R. v. Cudjoe (R.),

• Jurisdiction: Ontario
• Judge: Borins, Feldman and Watt, JJ.A.
• Neutral Citation: 2009 ONCA 543
• Citation: 2009 ONCA 543,(2009), 251 O.A.C. 163 (CA),68 CR (6th) 86,[2009] OJ No 2761 (QL),251 OAC 163,251 O.A.C. 163,[2009] O.J. No 2761 (QL),(2009), 251 OAC 163 (CA)
• Date: 03 July 2009
• Court: Court of Appeal (Ontario)

R. v. Cudjoe (R.) (2009), 251 O.A.C. 163 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. JL.001

Her Majesty The Queen (respondent) v. Randolph Cudjoe (appellant)

(C46508; 2009 ONCA 543)

Indexed As: R. v. Cudjoe (R.)

Ontario Court of Appeal

Borins, Feldman and Watt, JJ.A.

July 3, 2009.

Summary:

The accused and his wife married in 1988. In 2004, the wife began a sexual relationship with another woman (Smith). At the wife's urging, the accused and the two women engaged in a three-way sexual relationship. The accused thought they were just friends and that the marriage was safe. Several weeks into this relationship, the wife advised the accused that she was leaving him for Smith. The accused reacted by stabbing his wife and later Smith in the chest with a kitchen knife. The wife died. Smith survived. The accused was convicted by a jury of second degree murder and aggravated assault. The accused appealed his conviction, submitting that the trial judge erred "i. in admitting evidence that the [accused] had assaulted the deceased twice in the month preceding her death; ii. in instructing the jury that evidence of the [accused's] after-the-fact conduct could assist the jury in determining the [accused's] mental state at the time of the unlawful killing, thus his level of culpability; iii. in failing to instruct the jury that they could consider 'provocation' as a factor in determining whether the appellant had the requisite intent for murder; iv. in failing to properly respond to the jury's question about the meaning of 'sudden' in connection with the partial defence of provocation; and v. in failing to relate the salient parts of the evidence to the 'defences' of intoxication and provocation and, more generally, to the mental element required for murder".

The Ontario Court of Appeal dismissed the appeal.

Criminal Law - Topic 1281

Murder - Provocation - What constitutes "sudden provocation" - During deliberations, a jury in a murder trial asked the trial judge to define "sudden" in relation to provocation - Defence counsel asked for time to research the issue - The Crown pressed for an immediate response - The trial judge re-read a portion of his earlier instructions on provocation, which he felt would sufficiently explain "sudden", but prefaced his response to the jury by telling them that "if you don't feel that the answer to your question is found in those written instructions please let me know and I'll try again to answer your questions, but on initial view of this I think your answer is found in the written instructions." - The jury retired for the evening - On the following day, the jury asked no further questions - The accused was found guilty - The accused appealed, submitting that the explanation was inadequate - The Ontario Court of Appeal dismissed the appeal - The reality of the case was that the "insults" relied on were little more than repetitions of things said earlier the same evening, which insults produced no loss of self-control - The court stated that "while more of the same [insults] may sometimes be sudden, it seems scarcely the case here. The failure to provide an express instruction to include a reference to the prior relationship, an instruction not sought by counsel at trial, did not cause the appellant any prejudice" - See paragraphs 117 to 133.

Criminal Law - Topic 1285

Murder - Provocation - Jury charge - [See Criminal Law - Topic 4350.4 ].

