R. v. Hill (K.), (2015) 339 O.A.C. 90 (CA)

• Judge: Doherty, Gillese and D. Brown, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: July 23, 2015
• Jurisdiction: Ontario
• Citations: (2015), 339 O.A.C. 90 (CA);2015 ONCA 616

R. v. Hill (K.) (2015), 339 O.A.C. 90 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. SE.010

Her Majesty the Queen (respondent) v. Kent Hill (appellant)

(C55423; 2015 ONCA 616)

Indexed As: R. v. Hill (K.)

Ontario Court of Appeal

Doherty, Gillese and D. Brown, JJ.A.

September 15, 2015.

Summary:

A jury convicted the accused of second degree murder in the strangling death of a woman who was pregnant with his child. The accused appealed, arguing that (1) the trial judge erred in his jury instructions on intent; (2) the trial judge erred in his jury instructions on the defence of provocation; and (3) the Crown improperly cross-examined him on his prior statement to the police.

The Ontario Court of Appeal allowed the appeal based on the first two grounds of appeal and ordered a new trial.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - [See both Criminal Law - Topic 5440 ].

Civil Rights - Topic 4302

Protection against self-incrimination - General - Right to remain silent - [See both Criminal Law - Topic 5440 ].

Criminal Law - Topic 53

General principles - Protection against self-incrimination - Right to remain silent - [See both Criminal Law - Topic 5440 ].

Criminal Law - Topic 136

General principles - Rights of accused - Right to silence - [See both Criminal Law - Topic 5440 ].

Criminal Law - Topic 1263

Murder - General principles - Intention - [See Criminal Law - Topic 4399.9 ].

Criminal Law - Topic 1265

Murder - General principles - Jury charge - General - [See Criminal Law - Topic 4399.9 ].

Criminal Law - Topic 1265

Murder - General principles - Jury charge - General - Hill was convicted of second degree murder in the strangling death of General - He appealed, arguing that the trial judge erred by failing to instruct the jury that even if it rejected the statutory defence of provocation, it was still required to consider the evidence of General's alleged provocative acts and Hill's reaction to those acts in deciding whether the Crown had proved the requisite intent beyond a reasonable doubt - The Ontario Court of Appeal agreed - If evidence was relevant to a specific defence such as provocation, but also relevant to the issue of intent, then a trial judge should make both potential uses of the evidence clear to the jury - See paragraphs 63 to 66.

Criminal Law - Topic 1280

Murder - Provocation - General principles - Hill was convicted of second degree murder in the strangling death of General, who was pregnant with his child - Hill testified that he "snapped" after General screamed obscenities at him and slapped him across the face - On appeal, Hill argued that the trial judge erred in his jury instructions on provocation - The Crown argued that any errors in the instruction were irrelevant as the defence should not have been left with the jury - The Ontario Court of Appeal held that Hill's evidence provided an evidentiary basis upon which a jury could have a reasonable doubt as to whether he acted suddenly in response to the unanticipated verbal and physical abuse from General - One would be hard pressed to conclude that an ordinary person of Hill's age (20) and in Hill's circumstances would lose control and kill General because of a relatively minor assault and insults - However, this case could be characterized as one of those "cases of doubt" - Unless the jury entirely rejected Hill's testimony, the defence of provocation was available - See paragraphs 67 to 71.

Criminal Law - Topic 1284

Murder - Provocation - Ordinary person - What constitutes - [See both Criminal Law - Topic 1285 ].

Criminal Law - Topic 1285

Murder - Provocation - Jury charge - Hill (6'2", 215 pounds and a well-conditioned athlete) was convicted of second degree murder in the strangling death of General (5'5", 140 pounds) - Hill testified that he "snapped" after General screamed obscenities at him and slapped him across the face - In his jury instructions on provocation, the trial judge stated that in considering whether the ordinary person would have been deprived of the power of self-control by the alleged provocative acts, the jury should endow that ordinary person with the same physical makeup as Hill, and should consider the relative sizes of Hill and General - On appeal, Hill argued that these instructions were erroneous - The Ontario Court of Appeal agreed - The characteristics to be attributed to the ordinary person and the factors to be taken into account in assessing whether an ordinary person would have lost control had to have regard to the nature of the provocation claim advanced - Hill's provocation claim was entirely rage-based - His size and athletic ability had no inherent relevance to the degree of self-control expected of an ordinary person - Nor was the difference in size between Hill and General a factor that was necessary to a proper understanding of the potential effect of the provocative conduct on an ordinary person - If the alleged loss of control was at least partially fear-based, these factors might have been relevant - The trial judge's instruction might have undermined the provocation defence by inviting the jury to measure its viability against the proportionality or reasonableness of Hill's conduct - See paragraphs 76 to 88.

