Court of Appeal for Saskatchewan Docket: CACR2720 Citation: R v Lumberjack , 2017 SKCA 106 Date: 2017-12-07 Between: Jordan Lumberjack Appellant And Her Majesty the Queen Respondent Before: Jackson, Ottenbreit and Ryan-Froslie JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Ottenbreit In concurrence: The Honourable Madam Justice Jackson The Honourable Madam Justice Ryan-Froslie On Appeal From: CRIM 32 of 2014, Melfort Appeal Heard: April 13, 2017 Counsel: Michael D. Nolin for the Appellant W. Dean Sinclair, Q.C., for the Respondent Ottenbreit J.A. I.

Introduction [ 1 ] Jordan Lumberjack stabbed Lance Severight during a fight. Mr. Severight died from his wounds shortly thereafter. Mr. Lumberjack was charged with second degree murder under s. 235(1) of the Criminal Code . He appeals against his conviction for that offence. [ 2 ] This appeal can be decided on the basis of Mr. Lumberjack’s last ground of appeal concerning the trial judge’s treatment of the evidence of post-offence conduct in her charge to the jury. I need not address any other grounds and consequently will address only those portions of the record germane to that ground.

The post-offence conduct at issue concerns a 9-1-1 call placed by Mr. Lumberjack after the fight with Mr. Severight and his washing of himself, his clothes and the knife used in the stabbing. [ 3 ] For the reasons hereinafter set forth, the appeal is allowed. II. Facts and Background [ 4 ] During the day and evening of September 21, 2013, Mr. Lumberjack and Mr. Severight were drinking and socializing at Mr. Severight’s spouse’s home on the Kinistin Salteaux First Nation. They began to argue. Mr. Severight’s spouse came home with her children and evicted Mr. Lumberjack and Mr.

Severight from her home because they were drunk, arguing and about to fight. The two continued to exchange words outside as they crossed the street towards Mr. Lumberjack’s mother’s house. At some point, Mr. Severight returned to his spouse’s home and obtained a baseball bat and followed Mr. Lumberjack back to the driveway of his mother’s house. He swung the bat at Mr. Lumberjack. Mr. Lumberjack pulled out a knife that he had been carrying. A prolonged fight ensued between the two, with the men wrestling and hitting each other. During the fight, Mr. Lumberjack stabbed Mr. Severight eight times. Mr.

Severight eventually died from his injuries. That Mr. Lumberjack had caused Mr. Severight’s death was not in dispute. [ 5 ] Mr. Lumberjack testified that Mr. Severight had attacked him, kept coming on towards him and that the fight stopped after he stabbed Mr. Severight. Mr. Lumberjack sustained injuries to his face and head as a result of the fight. After the fight, Mr. Lumberjack ran into his mother’s house. [ 6 ] The police received multiple 9-1-1 calls about the fight, including one from Mr. Lumberjack. Mr. Lumberjack told the 9-1-1 dispatcher that Mr. Severight was trying to break into his house.

He also told the dispatcher that he was injured but said nothing about Mr. Severight’s injuries. The dispatcher called him back and asked if he had hurt Mr. Severight and Mr. Lumberjack admitted to stabbing him. [ 7 ] At his mother’s house after the fight, Mr. Lumberjack washed his clothes. He thought he threw his shirt outside because the police might need it; although, there was a shirt in the washing machine together with the other clothes that he had washed. Mr. Lumberjack also took the knife with which he had stabbed Mr. Severight and washed it in the kitchen sink.

He washed himself in the bathtub using soap and put salt on the scrape on his head. He testified that he washed up because he was worried about making a mess in his mother’s house. He had told the officer who took a statement from him that when he cleaned himself and the knife, he had panicked and that it was not a good move on his part.

III. SUBMISSIONS OF COUNSEL AND THE JURY CHARGE [ 8 ] During the pre-charge conference, Mr. Lumberjack’s counsel made it clear that he wanted the trial judge to instruct the jury on self-defence, and on the partial defences of provocation and intoxication. His comments about post-offence conduct focused on how it affected the self-defence and intoxication defences. Defence counsel did not ask for any limiting instruction or caution as to how the jury should use the post-offence conduct.

