R. v. Charlie, 2017 BCSC 2187

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Charlie, 2017 BCSC 2187 Date: 20171005 Docket: 36893-13 Registry: Prince George Regina v. James David Junior Charlie Restrictions on Publication: pursuant to s. 486.4; 648(1); 648(2) of Criminal Code of Canada Before: The Honourable Mr. Justice Tindale Ruling re: Application for Directed Verdict Counsel for the Crown: R. Fernyhough S. Hopkins Counsel for the Accused: D. Markovitz Place and Date of Trial: Prince George, B.C.

September 11 – 15, 2017; September 18 – 22, 2017; September 25, 26 – 29, 2017; October 2 - 6, 2017; October 10 - 12, 2017 Place and Date of Judgment: Prince George, B.C. October 5, 2017 [ 1 ] THE COURT: Mr. Charlie is charged with the first degree murder of Fribjon Bjornson. This is a jury trial. At the close of the Crown's case and after electing not to call evidence, Mr.

Charlie has made a no-evidence motion with regard to first degree murder, as well as the included offences of second degree murder and manslaughter. [ 2 ] Jesse Darren Bird and Wesley Dennis Duncan were also charged with the first degree murder of Mr. Bjornson. However, on August 13, 2016, they both entered pleas of guilty to the second degree murder of Mr. Bjornson. [ 3 ] By way of background, Mr. Bjornson was reported missing to the police by his mother on January 21, 2012. Through the course of the RCMP investigation, it was determined that Mr.

Bjornson was last seen alive in the early morning hours of January 12, 2012, by a clerk at the 7-Eleven store in Vanderhoof, British Columbia. Mr. Bjornson's truck was discovered abandoned at an apartment complex on the Nak'azdli Reserve in Fort St. James, British Columbia on January 23, 2012. [ 4 ] On February 1, 2012, the police located a severed head wrapped in a comforter in the basement of No. 5 Lower Road, which is located on the shore of Stuart Lake, on the Nak'azdli Reserve in Fort St. James. The police, acting on information received, obtained a search warrant and executed that at No. 3 Lower Road.

There they found a significant amount of blood staining in the basement of that residence which was later confirmed through DNA testing to be that of Mr. Bjornson. [ 5 ] The residence at No. 3 Lower Road was owned by Robert Antoine. Mr. Charlie, Wesley Duncan and Jesse Bird were residing in and selling drugs from that residence in January 2012. [ 6 ] On June 5, 2013, the RCMP began an undercover police operation known as a Mr. Big sting. The Mr. Big operation lasted approximately five months, ending in late 2013 October. There were 76 separate scenarios executed by the police during this operation. Mr.

Bird was the primary target of the Mr. Big operation. Mr. Charlie and Mr. Duncan were identified early on in the investigation as potential suspects, and were also considered targets in that operation. [ 7 ] On October 8, 2013, Mr. Bird confessed his involvement in the murder of Mr. Bjornson to an undercover police officer playing the role of the crime boss in the Mr. Big operation. Mr. Bird also discussed the involvement of Mr. Charlie and Mr. Duncan. [ 8 ] On October 10, 2013, Mr. Bird accompanied undercover police officers to the Nak'azdli Reserve in Fort St. James. Also on October 10, 2013, Mr.

Bird and the undercover police officers travelled to the Nak'azdli River to a location where a log jam was located. There they found the remnants of a pair of jeans. Further investigation uncovered a human femur and patella bone found at the location of the log jam, which were later confirmed to be that of Mr. Bjornson. [ 9 ] On October 12, 2013, undercover police officers and Mr. Bird drove in a covert police vehicle around Prince George until they located Mr. Charlie. Mr. Bird introduced Mr. Charlie to the undercover police officers. Mr. Bird and Mr.

Charlie had a discussion in the covert police vehicle, and then the police officers had discussions with Mr. Charlie.

[10] On November 15, 2013, Mr. Charlie was arrested by the police for indignity to the human body of Mr. Bjornson. At the timeof the arrest, Mr. Charlie was serving time at the Prince George Regional Correctional Centre. He was also told that he was underinvestigation for the murder of Mr. Bjornson. [11] Mr. Charlie gave two statements to the police, one on November 15 and another on November 16, 2013, detailing hisinvolvement in the murder of Mr. Bjornson. [12] The Ontario Court of Appeal in R. v.

