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Criminal law - Trial - Charge to jury - Post-offence conduct - Application of s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 - Whether the Court of Appeal erred in finding that the trial judge did not err in regard to the jury instructions concerning the “immediate flight” issue - Whether the Court of Appeal erred in applying the curative provision in s. 686(1)(b)(iii) of the Criminal Code.

The Appellant shot the victim during a physical altercation. After the shooting, he fled the scene and was seen depositing the gun into a dumpster. At trial, defence counsel conceded that manslaughter, not murder, would be an appropriate verdict. The issue on appeal was whether it was permissible to use post-offence conduct to infer the intent to commit murder in this case. The Appellant argued that the trial judge erred in his charge to the jury on the issue, and that he should have given the jury a limiting instruction on the use it could make of the post-offence conduct. In his view, the flight from the scene could not be used to infer that he had the intent necessary to support a murder conviction, since that conduct was equally consistent with the offence of manslaughter. The majority of the Court of Appeal concluded that while the charge to the jury was incomplete, and thus incorrect, the error was harmless and could not have affected the jury’s verdict. The majority applied the curative provision in s. 686(1)(b)(iii) of the Criminal Code and dismissed the appeal. Finch C.J.B.C., dissenting, would have allowed the appeal and ordered a new trial. In his view, the trial judge erred in his charge to the jury on the use it could make of the Appellant’s post-offence conduct. Finch C.J.B.C. further found that the curative provision could not be applied because the issue of intent was, in effect, the only live issue the jury had to consider, and it could not be concluded that the uncorrected invitation by the Crown to infer intent on the basis of the Appellant’s immediate flight, combined with the judge’s review of the evidence of post-offence conduct to the mental element, could not have affected the outcome of the trial.