R. v. Potter, 2019 NLSC 50

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Potter , 2019 NLSC 50 Date : February 26, 2019 Docket : 201801G2025 Her Majesty The Queen v. Allan Winfield Potter Restriction on Publication: Pursuant to subsection 648(1) (and subsection 645(5)) of the Criminal Code , no information regarding any portion of the trial at which the jury was not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict. This publication ban has expired on March 8, 2019.

AND: Restriction on Publication: It is ordered that no person shall publish in any document or broadcast or transmit in any way any information that could identify D.L. as the co-accused in this proceeding until the jury in D.L.’s own trial is empanelled or his matter is otherwise concluded, although said order shall not prevent the media reporting anything that occurs at the trial of D.L. unless so prohibited by an order of a court of competent jurisdiction.

AND: Restriction on Publication: It is ordered pursuant to sections 486.31 and 486.5 of the Criminal Code of Canada , no person shall publish in any document or broadcast or transmit in any way any information that could identify the undercover operators or cover persons testifying as a witness in the above noted proceeding. Corrected judgment: The text of the original judgment was corrected on March 15, 2019 and a description of the correction is appended. Before: Justice Garrett A. Handrigan

Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: February 25, 2019

Summary: Allan Potter is charged with first-degree murder in the death of Dale Porter. It is alleged that Allan Potter stabbed Dale Porter 17 timesand cut him with a sharp instrument 4 more times. Mr. Porter died shortly after Mr. Potter stabbed him because of the blood he lost froma wound that severed the jugular vein on the left side of his neck. Mr. Potter applied for a verdict directing that the jury not considerfirst-degree murder in deciding the charge against him. Mr. Potter claims that the Crown failed to prove that he acted in a planned anddeliberate manner when he killed Mr.

Porter so that his actions could not support a charge of first-degree murder. The Court dismissed Mr. Potter’s motion. It is reasonable to infer that Allan Potter and D.L. lured Mr. Porter back to his home in NorthRiver so they would have unrestricted and unobserved access to him to avenge the insults that Mr. Porter directed at D.L., Nadine Curranand the Vikings Motorcycle Club when they were at the Coach House Lounge. That planning is consistent with the planning anddeliberation that are required for first-degree murder. Appearances: Sheldon B. J. Steeves & Erin E.

Matthews Appearing on behalf of Her Majesty The Queen Randolph J. Piercey, Q.C. & Jonathan E. Noonan Appearing on behalf of Allan Winfield Potter Authorities Cited: CASES CONSIDERED: R. v. Charemski, (SCC), [1998] 1 S.C.R. 679, S.C.J. No. 23; R. v. Ayotte, [1998] O. J. No.4700; R. v. Arcuri, 2001 SCC 54 , [2001] 2 SCR 828 (SCC). STATUTES CONSIDERED: Criminal Code, RSC 1985, c. C-46. REASONS FOR JUDGMENT Handrigan, J.: INTRODUCTION [1] The Crown filed a revised bill of indictment against Allan Winfield Potter on January 30, 2019. In the revised document, theCrown alleged that Mr.

Potter, “on or about the 29th day of June, 2014, at or near North River, in the Province of Newfoundland andLabrador, did unlawfully cause the death of Dale Porter, thereby committing first degree murder contrary to section 235(1) of theCriminal Code, RSC 1985, c. C-46. The Crown closed its case against Mr. Potter on February 22, 2019 and Mr. Potter applied onFebruary 25, 2019 for me to direct a verdict of acquittal on the first-degree murder charge. [2] Mr. Potter claims that the Crown failed to prove that Mr.

Potter’s actions were planned and deliberate when he killed Mr.Porter so that the jury could not find him guilty of first-degree murder. Mr. Potter believes that the jury should not have the option ofconsidering first-degree murder. I heard Mr. Potter’s application and reserved my ruling until now. The Issue

[3] Can the jury find Allan Potter guilty of first-degree murder on the evidence the Crown has adduced against him? The Law Statute [4] Section 222 (1) of the Criminal Code says that “[a] person commits homicide when, directly or indirectly, by any means, hecauses the death of a human being”. Homicide is either “culpable or not culpable” (section 222(2)). “Not culpable” homicide is not acriminal offence (section 222(3)). However, “culpable” homicide is an offence and it is either “…murder or manslaughter or infanticide”(section 222(4).

