SCC), [1996] 2 S.C.R. 165; and R. v. B.(F.F.), (SCC), [1993] 1 S.C.R. 697, where there were instructions by the judgeor invitations by the Crown to engage in the very reasoning the jury should be warned against.

Here, there was no instruction by thejudge or argument by the Crown to encourage the jury to engage in reasoning they should not. [66] Fourth and finally; the defence had opportunities before, during and after thejudge’s charge to object or request a limiting instruction. He did not. Of course the failure to object does not preclude a remedy onappeal (see R. v. Jaw, 2009 SCC 42 at para. 44). But it is a factor an appeal court can consider in assessing the seriousness of the laterclaimed error (R. v.

Jacquard, (SCC), [1997] 1 S.C.R. 314 at para. 38). [67] I would therefore not give effect to this ground of appeal Refusing to allow the defence to call the proposed witnesses, James Gamble and Constable Quinn [68] As mentioned earlier, the trial judge permitted the defence to lead evidence aboutthe deceased’s propensity for violence, including the use of a firearm in a previous incident that led to his conviction for assault with aweapon and pointing a firearm. The trial judge ruled the evidence of Cst.

Quinn and James Gamble inadmissible. [69] During the initial voir dire to determine the admissibility of the deceased’spropensity for violence, Cst. Quinn was called as a witness on September 9, 2011. Apparently, shortly after November 14, 2009, thepolice had received information that firearms belonging to the deceased were located at the residence of David Gamble. The deceasedwas prohibited from possessing firearms. Cst. Quinn said he seized two firearms from that residence. No further description or detailswere provided. [70] The trial judge gave his ruling on September 12, 2011.

He found that there wasno admissible evidence to link the firearms seized by Cst. Quinn to the deceased. The trial judge ruled the evidence inadmissible ashaving no probative value. [71] On September 13, 2011, the defence sought to re-visit the issue by asking the trialjudge’s permission to call James Gamble to try to fill in the missing link between the guns seized by Cst. Quinn and the deceased. TheCrown objected on the basis that the trial judge could not re-visit his earlier voir dire decision. In any event, Mr. Gamble was permittedto testify in the absence of the jury about his proposed evidence.

He described being on good terms with the deceased. He said, abouttwo weeks prior to November 14, 2009 the deceased came to his parents’ residence (presumably his father was David Gamble). [72] The house was located in a different community than that of the deceased. Mr.Gamble described a discussion with the deceased about guns. James Gamble testified that he encouraged the deceased to leave his gunsat the house. He said the deceased did so. He told the deceased he could come and get them anytime. The deceased never returned. Submissions were made on the admissibility of the evidence.

The trial judge reserved his decision. [73] The next day the trial judge ruled the evidence inadmissible on the basis that theevidence with respect to the guns had no probative value to show a violent disposition on the part of the deceased.

[ 74 ] The appellant acknowledges that on its own, the evidence of Cst. Quinn was inadmissible hearsay. The appellant ’ s complaint is that the evidence of Cst. Quinn and Mr. Gamble together would have demonstrated the deceased ’ s recent possession of firearms and would assist on the issue of whether the appellant had reason to believe that the deceased put a gun in his back waistband just prior to the shooting. This was not the basis upon which counsel at trial had urged admission. In addition, Mr.

Gamble made a vague reference to general knowledge that the deceased had a temper. [ 75 ] I am unable to agree that the trial judge erred. There was absolutely no evidence that the appellant was in any way aware that the deceased was recently in possession of firearms or could have ready access to firearms from the Gamble residence. Absent this link, the trial judge made no reversible error in his ruling. If the appellant was aware of the recent event described by Mr.

