COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Williams, 2019 ONCA 846
Juriansz, Pepall and Roberts JJ.A.
Her Majesty the Queen
Michael Dineen, for the appellant
John Patton, for the respondent
Heard: September 19, 2019
On appeal from the conviction entered by Justice John A. Desotti of the Superior Court of Justice, sitting with a jury, on January 22, 2015 and the sentence imposed on November 2, 2015.
Juriansz J.A.: Before it convicted the appellant of second degree murder, the jury asked a question that made apparent it had been misled by Crown counsel’s incorrect description of the mens rea required for murder. The trial judge’s attempt to clarify the law was inadequate. Therefore, a new trial is necessary.
A. FACTS The appellant was convicted of second degree murder for killing his uncle, Clifford Riley, in a trial before a judge and jury. He appeals from his conviction. On June 21, 2012, the appellant and his friend, Denzel Neron, went to two parties where they drank heavily and smoked marijuana. They were intoxicated. They entered an unoccupied building owned by the appellant’s family, in which they found the appellant’s uncle.  A fight broke out between the three men. The uncle suffered serious injuries and died of blunt force trauma to the chest. The appellant and Neron gave differing accounts of how the fight unfolded. The appellant testified that his uncle pushed him out of the building and a fight ensued. The appellant fell, in part because of his intoxication, and his uncle got on top of him. Neron intervened, kicked the uncle, and the two continued fighting by the side of the road. The fight eventually broke up, and the appellant and Neron walked away. The appellant said his uncle cursed at them and called them “assholes”. However, he was inconsistent about whether his uncle shouted at them during the fight or after, when they were walking away.  According to Neron, he and the appellant found the appellant’s uncle asleep on the floor of the unoccupied building. The appellant woke his uncle, demanded he get up, and began pushing him out of the building. The three men fought until the appellant and Neron knocked the appellant’s uncle down. As the appellant and Neron were walking away, the uncle sat up and began cursing at them, calling them “assholes”. The appellant jogged back, jumped, and stomped on the uncle’s leg, “jump stomped” on the uncle’s chest three times and then on his collarbone. The uncle went silent and they left. Neron and the appellant rode home on a bicycle with Neron on the handlebars.  Neron’s trial testimony substantially contradicted a police statement he gave on June 22, 2012, in which he denied any knowledge of the killing. At trial, Neron admitted to lying to the police. DNA consistent with that of Neron was on a necklace found near the uncle’s body. Gray Vans brand shoes seized from the appellant’s residence had a blood stain on the shoelace with a DNA profile consistent with that of the uncle. An expert qualified in footprint comparisons testified that the shoes’ soles could not be excluded as having created impressions on and around the uncle’s body, including a footprint on his chest that may be linked to the fatal injury. The appellant and Neron disagreed as to who wore those shoes at the time of the killing. A video surveillance camera captured two men walking near the location of the fight on the night in question. The video showed two men emerging twice from the scene of the fight, corroborating Neron’s account that, after they began to walk away, the appellant had returned to stomp on the uncle before they walked away a second time. The next day, the appellant went to see a friend who had been out with him the night before. The appellant was crying because his uncle had died. When the friend revealed that she had heard that the appellant killed his uncle, the appellant shook his head and asked her to “do me a solid”. He told her he was naïve and drunk, and the only evidence the police had on him was a shoe. He recounted that he did not remember walking home the night before. An acquaintance overheard this conversation and testified that the appellant broke down and said, “Yeah, I fucked up.” In text messages to another friend, the appellant said, “You didn’t see anything remember just walked home”, “Stay solid”, and “we didn[’]t do shit”. He acknowledged that he told both women not to say anything.  Both the appellant and Neron were arrested and charged with murder. Neron accepted a plea agreement that required him to testify against the appellant. He pleaded guilty to assault and to being an accessory after the fact to murder. He received a four-month sentence.
B. ISSUES ON APPEAL The appellant raises five grounds of appeal, one of which he abandoned in advance of the hearing. I would allow the appeal on the first ground and find it unnecessary to deal with the other three grounds, which raise issues that may not arise on the retrial. The appellant’s main submission is that the trial judge, by failing to correct a misstatement of the law by the Crown and by failing to provide clear, fulsome answers to the jury’s questions, permitted the jury to find him guilty of murder without being satisfied he had the subjective foresight that his uncle might die as a result of his actions.
(1) The Crown’s Closing Submissions In her closing address to the jury, the Crown incorrectly described the state of mind necessary to establish murder. She said:
 After reviewing additional evidence, she repeated:
And when you consider the issue of the intent that Mr. Williams would have had to have had, or the mental state that he would have had to have had to form the intent to kill, or that he ought to have known his actions would cause death, or was reckless to whether his actions would’ve caused death … I think there is significant evidence to prove that in fact Naanan Williams did have the necessary state of mind to know what he was doing, to kill his uncle, and to know that his actions in stomping his uncle would kill him, or ought to believe that it would likely cause death, or he just didn’t, you know, put his mind to it. He was reckless to that, okay. [Emphasis added.]