Murder is first degree, when it is “planned and deliberate” (section 231(2)) and all “murder that is not first degree…issecond degree murder” (section 231(7)). Case Law [5] In R. v. Charemski, (SCC), [1998] 1 S.C.R. 679, S.C.J. No. 23, Bastarache, J. stated the law that applies tomotions for directed verdicts: The leading case on the issue of directed verdicts is United States of America v.

Shephard, (SCC), [1977] 2 S.C.R. 1067,which sets out the test to determine whether a case should go to a jury in these terms, at p. 1080: ‘whether or not there is any evidenceupon which a reasonable jury properly instructed could return a verdict of guilty’. …… For there to be ‘evidence upon which a reasonable jury properly instructed could return a verdict of guilty’ in accordance with theShephard test (at p. 1080), the Crown must adduce some evidence of culpability for every essential definitional element of the crime forwhich the Crown has the evidential burden.

See Sopinka et al., The Law of Evidence in Canada (1992), at p. 136. Thus, in a murderprosecution, the Crown must adduce evidence on the issues of identity, causation, the death of the victim and the requisite mental state. If the Crown fails to adduce any evidence to discharge the evidential burden on any of these issues, the trial judge should direct a verdictof acquittal. (Charemski, paragraphs 2-3). [6] This is the law I will apply to analyze the issue I stated earlier. I turn now to my analysis, starting with the background to it. Analysis Background [7] Dr.

Nebojsa Denic of the Office of the Chief Medical Examiner autopsied Dale Hayward Porter at the Health SciencesCentre in St. John’s, NL on Wednesday, July 2, 2014. Dr. Denic noted multiple stab and cut wounds on Mr. Porter’s neck, chest, backand upper extremities as well as blunt force injuries to the right side of his neck and his right thigh, and to his left knee. He also notedabrasions to Mr. Porter’s left elbow and left collarbone areas. [8] Dr. Denic stated the cause of Mr.

Porter’s death as “[m]ultiple stab wounds of the neck, chest, back and upper extremities”and described his “manner of death” as “homicide”. In all, Dr. Denic counted 17 stab and 4 cut wounds on Mr. Porter’s upper body. Dr.Denic believes that a stab wound that cut Mr. Porter’s left jugular vein likely caused his death. (See Dr. Denic’s autopsy report, enteredas Exhibit ND #3). [9] The Crown charged Mr. Potter with first-degree murder in causing Mr. Porter’s death. Mr. Potter elected trial by judge andjury and pleaded not guilty to the charge. I started Mr.

Potter’s trial on February 4, 2019 and the Crown closed its case on February 22,2019. Mr. Potter brought this motion on February 25, 2019 for me to direct a verdict of not guilty of first-degree murder in Mr. Porter’sdeath. In answering Mr. Potter’s motion, I must decide whether the Crown has adduced “any evidence upon which a reasonable juryproperly instructed could return a verdict of guilty”. [10] More particularly, I have to decide if the Crown has adduced “some evidence of culpability for every essential definitionalelement of the crime for which the Crown has the evidential burden”.

Those elements include, in this case, that Allan Potter killed DalePorter by stabbing him to death and that Allan Potter had the mental state required for first-degree murder. In particular, I must find someevidence that the murder was “planned and deliberate”. [11] In R. v. Ayotte, [1998] O. J. No. 4700, Watt, J. stated the meaning of “planned and deliberate” this way: For there to be a planned and deliberate murder, there must be evidence that the murder was a result of a scheme or design that theaccused had previously formulated or designed. The murder must be the implementation of that scheme or design.

A murder committedon sudden impulse, without prior consideration, however intentional, is not a planned and deliberate murder. [12] Of course, I do not know how Mr. Potter will address the allegation that he killed Mr. Porter if he testifies in this matter.However, regardless of how Mr. Potter responds, he clearly asserts that there is no evidence that he planned to kill Mr. Porter. I disagree.There is evidence both that Mr. Potter killed Mr. Porter and that he planned and deliberated over how he would do it. Now, to thatevidence. Discussion [13] Dr.

Denic said that Dale Porter died of multiple stab wounds to his upper body, the most serious being a stab wound that

severed the jugular vein on the left side of Mr. Porter’s neck. Dr. Denic noted that Mr. Porter lost most of his blood while he lay at the bottom of his driveway where Mr. Potter stabbed him, so that there was very little blood in Mr. Porter’s lungs and stomach when Dr. Denic did his autopsy. Dr. Denic deduced from this observation that Mr. Porter bled profusely from the wound to his jugular vein. He measured Mr. Porter’s chance of surviving the wounds that Mr. Potter inflicted on him, especially the one to his left neck, “in minutes”. [ 14 ] Dr. Al-Obaidi, who treated Mr.