Criminal Law - Topic 1285

Murder - Provocation - Jury charge - Hill was convicted of second degree murder in the strangling death of General, who was pregnant with his child - Hill testified that he "snapped" after General screamed obscenities at him and slapped him across the face - In his jury instructions on provocation, the trial judge stated that the provocative conduct had to be sufficient to cause an ordinary person not only to lose control, but to do the things that Hill said he had done - On appeal, Hill argued that these instructions were erroneous - The Ontario Court of Appeal found that s. 232(2) of the Criminal Code did not specifically require that the ordinary person, having lost control, act as the accused acted - The focus was on the loss of control - This did not mean that any level of control loss by the hypothetical ordinary person would satisfy the ordinary person component of the provocation test - The question for the jury was not whether the ordinary person would have done the same thing that Hill did, but whether the provocative conduct was sufficient to cause an ordinary person to lose control to the degree that the ordinary person would form the necessary intention for murder and act on that intention, even if not necessarily in the same way as Hill - However, a more complete instruction would not have assisted Hill given the relatively minor nature of the provocative conduct - See paragraphs 89 to 100.

Criminal Law - Topic 4356

Procedure - Charge or directions - Jury or judge alone - Directions regarding intent or mens rea - [See second Criminal Law - Topic 1265 and Criminal Law - Topic 4399.9 ].

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - Hill was convicted of second degree murder in the strangling death of General - He appealed, arguing that the trial judge erred in his jury instructions on intent by stating that Hill's conduct after he strangled General, including the burial of her body and the many lies he told to the police and others, could support an inference that he intended to kill General, or intended to cause her bodily harm that he knew was likely to cause her death - The Ontario Court of Appeal agreed - The trial judge's open-ended invitation to the jury to consider Hill's post-offence conduct as evidence from which it could infer the requisite intent for murder constituted a potentially significant error in law - Intent was a live issue at trial - Given the nature of the post-offence conduct, a jury could easily have concluded that Hill acted in a callous and calculating manner for over three months in an attempt to avoid responsibility for his actions - A jury could further conclude that the callous and calculating nature of the conduct was consistent with the conduct of a murderer as opposed to someone who had not intended to kill General - See paragraphs 51 to 62.

Criminal Law - Topic 4950

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - General - Hill was convicted by a jury of second degree murder in the strangling death of a woman who was pregnant with his child - The Ontario Court of Appeal allowed Hill's appeal and ordered a new trial - The trial judge erred in his jury instructions regarding intent and the defence of provocation - The most significant error was the trial judge's statement that the jury could consider Hill's post-offence conduct as evidence from which it could infer the requisite intent for murder - The other errors were less serious but added some weight to the submission that the curative proviso in s. 686(1)(b)(iii) could not be applied - A reasonable jury, properly instructed, could have returned a verdict of manslaughter as opposed to murder - See paragraphs 101 to 105.

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where directions or jury charge incomplete or in error - [See Criminal Law - Topic 4950 ].

Criminal Law - Topic 5433.2

Evidence and witnesses - Cross-examination of accused - Prior inconsistent statements - [See both Criminal Law - Topic 5440 ].

Criminal Law - Topic 5440

Evidence and witnesses - Cross-examination of accused - Re failure to offer explanation to police - The Ontario Court of Appeal stated that "The propriety of cross-examination on a prior statement made by an accused to the police turns on the purpose of the cross-examination. If the cross-examination is designed to challenge the credibility of an accused's testimony based on inconsistencies between that testimony and a previous version of events provided by the accused, the cross-examination is appropriate. If, however, the cross-examination invites the trier of fact to draw an adverse inference from the accused's silence when questioned by the police, the cross-examination is inappropriate. Sometimes, both purposes may be in play. A trial judge can refuse or limit cross-examination on the prior statement when there is a legitimate concern that the cross-examination may trespass improperly on the accused's right to silence. The trial judge may also give a limiting instruction cautioning against misuse of the right to silence if the cross-examination merits that instruction." - See paragraph 46.

Criminal Law - Topic 5440

Evidence and witnesses - Cross-examination of accused - Re failure to offer explanation to police - Hill was convicted of second degree murder in the strangling death of General - In a statement given to police following his arrest, Hill described how he had strangled General - This differed from his testimony at trial, where he professed to have no recollection of the actual strangulation, and also added details alleging that General had verbally abused and physically assaulted him prior to the strangulation - The Crown cross-examined Hill on these differences - On appeal, Hill argued that his failure to provide details in his statement to police amounted to an exercise of his right to silence, and that it was improper for the Crown to cross-examine him on those omissions - The Ontario Court of Appeal rejected this argument - The cross-examination presented no risk that the jury would draw an adverse inference from Hill's silence when questioned by the police - The Crown did not suggest that Hill remained silent about anything - The significant differences between Hill's two versions provided ample ground for the Crown's argument that Hill's testimony was fabricated in an effort to avoid the full force of the confession he had given to police - In addition, Hill's counsel specifically asked him why he did not mention General's conduct in his statement to the police - This question opened the door to cross-examination challenging Hill's explanation - See paragraphs 32 to 48.