Crown counsel focused on whether the post-offence conduct supported an air of reality to the intoxication defence. [ 9 ] The trial judge, after extensive discussion with both counsel and after argument, ruled that she would instruct the jury on self-defence, intoxication and provocation. [ 10 ] In his closing submissions to the jury, counsel for Mr. Lumberjack referred to post-offence conduct evidence twice. Early on, he stated “[m]y friend will be making a point in her argument about how Mr. Lumberjack was concerned only about himself in the 911 call, and not about Mr. Severight”.

He indicated the Crown would be tying this to the defence’s theory that Mr. Severight, who was wearing black shoes, had attempted to break through Mr. Lumberjack’s door, as alleged by Mr. Lumberjack when he called 9-1-1 (T378, lines 27–34). He also suggested the fact that Mr. Lumberjack had cut his hand on the knife while cleaning it was “[f]urther evidence that he’s intoxicated” (T390, lines 39–40). [ 11 ] Crown counsel made more expansive references to post-offence conduct, tying it to credibility (T401, lines 12–22), Mr. Lumberjack’s intent and the issues of self-defence and intoxication.

At T399, she summarized Mr. Lumberjack’s 9-1-1 call and his failure to mention Mr. Severight’s injuries until the police called him back. She posed the following questions to the jury: Does it make sense to you that someone who was acting in self-defence, or was intoxicated, would avoid telling 911 about the man that he had stabbed? Or is it the situation where you can see that the accused intended Lance to die , given that the [sic] did not ask for help for Lance, nor tell the operator that he had been injured in any way.

This is for you to decide, based on the evidence you have heard. (T399, lines 32–36, emphasis added) [ 12 ] Crown counsel then went on to describe the police officer’s testimony that suggested Mr. Lumberjack had attempted to wash the clothes he was wearing and the knife used in the stabbing, commenting that it “clearly indicates that Jordan Lumberjack attempted to get rid of evidence after he stabbed Lance Severight” (T400, lines 24–25) and she asked the jury to: ...

Consider whether it makes sense to you, that a person who has stabbed someone in self-defence would go to such lengths to attempt to hide his involvement. Also, does it make sense that someone who is intoxicated would have the forethought to wash the knife himself, and his clothing. What about the accused’s claim that the shirt and blanket outside were his, and that he threw them outside because the police might need them? Does that make sense to you?

Once again, you must decide this based on the evidence that you accept. (T400, lines 28–34) [ 13 ] Crown counsel then moved on to discuss the element of intent saying “[t]he question of intent is not one of, is this what I would have done in the circumstances, but rather one of attempting to look into the mind of the accused as he was stabbing Lance Severight” (T401, lines 30–32). She then enumerated the following as factors relevant to determining that intent: ... The threats he made to Lance while still inside the house. The allegation that Lance had stolen his tobacco.

That when Lance tried to walk away, Jordan got in front of him. His efforts to destroy evidence by washing the knife, the clothing and himself .

And the fact that when he called 911, he did not ask for help for Lance, or even mention that someone had been stabbed. (T401, lines 36–41, emphasis added) [ 14 ] After closing submissions, neither counsel raised any concerns about the other’s references to post-offence conduct or any issue about how the trial judge should charge the jury on post-offence conduct. [ 15 ] The jury charge was lengthy and contained the usual detailed explanations of the relevant offences, specific defences, the burden and standard of proof and presumption of innocence.

The trial judge referred the jury to portions of evidence relevant to specific issues and summarized all the evidence in detail. Discussion of post-offence conduct formed a small part of the charge. She reviewed circumstantial evidence generally and provided a lengthy instruction on self-defence. [ 16 ] The trial judge explained the difference between the elements of murder and manslaughter. She explained how intoxication might prevent someone from forming the intent for murder.

She reviewed the intent that the Crown was required to prove beyond a reasonable doubt in relation to second degree murder and reviewed the effect of the intoxication defence. The trial judge instructed the jury to “take into consideration the amount of alcohol he consumed, along with other facts before you” (T434, lines 30–31). She then began to review the evidence that she thought the jury could consider in deciding whether Mr. Lumberjack intended to kill Mr. Severight. The trial judge described the 9-1-1 call and other post-offence conduct as it related to the intoxication defence: Mr.

