R. v. Williams, 2019 ONCA 846

CLOSING SUBMISSIONS - MENS REA - MURDER - JURY INSTRUCTIONS

Prior to returning the verdict, the jury asked a question that made it apparent it was misled by the Crown’s description of the mens rea required for murder. The Appellant alleges that the trial judge erred by failing to correct this misstatement of the law and by failing to sufficiently clarify the law. At trial, however, defence counsel did not object to the Crown’s misstatements.

In their closing submissions, the Crown described the mens rea for murder as (1)  “ought to have known his actions would cause death…” and (2) “ought to believe that it would likely cause or he [the Appellant] just didn’t put his mind do it. He was reckless to that, okay.”

The language in the first excerpt was declared unconstitutional in R v Martineau, [1990] 2 SCR 633, where the court made it clear that a murder conviction cannot be sustained on any mens rea less than subjective foresight of death. In R v Cooper, [1993] 1 SCR 146, the court clarified that the proper mens rea for muder (under s. 229(a)(ii)) requires the Crown to prove the accused’s (1) subjective intent to cause bodily harm, and (2) subjective knowledge that the bodily harm is of such a nature that it is likely to result in death.

During his instruction to the jury, the trial judge repeatedly emphasized the proper mens rea for murder, and repeatedly told the jury that if they did not find the Appellant met this state of mind their determination should be manslaughter. Notably, however, no one referred to the Crown’s misstatements.

On the first day of deliberations, the jury asked which state of mind (pre, present or post testimony) could be used as evidence. On the second day of deliberations, the jury sought clarification on the meaning of “ought to know” and “reckless”. Neither of these terms appeared in the trial judge’s jury charge. The trial judge provided a definition for these terms which in effect reinforced the Crown’s misstatements. Shortly after, the Crown advised the court of her misstatements. The trial judge recalled the jury and clarified that “ought to know” is not part of their consideration or concern. Unfortunately, however, the trial judge advised the jury that their focus should be recklessness.

There were two problems with this instruction: (1) telling the jury to focus on “recklessness” was a misdirection, and (2) the trial judge should have alerted the jury that its proper focus should be on “whether the Appellant intended to cause bodily harm... that he knew was likely to result in his uncle’s death.”

When a jury submits a question, it reveals the very problem confronting the jury. The correctness of the original jury charge cannot excuse an erroneous answer in the jury’s question. The court concluded that there was a real danger that the jury was left with an improper understanding of the mens rea for murder.

Duriansz JA, writing for the court, allowed the appeal, set aside the conviction and ordered a new trial.