R. v. Rodgerson, 2015 SCC 38 (Criminal Law — Murder — Charge to Jury — Evidence — Post‑offence conduct)

On appeal from a judgment of the Ontario Court of Appeal (2014 ONCA 366), setting aside the accused’s conviction for second degree murder and ordering a new trial.

R was charged with first degree murder in connection with the death of Y. At trial, there was no dispute that R caused Y’s death. R’s primary defence was self‑defence, but he also relied on lack of intent, provocation, and an absence of evidence establishing first degree murder. He testified that after he and Y engaged in consensual sexual activity, a heated exchange occurred and she attacked him with a knife. A physical struggle ensued, culminating in Y’s death. R maintained that he did not intend to kill or seriously injure Y. Rather, he testified that he used only moderate force, and that her death was accidental. To rebut R’s position on the amount of force used and the issue of intent, Crown counsel relied on forensic analysis of Y’s injuries and of bloodstains found at R’s home, as well as on evidence of R’s post‑offence efforts to conceal Y’s body and to clean up the scene of her death. The Crown also led evidence that R fled from the police, and initially lied to them about who was responsible for Y’s death.

R was convicted by a jury of second degree murder. On appeal from his conviction, R maintained that the trial judge failed to properly instruct the jury on the various ways in which R’s post‑offence conduct could and could not be used. A majority of the Court of Appeal agreed and ordered a new trial on a charge of second degree murder.

Held (5:0): The appeal should be dismissed.

The Crown concedes that the trial judge erred by instructing the jury that it could consider R’s flight from and lies to the police on the issue of intent. This appeal centres on the instructions related to the remaining post‑offence conduct: R’s concealment of Y’s body, and his clean‑up of the scene of her death.

In order to establish that R was guilty of murder, rather than manslaughter, the Crown had to prove that he either intended to kill Y or to cause her bodily harm which he knew was likely to cause death. The cornerstone of its case was the nature and extent of Y’s injuries and the degree of force required to inflict them. The Crown asserted that the forensic evidence revealed a more prolonged and violent physical altercation than the version of events described by R.

It is relatively straightforward to understand how R’s efforts at concealment and clean‑up were capable of supporting the inference that he acted unlawfully. However, these efforts were also capable of supporting the further inference that R sought to conceal Y’s body and clean up the scene of her death in order to conceal the nature and extent of her injuries and the degree of force required to inflict them. This in turn could have been relevant on the issue of intent for murder: the more severe the injuries, and the more force required to inflict them, the stronger the inference that he intended to kill, or to cause bodily harm which he knew was likely to cause death.

This chain of inferential reasoning was narrow, and the relevance of the evidence was attenuated. The trial judge should have assisted the jury with a specific instruction on how to use this evidence on the issue of intent. However, the sections of the jury charge relating to intent failed to link the concealment and clean‑up evidence to the nature and extent of Y’s injuries and the force required to inflict them. Rather, the charge merely reiterated the existence of this evidence, and instructed the jury to consider it along with all the other evidence. This was a legal error that created a risk that the jury might convict R for murder based only on the broader inference that the concealment and clean‑up pointed to a consciousness of guilt and a desire to prevent discovery of an unlawful killing.

After the jury rejected self‑defence, the issue of R’s intent was the central issue at trial. Moreover, the Crown’s case was not overwhelming. As a result, the curative proviso does not apply and R is entitled to a new trial for second degree murder.

Both the Crown and the dissenting judge in the Court of Appeal expressed concern that requiring a more specific instruction on the concealment and clean‑up evidence would further fuel the trend towards lengthier and more complex jury charges. While these concerns are valid, a few modest alterations would have saved this jury charge from legal error. At the same time, a great many of the instructions that were included could and should have been removed. The length, repetitiveness, and complexity of the charge were unwarranted.

A trial judge must strike a crucial balance by crafting a jury charge that is both comprehensive and comprehensible. Over‑charging is just as incompatible with this duty as is under‑charging. Trial judges have taken to quoting large extracts from model charge manuals to safeguard their verdicts from appeal. But model charge manuals do not necessarily translate into model charges. They are there to guide, not govern. The failure to isolate the critical issues in a case and tailor the charge to them inevitably makes the instructions less helpful to the jury. The fundamental purpose of the jury charge must be to educate, not complicate.

The judgment of the Court was delivered by Moldaver J.

Neutral Citation: 2015 SCC 38 Docket No.: 35947.