R. v. Rodgerson (J.), (2014) 319 O.A.C. 254 (CA)

• Judge: Doherty, Feldman and MacPherson, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 11, 2013
• Jurisdiction: Ontario
• Citations: (2014), 319 O.A.C. 254 (CA);2014 ONCA 366

R. v. Rodgerson (J.) (2014), 319 O.A.C. 254 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. MY.020

Her Majesty the Queen (respondent) v. Jason Rodgerson (appellant)

(C56484; 2014 ONCA 366)

Indexed As: R. v. Rodgerson (J.)

Ontario Court of Appeal

Doherty, Feldman and MacPherson, JJ.A.

May 8, 2014.

Summary:

The accused was charged with first degree murder and convicted of the included offence of second degree murder. The trial judge imposed a sentence of life imprisonment without eligibility for parole for 14 years. The accused appealed his conviction and sentence.

The Ontario Court of Appeal, MacPherson, J.A., dissenting, held that the trial judge misdirected the jury on the use it could make of the accused's post-offence conduct and the error was fatal to the conviction. The court ordered a new trial on the charge of second degree murder.

Criminal Law - Topic 239

General principles - Statutory defences or exceptions - Self-defence - The accused was charged with first degree murder and convicted of second degree murder - He appealed, submitting, inter alia, that the trial judge erred in his instruction on self-defence, specifically on the issue of retreat where the accused was in his own home - When instructing on s. 34(2), the trial judge told the jury that the defence was not available if the Crown proved beyond a reasonable doubt that the accused did not reasonably fear that the deceased would kill or seriously injure him - In the course of explaining this instruction, the trial judge said: "[The accused] was on his own premises when these events occurred. There is no obligation on a person who is in his own premises to retreat from an attacker. However, the matter of retreat is a factor to consider." - The Ontario Court of Appeal held that the trial judge properly instructed the jury on the relevance of the accused's attempted retreat as it related to s. 34(2) - He also properly instructed the jury on the requirement in s. 35(c) that the accused decline further conflict and quit or retreat from it as far as was feasible to avail himself of the defence of self-defence described in s. 35 (i.e., in case of aggression) - See paragraphs 32 to 42.

Criminal Law - Topic 239

General principles - Statutory defences or exceptions - Self-defence - The Ontario Court of Appeal stated that "Retreat to the extent 'feasible' is a specific element of the defence of self-defence as described in s. 35 ['self-defence in case of aggression']. Nothing in the language of the section suggests that the retreat requirement is inapplicable if the accused, who is the initial aggressor or has provoked the assault, is in his own home. The policy reasons that render retreat an inappropriate requirement when a person is attacked in his own home have much less force if the homeowner has provoked the attack by his assaultive or provocative conduct." - See paragraph 40.

Criminal Law - Topic 1263

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

Criminal Law - Topic 1265

Murder - General principles - Jury charge - General - The accused was charged with first degree murder and convicted of second degree murder - He appealed, submitting, inter alia, that the trial judge misstated the foreseeability requirement in s. 229(a)(ii) of the Criminal Code when he told the jury that the Crown had to prove that the accused "saw the likelihood that Amber Young could die from the injury" - The Ontario Court of Appeal held that this instruction appeared to conflate the foreseeability requirement in s. 229(a)(ii) ("likely to cause death") and the largely redundant requirement of recklessness in s. 229(a)(ii) ("is reckless whether death ensues or not") - The impugned instruction was given during the trial judge's description of the elements of self-defence, although a similar brief passage also appeared in his instructions on intoxication - However, in his instruction dealing specifically with the state of mind required for murder, the trial judge, on at least three occasions, correctly set out the foreseeability requirement in s. 229(a)(ii), namely that the Crown had to prove that the accused foresaw Amber Young's death as the probable consequence of his assault on her - This avoided any realistic possibility that the jury might have been confused or misled by the earlier and arguably slightly different instructions in the self-defence instruction - Further, the foreseeability requirement in s. 229(a)(ii) was readily explainable and understandable, and defence counsel failed to object, also supporting the view that, as a whole, the instructions adequately conveyed the mental state required to prove murder under s. 229(a) - See paragraphs 22 to 26.