Bains, 2015 ONCA 677, summarizes the directed verdict standard as well as its applicationto circumstantial evidence at para. 158: The standard a judge is to apply when asked to decide a directed verdict application at the conclusion of the case for the Crown is thesame standard a justice applies in deciding whether to order committal at the conclusion of a preliminary inquiry under s. 548(1) of theCriminal Code. The issue to be determined is whether there is any evidence upon which a reasonable jury properly instructed couldreturn a verdict of guilty ... [13] Mr.

Charlie argues that there is no evidence of motive for this crime, though he acknowledges that is not determinative of guilt. Mr. Charlie argues, however, that the pathologist, Dr. Molgat, was not able to determine the cause of death. The remains ofMr. Bjornson which Dr. Molgat was able to examine only consisted of Mr. Bjornson's head. Dr. Molgat found extensive injuries to thehead of Mr. Bjornson. He did not however find any petechial haemorrhaging which would be indicative of asphyxiation. [14] The Crown's theory is that Mr. Duncan, Mr. Charlie and others assaulted Mr. Bjornson, and then Mr.

Charlie cut down a pieceof telephone wire from the rafters in the basement of the residence they were in and gave that wire to Mr. Duncan, who strangledMr. Bjornson to death. Mr. Charlie argues that Dr. Molgat agreed that noises such as gurgling and snoring sounds could come from aperson who was already deceased. Mr. Charlie argues that there is no evidence that Mr. Bjornson was alive when and if Mr. Duncanstrangled him. [15] Mr. Charlie also argues that there is evidence that he was drinking and using drugs at the time of this offence. [16] Mr.

Charlie argues that there is no evidence that he participated in the unlawful confinement of Mr. Bjornson and that there wasno planning or deliberation in the murder of Mr. Bjornson which would raise this offence to first degree murder. [17] The Crown argues that there is some evidence of planning and deliberation. On Mr. Charlie's own evidence in his statementsgiven to the police, he said that he initially took Mr. Bjornson's vehicle away from the residence, and ultimately left it in an apartmentbuilding. He said that he came back to the residence where he says Mr.

Bjornson got up from the floor and came at him, so he punchedand kicked him. He also said that he cut down the telephone wire and gave it to Mr. Duncan. Mr. Duncan testified that he beatMr. Bjornson and ultimately strangled him. He said that Mr. Charlie was not involved in this. [18] The Crown also argues that Mr. Charlie unlawfully confined Mr. Bjornson because he took Mr. Bjornson's only means ofescape, that being his vehicle, and when he returned to the residence at No. 3 Lower Road, he hit Mr. Bjornson and knocked him back tothe ground, stopping him from leaving, and then he was killed by Mr.

Duncan. [19] I must determine whether there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilton first degree murder, second degree murder or manslaughter. The jury in this case will be required to draw inferences from theevidence. These inferences must be reasonably and logically drawn from the facts established by the evidence. [20] For a charge of first degree murder, the elements of planned and deliberate are independent elements and distinct from theelement of intent. The British Columbia Court of Appeal in R. v.

Denison, 2001 BCCA 703, in discussing the elements of planned anddeliberate, said the following at paras. 14 and 15: [14] To qualify as first-degree, a murder must be both planned and deliberate. These are separate concepts and both must be proved. Because one can intend to kill and yet be impulsive rather than considered in doing so, it requires less mental capacity to intend than itdoes to plan and deliberate. ... [15] In R. v.

Smith, the Saskatchewan Court of Appeal spoke of the element of planning in this way -- for a murder to be "planned"there must be some evidence that the killing was the result of a scheme or design previously formulated or designed by the defendantand that the killing was its implementation. [21] With regard to the requirements of unlawful confinement, the British Columbia Court of Appeal in R. v. Menard, 2009 BCCA462, concisely summarized the requirements as set out in R. v. Pritchard, 2008 SCC 59, and R. v.

Kimberley (2001), (ON CA), 56 O.R. (3d) 18 (C.A.) at para. 24, which reads: Kimberley and Pritchard establish, in essence, two requirements for unlawful confinement as an underlying offence: (1) that the distinctact of confinement and the distinct act of killing must be sufficiently close in time to be part of the "same transaction or series of events"but (2) that they cannot be so closely connected that they are coextensive, that the confinement is consumed in the killing, that they areone and the same.

