R. v. Jacquard, [1997] 1 SCR 314

R. v. Jacquard, [1997] 1 S.C.R. 314

Clayton Otis Jacquard Appellant

v.

Her Majesty The Queen                                                                   Respondent

Indexed as:  R. v. Jacquard

File No.:  24660.

1996:  October 10; 1997:  February 20.

Present:  Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory and Major JJ.

on appeal from the court of appeal for nova scotia

Criminal law ‑‑ Trial ‑‑ Charge to jury ‑‑ Mental disorder ‑‑ Murder ‑‑ Trial judge canvassing accused’s mental disorder evidence at length when discussing insanity defence ‑‑ Whether trial judge erred in simply referring to this evidence when addressing “planning and deliberation” element of first degree murder ‑‑ Whether jury properly charged on how accused’s mental disorder evidence applied to issues of “planning and deliberation”and “intent”.

Criminal law ‑‑ Trial ‑‑ Charge to jury ‑‑ Mental disorder ‑‑ Murder ‑‑ Trial judge relating accused’s mental disorder evidence to issue of “intention to commit murder”as part of his instructions regarding other offences and not earlier when issue arose ‑‑ Whether trial judge’s instructions on intent adequate.

Criminal law ‑‑ Trial ‑‑ Charge to jury ‑‑ Consciousness of guilt ‑‑ Accused charged with first degree murder ‑‑ Murder weapon found by police hidden under skateboard ramp with no fingerprints on it ‑‑ Accused admitting actus reus of offence ‑‑ Whether trial judge properly instructed jury on inferences to be drawn from accused’s concealment of murder weapon ‑‑ If not, whether curative proviso applicable ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1) (b)(iii).

Criminal law ‑‑ Trial ‑‑ Charge to jury ‑‑ Approach to be adopted by appellate courts when reviewing charges.

The accused was charged with first degree murder for the killing of his stepfather and with attempted murder for the shooting of his stepfather’s companion.  Two days after the incident, the weapon used by the accused was found by the police underneath a skateboard ramp and free of any fingerprints.  At trial, the accused admitted that he had fired the gun shots that caused the death of his stepfather, but pleaded not guilty on the grounds that (1) he was not criminally responsible for his act by virtue of his mental disorder under s. 16  of the Criminal Code , and (2) he lacked the requisite intent to kill his stepfather.  Defence psychiatrists testified that the accused suffered from a mental disorder at the relevant time, as a result of which he neither understood the nature or quality of his acts nor was capable of forming the intent to carry them out.   In his lengthy charge to the jury, the trial judge reviewed extensively the evidence of the accused’s mental disorder as it related to his s. 16 defence.  When subsequently discussing the issue of  “planning and deliberation”, the trial judge chose not to repeat himself,  indicating to the jury that “[i]n considering whether the murder was planned and deliberate you should consider all . . . the circumstances and all the evidence”.   The jury convicted the accused.  On appeal from his conviction for first degree murder, the accused contended that the trial judge’s instructions did not make it clear to the jury that the burden of proof on the issues of intent and “planning and deliberation” was on the Crown, and that the evidence relating to the accused’s mental disorder ought to be reconsidered in relation to those issues.  The accused also submitted that the trial judge misdirected the jury with respect to “consciousness of guilt” when he commented to them that the fact that an accused tries to hide or destroy evidence can be indicative of “consciousness of guilt”.  The Court of Appeal dismissed the accused’s appeal.

Held (Sopinka, Cory and Major JJ. dissenting):  The appeal should be dismissed.

Per Lamer C.J. and La Forest, L’Heureux‑Dubé and Gonthier JJ.:  As long as an appellate court, when looking at a trial judge’s charge to the jury as a whole, concludes that the jury was left with a sufficient understanding of the facts as they relate to the relevant issues, the charge is proper.  Here,  the trial judge thoroughly canvassed the evidence of the accused’s mental disorder when he discussed the s. 16 defence and he was not required to restate this evidence  when addressing the “planned and deliberate” issue.  By directing the jury to reconsider all of the circumstances and evidence, he fulfilled his obligation to relate the essential evidence of the accused’s mental disorder to that issue.  As well, even though the trial judge did not relate the mental disorder evidence to the issue of intention when the issue arose, but only later as part of his instructions regarding manslaughter and attempted murder,  his charge read  in its entirety made it clear to the jury, prior to its deliberations, that intention could be negatived by the evidence of the accused’s mental disorder.  While this aspect of the charge may not have been perfect, it was proper and fair.

The jury was properly instructed on how the mental disorder evidence applied  to each live legal issues.   In his charge, the trial judge clearly indicated  that the Crown had the burden of proving all the elements of first degree murder, including “planning and deliberation”, beyond a reasonable doubt, and that this was a different burden from that imposed on the accused under the s. 16 defence.  The jurors also fully understood that even if they concluded that the accused had not adequately established a s. 16 defence, the other defences were still open.  The trial judge did not tell the jury to disregard the evidence of mental disorder if the s. 16 defence was not proven.  In fact, he expressly instructed otherwise.   Further,  a trial judge need not instruct a jury on the finer distinctions of the manner in which an accused’s mental incapacity can undermine his capacity to intend as opposed to his capacity to plan and deliberate.  It is sufficient if his instructions, when read as a whole, make the jury aware that the evidence of the accused’s mental disorder needs to be considered on each issue, and do not mislead the jury into thinking that a finding of planning and deliberation necessarily follows from a finding of intention.  In this case, the jury was properly instructed on the meaning, scope and effect of “planned and deliberate”.

In reviewing jury charges, appellate courts must adopt a functional approach.  The purpose of such review is to ensure that juries are properly ‑‑ not perfectly ‑‑ instructed.  When a functional approach is applied in the greater context of the accused’s trial, there is added reason to conclude that the jury was properly instructed.  First, the “planned and deliberate” issue was not expressly raised by the accused as a live issue at trial,  which  helps explain why the trial judge’s directions on that issue may have been shorter and less elaborate than on others. Second, the Crown adduced some evidence on the subject of “planning and deliberation”, casting doubt on the accused’s submission that his capacity to plan and deliberate was not on the jury’s mind. Third, the defence’s failure to comment on the alleged misdirection following the jury charge  says something about both the overall accuracy of the jury instructions and the seriousness of the alleged misdirection.  Finally, this is not a case about misdirection.

Evidence of an accused’s flight from a crime scene or his concealment of a piece of evidence may give rise to an inference of consciousness of guilt, and a trial judge should instruct the jury accordingly.  But where, as here, the accused has admitted the actus reus of the offence, the trial judge must be more circumspect.  Since neither the accused’s presence at the scene of the killing nor his physical responsibility for the shooting was at issue at the trial,  the evidence that he hid the murder weapon and may have cleaned it of his fingerprints  had no probative value in relation to those aspects of the case.  The alleged attempt to hide the weapon and to destroy evidence, however, was relevant circumstantial evidence for the jury to consider in evaluating the accused’s s. 16 defence.  Evidence of concealment or flight may not speak to a particular level of offence, but it certainly has some bearing on whether the accused was capable of appreciating that what he had done was wrong.  Accordingly, the trial judge erred, not by instructing the jury to consider consciousness of guilt, because such an inference was clearly relevant, but by saying that the evidence in question was “one piece of evidence that you can make use of in deciding whether the accused is guilty or not guilty or not criminal[ly] responsible by reason of mental disorder”.  This language must be said to have been ambiguous enough to have had at least the potential to suggest that the trial judge was making an improper connection between the accused’s alleged concealment of the murder weapon and a particular offence.

Notwithstanding the trial judge’s erroneous “consciousness of guilt” instructions, no substantial wrong or miscarriage of justice occurred in this case and it is thus appropriate to apply s. 686(1)(b)(iii) of the Code.  The trial judge’s error was not in alluding to “consciousness of guilt” but in failing to limit its applicability to the s. 16 issue.  This error aside, the charge was fair and balanced and avoided making explicit comment on the propriety of the inferences available to the jury.   No reasonable juror would have been motivated to reach a different verdict on the basis of this minor error.  The jury would have known that there is nothing inherent in the bare act of hiding a weapon or wiping it of its fingerprints that suggests a particular level of offence.  Moreover, this is not a case of compounded mistakes.  Consciousness of guilt was a single error, a small aspect of the Crown’s case, and a minor component of the incriminating evidence.