Gamble, I am not sure it would assist his defence since it could also be used to show that the appellant knew the deceased had gotten rid of firearms in his possession. I would not give effect to this ground of appeal. ADEQUACY OF THE JURY CHARGE [ 76 ] I will consider the issues of provocation; evidence of post-offence conduct and how it could be used by the jury; and lastly the jury charge on self-defence, accident, and the requisite intent for murder. Failure to charge on provocation [ 77 ] At trial, the appellant reached for the golden ring for any accused, an acquittal.

It was thought possible to achieve that verdict by banking on the combination of the Crown being unable to prove beyond a reasonable doubt that the appellant did not act in self-defence in producing the sawed-off shotgun and that the discharge of the gun was not caused by the voluntary or deliberate act of the appellant – in other words, it was an accident. There was no suggestion at trial that the jury should consider the defence of provocation. [ 78 ] Provocation is only a partial defence to murder.

If the Crown cannot prove beyond a reasonable doubt that the requirements of provocation were not present, the result is a conviction for manslaughter. The history of the defence, the codification of it in Canada, and the tests that need to be met are thoroughly reviewed in R. v. Tran, 2010 SCC 58 .

There is no disagreement by the parties about the requirements for the defence of provocation, nor that a trial judge should charge a jury on all defences arising on the evidence, whether or not they have been specifically raised by the accused. [ 79 ] However, to trigger this duty, there must be an “ air of reality ” to the defence at issue. Here, the appellant says that defence was provocation.

To achieve the threshold of “ air of reality ” for provocation, the accused must be able to point to some evidence that could permit a reasonable jury properly instructed and acting reasonably to acquit of murder and convict on manslaughter. [ 80 ] The air of reality test was extensively considered by the Supreme Court of Canada in R. v. Cinous, 2002 SCC 29 .

McLachlin C.J. and Bastarache J., in joint reasons for the majority, wrote: [62] In Parnerkar, supra , Fauteux C.J. stated the question to be asked, in the context of the defence of provocation, at p. 454: If, then, the record is denuded of any evidence potentially enabling a reasonable jury acting judicially to find a wrongful act or insult of the nature and effect set forth in s. 203(3)(

a) and (b) , it is then, as a matter of law, within the area exclusively reserved to the trial judge to so decide and his duty to refrain from putting the defence of provocation to the jury. [Emphasis added.] Fauteux C.J. did not limit the question to whether the record was "denuded of any evidence". Rather, the question was whether the

Fauteux C.J. did not limit the question to whether the record was "denuded of any evidence". Rather, the question was whether therecord was denuded of any evidence having the potential to enable a reasonable jury acting judicially to acquit. Whether or not theevidence has this potential is a question for the trial judge. While courts have often spoken of an inquiry into whether there is "someevidence" or "any evidence" without qualification, this must be understood as a short-form reference to the full question.

The fullquestion is whether there is evidence (some evidence, any evidence) upon which a properly instructed jury acting judicially could acquit.If there is any or some such evidence, then the air of reality hurdle is cleared. If there is no such evidence, then the air of reality hurdle isnot cleared. In view of the frequent resort by courts to short-form expressions, it may be tempting to focus on the first part of the question("there must be some evidence") to the exclusion of the crucial second part ("upon which a properly instructed jury acting reasonablycould acquit").

That this temptation must be resisted is made clear by the authorities. [63] In Squire, supra, the issue was whether the defence of provocation should have been put to the jury. The accused had beenconvicted at trial. The Court of Appeal ordered a new trial on the ground that the defence of provocation should have been put to thejury. The Court allowed the appeal and restored the jury's conviction.

Spence J., for the Court, stated the familiar principle that it is theduty of the trial judge to put to the jury all defences arising from the evidence, whether or not they were argued by counsel to the jury.He then stated, at p. 19: It is, however, equally plain that a trial judge is under no duty to invite the jury to consider defences of which there is no evidence orwhich cannot reasonably be inferred from the evidence: ... [Emphasis added.] This statement makes it clear that the question of whether there is "any evidence" is incomplete.