It is essential that both requirements be met to meet s. 231(5)(e). [22] There is evidence in this case sufficient to conclude that Mr. Bjornson was severely beaten in the basement of No. 3 LowerRoad. Mr. Charlie, in his own words, indicates that he contributed to that beating. Mr. Charlie, in his own words, stated that he gave thetelephone cord to Mr. Duncan. Mr. Duncan testified that he strangled Mr. Bjornson to death. There is evidence that Mr. Bjornson diedas either a result of strangulation or a severe beating. There is evidence from Mr.

Charlie's statement that he was a party to this beatingand the strangulation of Mr. Bjornson.

[23] There is some evidence, based on the whole of the evidence, upon which a reasonable jury, properly instructed, could return averdict of guilty with regard to second degree murder or manslaughter. There is also some evidence that Mr. Charlie preventedMr. Bjornson from leaving by striking him as he was beaten, and there is some evidence that Mr. Duncan and Mr. Charlie paused andcontemplated the strangulation of Mr. Bjornson. [24] The concern I have with the Crown's argument on this application is that Mr. Duncan, who was the principle offender, wasconvicted of second degree murder.

However that issue was addressed in R. v. Chow, 2011 BCCA 338, at para. 44, which reads: [44] The trial judge's first reaction to defence counsel's arguments concerning C.B.'s guilty plea was that it had no bearing on theappellant's guilt or innocence. Her position reflected a basic principle of criminal law: the conclusions of another trier of fact who dealtwith the same offence but a different offender are irrelevant to the determination with respect to a co-accused in a different trial. Thisprinciple was clearly summarized by the trial judge in R. v. Amador, [2001] O.J.

No. 4672, at paras. 47-48: I accept the Crown's submission that the final disposition of an offence as between the Crown and the principle offender is notdeterminative of the liability of any of the parties to the offence. This proposition is supported by the decision of the Supreme Court ofCanada in Remillard v. R., (SCC), 62 S.C.R. 21 at pp. 23-24, 32-35, where the court held that an abettor under s. 21(1)of the Criminal Code, may properly be convicted of murder even though the principal has only been convicted of manslaughter and in R. v.

Hick (1991), (SCC), 7 C.R. (4th) 297 (S.C.C.), where the Court held that even the acquittal of a principal isconclusive only as between the Crown and the principal in the proceedings taken against him, and determines nothing in respect of theliability of an aider or abettor. Finally, in R. v. Zanini, (SCC), [1968] 2 C.C.C. 1 (S.C.C.) the Court held that thewithdrawal of the charge by the Crown against the principal does not preclude the Crown proceeding against a secondary party on thesame charge. (See also: Cardinal v.

The Queen (1984), (SCC), 18 C.C.C. (3d) 96 (S.C.C.; aff’g (1982), 1982 ABCA327 , 3 C.C.C. (3d) 376 (Alta. C.A.). In view of the principles developed by the Supreme Court in the authorities to which reference has been made, I am not persuaded thatthe Crown's acceptance of a plea of guilty by the principal to a lesser charge precludes the Crown from proceeding to secure a committalwith respect to the parties on the original charges.

To put the matter somewhat differently, I am not persuaded that the action of theCrown in accepting a plea of guilty by the principal to a lesser charge places any jurisdictional limitation on the preliminary inquiryjudge to commit the parties for trial only to the extent of the lesser charge. [25] There is some evidence, based on the whole of the evidence, that Mr. Charlie was a party to a planned and deliberate murder. The inference can be drawn from the evidence of Loretta Prince that she heard Mr. Charlie and Mr. Duncan beating someone. That, inconjunction with Mr.

Charlie's evidence, could lead to the reasonable inference that the beating of Mr. Bjornson was interrupted and atwhich time Mr. Duncan and Mr. Charlie planned and deliberated on killing Mr. Bjornson, and that this was not an impulsive act. [26] There is also some evidence that the distinct act of confinement and the killing of Mr.

Bjornson were sufficiently close in timeto be part of the same transaction or series of events, but they are not so closely connected that they are coextensive, that the confinementis consumed in the killing. [27] In my view, there is some evidence that a reasonable jury, properly instructed, could return a verdict of guilty with regard to firstdegree murder. [28] Mr. Charlie's application is dismissed. “The Honourable Mr. Justice Tindale”