Per Sopinka, Cory and Major JJ. (dissenting):  While there is agreement with almost all of the Chief Justice’s reasons and recommendations, his conclusion that the trial judge’s instructions to the jury on first degree murder were adequate cannot be accepted.  The trial judge’s instructions on  the planning and deliberation element of first degree murder  did not refer to the evidence pertaining to mental illness and the possible effect it might have on the accused’s ability to plan and deliberate upon the killing of the victim.   A simple reference to consider all the evidence was insufficient.  Although it was unnecessary for the trial judge to review the evidence as to mental illness again, a specific reference should have been made to it during his explanation of planning and deliberation.  Such instructions were an essential element of this charge.

Per Sopinka and Major JJ. (dissenting):  It is the obligation of a trial judge to relate evidence that is crucial to the defence to the issues.  The review of the evidence need not be extensive.  A reference back to evidence previously reviewed is sufficient provided it is clear that the jury will be under no misapprehension as to the evidence to which the reference back relates.  Moreover, if it would not be apparent to lay persons how particular evidence will assist in resolving an issue, some explanation is required. Here,  the trial judge fully explained the relevance and application of the psychiatric evidence to the issue of mental disorder under s. 16  of the Criminal Code .  He also  specifically referred to this evidence in relation to other issues but he did not do so in relation to the charge on planning and deliberation.  The jury might well have taken from this that the mental disorder evidence and the psychiatric evidence in particular were only relevant in respect of those issues to which a specific reference was made.  Furthermore, a simple reference may not have been adequate in this case since it is uncertain that a jury, without a proper instruction,  would know how the psychiatric evidence, couched in terms of s. 16, would apply to planning and deliberation.

Cases Cited

By Lamer C.J.

Applied:  R. v. Wallen, [1990] 1 S.C.R. 827; distinguished:  More v. The Queen, [1963] S.C.R. 522; R. v. Allard (1990), 57 C.C.C. (3d) 397; referred to:  R. v. McColeman (1991), 11 W.A.C. 128; John v. The Queen, [1971] S.C.R. 781; Cluett v. The Queen, [1985] 2 S.C.R. 216; Azoulay v. The Queen, [1952] 2 S.C.R. 495; McMartin v. The Queen, [1964] S.C.R. 484; R. v. Mitchell, [1964] S.C.R. 471; R. v. Kirkby (1985), 47 C.R. (3d) 97; R. v. Reynolds (1978), 22 O.R. (2d) 353; R. v. Aalders, [1993] 2 S.C.R. 482; R. v. Smith (1986), 71 N.S.R. (2d) 229; R. v. Palmer (1986), 12 O.A.C. 181; R. v. Arcangioli, [1994] 1 S.C.R. 129; Thériault v. The Queen, [1981] 1 S.C.R. 336; R. v. Marinaro, [1996] 1 S.C.R. 462, rev’g (1994), 95 C.C.C. (3d) 74; R. v. Jenkins (1996), 29 O.R. (3d) 30; R. v. Wiltse (1994), 19 O.R. (3d) 379; R. v. Charlette (1992), 83 Man. R. (2d) 187; R. v. Murray (1994), 93 C.C.C. (3d) 70; R. v. Bob (1990), 78 C.R. (3d) 102; R. v. White (1996), 108 C.C.C. (3d) 1; Colpitts v. The Queen, [1965] S.C.R. 739.

By Cory J. (dissenting)

R. v. Mitchell, [1964] S.C.R. 471; R. v. Wallen, [1990] 1 S.C.R. 827; More v. The Queen, [1963] S.C.R. 522; R. v. Kirkby (1985), 47 C.R. (3d) 97; R. v. Markle, [1990] O.J. No. 2606 (QL).

By Sopinka J. (dissenting)

Azoulay v. The Queen, [1952] 2 S.C.R. 495; R. v. Brydon, [1995] 4 S.C.R. 253.

Statutes and Regulations Cited

Criminal Code , R.S.C., 1985, c. C‑46 , ss. 16  [rep. & sub. 1991, c. 43, s. 2], 231(2), 235(1), 239, 655, 686(1)(b)(iii) [am. 1991, c. 43, s. 9 (Sch., item 8)].

APPEAL from a judgment of the Nova Scotia Court of Appeal (1995), 138 N.S.R. (2d) 352, 394 A.P.R. 352, dismissing the accused’s appeal from his conviction for first degree murder.  Appeal dismissed, Sopinka, Cory and Major JJ. dissenting.

Joel E. Pink, Q.C., and Daniel G. Graham, for the appellant.

William D. Delaney, for the respondent.

//The Chief Justice//

The judgment of Lamer C.J. and La Forest, L’Heureux-Dubé and Gonthier JJ. was delivered by

1                                   The Chief Justice -- This appeal raises questions about the standard to which this Court should hold trial judges in charging juries.  It is undoubtedly important that jurors try the right facts according to the appropriate legal principles in each case.  However, we must ensure that the yardstick by which we measure the fitness of a trial judge’s directions to the jury does not become overly onerous.   We must strive to avoid the proliferation of very lengthy charges in which judges often quote large extracts from appellate decisions simply to safeguard verdicts from appeal.  Neither the Crown nor the accused benefits from a confused jury.  Indeed justice suffers. 

2                                   These comments are not meant to suggest that we sanction misdirected verdicts.  This Court has stated on repeated occasions that accused individuals are entitled to properly instructed juries.  There is, however, no requirement for perfectly instructed juries.  As I specifically indicated at the hearing of this case, a standard of perfection would render very few judges in Canada, including myself, capable of charging juries to the satisfaction of such a standard.

I.  Factual and Procedural Background

3                                   December 17, 1992 was a fateful day for at least three people in Yarmouth, Nova Scotia.  Alexander “Sandy” Hurlburt and his spouse Barbara Wilkinson went out for a special dinner in celebration of Ms. Wilkinson’s 27th birthday.  When they returned home, the appellant Clayton Jacquard, Mr. Hurlburt’s stepson from a previous relationship, was there to greet them.  This came as no surprise because, although he did not live with them,  Mr. Jacquard had spent the previous day and night at the couple’s home, sleeping on the living room sofa during the course of the night.

4                                      Soon after Ms. Wilkinson retired to her bedroom the night turned tragic. When she went to bed, she left her husband and the appellant playing cards and watching television in the living room.  The next thing Ms. Wilkinson recalled was sitting up in bed screaming, having been shot, and seeing the appellant standing at the bedroom door with a gun pointing at her.  After Ms. Wilkinson instinctively raised her hand to protect herself from further gunshot, the appellant fired once more and then left the room.  Ms. Wilkinson then crawled from her bedroom to the living room where she was able to phone her mother and sister and then await the arrival of the police. 

5                                   When the police arrived they found Ms. Wilkinson lying in the living room with serious shotgun wounds.  She would survive, although she sustained permanent disability to her leg, hip, hand and collarbone.  By contrast, the police found Mr. Hurlburt dead in a pool of blood in the front hall with fatal shotgun wounds to his back and chest. 

6                                   Later that evening, the police apprehended the appellant who had sought refuge at the house of a friend, Anthony Wallace.  The appellant had instructed Mr. Wallace to call the police so that the appellant could turn himself in.  Two days later, the Yarmouth and Area Ground Search and Rescue Team found the 12-gauge shotgun used by the appellant in the shooting, free of any fingerprints, underneath a skateboard ramp adjacent to the local gun club.  The appellant was charged with first degree murder and attempted murder contrary to ss. 235(1)  and 239  of the Criminal Code , R.S.C., 1985, c. C-46 .

7                                   At trial, the appellant filed an admission pursuant to s. 655  of the Criminal Code  in which he indicated  that he had fired the two gun shots that caused Mr. Hurlburt to die.  He pleaded not guilty to the charges, however, on the grounds that: (1) under s. 16  of the Criminal Code  he was not criminally responsible for his act because, at the time of the shooting he was suffering from a mental disorder that rendered him incapable of appreciating the nature or quality of the act or knowing that it was wrong; and (2) he lacked the requisite intent to kill Mr. Hurlburt.  Among other things, the appellant adduced the evidence of two psychiatrists who testified that, at the relevant time, the appellant suffered from Post Traumatic Stress Disorder, as a result of which he neither understood the nature or quality of  his acts nor was capable of forming the intent to carry them out.