As Spence J. explicitly states, it isnecessary to consider whether the evidence is reasonably capable of supporting the inferences necessary for the defence to succeed. Tothe extent that the inferences required for the defence to succeed cannot reasonably be supported by the evidence, the defence lacks anevidential foundation -- it has no air of reality -- and should therefore not be put to the jury. [81] What then are the requirements for provocation for a jury to consider? Thedefence of provoction is set out in s. 232 of the Criminal Code. For our purposes, the relevant parts are: 232.

(1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in theheat of passion caused by sudden provocation.

(2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control isprovocation for the purposes of this

section if the accused acted on it on the sudden and before there was time for his passion to cool. [82] Charron J. in R. v. Tran, supra, reviewed the fact that the defence of provocationhas been variously described by the Supreme Court as having two, three or four requirements. She concluded the fluctuation ofdescription makes no substantive difference. She wrote: [10] As the opening words of the provision make plain, the defence will only apply where the accused had the necessary intent formurder and acted upon this intent. Parliament thus carefully limited the application of the defence.

The requirements of the defencecontained in s. 232 have been described variously by the Court as comprising either two, three or four elements. For example, in R. v.Hill, (SCC), [1986] 1 S.C.R. 313, Dickson C.J. identified three general requirements for the defence of provocation: First, the provoking wrongful act or insult must be of such a nature that it would deprive an ordinary person of the power of self-control.That is the initial threshold which must be surmounted. Secondly, the accused must actually have been provoked.

As I have earlierindicated, these two elements are often referred to as the objective and subjective tests of provocation respectively. Thirdly, the accusedmust have acted on the provocation on the sudden and before there was time for his or her passion to cool. [p. 324] In R. v. Thibert, (SCC), [1996] 1 S.C.R. 37, Cory J. for the majority of the Court collapsed these three requirementsinto two elements, one objective and the other subjective, describing them as follows:

First, there must be a wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power of self-controlas the objective element. Second, the subjective element requires that the accused act upon that insult on the sudden and before therewas time for his passion to cool. [Emphasis in original deleted; para. 4.] Subsequently, in R. v.

Parent, 2001 SCC 30, [2001] 1 S.C.R. 761, the Court reiterated the test in Thibert but framed it in terms of fourrequired elements: ... (1) a wrongful act or insult that would have caused an ordinary person to be deprived of his or her self-control; (2) which is suddenand unexpected; (3) which in fact caused the accused to act in anger; (4) before having recovered his or her normal control ... . [para. 10] [11] These various formulations do not differ in substance.

While it may be conceptually convenient in any given case to formulate therequirements of the defence in terms of distinct elements and to treat each of these elements separately, it is important to recognize thatthe various components of the defence may overlap and that s. 232 must be considered in its entirety. [83] In the end, Charron J. conducted her analysis by adopting the two elementsdescribed by Cory J. in R. v. Thibert: there must be a wrongful act or insult of such a nature that it is sufficient to deprive an ordinaryperson of the power of self-control as the objective element.

Second, the subjective element requires that the accused act upon that insulton the sudden and before there was time for his passion to cool. [84] Although the question of whether a wrongful act or insult amounts to provocationand whether an accused was deprived of the power of self-control are questions of fact for the jury (s.232(3)), the issue of whether thereis an air of reality to such a defence is a question of law R. v. Tran, supra, para. 40).

There must be some evidence on each of thenecessary elements of provocation upon which a reasonable jury, acting judicially, could find the defence successful. [85] In my opinion, there is no air of reality to any of the requirements for the defenceof provocation. The wrongful act that the appellant says would deprive an ordinary person of the power of self-control was the reach bythe deceased for an object he had earlier tucked into his rear waistband.

