The Defence Toolkit – August 30, 2025: A Group Attack

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After the Fact Conduct | Jury Charge - Directed Verdict | Self-Defence

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Posted On 30 August 2025

This week’s top three summaries: R v Sels, 2025 ONCA 592: #defence v group, R v Singh, 2025 ONCA 498: directed #verdict guilty?, R v Pierre, 2025 ABCA 589: #instructions after-the-fact

R v Sels, 2025 ONCA 592

[August 14, 2025] Self Defence: Against a Perceived Group Attack [Reasons by Pomerance J.A. with B.W. Miller and D.A. Wilson JJ.A. concurring]

AUTHOR’S NOTE: The assessment of self-defence by a trier of fact is inherently context-specific. A critical contextual factor in this analysis is whether the accused reasonably perceived the threat as coming from a group. The perception of a group attack can justify a more forceful response and may render the use of a weapon reasonable, even if the individual assailants were unarmed. In the present case, the trial judge failed to properly contextualize the accused’s response by considering the collective nature of the threat he faced. Rather than assessing the defence in light of the overall situation, the jury was instructed to evaluate each alleged victim separately. This segmented approach undermined the proper application of the law of self-defence in group scenarios and increased the likelihood of conviction by disregarding a key element of the accused’s perception and response.

[1] A memorial to celebrate the life of a co-worker turned into a tragic event. An angry confrontation culminated in the appellant stabbing three persons, killing one. The event took place in a duplex. The woman who lived next door—the mother of the appellant’s friend—was invited to join the gathering, but was asked to leave due to her erratic and disruptive behaviour. She continued to disrupt the event, 2025 ONCA 592 (CanLII) causing tensions to mount. The appellant tried to intervene when he saw her being assaulted. He too was then assaulted. He was confronted with seven people, whom he perceived as an “angry mob”. He grabbed a knife and waved it in front of him, stabbing three people. One of them died. The other two were injured.

[2] The appellant was charged with one count of second-degree murder, one count of aggravated assault, and one count of assault with a weapon. At trial, he testified that he acted in defence of himself and his friend’s mother. He did not expressly rely on provocation, but his counsel asked the trial judge to leave that defence with the jury.

[4] I would allow the appeal. I agree that the instructions on self-defence did not adequately equip the jury to evaluate the reasonableness of the appellant’s reactions….

A. BACKGROUND

[6] Theresa Grasley is the mother of one of the appellant’s friends. She lived in a duplex and shared a deck with the unit next door. On September 14, 2018, her next-door neighbour hosted a celebration of life for a colleague who had taken his own life. Grasley was invited to join. The appellant came too. He testified that he was there to “babysit” Grasley, who had been drinking heavily, had snorted “speed pills”, and was “sloppy and stumbling sometimes”.

[7] Grasley behaved erratically all evening. She was eventually asked to leave the event. Upon returning to her unit, she continued to antagonize the group. She yelled at the attendees, used her door to block the path to the door they were using, and eventually started to grab hats from guests’ heads and lunge at people. Witnesses gave varied accounts of what later occurred. What is clear is that things became physical between Grasley and other attendees. At one point, Grasley called out for the appellant by yelling his name. By this time, he too had returned to Grasley’s home.

[8] The appellant admitted that he caused the death and the injuries. He took the position that he was acting in self-defence. He testified that growing up, his home was marked by domestic violence and abuse from both his father and stepfather. He was diagnosed with PTSD and took medication for it. The appellant was concerned about Grasley, who had various ailments, was frail, and had mobility issues. He testified that when Grasley returned to her unit, she was crying, and said that she had been thrown out of the gathering and called a number of names, including “whore”.

[9] Just before the stabbings, the appellant saw Grasley holding her front door open, with roughly 10 people on the deck on either side of the door. The scene was chaotic. The appellant went to get a cigarette, and then he heard Grasley scream his name. He ran toward the door. When he reached the threshold, he saw two women attacking Grasley, one punching her five or six times in the shoulder, the other punching her in the head. He also saw Charles St. Jean—eventually the deceased—with his hands on Grasley.

[10] The appellant pushed the attackers back and pulled Grasley back into her unit. The group outside the unit—including St. Jean, Charles Leduc, Stephanie Martin, and four others behind them—then stepped toward him. Many of them were yelling. As the group was moving in, the appellant noticed a knife on a table beside the couch. He grabbed it, held it in front of himself and told the group to back up.

[12] The group seemed to back up, and the appellant turned his head to look for Grasley. At that point, St. Jean and Leduc punched him in the head. People in the group behind them were also trying to push ahead into Grasley’s unit. The appellant began swinging the knife frantically. He testified that he could not retreat into the unit because Grasley was directly behind him.

[13] St. Jean had been stabbed multiple times in the abdomen. He fell to the ground on the deck and succumbed to his injuries at the scene. Martin had a gash on her arm large enough to require 14 stitches….

B. ANALYSIS

(1) The Law of Self-Defence

(a) General Principles

[15] The reasonableness of the accused’s response turns on nine enumerated but non-exhaustive factors listed in s. 34(2). The inquiry is sensitive to relevant personal characteristics of the accused, including their size, age, gender, physical capabilities, and any history between them and the other parties: Khill, at para. 64. But it is primarily objective, in that “[t]he focus must remain on what a reasonable person would have done in comparable circumstances and not what a particular accused thought at the time”: Khill, at para. 65.

[16] Section 34 provides as follows:

34 (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

Factors

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

(b) The Relevance of a Group Dynamic

[17] ….A group dynamic, where relevant, can impact on all three stages of the analysis: the catalyst, the motive, and the response.

[18] A group dynamic stands out as particularly relevant to one aspect of s. 34(2), namely the direction in subsection (a) to consider “the nature of the force or threat”. The animating purpose of self-defence is “defending or protecting” oneself or another from a force or threat: s. 34(1)(b). As the intensity of a force or threat 2025 ONCA 592 (CanLII) increases, so too does the range of reasonable responses.[Emphasis by PJM]

[19] The force or threat posed by a group will often be qualitatively different – that is different in nature – than that posed by an individual acting alone. An accused who is outnumbered in a physical dispute may face a heightened risk of danger. A coordinated assault from multiple assailants may be more formidable than an assault from an individual assailant, or even a series of assailants.[Emphasis by PJM]

[20] The presence of a group may also bear on other factors. It may limit the other means available to the accused to respond to the potential use of force: s. 34(2)(b). It is obviously relevant to the physical characteristics of those involved in the incident: s. 34(2)(e). And it will usually bear directly on the question of proportionality: s. 34(2)(g).