8                                   At the conclusion of the parties’ respective cases, the trial judge gave his directions to the jury.  In the course of his lengthy 62-page 3-hour charge, the trial judge spent nearly 15 pages of text reviewing the evidence of the appellant’s mental disorder as it related to the first prong of his “not criminally responsible” s. 16 defence.  When subsequently discussing the issues of “planning and deliberation” (as required to substantiate a first degree murder conviction under s. 231(2)  of the Criminal Code ), the trial judge chose not to repeat himself.  He said:

In considering whether the murder was planned and deliberate you should consider all the evid  . . . all the circumstances and all the evidence.

On the subject of both the ingredient of intention and whether or not Mr. Jacquard was or was not criminally responsible by reason of a mental disorder, I have reviewed the evidence at great length, I can see no reason to repeat what I already said to you.

There were no objections to the jury instructions at that time. 

9                                   The jury convicted the appellant of both offences and he was sentenced to life imprisonment with no chance of parole for 25 years.  On appeal of the first degree murder conviction, the appellant found two aspects of the jury charge objectionable.   First, he contended that the trial judge’s instructions did not make it clear to the jury that the burden of proof on the issues of intent and “planning and deliberation” was on the Crown, and that the evidence relating to the appellant’s mental disorder ought to be reconsidered in relation to those issues.  Second, the appellant submitted that the trial judge misdirected the jury with respect to “consciousness of guilt”.  He complained that the trial judge not only alerted the jury to the fact that the shotgun had been hidden and that it was devoid of fingerprints, he then commented to them that the fact that an accused person tries to hide or destroy evidence can be indicative of “consciousness of guilt”. 

10                               The Nova Scotia Court of Appeal (per Hallett, Matthews and Chipman JJ.A.) dismissed the appeal for the reasons given by Chipman J.A.:  (1995), 138 N.S.R. (2d) 352, 394 A.P.R. 352.  On the first issue, the Court of Appeal held that although the trial judge could have been more explicit, it was reasonable to conclude from a thorough reading of the charge as a whole, that the jury must have understood that the medical evidence of his mental state was relevant to its determination of the planning and deliberation issue, which the trial judge had properly and sufficiently defined.  On the second issue, the Court of Appeal held that the jury was entitled not only to consider that the shotgun had been hidden devoid of any fingerprints, but also to make the inference of consciousness of guilt.   Accordingly, neither alleged shortcoming in the jury charge constituted a reversible error.

11                               On April 11, 1995, the appellant filed a notice of application for leave to appeal to this Court.  The application was heard by a panel of La Forest, Cory and Major JJ.  On October 12, 1995 leave to appeal was granted affirming the need to canvass the following two issues raised by the appellant:

1.                Did the Nova Scotia Court of Appeal err in holding that the Trial Judge had adequately instructed the jury on the essential elements of the various issues and related material evidence to those issues and in particular on the issue of planning and deliberation?

2.                Did the Nova Scotia Court of Appeal err in affirming the instructions of the Trial Judge to the jury that the evidence could support the inference that the Applicant wiped his fingerprints from the shotgun and the further inference that could be drawn from such conduct, namely, that of consciousness of guilt?

For the reasons outlined below, I am of the opinion that we should dismiss the appeal on both issues.

II.  Relevant Statutory Provisions

12                               Criminal Code , R.S.C., 1985, c. C-46 

16.  (1) No person is criminally responsible for an act committed or an  omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

231. . . .

(2) Murder is first degree murder when it is planned and deliberate.

235.  (1) Every one who commits first degree murder or second degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.

239.    Everyone who attempts by any means to commit murder is guilty of an indictable offence and liable to imprisonment for life.

655.  Where an accused is on trial for an indictable offence, he or his counsel may admit any fact alleged against him for the purpose of dispensing with proof thereof.

III.  Analysis

A.  The Mental Disorder Evidence

(1)  The need to restate the evidence in relation to each issue

13                               It has been suggested that the trial judge should have restated the evidence of the appellant’s mental disorder in its entirety and expressly told the jury how it should reconsider that evidence in relation to the other live legal issues on appeal, particularly the Crown’s burden of proving that the appellant planned and deliberated over Sandy Hurlburt’s murder.  I am reluctant, however, to conclude that a 62-page 3-hour jury charge would have been improved had it been any longer.  I cannot emphasize enough that the role of a trial judge in charging the jury is to decant and simplify. 

14                               Courts have recognized that there is no need to state evidence twice where once will do.  See R. v. McColeman (1991), 11 W.A.C. 128 (B.C.C.A.).  In McColeman, McEachern C.J.B.C. stated at p. 137:

It is not the law, as I understand it, that a judge is required to review  relevant evidence more than once even though it may relate to more than one issue, although it is often useful to relate important evidence to the specific issues being considered. . . .   While concern about prolixity can never be a consideration if fairness requires it, I am naturally reluctant to require trial judges to say things twice if once will suffice.

In many cases, a trial judge  need only review relevant evidence once and has no duty to review the evidence in a case in relation to every essential issue.  See John v. The Queen, [1971] S.C.R. 781, Cluett v. The Queen, [1985] 2 S.C.R. 216.  As long as an appellate court, when looking at the trial judge’s charge to the jury as a whole, concludes that the jury was left with a sufficient understanding of the facts as they relate to the relevant issues, the charge is proper.  See Cluett, supra, at p. 231.  In Azoulay v. The Queen, [1952] 2 S.C.R. 495, Taschereau J. stated at pp. 497-98:

The rule which has been laid down, and consistently followed is that in a jury trial, the presiding judge must, except in rare cases where it would be needless to do so, review the substantial parts of the evidence, and give the jury the theory of the defence, so that they may appreciate the value and effect of that evidence, and how the law is to be applied to the facts as they find them.

15                               In this case, the trial judge thoroughly canvassed the evidence of the appellant’s mental disorder when he discussed the s. 16 defence.  Later, when addressing the “planned and deliberate” issue, he decided not to repeat what he had already gone to great lengths to discuss.  He said:

In considering whether the murder was planned and deliberate you should consider all the evid . . . all the circumstances and all the evidence.

On the subject of both the ingredient of intention and whether or not Mr. Jacquard was or was not criminally responsible by reason of a mental disorder, I have reviewed the evidence at great length, I can see no reason to repeat what I already said to you.

Later he summarized:

I noted during the trial you paid strict attention to the witnesses.  I asked you to consider the facts . . . I asked you, considering the facts, you accepted from the evidence and taking into consideration the legal meaning of planned or  deliberate as I have explained them to you, did Mr. Jacquard plan to kill Mr. Hurlburt and, if so, did he do it deliberately.  I remind you, murder cannot be first degree murder unless it was both planned and deliberate.  Again I repeat.  I remind you, murder cannot be first degree murder unless it was both planned and deliberate.

This was not the only instance in which the trial judge simply referred the jury to the mental disorder evidence.  He made the same choice when discussing other issues.   For example, after spending nearly 15 pages of text relating the evidence of the accused’s mental disorder to the first aspect of the s. 16 defence, he refrained from repeating the evidence all over again in relation to the second aspect of the s. 16 defence.  The trial judge said:

While considering whether or not Mr. Jacquard knew at the time of the offence his acts were wrong, I direct your mind to the evidence I have just discussed with you as to whether or not Mr. Jacquard was capable of appreciating the nature and quality of his acts.

Again, when instructing the jury on the attempted murder charge arising out of the shooting of Ms. Wilkinson, he directed:

                          To find the accused guilty of attempted murder you must be satisfied beyond a reasonable doubt the accused intended to kill Barbara Marie Wilkinson.  That intent must be a specific intent to kill her, not to wound her, disfigure her or maim her.  If you determine Mr. Jacquard was not suffering from a mental disorder that rendered him incapable of appreciating the nature and quality of his acts or of knowing they were wrong I direct you still to consider the evidence of mental disorder along with all the other evidence to determine whether or not the accused had the specific intent to commit the offence of attempted murder.

16                               In my opinion, the trial judge was entitled not to restate this evidence of the appellant’s mental disorder each time he addressed an issue in respect of which that evidence was relevant. By directing the jury to reconsider all of the circumstances and evidence, he fulfilled his obligation to relate the essential evidence of the appellant’s mental disorder as it related to the “planned and deliberate” issue.  Indeed I resist the conclusion that restating the evidence would have improved the charge.  In many cases restating the evidence only confounds the issues, making the charge less perfect and not more so.

