R. v. Jaw, 2009 SCC 42, [2009] 3 SCR 26

                                                 SUPREME COURT OF CANADA

Between:

Salomonie Goo Jaw

Appellant

v.

Her Majesty The Queen

Respondent

Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

______________________________

R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26

Salomonie Goo Jaw                                                                                                            Appellant

v.

Her Majesty The Queen                                                                                                 Respondent

Indexed as:  R. v. Jaw

Neutral citation:  2009 SCC 42.

File No.:  32706.

2009:  January 13; 2009:  September 25.

Present:  McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

on appeal from the court of appeal for nunavut

Criminal law — Charge to jury — Intent for murder — Post‑offence conduct — Police officer shot by accused during violent struggle — Accused admitting at trial to having shot officer but claiming lack of intent to kill — Jury finding accused guilty of first degree murder — Whether trial judge’s comments in charge suggesting that jury could infer intent from accused’s post‑offence conduct constituted error justifying appellate intervention — If so, whether curative proviso applicable — Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1) (a), (b)(iii).

A police officer who was responding to a 911 call about a domestic dispute between the accused and his common‑law spouse died from a gunshot wound which he sustained in the heat of a violent struggle with the accused.  The accused was charged with first degree murder and admitted at trial to having shot the officer; he claimed, however, he lacked the intent to kill.  The trial judge in his charge twice drew the jury’s attention to the accused’s conduct after the shooting.  In particular, he told the jurors that “the Crown says you should conclude that the accused knew he shot [the officer] because he did not even bother to check [his condition] before deciding, as he said, to kill himself.  So, if you accept this evidence, you may conclude that at the moment [the officer] was shot, the accused intended to kill [him], or at least intended to cause bodily harm that he knew was likely to kill [him], and he was reckless about whether the [officer] died or not”.  The accused was ultimately convicted of first degree murder.  The majority of the Court of Appeal upheld the murder conviction.  The dissenting judge found that the trial judge had made a reversible error in his charge to the jury by suggesting that the jury might directly infer an intention to kill the police officer from the accused’s post‑offence conduct and that this error could not be cured by s. 686(1) (b)(iii) of the Criminal Code .

Held (Binnie and Fish JJ. dissenting):  The appeal should be dismissed.

Per McLachlin C.J. and LeBel, Deschamps, Abella, Charron, Rothstein and Cromwell JJ.:  The trial judge did not commit an error of law in his charge to the jury.  Although, in the first sentence of the impugned portion of the charge, he somewhat misconstrued the Crown’s actual reason for pointing to the accused’s post‑offence conduct, which was to impugn the accused’s credibility and to suggest that he was fully aware of his actions at the time of the shooting, this could not be said to constitute an error in the charge.  This error does not engage any of the three branches of s. 686(1) (a) of the Criminal Code  and is therefore of no consequence to this appeal.  There is no suggestion that the verdict was not reasonably supported by the evidence or that the jury was swayed by this misstatement in a way that could have resulted in an unfair trial.  Nor can it be said that the trial judge erred on a question of law, since the error occurred while the trial judge was simply summarizing the Crown’s position not while he was giving an instruction on a point of law.  The theory on post‑offence conduct mistakenly attributed to the Crown was not contrary to law or otherwise impermissible.  The conclusion that the accused knew he had shot the officer could easily, and fairly, be drawn from the evidence of his actions after the shooting.  [27] [29]

The second sentence, read in context, cannot reasonably be understood to suggest that the jury could infer intent from the accused’s post‑offence conduct alone.  This sentence was made at the end of the judge’s summary of the Crown’s submissions and was immediately followed by a review of the defence theory.  The structure of this portion of the charge suggests that:  (1) the trial judge’s use of the words “this evidence” referred to the entirety of the Crown’s evidence that the judge had just summarized for the jury and did not refer solely to the post‑offence conduct; and, (2) the trial judge was not instructing the jury to use the evidence in the manner suggested by the Crown, but rather was concluding his review of the Crown’s position before moving on to the defence submissions.  In merely setting out the Crown’s argument on how all the evidence presented by the Crown at trial might be used to resolve the central issue of intent, the trial judge did not commit an error, much less an error of law that could justify appellate intervention under s. 686(1)(a) of the Code.  While this wrap‑up sentence should really have been placed in a separate paragraph to distinguish it from the specific piece of evidence that the trial judge had mentioned in the preceding sentence, the confusion surrounding this passage might be explained in part by the potential for transcription difficulties at trial.  The charge was delivered in English and translated sentence‑by‑sentence into Inuktitut.  The transcription process is already reductionist in nature and in the case of a trial conducted in two languages, the natural breaks between topics may not be as clear as usual, given the constant interruptions required for translation.  The paragraph structure of the charge as set out in the transcript should not be read as necessarily reflecting the actual structure of the charge as presented at trial, particularly given that the instructions were delivered orally and were translated sentence‑by‑sentence for the jury.  An appellate court must certainly rely on transcripts as records of lower court hearings, but their usefulness does not imply that the court should not examine them critically when necessary.  [31‑34]

An ambiguity in the charge should not automatically be resolved in favour of the accused.  While a restrictive interpretation may be warranted where an ambiguity cannot be resolved by means of the usual principles of interpretation, it is a principle of last resort that does not supersede a purposive and contextual approach to interpretation.  Here, when read in the context of the entire charge, of the evidence and of the trial as a whole, the impugned statement has only one reasonable meaning.  [37‑38]

Lastly, even if there had been an error in the charge, this is a case in which the curative proviso would apply since no substantial wrong or miscarriage of justice would have occurred.  [3] [43] [45]

Per Binnie and Fish JJ. (dissenting):  The conviction should be set aside and a new trial ordered.  The only real issue at trial was whether the accused had acted with the requisite intent for murder.  The trial judge misdirected the jury in that regard by twice suggesting to the jurors that they could consider the accused’s post‑offence conduct in determining his intent at the moment of the shooting.  These were not isolated or fleeting comments.  The impugned references all occurred in the context of his review of evidence and of Crown submissions explicitly and directly related to the accused’s intent when he caused the death of the police officer.  These references formed an important part of his instruction to the jury on how they were to determine whether the accused had the requisite intent for murder.  While the jury might well have understood that the trial judge was summarizing his entire discussion of the accused’s intent or, at the very least, the Crown’s theory on that issue, in either case, part of the evidence which the jury was invited to rely on included evidence of the accused’s post‑offence conduct.  That is the problem.  The trial judge clearly indicated to the jury that if they accepted the evidence he had reviewed for them, including the accused’s post‑offence conduct, they were free to conclude that the accused had the requisite intent for murder.  This was an instruction in law, which the jury was bound to accept.  It is of no moment that the trial judge’s instruction rested on a misunderstanding of the Crown’s position.  What matters is that the jury was told by the trial judge that it could draw, in respect of the critical issue in the case, an inference prohibited by law.  The judge’s instruction was plainly erroneous in law but, even if it were merely “confusing”, any uncertainty as to its meaning and effect would surely have to be resolved in the accused’s favour and not in the Crown’s favour.  [47] [63] [75] [80] [82‑83] [85] [90] [97] [103]

While transcripts do not always record fully or accurately everything that in fact was said, appellate courts must nonetheless rely on the record as they have it.  Here, on the material, nothing suggests that the trial judge’s erroneous instruction is a function of mis‑communication arising from the bilingual proceedings at trial, or the misplacement of certain paragraphs in the transcript.  [93] [95]

The curative proviso is not applicable.  Once a legal error is established, the burden is on the Crown to persuade the court that no substantial wrong or miscarriage of justice had occurred.  The Crown has not discharged that burden.  The trial judge’s erroneous instructions, which concern the only real issue at trial, cannot be characterized as “harmless” or “having no impact on the verdict”.  Nor can the evidence pointing to the accused’s guilt of murder, as opposed to manslaughter, be described as so overwhelming that any other verdict but a conviction for murder would be impossible.  On this branch of the test, the accused’s evidence that he never intended to shoot the police officer, the evidence of the Crown’s own witness as to the potential effect of pepper spray on the accused’s mental state, and the fact that the shooting occurred during a struggle where both the officer and the accused had both hands on the weapon must be borne in mind.  [48] [100‑101]

Cases Cited

By LeBel J.

