Ontario Criminal


Trial judge erred by leaving post-offence conduct as probative on issue of intent to kill

Jury convicted accused of second degree murder. Accused testified he met deceased while intoxicated and she attacked him after having sexual relations at his home. Accused testified he inadvertently smothered deceased during effort to restrain her when his retreat from her attack failed. Pathologist being unable to pinpoint cause of death. Accused having engaged in extensive efforts to dispose of body and clean blood-spattered home claiming at trial he did so as still impaired and feared discovery of drug operation hidden in home. Police uncovered considerable forensic evidence in home notwithstanding accused’s efforts to clean. Accused fleeing from and lying to police about having been responsible for death when first arrested. Accused raised defences of self-defence and provocation. Crown arguing evidence suggested prolonged and brutal attack of deceased rather than self-defence consisting of brief attack. Trial judge telling jurors evidence of post-offence conduct could be used on issue of whether Crown had proved requisite intent for murder. Appeal allowed and new trial ordered. Trial judge erred by leaving post-offence conduct of flight and lies to police as probative on issue of intent to kill. Evidence had no probative value on intent as person responsible for manslaughter just as likely to flee and lie to authorities. Trial judge erred by failing to relate to jury how evidence of disposal of body and cleaning of house was probative to intent. Evidence only probative of intent if jury first accepted Crown’s theory deceased had been victim of prolonged, bloody attack by accused. Curative proviso did not apply as issue of intent and evidence of post-offence conduct central issues at trial.

R. v. Rodgerson

(May. 8, 2014, Ont. C.A., Doherty J.A., K. Fledman J.A., and J.C. MacPherson J.A., File No. CA C56484) 113 W.C.B. (2d) 232.

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