R. v. Calnen, 2017 NSCA 49

Nova Scotia Court of Appeal Citation: R. v. Calnen , 2017 NSCA 49 Date: 20170614 Docket: CAC 448011 Registry: Halifax Between: Paul Trevor Calnen Appellant v. Her Majesty the Queen Respondent Judge: Scanlan, J.A. MacDonald, C.J.N.S. (Dissenting) Appeal Heard: February 15, 2017, in Halifax, Nova Scotia Subject: Appeal of criminal conviction for murder and appeal of sentence.

Summary: The appellant was convicted by a jury in relation to the death of a female partner. They had been in a relationship and the deceased intended to leave the appellant, planning to steal some of his personal property when she left. The appellant came home to discover her in the process of leaving with some of his property. There were texts suggesting that the situation became tense. There was no evidence at trial, other than the appellant’s statement to the police and the deceased’s mother where he gave his version as to what occurred at the time of the deceased's death.

The appellant at all times maintained that did not cause the death of the deceased. He said she took a swing at him in anger, missed, and the momentum carried her down the stairs where the appellant, upon deciding she was dead, said he removed the body from his house so as not to be blamed for her death. In an attempt to deflect blame, the appellant sent a text suggesting she had left the property when in fact she was dead. There was no evidence as to the cause of death, the appellant had repeatedly moved and subsequently incinerated the body of the deceased.

Repeated searches of the appellant's home did not reveal any evidence of a struggle or any blood. Her remains were never located, the appellant had given a statement to the police saying he burned the body several times until there were only ashes, which he dispersed in a lake in front of the cottage of the deceased’s parents. The vast majority of the evidence against the appellant was circumstantial evidence mainly related to his after-the-fact conduct. The appellant pleaded guilty to the offences related to the burning of the deceased body. He was sentenced to five years concurrent on each of two offences.

Issues:

(1) Appeal of conviction of murder based on an assertion by the appellant that the trial judge made numerous errors in evidentiary rulings and the instructions to the jury.

(2) The fitness of the sentences related to the burning of the deceased body. The court was unanimous in dismissing the appeal of that sentence.

Result: The appellant appealed the convictions on a number of grounds. He argued that the trial judge did not properly instruct the jury as to the use of evidence of after-the-fact conduct. He also appealed the trial judge’s refusal to grant a motion for a directed verdict. The majority determined that the final instruction to the jury related to after-the-fact conduct was inadequate. The conviction of second degree murder was set aside.

The majority also held that the trial judge should have granted the motion for directed verdict on the second degree murder charge as the after-the-fact conduct evidence alone was not evidence that could prove the requisite intent for second degree murder. There was no other evidence that could prove intent to murder. The majority noted that, in the absence of any additional evidence, any retrial should not include the charge of second degree murder.

The dissenting judgement held that the jury charge was not deficient and that the after-the-fact conduct evidence together with the other evidence was sufficient to maintain a conviction. The dissenting judge would have dismissed all grounds of appeal. There were a number of other grounds of appeal related to the statements of the accused to the deceased’s mother and to the police, use of texts as evidence, and expert evidence. The court was unanimous in saying there was no merit to any other grounds of appeal. 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 55 pages. Nova Scotia Court of Appeal Citation: R. v. Calnen , 2017 NSCA 49 Date: 20170614 Docket: CAC 448011 Registry: Halifax Between: Paul Trevor Calnen Appellant v. Her Majesty the Queen Respondent Judges: MacDonald, C.J.N.S.; Scanlan and Bourgeois, JJ.A.

Appeal Heard: February 15, 2017, in Halifax, Nova Scotia Held: Appeal on conviction of second degree murder allowed per reasons for judgment of Scanlan, J.A.; Bourgeois, J.A. concurring; MacDonald, C.J.N.S. dissenting; Appeal on sentences relating to indecently interfering with human remains dismissed per reasons for judgment of Scanlan, J.A.; MacDonald, C.J.N.S. and Bourgeois, J.A. concurring; Counsel: Peter D. Planetta and Matthew MacMillan (Law Student), for the appellant Jennifer MacLellan, Q.C., for the respondent Reasons for judgment: Overview

[ 1 ] Trial judges routinely instruct juries that cases must be decided based upon legally admissible evidence, not emotion. The actions of the appellant in this case; repeatedly burning the body of Reita Louise Jordan after her death, would inflame the emotions of most people. It is of the utmost importance that the trial judge in this case precisely proscribe any limitations in the use of that evidence as it relates to the issue of proof of the intent to murder.

Below I explain why how, in my opinion, the trial judge failed to properly instruct the jury on the limitations as to the use of after-the-fact evidence. I also explain, a proper application of the limitations in the use of that evidence leaves the Crown unable to prove requisite intent for a conviction for murder in this case. [ 2 ] Chronologically it is worth noting that at the preliminary inquiry stage, Provincial Court Judge A. Derrick, R. v. Calnen , 2014 NSPC 17 , did not commit the appellant. The Crown proceeded by Preferred Indictment. [ 3 ] A jury found the appellant, Mr.

Calnen, guilty of second degree murder in relation to the March 18, 2013, death of Reita Louise Jordan. He was sentenced to life imprisonment with parole ineligibility of 15 years. In addition, the appellant pleaded guilty to two charges of indecently interfering with the remains of Reita Louise Jordan and he was sentenced to five years concurrent for those offences. [ 4 ] Mr. Calnen now appeals the second degree murder conviction and the sentence related to indecently interfering with human remains. Background [ 5 ] The deceased resided with the appellant in his home.

They had been involved in a sexual relationship that appeared to have been fueled by their joint use of crack cocaine. Telephone text messages and other evidence revealed that the deceased was planning to end the relationship and move out of the appellant’s home around the time of her death. She also intended to steal some of the appellant’s belongings at or about the time of her leaving. [ 6 ] The text messages, and a statement from the appellant, suggest that around the time the appellant learned the deceased was moving out, there was a heated exchange between him and Ms. Jordan.

In his statement to the police, the appellant described the deceased as being angry, kicking furniture and throwing a can of pop at him. The appellant says he did not cause the death of Ms. Jordan. [ 7 ] In relation to the death of Ms. Jordan, the only other evidence as to what occurred comes from the statement the appellant later gave to the police, together with his re-enactment of events. That statement and re-enactment occurred several weeks after Ms. Jordan disappeared. Her body has not been found.

The appellant says he moved the body several times and burned it several times, finally disposing of the remaining ashes in a lake in front of her parents’ cottage. [ 8 ] As to the events proximate to the time of Ms. Jordan’s death, the appellant described the deceased as taking a swing at him and missing, but having enough momentum in her swing to cause her to fall backwards down the stairs. He said as she was unconscious, he attempted to resuscitate her, but concluded that she was dead. At no time did he try to call for help. [ 9 ] He described himself as then having consumed crack cocaine.

With his mind then fueled by drugs, he decided to remove Ms. Jordan’s body from his home. He also attempted to mislead the authorities and others as to where the deceased was prior to her death. This was in part an attempt to shift suspicion away from himself, or blame others for her disappearance. [ 10 ] What the appellant did to Ms. Jordan’s body after her death can only be described as horrific. He moved her remains on a number of occasions; first, from his house to a wooded area, moving the remains a number of times thereafter. Mr. Calnen also burned her remains on a number of occasions.

The final time was in a fire pit in his own back yard. Eventually, he spread what was left of Ms. Jordan’s ashes in a lake in front of Ms. Jordan’s parents’ cottage. [ 11 ] A subsequent investigation resulted in the recovery of what appeared to be some bone fragments from the lake, in the area where the appellant said he had deposited the ashes.

There was no DNA available in the recovered material to confirm that the material recovered matched the DNA of the deceased. [ 12 ] Although there are several legal issues that arise in this appeal, I am satisfied this case turns on the issue of whether evidence as to after-the-fact conduct alone can prove intent to commit murder. In that regard, I am satisfied that it is extremely important that, aside from the after-the-fact conduct, there was no evidence, physical or otherwise, that contradicted the appellant’s version of events.