Referred to:  R. v. Morrissey (1995), 22 O.R. (3d) 514; R. v. Paré, [1987] 2 S.C.R. 618; R. v. Chartrand, [1994] 2 S.C.R. 864; R. v. Mac, 2002 SCC 24, [2002] 1 S.C.R. 856; R. v. Arcangioli, [1994] 1 S.C.R. 129; R. v. Marinaro, [1996] 1 S.C.R. 462; R. v. Peavoy (1997), 34 O.R. (3d) 620; R. v. White, [1998] 2 S.C.R. 72; R. v. Pharr, 2007 ONCA 551, 227 O.A.C. 112; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823; R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239; R. v. Chambers, [1990] 2 S.C.R. 1293; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523.

By Fish J. (dissenting)

R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823; R. v. Arcangioli, [1994] 1 S.C.R. 129; R. v. White, [1998] 2 S.C.R. 72; R. v. Torbiak (1974), 26 C.R.N.S. 108; Brouillard v. The Queen, [1985] 1 S.C.R. 39; R. v. Bisson, [1997] R.J.Q. 286, rev’d [1998] 1 S.C.R. 306; R. v. Gallagher (1922), 63 D.L.R. 629; Bigaouette v. The King, [1927] S.C.R. 112; Latour v. The King, [1951] S.C.R. 19; R. v. C.D., 2005 SCC 78, [2005] 3 S.C.R. 668; R. v. McIntosh, [1995] 1 S.C.R. 686; R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C‑46, ss. 16 , 231(4) (a), 235(1) , 686(1) (a), (b)(iii).

Authors Cited

Sullivan, Ruth.  Sullivan on the Construction of Statutes, 5th ed.  Markham, Ont.:  LexisNexis, 2008.

Watt, David.  Watt’s Manual of Criminal Jury Instructions.  Toronto:  Thomson/Carswell, 2005.

APPEAL from a judgment of the Nunavut Court of Appeal (Martin, Watson and Johnson JJ.A.), 2008 NUCA 2, 432 A.R. 297, 424 W.A.C. 297, [2008] Nu.J. No. 16 (QL), 2008 CarswellNun 17, upholding the accused’s conviction for first degree murder.  Appeal dismissed, Binnie and Fish JJ. dissenting.

Marvin R. Bloos, Q.C., for the appellant.

Ron Reimer and Susanne Boucher, for the respondent.

The judgment of McLachlin C.J. and LeBel, Deschamps, Abella, Charron, Rothstein and Cromwell JJ. was delivered by

LeBel J. —

I.       Introduction

[1]               The appellant, Salomonie Goo Jaw, appeals from his conviction by the Nunavut Court of Justice for the first degree murder of a police officer. Constable Jurgen Seewald died from a gunshot wound he sustained while responding to a 911 call about a domestic dispute between the appellant and his common-law spouse. At trial, the appellant admitted to having shot the officer, but claimed he lacked the intent to kill.

[2]               The majority of the Nunavut Court of Appeal upheld the murder conviction.  Martin J.A., in dissent, found that the trial judge had made a reversible error in his charge to the jury in suggesting that the jury might directly infer an intention to kill the police officer from the appellant’s post-offence conduct. The issue on this appeal is whether the trial judge’s statement in the jury charge regarding the appellant’s post-offence conduct was wrong and whether the error warrants a new trial.

[3]               In my opinion, the appeal should be dismissed and the conviction upheld. The trial judge’s charge to the jury did not contain an error.  Read in isolation, the impugned portion of the charge could be understood to suggest that the appellant’s post-offence conduct might be used to infer that he intended to kill the officer.  However, a charge to the jury must be read in its entire context. On the whole, the judge did not put this inference to the jury and the charge contained no identifiable error.  Even if there had been an error in the charge, this is a case in which the curative proviso of s. 686(1) (b)(iii) of the Criminal Code, R.S.C. 1985, c. C‑46 , would apply, since no substantial wrong or miscarriage of justice would have occurred.

II.      Facts

[4]               The trial testimony revealed that, in the hours before the shooting on March 5, 2001, the appellant had had an argument with his common-law partner, Barbara Ettinger.  Ms. Ettinger had tried to end their relationship, asking him to move out of her apartment, but he refused to leave and instead made an attempt at reconciliation.  Eventually they went to bed, at which point the appellant tried to become intimate and to remove Ms. Ettinger’s clothing.  She resisted, and called out to the neighbours through the bedroom wall to get them to call the police.  The appellant brought her the phone himself so she could make the call.

[5]               According to the transcript of her conversation with the RCMP dispatcher, Ms. Ettinger suggested that the argument could become “physical”, and she told the dispatcher that the appellant had said he was prepared to put up a fight when the police arrived.  Once the call had ended, the appellant removed a shotgun from the closet — he claimed that he felt this would make her stop arguing — and pumped it to show that it was loaded.  This caused a live round to eject, which he placed back in the gun before returning it to the closet. The appellant then had a cigarette and coffee while waiting for the police to arrive.  Ms. Ettinger testified that the appellant double-checked the gun in the closet when Cst. Seewald knocked on the door, and put it back when Ms. Ettinger admonished him to do so.  The appellant denied having done this.

[6]               When Cst. Seewald arrived, Ms. Ettinger answered the door and informed him that the appellant had a gun before letting him into the apartment.  The officer assured her that everything would be fine and entered the apartment.  Ms. Ettinger testified that no guns were visible in the apartment at that time.  Once inside, the officer asked the appellant to sit down in the living room.  According to the appellant, he refused to sit down and Cst. Seewald then pushed him into a chair, ripping his T-shirt in the process.  Ms. Ettinger left the room to get him a new shirt.  In her absence, the appellant claimed, he stood up from the chair and the officer started to pepper-spray him, causing intense pain and a burning sensation in his eyes.  Ms. Ettinger did not hear or see anything while she was getting the shirt, but she testified that when she returned to the living room, the appellant was trying to shield his eyes from the pepper spray, exclaiming that it hurt.

[7]               Ms. Ettinger then recalled seeing the appellant and Cst. Seewald struggling with each other in the living room and moving out onto the porch, where the struggle continued.  She did not see either of them pick up the shotgun, but first noticed  it when the two men were outside on the porch.  She testified that they both had their hands on the weapon, and that Cst. Seewald had said something like “Give me the gun”, while pushing down on the barrel.  Finally, she heard a shot and saw a bright flash.  Constable Seewald exclaimed “I’m shot” and fell to the ground.  A neighbour testified that she heard Ms. Ettinger cry out “No, don’t” before the shot was fired.  Ms. Ettinger recalled screaming after the officer was shot, and described a look of disbelief on the appellant’s face.