Porter when he arrived at the Carbonear General Hospital, said he and the staff of the hospital administered 6 cycles of resuscitation over a 45 minute period immediately after Mr. Porter arrived at the hospital. Because they had no results from their attempts to revive Mr. Porter, the medical staff at the hospital declared Mr. Porter dead within an hour of his presentation there. Dr. Al-Obaidi noted that they saw only a “flat line on the monitor”. Drs. Denic and Al-Obaidi provide persuasive evidence that Mr.

Porter died from the blood he lost from the stab wounds to his torso, especially from the cut on the left side of his neck. [ 15 ] There is evidence that Mr. Potter deliberately inflicted the wounds on Mr. Porter that caused his death. Amongst other things, Mr. Potter told Cpl. J.R. that he did it. Cpl. R. introduced a recorded conversation that he and Mr. Potter had while standing in the McDonald’s parking lot just after Mr. Potter and Cpl.

R., and two other RCMP officers disposed of a fictitious body. [ 16 ] I note the following excerpt from their conversation, as contained in Tab 5 of Consent Exhibit #5: AL: …okay. No, this was ah, I was protecting with this guy, my brother. He’s half, okay, he’s got a mental problem… UC5 (Cpl. R.): Okay. AL: …and the guy was telling him, this don’t mean shit to me and I’m gonna fuck your lady and I, I was there. I walked out. Really. Mmm, mmm, mmm, mmm, mmm, mmm, mmm, mmm! Ding, ding, ding, ding! Stood and he grabbed it. Ding, ding! So then, I walked away and he went, (grunt))!

I just went right around, about that deep each time. He just took it all, and then right out, right around. And then, kept walking closed it. UC5 (Cpl. R.): Yeah. AL: Closed it. Gave it to him and said, get rid of that. Went back, got on my bike, drove the fuck out of it. Everything got burned. [ 17 ] There is also evidence that Mr. Potter planned to kill Mr. Porter. Let me explain. [ 18 ] Dale Porter started partying with friends at his home in North River, NL in the early evening hours of June 28, 2014.

Several people joined him there, including Justin Newell, William John (“Billy”) Newell, and Johnathan Murphy. Reports from these witnesses vary but it appears others were also drinking in Mr. Porter’s home and shed, including a Shannon Delaney and a Mikaela Bradbury. Johnathan Murphy said he arrived at Mr. Porter’s in late afternoon on June 28, 2014 and stayed for two or three hours before leaving with Mr. Porter and some friends for the Coach House Lounge in Bay Roberts. [ 19 ] Hayward Butler, Jr. says he got a call from Mr.

Porter and his friends around 1:00 am on June 29, 2014 to take them to the Coach House Lounge. Mr. Butler, Jr. was driving a cab for Birch Hills Taxi that night. He says he picked Mr. Porter and his friends up around 1:05 am and dropped them off at the Lounge about 25 minutes later. Mr. Butler, Jr. says he did not go directly from Mr. Porter’s house to the Lounge, because several passengers, including Mr. Porter, asked him to drop them off en route or asked him to stop briefly at other locations before they got to the Lounge. [ 20 ] Mr. Butler, Jr. said, for example, that he let Mr.

Porter out at a banking machine to withdraw some cash and then he took Mr. Porter to a service station where Mr. Porter bought a case of beer. Mr. Porter asked Mr. Butler, Jr. if he could leave the beer on his taxi so that it would be available to Mr. Porter to continue the party at his home after the Coach House Lounge closed. Evidently, Mr. Porter thought it would be too late to buy beer after the Lounge closed. It also appears that Mr. Porter planned to ride home to North River on Mr. Butler, Jr.’s taxi. [ 21 ] Mr. Butler, Jr. says he agreed to store Mr.

Porter’s beer for him and he also understood that he would drive Mr. Porter and his friends back to North River after the Club closed. Ultimately, Mr. Butler, Jr. did not convey Mr. Porter back to his home when the Club closed, as both of them expected, although he did transport some of Mr. Porter’s friends to Mr. Porter’s home in North River. They arrived shortly after Mr. Potter had stabbed Mr. Porter and just after Mr. Potter and Mr. L. walked away from the scene and got on Mr. Butler, Sr.’s taxi to be taken to the Vikings Clubhouse in Cupid’s. [ 22 ] Mr.