Lumberjack told the 911 operator in his first call to her, that he had been drinking that evening. You recall the evidence of Luke Smokeyday, that he testified that Mr. Lumberjack appeared drunk. Natalie Thomas said she thought Lumberjack was drunk when she saw him at her house. Tehani Lumberjack, she said she thought both men were drunk when she observed them. However, Mr. Lumberjack also went into his mother's house after the stabbing, cleaned himself, put his clothes in the washing machine and changed his clothes.

He tried to clean the knife, however he did manage to, as he testified, cut himself while -- while doing so. And as well, his first call to the 911 operator was only to tell them of his injuries, and he did not tell the operator of Mr. Severight’s injuries.

(T435, lines 9–18) [17] After charging the jury on the defences of self-defence, intoxication and provocation, the trial judge reviewed the position ofthe Crown and defence (T440). She again mentioned the 9-1-1 call and told the jury that the inconsistencies between the portions of thecall referred to by the Crown and Mr. Lumberjack’s testimony could be used by them as evidence concerning the issue of guilt orinnocence, not just credibility (T453, lines 17–19). She then reviewed Mr.

Lumberjack’s testimony including that after the fight he hadtaken his clothes off, washed his clothes, washed, changed and washed the knife in the sink. She noted that Mr. Lumberjack conceded hedid not initially tell the 9-1-1 operator that he had hurt Mr. Severight and that Mr. Severight needed an ambulance. She also notedMr. Lumberjack’s explanation of his conduct, i.e., that he was panicked (T456–459). The trial judge did not refer to specific inferencesthe jury might draw from the evidence she reviewed. [18] Counsel for Mr. Lumberjack did not object to the treatment of post-offence conduct in the charge. IV.

Analysis [19] This appeal can be determined on the basis of Mr. Lumberjack’s fifth ground concerning whether, in all the circumstances,the handling of post-offence conduct by the trial judge in her charge was in error.

I turn first to the governing law. [20] The parties in a jury trial are entitled to a properly instructed jury, not a perfectly instructed jury (R v Jacquard, (SCC), [1997] 1 SCR 314 at para 2; R v Knox, 2017 SKCA 8 at para 22, 36 CR (7th) 89; R v Brass, 2007 SKCA 94 at para 3, [2007]11 WWR 191). [21] The charge must be considered as a whole in the context of the entire record (R v Daley, 2006 SKCA 91 at para 27, [2006] 11WWR 1, aff’d 2007 SCC 53, [2007] 3 SCR 523). The adequacy of a charge must be assessed functionally.

The functional approach“calls for an assessment to determine whether the accused, based on a review of the whole charge to the jury, has had a fair trial, that it isnot an examination to find minute error” (R v Worm, 2014 SKCA 94 at para 19, [2014] 12 WWR 478). [22] The law with respect to post-offence conduct evidence has recently been summarized by Hoy A.C.J.O. in R v Chambers, 2016ONCA 684, 342 CCC (3d) 285: [76] The term post-offence conduct evidence, which is sometimes called after-the-fact conduct evidence, refers to evidence of acts oromissions of the accused occurring after the commission of an alleged offence.

It is circumstantial evidence that a jury may use, whenconsidering the charges against an accused, if and to the extent that it is relevant to a live issue: R. v. White, (SCC),[1998] 2 S.C.R. 72 (“White #1”), at para. 21; see also R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433 (“White #2”), at paras. 22 and 31. [77] At the same time, the jurisprudence recognizes that post-offence conduct evidence “is a special brand of circumstantial evidencethat carries a heightened risk of misapplication and prejudice” and that the relevance and available uses of such evidence are not alwaysmatters of common sense: David M.

Paciocco, “Simply Complex: Applying the Law of ‘Post-Offence Conduct’ Evidence” (2016) 63C.L.Q. 275, at p. 277; R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 31.

In some cases, trial judges will be obliged todeliver “cautions” and “limiting instructions” that are not generally required for other forms of circumstantial evidence: Paciocco, at p.277. [78] In White #2, at para. 31, Rothstein J. explained that the rules governing the need for and scope of limiting instructions are thosethat govern the admissibility of circumstantial evidence in general: is the evidence relevant to a live issue; is the evidence subject to anyspecific exclusionary rules (for example, the hearsay rule); and should the evidence be excluded under a recognized judicial discretion? [79] Laskin J.A. explained how to determine the relevance and permissible use, if any, of post-offence conduct evidence in R. v.Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 55: Post-offence conduct, therefore, is not subject to blanket rules.