[8]               At trial, to counter the appellant’s claim that the shot was fired accidentally in a struggle over the gun, the Crown led expert evidence on the likely distance from which the shot was fired.  According to Dr. Bannach, a forensic pathologist, the scalloped edges of the wound were consistent with a shot fired from a distance of at least three feet, while the existence of satellite wounds and the presence of plastic wads extended the likely distance to between four and eight feet.  Mr. Voth, an RCMP forensic firearms expert, offered a similar estimate that the shot was fired at a distance of between two and five feet; his estimate was based on his analysis of gunshot residue on Cst. Seewald’s parka and on a parka similar in make and style to the one worn by the officer on the night of the shooting.  Mr. Voth also testified that the gun could not have discharged accidentally or as a result of being dropped or struck.  Defence counsel objected to Mr. Voth’s conclusions on the basis of how the parka had been transported from the scene of the shooting and of the order in which he had conducted the chemical tests, which, Mr. Voth admitted, may have had an impact on his ability to form a conclusive opinion of the results.

[9]               The appellant claimed to have no memory of the events after he was pepper-sprayed until he found himself on the porch and heard Ms. Ettinger yelling.  He testified that when he realized he had shot the officer, he reloaded the gun to kill himself.  Ms. Ettinger intervened and stopped him from doing so.  The appellant then walked out onto the sea ice with his gun, still contemplating suicide. 

[10]           Constable Seewald died from his wounds shortly after emergency workers arrived on the scene. Later that day, the appellant turned himself in to the police and was charged with first degree murder contrary to s. 235(1)  of the Criminal Code .

III.    Judicial History

A.     Nunavut Court of Justice (Vertes J.)

[11]           The appellant’s jury trial was conducted in both Inuktitut and English.  Every word was translated, generally on a sentence-by-sentence basis.

[12]           The central issue at trial was whether the appellant had formed the intent to kill the officer, or whether the officer’s death was caused accidentally.  A finding of intent would result in a conviction for first degree murder pursuant to s. 231(4) (a) of the Criminal Code .  A finding of accidental discharge could either lead to an acquittal if it were a “pure accident” — if, for example, the officer had grabbed the gun unlawfully and it went off accidentally while the appellant was trying to wrest it away — or result in a conviction for manslaughter if the jury concluded that the appellant was committing an unlawful act — for example, by pointing the gun or using it carelessly — at the time of the shooting. 

[13]           In her closing address to the jury, Crown counsel briefly mentioned the appellant’s post-offence conduct.  More specifically, she referred to the allegation that the appellant had intended to commit suicide even though he had not checked on the officer’s condition and thus could not even have known whether Cst. Seewald had been killed.  In this address, Crown counsel stated:

I’m going to now go to the suicide, quote “attempt”.  Did Salamonie [sic] really want to commit suicide when, by his own evidence, he didn’t even know if the shot had hit [Cst. Seewald]?  He didn’t check him.  He didn’t see a wound.  So, why would he feel it necessary to commit suicide?  Was this a show for Barbara, and for you? [A.R., at p. 177]

[14]           After saying this, Crown counsel pointed to other inconsistencies in the appellant’s testimony concerning his actions after the shooting.  For instance, when the gun was found on the sea ice, there were no bullets in the chamber, which suggested that the appellant had not really intended to kill himself.  The appellant also claimed to have called out the names of the fallen officer and his children in despair when he was out on the sea ice, but he later admitted that he did not know their names.  Crown counsel mentioned these inconsistencies to impugn the appellant’s credibility, and ultimately to discredit the defence argument that the appellant could not recall the events leading up to the shooting due to the disorienting effects of the pepper spray.  She stated:

Ladies and gentlemen, these are some of the highlights of the difficulties with the accused’s testimony, and I’ve gone over just some of them, because now, we get to an important part, and that is:

When [the appellant] tells you he can’t remember what happened, can you believe him?  But more importantly, it doesn’t matter if he doesn’t remember. What matters is that he knew what he did at the time that he did it. [A.R., at p. 177]

[15]           In his charge to the jury, Vertes J. twice drew the jury’s attention to the appellant’s conduct after the shooting.  First, Vertes J. made the following general statement when instructing the jury on the question of intent:

To determine the accused’s state of mind, what he meant to do, you should consider all of the evidence. You should consider what he did, how he did it, and what he said. You should look at the accused’s words and actions before, at the time, and after the shooting of Constable Seewald. All these things may shed light on the accused’s state of mind. They may help you decide what he intended to do. [Emphasis added; A.R., at p. 27.]

[16]           However, it was the judge’s second reference to the appellant’s post-offence conduct that raised concerns in the Court of Appeal.  In summarizing the Crown’s theory, Vertes J. stated:

Furthermore, I think it is fair to say that the Crown says you should conclude that the accused knew he shot Constable Seewald because he did not even bother to check Constable Seewald before deciding, as he said, to kill himself. So, if you accept this evidence, you may conclude that at the moment Constable Seewald was shot, the accused intended to kill Constable Seewald, or at least intended to cause bodily harm that he knew was likely to kill Constable Seewald, and he was reckless about whether the constable died or not. [A.R., at p. 31]

[17]           The appellant was ultimately convicted of first degree murder for the shooting death of Cst. Seewald.  He was sentenced to life in prison with no possibility of parole for 25 years.

B.      Nunavut Court of Appeal (2008 NUCA 2, 432 A.R. 297)

[18]           The majority and the dissenting judge unanimously rejected the appellant’s first five grounds of appeal, disagreeing only on the trial judge’s reference to post-offence conduct in his charge to the jury.  The question before the court was whether the jury would have been misled into thinking they could infer that the appellant had the requisite intent for first degree murder from the fact that he had thought about committing suicide without first checking on the officer’s condition.

(1)       Majority (Watson and Johnson JJ.A.)

[19]           The majority of the Nunavut Court of Appeal dismissed the appeal, holding that the trial judge’s reference to post-offence conduct in his charge was unfortunate but did not amount to an error of law.  Watson J.A., writing for the majority, conceded that there was some merit to the appellant’s argument that his actions after the shooting were not relevant to the question of intent, since the appellant could reasonably have been expected to know the consequences of a short-range shooting regardless of his intent or knowledge at the time of the shooting. On this point, Watson J.A. wrote that “[r]ealization of the lethality of the shooting after it occurred does not itself prove intent beforehand” (para. 104). The majority also conceded that the trial judge had mischaracterized the Crown’s argument concerning the appellant’s threat to commit suicide.  Vertes J. had presented the appellant’s post-offence conduct as an indication that he knew he had shot the officer, thus drawing the common sense inference, whereas the Crown had actually relied on the suicide threat to impugn the appellant’s sincerity and credibility.

[20]           Despite these errors, Watson J.A. was not persuaded that the charge was fundamentally wrong or prejudicial, since the trial judge had not actually instructed the jury that the appellant’s post-offence conduct directly proved intent.  In any event, Watson J.A. held that it was open to the jury to consider the appellant’s level of awareness following the shooting in light of the appellant’s claim that he was disoriented from the pepper spray and had no memory of the events leading up to the fatal shot.  The majority did not refer explicitly to the curative proviso of s. 686(1) (b)(iii) of the Criminal Code , but appears to have relied on it in holding that no “substantial wrong or miscarriage of justice occurred” (para. 109).

(2)       Dissent (Martin J.A.)

[21]           Martin J.A., in dissent, found that the trial judge’s instruction on post-offence conduct amounted to an error of law that warranted a new trial.  He agreed with the majority that the trial judge had misconstrued the Crown’s submission on post-offence conduct.  Unlike the majority, however, Martin J.A. held that the jury may have been misled into thinking that the judge was not merely summarizing the Crown’s submissions, but was actually instructing them that the appellant’s post-offence conduct could be used to determine his intent at the time of the shooting.

[22]           According to Martin J.A., the evidence could not support this inference.  The sole issue at trial was whether the shooting was accidental or intentional. While post-offence conduct might be relevant to the question of whether the appellant had acted unlawfully, Martin J.A. held that it had no bearing on the question of intent.  The appellant’s intention to commit suicide without even checking the officer’s condition was consistent with both an accidental and an intentional shooting.  Furthermore, the error could not be cured by s. 686(1) (b)(iii) of the Criminal Code .  The error related to a critical issue at trial, and the evidence was not so overwhelming that the verdict would necessarily have been the same had the error not been made.  Martin J.A. would have allowed the appeal.