Criminal Law - Topic 1265

Murder - General principles - Jury charge - General - The accused was charged with first degree murder and convicted of second degree murder - He appealed, submitting, inter alia, that the trial judge told the jury that it could "assume" that the accused intended to cause Amber Young's death if the jury was satisfied that the accused's actions in fact caused Young's death - The Ontario Court of Appeal held that the trial judge's instructions could not be read in that way - The jury was told to consider all of the evidence, including the manner in which Young died in determining whether the common sense inference would assist in determining the accused's intent - Nor, did the trial judge's failure to specifically articulate the defence arguments in the context of the common sense inference instruction constitute non-direction amounting to misdirection - The defence position came through loud and clear in the course of the trial judge's instructions - See paragraphs 27 to 31.

Criminal Law - Topic 1299

Offences against person and reputation - Murder - Defences - Jury charge (incl. intent and drunkenness) - [See first Criminal Law - Topic 239 ].

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - [See second Criminal Law - Topic 1265 ].

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - [See first Criminal Law - Topic 1265 ].

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 "Post-offence conduct is potentially circumstantial evidence of a fact in issue. Its relevance depends on whether, considered in the context of the rest of the evidence, the issues raised at trial and the positions of the parties, it makes the existence or non-existence of a fact in issue more likely ... Like all circumstantial evidence, post-offence conduct may be relevant to some issues and not to others. Relevance to one material issue is generally a ticket to admissibility. ... Thus, evidence of flight from the scene of an assault is relevant to the issue of identity as it is more likely that the individual who fled the scene was the perpetrator of the assault. Evidence of flight is, however, irrelevant to the nature of the assault inflicted as flight does not make it more likely that the person who fled stabbed rather than struck the victim ... Like other evidence, if evidence of post-offence conduct is relevant to one fact in issue but not to others, a limiting instruction to the jury may be necessary. Post-offence conduct need not point to only one reasonable inference to be relevant and admissible to prove a fact in issue. If the inference urged by the Crown is reasonably available, the post-offence conduct will be left with the jury who, after considering any competing inferences available, will determine what effect, if any, should be given to the post-offence conduct evidence" - See paragraphs 50 and 51.

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 was convicted of the second-degree murder of Amber Young - On appeal, the accused submitted, inter alia, that the trial judge erred in his instructions as to the use the jury could make of the accused's post-offence conduct - That conduct fell into three categories: (1) the accused's efforts to dispose of Young's body, including digging a grave, stripping her body, removing her jewellery, burying her body, and pouring bleach over her body in the grave; (2) the accused's efforts to clean-up the scene of the homicide and remove all evidence connecting Young to the house; and (3) the accused's attempted flight and his lies to the police, both when he was first arrested and in the later interview, when he claimed he was not involved in Young's death and suggested that his roommate was involved - The trial judge told the jury that the evidence of the accused's post-offence conduct had five potential uses, including to assist the Crown in proving that the accused had the state of mind required for murder under s. 229(a) of the Criminal Code - The Ontario Court of Appeal noted that the trial judge's only reference to the manner in which the jury could use post-offence conduct came in his general instructions on post-offence conduct as a kind of evidence - The trial judge told the jury that the evidence was relevant if it showed that the accused "was conscious of having committed an offence, including the offence charged" - That instruction was inadequate insofar as it was directed at the use of post-offence conduct to infer the accused's state of mind - If the post-offence conduct showed only a consciousness by the accused that he had "committed an offence" it had no probative value regarding intent - A more specific inference was necessary - In the jury instructions regarding the intent required for murder, the trial judge said nothing about how the jury could use the post-offence conduct in determining the accused's state of mind - He simply told the jury that it could consider the post-offence conduct when deciding whether the Crown had proved the required intent - The instruction told the jury that the post-offence conduct including the burial of the body and the clean up of the murder scene could assist the Crown in proving the intent required for murder - The instruction gave no hint as to how the evidence could do that - The trial judge's failure to relate the post-offence conduct to the issue of intent by explaining to the jury the findings necessary before the post-offence conduct had probative value on intent constituted non-direction amounting to misdirection - The court ordered a new trial on the second-degree murder charge - The curative proviso (s. 686(1)(b)(iii)) could not be applied - Once the jury got beyond self-defence, the accused's state of mind was the central issue at trial - See paragraphs 43 to 79.