It is circumstantial evidence whose probative value depends on the natureof the evidence, the issue at trial and the positions of the parties. Thus, we do not automatically label certain kinds of post-offenceconduct as always or never relevant to a particular issue. Rather, we must consider all the circumstances of a case to determine whetherthe post-offence conduct is probative and, if so, what use the jury may properly make of it.

In the words of Rothstein J. in [White #2], theoverriding question is this: what do “logic and human experience” suggest that a jury can legitimately or rationally infer from theaccused’s post-offence conduct? ... [81] In some instances, however, evidence of post-offence conduct can logically support an inference of guilt with respect to oneoffence rather than another.

As the Supreme Court explains in White #1, at para. 32: It is possible to imagine cases in which evidence of post-offence conduct could logically support a distinction between two levels ofculpability for a single act, or between two offences arising from the same set of facts. By way of illustration, where the extent of theaccused’s flight or concealment is out of all proportion to the level of culpability admitted, it might be found to be more consistent withthe offence charged. [82] And post-offence conduct may be probative of one live issue, but not of another.

For example, flight per se may be relevant indetermining the identity of the assailant, but may not be relevant in determining the assailant’s level of culpability, as betweenmanslaughter and murder. In that circumstance, the judge must give a limiting instruction as to the appropriate and inappropriateinferences to be drawn from the evidence: White #2, at para. 39. A trial judge’s failure to instruct a jury on the limited use of orinferences available from the post-offence conduct evidence may constitute reversible error: see, for example, Rodgerson. I agree with this

summary.

[ 23 ] With respect to a “no probative value” limiting instruction for post-offence conduct, Rothstein J. in R v White , 2011 SCC 13 , [2011] 1 SCR 433 [ White 2011 ], stated: [37] Arcangioli , and its successor case White (1998) , stand for the proposition that a “no probative value” instruction will be required when the accused’s post-offence conduct is “equally explained by” or “equally consistent with” two or more offences ( White (1998) , at para. 28; Arcangioli , at pp. 145 and 147).

This proposition neither complicates nor goes beyond the basic rule of relevance: to say that an item of evidence is not relevant; that it is not probative of a live issue; or that it is “equally explained by” or “equally consistent with” either determination of a live issue are three ways of saying the same thing. [38] As with all other evidence, the relevance or probative value of post-offence conduct “will depend on the facts of each case” ( White (1998) , at para. 26).

I agree with Binnie J. that there is no general rule applying to post-offence conduct: relevance must be assessed on a case-by-case basis. [ 24 ] Two cases shed some light on the need to appropriately deal with post-offence conduct related specifically to concealment of an offence. The first is R v Rodgerson , 2015 SCC 38 , [2015] 2 SCR 760 [ Rodgerson ]. In this case, the accused attempted to conceal the nature and extent of the victim’s injuries by cleaning up the crime scene and by hiding the body of the victim.

The Court recognized that a jury might properly conclude that these acts were done in order to cover up the extent of violence used in the attack. The post-offence conduct in that case was probative of the requisite intent for murder, i.e., that he intended to kill or to cause bodily harm that he knew was likely to cause death. The Court noted some cases involve nuanced relevance of post-offence conduct: [34] The legal error in the jury charge was the failure to assist the jury in understanding the limited and somewhat nuanced relevance of the concealment and clean-up evidence on the issue of intent for murder.

This error is unrelated to the required caution on the dangers associated with post-offence conduct in general. White 1998 and White 2011 do not serve to insulate jury instructions on post-offence conduct from challenge on other grounds. They do nothing to circumscribe the need to provide specific instructions where the relevance of the evidence on a particular issue is not readily apparent and where the natural inclinations of the jury might lead it down a wrong path.