[21] Authorities that have recognized the relevance of group aggression to determining whether the act committed is reasonable, characterize group dynamic as relevant to whether the accused (a) reasonably apprehended death or grievous bodily harm, and (b) reasonably believed that they could not otherwise protect themselves: R. v. Moore, 2001 BCCA 378, at para. 12. See also R. v. Bailey, 2010 BCCA 167, 253 C.C.C. (3d) 509. A more recent case, decided under the current version of s. 34, described a group dynamic as relevant to the nature of the force or threat under s. 34(2)(a): R. v. Griffith, 2019 BCCA 37, at para. 49.

[22] The significance of the group dynamic to the self-defence analysis will, of course, be fact- and case-specific. But where there is an air of reality to the claim that the accused was responding to a collective threat, posed by a group of individuals acting as a unit, the analysis must take it into account. In such cases, trial judges must direct the jury’s attention to both the individual and collective features of the dynamic giving rise to the charges.[Emphasis by PJM]

[23] As I will explain, this is one of those cases.

(2) The Jury Instructions

[24] As I will explain, I agree with the appellant that the instructions in this case did not equip the jury to understand and properly evaluate the appellant’s claim of self-defence. The instructions artificially compartmentalized the interactions between the appellant and each victim. The effect was to break the events down into watertight silos, thus preventing the jury from taking a holistic view of the evidence. This undermined the crux of the appellant’s defence, which was based on a perception of escalating violence, and threat of violence, by a group of individuals.

[26] After summarizing the evidence in some detail, the trial judge turned to the legal elements of self-defence. He began by telling the jury that it was necessary to consider the circumstances of each victim separately:

You must assess each of these circumstances as they relate to Charles St. Jean, Stephanie Martin, and Marc Andre Leduc, as the considerations and facts will not be the same for each. For example, all three were different sizes, age, and genders, and so the consideration with regard to those circumstances would be different for each.

(3) The Principles Applied: Fragmenting the Evidence

[30] ….A properly equipped jury is both accurately and sufficiently instructed: R. v. Abdullahi, 2023 SCC 19, 428 C.C.C. (3d) 1, at paras. 35, 37. The trial judge must describe the law in plain and understandable terms: R. v. Lozada, 2024 SCC 18, 436 C.C.C. (3d) 76, at para. 14.

[31] The above instructions did not properly equip the jury to decide this case. Instead, they invited the jury to artificially segment the appellant’s conduct into three separate responses to three separate instances of force or threats of force. The trial judge told the jury to consider whether the appellant’s response was reasonable vis-à-vis the force or threat of force emanating from Ms. Martin, then to consider the same question vis-à-vis Mr. Leduc, and then to consider it once more vis-à-vis Mr. St. Jean. That did not reflect the circumstances the appellant described in his testimony. While it was proper to instruct the jury to consider the use of force vis-à-vis each victim, the trial judge was obligated to go on and also tell them to consider the cumulative impact of the events as a whole.[Emphasis by PJM]

[32] As earlier noted, s. 34(2)(a) requires the trier of fact to consider the nature of the force or threat, and a group threat is different in nature from an individual one. When a group threat is involved, the trial judge must alert the jury to that aspect of the evidence. In this case, that dynamic was critical to assessing the reasonableness of the appellant’s perceptions and responses.

[34] When the appellant grabbed the knife, the altercations between Grasley and the crowd had reached a crescendo. When he came outside, he saw Grasley being assaulted by two women and he saw St. Jean “with his hands on her too”. The appellant testified that he did not know what St. Jean intended to do, but that “regardless, you don’t put hands on a woman”. The situation was dynamic and volatile.

[35] The appellant testified that when he tried to intervene, he too was assaulted. He saw several people in front of him, and testified that he saw this group as an “angry mob”, and that it was “seven people against one”. He perceived that it was necessary to act in order to protect himself and Grasley from further threats of force.

[36] The reasonableness of the appellant’s response did not hinge on a single moment in time, or the conduct of a single victim. The appellant testified that he was reacting to the global threat arising from the amalgam of events that evening— the earlier hostility toward Grasley, the assault on her, the assault on him, and his perception that an “angry mob” was moving toward him threateningly. He knew that Grasley was frail and vulnerable to injury. He testified that he acted to protect both of them from further violence. There is no evidence to suggest that the appellant consciously targeted the people he stabbed.

[37] Thus, the stabbing of St. Jean was not solely a response to the threat posed by St. Jean, any more than the stabbing of the other victims was solely a response to theirs. Given the nature of the evidence and the conduct of the trial, it was critical that the jury be instructed to view the evidence holistically—that they consider the whole picture, rather than focusing on partial, isolated images.[Emphasis by PJM]

[38] The analysis under s. 34(1)(c) is “a global, holistic exercise”: Khill, at para. 69. The broad language of s. 34(2)(c) “signal[s] that the trier of fact should consider the accused’s conduct from the beginning to the end of the ‘incident’ giving rise to the act”: Khill, at para. 82….

[39] The jury instructions in this case reflected the approach criticized in Khill. The jury was effectively told to “freeze-frame” and “fragment” the facts when assessing the reasonableness of the appellant’s actions, rather than consider his actions in the context of the actions of all parties involved in the melee.

[45] This difficulty was compounded when the jury asked a question about whether a group could constitute a force. I will turn to that now.

(4) The Jury Question

[46] During the course of deliberations, the jury asked the following set of questions:

Can you please provide us with a definition of force? We are trying to determine the use of force and proportionality of one party’s use of force versus another party’s use of force. Can a group of people be considered a “force”? Does the group need to show some form of action to be considered force?

[48] Ultimately, the trial judge concluded that he did not want to overcomplicate things for the jury. He answered the questions as follows:

So we have some questions here, and I’ll put them into the record. The note, which will be made the next jury exhibit, says, “Can you please provide us with a definition of ‘force’?” Yes, I can. The legal definition of force is an intentional touching of another person without that person’s consent. It can be a slight touching, or there can be a great deal of force involved, but that, in law, is considered to be assault, so that’s the definition of force, is an intentional touching of another person without that person’s consent.

On to the next question, “We’re trying to determine the use of force and proportionality of one party’s use of force versus another party’s use of force.” And that’s the preamble to two questions. “Can a group of people be considered a ‘force’?” The short answer is no. There’s a group of people here, but there’s no force; group of people standing at a bus station doesn’t constitute a force. Which takes us to the second question, “Does the group need to show some form of action to be considered force?” And the answer to that is, yes. There has to be something, some words or some action that would cause a reasonable person to believe that there was the threat of imminent force.

