R v Redwood, 2021 SKCA 108

Court of Appeal for Saskatchewan Docket: CACR3239 Citation: R v Redwood, 2021 SKCA 108Date: 2021-08-11 Between:Duran Justin RedwoodAppellant AndHer Majesty the QueenRespondent Before: Caldwell, Tholl and Kalmakoff JJ.A. Disposition: Appeal dismissedWritten reasons by: The Honourable Mr. Justice CaldwellIn concurrence: The Honourable Mr. Justice Tholl The Honourable Mr. Justice KalmakoffOn appeal from: CRM 136 of 2016, ReginaAppeal heard: May 31, 2021Counsel: Brian R. Pfefferle and Thomas P.

Hynes for the Appellant Pouria Tabrizi-Reardigan for the Respondent Caldwell J.A. [1] Duran Justin Redwood appeals against his conviction after a trial by judge and jury on a charge of second degree murder. Hehas abandoned his appeal against sentence. For the reasons that follow, I would dismiss the appeal. [2] Mr. Redwood admitted to causing the death of his common law partner after a night of drinking. She died of blunt forcetrauma to her head, chest and abdomen. Prior to trial, Mr. Redwood had offered to plead guilty to manslaughter but the Crown rejected hisoffer.

He agrees that the sole issue at trial was whether the Crown had proven that he had the requisite mens rea for murder. Given hisdefence to that charge, the question for the jury was whether he had been too intoxicated to form the specific intent for murder. The juryconvicted Mr. Redwood of second degree murder, finding that he had formed the necessary intent. [3] Mr. Redwood consolidated the arguments in his appeal against that finding by advancing an allegation that the trial judge hadfailed, when instructing the jury, to properly rectify the prejudicial effect of certain evidence.

That evidence was the testimony of thevictim’s mother as to the victim’s good character and the testimony of a police officer who had taken a statement from Mr. Redwood, whotestified that he had “talked about… hitting her”. Mr. Redwood alleges the mother’s testimony was prejudicial because it invited sympathytoward the victim.

He says the officer’s testimony was prejudicial because it was without context and, since the jury did not receivespecial instruction on it, the jury could have impermissibly inferred that he had a history of abusing the victim. [4] As a matter of law, an accused is entitled to a jury that is properly—not perfectly—instructed (R v Jacquard, (SCC), [1997] 1 SCR 314 at para 2; R v Araya, 2015 SCC 11 at para 39, [2015] 1 SCR 581; R v Daley, 2007 SCC 53 at paras 30–31,[2007] 3 SCR 523; and R v Cooper, (SCC), [1993] 1 SCR 146 at 163).

For this reason, appellate courts adopt afunctional approach to the review of jury instructions. In R v Barton, 2019 SCC 33, 435 DLR (4th) 191, Moldaver J., writing for themajority, summarised the proper approach: [54] … When considering arguments of alleged misdirection, the appellate court must review the charge as a whole from a functionalperspective, asking whether the jury was properly, not perfectly, equipped to decide the case, keeping in mind that it is the substance ofthe charge, not adherence to a set formula, that matters [citations omitted].

Alleged errors must be examined “in the context of the entirecharge and of the trial as a whole” ([R v Jaw, 2009 SCC 42, [2009] 3 SCR 26] at para. 32). [5] In terms of function, instructions should equip the jury to understand the factual issues it has to determine, the legal principlesrelating to those factual issues and to the evidence, the positions of the Crown and defence on the legal and evidentiary issues, and theevidence relevant to the parties’ positions on the various legal issues (see, among other cases, R v Knox, 2017 SKCA 8 at para 16, 36 CR(7th) 89; R v Miljevic, 2011 SCC 8 at para 3, [2011] 1 SCR 203; R v Royz, 2009 SCC 13 at para 2, [2009] 1 SCR 423; R v Daley at para29; and Azoulay v The Queen, (SCC), [1952] 2 SCR 495 at 497–498). [6] In this case, there is no doubt the Crown adduced testimony from the victim’s mother that contained evidence about thevictim’s character.