IV.    Analysis

A.     Issues

[23]           Two issues are raised in this appeal:

1. Did the trial judge’s reference to post-offence conduct in his charge to the jury constitute an error that justifies appellate intervention under s. 686(1) (a) of the Criminal Code ?

2.  If the trial judge did err in his charge to the jury, should the curative proviso of s. 686(1) (b)(iii) of the Criminal Code  be applied to dismiss the appeal?

B.      Instruction on Post-Offence Conduct

[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.

[25]           The appellant points to two portions of the charge in which the trial judge referred to the post-offence conduct, and seeks to impugn them both.  I will be focussing on one of these portions.  All three judges of the Court of Appeal agreed that the trial judge’s first reference to the post-offence conduct was not problematic, and I dispose of this submission on the same basis.  The statement that jurors might consider “the accused’s words and actions before, at the time, and after the shooting” (A.R., at p. 27) in attempting to ascertain the appellant’s state of mind is simply a general guideline that encourages jurors to consider the actions of an accused person in their totality.  Indeed, this very statement forms part of a model jury instruction on the offence of first degree murder of a police officer (D. Watt, Watt’s Manual of Criminal Jury Instructions (2005), at p. 450). There is no basis for this Court to interfere with it. 

[26]           The second impugned portion of the charge is reproduced here for ease of reference, but in its wider context:

So, it seems to me, ladies and gentlemen, that the Crown’s theory as to why you should find the accused guilty of first-degree murder is this:

The accused was not willing to leave the apartment on his own.  He went to check his guns to intimidate Barbara [Ms. Ettinger], but also to make sure that they were ready.  During the scuffle, the police officer was trying to get the accused out of the apartment, and along the way, the accused managed to get the shotgun out of the closet.

During the struggle on the porch, the officer tried to take the shotgun away from the accused, and at one point, they separated, and the accused shot the police officer by pulling the trigger. Crown counsel reminded you of the neighbour’s evidence, Pauletta, who said she heard Barbara scream, “No, don’t,” when she heard the shot.

Crown counsel also submitted that if the accused did not load the shotgun at the closet when he first checked it, he must have loaded it on the porch before the shot.  The act of loading requires several deliberate steps; holding the release button and pumping the magazine.  So, Crown counsel said the accused must have known to [sic] the shotgun was loaded.  This, says Crown counsel, shows the accused’s intent, his state of mind, and shows that what happened was not an accident.

Furthermore, I think it is fair to say that the Crown says you should conclude that the accused knew he shot Constable Seewald because he did not even bother to check Constable Seewald before deciding, as he said, to kill himself.  So, if you accept this evidence, you may conclude that at the moment Constable Seewald was shot, the accused intended to kill Constable Seewald, or at least intended to cause bodily harm that he knew was likely to kill Constable Seewald, and he was reckless about whether the constable died or not.

The defence, of course, says that you should at least have a reasonable doubt about the accused’s intention. [Emphasis added; A.R., at pp. 30-31.]

[27]           In the first sentence of the passage underlined above, Vertes J. indicated that the Crown had used the circumstances of the appellant’s threat to commit suicide to suggest that he knew he had killed the officer.  This misconstrues somewhat the Crown’s actual reason for pointing to the appellant’s post-offence conduct, which was to impugn the appellant’s credibility and to suggest that he was fully aware of his actions at the time of the shooting.  In this sense, it could be said to constitute an error in the charge.

[28]           However, not every error in proceedings will warrant appellate review.  Section 686(1) (a) of the Criminal Code  sets out three grounds upon which an appellate court might allow an appeal against a conviction:

686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(a)   may allow the appeal where it is of the opinion that

(i)      the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii)     the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii)    on any ground there was a miscarriage of justice;

[29]           An error in proceedings that does not lead to an unreasonable verdict, a wrong decision on a question of law or a miscarriage of justice is indeed an error, but one without legal effect.  The error in the instant case is a perfect example of this.  The argument that the trial judge had attributed to the Crown is not contentious; the appellant did not dispute that he knew he had shot Cst. Seewald.  Indeed, it was the very knowledge that he had killed the officer that supposedly caused him to threaten suicide in the first place.  As a result, Vertes J.’s misstatement of the Crown’s submission on post-offence conduct did not put anything to the jury that they would not already have presumed.  It cannot reasonably be argued that an undisputed, uncontroversial statement such as this one could lead to an unreasonable verdict under s. 686(1) (a)(i) or a miscarriage of justice under s. 686(1) (a)(iii).  There is no suggestion here that the verdict was not reasonably supported by the evidence or that the jury was swayed by this misstatement in a way that could have resulted in an unfair trial: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at pp. 540-41.  Nor can it be said that the trial judge erred on a question of law as contemplated in s. 686(1) (a)(ii), since the error occurred while the trial judge was simply summarizing the Crown’s position, not while he was giving an instruction on a point of law.  The theory on post-offence conduct mistakenly attributed to the Crown was not contrary to law or otherwise impermissible.  The conclusion that the appellant knew he had shot the officer could easily, and fairly, be drawn from the evidence of his actions after the shooting.  Since this error does not engage any of the three branches of s. 686(1) (a), it is of no consequence to this appeal. 

[30]           The second part of the impugned paragraph might raise more serious concerns at first glance.  Because the words “this evidence” were uttered immediately after the reference to the appellant’s post-offence conduct, they would appear to refer solely to the post-offence conduct. On this basis, Vertes J. might seem to be saying that the jury could infer the requisite intent for murder from the fact that the appellant had threatened to commit suicide without first checking on the officer’s condition.  If this were a plausible interpretation of the passage, it might be reasonable to suggest that the trial judge erred in telling the jury they could make such an inference, and that this error falls under the third, and possibly the second, branch of s. 686(1) (a).

[31]           However, I do not believe that this is the correct interpretation of the passage.  Vertes J. was not suggesting that the appellant’s actions after the shooting constituted the sole basis upon which the jury could infer intent.  Rather, the words “this evidence” referred to the entirety of the Crown’s evidence that the judge had just summarized for the jury.

[32]           The grouping of the sentences in a single paragraph is misleading.  An appellate court must examine the alleged error in the context of the entire charge and of the trial as a whole.  When the passage is read in context, the second sentence cannot reasonably be understood to suggest that the jury could infer intent from the appellant’s post-offence conduct alone.

[33]           As is clear from the passage set out above, the impugned statement was made at the end of the judge’s summary of the Crown’s submissions and was immediately followed by a review of the defence theory.  The structure of this portion of the charge suggests two things: first, that the second sentence in the impugned passage referred to the entirety of the Crown’s evidence and not merely to the final piece of evidence, which the trial judge had newly summarized.  This wrap-up sentence should really have been placed in a separate paragraph to distinguish it from the specific piece of evidence that Vertes J. had mentioned in the preceding sentence.  Second, it suggests that Vertes J. was not instructing the jury to use the evidence in the manner suggested by the Crown, but was concluding his review of the Crown’s position before moving on to the defence submissions.  Simply put, the trial judge was merely setting out the Crown’s argument on how all the evidence presented by the Crown at trial might be used: to resolve the central issue of intent.  I cannot accept that in so doing, he committed any error at all, much less an error of law that could justify appellate intervention under s. 686(1) (a) of the Criminal Code . 

