R. v. CALNEN, 2019 SCC 6

The indecent interference with the victim’s remains can constitute the intent to commit murder.

The accused, Mr. Calnen, was charged with second-degree murder and indecent interference with the remains of the victim, which led to the destruction of the evidence. He pled guilty for interfering with the human remains, and the jury in the trial court found him guilty of second-degree murder. The majority bench at the Court of Appeal held that the evidence of second-degree murder could not be constituted, and the charges of manslaughter should be imposed. The court further added that the after-the-fact conduct constitutes the act of moving, burning, and disposing of the victim’s body that is related to the lack of evidence for criminal intent to constitute a second-degree murder and, therefore, charges for the offence of manslaughter should be imposed.

The Supreme Court had to decide primarily on four issues: Did the trial judge instruct the jury properly? Whether the prosecution can contest the after-the-fact conduct evidence in the court to prove that the accused had the intent to commit a second-degree murder? Whether the trial judge should have granted the accused’s petition for a directed verdict? Was the jury verdict unreasonable?

Firstly, the court held that the trial judge’s neutral, fair and balanced instructions eliminated the option of considering the general propensity reasoning based on evidence of the accused’s after the fact conduct by the jury. The trial judge’s instructions and answers to the jury’s questions did not lead to the jury’s reasoning that the accused’s guilty plea to the victims’ indecent interference remains meant that the accused more likely committed second-degree murder and it was merely a circumstantial tip for deciding the matter.

Secondly, the majority of the bench held that the accused’s after the fact conduct evidence is admissible in the court as circumstantial evidence to prove the intent for second-degree murder as well as for the issue of causation.

Further, the defence did not raise any concerns to seek a limiting instruction against the general propensity reasoning during the pre charge conference, instead, he used the discreditable conduct (before the murder and after murder) to strengthen his credibility of statements and re-enactments upon which his defence of accidental death rested. The court stated that the defence counsel did not utilize the limiting instruction strategy because then the negative aspects of the discreditable conduct would have affected his credibility that eventually would have unravelled the defence of the counsel. This discreditable conduct evidence plays a significant role and is little more than a breeding ground for the moral and reasoning prejudice. The accused made a legitimate planned approach and lost in the trial for which they should face the consequences. The court held that since both the crown and defence believe that the jury was given all the tools to decide the matter in a fair and balanced manner, the principle of finality would prevail. The court held that the principle of finality is “essential to the integrity of the criminal process.” As the crown and defence had a fair trial, the court held the conviction of the accused for second-degree murder and indecent interference.