In saying this, I take into account texts I referred to in paragraph four above, a text about the “shit hitting the fan”, and a text from Ms. Jordan saying he had laid a hand upon her. Also I am cognizant of a text sent, post-mortem, from Ms. Jordan’s phone that was likely sent by the appellant in an effort to make it look as though Ms. Jordan had left his residence. [ 13 ] For weeks Mr. Calnen denied having any involvement in the disappearance of Ms. Jordan, finally telling, first her mother, then the police, his version as to events at the time of and subsequent to her death.

His version suggests that he did not kill Ms. Jordan, but that he did repeatedly move and burn her body. [ 14 ] The Crown’s evidence relating to the cause of the victim’s death, and specifically the issue of intent to kill or inflict harm knowing it might cause death, was entirely circumstantial. It was based exclusively on the appellant’s after-the-fact conduct.

As noted, no body was recovered, there was no evidence as to the cause of death or the nature or extent of any injuries, or the type or degree of force required to inflict them. [ 15 ] The appellant’s home was searched twice; on April 13 and on June 19, 2013. The searches did not discover any evidence of a violent struggle, or blood stains. In his statement to the police, the appellant indicated that there was no blood from the deceased.

Unlike other cases I refer to below, there was nothing to indicate there were any repairs done to the appellant’s home to cover up damage that may have resulted from any altercation. In fact, there was no evidence of a physical altercation. There was no evidence of any attempt to clean up forensic evidence such as blood. The only evidence the searches revealed was a sticky substance on the TV and the wall, not blood stains. This is consistent with the appellant’s statement to the authorities that the deceased threw a can of pop at him. [ 16 ] There were texts from Ms. Jordan prior to her death.

They suggested she intended to steal Mr. Calnen’s property and that the situation on the day of her death was tense; she had sent a text saying: “Shit is hitting the fan for me right now”. [ 17 ] I am also convinced the trial judge should have granted a defence motion for a directed verdict on the charge of second degree murder. In addition, I am satisfied the jury was not properly instructed as to the limits on the use of evidence of after-the-fact conduct as it relates to proof of intent as required for conviction for murder.

Issues [ 18 ] The Amended Notice of Appeal lists a number issues: 1. The trial judge erred in applying the law of voluntariness to the evidence on the voir dire ; 2. The trial judge erred in admitting all of the text messages the Crown sought to have admitted; 3. The trial judge erred in denying the defence motion for a directed verdict of acquittal; 4. The trial judge erred in his instructions to the jury on the permissible uses of the after the fact conduct evidence; 5. The jury’s verdict was unreasonable and not supported by the facts; 6. The trial judge erred in imposing the maximum sentence of 5 years for the charge contrary to

section 182 (

b) of the Criminal Code ; 7. The trial judge erred in imposing a period of 15 years parole ineligibility. [ 19 ] I am satisfied I need only deal with issues #3 and #4 as they are dispositive of this appeal. In saying this I note the appellant still maintains that he did not cause the death of Ms. Jordan and causation will be very much a live issue on any re-trial. On a re-trial, the only issue for the jury should be whether Mr. Calnen caused the death of Ms. Jordan. Evidence of after-the-fact conduct is admissible as proof of consciousness of guilt.

This is distinct from the issue of degree of culpability which has given rise to the difficulties in the case on appeal. [ 20 ] I have read Chief Justice MacDonald’s reasons and I agree with his conclusion that there is no merit to issues 1, 2, 6 and 7 as raised by the appellant. Standard of Review [ 21 ] On the issue of a directed verdict, Saunders, J.A. held in R. v. Beals , 2011 NSCA 42 that the standard of review for a directed verdict decision is that of correctness. [ 22 ] On the issue of the jury charge, Saunders, J.A. stated in R. v.

Miller , 2009 NSCA 71 that: [14] … In charging a jury, the trial judge is engaged in providing appropriate instructions on the law. Legal principles are explained so that the jury will understand how to apply the law to the facts as they find them. The judge's directions on the law must be right.

Correctness is the standard of review we apply in our assessment of a judge's charge to the jury. [ 23 ] In the context of this case, the trial judge’s instructions should be sufficiently clear so as to delineate for the jury what use they can make of evidence of after-the-fact conduct in relation to intent and causation. As noted by Beveridge, J.A. in R. v. Murphy , 2014 NSCA 91 : [4] Courts of appeal have an important role to play in criminal cases. They must ensure that wrongful convictions do not occur. The Court's jurisdiction is statutorily defined by s. 686(1) of the Criminal Code .

The Court is given the power and duty to reject verdicts that are tainted by non-harmless legal error, a miscarriage of justice or where the evidence is so tenuous that a reasonable trier of fact, properly instructed, could not reasonably convict. [Emphasis in original] [ 24 ] As I explain below, after-the-fact conduct in this case has little probative value in proving the appellant’s intent at the time of Ms. Jordan’s death. I am satisfied that verdict was the result of a legal error in both the instructions to the jury and the failure to grant the motion for directed verdict.

Analysis [ 25 ] I analyse this case from two perspectives. One: the permitted use of evidence of after-the-fact conduct as it relates to the proof of degree of culpability (murder versus manslaughter). Second: were the instructions to the jury sufficiently clear as to how circumstantial evidence was to be used and the limiting instructions on the use of circumstantial evidence when it comes to drawing inferences as to intent.

I suggest there was not sufficient clarity in that regard. [ 26 ] My thesis below is that, although in some cases after-the-fact conduct is relevant to and capable of proving degree of culpability, that is not the situation that exists here. The appellant had made a motion asking the trial judge to take the charge of second degree murder away from the jury. I am satisfied that motion should have been granted because, in the circumstances of this case, after-the-fact conduct could not prove degree of culpability.

In the absence of evidence of after-the-fact conduct, there was no evidence upon which a jury, properly instructed, could reasonably infer that the appellant had the requisite intent to commit murder. The refusal to grant the motion to take second degree murder from the jury created an unacceptably high risk of wrongful conviction on the charge of murder. Can after-the-fact conduct alone prove intent/degree of culpability? [ 27 ] The issue in this case is whether the circumstantial evidence, specifically evidence of after-the-fact conduct, could be used to prove the requisite intent to commit murder.

In this case the accused had admitted to the horrific acts of repeatedly moving, repeatedly burning and disposing of the victim’s body. The trial judge invited the jury to use that evidence in determining whether Mr. Calnen’s after-the-fact conduct supported the rational inference that he had the requisite intent to commit murder. [ 28 ] The circumstantial evidence in this case almost exclusively related to after-the-fact conduct. The trial judge said on several occasions that after-the-fact conduct may or may not help the jury decide whether it was murder or manslaughter. I will discuss R. v.

Angelis , 2013 ONCA 70 in greater detail below but note here that it was exactly that type of instruction to the jury that caused the Ontario Court of Appeal to set aside the guilty verdict in Angelis . [ 29 ] I refer to a number of passages where the trial judge repeated that after-the-fact conduct could be used to prove Mr. Calnen’s state of mind at the time of Ms. Jordon’s death:

To determine Paul Trevor Calnen’s state of mind, what he meant to do, you should consider all the evidence. You should consider: Number one, what he did or did not do. Number two, how he did or did not do it. Number three, what he said or did not say. … Evidence of an accused’s acts or conduct after the crime with which he is charged is another piece of circumstantial evidence whichshould be considered by you, together with all of the other evidence, in determining whether the Crown has proven the guilt of anaccused beyond a reasonable doubt. We refer to this as after-the-fact conduct.

After-the-fact conduct is only some evidence which is to beweighed by you, together with all of the other evidence, in deciding whether or not the guilt of the accused has been proven beyond a reasonabledoubt. (Emphasis added) [30] The trial judge did not specifically separate the issue of proof of intent to commit murder from the issue of proving manslaughter. Heleft it open to the jury to use after-the-fact conduct to prove the requisite intent for murder: In this regard, you may take into account the evidence of Mr. Calnen’s burning of Reita Jordan’s body in determining whether heintended to kill Ms.

Jordan or to cause her serious bodily harm he knew was likely to cause death. On this issue, you will need to considerthe evidence in a different way than I have instructed you previously. You may conclude that Mr. Calnen sought to burn Ms. Jordan’s body inorder to conceal the evidence. You may or not reach this conclusion. It is up to you.