The reaching for an unknown object, which the appellant saidhe thought was a gun, might frighten an ordinary person, but I fail to see how a jury could judicially conclude that it would have areasonable doubt that such

an act would deprive an ordinary person of self-control. [86] The appellant himself, presumably a reasonable and ordinary person, did nottestify that he was deprived of self-control by the claimed provocative act. He said he was not even scared by the reach of the deceasedfor the unknown object. Rather, he testified that he produced his sawed-off shotgun, not to shoot the deceased, but to demonstrate thathe also had a gun. There was no indication or claim that he was deprived of self-control.

I see no basis for the jury to be able tojudicially find a reasonable doubt that an ordinary person would be so deprived. [87] With respect to the subjective element, the accused did not act on the claimedinsult on the sudden. He said he did not shoot the deceased with any intent to kill or cause bodily harm that he knew was likely to causedeath and was reckless whether death ensued or not. Instead he very clearly described his calm, but clear decision to simply show thedeceased the shotgun. The appellant professed no passion that spurred a deliberate act of murder.

I agree with the appellant that the jurycould and did reject his evidence that he did not intend to shoot the deceased. But that rejection does not provide a legitimate evidentiarybasis for a jury to infer the objective and subjective elements required for provocation. [88] There are a host of cases that make it plain that the existence of some evidence ofa provocative act by a deceased, such as an assault or reaching for a weapon, is insufficient; there must an ability to link the provocativeact to a sudden loss of control during which the accused causes the death of the deceased with murderous intent.

I will refer to two. InR. v. Olbey, (SCC), [1980] 1 S.C.R. 1008, McIntyre J., for the majority, wrote (p. 1022): It will be recalled that the appellant did not raise the defence of provocation at trial but relied on self-defence. It may be observed herethat at no time did the appellant say that he had been provoked into violent action by the words and conduct of the deceased. In fact, hisdescription of events goes far to negate any suggestion of provocation. His evidence reveals an attack, described clearly and with somedetail, to which he reacted, not on the sudden, but by defending himself.

When, according to his evidence, he saw the deceased put his

hand inside his sweater, he considered that the deceased was reaching for a gun and, in fear of his life, he shot and killed him. Thisdescribes a calculated and rational series of defensive acts, not a sudden reaction in the heat of passion. Nevertheless, the trial judge andthe Court of Appeal considered there was some evidence of provocation which required the putting of that charge to the jury.

I have readthe evidence with care and find it difficult to reach a conclusion that there was any evidence of a wrongful act or insult of such nature asto be sufficient to deprive an ordinary person of the power of self-control. Further, I was unable to find any evidence that the accusedacted on the sudden before his passion cooled. ... [89] In R. v. Faid, (SCC), [1983] 1 S.C.R. 265, the accusedexchanged blows with the deceased. He was kicked in the head. The deceased was armed with a knife. The accused was able to disarmthe deceased. Fearing a further assault with a spear gun, he stabbed the deceased.

Self-defence and lack of intent to commit murderwere advanced at trial. The Alberta Court of Appeal ordered a new trial on the basis that there was evidence sufficient for the jury tohave been charged on provocation. The Crown appealed. Dickson J., as he then was, wrote for the court, allowing the appeal (p. 278-9): There can be no doubt that a reasonable jury acting judicially could find a blow to the head or a knife attack to be a wrongful act or insultof the nature and effect set forth in s. 215(3). Provocation no doubt existed here but that is not the end of the inquiry.

The critical questionto be answered in this case was whether there was any evidence that Faid was provoked. Was there any evidence of passion or that he"acted upon" the provocation on the sudden and before there was time for his passion to cool? We have only his evidence on the pointand nowhere in that evidence does one find any suggestion that as a result of the blows or other conduct of Wilson he was enraged, orthat his passions were inflamed, or that he killed in heat of blood.

There was no evidence of "a sudden temporary loss of controlrendering the accused so subject to passion as to make him or her for the moment not master of his mind" which is, as Devlin J. said in R.v. Duffy, [1949] 1 All E.R. 932, of the essence of provocation. The defence throughout, the only defence, was self-defence. Faid, on hisversion, was using measured force to resist the force being used against him. [90] I accept that in some circumstances there may be evidence, despite a denial by anaccused of loss of control, capable of supporting an inference of sudden rage or loss of control (see R. v.