[34]           The confusion surrounding this passage might be explained in part by the potential for transcription difficulties at trial. As I mentioned above, the charge was delivered in English and translated sentence-by-sentence into Inuktitut. Indeed, the Crown has pointed out that even individual sentences were at times broken down to facilitate the translation.  The transcription process is already reductionist in nature: the regular inflections in one’s voice, one’s emphasis on certain words and the natural flow of an idea or thought are not always captured by a written record.  In the case of a trial conducted in two languages, the natural breaks between topics may not be as clear as usual, given the constant interruptions required for translation.  The court reporter thus faced the difficult task of ensuring that the written record was true to the proceedings. The paragraph structure of the charge as set out in the transcript should not be read as necessarily reflecting the actual structure of the charge as presented at trial, particularly given that the instructions were delivered orally and were translated sentence-by-sentence for the jury.  While an appellate court must certainly rely on transcripts as records of lower court hearings, their usefulness does not imply that the court should not examine them critically when necessary.  A transcript is not an authoritative legal text. 

[35]           Indeed, counsel who represented the appellant at trial did not seem to have understood the charge as an instruction to the jury to use the appellant’s knowledge that he had shot the officer without checking on his condition as a basis for inferring intent.  She raised several objections to the charge, but the trial judge’s reference to post‑offence conduct was not among them.  Her failure to object on this point cannot be explained by a possibility that she overlooked this part of the charge, since she referred to this very passage in her post-charge submissions to the trial judge.  Citing the passage impugned in this appeal, defence counsel objected on the basis that the trial judge had referred to the Crown’s theory as evidence:

Now, the Crown -- or the court then went on to review the theory of the Crown in considerable detail, and my note indicates that at the conclusion of that, the court stated:

“If you accept this evidence, you should [sic] conclude that the accused intended to cause death or bodily harm.”

Of course, the Crown theory is not evidence. It is only the Crown theory, and the implication again being left to the jury, following as it does on the heels of [Crown counsel’s] comments yesterday that the Crown is founded incontrovertibly in the evidence. [A.R., at p. 41]

[36]           Even though defence counsel mistakenly thought Vertes J. had said “should” rather than the more permissive word “may”, she did not see any problem in this passage as regards the judge’s reference to post-offence conduct.  If defence counsel, who would be expected to have the best interests of her client in mind, did not interpret the charge as being prejudicial to the appellant, then it is difficult to find that the jury may have so interpreted it.

[37]           Regarding the charge, I take issue with my colleague’s statement that “any uncertainty as to [the charge’s] meaning and effect would surely have to be resolved in the accused’s favour” (para. 90). This is not a case in which the trial judge used a word or phrase that was reasonably capable of more than one meaning and the jury was left to discern which of the possible meanings was intended.  When read in the context of the entire charge and of the evidence and the trial as a whole, the impugned statement has only one reasonable meaning.  The possibility of an appellate court divining another interpretation of the trial judge’s words does not mean that the charge created uncertainty for the jury.

[38]           Furthermore, although I need not resolve the issue, I have reservations about the proposition that any uncertainty in a charge must, as a matter of course, be resolved in favour of the accused.  This proposition seems to be based on the strict constructionist approach to interpreting penal legislation that developed in the eighteenth century, when criminal law sanctions were especially severe.  By the mid-1980s, however, the presumption of a restrictive interpretation of penal statutes had started to wear thin (R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at pp. 472-74).  A restrictive interpretation may be warranted where an ambiguity cannot be resolved by means of the usual principles of interpretation.  But it is a principle of last resort that does not supersede a purposive and contextual approach to interpretation (R. v. Paré, [1987] 2 S.C.R. 618; R. v. Chartrand, [1994] 2 S.C.R. 864, at pp. 881-82; R. v. Mac, 2002 SCC 24, [2002] 1 S.C.R. 856, at para. 4). Even if the impugned statement in the instant case did disclose a true ambiguity, an attempt would first have to be made to resolve it by resort to general principles and methods of interpretation. For the reasons I have given above, an ambiguity in the charge should not automatically be resolved in favour of the accused. 

[39]           In sum, Vertes J.’s reference to the appellant’s post-offence conduct in his charge to the jury is not an error capable of affecting the legality of the verdict.  In fact, both the Crown and the trial judge could be said to have underestimated, to the appellant’s advantage, the significance of the appellant’s actions following the shooting.  Vertes J. failed to give full effect in his charge to the Crown’s argument that the appellant’s actions — all revolving around the theatrics of a suicide attempt — revealed a lack of sincerity and credibility that the jury could take into account when assessing the veracity of the appellant’s claim to have been so badly affected by the pepper spray that he could not remember the events leading up to the shooting.  It was entirely open to the Crown to engage in this line of reasoning at trial.  While post-offence conduct cannot  usually serve on its own as a basis for inferring the specific degree of culpability of an accused person who has admitted committing an offence (R. v. Arcangioli, [1994] 1 S.C.R. 129, at p. 145; R. v. Marinaro, [1996] 1 S.C.R. 462; R. v. Peavoy (1997), 34 O.R. (3d) 620 (C.A.), at p. 631), it can be used, more generally, to impugn the accused person’s credibility (R. v. White, [1998] 2 S.C.R. 72, at para. 26). 

[40]           Post-offence conduct may also be used to discredit a defence that relates to the accused person’s state of mind at the time of the offence and that is therefore relevant to his or her ability to form the requisite intent for the offence, such as intoxication (R. v. Pharr, 2007 ONCA 551, 227 O.A.C. 112, at paras. 8-15; Peavoy, at pp. 630-31) or the “not criminally responsible” defence under s. 16  (R. v. Jacquard, [1997] 1 S.C.R. 314, at paras. 42-53).  In the case at bar, the Crown could have pursued the argument that the appellant’s sense of awareness immediately after the shooting was relevant circumstantial evidence that he had the requisite intent, since it belied his claim to have been completely disoriented by the pepper spray.  If the Crown had done so, then the jury should have been instructed on the limited probative value of the appellant’s post-offence conduct.  However, the Crown did not make this argument at trial, and the trial judge did not allude to it in his charge to the jury.  There is obviously no need for a judge to include a limiting instruction pertaining to an issue that did not even arise in the case.  This would have unnecessarily confused the jury and might have amounted to an error in its own right.

[41]           For these reasons, I believe that the first sentence of the impugned passage contains at most an error without any legal effect, and that the second sentence contains no error whatsoever.  However, even if this reference to the appellant’s actions after the shooting had amounted to an error of law, I would have found that the appeal should be dismissed under s. 686(1) (b)(iii) of the Criminal Code .

C.     Curative Proviso: Section 686(1) (b)(iii) of the Criminal Code 

[42]           This Court  reviewed the law on the curative proviso in R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823 (see also R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239).  In essence, this provision allows a court to uphold a conviction despite an error of law if no substantial wrong or miscarriage of justice occurred as a result of the error.  The Crown must demonstrate to the court either (1) that the error was so harmless, and so insignificant, that it could not have affected the verdict; or (2) that the error, while serious, did not result in a miscarriage of justice or a substantial wrong, because the case against the accused was so overwhelming that a conviction would have been inevitable even if the error had not been made.

[43]           It is not strictly necessary in this case to invoke the curative proviso, as the trial judge did not commit an error of law in his charge to the jury.  However, even if there were an error of law in this case, it would have been easily classified as a harmless one that could not have affected the verdict.  It is highly unlikely that the purported ambiguity of the charge with respect to the appellant’s post-offence conduct would have influenced the jury in a manner prejudicial to him.  The evidence of the appellant’s post-offence conduct was of very little significance to the case against him and was not emphasized at trial by either the Crown or the trial judge.  Moreover, the Crown at no time argued that the appellant’s actions after the shooting could be used as direct evidence of his intent to kill the officer.  Indeed, it defies logic to suggest that the appellant’s failure to check on the officer’s condition before threatening to kill himself could be probative of either an intentional or an accidental shooting.  Bearing in mind that the language used by the trial judge in the impugned passage was permissive (“you may conclude”), I do not believe that the jury would have interpreted the charge as a direction to view the appellant’s questionable suicide attempt and his knowledge that he had killed Cst. Seewald as evidence of intent.