(2)  The need to refer to the evidence at the appropriate time

17                               Although not emphasized in his factum, the appellant’s first argument at the oral hearing was that the trial judge failed to adequately convey to the jury that evidence of the appellant’s mental disorder was relevant to determining whether the appellant intended to cause the death of Mr. Hurlburt. 

18                               It is true that the trial judge introduced the subject of intention in a general way.  He said:

In the end you will have to consider all the surrounding circumstances including what Mr. Jacquard, the accused, said and did, in order to decide whether the Crown has proven that Clayton Jacquard did, in fact, mean to cause the death of Mr. Hurlburt.

However, on at least two occasions later in his charge, the trial judge was clear and unequivocal in his instructions.  First, when discussing intention and the included offence of manslaughter, he stated:

Where Mr. Jacquard shot and killed Mr. Hurlburt, which is an unlawful act, but you are not satisfied beyond a reasonable doubt he had the specific intent to commit murder, then you will find the accused not guilty of murder but guilty of manslaughter.  I also tell you that after considering whether Mr. Jacquard was not criminally responsible because of a mental disorder, as I asked you to determine first in your deliberations, if you are not satisfied on a balance of probabilities that Mr. Jacquard suffered from a mental disorder to the extent necessary for the special verdict of not criminally responsible on account of a mental disorder, I direct you to still consider the evidence of mental disorder along with the other evidence in determining whether or not Mr. Jacquard had the specific intent to commit the offence of murder.  I direct your attention to consider all the evidence including the evidence of Doctor Rosenberg, Doctor Bradford and Doctor Akhtar.

Second, he later summarized in the context of attempted murder:

I direct your attention to consider all the evidence, including the evidence of the three psychiatrists, particularly where they differed in their opinions, as to whether Mr. Jacquard, at the time of the offence, had the specific intent to commit murder or attempted murder.

19                               The appellant argues that this was not enough -- it was insufficient, he says, for the trial judge to direct the jury in this ex post facto manner.  He submits that the trial judge was required to relate the mental disorder evidence to the issue of intention when the issue arose, and not later, as part of his instructions regarding  manslaughter and attempted murder.  

20                               I find this position too onerous.  Even if I were to conclude that the jury might initially have been left with the impression that the mental disorder evidence was not relevant to the topic of intention, the trial judge’s subsequent comments resolved any alleged uncertainty.  You must look at a jury charge in its entirety.  The trial judge made it absolutely clear to the jury, prior to its deliberations, that intention could be negatived by the evidence of the accused’s mental disorder.  I thus fail to see how he was guilty of misdirection.  Although this aspect of the charge may not have been  perfect, it was certainly proper and fair.

(3)   The need to properly charge the jury on how the mental disorder evidence applied to the remaining legal issues

21                               These initial conclusions do not end the inquiry.  The appellant is not simply arguing that the evidence of his mental disorder ought to have been restated at each point at which it was relevant -- be it in the context of “intention” or “planning and deliberation”.  The appellant submits that, even if the jury understood that the evidence was relevant to each issue, it did not understand how it applied.  In other words, the jury was not properly instructed on the legal issues themselves. 

22      The appellant argues that the jury did not properly understand that, even if it fell short of establishing a s. 16 defence, or even if it failed to negate proof of intention, evidence of the appellant’s mental disorder may still raise a reasonable doubt as to whether or not the accused had the capacity to plan and deliberate and did in fact plan and deliberate.  See, e.g., McMartin v. The Queen, [1964] S.C.R. 484; More v. The Queen, [1963] S.C.R. 522; R. v. Mitchell, [1964] S.C.R. 471; R. v. Kirkby (1985), 47 C.R. (3d) 97 (Ont. C.A.); R. v. Reynolds (1978), 22 O.R. (2d) 353 (C.A.).  It is alleged that the jury did not understand the meaning of “planned and deliberate” and did not recognize that it is a separate issue with a distinct burden of proof on the Crown.  It is also alleged that the trial judge did not adequately convey to the jury that a mental disorder could conceivably negative the elements of planning and deliberation without negativing proof that an accused intended to kill.

23                               I am not persuaded by these arguments either.  The trial judge made it clear that the Crown had the burden to prove planning and deliberation beyond a reasonable doubt, and that this was a different burden from that imposed on the accused under the s. 16 defence.  At the outset of his charge, the trial judge discussed in considerable detail the burden of proof, reminding the jury that “[f]rom start to finish the burden is upon the Crown to prove beyond a reasonable doubt the guilt of the accused on these charges.”  Later he said, “if you are satisfied that the Crown has proven each of the elements beyond a reasonable doubt your job is not finished because you must go on to decide whether or not the Crown has proved first degree murder” (i.e., planning and deliberation under s. 231(2)).  Still later he explained: “Therefore you must be satisfied beyond a reasonable doubt that the alleged murder was planned and deliberate before you can return a verdict of guilty on the charge of first degree murder.”  These passages should be contrasted with the trial judge’s instructions under the s. 16 defence.  After reading s. 16 to the jury he said:

This means that you must presume Mr. Jacquard was not so mentally disordered as to be exempt from criminal responsibility at the time of the offence unless the contrary is proven.  Since Mr. Jacquard is alleging that he was mentally disordered at the time of the offence he has the burden or responsibility of proving the mental disorder defence.  He must prove mental disorder on a balance of probabilities.

There is a lesser standard of proof than proof . . . than beyond a reasonable doubt which I explained to you earlier.  If you are satisfied that it is more likely than not that Mr. Jacquard was mentally disordered to the extent of being incapable of appreciating the nature and quality of his act [sic] or of knowing that they were wrong at the time of the offence, you must return a verdict of not criminally responsible on account of a mental disorder.

24      I agree with Chipman J.A. that “the jury could not possibly have been confused with respect to the burden of proof being on the Crown beyond a reasonable doubt with respect to all of the elements of first degree murder.  The trial judge told the jury so in no uncertain terms” (p. 362).

25      There is also ample reason to conclude that the jurors fully understood that even if they concluded that the appellant did not adequately establish a defence under s. 16, the other defences were still very much open to consider. At the conclusion of his s. 16 instructions, the trial judge warned the jury:

If you find Mr. Jacquard did not suffer from a mental disorder that rendered him incapable of appreciating the nature and quality of his act [sic] or of knowing that they were wrong I direct that you must then proceed to determine the remaining issues in count number one.

The trial judge then discussed the elements of count number one and later outlined what was incumbent upon the Crown to prove:

I tell you as a matter of law, the Crown will not have discharged that burden of proof unless you are satisfied beyond a reasonable doubt that the only reasonable inference to be drawn from the proven facts is that the accused, 1) intended to kill Sandy Hurlburt or to cause him bodily harm that he knew was likely to cause his death and was reckless whether death ensued or not; 2) that the murder of Sandy Hurlburt was planned and deliberate; and 3)  the intention of the accused was to kill Barbara Marie Wilkinson. 

Unlike a case such as R. v. Allard (1990), 57 C.C.C. (3d) 397 (Que. C.A.), the trial judge did not tell the jurors to disregard the evidence of the accused’s mental disorder once they got passed the s. 16 issue.  In fact, he repeatedly told the jury otherwise -- to consider all of the available evidence on the remaining points.

26                               The appellant’s submission that the jury was unaware of the meaning of “planned and deliberate” is no more convincing.  The trial judge introduced these terms by stating that “planned and deliberate have different meanings” and proceeded to define them in a manner perfectly consistent with this Court’s prior rulings.  See R. v. Aalders, [1993] 2 S.C.R. 482, More, supra.   See also R. v. Smith (1986), 71 N.S.R. (2d) 229 (C.A.), R. v. Palmer (1986), 12 O.A.C. 181 (C.A.).   He defined something that is  “planned” as something that is arranged beforehand on the basis of a “design” or “scheme”.   He defined something that is “deliberate” as something that is “considered” and “carefully thought out” rather than “hasty”, “rash”, or “impulsive”.  He said, “[a] person commits deliberate murder when he or she thinks about the consequences”, i.e., when he or she contemplates the advantages and disadvantages of committing the murder. 

