R. v. Cafe, 2019 ONCA 775

JURY INSTRUCTIONS - LIABILITY FOR MURDER - AFTER-THE-FACT CONDUCT

BACKGROUND

Cafe was convicted of the first-degree murder of Burnett, his neighbour and acquaintance. Following the murder, he sent text messages to friends boasting about the murder (Ex: “Second murder of the year belongs to me…” and “whent from a solider to a killing g rest in peace George B he was a straight og*”), wrote incriminatory rap lyrics (Ex: “red, red, red rum, why’s my hands covered in dead man’s blood”) and posted photographs of the crime scene (including photos of the deceased taken before police had arrived on scene) on his Facebook page. The Appellant also wrote a letter to an inmate (Mwanza) asking him to lie to the Appellant’s lawyer about the Appellant’s whereabouts on the night in question.

*The ONCA tragically defined OG as “old school gangster” rather than its true meaning “original gangster”

The Appellant’s first statement to the police denied any involvement in the murder. He later provided police with a full confession; he told police he heard voices in his head. This confession included details of how the Appellant planned and committed the murder (such as bringing his own gloves, knife and a rock/brick in a bag). The Appellant made three subsequent statements claiming his innocence and that he had falsely confessed. At trial, he again admitted to the murder blaming it on the voices in his head but denied any planning or deliberation.

Issues on Appeal

(1) Instructions on Liability for Second Degree Murder

A trial judge’s instructions on second degree murder (s. 229(a)(ii)) must make it clear to the jury that the accused must intend to cause serious bodily harm which they subjectively know is likely to cause death. In this case, the trial judge used the phrase “that one knows is likely to cause death”. Although not an ideal jury instruction, this sufficiently conveyed the required subjective standard. The trial judge made it clear that the “requisite state of mind is either (1) intent to kill or (2) intent to cause serious bodily harm that one knows is likely to cause death.” Given that the Appellant was acting alone, there was no possibility of confusion that this state of mind referred to anyone other than the Appellant. Even if this instruction was deemed erroneous, s. 229(a)(ii) was not really in issue. The evidence at trial, including the Appellant’s testimony, established an intent to kill. The issue at trial was whether the killing was planned and deliberate

(2) After-the-Fact Conduct

The Appellant argues that the trial judge erred in finding that the rap lyrics, Facebook content and text messages were relevant to planning and deliberation. The ONCA dismissed this argument. The admissibility of post-offence conduct and the permitted uses by the trier-of-fact depends on the nature of the evidence, the issues in the case and the positions of the parties. After-the-fact conduct may assist a jury in distinguishing between differing levels of culpability including whether a murder was planned and deliberate (See R v Adan 2019 ONCA 709). The text messages and Facebook posts were capable of supporting motive. The trial judge left it open to the jury to determine whether the evidence was more consistent with his statement to the police (that the killing was to insult God) or with his trial testimony (that he was obeying voice commands). 

The fact that the text messages and Facebook posts did not immediately follow the killing, after-the-fact conduct is often temporally removed from the incident to which it relates (See R v McGregor, 2019 ONCA 307). The probative value of post-offence conduct derives from the inferences the evidence supports, not from the temporal proximity of the actions. 

As the ONCA outlined in McGregor, the trial judge must (1) identify the after-the-fact conduct evidence, (2) explain the  permitted uses of the evidence, (3) explain the prohibited uses of the evidence and (4) jury must be told to take alternative explanations for the conduct into account. The ONCA concludes that the trial judge’s instruction satisfied these elements. 

Additional Issue Re: Judge’s Jurisdiction

When the jury returned a verdict of guilty, the trial judge (with the consent of counsel) discharged the jury. During the sentencing hearing, defence counsel requested a hearing to determine whether the Appellant was not criminally responsible on account of mental disorder (under s. 16). Trial judge held that only the jury could make this determination. The ONCA agrees. 

TAKE-AWAY: Jurisdiction to determine NCRMD did not pass from the jury to the judge upon discharge of the jury. Trial judge does not have jurisdiction to interfere with the jury’s verdict.

Trotter JA, writing for the court, dismissed the appeal.