Criminal Law - Topic 4950

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - General - [See second Criminal Law - Topic 4399.9 ].

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 second Criminal Law - Topic 4399.9 ].

Cases Noticed:

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. 23].

R. v. Moo (K.S.) (2009), 253 O.A.C. 106; 247 C.C.C.(3d) 34; 2009 ONCA 645, refd to. [para. 23].

R. v. MacDonald (P.D.) (2008), 239 O.A.C. 199; 92 O.R.(3d) 180; 2008 ONCA 572, refd to. [para. 25].

R. v. Forde (S.C.) (2011), 285 O.A.C. 77; 277 C.C.C.(3d) 1; 2011 ONCA 592, refd to. [para. 34].

R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178 N.R. 161; 79 O.A.C. 81, refd to. [para. 39].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26, refd to. [paras. 45, 83].

R. v. Angelis (D.) (2013), 300 O.A.C. 367; 2013 ONCA 70, refd to. [para. 45].

R. v. Teske (P.) (2005), 202 O.A.C. 239; 32 C.R.(6th) 103 (C.A.), refd to. [paras. 49, 86].

R. v. Panghali (M.S.) (2012), 328 B.C.A.C. 256; 558 W.A.C. 256; 2012 BCCA 407, refd to. [paras. 48, 88].

R. v. White (D.R.), [2011] 1 S.C.R. 433; 412 N.R. 305; 300 B.C.A.C. 165; 509 W.A.C. 165; 2011 SCC 13, refd to. [paras. 50. 93].

R. v. Peavoy (D.M.) (1997), 101 O.A.C. 304; 34 O.R.(3d) 620 (C.A.), refd to. [para. 50].

R. v. P.J.B. (2012), 298 O.A.C. 267; 2012 ONCA 730, refd to. [para. 50].

R. v. J.A.T. (2012), 290 O.A.C. 130; 288 C.C.C.(3d) 1; 2012 ONCA 177, refd to. [para. 50].

R. v. Allen (G.W.) (2009), 464 A.R. 208; 467 W.A.C. 208; 2009 ABCA 341, affd. (2010), 408 N.R. 136; 493 A.R. 153; 502 W.A.C. 153 (S.C.C.), refd to. [para. 51].

R. v. Wiltse (J.W.) and Yarema (M.W.) (1994), 72 O.A.C. 226; 19 O.R.(3d) 379 (C.A.), appld. [para. 54].

R. v. Marinaro (G.), [1996] 1 S.C.R. 462; 197 N.R. 21; 91 O.A.C. 117, reving. (1994), 76 O.A.C. 44; 95 C.C.C.(3d) 74 (C.A.), appld. [para. 54].

R. v. Figueroa (N.) et al. (2008), 233 O.A.C. 176; 232 C.C.C.(3d) 51; 2008 ONCA 106, appld. [para. 54].

R. v. Feng (C.M.) (2012), 319 B.C.A.C. 151; 542 W.A.C. 151; 2012 BCCA 153, appld. [para. 54].

Azoulay v. R., [1952] 2 S.C.R. 495, refd to. [para. 71].

R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1, dist. [paras. 73, 92].

R. v. Van (D.), [2009] 1 S.C.R. 716; 388 N.R. 200; 251 O.A.C. 295; 2009 SCC 22, refd to. [para. 79].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 34(2) [para. 32 et seq.]; sect. 35(c) [para. 39]; sect. 229(a)(ii) [para. 22].

Authors and Works Noticed:

Watt's Manual of Criminal Jury Instructions, p. 195 [para. 100].

Counsel:

Catriona Verner, for the appellant;

Megan Stephens, for the respondent.

This appeal was heard on December 11, 2013, by Doherty, Feldman and MacPherson, JJ.A., of the Ontario Court of Appeal. The Court of Appeal delivered the following decision on May 8, 2014, which was comprised of the following opinions:

Doherty, J.A. (Feldman, J.A.) - see paragraphs 1 to 79;

MacPherson, J.A., dissenting - see paragraphs 80 to 109.