R. v. Wareing

2026 BCCA 160 R. v. Wareing COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Wareing, 2026 BCCA 160 Date: 20260417 Docket: CA50261 Between: Rex Respondent And Justin Michael Wareing Appellant Corrected Judgment: The cover page of the judgment was corrected on April 24, 2026. Before: The Honourable Mr. Justice Willcock The Honourable Madam Justice Fenlon The Honourable Justice Winteringham On appeal from: An order of the Supreme Court of British Columbia, dated May 3, 2024 (conviction) (R. v. Wareing, New Westminster Docket 84860). Counsel for the Appellant: B.R. Anderson J.L. Dawkins Counsel for the Respondent: E. Purtzki Place and Date of Hearing: Vancouver, British Columbia March 11, 2026 Place and Date of Judgment: Vancouver, British Columbia April 17, 2026 Written Reasons by: The Honourable Mr. Justice Willcock Concurred in by: The Honourable Madam Justice Fenlon The Honourable Justice Winteringham Summary: The appellant appeals their conviction for second-degree murder and attempted murder following a trial by judge and jury. The appellant contends the judge erred in their charge to the jury by failing to provide a no probative value instruction for certain pieces of after-the-fact evidence, and failing to instruct the jury that the order of gunshots was relevant to the appellant's defence. Held: Appeal dismissed. The trial judge did not err in not providing a no probative value instruction for the appellant's flight or failure to call 911 after-the-fact. The evidence had some probative value in relation to the question whether the appellant had acted in self-defence. When read as a whole, the charge reflected the appellant's account of the events, and the judge properly instructed the jury on the use of this evidence. The trial judge also did not err in their charge on the sequence of shots, as it properly instructed the jury on the overlap of intent and commission of the act, and no further instruction was appropriate on the evidence. Reasons for Judgment of the Honourable Mr. Justice Willcock: Introduction [1] Justin Michael Wareing was indicted on a charge of second‑degree murder of Cashmere Ali and attempt to commit the murder of Matthew Whitty. Following a trial by jury, he was convicted on both counts and sentenced to life imprisonment with no eligibility for parole for 14 years in relation to the murder and 13 years incarceration for the attempted murder. [2] The appellant admitted that on July 15, 2022, at a residence on 119th Avenue in Maple Ridge, British Columbia, he fired several shots from a handgun, killing Ms. Ali and injuring Mr. Whitty. He testified that the shooting was in self-defence, in response to having been shot at, and as a result of panic. He testified that he blindly fired shots in the direction of the victims and did not intend the death or injury that resulted. In a continuing state of panic, he left the scene, took a friend's vehicle, did not report what had happened to police or emergency services, and later fled from the police when they arrived at another residence to arrest him. [3] He appeals his conviction on two grounds, contending: a) The trial judge erred in law by refusing to provide a "no probative value" instruction with respect to the appellant's flight from the scene and the police, and failure to call 911; and b) The trial judge erred in law by failing to instruct the jury on the concurrence principle -- that intent must coincide with the actus reus -- in relation to the order of gunshots fired. The Evidence [4] Two nights before the shooting, Mr. Whitty, the appellant, and others robbed a drug dealer's home. There was evidence that both the appellant and Mr. Whitty possessed handguns and that Mr. Whitty's handgun was discharged during the robbery. Proceeds of the robbery were distributed amongst the participants. [5] Events giving rise to the charges occurred when the appellant went to the 119th Avenue residence, in which Mr. Whitty and Ms. Ali were residing, in order to confront Mr. Whitty with an allegation that he had not evenly distributed the proceeds of the robbery. The appellant brought a gun with him. [6] Mr. Whitty testified that he was confronted by the appellant when he awoke on a couch in the living room of the 119th Avenue residence. The appellant grabbed Mr. Whitty's left knee and shot him in the knee. When Ms. Ali "popped up" to try to push the appellant away, the appellant shot her in the head. The appellant continued to fire his gun as Mr. Whitty ran toward the door to escape. Mr. Whitty was shot while doing so but managed to make his way to a local police station where he sought help. [7] A witness to events, Maximilian Duschl, testified that while he was in the kitchen of the 119th Avenue residence, he heard the appellant enter the living room and begin arguing with Ms. Ali. Mr. Duschl returned to the living room and saw the appellant pull out a handgun and shoot Ms. Ali. Mr. Whitty then tried to make his way to the front door while the appellant was shooting at him. The appellant chased Mr. Whitty outside and Mr. Duschl believed he heard a shot fired outside. [8] The appellant testified in his defence. It was his evidence that he went into the living room to confront Mr. Whitty about the robbery proceeds. After telling Mr. Whitty that he owed him money, the appellant indicated he would give Mr. Whitty some time to pay, but he would return to collect his share. When he turned his back to leave through a door that was behind him, he heard a gunshot. In response, out of fear and panic, he pulled his gun out of his waistband and "shot up" the living room blindly with his eyes closed. He denied aiming at anyone and testified that he stopped firing once he felt he could safely flee. [9] In examination-in-chief he testified as follows: Q When you were firing, did you realize you -- you could seriously injure someone? A Yes, I did. Q Did you stop at any time during the firing to consider what you were doing? A Yes, I did. Q Okay, and when was that? A Like -- I don't know. Seconds after I started firing, I stopped and I -- and I left. Q Okay. And why did you stop? A Because I believed that I was no longer in danger. [10] The appellant did not have a clear recollection of the sequence of shots or the injuries that may have been caused by particular shots. He testified as follows: Q Try to explain to the jury, when you were firing, what were you -- as best you can, if you can, what you were thinking. A I was thinking get out of there alive. Q And what were you feeling? A Terrified. Q During the firing of your shots, did you see Ms. Ali? A No. Q Did you know whether she'd been hit? A No. Q Did you know while you were still in the living room, before you ran out the patio door, whether you'd hit Mr. Whitty with a -- with a bullet? A I believe I may have, but I wasn't sure. I wasn't waiting around to find out. Q What about Maximilian [Mr. Duschl]; did you notice him during the shooting -- during -- A No. No, I did not. [11] In cross-examination, when asked about where and how many shots were fired, and whether he acted in self-defence he said: Q Since you're situated in the living room, you agree with me it makes sense that you shot in that room; correct? A That I shot in the living room? Q Yeah. A Yes, I did. Q But the hallway you couldn't be sure since you were firing your eyes closed. Do you