Criminal Law - Topic 4350.4

Procedure - Charge or directions - Jury or judge alone - Use of "rolled-up" charge - The accused stabbed his wife in the chest with a kitchen knife after she told him that she was leaving him for another woman - The wife died - A jury convicted the accused of second degree murder - The accused had argued at trial that his crime was manslaughter, not murder; that he did not intend to kill his wife and that intoxication and provocation raised a reasonable doubt about the requisite intention for murder - On appeal, the accused argued that although there was no error in charging the jury on the mental element for murder, the trial judge erred in failing to include provocation as a component in the "rolled-up" instruction on intent - The Ontario Court of Appeal disagreed that failing to include provocation in the "rolled-up' instruction left jurors with the mistaken impression that provocation was only relevant as a stand alone partial defence after murder was proven - The court stated that "to hold the instructions given here deficient because they omitted the single term 'provocation' from the list of factors relevant to a determination of the appellant's state of mind when he unlawfully killed his wife is to reject substance in favour of form. The jury was instructed to take into account, among other things, anger, excitement, instinctive reaction and mental disturbance, all of which are closely allied with provocation. The instructions adequately equipped the jurors to perform the task set for them: to decide whether the unlawful killing was murder or manslaughter." - See paragraphs 94 to 115.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Direction on evidence generally - [See Criminal Law - Topic 4374 ].

Criminal Law - Topic 4374

Procedure - Charge or directions - Jury or judge alone - Duty to relate law to facts - The accused admittedly killed his wife after she told him that she was leaving him for another woman - At issue was whether the accused was guilty of second degree murder or manslaughter (intoxication and/or provocation) - A jury found him guilty of murder - The accused appealed, submitting that although the trial judge reviewed the evidence, he erred in failing to relate that evidence to the critical issues - Neither counsel objected to the evidentiary review or to the manner in which it was incorporated into the final jury instructions - The Ontario Court of Appeal dismissed the appeal - A trial judge had a duty to review the essential parts of the evidence and relate that evidence to the critical issues so that the jury could appreciate the value and effect of the evidence - The court stated that "the role of the trial judge in instructing a jury generally, and in reviewing and relating the evidence to the issues in particular, is to decant and simplify. The trial judge should not simply leave the evidence in bulk for the jury, assigning to them the responsibility for determining the relationship between the evidence and the issues that arise for their decision" - This was a simple case - The trial judge reviewed the evidence in a fair and balanced manner immediately after concluding his instructions on the mental element (the critical issue at trial) - The court stated that "I am not prepared to say that the procedure followed, which briefly separated the evidentiary review from the discussion of the essential elements of the offence charged and defences raised, constituted a failure to relate the essential features of the evidence to the issues that required decision, misled or confused the jury or otherwise compromised the fairness of the appellant's trial" - See paragraphs 136 to 179.

Criminal Law - Topic 4391.2

Procedure - Charge or directions - Jury or judge alone - Directions following questions by jury - A jury posed a question to the trial judge at 10:00 p.m. after hours of deliberation - The accused requested time to research the matter - The Crown sought an immediate response - The trial judge responded immediately by re-reading a portion of his jury charge and referring the juror to the written copy of instructions each possessed - The Ontario Court of Appeal stated that "although I have found the trial judge's response to the jury's question caused no prejudice in the circumstances of this case, the need for a clear, correct, careful and comprehensive response to all jury questions warrants emphasis. Jury trials, especially the composition of jury instructions, are challenging work for all concerned. It makes little sense to sacrifice accuracy and completeness for immediacy of response. Questions from jurors that arise late in the evening, especially after a full day or longer of deliberations, may be better answered the following morning when everyone returns to their task more refreshed ... Mistakes are as easily avoided as they are made. There is little point in rushing to make them. Stopwatch justice comes at too high a price." - See paragraph 134.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - The accused stabbed his wife in the chest with a kitchen knife after she told him she was leaving him for another woman - The wife died - The trial judge directed the jury's attention to three types of the accused's behaviour after the stabbing: the accused's removal of the knife from the scene of the stabbing (bedroom) to the kitchen sink; failure to render assistance to his wife or call 911; and the accused's demeanour after the stabbing - The accused did not challenge the relevance, materiality or admissibility of the after-the-fact conduct, but argued that the trial judge erred in failing to instruct the jury that the after-the-fact conduct evidence could not be used to determine the level of culpability (second degree murder or manslaughter) - The Ontario Court of Appeal held that the trial judge properly instructed the jury that the moving of the steak knife was equally consistent with murder or manslaughter and could therefore not be used to infer the accused was guilty of murder - The jury was advised that the failure to render assistance or call 911 was of no probative value in determining whether he was guilty of murder - Finally, the judge properly warned the jury that the accused's demeanor after the stabbing was of highly suspect probative value, because no two people reacted the same way in such circumstances - The jury was properly told that they could use the evidence to rebut the accused's claim that his culpability was reduced because of his compromised mental state (intoxication and/or provocation) - The trial judge's instructions contained no prejudicial error - See paragraphs 71 to 93.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - The Ontario Court of Appeal stated that "evidence of after-the-fact conduct is no different than any other circumstantial evidence. The inferences drawn from it must be reasonable, not speculative. They must be rooted in human experience and common sense. There is no fixed regime of inferences. What may be inferred is case-specific, a function of several factors, including but not only: i. the nature of the conduct; ii. the facts sought to be inferred from the conduct; iii. the positions of the parties; and iv. the totality of the evidence. ... It follows from the situation-specific nature of the process of drawing inferences that no prefabricated rule stamps certain kinds of after-the-fact conduct as always or never relevant to a particular fact in issue ... In some instances, evidence of after-the-fact conduct may be relevant to establish that an accused's conduct was culpable rather than non-culpable, or to rebut a claim of a compromised mental state ... Evidence of after-the-fact conduct is typical of many items of evidence adduced in a criminal trial: it is evidence of limited admissibility. The trier of fact may use this evidence for one or more purposes but not for another or others. It follows that its introduction imposes on the trial judge in a jury trial the obligation to explain both the permitted and prohibited use of the evidence." - See paragraphs 78 to 81.