[49] Jury questions provide a glimpse into the jury room. They disclose that the jury, or some members of the jury, require assistance on a particular point. Having asked for help, it is critical that the jury receive it. The answer to the question must be correct and responsive.

[50] The question in this case went to the heart of the appellant’s claim of self defence. The jury was obviously alert to the nature of the group dynamic and the centrality of that dynamic to the appellant’s account. It is possible that the jury needed clarification because the earlier instructions dealt with each victim separately, and did not speak to the appellant’s perception of the threat posed by the group.[Emphasis by PJM]

[51] Although the answer to the question was not technically incorrect, it was likely nonresponsive. Conceptually, a group of people is not force. But depending on its object, the behaviour of a group may constitute force or a threat of force. In the trial judge’s example – a line up at a bus station, inert, standing and waiting with no necessary interaction or even awareness of the other – is not force. Significantly, however, it is not a group in the relevant sense. It lacks the dimension 2025 ONCA 592 (CanLII) of joint purpose that is central to the appellant’s defence. This case was not about bus stations. It was about a group of individuals that had been actively engaged in confrontation with Grasley, and had become increasingly reactive. The evidence established that there were a number of people on the deck at the time of the stabbings. The appellant believed that there were seven people there. Other attendees estimated anywhere from seven to 15 people. What is clear is that the scene was chaotic and that there were a number of people standing in apparent solidarity behind those who had just assaulted Grasley and the appellant.

[54] In short, the response to the question risked negating the appellant’s testimony that he perceived a threat of force from the presence of what he perceived to be an angry and similarly minded group of people.

(5) Conclusion on Self-Defence

[56] The combined effect of the instructions in the main charge, and the response to the jury question, was to improperly narrow the lens through which the jury viewed the evidence. The main charge fragmented the evidence into silos, and the answer to the jury question obscured the group dynamic from the analysis. As a result, the jury was not given the tools necessary to properly evaluate the appellant’s claim of self-defence.

C. DISPOSITION

[59] For the reasons given above, I would allow the appeal, quash the convictions, and order a new trial. Having concluded that a new trial is necessary on the grounds of appeal dealing with self-defence, it is unnecessary to address the grounds of appeal dealing with provocation. That issue is best left to be addressed at the new trial, if raised, based on the evidence adduced at that proceeding.

R v Singh, 2025 ONCA 498

[July 11, 2025] Jury Instructions: Can a Judge Direct a Verdict of Guilty?[Reasons by George J.A. with P. Lauwers and S. Gomery JJ.A. concurring]

AUTHOR’S NOTE: This decision squarely addresses the question of whether a jury can be deprived of the ability to return a verdict of not guilty in the absence of any available legal defence. The Ontario Court of Appeal answered unequivocally: no. Juries retain the power to acquit an accused if their conscience does not permit a conviction, even when the law offers no legal basis for such an outcome. While counsel cannot explicitly invite the jury to nullify, a trial judge cannot eliminate the jury’s capacity to exercise that discretion. In this case, the judge’s attempt to do so—by removing from the jury’s consideration an included offence for which no legal defence was available—constituted an error warranting a new trial.

George J.A.:

[1] This appeal raises one question: can a judge, as the trial judge did here, direct a verdict of guilt? The answer is no. Even when the chance of an acquittal is remote, an accused is entitled to the jury’s verdict. I would therefore allow this appeal and order a new trial with respect to the offence for which the trial judge directed a guilty verdict. The following reasons explain why I have reached that 2025 ONCA 498 (CanLII) conclusion.

The Trial

[5] At trial, the appellant admitted that he had communicated with someone who told him that they were under the age of 18 in order to purchase sexual services. He said he did not actually believe “Destiny” was under 18, testifying that when he received text messages indicating that “I’m young and kind of new at this” and “I have to tell u im almost 18” he thought this meant that “Destiny” was slightly over 18. He attributed this misunderstanding to the fact English was not his first language and that he had only learned to speak English six years earlier in 2013. The appellant thought that in Canada people meant what they said and that, because the advertisement said “Destiny” was 18, she must have been 18. It was also his understanding that people posting advertisements like these would often indicate an age lower than their actual age. He testified further that when he was in the hotel room with the two officers he did not hear the first officer say that “Destiny” was 17 years old.

[8] The trial judge proposed to explain to the jury that if they found the appellant not guilty of the two counts on the indictment on the basis that they had a reasonable doubt about whether he believed Destiny to be under 18, they must find him guilty of what the trial judge determined to be the lesser included offence. The appellant’s trial counsel objected again, requesting that the instruction be changed from “must” to “may”. The trial judge declined to do so.

[10] After providing the standard, non-objectionable, instructions about the elements of the charged offences, the trial judge turned to what the jury should do if they accepted the appellant’s evidence or found that it raised a reasonable doubt:

[I]f you find [the appellant] not guilty of both counts 1 and 2, if you accept [the appellant’s] trial evidence that he intended and did negotiate that he be provided with sexual services for consideration, and Exhibits 8A and B, the text messages, confirming his negotiations, then pursuant to s. 286.1 of the Criminal Code of Canada, as a matter of law, I instruct that [the appellant] be found guilty of obtaining sexual service for consideration, or communication with anyone for that purpose, regardless of the age of that person, and regardless of the mode of communication.

In other words, it is an offence in Canada for anyone to obtain sexual services for consideration or communicate with anyone for that purpose regardless of any age. Accordingly, if you find [the appellant] not guilty on counts 1 and 2, you must find him guilty under s. 286.1 of the Criminal Code. [Emphasis added.]

The Verdict

[11] When the jury returned with a verdict, the foreman responded after each count was read aloud that they had found the appellant not guilty. The jury was not asked what their verdict was on the lesser included offence they had been instructed on. The trial judge then said this:

Well, ladies and gentlemen, you’ve come to a verdict. The law does obligate me to advise that your findings dictate that there is an included offence, and he must be found guilty of the included offence. Do you understand that? Do you agree with that? [Emphasis added.]

The foreperson responded “yes”. The trial judge then asked counsel if they wanted the jury polled, which they declined.