agree with me? A I agree. Q So you're not sure if you actually shoot in the hallway? A I was just randomly firing across the living room. The hallway is part of -- in the way of the line of fire. Q So -- but you make motion with your right arm -- or you got your right arm straight and going basically from, like, an umbrella movement. That's basically what happened? A Yeah. Q Every time you were firing, you were pulling the trigger; correct? A Yes Q And you fired minimum, I would say, six shots? A I couldn't say. Q Okay. A It could have been. It could have been. Q Okay. And you were trying to basically defend yourself? A Yes. Q Okay. And by shooting while your eyes are closed, how do you know where was your attacker? A I didn't. [12] The appellant did not agree with the Crown's suggestion that he shot Ms. Ali first. He testified: Q So you mentioned yesterday that you believe that Matt [Mr. Whitty] was running across the living room while you were shooting. Remember that? A Yes. Q Do you agree with me that you shot him multiple time? A Yes. Q And you did that with eyes closed? A Yeah. Q And -- well, I'll suggest to you that actually you shot Cash [Ms. Ali] first. Do you agree? A No. Q Could it have been a possibility? A I don't know. [13] When he was asked why he ran out of the 119th Avenue residence and did not call 911, he testified as follows: A I was -- I was in shock. I believed I had been in a firefight. Q Do you have any idea how many shots you fired? A I have no clue. Q Did you consider staying and calling the police? A No, I didn't. I wasn't -- I wasn't thinking. [14] He testified that when he left the 119th Avenue residence he got into the car of a friend, Janet Anderson, who had been waiting for him and asked her to drive away quickly. He did not know Ms. Ali had been so severely injured that she might die. In cross-examination he testified: Q When leaving you didn't -- and getting into Janet's car, you didn't ask anyone to call 911 correct? A No, I did not. Q And after leaving the residence, you didn't ask anyone else to go check inside; correct? A No, I did not. Q You basically didn't care of what happened inside; correct? A That's not true. I was just -- I was in shock. I was getting the fuck out of there. Q So you didn't see who shot you and there was other people in the house and you didn't care if you hit someone else? A I wasn't worried about that. Q Why not? A Because I had been shot at. I didn't know where the threat was coming from. I fired my gun, and I left. [15] At some point while driving away from the scene, the appellant indicated he needed the vehicle and dropped off Ms. Anderson. He was asked why he did that and testified "[a]t this point in time, I don't even really know. I was just in -- in panic and shock. I -- I just wanted to drive away". [16] He stated he then drove around "aimlessly" for some time, in "a state of shock", before going to a house on 121st Avenue in Maple Ridge. When he got there, he was no longer wearing a shirt. He testified in chief he was sweating profusely, and it was a hot summer day, so he removed a black hoodie and shirt that he had been wearing at the time of the shooting. In cross-examination he agreed that he was sweating as a result of "a combination" of the heat and the shooting. [17] Once at the 121st Avenue residence, he showered and shaved his head. That was canvassed in chief as follows: Q Why did you shave your head? A I couldn't tell you. I was just in the moment of not really knowing what -- what happened, what's going on. Freak -- just freaking out. Q Well you knew that you'd discharged your gun, obviously? A Yes. Q Did you know at this time at Dan's, [the 121st Avenue residence] when you were shaving your head and that type of thing, whether you'd hurt anyone? A Yes. [18] In cross examination he confirmed that he shaved his head and removed his clothes because he was in a panic. [19] The appellant was arrested the day after the shooting, after attempting to flee out the back door of the 121st Avenue residence. The circumstances surrounding his arrest were canvassed together with his continuing state of shock as follows: Q Did you hear about the death of Ms. Ali? A I did. Q Did you go to the police about it? A No, I did not. Q Why not? A 'Cause I didn't believe it was real at first, and still in just in shock of the whole situation. Q When did you hear about her death in relation to your arrest? A Someone told me that -- that it had happened. And then I believe I may have looked it up on Internet media, on -- just like on the news. Q And obviously that was before your arrest? A Yes. Q And you heard evidence in this case from the Constable Jones, and the circumstances of your arrest; do you remember that? A Yes, I do. Q And what do you remember about the arrest? A I remember looking out the front door and seeing the -- the tank and the ERT team, and then attempting to run out the back door, to find another tank and the ERT team. And I then got on the ground and surrendered to the police. Q Why did you run out the back? A Once again, just in panic and shock, and just the firefight I guess. [20] His testimony, in cross-examination, was that he was in a continuous state of panic from the time he thought someone shot at him in the 119th Avenue residence until his arrest: Q During that entire incident, you panic a couple of time; correct? A I believe it was one state of panic. Q So basically your state of panic was starting from the shooting going all the way you were arrested? A Yeah. Q Okay. So do you agree with me that you fired your arm recklessly in the state of panic? A I fired my handgun in a state of being scared, panicked. Q You took the car of Janet and her phone because you were panicking? A Well, I took her car. Her phone was in the car. Q And you change your appearance because you were panicking? A Yes. Q And when you learned Cash death, were you panicking? A Yes. Q And when you police arrive, as well you were panicking? A Yes. [Emphasis added.] [21] A police search of the 119th Avenue residence at which the shooting occurred revealed seven spent .22 calibre casings, two bullet fragments, and a spent 9 mm casing. The 9 mm casing was found in a bag with one of the spent .22 calibre casings. All casings were located in the living room. One bullet fragment was found in the hallway and the other just inside the front entrance. The expert opinion evidence was that six of the .22 calibre casings came from the firearm found at the 121st Avenue residence. The other .22 calibre casing, and the 9 mm casing, came from a different unidentified firearm. [22] Bullet impact marks in the living room and an adjacent closet were tested for copper and lead. A trajectory test on certain bullet holes was conducted. One of the marks that tested positive for lead was an elliptical shaped mark in the ceiling above where the appellant was standing at the time of the shooting. That mark had a trajectory that could have originated from the couch area. However, the diameter of the hole was approximately 5.5 millimetres consistent with a .22 calibre bullet (which has a diameter of 5.56 millimetres) rather than a 9 mm bullet. There was no evidence when the 9 mm bullet was shot, and no 9 mm gun was located. Mr. Whitty testified that another resident of the house had a 9 mm gun. [23] The appellant admitted he shot Ms. Ali and