[A]ll that, that shows that, that Naanan Williams had the state of mind that night, had the intent to know that when he stomped or to – that he ought to have known that when he stomped on Clifford Riley that action was likely to cause his death. [Emphasis added.] These were serious misstatements of the law with respect to the mens rea for murder. The phrase “that he knows or ought to know is likely to cause death” appeared in s. 229(c) of the Criminal Code. The Supreme Court of Canada declared that language in s. 229(c) unconstitutional in R. v. Martineau,  2 S.C.R. 633 and it has recently been repealed: R.S., 2019, c. 25, s. 77. The court made clear in Martineau that a murder conviction cannot rest on any mens rea less than subjective foresight of death: at pp. 645-46.  In any event, s. 229(a), not s. 229(c), best applies to the circumstances of this case. Section 229(a) provides:
Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not. In R. v. Cooper,  1 S.C.R. 146, at pp. 155-56, the court clarified that the mens rea for murder under s. 229(a)(ii) of the Criminal Code requires the Crown to prove beyond a reasonable doubt the accused’s (a) subjective intent to cause bodily harm and (b) subjective knowledge that the bodily harm is of such a nature that it is likely to result in death. Defence counsel did not object and the trial judge did not correct the Crown’s misstatements immediately. Their effect on the jury and on the fairness of the trial must be assessed in the context of the whole trial, and everything the jury was told.
(2) The Trial Judge’s Instructions At the beginning of the trial, the trial judge told the jury it should take the law from him. In the course of making this point, he said:
Counsel may also refer to some rules of law to help you understand their positions better. It is quite proper for them to do so. What counsel say about the law may be correct, but it is my job, as judge, to tell you about the law that applies. You must take that law from me. In his jury charge, the trial judge gave the jury clear and correct instructions on the mental state required for murder. He said:
 The trial judge told the jury he would emphasize this instruction by repeating it “at least half a dozen other times” so that the jury “got that crystal clear in your mind.” He did what he said he would. He repeatedly emphasized the correct state of mind for murder and told the jury that if they did not find that the appellant had that state of mind, their determination should be manslaughter. However, at this stage, no one, including the trial judge, said anything about the Crown’s misstatements to the jury that it could convict the appellant if “he ought to have known his actions would cause death”.
If you are satisfied beyond a reasonable doubt that Naanan Williams unlawfully caused the death of Clifford Riley, you must go onto the next question: Did Naanan Williams have a state of mind required for murder? The crime of murder requires proof of a particular state of mind for an unlawful killing to be murder. Crown counsel must prove that Naanan Williams meant either to kill Clifford Riley or meant to cause Clifford Riley bodily harm that Naanan Williams knew was likely to kill Clifford Riley, and was reckless whether Clifford Riley died or not.
(3) The Jury’s Questions In the course of its deliberations, the jury asked two questions that revealed it was left in confusion by the Crown’s closing and the jury instructions.  Three or four hours into its deliberations, the jury posed the question “state of mind – pre, present and post testimony – which can be used as evidence.” The trial judge correctly answered the question by instructing the jury that the state of mind required was whether the appellant “meant to cause Clifford Riley bodily harm that Naanan Williams knew was likely to kill Clifford Riley and was reckless whether Clifford Riley died or not, or he meant to kill Clifford Riley.” On the morning of the second day of deliberations, the jury asked another question that made it obvious it was considering the issue of the appellant’s state of mind in light of the Crown’s misstatement of the law. The jury sought clarification on the legal meaning of “ought to know” and “reckless to the effects of your efforts”. The phrase “ought to know” did not appear in any part of the jury charge. Neither counsel nor the trial judge questioned the relevance of these terms to a charge of second degree murder. After consulting counsel, the trial judge answered the “ought to know” portion of the question:
There is not any, as far as I am aware, definition from any legal context or precedent. … However, “ought to know” at least piecing that together with Black’s Law Dictionary … is a general direction only, but will be taken as mandatory if the context requires. Little bit – be under a moral obligation, have as a duty, and advised or expected. That is the “ought” part. The “know” is to possess information, instruction, or wisdom, to perceive, apprehend, understand.
crown error Rather than disabusing the jury of the incorrect standard stated by the Crown, this instruction reinforced it. The instruction, in effect, confirmed the validity of the Crown’s statement and provided the jury with guidance as to how to apply the incorrect state of mind in its deliberations.  The trial judge went on to answer the “reckless” portion of the jury’s question. He said:
 This definition would have been accurate had the trial judge stopped there. However, he went on to add:
There is actually a legal direction with respect to “reckless” in a more commonplace expression. So I will give it in the context of which the word “reckless” is used in the charge: saw the likelihood that Clifford Riley could die from the injury but went ahead anyway and took the chance. So that is the actual formal, legal expression.