Evidence of a deceased’s character is not usually relevant to the actus reus or mens rea of an offence and is, therefore,generally inadmissible as part of the Crown’s case (R v Edelenbos (2004), (ON CA), 71 OR (3d) 698 (CA); R vScopelliti (1982), (ON CA), 63 CCC (2d) 481 (Ont CA)). Here, the mother’s testimony about her daughter’s charactertraits was brief and largely what one would expect a mother to say in the circumstances. I infer from the transcript that the Crown adducedher testimony as part of the narrative—not in proof of the offence. Further, I observe that the Crown had given Mr.

Redwood advancenotice that the victim’s mother would testify in the way that she did. Therefore, Mr. Redwood was well positioned to object to herevidence, if he had had concerns about its admission, or to ask for a specific caution, if he had seen it as having the potential to have aprejudicial effect—neither of which occurred. [7] As noted, the sole issue in the trial was whether Mr. Redwood had formed the necessary mens rea to commit murder. The juryknew Mr.

Redwood had admitted to killing his spouse and had seen the photographic evidence of the injuries that had caused her death.As such, the context of this trial left no room for the jury to reason that, because she had been a nice person, Mr. Redwood must haveunlawfully beaten his domestic partner to death. Rather, the only question for the jury was whether the evidence relevant to mens rea

supported a conviction for second degree murder. If it did not, then the jury was legally obliged to convict Mr. Redwood of manslaughter. [8] In his instructions, the trial judge correctly told the jury to decide whether mens rea had been proven beyond a reasonabledoubt on the evidence and not out of sympathy for the victim or out of prejudice towards Mr. Redwood.

In this way, the jury instructionsaddressed the sole factual issue the jury had to determine, identified the legal principles relating to that issue and the evidence, set out thepositions of the Crown and defence thereon, and reviewed the evidence relevant to those positions, as well as cautioned against the type ofreasoning Mr. Redwood now alleges was left open to the jury. [9] Given what was at issue in this trial, I am unable to conclude that the evidence of the victim having been of good charactersomehow prejudiced Mr. Redwood.

In my view, there is no real likelihood that the jury could have fallen into prejudicial thinking aboutMr. Redwood’s ability to form the necessary intent to commit murder by knowing that his victim’s mother thought her daughter had beena good person. In my assessment, the good character evidence in this case would not have improperly influenced the jury to find anythingto which Mr. Redwood had not already admitted. In the context of this trial, the standard instruction not to decide out of sympathy for thevictim or out of prejudice toward the accused was sufficient.

On the other hand, drawing attention to the mother’s testimony through aspecific caution to the jury would have, in my estimation, given rise to a greater likelihood of prejudice to Mr. Redwood. [10] As to the police officer’s testimony, I am unpersuaded that, even if it amounts to bad character evidence, it could have led thejury into impermissible propensity reasoning. The officer’s evidence was that Mr. Redwood had talked about hitting the victim. Theconcern Mr.

Redwood raised at trial and in this appeal is that, because the officer’s testimony lacked context, the jury could haveimpermissibly reasoned from it that Mr. Redwood had been a serial spousal abuser and then convicted him of murder, instead ofmanslaughter, on that basis. However, his contention that the officer’s evidence required additional jury instruction to caution againstpropensity reasoning misses the mark for several reasons. [11] First, the Crown cross-examined Mr.

Redwood on his statement, allowing him to provide the context he says was lacking andthereby reducing the potential for the prejudice he now identifies to have resulted. [12] Second, although Mr. Redwood’s trial counsel took immediate issue with the admissibility of the officer’s testimony by askingfor a mistrial, the transcript indicates Mr. Redwood decided not to press the trial judge on the issue of adding a specific caution to the juryinstructions at the end of trial—even though he had advance opportunities to read and discuss the proposed instructions and to makerecommendations and suggestions thereon.