Mr. Whitty, and that the shot to her head was the cause of Ms. Ali's death. He also admitted he had a criminal record and that he was subject to a lifetime firearms prohibition for offences that occurred in 2020. [24] The questions for the jury were: 1) whether the Crown had proven beyond a reasonable doubt that the appellant had the requisite intent for the offences charged; and 2) whether the Crown had disproven self-defence and provocation. Counsels' Submissions on the Charge to the Judge [25] The trial judge sought submissions with respect to the after-the-fact conduct. He asked Crown counsel to identify the conduct considered by the Crown to be significant and the inferences that could be sought from that conduct. In response, the Crown prepared a chart identifying five instances of after-the-fact conduct, and the inferences that were sought from each item. After rejection of one submission -- that an inference could be drawn from the appellant re-loading his gun after the shooting -- and the addition of another -- that an inference could be drawn from the appellant's failure to call 911 -- the Crown identified the following aspects of after-the-fact conduct and the inferences it sought to draw: a) Leaving the residence quickly and asking Ms. Anderson to drive away fast: the appellant intended to commit murder; b) Removing his hoodie and shirt before arriving at the 121st Avenue residence: the appellant intended to commit murder and self-defence was not a motive; c) Changing his appearance: the appellant intended to commit murder and self-defence was not a motive; d) Fleeing the 121st Avenue residence when the police attended: the appellant intended to commit murder; and e) Failing to call 911: the appellant intended to commit murder and self-defence was not a motive. [26] The appellant's counsel submitted that none of the after‑the‑fact conduct "inform[s] the level of intent" and a no probative value instruction should be given. He contended the appellant's flight, and subsequent behaviour, was as consistent with the appellant's version of events -- that he "shot up" the living room without aiming at anyone -- as with the testimony that he intentionally shot the victims. He emphasised the Crown was only asking for most after‑the‑fact conduct to be weighed as circumstantial evidence of intent and described all after-the-fact conduct as equivocal in that respect. [27] The appellant's counsel also resisted the inference that any of the after‑the‑fact conduct was evidence contradicting the appellant's claim that he acted in self‑defence. He argued none of the conduct was unambiguously attributable to a guilty mind and inconsistent with self‑defence. [28] In the initial submissions to the judge, on the content of the instructions, the appellant's counsel said nothing about the order of shots or an instruction that intent must coincide with the actus reus -- in relation to the order of gunshots fired. [29] A draft charge was then circulated, and the judge heard further submissions from counsel before counsel presented their closing address to the jury. Counsels' Submissions to the Jury [30] In his address to the jury, the appellant's counsel referred to all after-the-fact conduct, to use a phrase we will see below, as a continuum. His submission on this point is transcribed as follows: When he initially fled the scene in Ms. Anderson's car, he had been shot at and did not know where the threat was coming from, and he was understandably in a state of panic. The state of panic explains why he did not call 911. He took control of her car and drove aimlessly until he got to Dan's residence. Took a shower and shaved his head. Left with [a third person] on the motorbike, and they went to get drugs. His change of appearance was also something he did in a state of panic. When he saw the police at the front door later, he again panicked and ran out the front door -- the back door. Changing his appearance and running out the back door does not mean that he considered himself guilty of committing the offences with which he is now on trial for. He knew that he had fired a pistol at that residence. This could easily be the explanation for changing his appearance and running from the police. It doesn't mean he felt guilty of murder and attempted murder. And the judge will instruct you more on this, but that's my basic submission on this evidence of what he did afterwards. There's really nothing you can do with it. [31] The appellant's counsel made difficult-to-reconcile submissions on the order of shots. Evidently seeking to avoid the jury concluding the appellant intended to inflict the injury or death caused by shots after the first or second shot, he emphasised the quick succession of shots. Seeking to establish that the death of Ms. Ali might have been a result of the first (and perhaps most proportional response to the shot the appellant says he heard) counsel argued that the order of shots was significant. The first position focused on the shots being fired at once and the lack of deliberation between shots as reflected in the following submission: All of the shots were fired at once. No witness testified about any pause between any of the shots. Mr. Wareing was using a semiautomatic pistol, which does not require deliberation in firing. It's not an automatic. It's semiautomatic as the experts said. Pull the trigger, release, pull the trigger again, and that's how the shots come out. But it looks like the firing of the shots on the evidence must have been in the space of a few seconds. So there was no deliberation between the shots. Mr. Wareing testified he fired his shots as Mr. Whitty moved towards the door. He was firing blindly with his eyes closed. [Emphasis added.] [32] The second position, that part of the appellant's response to a perceived threat might have been proportional, and the jury might consider the injury or death caused by that proportional response, was expressed in the following terms, as a theoretical argument: On the question of whether the number of shots fired was disproportional, the evidence on the issues at this trial and the charges will lead you to consider which shot struck Ms. Ali. That's the murder charge, obviously. If she was struck with the first or second bullet, then it makes a difference to the proportionality issue that you have to consider. In other words, you may say -- and I'm not suggesting you do this because I say the defence of self-defence is a complete defence to both charges. But you may say when he first shot at Whitty and his first bullet hit Ms. Ali, in the circumstances that was reasonable because of what -- he'd just been shot at by the guy, but it was unreasonable disproportional as he fired off his other shots. Now, I don't -- I say that doesn't make a difference because these are fired in a few seconds, but you could theoretically break it down and look at the murder charge and ask when -- which shot hit Ms. Ali? At that time was he being reasonable in the sense -- was his force used proportional to what had happened to him? [Emphasis added.] [33] In his closing submissions, Crown counsel referred only to the appellant's change of appearance, removing his clothes and shaving his head as specific acts from which the inference could be drawn that he had not acted in self‑defence. However, he did emphasise the appellant described