Then using again the Oxford Dictionary, more expanded version, “reckless”: of a person heedless of consequences of one’s actions or of danger, incautious, rash, inconsiderate of oneself or another, of an action, behaviour characterized as heedlessness or rashness, incautious, careless, wilfully careless. That is it. There is no other. There is nothing else that we have with respect to those expressions.
crown error This erroneous instruction was all the more serious because it immediately followed the guidance the trial judge had provided about the meaning of “ought to know.” The instruction would have led the jury to understand that it could convict the appellant if he “ought to have known” his uncle would die, or if his behaviour met a dictionary definition of reckless that included mere carelessness.  After receiving these instructions, the jury retired at 9:15 a.m. Shortly after, the Crown advised the court that she had misstated the law. She alerted the court that the jury should not be basing its decision on whether they believed that the appellant “ought to have known” his actions would have resulted in his uncle’s death.  The jury was recalled at 9:46 a.m. and the trial judge sought to correct the misstatement of the law that had been conveyed to the jury and which it was evidently considering. The trial judge said:
Ladies and gentlemen, you probably wonder why unceremoniously we have brought you back into the courtroom when you have not asked a question. It goes back to your previous question, “ought to know”. There is no such definition in the section dealing with second-degree murder. “Ought to know” is not part of your consideration or concern. Any reference to the expression “ought to know” should be struck, deleted from your understanding in terms of your deliberations. I say that to you because that expression was used unfortunately by Madam Crown Attorney, inadvertently she used the expression “ought to know”. That is not part of the section, all right? So I am asking you to delineate, delete, whatever expression you want to do, erase my response to the query about “ought to know”. Your focus should be on reckless, which is clearly there, and not on that expression. I cannot be more definitive than that. … And I am asking you again to disregard that expression. It is not part of your deliberations. [Emphasis added.]
crown error The jury retired at 9:52 a.m. and returned with its verdict at 10:27 a.m.  The last instruction was intended to salvage the situation by correcting the answer given to the jury’s question about “ought to know”. Unfortunately, it did not do so fully and correctly. While the trial judge told the jury, clearly and emphatically, that “ought to know” was not the correct standard for the mens rea for murder, he was wrong to tell the jury its focus should be on “recklessness.” There are two problems with this instruction. The first problem is that, half an hour earlier, the trial judge had left the jury with a definition of “reckless” that included carelessness. It is likely the broad dictionary definition he gave the jurors would still have been fresh in their minds. Considered in the context of that definition, telling the jury its focus should be on “recklessness” was a misdirection.  The second problem is that the jury should have been told its proper focus should be on whether the appellant intended to cause bodily harm to his uncle that he knew was likely to result in his uncle’s death. As Cory J. explained in Cooper, at pp. 154-55:
The aspect of recklessness can be considered an afterthought since to secure a conviction under this section it must be established that the accused had the intent to cause such grievous bodily harm that he knew it was likely to cause death. One who causes bodily harm that he knows is likely to cause death must, in those circumstances, have a deliberate disregard for the fatal consequences which are known to be likely to occur. That is to say he must, of necessity, be reckless whether death ensues or not. [Emphasis added.] On appeal, the Crown argues that the trial judge’s multiple repetitions of the correct mens rea standard for murder meant that the jury must have been properly informed when it began its deliberations. I do not accept that submission given the question by the jury and the trial judge’s inadequate answer. Questions by the jury give the clearest possible indication of the particular problem the jury is confronting: R. v. S. (W.D.),  3 S.C.R. 521, at p. 528. When the jury submits a question, it must be assumed that the jurors have forgotten the original instructions and will base their subsequent deliberations on the answer to the question: S. (W.D.), at p. 531. The correctness of the original charge cannot excuse an error in the answer to the jury’s question: S. (W.D.), at p. 530-31.  In this case the jury repeatedly received correct instructions in the main charge. But considering everything the jury was told, I conclude there is a real danger that the jury was not left with a proper understanding of the role of recklessness in the mens rea for murder and that subjective foresight of death was required.
D. DISPOSITION The appellant’s murder conviction cannot be regarded as safe. I decline the Crown’s invitation to apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code. In this case manslaughter, rather than second degree murder, was a possible verdict on the Crown’s version of the events. In conclusion, I would allow the appeal, set aside the conviction, and order a new trial.
Released: “RGJ” OCT 28 2019
“R.G. Juriansz J.A.”
“I agree. S.E. Pepall J.A.”
“I agree. L.B. Roberts J.A.”
 The appellant’s notice of appeal raises an appeal against sentence, but the appellant’s factum and oral submissions did not include arguments on sentence. Given the disposition of this appeal, I regard the sentence appeal as moot.