R. v. Fraser, 2013 BCSC 2562

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Fraser, 2013 BCSC 2562 Date: 20131204 Docket: 91233-3 Registry: Kamloops Regina v. Roy Fredrick Fraser Before: The Honourable Mr. Justice Josephson Oral Ruling re no evidence application Counsel for Crown: J.M.K. GoldT.A. LivingstonCounsel for Defence: J.D.A. WattA.P. WattPlace and Date of Trial/Hearing: Kamloops, B.C. December 3 and 4, 2013Place and Date of Judgment: Kamloops, B.C. December 4, 2013 [1] THE COURT: While I would have preferred more time to flush out my Reasons further, the result would not change.

Thereality is that we have a waiting jury after the close of the Crown's case with several more defence applications requiring time to beheard, as counsel have just averred to, and a mistrial would be in no one's best interests. [2] The accused applies for a directed verdict of acquittal on the count alleging first degree murder of Mr. Marks. There is no issueon the law.

The test to be applied by me is that which is applied at the end of a preliminary inquiry: Is there evidence upon which aproperly instructed jury acting reasonably could convict? [3] That requires a limited weighing of the evidence by me in order to answer that question, particularly where, as here, there is nodirect evidence that the accused killed the victims, let alone direct evidence on the elements of planning and deliberation. R. v. Arcuri,2001 SCC 54 , [2001] S.C.J. No. 52. [4] The Crown's theory is that Mr. Yaretz was shot multiple times by Mr. Fraser at the entrance to Mr. Fraser's remote ruralresidence.

The Crown's theory is that Mr. Marks was then killed at his vehicle for no reason other than to eliminate a witness to thekilling of Mr. Yaretz. [5] The defence says that the theory is mere speculation.

The Crown replies that it is one reasonable or rational inference availableto the jury when all of the evidence is considered together. [6] The defence application is hinged on the submission that there is no evidence upon which a properly instructed jury, actingreasonably, could find that the killings took place in the order suggested by the Crown's theory. [7] The following lists some of the elements relevant to the issue. There is evidence as follows: 1. Mr. Yaretz, Jr. at one time was moving into the residence of Mr. Fraser and did reside there sporadically. 2.

He moved some of his goods to the Fraser residence to facilitate that move. 3. Mr. Yaretz borrowed Mr. Fraser's sole source of transportation and disposed of it, likely unlawfully, rather than return it to Mr.Fraser. 4. That that and other matters created animus on the part of Mr. Fraser towards Mr. Yaretz. 5. Shortly before the date of the alleged offence, Mr. Yaretz was moving in with Mr. Marks in Mr. Marks' newly acquired rentalapartment on Schreiner Street. 6. On the day the two victims went missing, they were travelling together to retrieve Mr. Yaretz's goods that remained at theresidence of Mr. Fraser. 7.

While there is evidence of animus by Mr. Fraser towards Mr. Yaretz, there is no evidence of any animus by him towards Mr.

Marks and little evidence of any relationship between the two. 8. The blood of Mr. Yaretz was found at the entry area to the Fraser residence. 9. The blood of Mr. Marks was found in his van, mostly in the driver's portion of that vehicle. 10. The bodies of the two victims were found buried together in a hole near the residence of Mr. Fraser and evidence that that hole had been previously dug with a backhoe by a neighbour for a different purpose, of course. 11. The nature of the gunshot wounds to Mr. Yaretz. 12. The nature of the wounds to Mr. Marks, including eight stab wounds to the left side of Mr.

Marks, with one wound to the left upper leg being inflicted while the leg likely was flexed, according to Dr. Stephen, consistent with the Crown theory that Mr. Marks was in the driver's seat of his van when the wounds were inflicted and where his blood was found. [ 8 ] I am aware of the strict requirements surrounding the ingredients of planning and deliberation the Crown must prove. With respect, there is evidence upon which the jury, properly instructed and acting reasonably, could conclude that Mr. Yaretz was killed first and Mr. Marks was killed second.

The reverse order of killing would be more inconsistent on the whole of the evidence. [ 9 ] There is also evidence upon which the jury could reasonably conclude that the motive of Mr. Fraser in killing Mr. Marks was to eliminate a suspect a witness to the killing of Mr. Yaretz. If that is so, it is reasonably open to the jury to conclude that that decision required at least a brief amount of planning and deliberation while being aware of the consequences of so acting or not so acting. [ 10 ] The application is dismissed. “Josephson, J.”