all of his after‑the‑fact conduct as reflecting a state of panic. He reminded the jury: Mr. Wareing mentioned that he was in state of panic from the time of the shooting until he was arrested. From the Crown perspective, and it's submitted to you, that it was a very long time to be in a state of panic, when looking at all the actions that he did during that time, change his clothes, took a shower, change his appearance, reloading his firearm, shooting his firearm again, going in and out of the 121 Avenue residence and run away through the back door when the police came to the front, this state of panicking doesn't have the hallmarks of losing self-control suddenly that is submitted to you. The Charge [34] Ultimately, the charge did not contain specific instructions with respect to the order of gunshots and how the sequence might be considered when addressing proportionality. However, the charge did address after‑the‑fact conduct as follows: In this case, the evidence indicates Mr. Wareing left the 119 Avenue residence quickly and urged Ms. Anderson to drive away. He arrived at the 121 Avenue residence around 9:01 with no shirt on He changed his appearance by shaving his head He attempted to flee out the back door when police came to apprehend him and he made no effort to call 9-1-1. After-the-fact conduct is a type of circumstantial evidence. As with all circumstantial evidence you must consider what inferences if any may be drawn from it. Of course, you may consider this evidence only if you find as a fact that this conduct occurred. Keep in mind that people may do these things for entirely innocent reasons, such as fear of being subjected to a false accusation or not wanting to deal with police given the nature of their lifestyle generally. [Emphasis added.] [35] The charge went on to outline the Crown and defence's positions on the after-the-fact conduct and the proposed inferences: The Crown's position is that an inference can be drawn from Mr. Wareing's conduct that the shooting was not an act of self-defence because he would have no reason to flee, change his appearance or not call 9-1-1 if he'd done nothing wrong. The Crown also says that this conduct also gives rise to the inference that Mr. Wareing intended to kill Ms. Ali and Mr. Whitty, or intended to cause them bodily harm that he knew was likely to cause death, and it also gives rise to an inference that the shooting was not an act of self-defence. The defence's position is that you should not draw these -- those inferences because these acts are explained by Mr. Wareing's testimony, that he was in a state of panic after the shooting and after he learned that someone was killed. His shedding of his upper clothing is explained by his testimony that he was sweating due to the combination of the shooting and it being a hot day. He did not call 9-1-1 because at that point he didn't know anyone had been hit. Finally, the defence says Mr. Wareing's after the fact conduct has no probative value on the issue of the intent required for murder. [Emphasis added.] [36] The judge then dealt with each party's position in turn: Mr. Wareing's after-the-fact conduct has no probative value in terms of showing intent to murder. That is because Mr. Wareing's after-the-fact conduct is equally consistent with Mr. Wareing having thought he might have committed an offence short of murder or other than murder. In brief, the inference the Crown may wish you to make on intent to murder is not a proper inference for you to draw here. The inference that Mr. Wareing's after-the fact behaviour shows the shooting was not an act of self-defence is an inference available to you, but other explanations have been given for his behaviour and so I urge you to be cautious before drawing that inference. Even if you reject those explanations for Mr. Wareing's after-the-fact conduct, there is still the possibility he did these things for innocent reasons such as being subjected to a false accusation or not wanting to deal with police given the nature of his lifestyle. Despite that caution, it is still open to you to draw that inference. It is entirely up to you. [Emphasis added.] [37] The charge reflected the fact that in his own testimony the appellant explained his after‑the‑fact conduct as a reflection of his panic, having been in a "firefight". But the trial judge also invited the jury to consider other explanations of the conduct consistent with innocence. [38] The judge returned to the topic of after‑the‑fact conduct later in the charge, instructing the jury as follows: Since I am now instructing you on the two forms of intent required for murder, I remind you of my earlier instruction that Mr. Wareing's after-the-fact conduct has no probative value in terms of showing intent to murder. I explained that this is because Mr. Wareing's after-the-fact conduct is equally consistent with Mr. Wareing having thought he might have committed an offence short of murder or other than murder. [39] When addressing the question of self‑defence, both counsel and the trial judge focused primarily upon the question whether there was reason for the appellant to believe force or a threat of force was being used against him, and whether there was in fact a shot fired before he "shot up the room". The jury was instructed to ask three questions in relation to self‑defence: (1) Has the Crown proved beyond a reasonable doubt that Mr. Wareing did not believe that force or the threat of force was being used against him, or that Mr. Wareing's belief was not based on reasonable grounds? (2) Has the Crown proved beyond a reasonable doubt that Mr. Wareing did not commit the act for the purpose of defending or protecting himself from the use of force or threat of force? (3) Has the Crown proved beyond a reasonable doubt that Mr. Wareing's act was not reasonable in the circumstances? [40] The jury was told that an affirmative answer to any of these questions would be dispositive in the Crown's favour. As far as the last question, reasonableness, was concerned, the judge summarized the evidence in the following passage: Mr. Wareing testified that he pulled out his gun from his left side, swivelled and then "shot up the living room". Later when he was asked if when firing he realized he could seriously injure someone, he said yes. He said he turned around, closed his eyes, and shot Ms. Ali in the head. Mr. Wareing testified that (a) he did not see where he was shooting; (b) he was randomly firing across the living room; (c) he had his right arm extended straight and used a sweeping motion, left to right while he was shooting; (d) while he was shooting he was standing in the area of the white towel on the living room floor facing toward the couch roughly a metre or metre and a half away; (e) he agreed he could have fired a minimum of six shots; and (f) he agreed he could have hurt someone badly or killed someone. [41] The judge continued: The extent to which the use of force was imminent and whether there were other means available to respond to the lethal potential -- sorry, extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force turns on whether there was a preceding gunshot. Crown says there was no gunshot. The defence says there was. If there was a preceding gunshot, the evidence of Mr. Wareing is that he started shooting not knowing who had -- who had shot and he was