Criminal Law - Topic 5316

Evidence and witnesses - Inferences - Of guilt - From conduct - [See second Criminal Law - Topic 4399.9 ].

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - The accused's wife advised that she was leaving him for another woman (Smith) - After some discussion, the accused stabbed both his wife and Smith in the chest - The wife died - Smith survived - A jury found the accused guilty of second degree murder and aggravated assault - Smith had testified that the accused had twice in the preceding month assaulted his wife, although no visible injuries were noted - The accused appealed, submitting that the trial judge erred in admitting the evidence of prior discreditable conduct - The accused claimed that although the evidence was relevant as to the nature of their relationship, motive and animus towards his wife, the evidence should have been excluded because its prejudicial effect outweighed its probative value - If the evidence was admissible, the accused alleged that the trial judge failed to adequately instruct the jury on the limited use of the evidence to avoid propensity reasoning (i.e., jury not to infer that because the accused twice assaulted his wife he was likely guilty) - The Ontario Court of Appeal held that the evidence was admissible - When Smith testified, the accused had yet to acknowledge that he caused his wife's death - Identity was still in issue - The evidence was relevant and material - It explained the nature of their relationship, provided context to the jury to evaluate the events of the evening in question and demonstrated the accused's motive or animus - The probative value of the evidence exceeded its prejudicial effect - The trial judge properly cautioned the jury not to use the evidence of prior misconduct to conclude that the accused was a person of bad character who was more likely to have committed the offence charged - The jury was also instructed not to punish the accused for those prior assaults by convicting him of the offence charged - See paragraphs 57 to 70.

Criminal Law - Topic 5450

Evidence and witnesses - Evidence respecting the accused - Character of accused - Jury charge - [See Criminal Law - Topic 5449 ].

Cases Noticed:

R. v. W.B. (2000), 134 O.A.C. 1; 49 O.R.(3d) 321 (C.A.), refd to. [para. 63].

R. v. D.S.F. (1999), 118 O.A.C. 272; 43 O.R.(3d) 609 (C.A.), refd to. [para. 64].

R. v. Jackson (1980), 57 C.C.C.(2d) 154 (Ont. C.A.), refd to. [para. 64].

R. v. Misir (M.) (2001), 150 B.C.A.C. 52; 245 W.A.C. 52; 153 C.C.C.(3d) 70 (C.A.), refd to. [para. 64].

Plomp v. R. (1963), 110 C.L.R. 234 (H.C.), refd to. [para. 64].

R. v. Figueroa (N.) et al. (2008), 233 O.A.C. 176; 232 C.C.C.(3d) 51 (C.A.), refd to. [para. 78].

R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1, refd to. [para. 79].