Correctly cautioning the jury in accordance with White 1998 and White 2011 is therefore necessary, but not always sufficient. [ 25 ] The second case is R v Foerster , 2017 BCCA 105 , 346 CCC (3d) 163, where the accused had disposed of the weapons he used – a flashlight and shoelace and fled to Ontario. The trial judge instructed the jury on intoxication as it related to specific intent to commit murder. The evidence of the disposal of the weapons was relevant to the issue as it tended to show that the accused had retained at least a moderate level of cognition.

Crown counsel suggested that the charge should ensure the jury was not left with the impression that the discarding of the weapons could be used to infer consciousness of guilt with respect to murder, noting it was equally consistent with manslaughter and murder. The trial judge failed to ensure that was done.

The appeal court determined that the trial judge should have instructed the jury that it could not draw any adverse inferences from the disposal of the weapons apart from an inference as to the degree of intoxication. [ 26 ] These two cases illustrate that the significance of the post-offence conduct evidence of concealment will vary depending on the nature of the conduct and issues in play. [ 27 ] With the foregoing jurisprudence in mind, I turn to the arguments of the parties. Mr. Lumberjack submits that because he had admitted the actus reus of the alleged crime, the only issue was his degree of culpability.

He argues that his post-offence conduct, apart from its relevance to self-defence, was otherwise equally consistent with the mens rea for manslaughter and for second degree murder and, therefore, the trial judge should have provided a limiting instruction to the effect that the post-offence conduct had no probative value with respect to intent or, alternatively, cautioned the jury as to the use of the evidence. [ 28 ] The Crown argues Mr.

Lumberjack’s only identifiable complaint is that the post-offence conduct was capable of supporting inferences other than an inference of guilt and this was clearly explained by the trial judge who reviewed the evidence carefully and thoroughly set out the various innocent explanations that arose on the evidence. The Crown submits a limiting instruction was not required for a number of reasons. The post-offence conduct came from the accused himself; it was straightforward and inferences arising from it were a matter of common sense.

The Crown submits the uses the jury could make of post-offence conduct were not live issues at trial. Moreover, defence counsel had not objected to the trial judge’s instructions in that regard. The Crown argues neither the trial judge nor anyone else invited the jury to draw an impermissible inference based on the post-offence conduct. Finally, the Crown submits the evidence at best played a minor role in the parties’ cases. [ 29 ] The probative value of the post-offence conduct depends on the nature of the evidence, the issues in play and the positions of the parties. Mr. Lumberjack had admitted to stabbing Mr.

Severight. The issue of self-defence was clearly in play, as were the partial defences of intoxication and provocation. The main issue, apart from self-defence and intoxication, was whether the Crown had established the intention necessary for second degree murder. It was crucial therefore that the handling of that post-offence conduct evidence in the charge be nuanced, especially given the submissions of both counsel to the jury. [ 30 ] Defence counsel referred to Mr. Lumberjack telling the 9-1-1 operator that Mr. Severight was trying to break into his house as relevant to self-defence (T378, lines 27–34).

He also referred to Mr. Lumberjack cutting his hand when he was cleaning the knife as evidence of intoxication (T390, lines 36–40). These comments are clearly in relation to the defences. He closed his submissions to the jury with “[t]his is manslaughter or this is self-defence” (T392, lines 27–28). [ 31 ] The Crown urged the jury to find Mr. Lumberjack guilty of second degree murder (T403). Crown counsel posed the following question to the jury: Does it make sense to you that someone who was acting in self-defence, or was intoxicated, would avoid telling 911 about the man he had just stabbed?

Or is it the situation where you can see that the accused intended Lance to die, given that he did not ask for help for Lance, nor tell the operator that he had been injured in any way. (T399, lines 32–36)

This latter comment was clearly directed at using post-offence conduct to establish intent for second degree murder. [32] This theme was reiterated (T401, lines 36–41), when Crown counsel cited Mr. Lumberjack’s efforts to destroy evidence bywashing himself, his clothes and the knife as factors relevant in determining intent.

These later comments are less clearly in relation tothe defences and appear to invite the jury to consider all the post-offence conduct, including the concealment of physical evidence inrelation to intent generally. [33] The trial judge spent considerable time instructing the jury on the intention required for a conviction of second degree murderand, in that regard, explained the evidence germane to the issue of intent (T425, lines 25–34). That explanation did not refer to post-offence conduct.