blindly firing with his eyes closed. The Crown argues that Mr. Wareing took no steps to flee the room instead of shooting in circumstances where the patio door was readily available to him as an exit. The defence notes Mr. Wareing didn't know if the second shot was coming. He testified that he felt he had to react. Mr. Whitty must have fired the shot and he was just a short distance away. At the time Mr. Wareing didn't believe that fleeing out the patio door was an option. [42] As discussed above, the sequence of shots was not mentioned in the charge, the judge simply noted: The shooting lasted only -- the shooting only lasted for seconds. There is no evidence of any pause between shots. While Ms. Anderson said she didn't see Mr. Whitty with a firearm, she didn't see anyone with a firearm, including Mr. Wareing. Post-Charge Submissions [43] In submissions to the trial judge after the charge, the appellant's counsel said nothing about the sufficiency or inadequacy of the instructions on after‑the‑fact conduct. However, he sought to have the judge give further specific instructions on the sequence of shots. He submitted that the jury might find the appellant intentionally fired the third, fourth, fifth, or sixth shots at Mr. Whitty, with the intent to kill him, after Ms. Ali had been killed. In that case, the actus reus (killing Ms. Ali) and the mens rea (the intent to kill Mr. Whitty) do not coincide as far as the murder charge was concerned. In the exchange that followed, the trial judge expressed some difficulty identifying a scenario in which the actus reus and mens rea would not coincide. [44] Nevertheless, the jury was given the following further instruction, not that sought by the appellant's counsel, but a direction to consider necessity of a coincidence of actus reus and mens rea and the sequence of gunshots: [T]he Crown must prove beyond a reasonable doubt that Mr. Wareing had the required intent to kill Mr. Whitty at the same time that he committed the unlawful act which resulted in the death of Ms. Ali. Intent for the murder of Mr. Whitty must coincide with the gunshot fired by Mr. Wareing that caused the death of Ms. Ali. On this issue, consider the evidence about the sequence of gunshots Mr. Whitty said that Ms. Ali was shot with the second shot by Mr. Wareing. The first shot was the shot to Mr. Whitty's knee. Mr. Duschl said that Mr. Wareing's first shot was the shot to Ms. Ali. Mr. Wareing testified he turned around, closed his eyes, ...[he] shot Cash in the head; he did not agree he shot Cash first, and he didn't know if it was possible he did; and he didn't know who he shot first. So, that is the evidence we're inviting you to consider on the matter of the sequence of gunshots. Applicable Law Standard of Review [45] When reviewing the sufficiency of a jury charge, an appellate court should take a functional approach. This approach is applied to the charge as a whole, within the context of the trial as a whole: R. v. Abdullahi, 2023 SCC 19 at paras. 4, 35. [46] The appropriate question is whether the charge as a whole enabled, or "properly equipped", the trier of fact to decide the case according to the law and the evidence: Abdullahi at para. 35; R. v. Calnen, 2019 SCC 6 at para. 8; R. v. Mack, 2014 SCC 58 at para. 49; R. v. Jaw, 2009 SCC 42 at para. 32. [47] In R. v. Daley, 2007 SCC 53, Justice Bastarache described the "cardinal rule" as follows: "it is the general sense which the words used must have conveyed, in all probability, to the mind of the jury that matters, and not whether a particular formula was recited by the judge", at para. 30. The particular words used are considered to be "a matter within the discretion of the trial judge and depend on the particular circumstances of the case". [48] We must determine whether the jury was properly, not perfectly, instructed: Calnen at para. 9; R. v. Jacquard, [1997] 1 S.C.R. 314 at para. 62, 1997 CanLII 374. This requires the focus be on the substance of the charge, and not whether it follows a prescribed formula or sequence: Abdullahi at para. 35. As Justice Rothstein explained in R. v. Araya, 2015 SCC 11 at para. 39, judges should be afforded flexibility in crafting their instructions. [49] As Justice Rowe, for the majority in Abdullahi explained, "challenges to a judge's instructions to the jury are analyzed as an error of law" which may allow appellate intervention under s. 686(1)(a)(ii) of the Criminal Code, R.S.C. 1985, c. C-46 [Code]: at para. 30. [50] Describing the nature of a functional approach to appellate review of jury charges, and the assessment of a "properly equipped jury", Rowe J. went on to write: [37] [I]t is helpful to view a properly equipped jury as one that is both (a) accurately and (b) sufficiently instructed. This requires the appellate court to have regard both to what was said and what was not said in the judge's instructions. To be clear, the distinction between allegations of inaccuracy and insufficiency are not two separate grounds of review of a jury instruction for legal error, nor do they replace or depart from other terms that have been used in the jurisprudence to describe errors in jury instructions. An alleged error, depending on how it is framed, might raise concerns of both inaccuracy and insufficiency. In the end, these concepts are useful tools through which an appellate court may answer the ultimate question of whether, on a functional reading, the instructions properly equipped the jury to fulfil its role. [41] The charge must be read as a whole. As this Court has stated, "the right of an accused to a properly instructed jury does not equate with the right to a perfectly instructed jury" (Jacquard, at para. 32). A single ambiguous or problematic statement in one part of a charge will not necessarily be an error of law where the charge as a whole equipped the jury with an accurate understanding of the relevant legal issue (R. v. Goforth, 2022 SCC 25, at paras. 35 and 40; Jaw, at para. 32; Cooper, at pp. 163-64). One misstatement might be compensated for by an accurate statement elsewhere in the charge, provided the jury would have accurately understood the law it must apply (White 2011, at paras. 82 and 84; Ménard, at para. 30; Jacquard, at para. 20). After-the-Fact Conduct [51] Much of the analysis of the use of after‑the‑fact (formerly referred to as post‑offence) conduct in our jurisprudence begins with R. v. Arcangioli, [1994] 1 S.C.R. 129, 1994 CanLII 107; R. v. White, [1998] 2 S.C.R. 72, 1998 CanLII 789 ["White #1"], and R. v. White, 2011 SCC 13 ["White #2"]. [52] In Arcangioli, the accused was charged with aggravated assault for having allegedly stabbed someone. He admitted to having punched the victim several times before he fled from the scene. The trial judge permitted the jury to consider the after‑the‑fact conduct of flight as evidence on the aggravated assault charge, but the Supreme Court of Canada concluded that was an error. Because the accused had admitted culpability in respect of one offence (assault), and the evidence could not logically support an inference of guilt with respect to another offence he was charged with (aggravated assault), the evidence of the appellant's flight had no probative value, and the jury could make no use of it. [53] Justice Major explained: "[W]here an accused's conduct may be equally explained by reference to consciousness