R v Rodgerson: How to Instruct a Jury on Post-Offence Conduct
In 2008, Jason Rodgerson met Amber Young at a bar in Oshawa. According to Rodgerson, after consuming alcohol and ecstasy together, he and Young engaged in consensual sex at his home. Rodgerson then lost interest in Young and wanted to return to the bar. Tensions escalated when Young asked to be compensated for the ecstasy pill. They engaged in a verbal altercation, which led to Young becoming violent and attacking Rodgerson with a knife. At the end of the struggle, Young was dead. Rodgerson was the only witness to Young’s death.
Rodgerson made extensive efforts to conceal Young’s body. He dragged her body to the backyard, poured bleach on her and buried her in a shallow grave. He then removed the bloodstained mattress, cut up the carpet, and put her belongings in the garbage. He also used bleach to clean up the blood from the scene of the crime. When police arrived, Rodgerson attempted to flee and when caught made several false statements deflecting blame from himself. The issue before the Supreme Court of Canada (“SCC”) centred around the instructions given to the jury on how the evidence of Rodgerson’s post-offence conduct could be used to establish intent for murder.
Rodgerson was charged with first-degree murder in connection with Young’s death. At trial it was not disputed that Rodgerson killed Young. The defence argued, instead, that Rodgerson was acting in self-defense—the force he applied was moderate and designed to protect himself from death or bodily harm (R v Rodgerson, 2015 SCC 38, para 3 [Rodgerson]). To rebut the self-defense claim, the Crown relied on Rodgerson’s efforts to conceal Young’s body and clean up the scene of her death (Rodgerson, para 4). In the charge to the jury, the trial judge did not explain the limited and nuanced basis upon which the post-offence evidence could be used to establish intent for murder (Rodgerson, para 6). Further, the judge did not instruct the jury that Rodgerson’s attempt to flee from the police and his attempt to mislead them could not be used to establish intent. The jury convicted Rodgerson of second-degree murder.
On appeal, Rodgerson challenged the trial judge’s failure to properly instruct the jury on the various ways in which the post-offence conduct could be used by the jury (Rodgerson, para 7). The Ontario Court of Appeal (“ONCA”) concluded that the flight from police was irrelevant in determining intent for murder; that the judge erred in instructing the jury that it could consider the flight and lies to police in assessing intent; and finally, that while Rodgerson’s concealment and clean-up was relevant in assessing intent, the trial judge had not instructed the jury on the limited way this could be used (Rodgerson, para 8). (For a discussion of the ONCA decision, see Juan De Villa’s case comment here.)
The only issues before the SCC were whether the majority was correct in holding that the trial judge erred in his instructions on the concealment and clean-up—and whether this error, and the erroneous instructions on Rodgerson’s flight from the police, was fatal (Rodgerson, para 10). (For highlights from the SCC hearing of the appeal, see Jordan Casey’s case comment here.) It is not surprising that the SCC found that the judged erred in instructing the jury the way he did. What is more instructive, is both the way Justice Moldaver outlined how the trial judge should have instructed the jury and the role that the Crown and defense should play in the trial process and in complementing jury instructions.
How Should Post-Offence Concealment be Used to Determine Intent?
To prove intent for murder, the Crown had to prove that Rodgerson intended to kill Young or that he intended to cause Young bodily harm that was likely to cause her death. The more severe the injuries on Young, the stronger the inference that Rodgerson intended to kill her. In attempting to prove this, the Crown relied on autopsy evidence and bloodstain pattern analysis (Rodgerson, para 19). Considering Rodgerson’s efforts to conceal Young’s body, the jury could have reasonably concluded that Rodgerson was attempting to conceal evidence of a crime. The efforts were also capable of supporting the further inference that he was acting to hide the extent of the crime (Rodgerson, para 20).
In this case, Moldaver J agreed with the ONCA judgement:
Before the post-offence conduct relating to the hiding of the body and the clean-up of the homicide could assist the Crown in proving the appellant’s state of mind, the jury first had to be satisfied that there was a somewhat prolonged and bloody struggle during which the appellant struck Ms. Young in the head or face several times, or at least more than twice. The jury could come to that conclusion only after a careful consideration of the competing interpretations of the forensic evidence placed before it. Second, the jury had to be satisfied that the appellant had engaged in the post-offence conduct to destroy evidence that would reveal an extensive struggle and assault well beyond that admitted by him in his evidence (Rodgerson, para 22).
Moldaver also wanted to avoid any possible confusion, however, by making it clear that the jury was not limited in considering the concealment and clean-up evidence only after it had first satisfied itself that the altercation had taken a particular form (Rodgerson, para 23). The jury was entitled to consider both the forensic evidence and the evidence of post-offence concealment simultaneously.
A Balancing Act in Jury Instructions
On the issue of intent for murder, the jury’s inference from the post-offence evidence was narrower. For Moldaver, a more specific instruction was required. When establishing Rodgerson’s intent for murder, the jury ran the risk of continuing to rely on the evidence that could be viewed as sufficient to prove that Rodgerson knew he had killed Young and was acting to conceal it (Rodgerson, para 28). In clarifying the distinction the trial judge needed to add a few sentences explaining how the jury could rely on the evidence.
The relevance of the evidence to the issue of intent was more than a matter of common sense and hence needed to be clarified (Rodgerson, para 31). The legal error was the failure to assist the jury in understanding the limited and nuanced relevance of the concealment and clean-up evidence on the issue of intent (Rodgerson, para 34). The trial judge provided more than the regularly required caution when treating post-offence conduct—the precise instructions should have focused on discerning the way the evidence could and could not be used.
Rodgerson clarifies that trial judges should take more time in instructing juries in a way that allows them to make the proper inferences from the evidence presented. Repetitive and generic charges are of little value and can lead to instructions that are meaningless. Further, Moldaver cautioned the Crown on prosecuting marginal charges—arguing that where additional or more complex trial process and jury charge exists, the Crown should carefully consider whether the public interest would be better served by either declining to prosecute the marginal charges or deciding not to pursue them once the evidence is complete (Rodgerson, para 45). Similarly, for the defence, the judge cautioned against using a defense theory that goes beyond what is needed in the case (Rodgerson, para 49). Taken together, the legal developments in Rodgerson demonstrate a desire by the SCC to simplify and streamline the judicial process in criminal cases.