27                               It is true that some factor, such as a mental disorder, that is insufficient to negative the charge that the accused intended to kill, may nevertheless be sufficient to negative the elements of planning and deliberation.  This is because one can intend to kill and yet be impulsive rather than considered in doing so.  It requires less mental capacity simply to intend than it does to plan and deliberate.  

28                               In R. v. Wallen, [1990] 1 S.C.R. 827, the Court addressed, inter alia, whether this distinction had to be explained to the jury in the context of the defence of intoxication.  The five-judge panel unanimously agreed that the trial judge was obliged to direct the jury to consider the effects of intoxication separately, in relation to each aspect of the accused’s defence.   However, a three-judge majority (from which I dissented) concluded that, while it is the better course to follow, it is not an absolute rule that the jury must be expressly told of the distinction between the degree of intoxication necessary to negative intent to kill and that necessary to negative planning and deliberation.  Put differently, the majority held that a trial judge need not instruct the jury on the finer distinctions of the manner in which an accused’s mental incapacity can undermine his or her capacity to intend as opposed to his or her capacity to plan and deliberate. 

29                               I have no present intention to re-open that discussion.  Nor do I have any desire to develop a legal distinction -- which would almost certainly be tenuous -- between the effects of intoxication as opposed to the  effects of a mental disorder in this context.   Although the s. 16 “not criminally responsible” defence is altogether different from the defence of intoxication, planning and deliberation involve more complex and stable mental processes than the mere intention to kill, and this fact does not change from one form of mental impairment to another.    

30                               Therefore, although the same logic applies in the context of mental disorders just as it does in the context of intoxication, this Court said in Wallen that the trial judge need not be explicit about the subtle differences between the manner in which evidence of a mental disorder can negative “intention” versus “planning and deliberation”.  It is sufficient if his instructions, when read as a whole, make the jury aware that the evidence of the appellant’s mental disorder needs to be considered on each issue, and do not mislead the jury into thinking that a finding of planning and deliberation necessarily follows from a finding of intention.  In my opinion, this is precisely what the trial judge did in this case. 

31                               There is no question that the trial judge treated the issue of planning and deliberation separately from all others and alerted the jury that the evidence of the appellant’s mental disorder was relevant to its determination.  Moreover, he indicated to the jury that neither “planning” nor “deliberation” is equivalent to “intentional”.  He told the jury that “a person can mean or intend to kill someone without having planned to kill the person”.  The effect of instructing the jury that the appellant could intend to do something without planning and deliberating is to make the jury understand that the appellant’s mental disorder could conceivably have undermined his capacity to plan and deliberate without undermining his capacity to intend. 

32                               Having read and reread the charge, I have no doubt that the jury was properly instructed on the meaning, scope, and effect of “planned and deliberate”.   Moreover,  I cannot emphasize enough that the right of an accused to a properly instructed jury does not equate with the right to a perfectly instructed jury.  An accused is entitled to a jury that understands how the evidence relates to the legal issues.  This demands a functional approach to the instructions that were given, not an idealized approach to those instructions that might have been given. Using such a functional approach, I find added support for the conclusion that the jurors were properly instructed in this case.  Let me explain. 

33                               First, we should not divorce the jury charge from the greater context of the trial.  As Chipman J.A. emphasized in his judgment for the Nova Scotia Court of Appeal, it is noteworthy that the “planned and deliberate” issue was not expressly raised by the appellant as a live issue at trial (at pp. 361-62).  The appellant did not question his experts on the capacity of the appellant to plan and deliberate.  Nor did defence counsel submit to the jury in argument that it was something they should consider.  Indeed the appellant indicated that he had two central arguments: (1) the appellant was not criminally responsible by virtue of his mental disorder under s. 16  of the Criminal Code ; and (2) the appellant did not intend or have the capacity to intend to murder Sandy Hurlburt.  This certainly does not relieve the Crown of its obligation to prove all of the elements of an offence beyond a reasonable doubt, but it does help to explain why the trial judge’s directions on the “planned and deliberate” issue may have been shorter and less elaborate than on others.  Planning and deliberation was not the focus of the defence.

34                               Second, despite the lack of focus on this matter by the defence, the Crown made it clear that the ability of the appellant to intend, plan, and deliberate was at issue.  In the middle of the Crown’s address to the jury, he said:

Now, there are a number of pieces of evidence that perhaps I haven’t touched on yet that bear on the issue of ah, of intent and the ability to plan [and] deliberate and whether or not he did, in fact, plan and deliberate with respect to the killing and I’ll briefly go through them as I have them listed.

Indeed the Crown cross-examined the appellant’s expert witnesses on the issue of planning and deliberation.  In particular, he put hypotheticals to them designed to get at the appellant’s capacity to plan and deliberate.  Hence, the Crown and Dr. Edwin Rosenberg had the following exchange: 

Q.   Sir, would you agree with me that the person I described in the hypothetical, was certainly capable of planning and deliberation?  Well, let’s forget the facts of the case or let’s forget the facts that you gave your opinion to Mr. Pink based on.  Assume these facts in the hypothetical that I’ve given you?

A.   Oh certainly, the way you describe it in your hypothetical, the individual was capable of planning.

Q.   He was also capable of considering the consequences of his acts, would you not agree?

A.   Yes.

Q.   And he was also capable of forming the specific intent to kill?

A.   Yes.

Later, the Crown confirmed:

Q.   That’s fairly basic, I think.  The facts that I put forth in my hypothetical show a person, as you said, is capable of planning and is also capable of exhibiting goal directed behaviour, that is, he sets out a goal and works on the various steps of how to get there, correct?

A.   Yes.

Similarly, the Crown had the following exchange with Dr. John Bradford on his cross-examination:

Q.   If one were planning to . . . if one suffered from post traumatic stress disorder, they’d still be capable of planning to do things and carrying those things out in some situation, as a generalization once again?

A.   Yes, as a generalization, yes.

In my opinion, the fact that the Crown directed evidence to the issue casts significant doubt on the appellant’s submission that the capacity of the appellant to plan and deliberate was not on the jury’s collective mind.

35                               Third, defence counsel failed to comment on the alleged misdirection following the jury charge.  At the close of the charge, both counsel were given the full opportunity to express any misgivings they may have had about its contents.  By way of response, they proposed a joint supplementary instruction to the judge which  outlined an algorithm of questions the jurors should go through in deciding the case.  The trial judge accepted the proposal and, with some modifications, submitted the list of questions to the jury.  At no point, however, did defence counsel object to the manner in which the trial judge charged the jury on the “planned and deliberate” issue. 

36                               Nor did defence counsel raise the issue prior to the jury charge at the informal pre-address conference that took place.  At that time, the Crown proposed, and defence counsel agreed, that the relevant sections of the Criminal Code  be submitted to the jury during its deliberations.  Significantly, although defence counsel objected to submitting the definitions of “planned and deliberate” along with the sections, he did not express any anticipatory concern that the “planned and deliberate” issue be handled in a specific manner.  We should not forget that the issue of planning and deliberation was fresh in defence counsel’s mind.  The alleged lack of planning and deliberation had formed the very basis of the appellant’s earlier failed motion for a directed verdict.

37                               To point this out is not to say that a  party waives its right of appeal on a jury charge misdirection by failing to raise the  issue contemporaneously with the making of the charge.   In R. v. Arcangioli, [1994] 1 S.C.R. 129, this Court made it quite clear that defence counsel’s failure to object to a jury charge is not determinative, at least in the context of the applicability of the Criminal Code ’s curative provision.   Although such a rule would act as a strong incentive for counsel to scrutinize the charge carefully and would inhibit counsel from deliberately failing to object to the charge as a matter of strategy, the Court has not lost sight of the fact that the jury charge is the responsibility of the trial judge and not defence counsel.  Such a rule might also unequivocally prejudice an accused’s right of appeal in cases where counsel is inexperienced with jury trials. 

38                               Nevertheless, defence counsel’s failure to comment at the trial is worthy of consideration.  In Thériault v. The Queen, [1981] 1 S.C.R. 336,  although I dissented on unrelated grounds, Dickson J. (as he then was) expressed the proper view at pp. 343-44:  “[a]lthough by no means determinative, it is not irrelevant that counsel for the accused did not comment, at the conclusion of the charge, upon the failure of the trial judge to direct the attention of the jury to the evidence”.  In my opinion, defence counsel’s failure to object to the charge says something about both the overall accuracy of the jury instructions and the seriousness of the alleged misdirection.