of guilt of two or more offences, and where an accused has admitted culpability in respect of one or more of these offences, a trial judge should instruct a jury that such evidence has no probative value with respect to any particular offence": at 145. That being the case, the judge should have instructed the jury that the evidence of flight in that case had no probative value. [54] In White #1, the accused were charged with first-degree murder. As in Arcangioli, the charge focused upon inferences that could be drawn from after‑the‑fact flight plus the disposal of a weapon. The accused argued the trial judge erred by not giving the jury a "no probative value" instruction with regard to the appellants' after‑the‑fact conduct. They argued their acts of flight and disposal could not be probative of consciousness of guilt with respect to the victim's murder, because those acts were "equally explained" by reference to the parole violations and bank robberies which they admitted committing. Justice Major, again writing for the Court, using words that on their face are applicable to the case at bar, clarified the scope of a no probative value instruction: [27] As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury's exclusive fact-finding role. Consequently, a "no probative value" instruction like the one required in Arcangioli will be called for only in limited circumstances. [28] Such an instruction is most likely to be warranted where, as in Arcangioli itself, the accused has admitted to committing the actus reus of a criminal act but has denied a specific level of culpability for that act, or has denied committing some related offence arising from the same operative set of facts. In such cases, the participation of the accused in the culpable event is not at issue; the question to be decided is merely the extent or legal significance of that participation. [29] By contrast, a "no probative value" instruction is not required where the accused has denied any involvement in the facts underlying the charge at issue, and has sought to explain his or her actions by reference to some unrelated culpable act. [Emphasis added.] [55] Determining if a no probative value instruction is appropriate is a case‑by‑case exercise: [32] It is possible to imagine cases in which evidence of post-offence conduct could logically support a distinction between two levels of culpability for a single act, or between two offences arising from the same set of facts. By way of illustration, where the extent of the accused's flight or concealment is out of all proportion to the level of culpability admitted, it might be found to be more consistent with the offence charged. Post-offence conduct might also be relevant in cases where the accused has admitted to committing a physical act but asserts that the act was justified in some way; in those circumstances, an act of flight or concealment might constitute some evidence from which, along with other evidence, the jury could infer that the accused was conscious that he or she had committed a culpable act and had not, for example, acted in self-defence. See Peavoy, supra, at p. 241; Jacquard, supra, at p. 348. [Emphasis by underlining added.] [56] In White #2, the accused admitted that a manslaughter case had been made out against him but ultimately was found guilty of second-degree murder after the jury was not given a limiting instruction on the use they could make of the fact he fled the scene of the killing. Relying on Arcangioli and White #1, he argued on appeal that the trial judge should have instructed the jury that the evidence concerning the circumstances of his flight had no probative value in relation to the question before the jury. In his submission, the evidence relied upon by the Crown was consistent with both manslaughter and second‑degree murder and was therefore irrelevant to the only live issue in the case. The trial judge summarized the Crown's theory of the case, including their argument that the fact the accused ran away with no apparent hesitation or confusion suggests he intended the victim's death. [57] Justice Rothstein, for the majority, rejected the appellant's argument on the ground that, on the facts of the case, an inference might be drawn from the manner of the flight, that the flight was immediate, and was without reflection. He held that Mr. White's lack of hesitation prior to fleeing the scene was relevant to the issue of his level of culpability and this evidence was properly left with the jury. Its admission and consideration for that purpose posed a risk, and it was therefore appropriate for the trial judge to warn the jury to be careful with this evidence and that it might not be of much assistance to them. [58] In R. v. Angelis, 2013 ONCA 70, Justice Laskin, helpfully and succinctly set out some of the guiding principles emerging from these and other cases, at para. 55: Post-offence conduct is not subject to blanket rules. It is circumstantial evidence whose probative value depends on the nature of the evidence, the issue at trial and the positions of the parties. Thus, we do not automatically label certain kinds of post-offence conduct as always or never relevant to a particular issue. Rather, we must consider all the circumstances of a case to determine whether the post offence conduct is probative and, if so, what use the jury may properly make of it. In the words of Rothstein J. in [White #2], the overriding question is this: what do "logic and human experience" suggest that a jury can legitimately or rationally infer from the accused's post-offence conduct? [59] A question similar to that we face was considered in R. v. Rodgerson, 2015 SCC 38. In that case, the Supreme Court of Canada restated the general duty of a trial judge to assist the jury in linking the evidence to the issues that it must consider in reaching a verdict, but noted that the level of detail that is required varies depending on the context. It affirmed the view expressed in Daley at para. 57 that the test is one of fairness, and "[s]o long as the evidence is put to the jury in a manner that will allow it to fully appreciate the issues and the defence presented, the charge will be adequate" (at para. 30 quoting Christopher Granger, The Criminal Jury Trial in Canada, 2nd ed. (Toronto: Carswell, 1996) at 249). [60] The accused, Mr. Rodgerson, acknowledged causing the victim's death, but argued he had been attacked and acted in self‑defence and the force he exercised was moderate and designed solely to protect himself from death or grievous bodily harm. Following the victim's death, he concealed the body, cleaned up the scene, fled from the police, and lied to them about who was responsible for the death. The trial judge instructed the jury in accordance with the cautionary requirements described in White #1 and White #2, in an instruction on after‑the‑fact conduct. He gave an overview of permissible uses and cautioned the jury about the dangers associated with this type of evidence, but he permitted the jury to consider the accused's flight from the police and his attempt to mislead them as evidence of intent. In writing for the Court, Justice Moldaver concluded that the judge should have limited the use of this evidence to negatie the defence of self‑defence and establish that the victim died as a result of an unlawful act. By failing to