Finally on this point, Mr. Redwood has conceded in this appeal that the officer’s evidence wasadmissible and relevant to the question at issue in the trial. [13] In that regard, I agree that the officer’s evidence was probative of whether Mr. Redwood recollected the assault and, in thatrespect at least, it was relevant to the position he had taken at trial. As noted, Mr. Redwood had asserted that he had been too intoxicatedto remember the assault and to have formed the specific intent to murder his spouse.

However, the capacity to remember and the capacityto form the intent required for second degree murder are distinct concepts (R v Daley). The inability to remember is not a defence in and ofitself. The issue for the jury to decide was not whether Mr. Redwood had remembered assaulting the victim, it was whether he had beenso intoxicated that he did not have the requisite intent to murder her. [14] Third, as R v Daley indicates, the state of mind required to commit second degree murder involves an ability on the part of theaccused to foresee the consequences of the actus reus of the offence.

When intoxication is raised as a defence, a trial judge should instructthe jury to consider whether alcohol consumption affected the accused’s ability to have the required foresight (R v Daley at para 53). Inthis case, the trial judge told the jury that the Crown had to prove the factual specifics of Mr. Redwood’s mens rea beyond a reasonabledoubt. He instructed the jury several times and at length about the relevant law and the potential effects of alcohol on Mr. Redwood’sability to form the requisite intent.

As to the evidence itself, the trial judge reviewed testimony on matters of alcohol consumption andsigns of intoxication, including evidence of Mr. Redwood’s demeanour and his actions relevant to his level of intoxication, his state ofmind and his ability to form the requisite intent at the time. In his review of the evidence, the trial judge did not, however, mention theofficer’s testimony about Mr. Redwood’s recollection of hitting the victim. In my assessment, the trial judge functionally equipped thejury to decide the issue of whether Mr.

Redwood had formed the mens rea required to commit second degree murder in circumstanceswhere he had raised the defence of intoxication. The jury, having been properly instructed, did not hold a reasonable doubt. [15] Fourth, I cannot give any credence to Mr. Redwood’s argument that the juxtaposition of the bad character and good characterevidence in this case compounded the prejudicial effect of that evidence. The trial judge did not juxtapose that evidence in his instructions;in fact, he did not even review or refer to it. He identified the issue for the jury as simply whether Mr.

Redwood had been so intoxicatedthat he had not formed the requisite intent for murder. He reviewed the law and the evidence relevant to that question and to the parties’positions in that respect. To convict based on character evidence in that context, the jury would have had to ignore everything the trialjudge said in his instructions—which I cannot accept as being even remotely possible. [16] Lastly, Mr.

Redwood pointed to the fact the jury had asked to see the entire transcript of his statement to the police officer assupporting his argument that the officer’s testimony could have led the jury to reason improperly. I agree that questions posed by a jurycan indicate what the jury is thinking or how it is reasoning (R v W.(D.), (SCC), [1991] 1 SCR 742 at 759-760).

It is alsoimportant to review how the trial judge responded to such a question and what trial counsel said about that response at the time, as thatindicates how they, being fully immersed in the dynamics of the trial, interpreted the jury’s question. [17] The jury in this case did not ask how it could use Mr. Redwood’s statement, the jury simply asked to see all of it. The trialjudge responded by reminding the jury that it had to decide based only on the evidence admitted at trial and, in that regard, he told the juryto consider only those parts of Mr. Redwood’s statement that had been entered into evidence.

Nonetheless, he also reminded the jury ofthe narrow, permitted use of a prior inconsistent statement. The Crown and Mr. Redwood’s counsel, having been given the opportunity tocomment in advance, were content with the trial judge’s answer. In the context of this trial, I am not persuaded the response to the jury’squestion was inappropriate or indicated the jury had embarked on a line of impermissible reasoning. [18] In sum, the jury instructions were legally correct and functionally equipped the jury to address the legal and evidentiary issuesarising in this trial.

On the whole of it, I am not persuaded that, without additional instructions or cautions, there was a real likelihood forthe impugned evidence to have given rise to prejudice or to have led the jury into impermissible reasoning.

[ 19 ] I would dismiss the appeal. “Caldwell J.A.” Caldwell J.A. I concur. “Tholl J.A.” Tholl J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.