Angelis, 2013 ONCA 70). But inthis case, there was no such evidence. [91] The appellant did not request a charge on provocation despite having anopportunity for input into the jury charge before, during, and after the judge instructed the jury. The defence of provocation would havebeen directly contrary to the main defences advanced at trial: self-defence and accident. I see no air of reality to such a defence (see alsoR. v. Pawliuk, 2001 BCCA 13; R. v. Dagenais, 2012 SKCA 103; R. v. Mayuran, 2012 SCC 31). I would not give effect to this ground ofappeal.

Post-offence conduct evidence [92] There has been a seeming abundance of appellate decisions on the admissibilityand, once before a jury, proper instruction on “consciousness of guilt evidence” or, as it has come to be called, “after-the-fact evidence”or “post-offence conduct evidence”. In a nutshell, it is circumstantial evidence tending to show that an accused acted in a mannerdemonstrating awareness of his or her criminal wrongdoing, thereby permitting a trier of fact to infer that the accused is guilty of theoffence with which he or she is charged. This concept is well expressed by Weiler J.A. in R. v.

Peavoy (1997), (ONCA), 117 C.C.C. (3d) 226 (Ont. C.A.): [26] Evidence of after-the-fact conduct is commonly admitted to show that an accused person has acted in a manner which, based onhuman experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person.The after-the-fact conduct is said to indicate an awareness on the part of the accused person that he or she has acted unlawfully andwithout a valid defence for the conduct in question. It can only be used by the trier of fact in this manner if any innocent explanation forthe conduct is rejected.

That explanation may be expressly stated in the evidence, such as when the accused testifies, or it may arise fromthe trier of fact's appreciation of human nature and how people react to unusual and stressful situations. It is for the trier of fact todetermine what inference, if any, should be drawn from the evidence. [93] There are well-recognized dangers associated with this kind of evidence. Care isneeded to ensure juries approach this kind of evidence correctly. Major J., writing for the court in R. v. White, (SCC),[1998] 2 S.C.R. 72, explained:

[21] Evidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence. In some cases it maybe highly incriminating, while in others it might play only a minor corroborative role. Like any piece of circumstantial evidence, an actof flight or concealment may be subject to competing

interpretations and must be weighed by the jury, in light of all the evidence, todetermine whether it is consistent with guilt and inconsistent with any other rational conclusion. [22] It has been recognized, however, that when evidence of post-offence conduct is introduced to support an inference of consciousnessof guilt it is highly ambiguous and susceptible to jury error. As this Court observed in Arcangioli, the danger exists that a jury may fail totake account of alternative explanations for the accused's behaviour, and may mistakenly leap from such evidence to a conclusion ofguilt.

In particular, a jury might impute a guilty conscience to an accused who has fled or lied for an entirely innocent reason, such aspanic, embarrassment or fear of false accusation.

Alternatively, the jury might determine that the conduct of the accused arose from afeeling of guilt, but might fail to consider whether that guilt relates specifically to the crime at issue, rather than to some other culpableact. [94] Where it is plain that an accused admits criminal culpability for a lesser or othercriminal offence committed during the same transaction as the offence set out in the indictment, the evidence of post-offence conductmay have no probative value. In which case, the jury must be instructed that the post-offence conduct evidence has no probative value(R. v.

Arcangioli, (SCC), [1994] 1 S.C.R. 129). [95] In this case, the appellant did not admit criminal liability for manslaughter. Herelied on self-defence and denied any voluntary, intentional act that caused the death of Mr. McNamara. The appellant does not suggestthat the evidence of what he did following the shooting was not probative with respect to whether the homicide was culpable or non-culpable.