Evidence - Topic 4716

Witnesses - Examination - Cross-examination - On testimony to be contradicted - [See both Criminal Law - Topic 5440 ].

Evidence - Topic 4751

Witnesses - Examination - Prior inconsistent statements - Use of and effect of use of - [See both Criminal Law - Topic 5440 ].

Cases Noticed:

R. v. Turcotte (T.) (2005), 339 N.R. 32; 216 B.C.A.C. 1; 356 W.A.C. 1; 200 C.C.C.(3d) 289; 2005 SCC 50, refd to. [para. 43].

R. v. Palmer (K.), [2008] O.A.C. Uned. 559; 2008 ONCA 797, refd to. [para. 43].

R. v. Paris (G.W.) et al. (2000), 138 O.A.C. 287 (C.A.), refd to. [para. 43].

R. v. Rodgerson (J.) (2015), 473 N.R. 1; 334 O.A.C. 1; 2015 SCC 38, affing. (2014), 319 O.A.C. 254; 2014 ONCA 366, dist. [para. 55].

R. v. Teske (P.) (2005), 202 O.A.C. 239 (C.A.), refd to. [para. 55].

R. v. Luciano (M.) (2011), 273 O.A.C. 273; 267 C.C.C.(3d) 16; 2011 ONCA 89, refd to. [para. 59].

R. v. Fraser (P.) (2001), 151 O.A.C. 137; 56 O.R.(3d) 161 (C.A.), refd to. [para. 65].

R. v. Flores (M.R.) (2011), 274 O.A.C. 314; 269 C.C.C.(3d) 194; 2011 ONCA 155, refd to. [para. 65].

R. v. Pappas (B.J.), [2013] 3 S.C.R. 452; 450 N.R. 37; 561 A.R. 228; 594 W.A.C. 228; 2013 SCC 56, refd to. [para. 67].

R. v. Squire (1975), 29 C.C.C.(2d) 219 (Ont. C.A.), revd on other grounds (1976), 10 N.R. 25; 29 C.C.C.(2d) 497 (S.C.C.), refd to. [para. 77].

Mancini v. D.P.P., [1942] A.C. 1, refd to. [para. 77].

R. v. Hill, [1986] 1 S.C.R. 313; 68 N.R. 161; 17 O.A.C. 33, refd to. [para. 78].

R. v. Tran (T.K.), [2010] 3 S.C.R. 350; 409 N.R. 1; 493 A.R. 123; 502 W.A.C. 123; 2010 SCC 58, refd to. [para. 78].

R. v. Cairney (M.J.), [2013] 3 S.C.R. 420; 450 N.R. 1; 561 A.R. 192; 594 W.A.C. 192; 2013 SCC 55, refd to. [para. 78].

R. v. Timoti, [2005] NZSC 37, refd to. [para. 88].

R. v. Carpenter (J.D.) (1993), 65 O.A.C. 220; 83 C.C.C.(3d) 193 (C.A.), refd to. [para. 91].

R. v. Keller (M.F.) (1993), 66 O.A.C. 388 (C.A.), refd to. [para. 91].

D.P.P. v. Camplin, [1978] A.C. 705, refd to. [para. 93].

R. v. D.L., [2005] O.J. No. 3182; 2005 ONCJ 343, refd to. [para. 94].

Masciantonio v. The Queen (1994-95), 183 C.L.R. 58 (H.C.), refd to. [para. 95].

R. v. Mayuran (S.), [2012] 2 S.C.R. 162; 431 N.R. 232; 2012 SCC 31, refd to. [para. 97].

R. v. Sarrazin (R.) et al., [2011] 3 S.C.R. 505; 422 N.R. 214; 284 O.A.C. 170; 2011 SCC 54, refd to. [para. 101].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 232(2) [para. 78].

Authors and Works Noticed:

Renke, W., Calm Like a Bomb: An Assessment of the Partial Defence of Provocation (2010), 47 Alta. L.R. 729, p. 746 [para. 88].

Roach, K., Criminal Law (5th Ed. 2012), p. 418 [para. 80].

Watt's Manual of Criminal Jury Instructions (2nd Ed.), p. 1235 [para. 92].

Williams, G., Textbook of Criminal Law (1978), p. 477 [para. 84].

Counsel:

Timothy E. Breen, for the appellant;

Tracy Kozlowski, for the respondent.

This appeal was heard on July 23, 2015, before Doherty, Gillese and D. Brown, JJ.A., of the Ontario Court of Appeal. Doherty, J.A., delivered the following judgment for the court on September 15, 2015.