Lack of clarity in jury instruction leads to new trial in Yukon murder case

Law360 Canada (October 3, 2025, 12:31 PM EDT) --

John L. Hill

Adam Cormack’s body was discovered near a gravel pit sometimes used as an informal shooting range on June 28, 2017. He had a single gunshot wound to the head. Edward James Penner was charged with first-degree murder.

The Crown believed it had a strong case. Two civilian witnesses, Jonathan Olsen and Cyril Golar, placed Penner at the scene but did not implicate him in the shooting. However, another witness, Clarence Haryett, testified that he drove Penner, Cormack and another man outside Whitehorse. After Cormack and Penner walked out of sight, Haryett heard a gunshot. Penner returned alone with a rifle and admitted to shooting Cormack.

Forensic evidence indicated Cormack was shot from close range, with the bullet’s downward trajectory suggesting the shooter was nearby. A green-tipped bullet and cartridge found near the body matched an AR-15-style rifle. No weapon was recovered.

Facebook evidence documented posts and photos showing Penner with an AR-15 and green-tipped bullets days before the killing. In a June 25 message, he referred to “human huntin’.” The trial judge admitted some of this evidence, despite its prejudicial effect, as probative of identity, motive, means and planning. Additionally, there was physical evidence. Pepsi cans near Cormack’s body carried Penner’s DNA and fingerprints.

Several witnesses testified that Penner confessed to shooting Cormack or made statements implying responsibility. Juanita Johnson recalled Penner describing Cormack as “lying face down naked with a bullet in his head,” although this evidence was not entirely consistent with the body’s condition.

Alain Bernier said Penner told him Cormack had stolen and sold a gun and would face consequences. Bernier saw Penner with an AR-15 days before the murder, and later heard him admit to the shooting, sometimes describing multiple shots and kicking Cormack after he fell. These accounts were partly inconsistent with forensic evidence (only one shot was confirmed).

Penner was convicted of first-degree murder but appealed his conviction to the Yukon Court of Appeal (R. v. Penner, 2025 YKCA 14).

Was there enough evidence to prove planning and deliberation, which are distinct yet essential elements in establishing first-degree murder, and each must be proven beyond a reasonable doubt (R. v. Aalders, [1993] 2 S.C.R. 482)?

The defence theory on appeal was that the judge did not draw the jurors’ attention to the evidence relevant to assessing planning and deliberation, so that they understood how to apply the legal concepts to the facts of the case, as they found them. He did so for the other essential elements of the charged offence, but not planning and deliberation. There was imperfect instruction allowing a jury to distinguish between first- and second-degree murder.

The jury needed clear guidance on this issue due to the significant disparity in parole eligibility (25 years versus as low as 10 years). Case law emphasizes that the judge must highlight evidence to help jurors differentiate between the two offences and guard against assumptions that proof of intent automatically indicates planning and deliberation. The trial judge did not provide this assistance. Although he mentioned planning and deliberation in general, he failed to connect the legal standard to the specific evidence, risking jurors wrongly equating intent with planning.

Much of the Crown’s evidence regarding planning and deliberation was challenged and open to different interpretations. For instance, the Facebook “human huntin’” message could be viewed as a joke. Witness Haryett stated the trip was merely to smoke a joint. Bernier testified that the group went to shoot guns, which aligns with casual use of the site. Bernier’s accounts of the shooting varied, including one suggesting it was a spontaneous act while drinking. Johnson observed the appellant and Cormack joking and laughing with a gun days before the killing, which undermines the idea of malicious intent.

The trial judge should have emphasized that these alternative readings could reasonably create doubt about planning and deliberation. Even if the jury ultimately rejected them, it was essential to explicitly remind them of their existence. As in R. v. Frisbee (1989), 48 C.C.C. (3d) 386, the judge’s failure to highlight evidence that could negate planning and deliberation undermined the fairness of the trial and justified appellate intervention.

Due to the questions posed by the jury, it became apparent that they were having difficulty determining the meanings of planning and deliberation. The trial judge’s responses to jury questions worsened the prejudice already caused by his failure to relate the evidence to planning and deliberation in his charge. This ruled out the use of the curative proviso.

Two main problems illustrated the difficulty: (1) The judge’s example equated an “immediate” punch with a deliberated act, suggesting an impulsive action could still be deliberate, and (2) the difficulty the jury was having in applying planning and deliberation to the evidence was worsened when, instead of tying the concepts back to the case, the judge used hypotheticals unrelated to the evidence.

The judge should have based his explanations on concrete evidence (e.g., the Facebook posts, testimony, and circumstances of the shooting) to help the jury evaluate competing inferences about planning and deliberation. The insufficient instructions, along with the jury’s clear confusion, meant the jury lacked the proper tools to fairly determine whether the Crown proved planning and deliberation beyond a reasonable doubt.

Because the errors directly affected the core issue of distinguishing first- and second-degree murder, the court could not dismiss them as harmless or inevitable; a significant wrong was committed. A new trial was ordered.

John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM 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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