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The Court of Appeal allowed the appeal, finding error in admitting a child’s hearsay statement under the principled exception and ordering a new trial on Count 2.
On the facts the trial judge did not err: some after-the-fact conduct had probative value regarding whether the appellant acted in self-defence and the judge properly limited the use of that evidence for intent while cautioning the jury on inferences for self-defence; further, the charge adequately addressed the concurrence requirement by directing the jury to consider which shot caused the death and that intent must coincide with the fatal shot, so the jury was properly equipped and the appeal is dismissed.
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The trial judge misdirected the jury by permitting after-the-fact conduct evidence to be used generally to infer mens rea for murder without a limiting instruction, failed to give a required limiting direction concerning concealment/consciousness-of-guilt when the level of culpability was a live issue, and invited an impermissible inference from alleged callous post-offence behaviour; these errors rendered the charge inaccurate and deprived the accused of a fair trial, warranting setting aside the conviction and ordering a new trial.
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Midtrial ruling that NCRMD had not yet been raised; mental-disturbance evidence could still be used on mens rea, but a later first-branch s. 16 claim could not relitigate intent.
The court refused to bar a jury charge on divisibility of injuries in a successive-accident case, holding the issue should be left for the jury.
The Supreme Court of Canada dismissed the appeal, upholding convictions for second degree murder and assault with a weapon and finding no reversible jury-charge error.
The Supreme Court dismissed the appeal in R. v. Bilodeau, upholding manslaughter convictions and finding no prejudicial error in the jury instructions.
Because the prosecution case was based largely on direct testimony from the complainant, Villaroman did not apply; the trial judge properly explained circumstantial evidence and left interpretation of the cards and notes to the jury; no motive-to-fabricate instruction was required in the absence of reliance on that theory in submissions; and the trial judge correctly affirmed the Crown's burden beyond a reasonable doubt, so no reversible error occurred.
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The trial judge's charge was legally adequate and balanced; the isolated, factually and legally accurate reference to abuse of authority was not prejudicial; the properly admitted similar fact evidence and the objective test for sexual conduct made the jury's verdict regarding M.D. one a reasonable jury could reach, therefore the convictions stand.
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The evidence supported an air of reality to the appellant's defence of honest but mistaken belief in communicated consent up until the complainant fell asleep or passed out, and because the trial judge failed to put that defence to the jury the conviction could not stand and a new trial was required.
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