Yesterday, the Supreme Court of Canada released its decision in R v Calnen, 2019 SCC 6. With three separate judgments, there was little consensus in the result.
In 2013, police arrested Mr. Calnen for the murder of his partner, Ms. Jordan. During questioning, Mr. Calnen said Ms. Jordan died accidentally. He said that she was going to leave him and they argued. He said Ms. Jordan became physically aggressive. He said she tried to punch him, but he ducked and she fell down the stairs and died.
Mr. Calnen said he panicked. He said he’d used crack cocaine on the way home, and again after Ms. Jordan died. He didn’t want to call police. He said he hid her body in the woods, but came back to move it a couple of times, and burned it in two different places. He said he placed Ms. Jordan’s ashes near her family cottage, because that’s what Ms. Jordan had said she wanted done with her ashes if she died. Mr. Calnen said he put the parts that were not fully burned by the fire in the lake.
Mr. Calnen was charged with second-degree murder. He was also charged with indecent interference with human remains. He pleaded guilty to the interference charge at the start of the trial but said he didn’t kill her. A jury found him guilty of second-degree murder. The majority of the Court of Appeal said the trial judge made a mistake in his instructions to the jury related to the use of after-the-fact conduct as evidence of intent for murder. It overturned the murder conviction and ordered a new trial on a charge of manslaughter.
Everyone agreed that the jury could use Mr. Calnen’s attempts to destroy Ms. Jordan’s body to infer he killed her and was guilty of manslaughter. The question was whether it could use these attempts to infer he intended to murder her. In this case, there was no direct physical evidence that Mr. Calnen killed Ms. Jordan, so proper inferences were crucial to the result – and to the defendant’s liberty.
The Supreme Court of Canada Finding(s)
All judges at the Supreme Court agreed, in principle, that someone’s actions after a suspected murder can (in some circumstances) be used to infer their intent to commit second-degree murder. Most of the judges agreed, in this case, that evidence about Mr. Calnen’s actions after Ms. Jordan died could be used to infer his intent for second-degree murder. If Mr. Calnen hadn’t destroyed the body, it could have showed how she died and revealed something whether he had intentionally murdered her.
However, the majority (Moldaver, Gascon and Rowe JJ.) parted company with Martin J. (dissenting in part) in that the majority did not think the trial judge’s failure to give a limiting instruction against general propensity reasoning amounted to reversible error. They found that the jury was equipped to decide the case in the absence of such an instruction. They restored Mr. Calnen’s second degree murder conviction.
When the trial judge’s charge is considered fairly, contextually, and as a whole, I am satisfied that the jury was properly equipped to decide the case in the absence of a limiting instruction against general propensity reasoning. And I am not alone in this. Experienced defence counsel at trial seemed to be of the same view. – Moldaver, writing for the majority, at para. 6
It was important to the majority’s decision that the defence had not sought a limiting instruction against general propensity reasoning. Instead, the accused adopted a strategy of using the discreditable conduct to bolster the credibility of his exculpatory statement and re-enactment, upon which his defence of accidental death rested. In the majority’s opinion, that the defence adopted a deliberate strategy to use the discreditable conduct evidence to its own advantage was an important factor which distinguished this case from others. Given the strategy adopted by the defence, a limiting instruction against general propensity reasoning would have risked highlighting the negative impact of the accused’s discreditable conduct on his credibility and thereby unravelling his defence — a risk which the defence chose not to take. As Moldaver J. wrote, “The defence made a legitimate tactical decision at trial and lost and it must live with the consequences of that decision. The accused had a fair trial.” In these circumstances, the majority decided that the principle of finality must prevail.
In her partly dissenting judgment, Martin J. wrote that the jury ought to have been warned about the specific risks of prohibited propensity reasoning associated with the after-the-fact conduct, as well as other evidence about the accused’s character, conduct and lifestyle. Martin J. felt that the decision of the Court of Appeal to set aside the accused’s second degree murder conviction should be upheld, but that a new trial should be ordered on the charge of second degree murder.
In full dissent, Karakatsanis J. wrote that the evidence in this case was not probative of intent for murder and a directed verdict of acquittal should have been granted. She felt that if conduct could be equally explained by or equally consistent with two or more offences, as was the case here, it is not probative with respect to determining guilt as between the offences. Karakatsanis J. held that the appeal should be dismissed.
Based on the majority result in Calnen, after-the-fact conduct can be circumstantial evidence of the mental element for second degree murder. In a more implicit result, the majority finds that defence strategy can direct whether or not a limiting instruction to the jury is required.