39                               Fourth, this is not a case about misdirection.   Contrary to the appellant’s submissions, this case is not like More, supra.   More was a capital murder case in which the accused called evidence of psychiatric experts who testified that he was suffering from severe psychosis at the time of the murder.  Instead of simply leaving the testimony of experts for the jury to consider, the trial judge read excerpts from evidence textbooks to the jury which stated that the testimony of experts is often considered to be of slight value and biased in favour of the party that calls them.  That was clearly a misdirection, because it undermined the essence of the accused’s  case, by telling the jury that they should give the medical evidence slight weight and little consideration.  The trial judge’s charge to the jury was tantamount to withdrawing the defence.

40                               Nor is this case like Allard, supra.  In Allard, the accused was charged with first degree murder in the poisoning death of her husband.  She argued in her defence that she suffered from a manic-depressive psychosis and had thus been unable to appreciate the consequences of her act.  The trial judge directed the jury to consider the accused’s insanity defence, but added that if the jury found that she had failed to establish her insanity on the balance of probabilities, they should “disregard that defence completely”.  The Quebec Court of Appeal considered this charge a misdirection.  If the defence of insanity failed, the jury was still required to consider her psychosis evidence as it related to the Crown’s burden of establishing intent beyond a reasonable doubt.  This is completely unlike the case at bar where the trial judge did not tell the jury to disregard the evidence of mental disorder if the s. 16 defence was not proven.  In fact, he expressly instructed otherwise. 

41                               Applying a functional approach to the jury instructions in the greater context of the appellant’s trial, I find that there is ample reason to conclude that the jury was properly instructed.  The jury was fully apprised of the meaning, scope and effect of the “planned and deliberate” requirement, and understood its responsibility to consider the evidence of the appellant’s mental state in determining whether  he had the capacity to “plan and deliberate” and whether he in fact did so.

B.  Consciousness of Guilt

42                               Under certain circumstances, the acts of an accused following a crime may provide a window to the accused’s culpability.  This sort of circumstantial evidence  may be used by the jury to infer what has been termed “consciousness of guilt”.  The most common inferences of this character are made from an accused’s flight from the scene of the crime.

43                               In this case, the trial judge thought that the jury could derive similar inferences from the hiding of the murder weapon and the fact that it was found without any latent traces of the appellant’s fingerprints.  At a fairly early stage in the jury charge the trial judge made the following observations:

In this trial there is some evidence that the accused attempted to hide or destroy evidence against him.  There is evidence the gun and the ammunition were hidden at the skateboard ramp.  There was also evidence the gun found at the skateboard ramp was devoid of fingerprints even though there is other evidence he shot from the gun during which time he would have handled it.  Evidence that an accused person tries to hide or destroy evidence can be evidence of consciousness of guilt.

The law recognizes that a guilty person will sometimes try to hide or destroy evidence in order to escape the consequences of his or her crime.  It is up to you to decide whether or not the conduct of the accused indicates consciousness of guilt.  You must of course be satisfied beyond a reasonable doubt that the accused did try to hide or destroy evidence before you may use this evidence of consciousness of guilt.  If you are not satisfied the accused tried to hide or destroy evidence then you must ignore the evidence of the alleged attempt.  If you are satisfied that the accused did try to hide or destroy evidence you must consider whether or not this attempt is evidence of consciousness of guilt.  Please remember that guilty knowledge is not the only reason someone might try to hide or destroy evidence.  For example, someone might try to hide or destroy evidence out of fear or for some reason that has nothing to do with guilty knowledge.  You should consider all the circumstances surrounding the alleged attempt to hide or destroy evidence when you decide whether or not the alleged attempt is evidence of consciousness of guilt.  Keep in mind that any inference you may draw to the effect that the accused attempted to hide or destroy evidence is not, by itself, sufficient to prove his guilt beyond a reasonable doubt.  It is just one piece of evidence that you can make use of in deciding whether the accused is guilty or not guilty or not criminal[ly] responsible by reason of a mental disorder.   [Emphasis added.]

44                               I respectfully disagree with the initial conclusions of Chipman J.A. that this instruction was completely proper.  In coming to this conclusion I need not consider whether the evidence supported the inference that the appellant wiped his fingerprints from the shotgun.  Even if this were supportable, which I think it was, the instruction was, in part, erroneous.

45                               Typically, an offender will flee the scene of a crime or conceal a piece of evidence to mask his or her involvement in the crime.  Thus, evidence of flight or concealment is usually led by the Crown to support the thesis that the accused was implicated in some way in the commission of the offence.  As a general rule, this is a natural inference to draw from such evidence and a trial judge should instruct the jury accordingly.  But where, as here, the accused has admitted the actus reus of the offence, the trial judge must be more circumspect.  The use to which evidence of consciousness of guilt can be put in such circumstances is more limited.  See  Arcangioli, supra; R. v. Marinaro, [1996] 1 S.C.R. 462, rev’g (1994), 95 C.C.C. (3d) 74 (Ont. C.A.); R. v. Wiltse (1994), 19 O.R. (3d) 379 (C.A.); R. v. Charlette (1992), 83 Man. R. (2d) 187 (C.A.);  R. v. Murray (1994), 93 C.C.C. (3d) 70 (Ont. C.A.); R. v. Bob (1990), 78 C.R. (3d) 102 (Ont. C.A.).

46                               In Arcangioli, the accused was charged with aggravated assault for his participation in a fight in which his combatant was stabbed.  At trial he admitted that he had committed common assault for punching the victim but denied stabbing him.  The trial judge nonetheless instructed the jury that the accused’s flight from the scene of the crime was evidence of consciousness of guilt and that it was “a factor to be considered in reaching their verdict” (p. 136).  This Court held that this constituted a misdirection.  Given his admission of guilt for common assault, the flight of the accused could not have been probative because, in the words of Major J. at p. 145, “the appellant’s flight was equally consistent with both common assault and aggravated assault, it could not be evidence of guilt of the latter”.  Major J. elaborated: “Any inference to be drawn from flight disappears when an [alternate] explanation for such flight is available”.

47      In Marinaro, the accused was charged with second degree murder in the killing of his friend.  Half an hour after the fatal altercation in which the accused claimed the deceased had first  attacked him with a knife, the accused returned to the scene of the crime where he moved the body, stole some goods, and disposed of the knife.  Initially, the accused lied to the police about his presence at the crime scene, but later admitted having stabbed the deceased and causing his death.  At trial, he relied upon the defences of self-defence and provocation.  In his dissenting judgment in the Court of Appeal, which was subsequently endorsed by this Court, Dubin C.J.O. held at p. 81 that once the accused admitted having caused the death of his friend, the evidence of consciousness of guilt “had very limited application”.  

48                               Similarly, in Charlette, the 17-year-old accused was charged with second-degree murder in the death of a two-year-old child who had last been seen in the company of the accused.  The trial judge instructed the jurors that they could infer consciousness of guilt from the accused’s flight from the area shortly after the infant’s death.  Twaddle J.A. for the Manitoba Court of Appeal held that this amounted to a misdirection.  Although flight could be used to infer that the accused was the perpetrator of the homicide, the accused’s consciousness of guilt could not assist the jury in deciding whether the homicide was murder or manslaughter.  His flight from the area was consistent with both offences and was not probative of one offence in particular.

49                               In this case, the appellant admitted that he was the individual who fired the shots that killed Sandy Hurlburt.  Thus, neither his presence at the scene of the killing nor his physical responsibility for shooting the gun was at issue at the trial.  There was no need, therefore, for the Crown to rely on evidence that he hid the murder weapon and may have cleaned it of his fingerprints in order to establish these elements of the offence.  That evidence, in other words, had no probative value in relation to those aspects of the case; it was, in effect, irrelevant to them.  

50                               However, unlike Arcangioli, Marinaro, or Charlette, the alleged attempt to hide the murder weapon and destroy evidence was relevant circumstantial evidence for the jury to consider in evaluating the appellant’s “not criminally responsible” s. 16 defence.   Evidence of concealment or flight may not speak to a particular level of offence, but it certainly has some bearing on whether the appellant was capable of appreciating that what he had done was wrong. Indeed, just as a party would be unlikely to hide a murder weapon or flee a crime scene if he or she was not responsible for the act, a person would be most unlikely to attempt to cover up his or her actions if there was no appreciation of the nature and quality of those actions or no understanding that they were wrong.  This sort of evidence clearly does have probative value in a case of this sort. 

