Case information

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Criminal law - Evidence - Post-offence conduct - Curative proviso - Whether the majority of the Court of Appeal erred in law by finding reversible error in the jury charge because the judge failed to explain to the jury the mandatory reasoning process through which it could consider the relevant post-offence conduct in assessing the issue of intent for murder - Whether the majority erred in law by failing to apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46.

The respondent was convicted of second degree murder. He killed a woman he met at a bar and buried her body outside in a shallow grave behind his garage. At trial, the respondent argued that the forensic evidence supported his version of the events which was that a short altercation occurred in the bedroom, during which he was attacked and stabbed by the victim. The respondent argued that in an attempt to defend himself, he inadvertently smothered the victim by placing his arm across her nose and mouth. A majority of the Court of Appeal allowed the respondent’s appeal from conviction and ordered a new trial. In its view, the trial judge committed two errors. First, he misdirected the jury to consider the respondent’s flight and lies to police on the issue of intent for murder. Second, while the respondent’s efforts to bury the body and clean up the scene were potentially probative of the respondent’s state of mind at the time he killed the victim, the trial judge failed to adequately instruct the jury on how that evidence could be used. MacPherson J.A., dissenting, would have dismissed the appeal.