But if you do reach this conclusion, you may considerthis along with all of the other pertinent evidence in determining whether Paul Trevor Calnen had the requisite intent for second degree murder. (Emphasis added) [31] I am concerned that in the above noted passage the trial judge referenced the jury perhaps concluding that “… Mr. Calnen sought toburn Ms. Jordon’s body in order to conceal the evidence.” Few would dispute the fact that he burned the body to conceal evidence. But, it isthen a quantum leap to say the evidence of the moving and burning proves beyond a reasonable doubt Mr.

Calnen had the requisite intent tocommit murder. This passage in the jury charge, as is the case with other passages suggests that if the deceased’s body was burned to concealevidence that may be proof of the requisite intent to commit murder. [32] It begs the question of whether a person involved in a manslaughter may have tried to conceal evidence.

It begs the question as towhether a person who was not responsible for the death of a person in their home, with thought processes fueled by crack cocaine, mayconclude that they would not be believed if they argued they had nothing to do with a dead body found in their house. What of a person whomoved a body just so it would not be found in their home. Upon realizing that it was not well hidden might they then fear being caught andattempt to destroy the body by burning, then repeatedly moving and burning it until it was nothing but ashes.

Each time they did something,might they have been getting deeper in trouble for what had started as an accident. [33] Even if that person were responsible for the death originally, how does the after-the-fact conduct prove that it was a murder, and not amanslaughter? With the greatest respect, on the facts of this case the evidence cannot serve to prove the requisite intent for murder. [34] Case reports are replete with examples of individuals taking extreme measures, much more serious than the original crime, in order toconceal their involvement in lesser offences.

This cascading of events associated with hiding ones involvement does not mean that the originalevent was any more or less serious. [35] In this case, the trial judge explicitly instructed the jury that after-the-fact conduct could be used to differentiate as betweenmanslaughter and murder. …Mr. Calnen’s actions in burning and hiding the body are after-the-fact conduct which may or may not assist you in determining his guilt orinnocence. This evidence may or may not assist you in determining intent.

In the event, based on all of the evidence, you determine guilt,this after-the-fact conduct may help – may or may not help you decide whether it was murder or manslaughter. (Emphasis added) Was the instruction to the jury as to the use of after-the-fact conduct correct? The position of the parties: [36] The appellant takes the position that it was an error in law for the trial judge to instruct that after-the-fact conduct could, in this case,be used to prove intent.

The respondent says the trial judge made no error in that aspect of the charge. [37] Courts have permitted after-the-fact evidence to be admitted as it relates to the issue of consciousness of guilt. I refer, for example, toR. v. Peavoy, (ON CA), [1997] O.J.

No. 2788 (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 on humanexperience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person. … [38] After-the-fact conduct may be used to prove the accused had a “guilty mind”. But as Justice Major noted in R. v. White, (SCC), [1998] 2 S.C.R. 72; 20 … "Consciousness of guilt" is simply one inference that may be drawn from the evidence of the accused's conduct; it is not a special

category of evidence in itself. Moreover, the words "consciousness of guilt" suggest a conclusion about the conduct in question whichundermines the presumption of innocence and may prejudice the accused in the eyes of the jury. … 21 …In some cases it [after-the-fact conduct] may be highly incriminating, while in others it might play only a minor corroborative role…. [39] In R. v. White, 2011 SCC 13 , [2011] 1 S.C.R. 433 the court was considering a case involving an accused involved in a fight.The accused had a handgun and fired it into the chest of his opponent, killing him instantly. Mr.

White immediately fled the scene. The onlyissue for the jury was manslaughter versus second degree murder. The jury convicted of murder. [40] The Crown referenced the immediate flight of the accused as evidence of intent, saying “One would expect hesitancy if the shot wasanything other than the intended action…” Defence counsel did not object to the evidence nor the instruction. Justice Rothstein distinguishedWhite [2011] from White [1998] and R. Arcangioli, (SCC), [1994] 1 S.C.R. 129 based on the facts.

In White [1998] JusticeMajor said: [22] It has been recognized, however, that when evidence of post-offence conduct is introduced to support an inference of consciousness of guiltit is highly ambiguous and susceptible to jury error. As this Court observed in Arcangioli, the danger exists that a jury may fail to take accountof alternative explanations for the accused’s behaviour, and may mistakenly leap from such evidence to a conclusion of guilt.

In particular, ajury might impute a guilty conscience to an accused who had fled or lied for an entirely innocent reason, such as panic, embarrassment or fearof false accusation. Alternatively, the jury might determine that the conduct of the accused arose from a feeling of guilt, but might fail toconsider whether that guilt relates specifically to the crime at issue, rather than to some other culpable act. [23] Two legal doctrines have arisen in response to these concerns.

As a preliminary matter, this Court held in Arcangioli that a jury should notbe permitted to consider evidence of post-offence conduct when the accused has admitted culpability for another offence and the evidencecannot logically support an inference of guilt with respect to one crime rather than the other. That rule is essentially a matter of relevance andwill usually apply in narrow circumstances. More generally, this Court has also held that when evidence of post-offence conduct is put to thejury, the jury should be “properly instructed” to ensure that the evidence is not misused: Arcangioli, at p. 143; R. v.

Gudmondson (1993), (NB CA), 60 C.C.C. 332 (S.C.C.) at pp. 332-33. … Justice Major also said: [24] …[W]here an accused conduct may be equally explained by reference to consciousness of guilt of two or more offences, and where anaccused has admitted culpability in respect of one or more of these offences, a trial judge should instruct a jury that such evidence has noprobative value with respect to any particular offence. [41] In the circumstances of Mr. Calnen’s case he has not admitted culpability of any offence related to the death of Ms.

Jordan but thatdoes not alter the fact that the after-the-fact conduct here could be equally explained through consciousness of guilt for murder or manslaughter. [42] In White [2011] Justice Rothstein said: [22] The principle that after-the-fact conduct may constitute circumstantial evidence of guilt remains good law. At its heart, the question ofwhether such evidence is admissible is simply a matter of relevance (White (1998), at para. 23) … As with all other evidence, the relevance andprobative value of post-offence conduct must be assessed on a case-by-case basis (para. 26).

Consequently, the formulation of limitinginstructions with respect to the broad category of post-offence conduct is governed by the same principles as for all other circumstantialevidence. Thus, while the term “consciousness of guilt” may have fallen out of use.

It is still permissible for the prosecution to introduceevidence of after-the-fact conduct in support of an inference that the accused had behaved as a person who is guilty of the offence alleged-provided that, as with all circumstantial evidence, its relevance to that inference can be demonstrated. 23 That being said, though the use of such evidence has an extensive history in our criminal jurisprudence, it has also long been recognized thatthe introduction of post-offence conduct for the purpose of establishing the accused’s “consciousness of guilt” carries with it a substantial riskof jury error (Gudmondson v.

The King (1933), (SCC), 60 C.C.C. 332 (S.C.C)). Jurors may be tempted to "jump too quicklyfrom evidence of post-offence conduct to an inference of guilt" (White (1998), at para. 57) without giving proper consideration to alternateexplanations for the conduct in question. [43] In White [2011], Justice Rothstein discussed the use of limiting instructions versus cautions to the jury. In this case, the evidence ofafter-the-fact conduct was admissible on the issue of causation of the death.

The question then is what the trial judge should have done in termsof instructing the jury on the use of that evidence on the issue of murder versus manslaughter. If the evidence had no probative value indistinguishing between murder versus manslaughter the jury should have, at a minimum, been instructed that the evidence could not supportany inference concerning Mr. Calnen’s level of culpability. Instead the trial judge instructed the jury they could use the after-the-fact conductevidence in deciding whether Mr. Calnen was guilty of murder or manslaughter. Both murder and manslaughter were still before the jury.

Theafter-the-fact conduct would not assist the jury in determining murder versus manslaughter. [44] In many ways this case is best compared to the Angelis case from the Ontario Court of Appeal. In that case, the appellant was chargedwith second degree murder of his wife. There, the appellant accepted that he had caused his wife’s death during a physical altercation. Theissues were whether he acted in self-defence, and, whether he intended to commit murder. Mr. Angelis’ after-the-fact conduct was bizarre.