However, the trial judge later referred to post-offence conduct in the context of the intoxication defence stating: “[Y]oushould take into consideration the amount of alcohol he consumed, along with other facts before you, during and after the offence, thatthrow light on his intent at the time” (T434, lines 29–32, emphasis added). The trial judge then recounted evidence of Mr. Lumberjack’sconsumption of alcohol and thereafter his failure to tell the 9-1-1 operator of Mr.

Severight’s injuries, the evidence that he had washedhimself and his clothes, and that he had cut himself while cleaning the knife. [34] Immediately after the instruction on alcohol and intent, the trial judge instructed the jurors that even if they were not left inreasonable doubt by the evidence in support of intoxication, they were required to consider whether the evidence as a whole raised areasonable doubt with respect to second degree murder (T435, lines 28–39).

The post-offence conduct, discussed immediately before inrelation to the intoxication defence was thus squarely identified by the trial judge as relevant to the general issue of intent required forsecond degree murder. There was no further instruction to delineate in some way the inferences that could be drawn by the jury from thatconduct in assessing the defences and those that could be drawn in assessing the ultimate question of intent if the defences wereunsuccessful.

As suggested by the case law reviewed earlier, whether such delineation was required depends on the nature of theevidence. [35] The significant elements of the post-offence conduct for the Crown were the 9-minute delay in calling 9-1-1, the concealmentof Mr. Severight’s injuries by omitting to tell the operator about them and Mr. Lumberjack’s washing of himself, his clothes and theknife, which would indicate an attempt to conceal physical evidence. Each of these facets of Mr. Lumberjack’s conduct has differentprobative value. [36] Crown counsel had specifically suggested to the jurors that they consider Mr.

Lumberjack’s delay in calling 9-1-1 and hisfailure to initially inform the operator of Mr. Severight’s injuries as showing his intention that Mr. Severight should die. While this facetof post-offence conduct may be potentially probative of intent for second degree murder, I need not determine and do not determinewhether that is so. This appeal can be decided on whether the evidence of concealment of physical evidence could be used as evidence ofintent, as Crown counsel clearly invited the jury to do. [37] I am not satisfied the post-offence conduct of concealment of physical evidence by Mr.

Lumberjack could, in this case and onits own, reasonably support an inference of intent to commit second degree murder as opposed to manslaughter. It cannot be said that aperson who kills with the state of mind required for second degree murder is more likely than one with the state of mind required formanslaughter to have cleaned himself, his clothes and the murder weapon after the killing. Mr. Lumberjack’s attempt to conceal physicalevidence reflects consciousness of guilt, but is consistent with someone who was trying to cover up evidence of a stabbing though notnecessarily a murder or manslaughter.

This was not a case as described in R v White, (SCC), [1998] 2 SCR 72 at para32, or in Rodgerson where the post-offence concealment of physical evidence of the altercation was so out of proportion to the level ofculpability admitted that it pointed to one offence rather than to another. [38] There was nothing necessarily distinctive about the concealment that would guide the jury to logically draw an inference thatthe concealment was probative of a certain level of culpability or consciousness of guilt of one offence as opposed to the other. Thatconduct, apart from how it informed the issue of Mr.

Lumberjack’s cognition and the degree of intoxication, was therefore equallyconsistent with manslaughter and murder. [39] The submissions of Crown counsel also created a danger if the jury did not find that the defences being advanced were madeout, that they may have used the consciousness of guilt reflected by the concealment of physical evidence as a factor in determiningMr. Lumberjack’s state of mind when he stabbed Mr. Severight.

The jury may have used that factor in deciding whether they ultimatelyhad a reasonable doubt based on the evidence as a whole that the intent for second degree murder as opposed to manslaughter had beenestablished. [40] The danger of the misuse of consciousness of guilt was explained in White 2011: [23] That being said, though the use of such evidence has an extensive history in our criminal jurisprudence, it has also long beenrecognized that the introduction of post-offence conduct for the purpose of establishing the accused’s “consciousness of guilt” carrieswith it a substantial risk of jury error (Gudmondson v.

The King (1933), (SCC), 60 C.C.C. 332 (S.C.C.)).