[44]           Again, it is noteworthy that defence counsel did not object at trial to this portion of the charge.  Of course, counsel’s failure to object at trial to a portion of a charge that is later raised on appeal is not a determining factor in the curative proviso analysis (Arcangioli, at p. 143; R. v. Chambers, [1990] 2 S.C.R. 1293, at pp. 1319‑20).  It is the judge, and not counsel, who is ultimately responsible for the adequacy of the charge.  At the same time, a failure to object does merit consideration by the reviewing court (Jacquard, at paras. 37-38; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58).  In the case at bar, the fact that defence counsel did not object suggests that the “error”, had it in fact been an error, would have been neither serious nor significant.

D.     Conclusion

[45]           A trial judge must not be held to a standard of perfection in delivering a charge to a jury.  In this case, there was one small mistake in an otherwise faultless charge.  Read in the context of the entire charge and of the trial as a whole, the impugned passage does not contain an error of law.  If the purported error had in fact been an error, it would not have warranted a new trial, as no substantial wrong or miscarriage of justice would have occurred.  For these reasons, the appeal should be dismissed and the conviction upheld.

The reasons of Binnie and Fish JJ. were delivered by

Fish J. (dissenting) —

I

[46]           The appellant unlawfully caused the death of a police officer who had been summoned by the appellant’s common-law spouse to the apartment they then shared.  It was her apartment and the appellant refused to leave.  Fearing violence, she called the RCMP.  The officer dispatched to the scene was fatally shot soon after his arrival — in the heat of a violent struggle with the appellant.

[47]           The only real issue at trial was whether the appellant had acted with the requisite intent for murder.  In my respectful view, the trial judge misdirected the jury in that regard.  He twice suggested to the jury that they could consider the appellant’s post-offence conduct in determining his intent at the moment of the shooting.  Their verdict — guilty of murder, or only of manslaughter — was made to depend on that finding.

[48]           The judge’s erroneous instruction can hardly be characterized as “harmless”,  since it concerned the only real issue at trial.  Nor was the rest of the evidence “so overwhelming . . . that there was no substantial wrong or miscarriage of justice”: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 26.  Accordingly, the judge’s error cannot be “cured” under the proviso of s. 686(1) (b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 .

[49]           Like Martin J.A., dissenting in the Court of Appeal, I have concluded that  a new trial must therefore be had.

II

[50]           In his overview of the relevant facts, with which I am otherwise in general agreement, Justice LeBel makes little reference to the victim’s pepper-spraying of the appellant immediately before the shooting.  Because of its importance, especially with respect to the applicability of the curative proviso, I think it necessary to flesh out the evidence on this issue and to place in context the fatal struggle that ensued.

[51]           The appellant, Salomonie Goo Jaw, was an Inuk resident of Cape Dorset, Nunavut, in March 2001, when the fatal shooting occurred.  He had been living with his partner, Barbara Ettinger, for approximately two years.  An acrimonious quarrel erupted and, in response to a 911 call to the RCMP by Ms. Ettinger, Cst. Jurgen Seewald was dispatched to Ms. Ettinger’s apartment.

[52]           Upon his arrival, Cst. Seewald, addressing the appellant, said “[l]et’s talk”, and “steered” the appellant into the living room of the apartment.  Once inside, Cst. Seewald told Mr. Jaw to sit down and, when the appellant did not comply, Cst. Seewald pushed him into a chair, ripping the appellant’s shirt in the process.  At that point, Ms. Ettinger left the room to fetch a new shirt for the appellant.  When she returned, she saw Cst. Seewald holding the appellant with one hand and pepper-spraying him in the face, persistently, with the other.  The use of pepper spray was not disputed by the Crown.

[53]           The appellant testified that the pepper spray was so “painful” and “burning” that he could not keep his eyes open.  Ms. Ettinger confirmed his evidence as to the use and apparent effect of the pepper spray.  Indeed, the trial judge found no contradictions between Ms. Ettinger and the appellant “going to the fundamental issues” (pre-charge conference, A.R., at p. 15). 

[54]           In Ms. Ettinger’s words, “Salomonie had his hands and arms up in front of his face and eyes, trying to protect himself from the pepper spray”.  Mr. Jaw complained that the pepper spray “stings”, is “burning” and “hurts”.  According to Ms. Ettinger, the officer continued holding onto the appellant and spraying him as the pair moved out of the living room, toward the kitchen. 

[55]           Staff Sergeant Robert Ervin of the RCMP, a witness called by the Crown, testified on cross-examination that someone who is pepper-sprayed directly in the eyes may become confused or disoriented, and is usually distracted by the pain.  Again as a result of the pain, people who are sprayed sometimes experience “auditory exclusion”, a condition that blocks out the sound that in fact reaches their ears.  Sergeant Ervin also explained how the inhalation of pepper spray interferes with breathing and can cause “extreme burning” on contact with exposed skin. 

[56]           Ms. Ettinger testified that she observed the two men as a single “mass” while they moved from the kitchen, through the apartment door and into the common area.  At some point during this scuffle, the loaded shotgun was retrieved from the closet in which  Mr. Jaw had placed it prior to the officer’s arrival.  Ms. Ettinger did not see who retrieved the shotgun, but she testified that both men had both hands on the weapon once the two were outside the apartment.

[57]           The Crown relied on the evidence of Dr. Bernard Bannach, a forensic pathologist, and Alan Voth, an RCMP forensic firearms expert, to rebut the defence claim that the shooting occurred accidentally in the course of a struggle.  Dr. Bannach and Mr. Voth estimated that the shot was fired from between four to eight feet and two to five feet respectively.  According to the eye-witness  Ms. Ettinger, however, the officer was holding the barrel and the appellant was holding the butt-end of the gun when the gun discharged. 

[58]           Ms. Ettinger screamed when the gun discharged.  She heard Cst. Seewald  say “I’m shot” before he fell to the floor.  According to Ms. Ettinger, the appellant then said “I shot him” and had a look of disbelief on his face.  Ms. Ettinger testified that the appellant’s face and eyes were “still burning from the pepper spray” at that point.  The appellant then knelt down, positioned to shoot himself.  Ms. Ettinger told him that suicide would only make things worse and urged him to desist.

[59]           Mr. Jaw testified that all he could focus on or remember from the time of the shooting was the pain and burning caused by the pepper spray.  The first thing he recalled after the shotgun blast was Ms. Ettinger screaming and Cst. Seewald lying on the floor.  The appellant did not check the officer’s condition.  He testified that he did not know how he came to be holding the gun. 

[60]           Mr. Jaw told the jury that he had never intended to shoot Cst. Seewald, either before or after the constable arrived.  Once he realized that he had shot the officer, Mr. Jaw told Ms. Ettinger that he did not want to live any longer.  Ms. Ettinger tried unsuccessfully to wrest the gun from Mr. Jaw.  After some discussion, Mr. Jaw left the apartment with the gun, apparently intending to kill himself on the sea ice.  The appellant stayed on the sea ice overnight before returning home.  He turned himself in to the RCMP later that day. 

III

[61]           The trial judge correctly instructed the jury to find the appellant guilty of murder if they were satisfied beyond a reasonable doubt that he “either intended to kill or intended to cause bodily harm that the accused knew was likely to kill and was reckless about whether Constable Seewald [the victim] died or not” (A.R., at p. 26).  Immediately thereafter, the judge charged the jury as follows:

To determine the accused’s state of mind, what he meant to do, you should consider all of the evidence.  You should consider what he did, how he did it, and what he said.  You should look at the accused’s words and actions before, at the time [of], and after the shooting of Constable Seewald.  All these things may shed light on the accused’s state of mind. [Emphasis added; A.R., at p. 27.]