In aviolent struggle that preceded the victim’s death, the deceased attacked the appellant and scratched him on his face, lips, chest and torso. Sheclawed his penis, drawing blood. He suggested that in an attempt to prevent further injury he sat atop his wife and held her, finally realizingthat she was no longer alive.

[45] The couple’s children had witnessed the struggle that resulted in their mother’s death. Mr. Angelis was a trained nurse, but did notadminister CPR or call 911. Over the next three or four hours he folded the living room carpet over his wife’s body, then dragged her body tothe master bedroom from the living room. He said he did this to prevent his son from touching her. After dragging her body to the bedroom,the appellant used his wife’s makeup to hide his injuries.

He also put on six pairs of underwear, saying he did so because he said the blood fromhis penis kept soaking through. [46] He then took the children to church where he took communion and from there he telephoned his brother in Montreal to arrange for himto get the children.

He returned to his home with the children, got Christmas presents and gave them to the children, saying he did so becausehe thought they might be separated from him for some time. [47] Three or four hours after his wife’s death, the appellant called 911 and with a calm and casual voice reported her death. [48] Laskin, J.A. noted at ¶43, the appellant’s intent became a central issue in the case. In the charge to the jury, the trial judge hadrepeatedly instructed the jury “no less than eight times” that they could use the appellant’s post-offence conduct to decide whether the appellanthad intended to kill his wife.

The appellant argued that the trial judge erred by letting the jury think they could infer from the appellant’s post-offence conduct that he had intended to kill his wife. Laskin, J.A., writing for a unanimous court, agreed that the trial judge had erred. He saidthe error in the instruction was neither harmless nor the result of a tactical decision of defence counsel. On the latter point, I note that in Mr.Calnen’s case, counsel applied for a directed verdict, asking the court to take both murder and manslaughter from the jury.

Counsel shouldersno responsibility for the instruction to the jury in this case. [49] In Angelis, and many other cases, trial and appeal courts have used the term “post-offence conduct”. I use the term “after-the-factconduct”. If this matter again proceeds to trial I suggest the term “after-the-fact conduct” is a more appropriate term. Post-offence conductimplies that an ‘offence’ has, in fact, been committed and proven. In the context of this case, causation is a live issue and it would beinappropriate for a trial judge to suggest or imply the accused committed an ‘offence’.

Cases I have considered often use the term “post-offenceconduct” and where I adopt those words it is only for the purpose of consistency with those authorities. [50] In Angelis, Laskin, J.A. discussed the limitations on the use of post-offence conduct to determine culpability: 51 An accused's post-offence conduct is generally admissible to show that the accused acted in a manner which, based on human experienceand logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person: R. v.

Peavoy (1997), (ON CA), 34 O.R. (3d) 620 (C.A), at p. 629. 52 However, evidence of post-offence conduct may be susceptible to jury misuse, especially when, as in this case, the accused has admittedto committing the actus reus of an offence and the Crown is relying on the post-offence conduct to demonstrate a specific level of intent.Although this evidence will often be prejudicial to the accused, it will rarely have any significant probative value going to the accused's state ofmind during the commission of the criminal act.

That people will generally behave one way after they kill someone purposefully and anotherway after they kill someone accidentally is often a dubious assumption. 53 Therefore, in a long line of cases, both the Supreme Court of Canada and various courts of appeal, including this court, have held that anaccused's post-offence conduct may be probative of an accused's culpability, but not of the level of that culpability.

These courts have so heldbecause the accused's post-offence conduct is as consistent with an inference that the accused committed manslaughter as it is with an inferencethat the accused had the intent for murder. Where self-defence is raised as a defence, an accused's post-offence conduct is circumstantialevidence from which a jury can infer that the accused committed a culpable act, and thus did not act in self-defence. But, ordinarily, trial judgeshave been obliged to instruct juries that post-offence conduct evidence cannot be used to infer that the accused committed murder rather thanmanslaughter: see R. v.

Arcangioli, (SCC), [1994] 1 S.C.R. 129, at pp. 145-146; R. v. Marinaro, (SCC),[1996] 1 S.C.R. 462, adopting the dissenting reasons in (1994), (ON CA), 95 C.C.C. (3d) 74 (Ont. C.A.); R. v. Peavoy, atpara. 34; R. v. White (1998), (SCC), [1998] 2 S.C.R. 72, at p. 89; R. v. Swanson, 2002 BCCA 528, 168 C.C.C. (3d) 1, at para.18; R. v. Rodrigue, 2007 YKCA 9, 223 C.C.C. (3d) 53, at paras. 47-49; R. v. Figueroa, 2008 ONCA 106, 232 C.C.C. (3d) 51, at paras. 35-37. (Emphasis added) [51] Angelis was not appealed to the Supreme Court of Canada.

Angelis says of the accused at ¶ 58: [58] … I am not persuaded that his conduct could rationally support an inference of an intent to kill, rather than simply an inference ofhaving done something wrong. Indeed, recent case law from this court suggests that an accused’s failure to render assistance after learning thevictim may be dead is not probative of an accused’s level of culpability: see R. v. Anthony, 2007 ONCA 609, at paras. 52-58; R. v. Cudjoe, 2009ONCA 543, at para. 88; R. v.

McIntyre, 2012 ONCA 356, at para. 40. [52] As in Angelis, I am satisfied here that the trial judge erred when he expressly instructed the jury that they could take the appellant’safter-the-fact conduct into account in determining whether he intended to kill Ms. Jordan.

As was stated in Angelis: [60] Instead, he should have instructed the jury that the appellant’s post offence [after-the-fact] conduct was relevant only to the questionwhether the appellant had committed a culpable act… And, because the appellant’s post-offence conduct was not relevant to the issue of hisintent, the trial judge should have further instructed the jury this evidence had no probative value on the question whether the appellant wasguilty of murder or manslaughter: see R. v. White, (2011) at ¶ 60. [53] A Nova Scotia case dealing with post-offence conduct was R. v. Cromwell, 2016 NSCA 84.

In that case, Mr. Cromwell and hisgirlfriend were being harassed by a very drunk Mr. Tremblay. A fight erupted. Mr. Cromwell took a knife from his backpack and stabbed Mr.Tremblay, killing him. Cromwell and his girlfriend then ran away, got rid of his bag and hid from the police. The trial judge put this evidenceof flight to the jury specifically relating to the determination of intent. [54] At trial, defence counsel argued that the post-offence behaviour would be identical whether Mr. Cromwell committed murder ormanslaughter.

There was no concealment of the body, no attempt to disguise what he had done, only an attempt to escape the scene anddistance himself from the offence. Van den Eynden, J.A. writing for the Court, set aside the conviction and ordered a new trial. [55] In Cromwell the trial judge invited the jury to consider post-offence conduct when considering the issue of intent. When defencecounsel objected the judge refused to reinstruct the jury. The Appeal Court referred to R. v.

White, 2011 SCC 13 where Justice Rothstein notedthat post-offence conduct may not be probative as between mens rea for second degree murder and manslaughter. The comments of Justice

Moldaver in R. v. Rodgerson , 2015 SCC 38 were also noted and applied. I will expand on both of these cases below. [ 56 ] I wish to make a broader reference to cases to explain, as I understand it, why in some cases after-the-fact conduct is probative of the issue of intent, yet in others it is not. When doing so I keep in mind that the case on appeal is somewhat unique. The only evidence, other than the appellant’s statement to the police and his re-enactment, is the circumstantial evidence based on texts to and from Ms. Jordan’s phone and the appellant’s after-the-fact conduct.

That puts the issue of what limitations there are in the use of after-the-offence conduct to prove both causation and intent squarely before the court. In other cases where after-the-fact conduct has been used to prove intent there was other evidence to be considered. [ 57 ] In order for the jury to convict the appellant of second degree murder the jury would have to be satisfied beyond a reasonable doubt that the appellant meant to cause the death of Ms. Jordan or meant to cause her bodily harm that he knew was likely to cause her death and was reckless as to whether death ensued or not.

