Jury Instructions and Post-Offence Conduct: Her Majesty the Queen v Jason Rodgerson
On January 14, 2015, the Supreme Court of Canada will hold a hearing for the appeal of R v Rodgerson, 2014 ONCA 366.
In the criminal law context, triers of fact can use post-offence conduct as evidence of certain facts in issue. For example, the evidence of an accused fleeing from a scene of an assault is relevant to the issue of identity, as the flight supports the inference that that person was the perpetrator of the assault. Of course, post-offence conduct can be relevant to some facts in issue but not others, necessitating careful jury instructions to make clear how this type of evidence should be used.
In Rodgerson, the proprietary of the trial judge’s instructions to the jury regarding the permissible uses of the accused’s post-offence conduct was central to the accused’s appeal.
It is not in dispute that Rodgerson was responsible for the death of Amber Young. They met at a bar and later returned to Rodgerson’s house. They were significantly intoxicated and had consumed a varied assortment of prescription drugs. Rodgerson claimed that Young had given him ecstasy and that he had smoked marijuana at the bar.
In Rodgerson’s claimed version of events, which his defence was founded on, the two had an argument after having consensual sex. According to Rodgerson, Young repeatedly asked him to give her five dollars that she claimed he owed her and became enraged and attacked him with a knife when he refused.
Rodgerson and Young fought and fell to the floor. Rodgerson got on top of Young and grabbed the wrist of the hand with which she was holding the knife. He claimed that he did not realize that his arm was pressed down on her neck, nose, and face, inadvertently cutting off her air supply. Young lost consciousness and died.
Initially believing that Young had just passed out, Rodgerson did not realize Young was dead until the following day. Rodgerson testified that he was worried that he would be blamed for Young’s death, prompting him to decide to try to get rid of the body.
Rodgerson buried Young in the backyard after pouring bleach over the body in an attempt to get rid of the smell and made significant efforts to clean up the blood in the house and remove anything that would connect him to Young or her death. Nevertheless, when the police searched the home, they found incriminating forensic evidence.
After speaking to Rodgerson’s roommate, the police came to the house to execute a search warrant for drugs. Upon their arrival, Rodgerson fled and, when he was caught, he told the police, “I didn’t do it, it wasn’t me.” He later gave a statement to the police denying any involvement in Young’s death and even suggested that his roommate may have been responsible. He later admitted that this statement was a lie.
At trial, Rodgerson maintained that Young’s death was accidental. The jury, however, was satisfied that Rodgerson was guilty of second degree murder pursuant to section 229(a) of the Criminal Code of Canada, RSC 1985, c C-46. This provision states that to be found guilty of second degree murder, a person causing death must have meant to cause death or meant to cause bodily harm that he or she knows is likely to cause death.
The Court of Appeal Decision
The main ground of appeal considered by the Court of Appeal arose out of the trial judge’s instructions to the jury with respect to Rodgerson’s post offence conduct. This conduct included disposing the body, cleaning up the scene of the homicide, attempting flight, and lying to the police.
The trial judge instructed the jury that it could use the appellant’s post-offence conduct to: (1) assist the Crown in proving that Rodgerson had not acted in self-defence; (2) prove that causing Young’s death was not accidental; (3) help assess Rodgerson’s credibility; and (4) assist the Crown in proving that Rodgerson had the requisite state of mind to be culpable for murder under s. 229(a) of the Code.
Justice Doherty concluded that the trial judged erred by not giving limiting instructions to the jury with respect to the use of the post-offence conduct. To make matters worse, the trial judge told the jury that they could consider all of the post-offence conduct as evidence of intent. This is problematic because, while some post-offence conduct can support an inference with respect to intent, it does not necessarily follow that all of the post-offence conduct is relevant to that factual issue.
As Justice Doherty wrote in his reasons, the fact that Rodgerson fled from the police can support the inference that Rodgerson acted unlawfully and not in self-defence, but evidence of his flight does nothing to shed light on his state of mind when he caused Young’s death.
The Court held that the trial judge’s instructions had the effect of making the jury unable to determine what post-offence conduct evidence was relevant to the issue of Rodgerson’s state of mind when he killed Ms. Young.
In certain contexts, the appropriate use of an accused’s flight from the police is relatively straightforward and may not require an explanation of what inference can be made from post-offence conduct. However, because of the complex factual circumstances of this case, Justice Doherty held that the jury needed more than the very general instructions on the evidentiary issues relevant to post-offence conduct. He ordered a new trial.
Rodgerson highlights the need for careful jury instructions on complex issues of evidence and the difficulties associated with making inferences based on circumstantial evidence. While, as discussed above, it is not always necessary to give detailed explanations on the proper use of post-offence conduct, juries must be given the appropriate level of instruction to deal with the level of evidentiary complexity they are faced with.
The Supreme Court of Canada will consider whether the trial judge did, in fact, err in law by finding a reversible error in the jury charge with respect to the use of the post-offence conduct. It will also determine whether the majority of the Court of Appeal erred by not applying the curative provision in section 686(1)(b)(iii) of the Code. This provision would have allowed the Court to dismiss the appeal if no substantial wrong or miscarriage of justice had occurred, despite deciding in favour of the appellant.