[12] ….on the second page of the verdict sheet, the trial judge wrote the following:

[The appellant] has been found not guilty on counts 1 and 2. Pursuant to s. 286.1 of the Criminal Code as a matter of law, [the appellant] is guilty of obtaining sexual service for consideration or communicating with anyone for that purpose. [Emphasis added.]

[13] While there was a spot for each juror to initial the verdict sheet further down on the second page, there was no place for the jury to indicate whether they in fact found the appellant guilty of the lesser included offence, and no corresponding box for the jury to indicate whether they agreed specifically with the trial judge’s statement at the top of page 2.

Discussion

[14] In R. v. Krieger, 2006 SCC 47, 272 D.L.R. (4th) 410, at para. 18, a unanimous Supreme Court held:

It is true, of course, that the fate of the accused will often be sealed by their own testimony and admissions, or by the concessions and submissions of their counsel. But absent a plea of guilty, the need for a verdict remains. And in a trial by judge and jury, the verdict must be that of the jury, not the judge – unless the judge finds the evidence insufficient and directs a verdict of acquittal on that ground. [Emphasis added.]

[15] While a trial judge may direct an acquittal when there is no evidence upon which a reasonable jury, properly instructed, could convict, “there is no corresponding duty or entitlement to direct a jury to return a verdict of guilty”: R. v. Gunning, 2005 SCC 27, 253 D.L.R. (4th) 76, at para. 28.[Emphasis by PJM]

[16] The appellant put his fate in the hands of the jury, and even though the evidence against him was overwhelming (on the count for which the trial judge entered a conviction), he was entitled to their verdict. He was deprived of that.[Emphasis by PJM]

[17] The trial judge could have instructed the jury that they “should find” or “should have no difficulty finding” the appellant guilty of the lesser included offence. Instead, he himself made the finding of guilt thereby removing the question entirely from the jury. And Krieger tells us that this is problematic because, while a lawyer, as an officer of the court, cannot encourage jury nullification by inviting jurors to not follow the law as it has been explained to them, it is “well established that under the system of justice we have inherited from England juries are not entitled as a matter of right to refuse to apply the law – but they do have the power to do so when their consciences permit no other course”: Krieger, para. 27 [emphasis removed]. [Emphasis by PJM]

[18] The Crown relies on this court’s decision in R. v. MacDonald, 2008 ONCA 572, 92 O.R. (3d) 180….

….What distinguishes MacDonald from the present appeal is that Mr. MacDonald “did not want a verdict of acquittal left with the jury because that suggestion would run at cross purposes to his attempt to gain a tactical advantage by presenting himself as a ‘stand up’ person prepared to acknowledge and take responsibility for the wrong he had done”: MacDonald, at para. 33. In other words, the trial judge in MacDonald was entitled to take the verdict of acquittal away from the jury because doing so reflected the accused’s position at trial and respected his right to control his own defence. The appellant in this case made no such tactical decision.

[20] The question is always whether the verdict of guilt that was rendered was the jury’s verdict. Here it was not. Accordingly, it cannot stand.

[23] At the end of the day, while the appellant was entitled to a jury trial on the two counts charged in the Indictment, with respect to the count alleging that he had obtained sexual services from an adult for consideration, he did not get that trial.

Conclusion

[25] For these reasons I would allow the appeal and order a new trial on the offence of obtaining sexual service for consideration or communicating with anyone for that purpose, under s. 286.1(1).

R v Pierre, 2025 ONCA 589

[August 12, 2025] After the Fact Conduct on Murder: Limited Use Instruction for Level of Culpability [Reasons by David M. Paciocco J.A. with J. George and D.A. Wilson JJ.A. concurring]

AUTHOR’S NOTE: This decision of the Ontario Court of Appeal addresses the use of various forms of after-the-fact conduct evidence, including conduct said to reflect consciousness of guilt and callous disregard. The appeal centred on the trial judge’s failure to adequately instruct the jury on the limited use of such evidence in a homicide case—specifically, its inadmissibility for distinguishing between levels of culpability (i.e., murder versus manslaughter). The law recognizes the logical reality that an accused may attempt to conceal their involvement in a killing regardless of whether it ultimately amounts to murder or manslaughter. As such, after-the-fact conduct cannot be used to infer the degree of culpability, and juries must be clearly and unequivocally instructed on this limitation.

OVERVIEW

[1] John Pierre and Lesley Watterworth had been in a tumultuous relationship, fueled by substance abuse. It is not disputed that on November 1, 2016, Mr. Pierre stabbed Ms. Watterworth 69 times in a frenzied attack that caused her death. Mr. Pierre was charged with second-degree murder. The only live issue by the end of his trial was whether he had intentionally caused Ms. Watterworth’s death, thereby committing second-degree murder, or had unintentionally but unlawfully caused her death, thereby committing the offence of manslaughter.

[2] Although the horrific nature of the sustained attack strongly supports an inference that Mr. Pierre must have intended to kill Ms. Watterworth or to cause her bodily harm that he knew was likely to cause her death, he sought to raise a reasonable doubt about his intention by claiming that his mind was disordered at the time of the attack, and that he was not thinking. To support this claim, he relied on evidence about his mental health challenges, his intoxication, and a provocative comment he attributed to Ms. Watterworth immediately before he attacked her. To be clear, Mr. Pierre did not raise the discrete defences of intoxication, provocation, or mental disorder, as there was no air of reality for any of them….

[3] In support of its case, the Crown presented extensive after-the-fact conduct evidence from events that occurred both immediately after the attack and during the following eight to ten hours, culminating in Mr. Pierre’s arrest. Both parties relied heavily on this evidence in advancing their respective positions.

[4] Mr. Pierre now appeals his conviction, claiming that the trial judge’s jury charge relating to after-the-fact conduct evidence failed to properly equip the jury to decide the case according to law and the evidence. He argues that although the trial judge provided extensive assistance on the permissible use that could be made of the after-the-fact conduct evidence on the issue of Mr. Pierre’s intoxication, she incorrectly invited jurors to consider this evidence in evaluating Mr. Pierre’s mental state generally; erred in failing to provide the jury with a limiting instruction relating to the Crown’s concealment submissions; and erred by inviting jurors to conclude Mr. Pierre’s conduct after the killing was consistent with a “callous disregard” for the fact that he had just killed someone….

[5] For reasons that follow, I would allow the appeal. I am persuaded that the trial judge made each of these errors.

[8] Mr. Pierre testified that he and Ms. Watterworth had been partying for three days prior to their fatal altercation, including by using crystal meth, crack, and alcohol. He said they had not slept during this period. He testified that after their drugs ran out on the morning of November 1, 2022, Ms. Watterworth acquired additional crack cocaine which they consumed, after which he continued drinking.