In this regard, I refer to s. 229 (a)(ii) of the Criminal Code of Canada , R.S.C. 1985, c. C-46. [ 58 ] In R. v. Jaw , 2009 SCC 42 at ¶39, LeBel J., for the majority, said post-offence conduct cannot usually, serve on its own, as the basis for inferring the specific degree of culpability of an accused person who has admitted involvement in an offence. It can be used more generally, to impugn the accused person’s credibility. In Jaw , the accused admitted to having shot a police officer during a violent struggle but he claimed a lack of intent to kill.

The issue on appeal was whether the trial judge’s comments in the charge to the jury suggesting the jury could infer intent from the accused’s post-offence conduct was an error. The trial judge there twice drew the jury’s attention to the accused’s conduct after the shooting. LeBel J. said: 24 The appellant argues that the trial judge erred by instructing the jury to infer from evidence of the appellant's post-offence conduct that he intended to shoot the deceased. I cannot agree with the appellant's submission.

The charge to the jury must be read as a whole, with attention paid to the fact that the trial was conducted in both Inuktitut and English. As I will explain in these reasons, the placement of the impugned reference in the charge indicates that the jury would not have interpreted the judge's reference to post-offence conduct as an instruction to infer intent merely from the appellant's actions following the shooting . [Emphasis added] [ 59 ] The Supreme Court did not set aside the conviction as Mr. Jaw had requested.

The Court did not back away from the principle that post-offence conduct alone cannot be used to infer intent at the time of the offence. The case turned on a review of the trial judge’s instructions to the jury, the Court concluding that, if the impugned

section was read in isolation, the instruction to the jury could be understood to suggest that the appellant’s post-offence conduct might be used to infer that he intended to kill the officer. (¶3) The Court determined, however, that in the charge to the jury, read as a whole, the trial judge did not put that inference to the jury. Nothing in Jaw took away from the principle that post-offence conduct on its own cannot usually serve as a basis for inferring a specific degree of culpability of an accused person (see ¶ 39). [ 60 ] In R. v.

White , [1998] , Major J., writing for the Court, discussed the use of evidence of post-offence conduct suggesting that: [21] Evidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence. In some cases it may be highly incriminating, while in others it may play only a minor corroborative role. … [ 61 ] At ¶26, Justice Major referenced Arangioli , , explaining that the issue of whether a jury is permitted to consider post-offence conduct, will depend on the facts in each case.

The question that should be asked at the outset is: What did the Crown seek to prove by means of the evidence? Clearly Mr. Calnen’s credibility is in issue. The use of post-offence conduct to attack credibility, in general, is not prohibited. The Crown went beyond using the evidence to attack credibility. In the case on appeal the Crown was clearly asking the trial judge to allow the jury to use after-the-fact conduct as evidence from which it could infer that the actions of Mr. Calnen not only caused the death of Ms. Jordan, but that he had the requisite intent for murder.

The judge’s instructions to the jury encouraged them to use after-the-fact conduct to make that determination. [ 62 ] In Arcangioli , the Court was dealing with an accused who was charged with aggravated assault in the stabbing of a victim. He admitted punching the victim but said he fled when he saw another person stab the victim in the back. A new trial was ordered based on a number of issues related to the charge to the jury including the fact that the trial judge failed to instruct the jury properly regarding what use could be made of the evidence of flight from the scene.

For the evidence of flight to be useful, it must give rise to an inference of consciousness of guilt in regard to a specific offence. Where an accused’s conduct may be equally explained by reference to consciousness of guilt of two or more offences, a trial judge should instruct a jury that such evidence has no probative value with respect to any particular offence. [ 63 ] In the context of Mr. Calnen’s case, he has not admitted guilt of murder or manslaughter, arguing that the death was the result of an accident of Ms. Jordan’s making.

Applying the reasoning of Arcangioli to this case, the jury should have been instructed that because the evidence of after-the-fact conduct may be equally explained by reference to consciousness of guilt of manslaughter or murder, the evidence was of no probative value on the issue of proving intent required for a murder conviction. [ 64 ] The limiting instruction on the use of post-offence conduct was discussed more recently in R. v. Foerster , 2017 BCCA 105 . In that case the accused was convicted of first degree murder.

The issues at trial were whether he had an intention to kill and whether he was attempting to commit a sexual assault at the time of the killing. The accused had disposed of a flashlight and a shoelace after the death of the victim. The Court said the jury should have been told that Foerster’s disposal of a shoelace and flashlight had no bearing on the issue of whether he was guilty of murder rather than manslaughter. In that case, Mr. Foerster admitted he was responsible for the injuries but contended he was guilty of manslaughter, not second degree murder.

A new trial was ordered as a result of the deficient instructions on the use of post- offence conduct evidence. The court reviewed the cases I have cited above, including Arcangioli and White [1998], pointing out that, in White [1998], the court made it clear that the no probative value instruction was not always necessary. I am satisfied that in the present case it was necessary. [ 65 ] Below I go one step further and suggest that the charge of second degree murder should have been taken from the jury based on defence counsel’s motion for directed verdict.

I will return to that point later. [ 66 ] In Foerster , the court also discussed R. v. White , [2011] , noting, as do I, that post-offence conduct evidence is not a special category of evidence requiring special rules in respect to admissibility or limiting instructions. It is, however, an area in which a judge must take care to ensure that a jury does not misuse the evidence, or treat it as more persuasive than is warranted.

[67] I referred to Rodgerson earlier but I want to discuss it in greater detail. It emphasizes when after-the-fact conduct can be used to assessthe issue of the degree of culpability. In that case, the accused and the victim met for the first time on the day of the victim’s death. They didnot previously know one another but got drunk together, did some drugs, and returned to the accused’s home. The events from that pointforward were unknown. The Crown’s case was entirely circumstantial as to the issue of the accused’s intent.

The accused testified that aftergetting to his house, he changed his mind and suggested they return to a bar. There was a dispute over money for drugs. The victim, accordingto the accused’s testimony, then attacked him. During the ensuing fight the accused said he pressed down on the victim’s face until she seemedto pass out. He said he then also passed out and when he awoke he discovered that she was dead. The accused removed the deceased’s bodyand took steps to conceal and destroy it. He cleaned up the scene and attempted to flee when the police arrived to execute a search warrant.

Healso made false statements to the police suggesting someone else had killed the deceased. [68] In that case the accused relied upon self-defence, lack of intent and provocation. The trial judge reviewed the evidence and potentialuse of all of the circumstantial evidence. He allowed the evidence of the accused’s post-offence conduct to go to the jury on the issue of intent.

This included evidence of his false statements and his attempted flight. [69] In Rodgerson the appeal focused on the appropriateness of leaving evidence of concealment and clean up to the jury on the issue ofintent, in support of the Crown’s theory that Mr. Rodgerson had the intent to commit murder. There was forensic evidence as to the extent andthe severity of the altercation. The evidence showed that Mr. Rodgerson had removed a bloodstained mattress from the bedroom, cut upbloodstained carpet and placed it in garbage bags.

He used bleach to clean up blood, and other remnants of their physical activity and physicalaltercation, located on the living room carpet, the kitchen floor, and the bedroom walls. The evidence at trial included expert analysis of theblood stain patterns. The Crown argued that the nature and extent of the injuries suffered by the victim and the degree of force required toinflict them was consistent with the intent to commit murder. The Crown suggested, the more severe the injuries caused by Mr.

Rodgerson andthe more force required to inflict them, the stronger the inference that he had the requisite intent for murder. The victim’s body was recoveredand an autopsy conducted. Justice Moldaver, writing for the Court, said: 20 It is relatively straightforward to understand how Mr. Rodgerson's efforts at concealment and clean-up were capable of supporting theinference that he acted unlawfully. The jury could reasonably have concluded that he was attempting to conceal evidence of a crime that he hadcommitted -- that is, unlawfully causing Ms. Young's death.

However, these efforts were also capable of supporting the further inference that hewas acting not merely to hide the fact that a crime had occurred, but to hide the extent of the crime. In other words, the jury might reasonablyhave concluded that he sought to conceal Ms. Young's body and clean up the scene of her death in order to conceal the nature and extent of Ms.Young's injuries and the degree of force required to inflict them. As indicated, the more severe the injuries, and the more force required toinflict them, the stronger the inference that he intended to kill Ms.