51                               For this reason, I agree with Chipman J.A. that it was open to the jury to draw an inference from the fact that the shotgun and ammunition were removed from the crime scene and later found under the skateboard ramp, but only to the extent that it assisted the jury in understanding the effects of the alleged mental disorder on the appellant’s capacity to understand the nature and quality of his acts.  See, e.g., R. v. White (1996), 108 C.C.C. (3d) 1 (Ont. C.A.), at p. 19. 

52                               In this case, the trial judge erred, not by instructing the jury to consider consciousness of guilt, because such an inference was clearly relevant, but by saying that the evidence in question was “one piece of evidence that you can make use of in deciding whether the accused is guilty or not guilty or not criminal[ly] responsible by reason of a mental disorder” (emphasis added).   There is nothing in that language that explicitly links the evidence to a particular offence.  In all probability, the trial judge was simply instructing the jurors to consider the consciousness of guilt evidence in relation to the accused’s mental capacity to intend -- as distinct from its relevance to the s. 16 defence.  It is even possible to interpret the reference to “guilty or not guilty” to be connected to the reference to “not criminally responsible” -- perhaps “not guilty” and “not criminally responsible” were both intended by the trial judge to be understood as being modified by the phrase “by reason of mental disorder”.  

53                               However, the language must, I think, be said to have been ambiguous enough to have had at least the potential to suggest that the trial judge was making  an improper connection between the accused’s alleged concealment of the murder weapon and a particular offence, be it first degree murder, second degree murder, or manslaughter, and it was therefore an error for him to use it.  I must confess to some reluctance in reaching this conclusion, which resonates with a standard of perfection, of which I am avowedly wary.  However,  this Court stated at p. 145 in Arcangioli, that where an accused’s conduct is equally consistent with multiple offences, and the accused has admitted culpability for one or more of the offences, “a trial judge should instruct a jury that such evidence has no probative value with respect to any particular offence”.  For this reason, I feel compelled to conclude that the trial judge did err at law by failing to expressly warn the jury that the accused’s consciousness of guilt said nothing about the particular offence for which he may have been culpable. 

54                               Nonetheless, in view of the specific context of the facts of this case, and when reading the jury charge as a whole, I am of the firm view that the effect of the trial judge’s misstatement would not have been significant.  It is to this issue that my discussion now turns.

C.  Applying the Curative Provision

55                               Notwithstanding the trial judge’s erroneous “consciousness of guilt” instructions, I am of the opinion that no substantial wrong or miscarriage of justice occurred in this case.  Hence, in my view, it is appropriate in this instance for the Court to apply the curative provision in s. 686(1)(b)(iii) of the Criminal Code .  I reach this conclusion for four principal reasons.

56                               First, the trial judge’s “consciousness of guilt” instructions were tempered with caution.  The error aside, the charge was fair and balanced and avoided making explicit comment on the propriety of the inferences available to the jury.  See R. v. Jenkins (1996), 29 O.R. (3d) 30 (C.A.).  The trial judge  did not presume that the appellant had attempted to hide and destroy evidence, and he did not compel the jury to conclude that this was evidence of consciousness of guilt.  Instead, he emphasized that it was for the jury to determine whether the appellant had actually attempted to hide or destroy evidence.  He also re-emphasized that whether this amounted to evidence of consciousness of guilt was for them to consider.  He cautioned: “Please remember that guilty knowledge is not the only reason someone might try to hide or destroy evidence.  For example, someone might try to hide or destroy evidence out of fear or for some reason that has nothing to do with guilty knowledge.”  In my opinion, the trial judge’s comments were largely benign and very balanced, instructing the jury to consider the alleged hiding of the murder weapon as merely some evidence to be considered in light of the totality of the evidence in the case. 

57                               Second, as noted above, as much as the trial judge erred in his “consciousness of guilt” instructions, the alleged attempt to hide the murder weapon and destroy evidence was relevant circumstantial evidence for the jury to consider.   The trial judge’s error was not in alluding to “consciousness of guilt”, but in failing to limit its applicability to the s. 16 issue.

58                               Third, I find it exceedingly difficult, in the specific circumstances of this case, to believe that any reasonable juror would have been motivated to reach a different verdict on the basis of this minor error.  Consciousness of guilt was a small, and arguably minor, aspect of the Crown’s case against the appellant.  The other evidence included: the appellant’s s. 655 admission to shooting Sandy Hurlburt; the expert evidence that the appellant was mentally capable of knowing that the shooting was wrong; the testimony that the appellant had been abused coupled with his  statement to his girlfriend that he was going to “pay back” the person who abused him; the appellant’s inquiries to Ms. Wilkinson about the timing of her return home; the appellant’s instructions to Ms. Wilkinson not to disclose his whereabouts in her home; the appellant’s telephone calls to his friend prior to the killing in which he indicated his intention to rob a store,“do something else”, and leave town; the number of shotgun shells that were obtained and expended during the two shootings; the presence of two guns; and the appellant’s  act of nodding in response to a question in which he was asked by a friend if he had gone to Mr. Hurlburt and Ms. Wilkinson’s home in order to shoot Mr. Hurlburt.    In this respect, this appeal is very much unlike Marinaro, supra,  where Dubin C.J.O. refused to apply the s. 686(1)(b)(iii) curative provision.  In Marinaro, there was significant evidence of flight, false statements, and destruction of evidence upon which the trial judge made “extensive instructions” with respect to consciousness of guilt.  On that basis,  Dubin C.J.O. was not satisfied that a properly instructed jury would not have come to a different conclusion.  In this appeal, the evidence of consciousness of guilt was but a minor component of the totality of the other incriminating evidence in the case.  See Wiltse, supra, at p. 386.

59                               Moreover, I cannot conceive how a reasonable juror, in this case, when faced with the evidence that the accused concealed the murder weapon, would have deduced from that evidence that the accused was more likely to have committed first degree murder, second degree murder, or even manslaughter.  It is, after all, a matter of simple logic that we are discussing, not a matter that requires special expertise or even intellectual sophistication.  It is clear that evidence of flight from a homicide, and/or of concealment of a weapon used in it, has no relevance to the question of the state of the perpetrator’s mind at the time of and prior to the killing itself, except to the extent of showing that he knew the act was wrong.  Such evidence might be relevant where, for example, there was also evidence that the accused established a hiding place for the murder weapon prior to the commission of the offence.  In such circumstances, the hiding of the weapon would be very relevant to the issues of premeditation and preparation.  But, there is no such evidence here.  There is nothing inherent in the bare act of hiding a weapon or wiping it of its fingerprints that suggests a particular level of offence.  The accused’s consciousness of guilt was clearly irrelevant to this issue and I am confident that, in the specific circumstances of this case, the members of the jury could not but have known it. 

60                               Fourth, this is not a case of compounded mistakes.  Unlike Arcangioli and Murray, supra, we need not be concerned with the “cumulative effect of the errors”.  In fact, the “consciousness of guilt” passage is the only objectionable instruction the trial judge made to the jury in his entire 62-page, multiple-hour charge. 

61                               Appellate courts are entitled to apply the curative provision of s. 686(1)(b)(iii) if “the verdict would necessarily have been the same if such error had not occurred”.  See Colpitts v. The Queen, [1965] S.C.R. 739, at p. 744, and Arcangioli, supra.   This is by no means a simple test.  Judging “what might have been” is not easy particularly when our system requires juries to pronounce verdicts without providing supporting reasons.   Nonetheless, as I noted above, I cannot imagine how the jury would have acted improperly upon this instruction.  In my view, the verdict would have been no different had the charge been perfect, and not contained this minor error.  

IV.  Conclusion      

62                               As I discussed at the outset of my reasons, appellate courts must adopt a functional approach to reviewing jury charges.  The purpose of such review is to ensure that juries are properly -- not perfectly -- instructed.  

63                               Using such an approach, I have no trouble in concluding that the jury in this case properly understood not only the legal issues at trial, but also how the evidence related to those issues, and in particular to the appellant’s defence and to each aspect of the relevant offences.   To the extent that the trial judge erred in his “consciousness of guilt” instructions, I have found that no substantial wrong or miscarriage of justice occurred.  The appeal should be dismissed. 