[62]           Later in the charge, the trial judge summarized what he mistakenly considered to be the Crown’s theory of the case.  He concluded his summary this way:

Furthermore, I think it is fair to say that the Crown says you should conclude that the accused knew he shot Constable Seewald because he did not even bother to check Constable Seewald before deciding, as he said, to kill himself.  So, if you accept this evidence, you may conclude that at the moment Constable Seewald was shot, the accused intended to kill Constable Seewald, or at least intended to cause bodily harm that he knew was likely to kill Constable Seewald, and he was reckless about whether the constable died or not.  [A.R., at p. 31]

[63]           The judge thus suggested to the jury — and, in my respectful view, erroneously — that they could consider the appellant’s post-offence conduct in determining whether he had acted, at the time of the shooting, with the culpable intent that is an essential element of murder.  These were not isolated or fleeting comments. As we shall see, they formed an integral part of a recurring theme in the portions of the judge’s charge dealing with the appellant’s mental state when he caused the death of the constable.

[64]           The law regarding evidence of post-offence conduct is definitively set out in R. v. Arcangioli, [1994] 1 S.C.R. 129, at p. 145:

. . . 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.

[65]           And in R. v. White, [1998] 2 S.C.R. 72, at para. 28, Major J. explained the circumstances in which a jury should be instructed that post-offence conduct has no probative value:

Such an instruction is most likely to be warranted where, as in Arcangioli itself, the accused has admitted to committing the actus reus of a criminal act but has denied a specific level of culpability for that act . . . .  In such cases, the participation of the accused in the culpable event is not at issue; the question to be decided is merely the extent or legal significance of that participation. [Emphasis added.]

[66]           In this case, the only element distinguishing manslaughter from murder was the “specific level of culpability” of the appellant.  Once the jury accepted that it was the appellant who had retrieved the shotgun, his “participation . . . in the culpable event” was no longer in issue.

[67]           Moreover, the appellant’s post‑offence conduct was equally consistent with murder and manslaughter.  His failure to check on the victim’s condition “may be equally explained by reference to consciousness of guilt of two or more offences” (Arcangioli, at p. 145): murder, if the appellant intentionally caused the victim’s mortal injuries, and was reckless whether death ensued or not; manslaughter, if the appellant, having discharged the weapon unintentionally became totally distraught on realizing that he had shot the constable — as the appellant, in effect, testified.

[68]           Yet the trial judge did not give the required limiting instruction: He failed to warn the jury not to use Mr. Jaw’s post-offence conduct to infer intent.  On the contrary, he expressly invited the jury to do so.

[69]           It was not in issue that Mr. Jaw had struggled with Cst. Seewald and ultimately discharged the weapon.  As a preliminary matter, the jury had to decide whether Mr. Jaw had retrieved the gun from the closet, handled it unlawfully, and thus caused Cst. Seewald’s death.  In the circumstances of this case, this alone would have supported a finding of culpable homicide.

[70]           The jury would then have to decide whether Mr. Jaw was guilty of murder or only of manslaughter.  As mentioned earlier, that depended entirely on his intent at the time of the shooting.  Under both Arcangioli and White, the jury should have been instructed that it could not infer from his conduct immediately after the shooting that he had acted with the specific intent that is a requisite element of murder.

[71]           And I repeat once more that the jury was told the opposite.

IV

[72]           According to Justice LeBel, it “might be reasonable to suggest that the trial judge erred” if he invited the jury to infer intent from the appellant’s post-offence conduct (para. 30).  In my colleague’s view, however, this impermissible inference was never put to the jury (paras. 3 and 31). 

[73]           The issue that divides us, then, is whether the trial judge in fact invited the jury to consider post-offence conduct in determining Mr. Jaw’s intention at the time of the shooting.  Like all three judges in the Court of Appeal (2008 NUCA 2, 432 A.R. 297), I believe that he did. 

[74]           We cannot safely conclude that the jurors understood the judge’s instruction differently.

V

[75]           Justice LeBel stresses throughout his reasons that we must read the judge’s charge in context.  I agree.  But this heightens rather than assuages my concern: The trial judge’s impugned references to post-offence conduct all occurred in the context of his review of evidence and Crown submissions explicitly and directly related to the appellant’s intent at the time of the shooting. 

[76]           At the beginning of this portion of his charge, the trial judge provided the jury with an analytical framework, or decisional roadmap, for determining the appellant’s culpable intent.  He organized this roadmap in terms of Mr. Jaw’s conduct before, during and after the offence — and then followed the roadmap sequentially.  While discussing Mr. Jaw’s intent prior to or at the time of the shooting, the trial judge cited the appellant’s awareness after the shooting that he had shot Cst. Seewald.  This could only have been intended to convey to the jury that the appellant’s post-offence awareness was evidence of an earlier murderous intent.  And I see no reason to suppose that the jury understood it otherwise.

[77]           For ease of reference, I again reproduce what the trial judge told the jury in summarizing the theory of the Crown:

Furthermore, I think it is fair to say that the Crown says you should conclude that the accused knew he shot Constable Seewald because he did not even bother to check Constable Seewald before deciding, as he said, to kill himself.  So, if you accept this evidence, you may conclude that at the moment Constable Seewald was shot, the accused intended to kill Constable Seewald, or at least intended to cause bodily harm that he knew was likely to kill Constable Seewald, and he was reckless about whether the constable died or not. [A.R., at p. 31]

[78]           For Justice LeBel, the first sentence in this extract from the judge’s charge is “not contentious” since the “appellant did not dispute that he knew he had shot  Seewald” (para. 29), and the second is harmless.  With respect, I disagree with both propositions.  In view of their juxtaposition, moreover, I believe the two sentences in the impugned extract cannot be conceptually disjoined.  Each must be read in the context of the other.  For present purposes, I am nonetheless prepared to consider them separately, as my colleague does.

[79]           As to the first, Justice LeBel finds that the trial judge’s “misstatement of the Crown’s submission on post‑offence conduct did not put anything to the jury that they would not already have presumed” (para. 29).

[80]           With respect, however, the issue here is not the accuracy of the judge’s statement regarding the appellant’s post‑offence conduct, but the use to which the jury was invited to put it.  The trial judge’s reference to post‑offence conduct formed an important part of his instruction to the jury on how they were to determine whether the appellant had the requisite intent for murder. 

[81]           In finding no error, Justice LeBel reasons as well that the trial judge “was not instructing the jury to use the evidence in the manner suggested by the Crown, but was concluding his review of the Crown’s position before moving on to the defence submissions” (para. 33 (emphasis in original)).  With respect, I find this distinction unconvincing — and unwarranted.

[82]           I agree that the jury might well have understood that the judge was summarizing his entire discussion of the appellant’s intent or, at the very least, the Crown’s theory on that issue.  In either case, however, part of the evidence which the jury was invited to rely on included evidence of the appellant’s post-offence conduct.  In my respectful view, that is the problem, not the solution.

[83]           The trial judge clearly indicated to the jury that if they accepted the evidence he had reviewed for them, including the appellant’s post-offence conduct, they were free to conclude that the appellant had the requisite intent for murder.  Called by any other name, this was an instruction in law, which the jury was bound to accept.

