R. v. Phillips, 2017 ONCA 752
[154] In a murder case, evidence that supplies the air of reality to place a defence, justification or excuse before a jury may also be relevant for the jury to consider in deciding whether the Crown has proven the mental or fault element in murder beyond a reasonable doubt: Cudjoe, at para. 103. The device by which to draw the jury’s attention to such evidence is the rolled-up charge, prosaically described as “a stew of failed individual defences, justifications, or excuses whose ingredients are combined together and left with other relevant evidence for jurors to consider cumulatively in deciding whether [the prosecutor] has proven the mental element essential in murder” (emphasis in original): Watt’s Manual of Criminal Jury Instructions, 2nd ed., at p. 1206.
[155] The purpose of a rolled-up charge is to instruct the jury not to take a compartmentalized approach to the evidence by considering it only in connection with a discrete defence, justification, or excuse. Instead, the trial judge should remind the jury “they should consider the cumulative effect of all relevant evidence in determining the adequacy of the prosecution’s proof of the mental or fault element in murder” beyond a reasonable doubt: Cudjoe, at para. 104; R. v. Robinson, 1996 CanLII 233 (SCC), [1996] 1 S.C.R. 683, at para. 59; R. v. Fraser (2001), 2001 CanLII 8611 (ON CA), 159 C.C.C. (3d) 540 (Ont. C.A.), at para. 25, leave to appeal to S.C.C. refused, [2002] S.C.C.A. No. 11.
[156] Even where the partial defence of provocation is not left for the jury, evidence of an accused’s anger, excitement or instinctive reactions can have an impact on the formation of the requisite intent for murder and must be considered by the jury on that issue: R. v. Bouchard, 2013 ONCA 791, 305 C.C.C. (3d) 240, at para. 62, aff’d 2014 SCC 64, [2014] 3 S.C.R. 283; R. v. Singh, 2016 ONSC 3739, at paras. 84-85.
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