do so, the trial judge had erred by leaving it to the jury to consider in deciding the issue of intent: at para. 6. [61] Despite agreeing with the Ontario Court of Appeal's findings, Moldaver J. expressed concern that passages in their reasons might be misinterpreted to suggest that it would have been impermissible for the jury to consider the concealment and clean-up evidence at all until it had first satisfied itself, based on other evidence, that the altercation had taken a particular form. His comments in relation to such instructions should be weighed carefully in this case: [23] In my view, such an approach would needlessly complicate the jury's already complicated analytical task. Moreover, it would represent an unwarranted requirement that the evidence be placed in artificial silos before being considered by the jury. The jurisprudence disfavours this type of evidentiary segregation: see R. v. Morin, [1988] 2 S.C.R. 345. The jury was entitled to consider both the forensic evidence and the evidence of post-offence concealment and clean-up simultaneously, as a whole, in determining the nature and extent of [the victim]'s injuries and the degree of force required to inflict them. [62] The Supreme Court of Canada determined that, in the circumstances of the case, the jury required instruction on the specific inferences that could be drawn from the after-the-fact conduct. The jury was entitled to consider the concealment and clean-up evidence in respect of the accused's self-defence claim and whether he unlawfully killed the victim. The relevance of the concealment and clean‑up and the nature of the available inference was a matter of common sense. In relation to the issue of intent for murder, however, the inferential reasoning was no longer of any use. After‑the‑fact conduct had very narrow relevance to the issue of intent in that case; it suggested the accused had attempted to conceal the nature and extent of the victim's injuries and the degree of force required to inflict them. [63] In Calnen, the Supreme Court of Canada again considered the sufficiency of instructions in a case where the jury had been left to draw inferences from after‑the‑fact. The Court was satisfied that the evidence of the accused's after‑the‑fact conduct (including his admission that he had indecently interfered with the victim's remains by burning their body) was admissible as circumstantial evidence on both the issue of causation and the mental element for second‑degree murder. The principal question before the Court was whether that evidence posed such an elevated risk of propensity reasoning that a limiting instruction was required. [64] Writing for the majority, Moldaver J. said: [25] The trial judge's detailed limiting instructions on after-the-fact conduct evidence and his caution against drawing speculative inferences from circumstantial evidence are significant factors when assessing the risk that the jury would engage in general propensity reasoning. [65] The trial judge had taken lengths to explain the potential of innocent explanations for the conduct, and what conclusions could be drawn from the evidence when viewed as a whole: [29] [T]he jury was told repeatedly to consider potential innocent explanations for Mr. Calnen's after-the-fact conduct, and the trial judge provided detailed examples to consider. He explained the competing inferences available from Mr. Calnen's after-the-fact conduct and situated that evidence in the context of the parties' theories. He further clarified that after-the-fact conduct was merely circumstantial evidence -- that is, evidence capable of giving rise to various reasonable inferences when considered in light of the evidence as a whole -- that may or may not assist the jury. Further, and crucially, he cautioned that the evidence of Mr. Calnen burning [the victim]'s body could not, by itself, satisfy the standard of proof beyond a reasonable doubt; it was only a piece of circumstantial evidence to be considered with the whole. Discussion and Analysis After-the-Fact Conduct [66] Applying the logic employed in Rodgerson, it is clear that some of the evidence of the appellant's after‑the‑fact conduct is relevant to his assertion that he acted in self‑defence. That is a matter of common sense: changing one's appearance and failing to call emergency services could be viewed as evidence that the appellant knew he killed Ms. Ali and injured Mr. Whitty unlawfully and was acting to avoid identification and arrest. It is arguably more consistent with that inference than with an innocent explanation. [67] Here, as in Rodgerson, when the jury considered the issue of intent for murder, that simple inferential reasoning was of no use. In this case, unlike Rodgerson, the after‑the‑fact conduct had no other limited relevance to the question of intent. The trial judge properly gave a no probative value instruction in relation to intent. [68] The appellant raises the narrow question of whether the judge should have isolated and removed the appellant's flight from the scene, flight from the police, and failure to call 911, from the description of relevant after‑the‑fact conduct for self‑defence. He says it is important to note the discussion of his flight started with an erroneous description of the argument advanced by the Crown. The judge said: "The Crown's position is that an inference can be drawn from Mr. Wareing's conduct that the shooting was not an act of self-defence because he would have no reason to flee, change his appearance or not call 9-1-1 if he'd done nothing wrong" (emphasis added). That is not accurate. In his pre‑charge submission to the judge, Crown counsel indicated he would invite the jury to draw an inference that would negate self‑defence from three after‑the‑fact acts: removal of his hoodie and shirt; changing his appearance by shaving; and failing to call 911 for help for the victims. [69] The appellant says it was an error to ask the jury to draw an inference the Crown has not asked for. The judge ought to have said: "The Crown's position is that an inference can be drawn from Mr. Wareing's conduct that the shooting was not an act of self‑defence because he would have no reason to remove his shirt, change his appearance or not call 911 if he'd done nothing wrong". [70] Not only was the specific inference arising from flight not sought by the Crown, but the appellant says neither the flight from the scene nor the later flight from the police had any probative value. The first incidence of flight may simply have been an attempt to leave a dangerous place, the second to avoid arrest on a weapons charge. The jury should have been instructed that the evidence of flight was of no probative value in relation to the question whether the appellant acted in self‑defence. [71] I would not accede to this argument. First, the impugned words appear in a description of the Crown's argument, not in the judge's own description of the evidence from which inferences can be drawn. The jury would have understood the judge did not adopt all of the Crown's submissions on inferences. That became apparent when he rejected the Crown's submission with respect to inferences related to intent. [72] Second, the description of the Crown's argument is unlikely to have misled the jury. It was the appellant's evidence that all of his after‑the‑fact -- the "entire incident" from