Young or cause her bodily harm which he knew was likely to cause death.This is not the only inference that could be drawn from the concealment and clean-up, but it is one the jury was entitled to draw. (Emphasis added) [70] I respectfully suggest that Rodgerson was based on a nuanced fact pattern that does not exist in this case. In Rodgerson the after-the-fact conduct was only part of the case against the accused. Justice Moldaver noted this at ¶21 of the decision.

The jury was entitled to considerthe evidence related to the injuries and the blood stains to determine the nature and extent of the injuries and the degree of force required toinflict them. There was ample evidence in Rodgerson to suggest a more prolonged and violent physical altercation than what had beendescribed by Mr. Rodgerson. It was in that context, that Mr. Rodgerson’s post-offence conduct became relevant to the issue of intent. [71] Justice Moldaver endorsed the reasoning of Doherty, J.A. where he said: [22] On this point, I reach the same conclusion as the Court of Appeal.

Doherty J.A. summarized the necessary inferential reasoning in thefollowing manner: Before the post-offence conduct relating to the hiding of the body and the clean-up of the homicide scene could assist the Crown in provingthe appellant's state of mind, the jury first had to be satisfied that there was a somewhat prolonged and bloody struggle during which theappellant struck Ms. Young in the head or face several times, or at least more than twice. The jury could come to that conclusion only after acareful consideration of the competing

interpretations of the forensic evidence placed before it. Second, the jury had to be satisfied that theappellant had engaged in the post-offence conduct to destroy evidence that would reveal an extensive struggle and assault well beyond thatadmitted by him in his evidence. (Emphasis added by Moldaver, J.) [72] In this case, there was no forensic evidence to suggest that there had been any struggle at Mr. Calnen’s home. There was no evidenceof any efforts to clean up the home, nor was there any evidence as to the extent of the victim’s injuries.

The Crown of course pointed out thatevidence as to the extent of the injuries is only unavailable because of the actions of the appellant. [73] At ¶23 in Rodgerson Justice Moldaver expressed a concern that his comments not be misinterpreted so as to suggest that it would be“impermissible for the jury to consider the concealment and clean-up evidence at all until it had first satisfied itself, based on other evidence,that the altercation between Mr. Rodgerson and Ms.

Young had taken a particular form.” He said: [23] … Moreover, it would represent an unwarranted requirement that the evidence be placed in artificial silos before being considered bythe jury. The jurisprudence disfavours this type of evidentiary segregation: see R. v. Morin, (SCC), [1988] 2 S.C.R. 345. Thejury was entitled to consider both the forensic evidence and the evidence of post-offence concealment and clean-up simultaneously, as a whole,in determining the nature and extent of Ms. Young's injuries and the degree of force required to inflict them. [74] In Mr. Calnen’s case there is no second silo.

This case should have stopped at the point that was referred to by Doherty, J.A. in my ¶71above. Post-offence conduct in this case could not assist the jury on the issue of degree of culpability. [75] R. v. Hill, 2015 ONCA 616 was a case where Mr. Hill was involved in a non-exclusive sexual relationship with the victim. She hadinformed him that she was pregnant and that he was the father. He told her that he did not want to be involved with the pregnancy and that hehad other plans. He said he would help, and tried to convince her that she should terminate the pregnancy. Mr.

Hill claimed that the partieswere discussing the pregnancy and as they were leaving she tripped and fell. Mr. Hill alleged the victim then said that if anything happened to

the baby she would tell others that he had pushed her. The facts were unclear but the suggestion is that he then strangled her without intending to kill her or without fully realizing what he was doing or simply that he did so in a rage. [ 76 ] Mr. Hill concealed the victim’s body, later burying it. He lied to various people about his knowledge as to her whereabouts, even suggesting that she was still alive and living elsewhere. This continued until he finally confessed and the body was recovered. The Crown did not introduce the evidence of post-offence conduct for the purpose of inferring intent.

The trial judge suggested to the jury that it could be used for such a purpose (see ¶52-53). The Ontario Court of Appeal noted that, unlike in Rodgerson , the accused had strangled the victim and nothing else. The burying of the victim’s body could not disguise this or conceal the nature of the attack as the injuries observed on autopsy were consistent with what the accused was alleging.

The Ontario Court of Appeal said as such that it was [57] …farfetched to suggest that the appellant was aware of and appreciated the significance of the bruising and took steps to hide the body to avoid discovery of the tell-tale bruising. [ 77 ] In the matter now before the Court, as between the offence of murder and manslaughter, post-offence conduct was not probative to the issue of intent. The jury should not have been invited to use after-the-fact conduct as evidence in determining whether the appellant had committed murder. [ 78 ] In Mr.

Calnen’s case, his version of events suggests that in his crack-infused reasoning he had to first move, and later desecrate Ms. Jordan’s remains because he would not be believed when saying he was innocent in terms of causation of Ms. Jordan’s death. It is perhaps not totally dissimilar to the situation in R. v. Arcangioli . [ 79 ] Mr. Arcangioli had been accused of stabbing someone in the course of a large brawl. A number of persons had combined to assault a single victim. Mr.

Arcangioli had been seen fleeing the scene after the victim had been stabbed and the prosecution sought to rely on this as circumstantial evidence of “consciousness of guilt”. The trial judge instructed the jury that such an inference was indeed available, and Mr. Arcangioli was convicted of the stabbing. [ 80 ] Although the conviction was upheld by the majority of the Ontario Court of Appeal, the Supreme Court of Canada determined that the jury charge was deficient and a new trial was ordered. In that case, the accused had admitted to taking

part in a group attack and punching the victim several times, making him guilty of common assault. Furthermore, he claimed to have fled the scene in panic after seeing someone else stab the victim; panic which was brought on by his having already committed a crime. The court found that, even if Mr.

Arcangioli’s flight were evidence of “consciousness of guilt”, that guilt was equally explained by either common assault or aggravated assault (i.e., the stabbing). [27] … The evidence concerning his flight therefore had no probative value in determining which offence he had committed, and the trial judge should have instructed the jury that this evidence could not support any inference concerning his level of culpability. ( White [2011] , ¶27) [ 81 ] In Mr. Calnen’s case, his actions after the death of Ms. Jordan, could speak to consciousness of guilt of murder or manslaughter. The instructions in Mr.

Calnen’s case required a minimum, instructions as to a limited use of post-offence conduct as it related to the issue of intent. [ 82 ] In White [2011] , the trial judge warned the jury to be careful with the evidence relating to Mr. White’s flight and that there may be one or more explanations for his conduct. What Mr. White argued was that the judge ought to have told the jury that it was not allowed to consider the evidence of his immediate flight in deciding as between the finding of second degree murder or manslaughter.

In White , ( 2011) , it was noted: [39] … For example, flight per se may be relevant in determining the identity of the assailant, but may not be relevant in determining the accused's level of culpability as between murder and manslaughter.

In such a case, the rules of evidence remain unchanged: the evidence is left with the jury, for it to weigh with respect to the issue of identity; the jury is precluded from considering the same evidence with respect to determining the mens rea for murder as opposed to manslaughter, by way of a limiting instruction to the effect that this evidence is not probative of this particular live issue.

That judges must sometimes give limiting instructions as to appropriate and inappropriate inferences to be drawn from the evidence is merely an application of the rule of relevance tailored to different live issues in a single case. [40] … According to Arcangioli and White (1998) , the inquiry is fact-specific and a "no probative value" instruction is warranted when the evidence of post-offence conduct is "equally consistent with" or "equally explained by" either determination of the live issue in question (here, with a finding of murder or manslaughter); that is, when the evidence is not probative of that live issue, on the facts of the case. [ 83 ] I am satisfied that in the circumstances of Mr.

Calnen’s case, evidence of after-the-fact conduct has no probative value with respect to differentiating as between murder versus manslaughter. [ 84 ] If the evidence could not be used to differentiate as between murder versus manslaughter what approach should the trial judge have taken? I note that causation but not identity was a live issue. The trial judge had the discretionary right to exclude the evidence if he determined that it was disproportionately prejudicial in light of the evidence as a whole.