[84]           I agree in this regard with Martin J.A., dissenting in the court below (at para. 125):

The Crown’s failure to rely on the appellant’s post‑offence conduct in the manner ascribed to it by the trial judge, followed by his instruction, “So if you accept this evidence, you may conclude that at the moment Constable Seewald was shot the accused intended to kill Constable Seewald . . .”, could well have led the jury to understand that this was not part of the Crown’s position, but part of the trial judge’s instruction on the law that they were bound to follow.  In the result, it would be understood that if the jury found that the appellant did not check on the wounded constable before deciding to kill himself, they could infer that the killing was intentional.  [Emphasis added.]

[85]           Ultimately, it is thus of no moment that the trial judge’s instruction rested on a misunderstanding of the Crown’s position.  What matters is that the jury was told by the judge that it could draw, in respect of the critical issue in the case, an inference prohibited by law.  This misdirection would have been no less fatal if Crown counsel had also urged the jury to draw that same impermissible inference. On the contrary, where counsel for either side advances a theory contrary to law or suggests an impermissible use of evidence, trial judges are bound to set the record straight.  Reiterating without correction an erroneous submission by counsel differs neither in law nor in effect from a misdirection of the judge’s own making. 

[86]           It should never be forgotten that, in the eyes of a jury, the trial judge occupies a position “of great power and prestige which gives his every word an especial significance”: R. v. Torbiak (1974), 26 C.R.N.S. 108 (Ont. C.A.), at pp. 109-10, per Kelly J.A., cited with approval in Brouillard v. The Queen, [1985] 1 S.C.R. 39, at pp. 44-45.  As I have written elsewhere, just as experienced counsel are ever anxious to discover the judge’s mind, so too are jurors: R. v. Bisson, [1997] R.J.Q. 286 (C.A.), at p. 323, dissent affirmed, [1998] 1 S.C.R. 306. 

[87]           And they find the judge’s mind in the judge’s words.  When a trial judge repeats without correction an assertion by counsel that is erroneous in law, jurors, understandably, will find in the judge’s words a tacit approval of the proposition erroneously advanced by counsel.

[88]           It has long been recognized that jurors should be presumed to act in accordance with the judge’s instructions as given and not on what the judge may have intended them to convey:

[I]t is not what the Judge intended but what his words as uttered would convey to the minds of the jury which is the decisive matter. Even if the matter were evenly balanced, . . . and the language used were merely just as capable of the one meaning as the other, the position would be that the jury would be as likely to take the words in the sense in which it was forbidden to use them as in the innocuous sense and in such circumstances I think the error would be fatal. 

(R. v. Gallagher (1922), 63 D.L.R. 629 (Alta. C.A.), at p. 630, per Stuart J.A., cited with approval by this Court in Bigaouette v. The King, [1927] S.C.R. 112, at p. 114; Latour v. The King, [1951] S.C.R. 19, at p. 24.)

[89]           Justice LeBel expresses reservations concerning the rule that any ambiguity in a judge’s charge must necessarily be resolved in favour of the accused.  According to my colleague, this rule “seems to be based on the strict constructionist approach to interpreting penal legislation that developed in the eighteenth century, when criminal law sanctions were especially severe” (para. 38), but is today a “principle of last resort that does not supersede a purposive and contextual approach to interpretation” (para. 38). 

[90]           With respect, we are not concerned in this case with the contemporary relevance of the long-established rule that ambiguous statutes should be interpreted in favour of the accused.  That rule was recently reaffirmed by this Court in R. v. C.D., 2005 SCC 78, [2005] 3 S.C.R. 668, at para. 50 (aff’g R. v. McIntosh, [1995] 1 S.C.R. 686, at para. 29).  Our concern, rather, is with a charge to the jury that left it open to the jurors to draw an impermissible inference. In my view, the judge’s instruction was plainly erroneous in law, rather than “confus[ing]” (LeBel J., at para. 34).  But even if it were merely “confusing”, any uncertainty as to its meaning and effect would surely have to be resolved in the accused’s favour —  not in favour of the Crown. 

                                                                            VI

[91]           Finally, a brief comment on Justice LeBel’s discussion of the simultaneous translation at the appellant’s trial, which was conducted in English and Inuktitut.

[92]           Justice LeBel finds that some of the “confusion” surrounding the trial judge’s concluding statement on intent “might be explained in part by the potential for transcription difficulties at trial” (para. 34).  My colleague considers that “[i]n the case of a trial conducted in two languages, the natural breaks between topics may not be as clear as usual, given the constant interruptions required for translation” (para. 34). 

[93]           I agree that transcripts do not always record fully or accurately everything that in fact was said.  Appellate courts must nonetheless rely on the record as they have it.  Where the trial record is limited to transcripts, appellate review cannot proceed on any other basis.

[94]           Those of us who have conducted or participated in bilingual trials know from experience that interpreted proceedings invite closer scrutiny to ensure the integrity of the transcripts.  In the absence of a factual foundation, however, appellate courts cannot excuse errors disclosed by the record on the speculative ground of its possible imperfections. 

[95]           On the materials before us, nothing suggests to me that the erroneous instructions of the trial judge in this case are a function of mis-communication arising from the bilingual proceedings at trial, or the misplacement of certain paragraphs in the transcript.

VII

[96]           I end as I began.

[97]           The only real issue at trial was whether the appellant had acted with the requisite intent for murder.  In this Court, the decisive question is whether the trial judge misdirected the jury in that regard.  For the reasons given, and with great respect, I believe that he did.

[98]           Though they divided as to the result, all three judges in the Court of Appeal agreed that the judge’s charge had indeed invited the jury to consider the appellant’s post-offence conduct in deciding whether he was guilty of murder or manslaughter: see Watson J.A., for the majority, at paras. 103-4 and 108-9; Martin J.A., dissenting, at paras. 122-25. 

[99]           Watson J.A. concluded as follows:

While the trial judge should have refrained from putting this position [regarding the appellant’s post-offence conduct] to the jury, I am not persuaded that a substantial wrong or miscarriage of justice occurred. [para. 109] 

[100]       I note in passing that Watson J.A., having found that the trial judge had erred in law, adopted the wrong legal test in applying the curative proviso. Once legal error was established, the burden was on the Crown to persuade the court that no substantial wrong or miscarriage of justice had occurred.  The appellant, having established error, was not bound to establish the contrary. 

[101]       In my view, the Crown has not discharged that burden on this appeal.  The trial judge’s erroneous instruction cannot be characterized as “harmless” or “having no impact on the verdict”: see Khan, at para. 26.  Nor can the evidence pointing to the appellant’s guilt of murder, as opposed to manslaughter, be described as “so overwhelming that any other verdict but a conviction [for murder] would be impossible”: Khan, at para. 31.  On this branch of the test, we must bear in mind not only the appellant’s evidence that he never intended to shoot Cst. Seewald, but also the evidence of the Crown’s own witness as to the potential effect of pepper spray on the appellant’s mental state, and the fact that the shooting occurred in the course of a struggle during which both the constable and the appellant had both hands on the weapon.

[102]       In R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239, the Court emphasized the very high threshold that the “overwhelming” standard imports.  Justice Deschamps, writing for the majority, explained at para. 82 that the “overwhelming standard” “is a substantially higher one than the requirement that the Crown prove its case ‘beyond a reasonable doubt’ at trial”.  As Justice Deschamps noted, this “higher standard” reflects the difficulties that appellate courts face when considering “retroactively the effect that, for example, excluding certain evidence could reasonably have had on the outcome”.  This will particularly be the case for jury trials where “no detailed findings of fact will have been made” (para. 82). 

[103]       In the result, I would allow the appeal, set aside the appellant’s conviction, and order a new trial.

Appeal dismissed, Binnie and Fish JJ. dissenting.

Solicitors for the appellant:  Beresh Cunningham Aloneissi O’Neill Hurley, Edmonton.

Solicitor for the respondent:  Public Prosecution Service of Canada, Edmonton.