His main complaints are that the trial judge: instructed the jury to engage in tautological reasoning; misspoke on an importantissue; and misdirected the jury that the post-offence conduct evidence could be used to assist them in determining the appellant’sculpability as between murder or manslaughter. Despite the presence of language that might be some-what awkward or confusing, I amnot convinced that the trial judge committed reversible error in how he instructed the jury. I will explain. [96] The trial judge accurately and fairly reviewed all of the evidence for the jury.

With respect to post-offence conduct evidence, he referred to it as follows: We've heard evidence that Mr. Hartling, as he left after the shooting, wore his hoodie, quickly left the scene, hid the shotgun and threw itaway, threw away the shotgun shells, and denied being involved when asked by Ms. Heighton [ sic]. What Mr. Hartling did or saidmight help you decide an issue going to a defence being advanced by Mr. Hartling, which I will address with you, subsequently, afterlunch, about whether he committed an unlawful act. Mr.

Hartling states that he panicked and that he decided to turn himself in within acouple of hours after the death of Mr. McNamara. He also took the police authorities to retrieve the shotgun. [97] His initial directions to the jury on post-offence conduct evidence were as follows: The first thing to decide is whether Mr. Hartling actually did or said these things. If you find that he did not do or say these things, youmust not consider this evidence in reaching any verdict or any decision. If you find that Mr. Hartling did, in fact, do or say these things,you should consider next whether this was because Mr.

Hartling committed an unlawful act of pointing and firing a firearm. If so, youshould consider this evidence, together with all of the other evidence, in reaching your verdict, but not going to the question of intent,which I will address. If, however, you find that Mr. Hartling did or said these things for some other reason, you should notconsider that as evidence of guilt. [98] The appellant says that this instruction, later repeated, invited the jury to engage intautological reasoning disapproved of in R. v. White (1998), supra.

That is, requiring the jury to determine whether the appellant wasconscious of having committed the offence before they could use the post-offence conduct evidence to decide if he had in fact done so. The appellant relies on R. v Hall, 2010 ONCA 724 (leave ref’d, [2010] S.C.C.A. No. 499), where similar language in a jury charge wascriticized as inviting the jury to go first to the issue of guilt before deciding what use they could make of the post-offence conductevidence, thus conducting the deliberation process backwards. With respect, I am unable to share the same concern. The court therereasoned:

[143] ...This instruction directed the jury to decide whether the appellant engaged in the post-offence conduct because he was conscious that he committed the offence . The jury was thus invited to jump directly to the issue of guilt as a precondition to deciding the use they would make of the post-offence conduct evidence; that is, conducting the deliberation process backwards as described in White, albeit not beyond a reasonable doubt as in that case. [Emphasis in original] [ 99 ] One of the issues the court had to address in R. v.

White (1998) was the body of jurisprudence that had developed suggesting that unless the jury was satisfied beyond a reasonable doubt that the post-offence conduct of the accused constituted flight or concealment and was motivated by the accused ’ s sense of culpability, the jury could draw no inference of guilt from such evidence of post-offence conduct. They must be told to disregard it. Major J. emphatically rejected this jurisprudence.

He reasoned that the criminal standard of proof beyond a reasonable doubt applies to the elements of the offences charged in the indictment, not to individual items or categories of evidence (paragraph 39). [ 100 ] However, unless the jury finds that the conduct in issue actually occurred, the conduct has no probative value in the chain of reasoning that permits a trier of fact to rely on it in the course of deliberations to draw an inference of guilt.

Moreover, if there are other explanations for the conduct in question other than guilt for the offence in question, the jury should be cautioned, even to the extent of withdrawing such evidence from their consideration. [ 101 ] It is useful to recall how it is that post-offence conduct can be relevant. Major J., in R. v. Arcangioli , supra, referred to the chain or reasoning that makes such evidence relevant: [42] A similar situation arose in United States v. Myers, 550 F.2d 1036 (5th Cir. 1977). The accused was wanted for two robberies; one was committed in Pennsylvania and the other in Florida.