[9] Later that day, approaching 3:00 p.m., the two began arguing. Mr. Pierre said that as the argument escalated, he accused Ms. Watterworth of cheating with her former boyfriend. He claimed that she responded sarcastically, saying that “it wouldn’t have happened if you wouldn’t have went to Brentwood”. He said that upon hearing this he “exploded” like a shaken pop can, his head just went somewhere, and that he took a knife off the stove and started stabbing her. He testified that he “wasn’t feeling anything at the time.” He said he blanked out for what seemed like seconds, and everything was red, like when you close your eyes and stare at the sun. He described urinating in his clothing and said his ears were ringing. He testified that he recalled having the knife and being on top of Ms. Watterworth and that she was not moving. He said that he loved Ms. Watterworth and did not mean to hurt her.

B. AFTER-THE-FACT CONDUCT EVIDENCE

[11] Apart from forensic evidence from the crime scene and pathology evidence, which I will describe below, the balance of the evidence called by the Crown related primarily to Mr. Pierre’s conduct following the killing. To be admissible, “after-the- fact conduct evidence” must, as a matter of logic and human experience, allow a trier-of-fact to draw inferences based on a person’s words or actions that are relevant to a material issue in the case: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 107, 111; R. v. McGregor, 2019 ONCA 307, 145 O.R. (3d) 641, at para. 102.

[12]….Put in simple terms, the after the-fact conduct evidence was admitted as proof that Mr. Pierre had a rational mindset at the time of the killing.

[13] This evidence can be broken down into five convenient categories: (1) evidence relating to exchanges with the neighbours; (2) evidence of Mr. Pierre’s departure without summoning help; (3) evidence of Mr. Pierre’s attempted hand washing and wearing a business suit over his overalls; (4) evidence of Mr. Pierre’s admissions about the killing; and (5) evidence of Mr. Pierre’s condition and conduct after he left the apartment.

(1) Evidence relating to exchanges with the neighbours

[14] By the time the neighbours had gathered in the backyard, the screaming had stopped. One of them, Paul Kelly, demanded from outside that Mr. Pierre bring Ms. Watterworth to the window to show that she was okay. Testimony was provided that when Mr. Pierre appeared at the window, he yelled various things in response, including “Happy Halloween”, which he kept repeating, “Do you want to smoke a joint?” and “Do you want a beer?”.

[15] Mr. Kelly testified that after the exchange through the window, he and the two downstairs neighbours went up the stairs to check on Ms. Watterworth’s wellbeing. He spoke to Mr. Pierre through the door. Mr. Pierre refused Mr. Kelly’s demand to bring Ms. Watterworth to the door, claiming that he and Ms. Watterworth were intoxicated from weed and alcohol. When Mr. Kelly threatened to call the police, Mr. Pierre told Mr. Kelly to go ahead, because the police were friends of his.

(2) Evidence of the departure of Mr. Pierre without summoning help

[16] None of the neighbours called the police despite Mr. Kelly’s threat to do so. It is not contested that Mr. Pierre left the apartment without summoning the police or seeking medical assistance for Ms. Watterworth.

(3) Evidence of Mr. Pierre’s attempted hand washing and wearing a business suit over his overalls

[17] Forensic evidence subsequently gathered from the apartment suggested that, before he left, Mr. Pierre may have attempted to wash his hands. However, his hands were soiled and still had traces of blood when he was arrested hours later. Evidence was also presented that he was wearing a business suit when he left the apartment. As I will describe below, when Mr. Pierre was arrested hours later, he was found to be wearing the business suit over the overalls he had been wearing at the time of the stabbing.

(4) Evidence of Mr. Pierre’s admissions about the killing

[18] After he left the apartment Mr. Pierre visited a friend, William Borders, between 3:30 p.m. and 4:00 p.m. While at Mr. Border’s house, he wrote a note on paper he had borrowed that, “I killed Windsor’s worst in 15 years.” He told Mr. Borders he had killed Ms. Watterworth but Mr. Borders did not believe him.

(5) Evidence of Mr. Pierre’s condition and conduct after he left the apartment

[19] According to Mr. Borders, after Mr. Pierre wrote his confession note, he put the note in his mouth, chewed it and put it in an ashtray. He then borrowed money from Mr. Borders and left, expressing his disbelief that Mr. Borders did not believe him. Mr. Borders testified that Mr. Pierre appeared to be “edgy” and “nervous” and “everything seemed odd”, including how Mr. Pierre spoke, but he said that Mr. Pierre appeared to be sober, and he denied giving Mr. Pierre drugs, as Mr. Pierre later claimed in his testimony.

[20] At 4:52 p.m., Mr. Pierre was captured by security video arriving at the Beer Store nearby, where he was known to be a regular. A Beer Store employee who knew Mr. Pierre as a customer said he was “more talkative”, “strange”, “extra friendly” and “weird” but did not appear to be impaired. This assessment was….

….However, security video footage shows that while in the Beer Store Mr. Pierre placed an empty beer can on the counter and replaced it with a full can which he then purchased. He can also be seen to stagger as he held onto the conveyor belt near the cash.

[21] Mr. Pierre’s movements that day were next witnessed at the Keg restaurant at approximately 6:15 p.m., where he was again captured by security video. A restaurant manager found Mr. Pierre to be shaky, nervous and on edge, as did the General Manager. Mr. Pierre tried to order two beers from the hostess stand before he sat down. When the restaurant manager took his order, he ordered beer, a glass of champagne, and food. The restaurant manager reported to the General Manager that Mr. Pierre was “shaking and sweating” and “not acting normal”, and his server said he appeared to be drunk and slurring. When he could not pay for the bill, Mr. Pierre left his health card, promising to pay the bill later. The General Manager said he was not in his “right state of mind”.

[22] Mr. Borders testified that at around 7:00 p.m., Mr. Pierre returned to his house with what appeared to be three beers. Mr. Borders testified that his demeanor was very different than it had been on his earlier visit, and he appeared as if he had been drinking. Mr. Pierre was not welcomed, but before he left, he gave Mr. Borders a baseball with the words written on it, “Johnny Pierre, 2016. Happy Halloween. Good wishes to that are my friends”.