R. v. Peavoy (D.M.) (1997), 101 O.A.C. 304; 34 O.R.(3d) 620 (C.A.), refd to. [para. 79].

R. v. Azzam (D.) (2008), 237 O.A.C. 338; 91 O.R.(3d) 335 (C.A.), refd to. [para. 80].

R. v. Walent (B.A.D.), [2007] O.A.C. Uned. 530; 2007 ONCA 871, refd to. [para. 80].

R. v. Fraser (P.) (2001), 151 O.A.C. 137; 159 C.C.C.(3d) 540; 56 O.R.(3d) 161 (C.A.), refd to. [para. 80].

R. v. Schell (D.N.) (2000), 136 O.A.C. 163; 148 C.C.C.(3d) 219 (C.A.), refd to. [para. 80].

R. v. Younger (D.M.) (2004), 187 Man.R.(2d) 121; 330 W.A.C. 121; 186 C.C.C.(3d) 454 (C.A.), refd to. [para. 80].

R. v. Rodrigue (K.) (2007), 245 B.C.A.C. 19; 405 W.A.C. 19; 223 C.C.C.(3d) 53 (Yuk. C.A.), refd to. [para. 81].

R. v. Clow (1985), 44 C.R.(3d) 228 (Ont. C.A.), refd to. [para. 104].

R. v. Nealy (1986), 17 O.A.C. 164; 30 C.C.C.(3d) 460 (C.A.), refd to. [para. 104].

R. v. Bob (1990), 40 O.A.C. 184; 78 C.R.(3d) 102 (C.A.), refd to. [para. 104].

R. v. Leming (J.), [2000] O.A.C. Uned. 193 (C.A.), refd to. [para. 104].

R. v. Humaid (A.A.) (2006), 210 O.A.C. 68; 81 O.R.(3d) 456 (C.A.), refd to. [para. 105].

R. v. Campbell (1977), 17 O.R.(2d) 673 (C.A.), refd to. [para. 107].

R. v. Robinson (D.), [1996] 1 S.C.R. 683; 194 N.R. 181; 72 B.C.A.C. 161; 119 W.A.C. 161, refd to. [para. 107].

R. v. Parent (R.), [2001] 1 S.C.R. 761; 268 N.R. 372, refd to. [para. 108].

R. v. Mitchell, [1965] S.C.R. 471, refd to. [para. 114].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 125].

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321, refd to. [para. 125].

R. v. Tripodi, [1955] S.C.R. 438, refd to. [para. 127].

R. v. Thibert (N.E.), [1996] 1 S.C.R. 37; 192 N.R. 1; 178 A.R. 321; 110 W.A.C. 321, refd to. [para. 127].

R. v. Chahal (R.) et al. (2008), 264 B.C.A.C. 31; 445 W.A.C. 31; 240 C.C.C.(3d) 363 (C.A.), refd to. [para. 134].

R. v. Azoulay, [1952] 2 S.C.R. 495, refd to. [para. 150].

R. v. MacKinnon (T.N.) et al. (1999), 117 O.A.C. 258; 43 O.R.(3d) 378 (C.A.), refd to. [para. 150].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4, refd to. [para. 150].

R. v. Thériault, [1981] 1 S.C.R. 336; 37 N.R. 361, refd to. [para. 151].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 152].

R. v. Royz (E.) (2009), 251 O.A.C. 397; 388 N.R. 1; 2009 SCC 13, refd to. [para. 152].

R. v. John, [1970] S.C.R. 781, refd to. [para. 153].

R. v. Cooper, [1993] 1 S.C.R. 146; 146 N.R. 367; 103 Nfld. & P.E.I.R. 209; 326 A.P.R. 209, refd to. [para. 154].

Counsel:

Catriona Verner, for the appellant;

Alexander Alvaro, for the respondent.

This appeal was heard on December 17, 2008, before Borins, Feldman and Watt, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court was delivered by Watt, J.A., and released on July 3, 2009. Borins, J.A., who died on June 13, 2009, did not participate in the judgment.