//Sopinka J.//

The reasons of Sopinka and Major JJ. were delivered by

64                               Sopinka J. (dissenting) -- I agree with the reasons and conclusion of my colleague, Justice Cory, that the charge to the jury was inadequate in respect of the issue as to whether the murder alleged was planned and deliberate.  I would add that it is the obligation of a trial judge to relate evidence, that is crucial to the defence, to the issues.  The review of the evidence need not be extensive and a relation back to evidence previously reviewed is sufficient provided it is clear that the jury will be under no misapprehension as to the evidence to which the reference back relates.  Moreover, if it would not be apparent to lay persons how particular evidence will assist in resolving an issue, some explanation is required.  This is especially true of expert scientific or medical evidence.  As stated by Estey J. in Azoulay v. The Queen, [1952] 2 S.C.R. 495, at p. 503:

Where, as here, the evidence is technical and somewhat involved, it is particularly important that [the trial judge] should [explain the relevant law and relate it to the evidence] in a manner that will assist the jury in determining its relevancy and what weight or value they will attribute to the respective portions.

65                               In this case the psychiatric evidence was of special importance with relation to the issue of mental disorder under s. 16  of the Criminal Code , R.S.C., 1985, c. C-46 .  Its relevance and application to this issue were fully explained by the trial judge.  This explanation would be of little assistance to the jury as to its relevance to planning and deliberation.  Moreover, once they resolved that issue, they might very well have considered that its relevance was spent.  To the lay jury it might seem incongruous to reject the psychiatric evidence under the s. 16 defence, but to then reconsider the same evidence and what may appear to it to be a similar argument under the issues of planning and deliberation.  It was therefore important that the trial judge specifically refer to this evidence in relating it to other issues.  This was done with respect to the charge on manslaughter and in the summary in relation to attempted murder where the trial judge stated:

I direct your attention to consider all the evidence, including the evidence of the three psychiatrists, particularly where they differed in their opinions, as to whether Mr. Jacquard, at the time of the offence, had the specific intent to commit murder or attempted murder.

This was not done in relation to the charge on planning and deliberation.  The jury might well have taken from this that the mental disorder evidence and the psychiatric evidence in particular were only relevant in respect of those issues to which a specific reference was made.  The appellant need only establish “a reasonable possibility that the jury might have been misled” (R. v. Brydon, [1995] 4 S.C.R. 253, at para. 19).

66                               Furthermore, a simple reference may not have been adequate in this case.  I am not sure that a jury would know how the psychiatric evidence, couched in terms of s. 16, would apply to planning and deliberation without being told that this evidence, although falling short of establishing that the accused could not appreciate the nature and quality of his acts or that he did not know they were wrong, could still raise a reasonable doubt in relation to planning and deliberation if the jury concluded that the accused’s cognitive ability was impaired, albeit to a lesser extent than required under s. 16.  An instruction to this effect was essential, particularly in view of the fact that the evidence had previously been considered by the jury on the basis of a burden of proof that required the appellant to establish a mental disorder on a balance of probabilities.  The jury might have assessed the evidence differently when considering whether it raised a reasonable doubt.

67                               I am in complete agreement with the Chief Justice that overlong and repetitious jury charges should be avoided.  We also agree that this does not mean that we should stint on essentials.  Nothing is more important to a true verdict than ensuring that the jury understands how the evidence relates to the issues.  This has always been and should continue to be an objective of the instructions to a jury and nothing should be said to undermine this objective.

68                               I would dispose of the appeal as proposed by Cory J.

//Cory J.//

The following are the reasons delivered by

69                               Cory J. (dissenting) -- With almost all of the reasons and sound recommendations of the Chief Justice I am in complete agreement.  However, I cannot accept his conclusion that the trial judge’s instructions to the jury on first degree murder were adequate.

70                               The crime of first degree murder is, from the point of view of sentence, the most serious crime prescribed by the Criminal Code , R.S.C., 1985, c. C-46 .  It calls for a mandatory sentence of life imprisonment without eligibility for parole for 25 years.  It differs from second degree murder in that it requires that the Crown establish that the murder was both planned and deliberate.  Clearly it sets a significantly higher standard of culpability than second degree murder.  The commission of the crime requires a more complex and focused mental process than the mere intention to kill.

71                               There can be no doubt that a jury must be instructed that alcohol can affect the ability to plan and to be deliberate.  See R. v. Mitchell, [1964] S.C.R. 471, R. v. Wallen, [1990] 1 S.C.R. 827.  Similarly, this Court has held that a jury must be instructed that evidence of mental illness has to be considered in determining whether the murder was planned and deliberate.  See More v. The Queen, [1963] S.C.R. 522, R. v. Kirkby (1985), 47 C.R. (3d) 97 (Ont. C.A.).  As MacDonnell J. stated in R. v. Markle, [1990] O.J. No. 2606 (Gen. Div.):

The task of the jury in a first degree murder case based on planning and deliberation where there is evidence of intoxication or mental disorder is to determine the accused’s thinking and mental processes at the time of the killing, bearing in mind that evidence, and then to determine whether those mental processes fell within the definition of “deliberate”.

72                               It follows that in the case at bar, a simple reference to consider all the evidence is insufficient.  There must be more.  Although it was not necessary for the trial judge to again review the evidence as to mental illness, a specific reference should have been made to it during his explanation of planning and deliberation.

73                               The entire reference pertaining to the planning and deliberation element of first degree murder in the judge’s charge to the jury is as follows:

And I want to explain now to you the meaning of planned and deliberate.  I will explain the meaning of planned and deliberate so that you will be able to make this decision if you find the Crown has proven all the ingredients I just told you about.  The words planned and deliberate have different meanings.  You should give the word planned its ordinary meaning.  That is arranged beforehand.  In other words, a person plans to do something, if he or she forms a design or scheme for doing it.  The plan need not be a complicated one.  It may be a very simple plan and the simpler it is, perhaps the easier it is to formulate it.

However you should understand that planning something is not the same as doing it intentionally, therefore, a person can mean or intend to kill someone without having planned to kill the person.  For example, suppose Jane Smith has a bad temper, she gets in an argument with someone and kills the other person during the argument.  Even though she was not intending to kill the other person before the argument started.  In this example, Jane Smith might have intended to kill the other person but she did not plan to kill him.

The word deliberate also means something more than intentional.  It means carefully thought out, not hasty or rash.  A person commits deliberate murder when he or she thinks about the consequences before committing the murder.  In other words, he or she thinks about the advantages and disadvantages of committing the murder.  It is an act that is considered rather than impulsive.  In considering whether the murder was planned and deliberate you should consider all the evid . . . all the circumstances and all the evidence.

On the subject of both the ingredient of intention and whether or not Mr. Jacquard was or was not criminally responsible by reason of a mental disorder, I have reviewed the evidence at great length, I can see no reason to repeat what I already said to you.

I noted during the trial you paid strict attention to the witnesses.  I asked you to consider the facts. . . . I asked you, considering the facts, you accepted from the evidence and taking into consideration the legal meaning of planned or deliberate as I have explained them to you, did Mr. Jacquard plan to kill Mr. Hurlburt and, if so, did he do it deliberately.  I remind you, murder cannot be first degree murder unless it was both planned and deliberate.  Again I repeat. I remind you, murder cannot be first degree murder unless it was both planned and deliberate.

If you are satisfied beyond a reasonable doubt the Crown has proven all the essential elements of murder and the Crown has also proven beyond a reasonable doubt that the murder was planned and deliberate, you may convict the accused of first degree murder.  If you are not satisfied beyond a reasonable doubt the Crown has proven the murder was planned and deliberate, you should not convict Mr. Jacquard of first degree murder but you may convict him of second degree murder.

74                               These directions do not refer to the evidence pertaining to mental illness and the possible effect it might have on the appellant’s ability to plan and deliberate upon the killing of the victim.  Such instructions were an essential element of this charge.  The accused facing the most serious charge in the Criminal Code  was entitled to no less.  It is a fundamental element of the directions on this offence.  Just as the evidence relating to the consumption of alcohol must be related to the elements of planning and deliberation so too must the evidence pertaining to mental illness be related those elements.

75                               I would allow the appeal and direct a new trial.

Appeal dismissed, Sopinka, Cory and Major JJ. dissenting.

Solicitors for the appellant:  Pink Murray, Halifax.

Solicitor for the respondent:  The Attorney General of Nova Scotia, Halifax.