[24] At 11:42 p.m., Mr. Pierre entered the Windsor casino and went to a restaurant inside. He ordered “the largest thing on the menu” and a beer. He was described as “quiet”, “uneasy”, “fidgety” and “sweating” and he was “staring off a lot”. He later told the manager that he could not pay the bill. The manager said he seemed “not present mentally”. An OPP officer stationed at the casino became involved and after discovering that Mr. Pierre had an outstanding warrant, he arrested him.

[25] At the time of his arrest, Mr. Pierre was wearing a business suit without a tie, dress-shoes, and mismatching socks. He also had a toque and sunglasses with him. When he was being searched at the holding cell, he said “Wait till you see the blood on my clothes. I’m covered in blood.” It was then that police discovered that he was wearing the business suit over the overalls he had been wearing at the time of the attack. The overalls were soaked in blood. He was described as “jittery” “distracted” and “hyperactive” in the cell and he proposed showing the police “where the body is.”

D. OTHER DEFENCE EVIDENCE

[27] In addition to testifying in his defence, Mr. Pierre called Dr. Fabian, a psychologist, who examined him after the killing. Dr. Fabian testified that Mr. Pierre had experienced traits of Post Traumatic Stress Disorder. He expressed the opinion that Mr. Pierre had other specified trauma and stress related disorder. Mr. Pierre also had low self-esteem, some degree of depression, a mild neurocognitive disorder attributable to numerous concussions, antisocial personality disorder, various substance abuse disorders and borderline intellectual functioning. The result was that he had problems with impulse control, purposeful action, problem-solving and aggression.

F. THE JURY CHARGE

[37] The trial judge did an admirable job in reviewing the general legal principles that apply in determining guilt and evaluating evidence. She did not, however, give the jury a general instruction relating to after-the-fact conduct, as is customarily done in a case where after-the-fact conduct evidence is presented.

[39] She also instructed the jury to consider evidence of the three factors: intoxication, the remark made by Ms. Watterworth, and “Mr. Pierre’s mental disturbances”, “and their combined effect in assessing whether the Crown has proved that Mr. Pierre had the required state of mind for murder at the time he killed Ms. Watterworth.”

[40] She then said that she was going to turn to the issue of intoxication. She reviewed the consumption evidence and recounted Mr. Pierre’s testimony about the event, including his testimony “about his actions after the killing.” She reminded the jury to “[d]ecide whether the Crown has proven beyond a reasonable doubt that he did have that state of mind”, and she continued:

You should take into account the evidence about his consumption of alcohol and drugs along with the rest of the evidence that sheds light on his state of mind at the time of the offence. Look at John Pierre’s words and conduct before, at the time of, and after the killing. All of these things and the circumstances in which they happen, including how much evidence, and evidence of how much alcohol and drugs John Pierre consumed and their effect on his state of mind, may shed light on whether he had the intent for murder.

[41] In addressing what I have described as category (1) evidence – evidence relating to the exchanges with the neighbours – she said:

Consider whether what he did and said is consistent with a rational and conscious awareness. Was he making sense trying to keep people from discovering the crime? Or was he saying things that were odd and out of context, suggestive of something other than a rational mind?

[42] She then said, “Consider what Mr. Pierre did in the aftermath of the killing”, listed some of the after-the-fact conduct evidence, and continued:

Consider what, if anything, these actions tell you about his intention at the time of the kill. Are these actions the product of a callous disregard for the fact that he had just killed someone, or are these actions the product of what he called a state of shock? Were his actions those of someone who had carried out his intentions and was now moving on to other things, or were his actions those of someone whose consciousness was impaired?

[43] She continued generally with specific reference to the category (3) evidence:

Consider to what extent his actions are reflective of intentional and reflective thought. Mr. Pierre took the time to cover his bloody overalls with a business suit. You may find that if he had the presence of mind to do this, he was perhaps not too intoxicated to form the intention for murder. Or alternatively, you might find that a sober person seeking to evade detection would be more likely to have taken off the bloody overalls before putting on the suit and leaving the residence.

[45] She then addressed what I have described as the category (5) evidence – evidence of his condition and his conduct during his various visits – providing useful guidance on using this evid ence to assess Mr. Pierre’s sobriety at the time of the killing and cautioning jurors that “his level of sobriety hours after killing may be of limited value in determining his level of sobriety at the time of the killing.”

[46] When the trial judge summarized the submissions of defence counsel she said, in relevant part:

[Trial counsel] argued before you that Mr. Pierre’s testimony … about the events on that day are corroborated in important respects by … the testimony of many of the prosecution witnesses who spoke about Mr. Pierre’s behaviours, and actions, and utterances which illustrated the psychological conditions and intoxication that affected his state of mind. [Trial counsel] urged you to give careful and serious consideration to all of that evidence, and to decide that the true verdict in this case is one of manslaughter.

THE GENERAL LEGAL PRINCIPLES

[50] ….This appeal concerns the reasoning rules that apply to after-the fact conduct evidence. Those rules, which are most readily seen in jury trials in the form of required or suggested jury directions, originated to address unique reasoning risks that after-the-fact conduct evidence can give rise to: Calnen, at para. 116; R. v. Ethier, 2023 ONCA 600, 30 C.C.C. (3d) 121, at para. 57.

[51] Specifically, as circumstantial evidence, after-the-fact conduct evidence is often capable of supporting inferences not only about the material issue for which it has been received but for other purposes. Judicial experience has shown that some of the inferences that it may provoke are illogical or unfair, and that after-the-fact conduct evidence can be prone to receiving more weight than it warrants, in part because much of it discloses discreditable conduct by the accused. It can cause jurors to “jump to questionable conclusions” without the assistance of shared judicial experience: Calnen, at para. 116. Unless educated about the relevant risks, jurors are not apt to identify them and may engage in unfair reasoning. The law has therefore developed both “warnings” (cautionary instructions alerting jurors to reasoning dangers), and “limiting instructions” (directions to jurors to limit the use to which they put the evidence by telling them that “they must not consider the evidence for one or several purposes”): R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433 (“White (2011)”), at para. 34….

[52] However, there are no bright-line rules relating to what a jury charge must include where after-the-fact conduct evidence is admitted. It is not the case that special warnings are required relating to all after-the-fact conduct evidence: R. v. Cornelius, 2011 ONCA 551, 283 O.A.C. 66, at para. 19, citing White (2011), at paras. 105-107. Nor are limiting instructions required in every case. The requirements of the charge are based on the circumstance of the case, in light of the nature of the after-the-fact evidence and the trial as a whole, including the issues it presents, the entirety of the evidence, the relevance of the after-the-fact conduct evidence, and the submissions that have been made: Ethier, at para. 62; Calnen, at para. 118.

