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.
Reasons
for Judgment:
(paras. 1 to 45)
Dissenting
reasons:
(paras. 46 to 103)
|
LeBel J. (McLachlin C.J. and Deschamps,
Abella, Charron, Rothstein and Cromwell JJ. concurring)
Fish J.
(Binnie J. concurring)
|
______________________________
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.