Porter met up with Allan Potter, D.L. and Nadine Curran when he got to the Coach House Lounge. Mr. Potter and his two companions had gone to the club three or four hours earlier, sometime around 9:00 or 9:30 pm on June 28, 2014. They called on another Birch Hills Taxi to take them there, this one driven by Hayward Butler, Sr., who is Mr. Butler, Jr.’s father. Mr. Butler, Sr. estimated that it took him about 15 minutes to get from Curran’s Garage in Cupid’s where he picked his passengers up, to the Coach House Lounge in Bay Roberts. [ 23 ] It appears that Dale Porter met up with Mr.

Potter and his associates at the Coach House Lounge and while they were with Mr. Porter, Mr. Potter and Mr. L. decided to join Mr. Porter at his home in North River after the Coach House Lounge closed. Hayward Butler, Sr. said he had a call from Nadine Curran between 3:00 and 3:15 am on June 29, 2014. She asked him to pick her and her friends

up at the Coach House Lounge and take them to North River. [24] Mr. Butler, Sr. said it took him 12 to 15 minutes to get from the Coach House Lounge to a “small house about three parts of theway up North River”. He says he dropped the three male passengers off there and Nadine Curran stayed with him because she wanted togo to Makinsons. Mr. Butler, Sr. said he did not know his male passengers; nor did he know that it was Dale Porter’s house where hedropped them off. [25] Dale Porter, D.L. and Allan Potter were the three male passengers that Mr. Butler, Sr. left at the end of Dale Porter’s drivewayin North River.

Dale Porter and D.L. continued to argue back and forth when they got to Mr. Porter’s house, just as they had done earlierthat evening at the Coach House Lounge. Mr. Potter said he abided their bickering until “I had enough” and then he stepped in betweenthem and stabbed Mr. Porter. At that, Mr. D.L. called Nadine Curran on her cellphone to ask Hayward Butler, Sr. to come back and gethim and Mr. Potter. [26] Mr. Butler, Sr. picked up Mr. Potter and Mr. D.L. walking along the road, at some distance from Mr. Porter’s house and drovethem to the Vikings’ Clubhouse in Cupid’s. Mr.

Butler, Sr. dropped his passengers and left the area hurriedly, without waiting to be paid.In effect, he was reacting to a call from his son, Mr. Butler, Jr. while he was traveling to Cupid’s with Mr. Potter, Mr. D.L. and Ms.Curran. Mr. Butler, Jr. advised his father in that call to be careful of whom he picked up that morning because someone had just stabbedDale Porter in North River. [27] B.L. testified that he saw Mr. Potter at D.L.’s house on Cabot Street sometime in July 2014. He said that Mr. Potter had been atMr. D.L.’s house for a couple of months by then and that he saw Mr.

Potter regularly because he was selling drugs for him. To that end,Mr. B.L. says he went to Mr. D.L’s house occasionally to drop off money he had for Mr. Potter from his drug sales. [28] Mr. B.L. says Mr. Potter told him on one of his visits “what happened out around the bay”: According to Mr. B.L., Mr. Pottersaid that a man was making fun of the “colours” and D.L. told him they had to do something about it. Mr. Potter told Mr. B.L. he andMr. D.L. “buddied up” back at Mr. Porter’s home where Mr. Potter stabbed Mr. Porter while Mr. D.L. kicked and punched him. Ofcourse, as I noted above, Mr. Potter told Cpl.

R. that he stabbed Mr. Porter, just as he told Mr. B.L. he did. [29] I acknowledge the concerns Mr. Potter’s counsel alluded to with Mr. B.L.’s testimony when he addressed me on the motion;and I will instruct the jury about how they are to assess Mr. B.L.’s evidence. However, it does not lie with me now to assess Mr. B.L’scredibility, as the jury will do when they weigh his evidence during their deliberations. [30] Quite simply, in dealing with Mr.

Potter’s motion for a directed verdict, my role is the same as that of a preliminary inquiryjudge who decides whether to commit an accused for trial; of which the Supreme Court of Canada said this in R. v. Arcuri, 2001 SCC 54, [2001] 2 SCR 828 (SCC): In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assesscredibility. Rather, the judge’s task is to determine whether, if the Crown’s evidence is believed, it would be reasonable for a properlyinstructed jury to infer guilt.

Thus, this task of “limited weighing” never requires consideration of the inherent reliability of the evidenceitself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantialevidence (Arcuri, paragraph 21). [31] Dr. Denic reported from his autopsy of Mr. Porter that he observed contusions on the right side of Mr. Porter’s neck, on thefrontal area of his right thigh, next to Mr. Porter’s left collarbone, on his left elbow, on the inner side of his left knee and on the innerside of Mr. Porter’s left upper arm. Dr.