ANALYSIS

A. THE LIMITED USE INSTRUCTION

[55] In Calnen, at para. 113, Martin J., who in her dissenting judgment stated for the court the general legal principles that apply to the use of after-the-fact conduct, said:

Evidence is to be used only for the particular purpose for which it was admitted. When evidence is admissible for one purpose, but not for another, the finder of fact, whether judge or jury, needs to be mindful of and respectful of its permissible and impermissible uses. In such cases, a specific instruction to a jury that certain evidence has a limited use or is of no probative value on a particular issue is required.

B. THE CONSCIOUSNESS OF GUILT INSTRUCTION

[68] The Crown relied heavily on several acts by Mr. Pierre that it described as acts of concealment and flight, including: (1) his apparent attempts at washing his hands; (2) concealing his bloody overalls by putting a suit over them; (3) his act of leaving the apartment “in a hurry” before the police could arrive; and (4) his failure to call the police or an ambulance (see paras. 31-32 above). The Crown persistently described these events as acts of concealment by Mr. Pierre, in which he was trying to distance himself from his criminal responsibility.

[70] I agree with Mr. Pierre that there is a realistic risk that jurors would have drawn an inference that he was acting as if conscious of his guilt, an inference that is susceptible to two long-recognized problems. First, this kind of inference is prone to be given undue weight because it is inherently prejudicial. As I will explain, where the risk of undue prejudice from evidence of consciousness of guilt arises it is usually addressed by a jury warning along with associated directions. The jury direction the trial judge gave in this case was less extensive than it arguably should have been, but I need not decide whether this alone constituted an error, because, in my view, the trial judge erred in failing to address the second long-recognized problem that an inference of consciousness of guilt can give rise to. As I will explain, this second problem can occur where there is a live issue in the case relating to the level of culpability of the accused. In such cases, if there is no issue as to the culpability of the accused, an inference that the accused acted as if they were conscious of their guilt has no probative value, and a trial judge will be obliged to give the jury a limiting instruction to avoid this inference. The trial judge did not do so and in my view erred.

[72] The first potential problem with after-the-fact conduct evidence showing consciousness of guilt – the prejudicial reasoning concern – arises because such evidence can raise a “substantial risk of jury error” by causing jurors to “jump too quickly … to an inference of guilt”, without considering all of the evidence: White, (2011), at para. 23. In describing this danger in R. v. Arcangioli, [1994] 1 S.C.R. 2025 ONCA 589 (CanLII) 129, at p. 143, Major. J., for the court, cited a passage from McCormick on Evidence, explaining that “the inference of consciousness of guilt of the particular crime is so uncertain and ambiguous and the evidence so prejudicial” that the evidence may not be used properly. He also referenced the decision in Gudmondson v. King, (1933), 60 C.C.C. 332, at pp. 332-33 (S.C.C.), where the court found error on the part of a judge in not warning the jury to be very cautious in a manslaughter case before drawing a consciousness of guilt inference from the failure of the accused to stop to give aid to the individuals who had been injured, since this evidence “was likely to create impressions which might preclude or gravely militate against a judicial examination by the jury of the grounds of defence”.

[73] To be clear, it will often be permissible for triers of fact to infer from an accused person’s after-the-fact conduct that they were acting as if conscious of their own criminal conduct, and to rely on this inference to support a finding of guilt: R. v. Peavoy (1997), 34 O.R. (3d) 620 (C.A.), at para. 26. However, given how inflammatory such evidence can be, judicial assistance may be required in a jury trial to reduce the risk of prejudicial reasoning. In most cases the risk that jurors will draw a direct inference of guilt from such evidence can be addressed by ensuring that jurors are aware of and consider alternative explanations for the allegedly evasive conduct, and by providing a warning to them to be cautious with such evidence, and to reserve final judgment about the meaning of the accused’s conduct until all the evidence has been considered: White (2011), at para. 24.

[74] Here, the trial judge outlined alternative explanations and she advised the jury to consider the after-the-fact conduct evidence alongside all of the other evidence, but she did not specifically caution them against the risk of giving undue weight to the consciousness of guilt inference, or advise them that such evidence has only an indirect bearing on guilt or otherwise warn them against using the after the-fact conduct evidence to draw a direct inference of guilt, as is sometimes required: Ethier, at para. 69; R. v. Lumberjack, 2017 SKCA 106, 357 C.C.C. (3d) 263, at para. 41.

[75] As indicated, the second problem in using evidence of concealment of responsibility evidence can arise if there is a live issue as to the level of guilt of the accused. In most such cases, an inference that the accused was conscious of their own guilt will not logically assist in identifying which of the possible offences the accused faces that they are conscious of having committed: R. v. Angelis, 2013 ONCA 70, 300 O.A.C. 367, at paras. 52-53. This will be so where, in the circumstances and context of the case, the acts of concealment or flight can be equally explained or are equally consistent with an attempt by the accused to evade responsibility for any one of the offences that may have been committed: 2025 ONCA 589 (CanLII) Calnen, at para. 124; Ethier, at para. 59….

[76] For example, in Arcangioli, the appellant admitted that he committed a common assault by punching the victim, but he denied that he committed an aggravated assault by stabbing the victim….

….To prove the appellant’s guilt, the Crown relied on his flight from a location where the victim had been stabbed as proof that he was conscious of his own guilt. The problem was that this evidence could not show whether the appellant fled because he was conscious of having committed a common assault by punching the victim, or because he was conscious of having committed an aggravated assault by stabbing the victim, the offence that he was charged with committing, as his flight was equally consistent with both possibilities. Since the appellant admitted his culpability for common assault, the evidence of his flight had no probative value and the trial judge erred by failing to tell this to jurors: Arcangioli, at paras. 44-45. Many cases have reaffirmed the need for a limiting instruction where the level of guilt of the accused is a live issue and the evidence is incapable of identifying the offence the accused committed: R. v. White, [1998] 2 S.C.R. 72, at para. 23; White (2011), at para. 37; Calnen, at para. 120; Angelis, at para. 53; Ethier, at para. 60; and Peavoy, at paras. 32, 33. The need for a limiting direction is particularly acute where the after-the-fact conduct is a dominant feature of the evidence or formed a significant part of the case: Robinson, at para. 63; Peavoy, at para. 35. Absent a limiting direction, there may be a real risk of jurors inferring that “the appellant was guilty, as the Crown alleged, because he acted as though he was guilty of something”: Ethier, at para. 75; R. v. Nagy, 2023 ONCA 184, 166 O.R. (3d) 545, at para. 26.