The reported decision concerns the latter. There was evidence that the accused fled when approached by FBI agents.

Clark J. canvassed the law, adopted the view expressed in McCormick on Evidence (2nd ed. 1972), s. 271, at p. 655, and concluded that the proper approach determines whether there is sufficient evidence in support of drawing four inferences: (1) from the accused's behaviour to flight, (2) from flight to consciousness of guilt, (3) from consciousness of guilt to consciousness of guilt concerning the offence in question, (4) from consciousness of guilt of the offence in question to actual guilt of the offence in question. Clark J. held that the third inference could not be drawn.

Since the accused knew that he was wanted for a robbery committed in Pennsylvania, the possibility existed that he fled solely out of consciousness of guilt with respect to it, rather than the Florida robbery. To be useful, flight must give rise to an inference of consciousness of guilt in regard to a specific offence. [ 102 ] Major J. then commented: [43] The test articulated in Myers provides helpful guidance on the inferences that may be drawn from evidence of an accused's flight (or other possible indicia of consciousness of guilt, such as lying).

Such evidence can serve the function of indicating consciousness of guilt only if it relates to a particular offence. Consequently, where an accused's conduct may be equally explained by reference to consciousness of guilt of two or more offences, and where an accused has admitted culpability in respect of one or more of these offences, a trial judge should instruct a jury that such evidence has no probative value with respect to any particular offence.

[103] Where there is a dispute in the evidence about whether the conduct in questionactually occurred, in my opinion, the jury should be instructed to determine first if they are satisfied that the appellant engaged in theconduct in dispute. The standard is, of course, not proof beyond a reasonable doubt on such an issue. [104] As noted by the court in R. v. Hall, supra, the impugned language used by the trialjudge in that case was based on Watt J.A.’s Ontario Specimen Jury Instructions (Criminal): 2005 Supplement (Toronto: ThomsonCarswell, 2005) at p. 72.

See also David Watt, ed., Watt’s Manual of Criminal Jury Instructions (Toronto: Carswell, 2005). In R. v. Hallthe court concluded that, on its own, the instruction did not amount to reversible error (para. 146). [105] In the case at bar, the trial judge relied on similar language and approach set out bythe Canadian Judicial Council in Model Jury Instructions in Criminal Matters (last revised February 2004). I see no legal error in thisaspect of the jury charge. [106] Later in his charge, it is evident that the trial judge misspoke.

When he charged thejury on self-defence, he again referred to the post-offence conduct evidence. He said to the jury: As I said earlier, you may take into account the conduct of Mr. Hartling following the firing of the shot from the shotgun. He put hishoodie on and left quickly and hid the gun and threw away the ammunition. Mr. Hartling, in his explanation, states that he panicked,and decided to turn himself in within a couple of hours after Mr. McNamara's death. He also took the police authorities to report thelocation of the gun. Before taking this into account, you must decide whether Mr.

Hartling actually did or said these things. If you find that he did not do soor say these things, you must [sic] consider this evidence in reaching your verdict. If you find that Mr. Hartling did not [sic] do or saythese things, you should consider whether this was because Mr. Hartling committed the unlawful act or shooting. If so, you shouldconsider this evidence. If, however, you find that Mr.

Hartling did or said these things for some other reasons, you should not considerthat as evidence in your consideration of whether the defence of self-defence applies. [107] The appellant acknowledges it is obvious that the trial judge misspoke. He meantto say: “If you find that he did not do so or say these things, you must not consider this evidence in reaching your verdict. If you find thatMr. Hartling did do or say these things, you should consider whether this was because Mr.

Hartling committed the unlawful act orshooting.” The appellant argues that the error would have made the jury confused on this important point. [108] It would have been obvious to the jury that the judge made a simple error. To saythe jury would have been confused and hence unable to figure out their adjudicative duties is to give no credit to the jury’s collectiveintelligence. The trial judge got the next sentence correct. Trial counsel sought no corrective direction.