I have already concluded that the after-the-fact conduct was not relevant to the issue of intent and that the trial judge failed to recognize or instruct as to the limited use that could be made of the after-the-fact evidence as it related to the degree of culpability.

Below I will return to the issue of what the trial judge should have done when I discuss defence counsel’s motion requesting the trial judge take the charge of murder from the jury. [ 85 ] In White [2011] , Justice Rothstein discussed the fact-specific nature of post-offence conduct referring specifically to Arcangioli where he asked: “Would the accused have been equally likely to flee the scene whether he was guilty of murder or of manslaughter? (in Argangioli ) Would the accused have been equally likely to hesitate before fleeing had he shot the victim intentionally or accidentally? (in this case)” He said of the two questions they raise a distinct set of considerations: [69] … On the one hand, logic and human experience suggest that there is no reason to think that a person who has committed manslaughter would be more likely to stay at the scene of the crime than one who has committed murder.

In both cases the person has committed a very serious offence by unlawfully killing someone and will be just as likely to flee. In both cases, the person may flee for a host of reasons, such as to avoid arrest, to minimize evidence of that person's connection with the crime, or to buy additional time. Indeed, flight is a response equally consistent with a wide range of much less serious offences, such as theft, vandalism, or common assault (as discussed in Arcangioli ). [ 86 ] Applying that to the present case, the jury, properly instructed, might use the post-event conduct to consider what a reasonable or

rational person might do in the case of death by accident, an event to which they did not contribute. You might ask whether they would flee thescene or in this case remove the body of the victim, moving it from location to location and incinerating it on a number of occasions for fear ofwrongfully being accused of causing the death of the person who died as a result of an accident? Or would a rational person contact theauthorities to explain the incident as it occurred? This evidence would go to the issue of culpability of Mr. Calnen in terms of his involvementin the death of Ms.

Jordan so I do not suggest the evidence had no relevance to the issue of causation. [87] It is important to maintain the distinction in terms of the use of evidence of after-the-fact conduct to prevent wrongful convictions. Justice Charron in White, [2011], spoke of an accused’s demeanor and the fact that it may call for a special caution or be subject to exclusion.

She referenced the “infamous prosecutions” of Susan Nelles and Guy Paul Morin for crimes they did not commit saying that Justice Binnie: [107] … rightly notes that the case against each was built in part on inferences of guilt drawn from equivocal post-offence conduct. Forexample, one witness testified that Ms. Nelles had a "very strange expression on her face and no sign at all of grief" following the death of thefourth baby (R. v. Nelles (1982), (ON CJ), 16 C.C.C. (3d) 97 (Ont. Prov. Ct. (Crim. Div.)), at p. 124).

In the case of Guy PaulMorin, police witnesses drew a negative inference of guilt, for example, from the fact that Mr. Morin came out to greet them rather than wait forthem to reach his door. … [88] This case is distinct from both Nelles and Morin based on the nature of the acts of Mr. Calnen following the death of Ms. Jordan. Itwas more than just demeanour in this case. The actions of Mr. Calnen were more than innocuous acts from which the police drew a negativeinference of guilt. Mr. Calnen’s actions were extreme.

Having said that, the risk of wrongful conviction resulting from the improper use ofinferential reasoning in this case is extremely high. [89] Justice Charron in dissent in White, [2011] said: 168 The same thing, of course, could be said of circumstantial evidence provided by pre-offence conduct. If the evidence introduced inrelation to a contentious issue has no probative value -- or "value" that depends entirely on "speculative or unreasonable inferences" -- it isirrelevant and should not be cluttering up the jury's deliberations.

The question, as always, is what is the strength of the inferential link betweenthe evidence in question and the fact sought to be established: (Sopinka, Lederman & Bryant: The Law of Evidence in Canada (3rd ed. 2009), ats. 2.58). In other situations the inferences urged by the prosecution from post-offence conduct are impermissible for legal reasons rather thanillogicality. The right of a suspect to remain silent is a frequent instance. … [90] A safer solution in this case would have been to take second degree murder away from the jury.

Once the limitation in the use of after-the-fact conduct evidence was applied there was no evidence upon which a properly instructed jury, acting reasonably, could convict formurder. [91] Before ending I want to return to the issue of the jury charge. In the case before the Court, the trial judge’s charge tracks very closelyWatt’s “Post Offence Conduct” Instructions with some minor variations. He blended the issue of post-offence conduct going to the issue ofcausation with intent.

The instruction as delivered to the jury failed to give the jury clear instruction as to where post-offence conduct can orcannot assist with the level of culpability as it relates to the issue of intent. Watt’s Manuel of Criminal Jury Instructions notes that the issue ofintent requires specific instructions on the use of evidence. As useful as Watt’s Manuel Jury Instructions may be for trial judges, it is worthnoting that neither Rodgerson nor Hill had been released at the time of the publication of Watts most recent version. A specimen jury chargemust be adapted to the particular facts of each case.

In this case there was a substantial risk that, in view of the horrific nature of the after-the-fact conduct the jury might use inferential reasoning to fill in the blanks. [92] As was noted by Cromwell, J. in R. v. Villaroman, 2016 SCC 33, ¶26: [26] …There is a special concern inherent in the inferential reasoning from circumstantial evidence. The concern is that the jury mayunconsciously "fill in the blanks" or bridge gaps in the evidence to support the inference that the Crown invites it to draw. Baron Aldersonreferred to this risk in Hodge's Case.

He noted the jury may "look for -- and often slightly ... distort the facts" to make them fit the inferencethat they are invited to draw: p. 1137. … Saying further at ¶29: [29] An instruction about circumstantial evidence, in contrast, alerts the jury to the dangers of the path of reasoning involved in drawinginferences from circumstantial evidence: Berger, at p. 60. This is the danger to which Baron Alderson directed his comments.

And the dangerhe identified so long ago -- the risk that the jury will "fill in the blanks" or "jump to conclusions" -- has more recently been confirmed by socialscience research: see Berger, at pp. 52-53. This Court on occasion has noted this cautionary purpose of a circumstantial evidence instruction: … [30] It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantialevidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt.

No particular language is required.Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidencepermits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quicklyoverlooking reasonable alternative inferences. It may be helpful to illustrate the concern about jumping to conclusions with an example. If welook out the window and see that the road is wet, we may jump to the conclusion that it has been raining.

But we may then notice that thesidewalks are dry or that there is a loud noise coming from the distance that could be street-cleaning equipment, and re-evaluate our prematureconclusion. The observation that the road is wet, on its own, does not exclude other reasonable explanations than that it has been raining.

Theinferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessedlogically, and in light of human experience and common sense. [93] In the context of the case now before the Court, the trial judge could not properly instruct the jury without clearly separating the issueof causation from intent.

The jury, if it was permitted to use the evidence of after-the-fact conduct, to prove causation, would then have to beclearly instructed that that does not necessarily prove intent and the jury would have to look to the evidence as a whole to see whether Mr.Calnen had intended to cause the death or inflict the injuries that he would expect to cause the death. [94] In R. v.

Griffin, 2009 SCC 28, Charron, J. writing for the majority said: [33] We have long departed from any legal requirement for a “special instruction” on circumstantial evidence, … The essential component of aninstruction on circumstantial evidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the

only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty.

Imparting the necessary message to thejury may be achieved in different ways: … [95] In Villaroman, Cromwell, J. referred to Griffin and noted: [22] … However, where proof of one or more elements of the offence depends solely or largely on circumstantial evidence, it may be helpfulfor the jury to receive instructions that will assist them to understand the nature of circumstantial evidence and the relationship between proofby circumstantial evidence and the requirement of proof beyond reasonable doubt. … [96] Justice Cromwell went on to refer to s. 10.2 of the Model Jury Instructions, https://www.nji-inm.ca/index.cfs/publications/model-jury-instructions/, (last updated June 2012), as prepared by the National Committee on Jury Instructions of the Canadian Judicial Council and to givean example of how the relationship between circumstantial evidence and proof beyond a reasonable doubt may be explained.