[77] In this case, there was a live issue as to Mr. Pierre’s level of guilt, whether it be of the charged offence of second-degree murder or the included offence of manslaughter. And the evidence of evasion through concealment and flight was equally consistent with him believing that he had committed either of the two offences. Moreover, Mr. Pierre did not deny that he was culpable in Ms. Watterworth’s death. He admitted killing her. Therefore, the evidence of evasion and flight offered no probative value in determining whether Mr. Pierre committed murder or manslaughter. Yet the trial judge did not provide a limiting instruction.[Emphasis by PJM]

[78] I am persuaded that there was a considerable risk that jurors would misuse the evidence of evasion and flight in both of the ways I have described. The Crown theory that the “evasion evidence” shows purposeful activity by Mr. Pierre, and therefore a rational mindset on his part, depended entirely on jurors accepting that he did these things for the purpose of concealing his guilt. If jurors took up the 2025 ONCA 589 (CanLII) invitation to draw this consciousness of guilt inference, it is highly probable that without a limiting instruction they would go on to reason that if Mr. Pierre was attempting to hide his guilt, he must be guilty….

[81]….the Crown did ask the jury to find that Mr. Pierre’s “actions and his inaction in the moments following Lesley’s death are consistent with the rational mindset and were carried out with the purpose of concealing a crime” (see para. 32 above) (emphasis added). Mindful that I should avoid parsing the words that have been used, this submission strikes me, and in my view would be apt to strike the jury, as a conjunctive request to use this evidence both to find that Mr. Pierre had a rational mindset and to infer that he knew he was guilty.

[85] As indicated, I need not go on and consider whether the trial judge failed to give an adequate warning to address the risk of prejudicial reasoning because it is unnecessary for me to do so, given my finding that the concealment evidence required a limiting instruction in this case.

C. THE CALLOUS DISREGARD INSTRUCTION

[86] The trial judge directed jurors relating to several of the acts Mr. Pierre engaged in in the aftermath of the killing, specifically, his acts of going into the living room to have a beer and smoke; going to the Beer store while bringing a beer; going to Mr. Border’s house and the Keg restaurant where he ordered food and drink, and then going to the Casino and eating a ribs dinner. The material passage, which I quote in para. 42 above, warrants reproduction here:

Consider what, if anything, these actions tell you about his intention at the time of the kill. Are these actions the product of a callous disregard for the fact that he had just killed someone, or are these actions the product of what he called a state of shock? Were his actions those of someone who had carried out his intentions and was now moving on to other things, or were his actions the product of what he called a state of shock?

[88] The law has stopped short of holding that after-the-fact conduct demeanour evidence can never serve as evidence of an individual’s state of mind. As Charron J. noted in White (2011), at para. 126, and as this case illustrates, there will be circumstances where it is the accused that is attempting to rely on after-the fact demeanour as evidence of innocence. Still, after-the-fact demeanour evidence is widely recognized to be an inherently dangerous form of proof because it assumes a “normal” range of reaction in dangerous situations, and that outward conduct will accurately reflect an individual’s state of mind or emotional reaction: R. v. Trotta, (2004), 191 O.A.C. 322 (Ont. C.A.), at paras. 40-41, rev’d on other grounds, 2007 SCC 49, 232 O.A.C 377; and see White (2011), at paras. 75-76. As Charron J. also noted in White (2011), at para. 107, depending on the specific context of the case, demeanour evidence may call for a special caution or be subject to an exclusion order, but it may not always be unavailable. In Trotta, at para. 41, Doherty J.A. held that for demeanour evidence to be used as proof of the state of mind of the accused “[t]he circumstances surrounding the proffered evidence must be such as to make the evidence sufficiently unambiguous and demonstrative of a relevant state of mind so as to overcome concerns that a trier of fact may too easily equate what is perceived to be an ‘unusual’ reaction with a guilty mind.” [Emphasis by PJM]

[89] In my view, evidence of callous after-the-fact behaviour by Mr. Pierre cannot make that grade. I can see no logical link that would rationally enable an inference of intent to kill to be drawn from the behaviour that was identified by the trial judge in the impugned passage. Moreover, even if callous disregard could serve logically as evidence of Mr. Pierre’s state of mind at the time of the killing, it would be as logically consistent with Mr. Pierre having been callous about committing culpable manslaughter as it is with him being uncaring about having committed a murder. Mr. Pierre’s “callous behaviour”, if that is what it was, could not properly be used in this case. I am confident that the trial judge did not intend to invite jurors to use displays of callous disregard by Mr. Pierre after the killing as evidence of his intention to kill but I agree with Mr. Pierre that there is a realistic prospect that jurors may interpret her charge as inviting them to do so.

[90] To be clear, I would not have come to this conclusion if the trial judge had instructed the jury in unambiguous terms that before accepting Mr. Pierre’s claim that his post-offence conduct was indicative of his irrational mindset that day, they should consider the alternative possibility that this conduct might simply be consistent with callous disregard for what he had done, which is what I suspect she was intending to communicate. Had that been the clear message, I would have accepted that jurors could be trusted to use a finding of callous disregard solely as a shield against the inference Mr. Pierre was seeking, and not as a sword to prove his guilt. But given its wording, the impugned passage in the charge can reasonably be taken as an invitation to use post-offence acts of callous disregard as affirmative evidence that Mr. Pierre was acting consistently with having committed a murder. This risk arises because the impugned passage begins with this language: “Consider what, if anything, these actions tell you about [Mr. Pierre’s] intention at the time of the killing”. It then goes on to offer as an option that these actions may be the product of callous disregard for the fact that he had just killed someone, and that they may be “the actions of someone who carried out his intentions and was now moving on to other things”. In my view, this passage raises the realistic risk I have identified. I see nothing in the balance of the charge that would steer jurors away from engaging in this impermissible reasoning.

[91] In my view, this part of the charge therefore constitutes a misdirection.

CONCLUSION

[93] I am persuaded that when the jury charge is viewed in its entirety and in the context of the trial, in all probability the jury was not accurately and sufficiently instructed and therefore it was left unequipped with an accurate understanding of the law and the evidence. This is most unfortunate, because save for the difficulties I have identified, the charge is otherwise a model of clarity, concision, and accuracy. In my view, there is no alternative but to allow the appeal, set aside the conviction, and order a retrial and I would do so.

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