The Appellant was convicted of second degree murder. He appealed his conviction. The Ontario Court of Appeal allowed the Appeal and ordered a new trial?
After the fact conduct
The Appellant buried the body of his girlfriend after he strangled her. The issues that arose were two-fold: Firstly, the trial judge left the jury with the impression that the Appellant’s after-the-fact-conduct (burying the body) could prove that he intended to kill her. The Ontario Court of Appeal concluded that while in some cases after-the fact-conduct could be used as evidence to prove intent, on the facts of this case the trial judge failed to properly instruct the jury that the after-the fact conduct did not necessarily prove intent to kill.
The second issue concerned the defence of provocation. The trial judge left the jury with an instruction that larger people should have more self-control than smaller people. The Ont. C.A. said at paras 85-86:
The appellant’s size and athletic ability are not characteristics that have any inherent relevance to the degree of self-control expected of an ordinary person. Large people or good athletes are not expected to have more or less self-control than small people who are not athletic.
It is unnecessary to fix the ordinary person with the appellant’s size and athletic ability to properly assess whether the alleged provocative conduct was sufficient to cause an ordinary person to lose the power of self-control.
R v. Hill 2015 OJ No. 4758 (Ont C.A)
