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| John L. Hill |
In the three days before Nov.1, 2022, they consumed meth, crack and alcohol without sleeping. That afternoon, an argument escalated after Pierre accused her of cheating; she responded sarcastically, which caused Pierre to “explode” and repeatedly stab her. He claimed to have blanked out, describing physical sensations like ringing ears and urination, and insisted he loved her and did not intend harm. Neighbours heard the fight and screams, prompting them and others to check the scene.
The Crown argued that Pierre’s behaviour after the killing demonstrated he had a rational mind, despite his intoxication and mental health issues. This included engaging with neighbours after the incident and leaving without calling for help. He washed his hands and put on a business suit over his overalls. He later confessed to the killing. The Crown also presented evidence regarding his condition and actions after he exited the apartment.
The trial judge clearly outlined the legal principles and the only issue for the jury — whether Pierre had the mental
Golden Sikorka
She linked evidence of his conduct after the event to assessing his rationality and intent, using examples such as interactions with neighbours, his decision to wear a suit over bloody overalls and his behaviour following the killing. She advised the jurors on how these actions could show either deliberate intent or impaired consciousness.
However, she did not specifically address particular evidence, like handwashing or leaving without calling for help. She also cautioned that signs of sobriety hours later might have limited relevance to his condition at the time of the killing. Defence counsel argued that Pierre’s behaviour supported claims of intoxication and psychological impairment and urged the jury to find him guilty of manslaughter.
A Windsor, Ont., jury found Pierre guilty of second-degree murder on Sept. 28, 2018. He was sentenced to life imprisonment without the possibility of parole for 15 years. He appealed his conviction to the Ontario Court of Appeal (R. v. Pierre, 2025 ONCA 589).
Pierre’s appeal raised three main issues. Firstly, did the trial judge err by not informing the jury that after-the-fact conduct evidence was only relevant to intoxication and not to differentiating between murder and manslaughter, instead allowing it to be used generally to assess intent? Secondly, regarding consciousness of guilt, did the judge provide insufficient guidance on the Crown’s argument that his actions indicated concealment? Finally, did the judge mistakenly invite the jury to infer that his post-killing behaviour was consistent with having intentionally killed with “callous disregard”?
The primary focus of the Court of Appeal’s decision, issued on Aug. 12, 2025, was on the adequacy of the trial judge’s instructions to the jury regarding after-the-fact conduct. This appeal addressed the reasoning rules that govern evidence of such conduct. The appeal court was particularly concerned that inadequate instructions could create unique reasoning risks (R. v. Calnen, 2019 SCC 6; R. v. Ethier, 2023 ONCA 600). Specifically, as circumstantial evidence, evidence of after-the-fact conduct can often support inferences not only related to the primary issue for which it was admitted, but also for other purposes. Judicial experience has demonstrated that some of these inferences may lead to illogical or unfair conclusions.
The Court of Appeal decision is summarized in paragraphs 60 and 61. These passages identify an error in the judge’s instructions. The appellate court found that the trial judge erred by telling jurors they could consider after-the-fact conduct evidence to determine whether Pierre had the intent to commit murder, instead of limiting its use to evaluate his capacity for rational thought, considering his intoxication and mental health. This evidence was admitted solely to challenge Pierre’s claim that he was too impaired to think rationally, not to establish mens rea in general. By instructing jurors to consider it when assessing his “state of mind” and “intent for murder” without any restriction, the judge risked misleading them and causing an unintended but serious error.
The Crown relied on several acts by Pierre that it described as acts of concealment and flight, intended to avoid criminal responsibility. These acts included: (1) his apparent efforts to wash his hands; (2) hiding his bloody overalls by wearing a suit over them; (3) leaving the apartment “in a hurry” before the police arrived; and (4) not calling the police or an ambulance.
If such actions are used to suggest awareness of guilt, they could cause a jury to prematurely conclude guilt without thoroughly examining all the evidence (R. v. Arcangioli, [1994] 1 S.C.R. 129). It is acceptable to rely on such evidence to prove guilt, but to avoid a direct inference, a jury must be instructed to consider alternative explanations.
Pierre admitted to killing Watterworth. Therefore, the evidence of evasion and flight had no probative value in determining whether Pierre committed murder or manslaughter. Yet the trial judge did not give a limiting instruction.
The defence counsel at trial did not object to the charge, and aside from the failure to instruct the jury on how to interpret after-the-fact conduct, it was a well-crafted charge. However, the error required the conviction to be set aside and a new trial to be held.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books) was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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