Jurors may betempted to “jump too quickly from evidence of post-offence conduct to an inference of guilt” (White (1998), at para. 57) without givingproper consideration to alternate explanations for the conduct in question. [24] In most cases, the best way for a trial judge to address that danger is simply to make sure that the jury are aware of any other explanations for theaccused’s actions, and that they know they should reserve their final judgment about the meaning of the accused’s conduct until all theevidence has been considered in the normal course of their deliberations.

Beyond such a cautionary instruction, the members of juryshould be left to draw whatever inferences they choose from the evidence at the end of the day. [Emphasis added; White (1998), at para.57.] [25] One instance in which the risk of jury error becomes especially acute arises when the accused has confessed to engaging in someform of criminal conduct related to the crime of which he stands accused. In such cases, post-offence conduct that supports an inferencethat the accused had a “guilty conscience” may be of little or no use in determining his level of culpability.

… [ 41 ] It may sometimes be the case that, when the accused has admitted the actus reus , much of the accused’s post-offence conduct will be irrelevant to determining the level of culpability. Indeed, according to Major J., in White (1998) , a “no probative value” instruction is “ most likely to be warranted” in precisely these circumstances (para. 28 (emphasis added)). However, this was not meant to be a free-standing principle governing admissibility or limiting instructions.

Arcangioli and White (1998) make it clear that the basic test is always relevance in the ordinary sense: ... 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. [Emphasis added; Arcangioli , at p. 145.] ... a jury should not be permitted to consider evidence of post-offence conduct when the accused has admitted culpability for another offence and the evidence cannot logically support an inference of guilt with respect to one crime rather than the other . [Emphasis added; White (1998) , at para. 23.] [41] The trial judge in this case failed to delineate the uses to which the evidence of concealment of physical evidence could be put, specifically, its probative value regarding intoxication and lack of probative value regarding intention.

The trial judge also failed to address the dangers of the use of consciousness of guilt inherent in the concealment of physical evidence in that it was not probative of the intent for any specific offence and that the jury might misuse the evidence or treat it as more persuasive than was warranted. [ 42 ] Defence counsel did not object either to the submissions of the Crown regarding post-offence conduct or request the trial judge to provide a limiting instruction or caution regarding post-offence conduct.

However, such failure to object or make such request is not determinative of the matter. [ 43 ] The evidence of physical concealment required a nuanced approach in the trial judge’s charge to the jury. This did not happen. Mr. Lumberjack had proffered self-defence as a complete defence to the charge but had admitted that, failing acceptance of that defence, his culpability was at the most for manslaughter. Barring an acquittal based on self-defence, this left the jury with the task of choosing between the intent for manslaughter and second degree murder.

The trial judge should, at a minimum, have instructed the jury that the post-offence conduct of Mr. Lumberjack washing himself, his clothes and the weapon, by itself, apart from relevance to intoxication, had no probative value when it came to the matter of intent regarding murder and manslaughter because it was equally consistent with both. [ 44 ] In

summary, Crown counsel, in her submissions to the jury, left the impression that the post-offence conduct of concealment of physical evidence was in itself ultimately relevant to the issue of intent as between murder and manslaughter. The trial judge in her review of the post-offence conduct did not correct that impression or differentiate the uses to which that evidence might be put. V. Curative Provision [ 45 ] The Crown argues the error was inconsequential.

Taking this argument at its highest, it raises an issue of whether the curative proviso in s. 686(1)(b)(iii) of the Criminal Code applies even if there was an error in the charge. The governing law is set forth in White 2011 at paras 91–94. There are two categories of error that satisfy the proviso: (

i) the error is harmless on its face or in its effect (at para 91), and (ii) in the event there was an error which was not minor and cannot be said to have caused no prejudice to the accused, the case against the accused was so overwhelming that a reasonable and properly instructed jury would inevitably have convicted (at para 92). [ 46 ] I find that neither of the prerequisites for the application of the curative proviso exist in this case. The error was neither minor nor harmless on its face or in its effect, given the differential verdicts at stake.

As well, I am not satisfied that, notwithstanding the error, a jury would inevitably have convicted Mr. Lumberjack of second degree murder. VI. Conclusion [ 47 ] Accordingly, the appeal is allowed. The matter is remitted to the trial court for a new trial on the charge of second degree murder. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A.