the flight from the scene to his arrest -- including flight from the scene, changing appearance, failing to call 911, and flight from the arresting officers was, in the appellant's words, "one state of panic". On a number of occasions, the appellant referred to the sequence of events following what he described as a "firefight" as a panic response. The Crown clearly tried to discredit that continuous state of panic scenario. [73] Given that the appellant himself sought to have the jury consider his conduct throughout the post‑event-period as of‑a‑piece, as one continuous chain of events driven by shock or panic, directing the jury to consider specific after‑the‑fact acts distinctly, rather than as a whole, could potentially have dissuaded the jury from accepting the appellant's version of events. The jury also, regardless of the arguments made by counsel, heard the evidence of flight, therefore it was appropriate for the judge to give direction on its use. [74] For the failure to call 911, while the Crown did seek an inference for self‑defence, the appellant contends the judge should still have made a no probative value instruction. As the act was equally consistent with another serious offence, possession of a firearm contrary to the prohibition order, which the appellant admitted to, a no probative value instruction was warranted. In Calnen, Justice Martin explained the existence of alternative explanations does not alone warrant a no probative value instruction. Here, a failure to call 911 was as a matter of logic and common sense capable of supporting on inference the appellant did not act in self-defence and thus was appropriate to leave to the jury. [75] In addition, it would be difficult to say to the members of the jury that they could consider the appellant's flight from the scene, together with his conduct in removing his shirt and shaving his head, and not calling 911, as a consequence of panic and fear -- but then explain only part of that conduct could be considered in drawing inferences with respect to self‑defence. To do so, in the words of Moldaver J. in Rodgerson, would needlessly complicate the jury's already complicated analytical task and place the evidence in artificial silos. [76] Ultimately, the judge gave a charge that was favourable to the appellant when, after giving a no probative value direction on intent, he described the very limited use to which the evidence could be used when considering whether self‑defence had been disproven. He urged the jury to be cautious. Despite not having been invited to do so, he told the jury that, even if they rejected the appellant's explanation of his after‑the‑fact conduct, there was still the possibility he did these things for innocent reasons. [77] It is correct to say that it may be an error, in some circumstances, to treat all after‑the‑fact conduct as an amorphous whole, as in R. v. Chambers, 2016 ONCA 684. In that case the Court noted the trial judge simply instructed the jury to consider all of the after‑the‑fact conduct of the two accused persons as "circumstantial evidence of guilt". In doing so, he erred in law: [91] [By failing] to instruct the jury as to what inferences were (and were not) available from the various portions of the evidence of the post-offence conduct and how that evidence related to specific live issues before the jury. He erroneously left the impression that Warner's and Chamber's post-offence conduct was relevant to all of the offences with which they were charged and could assist them in establishing the "respective states of mind of each accused". [78] In the case at bar, there were not "several live issues" as there were in Chambers. The jury was instructed that they could take after‑the‑fact conduct in relation to one issue: was the appellant's conduct following the shooting irreconcilable with his testimony that he reacted in panic to a gunshot and a perceived threat to his life. There was only one accused. He invited the jury to find all after‑the‑fact conduct could be attributed to his involvement in a "firefight" while acting in self‑defence. In these circumstances, considering the instructions functionally, the jury was properly instructed. The Sequence of Shots [79] As the majority noted in Abdullahi, a charge must be considered, not in isolation, but in the context of the trial as a whole. Doing so, we must ask whether the jury understood or was "properly equipped" in the circumstances of the trial to decide the case according to the law and the evidence. [80] The appellant's issue with the charge related to the sequence of shots is an assertion the judge erred by "non‑direction". That should be addressed by asking whether the instructions equipped the jury with a sufficient understanding of the law to decide the case, bearing in mind that the question is whether the jury was properly, not perfectly, instructed. [81] The sequence of shots had to be addressed carefully in the charge. In his address, the appellant's counsel asked the jury to find that the number of shots the appellant fired was proportional to the threat he faced. He also suggested there was only one burst of gunfire, with no pause, and no deliberation between shots. It was clearly not in the appellant's interest to invite the jury to distinguish between the first, second, and later shots when considering proportionality, as it was contrary to his testimony of a state of panic and acting solely in self‑defence. [82] He did, however, put to the jury the theory that, if they concluded Ms. Ali was struck by the first or second bullet, that fact should be considered when addressing proportionality. He said it was "theoretically" open to the jury to "look at the murder charge and ask when -- which shot hit Ms. Ali?" As I have noted, he emphasised that he was not suggesting the jury engage in that exercise because his position was that the defence of self-defence was a complete defence to both charges. [83] The judge addressed this submission in his supplemental charge to the effect that the Crown was required to prove beyond a reasonable doubt that the appellant had the required intent to kill Mr. Whitty at the same time that he committed the unlawful act which resulted in the death of Ms. Ali. He expressly told the jury that intent for the murder must coincide with the gunshot that caused the death and expressly invited the jury to consider the evidence about the sequence of gunshots. [84] In my view, that was sufficient in the circumstances, particularly in light of the fact that, on the appellant's version of events, there was no evidence which shot struck Ms. Ali. As the judge reminded the jury, the witnesses who testified with respect to the correspondence of injury to the sequence of shots said Ms. Ali was killed by the first shot (Mr. Duschl) or the second shot (Mr. Whitty), but both those witnesses testified to an intentional shooting, not the "firefight" described by the appellant. [85] I would not accede to the submission that the instructions on the sequence of shots were insufficient. The jury understood and was properly equipped in the circumstances of the trial to decide the case according to the law and the evidence. Disposition [86] I would dismiss the appeal. "The Honourable Mr. Justice Willcock" I AGREE: "The Honourable Madam Justice Fenlon" I AGREE: "The Honourable Justice Winteringham"