Risk that jury would engage in general propensity reasoning considerably offset by trial judge’s instructions

Accused, C, and deceased, J, lived together in C’s home and had been involved in relationship and evidence disclosed that before J disappeared, she planned to end relationship. C claimed he did not cause J’s death, that J fell down stairs, but he decided to remove J’s body from his home and he moved J’s body several times and burned it several times. C was charged with second-degree murder and faced two charges of indecently interfering with J’s remains and C pleaded guilty to charges regarding J’s remains. At trial, C made unsuccessful motion asking trial judge to take charge of second-degree murder away from jury, and in charge to jury, judge left it open to jury to use after-the-fact conduct to prove requisite intent for murder. Trial judge explicitly instructed jury that after-the-fact conduct could be used to differentiate as between manslaughter and murder, and C was convicted of second-degree murder and sentenced to life imprisonment as well as five concurrent years for interfering with J’s remains. C appealed second-degree murder conviction and sentence for interfering with human remains, which was allowed in part, and new trial was ordered on charge of manslaughter. Majority of Court of Appeal held that trial judge had failed to properly instruct jury on use of evidence of accused’s after-the-fact conduct, which included evidence that accused had moved, burned and disposed of J’s body, as it related to proof of intent for second-degree murder. Crown appealed. Appeal allowed. Fact that trial judge could have given limiting instruction against general propensity reasoning, but did not do so, did not amount to reversible error, because this was not case of non-direction amounting to misdirection. Risk that jury would engage in general propensity reasoning based on accused’s after-the-fact conduct was considerably offset by trial judge’s introductory and final jury instructions, which were neutral, fair and balanced. Accused’s experienced defence counsel, who was well aware of issue of potential propensity reasoning, did not raise issue, much les sought limiting instruction, during pre-charge conference while vetting proposed final jury instructions.

R. v. Calnen (2019), 2019 CarswellNS 53, 2019 CarswellNS 54, 2019 SCC 6, 2019 CSC 6, Moldaver J., Karakatsanis J., Gascon J., Rowe J., and Martin J. (S.C.C.); reversed (2017), 2017 CarswellNS 825, 2017 NSCA 49, MacDonald C.J.N.S., Scanlan J.A., and Bourgeois J.A. (N.S. C.A.).