R. v. Brown, 2020 ONCA 462
SECOND-DEGREE MURDER - WD INSTRUCTIONS - JURY INSTRUCTIONS
Overview
On August 30, 2012, the appellant travelled from Toronto to Peterborough to visit his friend Cory Fleetwood. The two men were drinking and smoking marijuana. The appellant made a comment to Mr. Fleetwood that his house was cluttered and messy. Mr. Fleetwood took offence to this comment, as the clutter belonged to his late father. According to the appellant, Mr. Fleetwood went to the kitchen and return with a large knife. The appellant went to Mr. Fleetwood’s room to retrieve his cell phone. As the appellant was leaving, Mr. Fleetwood who began swinging a knife towards the appellant. The appellant instinctively grabbed the knife which cut his hand. An altercation ensued. The appellant gained control of the knife and began swinging it towards Mr. Fleetwood in self-defence. The appellant described being scared, overwhelmed and in pain due to his hand injury. He could not remember how many times he hit Mr. Fleetwood with the knife
The appellant does not recall how the struggle ended but found his way from the bedroom to the bathroom and closed the door behind him to escape Mr. Fleetwood. He believed his friend was still alive due to “gurgling” sounds he was able to hear. The appellant cleaned himself and then returned to Mr. Fleetwood’s bedroom where Mr. Fleetwood’s body was lying on the floor. The appellant did not make any effort to determine whether he was dead or alive and did not seek any medical assistance. Rather, he began cleaning the scene and disposed of bloodstained items. When he returned home, the appellant lied to his ex-girlfriend, brother and Toronto Hospital staff about his injury and the events of the night prior.
Procedural History - At trial, Mr. Brown admitted to killing Mr. Fleetwood but claimed that he had acted in self-defence. The Crown argued that his after-the fact conduct such as failing to seek assistance, his clean up attempts, the fight, the disposal of pertinent evidence, and lies told to various people, were inconsistent with with a self-defence claim. The jury convicted Mr. Brown of second-degree murder and sentenced him to life without the possibility of parole for 13 years.
Conviction Appeal
Issue 1: Did the Crown and the Trial Judge Misstate the Forensic Evidence?
During Crown counsel’s cross-examination of the appellant and during her closing address, she repeatedly stated that Mr. Fleetwood had received “30 stab wounds.” The appellant submits that this was a serious misstatement of the evidence adduced by Dr. Rose, as Dr. Rose expressed that only some of the knife wounds were stab wounds. Dr. Rose described some of the knife wounds as incised wounds (longer as opposed to deeper) and some as stab wounds (deeper as opposed to longer). The appellant submits that it was necessary for both the trial judge and Crown to distinguish between the two types of wounds, rather than categorizing all knife wounds as stab wounds. This distinction is important, as the way in which the incised wounds were inflicted were found to be consistent with the appellant’s recollection of swinging the knife blindly in order to defend himself from Mr. Fleetwood. On appeal, however, Justice Doherty ultimately found that using the phrase “30 stab wounds” was not a misstatement of evidence and did not mislead the jury in a material way.
Issue 2: Was the WD jury instruction adequate?
The appellant submits (1) that the jury was not properly instructed to consider his testimony in accordance with the three-step process described in R. v. W.(D.), [1991] 1 SCR 742, (2) that the WD instruction pertaining to self-defence was incomplete and confusing, and (3) that there was no WD instruction pertaining to the provocation defence or mens rea requirement.
In R .v. W.(D.), the Supreme Court held that a trial judge has a responsibility to instruct the jury that:
They must acquit if they believe to be true the evidence of the accused;
They must acquit if they do not believe the evidence of the accused but are left in reasonable doubt;
Even if there are not left in reasonable doubt by the evidence, they are obligated to ask themselves if they are convinced beyond a reasonable doubt that they accused is guilty based on the evidence they do accept.
The trial judge in this case provided the jury with thorough instruction about the presumption of innocence and required burden of proof. The jury was told that if they believe the accused acted in self-defence or had a reasonable doubt in consideration to the evidence, they must acquit. While the trial judge gave the WD instruction after his description of the first element of the defence of self-defence and before the second and third elements, ONCA this would not affect 12 reasonable jurors in any way. The jury was instructed that if there was any doubt as to the applicability of the accused’s claim of self-defence, they were required to acquit Mr. Brown.
ONCA concluded that although the third prong of the WD instruction was not recited, it was a harmless legal error. The third prong of WD requires the trial judge to inform the jury that they are only able to convict Mr. Brown if they believe the Crown has proven guilt beyond a reasonable doubt. Although the trial judge in this case did not explicitly reference the third prong of WD, the trial judge nonetheless expressed repeatedly that the Crown was required to prove each essential element beyond a reasonable doubt.
Issue 3: The instruction on the mens rea for murder.
While the judge correctly identified the mens rea requirement for murder (intent to cause serious bodily harm that could result in death), he misspoke when he stated that he had instructed the jury about this requirement. The trial judge reviewed the evidence that was relevant in great detail and stated that the evidence must be examined as a whole, to ensure the jury was aware of the Crown’s burden of proof. While the jury was deliberating, they asked the trial judge to clarify the state of mind that is required for a murder charge. The trial judge provided a concise response and therefore, although there was a misstatement in his initial instructions, his answer to the jury question clarified the requisite mens rea for murder.
Issue 4: Did the trial judge err in his response to the jury’s question on provocation?
The jury asked three questions related to the trial judges’ instructions on provocation. The appellant takes issue with the third question which relates to the legal definition of “loss of self-control”. The trial judge instructed the jury that words should be given their ordinary meaning and proceeded to instruct the jury to apply the ordinary person standard when considering loss of self-control.
The appellant submits that the trial judge erred in focusing on this standard. Rather, the other elements of the defence of provocation that speak to Mr. Brown’s subjective state of mind should have been explicitly instructed to the jury.
Doherty JA concluded that the trial judge was correct in focusing his answer on the particular question that was asked by the jury and therefore it was not necessary to instruct the jury on the other elements of the provocation defence in answering the jury’s question.
Issue 5: Did the trial judge misstate the appellant’s evidence?
The trial judge repeatedly instructed the jury that he found his way to the bathroom in order to clean up. The appellant, however, asserts that he went to the bathroom to escape Mr. Fleetwood. The appellant submits that by misstating his purpose in going into the washroom, the trial judge undermined the appellant’s self-defence claim.
While a couple of the trial judge’s references to the evidence can be described as potentially misleading, Justice Doherty concluded that when taken together these statements did not vitiate the verdict. The trial judge reminded the jury of their responsibility determine which facts and their recollection of the evidence mattered.
Moreover, the after-the-fact conduct, when considered as a whole, provided evidence that the appellant was not acting in self-defence. While Mr. Brown did initially enter the bathroom to escape Mr. Fleetwood, his subsequent behaviour (attempting to clean up the blood, not seeking help, disposing of evidence) was not consistent with self-defence. As such, Justice Doherty found that the trial judge did not misstate the appellant’s evidence.
Sentence Appeal
The trial judge increased the parole eligibility from 10 years to 13 years due to (a) the violent nature of the murder, (b) the trial judge’s finding that the accused was the aggressor and (c) based on the accused’s past criminal record. The physical evidence and the appellant’s after-the-fact conduct greatly supported the trial judge identifying the appellant as the aggressor. While the judge did not specify that his decision was made based on the reasonable doubt standard, there was nothing to suggest that he applied the wrong standard. The Court of Appeal therefore concluded that the trial judge did not err in law, and the imposed sentence was not demonstrably unfit.
Both the conviction and sentence appeal are dismissed. Read the full case here.