Denic described these contusions, as blunt force injuries that are consistent with trauma fromkicking and punching. [32] Mr. Potter and D.L. walked away from Mr. Porter immediately after Mr. Potter stabbed him. D.L. told Nadine Curran to getMr. Butler, Sr. to come back for them, and she did. The three of them took the Birch Hills taxi to the Vikings’ clubhouse in Cupid’s,from which Mr. Potter left on his motorcycle. Mr. Potter burned his clothes after this and he told D.L. to get rid of the knife which heused to stab Mr. Porter. [33] Mr. Potter explained his motivation for stabbing Mr.

Porter this way: AL: So, he was insulting one (1) of our brother’s sisters, and one (1) of my brother’s girlfriend, the same girl and spitting. UC5 (Cpl. R.): Yeah. AL: …and this and that, and I had enough. [34] Elsewhere, Mr. Potter rationalized his behavior in similar terms: AL: Yeah. And, and then it was, he [D.L.] was going to get guzzled for that. He was, that guy would have fucking, fucked him up, andhe said, and I wasn’t wearing my cut. UC5 (Cpl. R.): You weren’t?

AL: No. But he was. My brother was, but I came and then buddy said, I don’t give a fuck about that crap or shit. He says, and your old lady, I’m going to be fucking her by the end of the night. And my buddy’s like this, and he’s got a mental deficiency, but he’s still in the club. [ 35 ] From the preceding discussion I extract the following points: • Mr.

Porter changed his plans of how he was getting home to North River from the Coach House Lounge in Bay Roberts; • Allan Potter and D.L. (possibly with Nadine Curran’s complicity) devised a plan to attend Dale Porter’s house in North River after the Coach House Lounge in Bay Roberts shut down; • Mr. Potter and D.L. reacted angrily to the contempt that Mr. Porter showed towards the Vikings Motorcycle Club and Nadine Curran (a sister to a Club member, Tom Curran and D.L.’s girlfriend); • Mr. Potter and D.L. formulated a plan of when, how and where they would deal with Mr. Porter; and • Mr.

Potter attempted to hide his

part in Mr. Porter’s death, based on the direction he gave to Mr. D.L. to get rid of the knife he stabbed Mr. Porter with and then burning his clothes to rid himself of Mr. Porter’s DNA. [ 36 ] It is reasonable to infer from the preceding that Mr. Potter and Mr. D.L. deliberately isolated Mr. Porter from his friends at the Coach House Lounge and accompanied him back to Mr. Porter’s home in North River to attack Mr. Porter for the conflict that he had with D.L. [ 37 ] Isolating Mr. Porter from his friends afforded Mr. Potter and Mr. D.L. the unimpeded and unnoticed access to Mr.

Porter that they wanted when they set about to avenge the insults that Mr. Porter had directed at the Vikings Motorcycle Club, D.L. and Nadine Curran earlier that evening at the Coach House Lounge. That planning is consistent with the planning and deliberation that are required for first-degree murder.

Summary and Disposition [ 38 ] Allan Potter is charged with first-degree murder in the death of Dale Porter. It is alleged that Allan Potter stabbed Dale Porter 17 times and cut him with a sharp instrument 4 more times. Mr. Porter died shortly after Mr. Potter stabbed him because of the blood he lost from a wound that severed the jugular vein on the left side of his neck. Mr. Potter applied for a verdict directing that the jury not consider first-degree murder in deciding the charge against him. Mr. Potter claims that the Crown failed to prove that he acted in a planned and deliberate manner when he killed Mr.

Porter so that his actions could not support a charge of first-degree murder. [ 39 ] The Court dismissed Mr. Potter’s motion. It is reasonable to infer that Allan Potter and D.L. lured Mr. Porter back to his home in North River so they would have unrestricted and unobserved access to him to avenge the insults that Mr. Porter directed at D.L., Nadine Curran and the Vikings Motorcycle Club when they were at the Coach House Lounge. That planning is consistent with the planning and deliberation that are required for first-degree murder. _____________________________ Garrett A. Handrigan Justice APPENDIX

1. Restriction of Publication pursuant to sections 486.31 and 486.5 of the Criminal Code was added to protect the identities of the undercover operators or cover persons testifying as witnesses in the proceeding. 2. The names of the undercover operators or cover persons testifying have been redacted.