I do not find this constituteslegal error. [109] Turning to the appellant’s last complaint, he argues that the jury was misdirectedand not given adequate instructions on post-offence conduct evidence. These complaints focus on what role, if any, the post-offenceconduct evidence could play in the jury’s deliberations on the mental states supporting murder as opposed to manslaughter.

Theappellant concedes that the jury was entitled to consider the post-offence conduct evidence on the issue of whether the homicide wasculpable or non-culpable, but argues the jury should have been directed that such evidence was of no assistance in distinguishing betweenculpability for murder and manslaughter. [110] The appellant cites R. v. Marinaro, (SCC), [1996] 1 S.C.R. 462,where the Supreme Court adopted the dissent of Dubin C.J.O. ( [1994] O.J. No. 2698).

In the course of his reasons for ordering a newtrial, Dubin C.J.O. wrote: [18] If, at the trial, the appellant had persisted in his earlier denial of non-involvement in the killing of the deceased, the jury would

have been entitled -- from the evidence of the appellant's flight from the scene, the appellant's false statements, and the destruction ofevidence -- to draw an inference of consciousness of guilt from which a further inference of culpability in the crime could also have beendrawn. Once the appellant had admitted at trial that he had caused the death of the deceased, however, such evidence had very limitedapplication.

It had no application in determining whether the offence committed by the appellant was either murder or manslaughter. [111] The appellant relies on this as mandating a direction about the use the jury couldmake of the post-offence conduct on the issue of intent. I am unable to agree. In Marinaro there was considerable post-offence conductevidence involving flight, destruction of evidence and lies to the police. The trial judge instructed the jury that on the issue of murderousintent, they could consider the post-offence conduct evidence to determine if the Crown had proven its case.

The defences advanced attrial were self-defence and provocation. The defence objected to the charge on post-offence conduct as it related to the defence ofprovocation. Dubin C.J.O. relied on R. v. Arcangioli, supra, and R. v. Wiltse (1994), (ON CA), 19 O.R. (3d) 379 (C.A.)for the proposition that once liability for criminal culpability is accepted, post-offence conduct evidence may not be of assistance on thelevel of culpability.

He concluded: [31] It was essential in this case, in light of the extensive instructions to the jury of the doctrine of consciousness of guilt, that the trialjudge should have clearly instructed them as to the limited use that could be made of the evidence of flight, false statements, anddestruction of evidence. They should have been instructed that such evidence had no probative value and was of no assistance in theirconsideration of the defence of provocation and in determining whether the offence was one of murder or manslaughter. [112] This is undoubtedly correct.

However, in the case at bar, the appellant did notadmit culpability for the homicide. He insisted that he did not even point the shotgun at the deceased, but brought it into view only todemonstrate that he had a gun too and that the subsequent discharge of the shotgun was an accident. In an idealized world, the jury couldhave been given more nuanced directions about the possibly limited role post-offence conduct evidence had in relation to theirdeliberations on the issue of intent but, in the circumstances of this case, such a charge would have been unduly complex and confusing.

It may also have deprived the appellant of his reliance on post-offence conduct evidence to support his claim of innocence. I willelaborate. [113] The appellant was on trial for first degree murder. The theory of the Crown wasthat there was animus between the appellant and the deceased. The animus was direct, as the appellant suspected the deceased had beenresponsible for a recent break and enter into his grow operation on Cedar Street. It was also indirect, as there was evidence of intenseanimosity between the appellant’s close friend and associate Timmy Knowles and the deceased.

The appellant perceived the deceased’svisit to his home as a threat. The Crown argued that the appellant planned to shoot the deceased. He armed himself and drove his truckto the deceased’s home. He called for the deceased to come down the length of the driveway, where the appellant waited wi

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