With respect, I amnot satisfied that relationship was sufficiently explained to the jury in this case. The Directed Verdict [97] I have noted the fact the appellant has appealed the trial judge’s refusal to allow the appellant’s motion for a directed verdict at theclose of the Crown’s case. The standard of review on this issue, as I have already noted, is correctness. The trial judge correctly referred to theapplicable test as set out in R. v. Rowbotham, (SCC), [1994] 2 S.C.R. 463 and United States of America v. Shephard, (SCC), [1977] 2 S.C.R. 1067.

That is, whether there is any evidence upon which a reasonable jury, properly instructed, could return averdict of guilty. This would have been the same test applied by Provincial Court Judge Derrick at the preliminary inquiry. I already noted, shedid not commit Mr. Calnen to stand trial. [98] I am satisfied that had the trial judge understood the requirement to provide a limiting instruction as to the use of evidence of after-the-fact conduct he would have considered the merits of the motion from a different perspective.

Once the jury was instructed that they could notuse after-the-fact conduct to infer the degree of culpability, there was no evidence that the jury could use to infer that the accused had therequisite intent to commit murder.

I am satisfied the trial judge erred in not taking the charge of second degree murder from the jury and leavingonly the included offence of manslaughter. [99] This is important because if the Crown decides to send this matter back for trial, in the absence of any new evidence, it should proceedas a manslaughter charge only. [100] Before concluding, there are some other points I wish to discuss. The charge to the jury was delivered over two days, November 18 and19, 2015.

On the first day of the charge to the jury, the trial judge referred to circumstantial evidence and the fact that in order to convict basedon circumstantial evidence the inference of guilt had to be the only rational inference. This reference to circumstantial evidence was made onlyonce in the entire charge. It was delivered near the end of the first day of instructions to the jury, separate and apart from the main instructionsto the jury.

The trial judge said: Now, some of you may have heard the terms “direct evidence” and “circumstantial evidence.” You may believe or rely upon either, one asmuch or as little as the other, in deciding this case. … In order to find Paul Trevor Calnen guilty on the basis of circumstantial evidence, you must be satisfied beyond a reasonable doubt that his guiltis the only rational conclusion or inference that can be drawn from the whole of the evidence.

If you find that there are other rational inferencesavailable to you based on the evidence, you are not satisfied beyond a reasonable doubt. [101] Considering how important circumstantial evidence, including after-the-fact conduct was in this case, I am concerned that it wasseparated from the main charge by a day. A much better approach would have been to not separate that aspect of the charge from the mainbody of the charge.

Although I express my concern about the separation I do not say here that the lapse of one day alone would be fatal. [102] At ¶130 of his dissent Chief Justice MacDonald, after reviewing the trial judge’s comments to the jury and submissions by counselobjecting to the charge both at trial and on appeal said: I reject this submission. Instead, it is hard to imagine what more the judge could have done. I am satisfied the answer to this rhetorical statement is found in the law.

As I set out above, based on the facts of this case, proof of degree ofculpability, could not be proven through evidence of after-the-fact conduct yet the trial judge invited the jury to do just that. The trial judge’scharge to the jury repeatedly suggested that after-the-fact conduct may be used to prove the intent of an offender at the time of the offence. Appeal of sentence in relation to indignity to human remains [103] I would dismiss the appeal of the sentence as imposed on those offences. In spite of the guilty plea and the fact Mr.

Calnen is a first timeoffender, the prolonged and repeated, horrific actions of Mr. Calnen were extremely serious. The impact on Ms. Jordan’s family and thecommunity at large is no doubt severe. The sentencing judge is entitled to deference on the issue of sentencing. I am not satisfied that hemisapplied any principles of sentencing, or that the sentence is inappropriate. [104] The appeal of sentences is dismissed. [105] The conviction for murder should be set aside.

On appeal the respondent argued strenuously that, given the number of times theappellant burned the body, murder was the only possible conclusion for the jury and that manslaughter was not even a real consideration for thisCourt. I am satisfied that, unless the Crown is able to present additional evidence on the issue of intent, any retrial should be on the charge ofmanslaughter only. That would allow the jury to focus on the contentious issue of causation.

Scanlan JA Concurred in: Bourgeois, J.A. Dissenting Reasons: (MacDonald, C.J.N.S.) [ 106 ] My colleague, Justice Scanlan, has concluded that there should have been a directed verdict removing second degree murder and that Justice Chipman’s jury instructions were flawed as they applied to the appellant’s after the fact conduct. Respectfully, I disagree. Furthermore, I would dismiss all remaining grounds of appeal. My following reasons therefore will address: (

a) the directed verdict motion; (

b) the jury charge; and (

c) the remaining grounds of appeal not addressed in the majority judgment. The Directed Verdict Motion [ 107 ] When addressing the directed verdict motion, the judge was keenly aware of his task – whether there was sufficient evidence to allow his jury to convict. His legal analysis was thorough and accurate. It included: [9] The question to be addressed is whether there is sufficient evidence such that a reasonable jury properly instructed could find the accused guilty.

Subject to a limited exception in relation to circumstantial evidence, the trial judge is not to weigh or assess the evidence beyond satisfying himself or herself that there is admissible evidence adduced by the Crown in relation to each element of the offence. … [14] In Charemski , Justice McLachlin (as she then was), in dissent, formulated the test as “whether a properly instructed jury could reasonably convict on the evidence” (p.692).

At p.699, Justice McLachlin summarized her position as follows: In my opinion, the test for a directed verdict in Canada remains the traditional one: whether a properly instructed jury acting reasonably could find guilt beyond a reasonable doubt.

Where it is necessary to engage in a limited evaluation of inferences in order to answer this question, as in cases based on circumstantial evidence, trial judges may do so; indeed, they cannot do otherwise in order to discharge their obligation of determining whether the Crown has established a case that calls on the accused to answer or risk being convicted. [15] Justice McLachlin emphasized that where there is circumstantial evidence a judge must engage in a limited weighing of the evidence in order to determine whether it is “rationally possible” for the jury to draw the inferences the Crown seeks to be drawn.

This important caveat is fleshed out in later jurisprudence. … [19] The latest word from the Supreme Court on directed verdicts appears to be the decision of Justice Binnie in R. v. Barros , 2011 SCC 51 , [2011] 3 S.C.R. 368. The case dealt primarily with the privileged identity of police informants, but the Crown had also appealed a directed verdict of acquittal on a charge of obstruction of justice. The Crown alleged that the accused had obstructed justice by taking investigative steps to identify a confidential police source for the purpose of interfering with the trial of another individual.

Justice Binnie said the following at para.48: [48] A directed verdict is not available if there is any admissible evidence, whether direct or circumstantial which, if believed by a properly charged jury acting reasonably, would justify a conviction… Whether or not the test is met on the facts is a question of law which does not command appellate deference to the trial judge. An error of law grounds a Crown appeal under s. 676 of the Criminal Code . [ 108 ] In my view, there was sufficient evidence to put second degree murder to the jury.

Although much of the evidence is circumstantial, it is nonetheless highly probative. For example, consider the extraordinary lengths the appellant went to first hide (several times) and then destroy Ms. Jordan’s body by burning it, not once but twice. This is succinctly summarized in the Crown’s factum: 15. In his statement, the Appellant alleged that he came home to discover Jordan’s bags packed. He spied his laptop and jewelry among her belongings. The two had an argument and he claimed that Jordan became violent.

He described her death as an accident, claiming that she took a swing at him, he ducked and her momentum caused her to fall down the stairs. 16. Calnen claimed he tried mouth-to-mouth (tab 33, p.696). He determined that she must have banged her head and that she was dead. There was no blood coming from her head (p.711). Mr. Calnen did not call 911 or anyone else to attend to Ms. Jordan or confirm his diagnosis. 17. Calnen then claimed that he looked for crack cocaine and put Reita Jordan’s body in his truck. He then said to himself: “Oh, shit, now what – fuck, I moved her, now what do I fuckin’ do?” (at p.697).

He thought of dumping her “somewhere on a sidewalk” (p.712). 18. The Appellant then drove all the way to Peggy’s Cove with Ms. Jordan’s body in the cab of his truck before deciding to go to Ingramport. There he drove on a logging road and hid her in the woods (p.698). He then took her belon

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