R. v. N.M., 2011 MBPC 16

CITATION: R. v. N.M., 2011 MBPC 16 Date: 2011 02 25 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Raegan L. Rankin & ) Jocelyne R. Ritchot, ) for the Crown ) and ) ) ) ) N. M. ) Sarah A. Inness, a young person ) for the Accused ) ) ) Reasons for Decision delivered: ) February 25, 2011 ) These reasons are subject to a mandatory publication limitation pursuant to the Youth Criminal Justice Act, section 110(1). STEWART, P.J. [1] This is a case which has proceeded to trial, by way of an agreed statement of facts. On May 23, 2009 at 1 p.m. the accusedN. M. and his cousin, R.

G. noticed a male, Joseph Victor MacLeod, walking down the nearby lane adjacent to Ross Street where theboys were standing. Both boys went towards the victim and the accused N.M. confronted the lone male for wearing a white bandanna. The accused N.M. asked the victim what he “reps”. This can be inferred as a gang challenge by the accused who had known gangaffiliation.

The victim denied any involvement with a rival gang, took his bandanna off and started to walk away, but the accused standing in front of the victim held him back with both hands blocking his exit, while his cousin, standing behind the victim, held on tothe back of his shirt with one hand. The victim was struck a total of five times in the body by the accused and his cousin. The co-accused cousin then stabbed the victim twice with a large 25 to 28 ccm. blade knife doing extensive internal damage resulting in death. Immediately thereafter both boys fled.

It is an agreed fact that there is not any evidence that the accused was aware that his cousin wascarrying a knife, brandished it and used it during the assault. The victim died of these stab wounds. [2] The accused N.M. has pled not guilty to manslaughter. The issue to be determined by this Court is whether or not the crownhas met the onus of establishing the elements of the offense of unlawful act manslaughter as set out in R. v. Creighton (SCC), [1993] 3 SCR 3.

In the alternative, has the crown established that the accused was a party to the offense of unlawful actmanslaughter under section 21(2) of the Criminal Code. [3] As to the first question, specifically the crown must prove each of the following essential elements beyond a reasonabledoubt;

1. That the accused committed an unlawful act. 2. That the accused unlawful act was dangerous. 3. That the accused unlawful act cost the death of the victim. [4] In the case before me, the unlawful act alleged was that of the assault by the accused on the victim Joseph MacLeod. Thisassault was punches to the body of the victim, which depending upon the severity and location of said punches, could be viewed asdangerous. (R. v. DeSousa, (SCC), [1992] 2 S.C.R. 944) [5] However, from the medical evidence the cause of death was from the two stab wounds received by the victim from the act ofthe co-accused cousin.

On the basis of the facts alone I cannot find that the accused was a principal party to the unlawful actmanslaughter of the victim Joseph MacLeod. [6] That does not end the case at this stage.

The accused can be found guilty of manslaughter as a party to the offence pursuantto section 21(2) of the Criminal Code. [7] Section 21(2) of the Criminal Code provides that: Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one ofthem, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission ofthe offence would be a probable consequence of carrying out the common purpose is a party to that offence. [8] In some instances, there may be no evidence that shows or tends to show the precise role played by each of two personsjointly charged.

An inference of concerted or pre-concerted action may be drawn from the circumstances. Where there is evidence ofconcerted action, a trier or fact may adjudge all guilty either as principals or as aiders or abettors, even though the extent of individualparticipation in the fatal violence is unclear. See, R. v. Wood (1989), (ON CA), 51 C.C.C. (3d) 201, 220 (Ont. C.A.)per Griffiths J.A. See also, R. v. Sparrow (1979), (ON CA), 51 C.C.C. (2d) 443, 457-8 (Ont. C.A.) per Martin J.A.(R. v. Woodcock, [2008] O.J.

No. 5899 (C.J.)). [9] The existence of an “intention in common” can be inferred from the actions of the accused and the other parties. As theSupreme Court of Canada observed in R. v. Suchan and Jackson (1952), (SCC), 104 C.C.C. 193: Common intention is seldom expressed and rarely reduced to writing and must, therefore, in general, be found from conduct of theparties. That which takes place at the scene of the offence is material, but also relevant is the conduct of the parties leading up to andsubsequent thereto. [10] An “intention in common” does not require that the parties desire the same result.

The Supreme Court decision in R. v. Hibbert(1995), (SCC), 99 C.C.C. (3d) 193 holds that an “intention in common” under s. 21(2) does not require that the parties'“motives or subjective views as to the desirability of the commission of the 'unlawful purpose' match up”. “Intention in common”,according to the Court, “means no more than that the two persons must have in mind the same unlawful purpose” – they need not both‘desire’ the same result. [11] On the facts before me, it is clear that the accused initiated contact with and the initial confrontation with the victim. Both heand his cousin, surrounded Mr.

MacLeod, held on to his clothing, and blocked his exit all the time swearing and yelling at him. Immediately thereafter, both boys began punching the victim in the body area. I infer from these actions that there was a concertedaction to block, harass and assault the victim by both boys. On that basis, both boys carried out the common purpose of assault on thevictim. [12] From this point onward, the case law in support of a conviction for unlawful act manslaughter and 21(2) C.C. party liability foran unlawful act manslaughter meld. [13] As such the leading case is that of the Supreme Court of Canada case of R. v.

Creighton, (SCC), [1993] S.C.J.No. 91, where Justice McLachlin stated that all that is required to support a manslaughter conviction is reasonable foreseeability of therisk of bodily harm. While s. 222(5)(

a) does not expressly require foreseeable bodily harm, it may be so interpreted: [74] …The unlawful act must be objectively dangerous, that is likely to injure another person. The law of unlawful act manslaughter hasnot, however, gone so far as to require foreseeability of death.

The same is true for manslaughter predicated on criminal negligence;while criminal negligence, infra, requires a marked departure from the standards of a reasonable person in all the circumstances, it doesnot require foreseeability of death. [14] Significantly, however, this objective foreseeability relates to bodily harm in general and not to some specific type of bodilyharm. [15] Scott C.J.M. in R. v.

Sinclair (2008), 2008 MBCA 15 , 229 C.C.C. (3d) 485 stated “objective foreseeability is objective foreseeability of the risk of bodily harm in general, not of a specific type of harm… thus given theobjective nature of the test, what the offender actually thought or intended at the time of the act is not material to the analysis.”

[16] Party liability for manslaughter under s. 21(1) and (2) has become settled law through the decision of the Supreme Court ofCanada in the case of R. v. Davy (R. v. Jackson (SCC), [1993] 4 S.C.R. 573 sub. nom. R. v. Davy). This was a casewhere two people formed a common intention to commit an unlawful act, being robbery, and to assist each other in carrying out thatunlawful act. During the course of carrying out the unlawful purpose, a co-accused committed murder.

It was held that the accusedperson is guilty of manslaughter if it is proven a reasonable person would have foreseen a risk of harm as a result of carrying out thecommon purpose.

McLachlin J. as she then was, stated “I conclude that the person may be convicted of manslaughter who aids or abets another person in the offense of murder where areasonable person in all of the circumstances would have appreciated that bodily harm was the foreseeable consequences of thedangerous act which was being undertaken.” [17] Under s. 21(2) the Davy case held where a common unlawful purpose has been demonstrated and one party to the purpose hascommitted murder, another party to the purpose may be convicted of either murder or manslaughter.

The offense referred to in section21(2) is not confined to the offence of which the co-accused is convicted but extends to included offenses. The appropriate mens rea formanslaughter under section 21(2) is objective awareness of the risk of harm. It does not require foreseeability of death, but onlyforeseeability of harm, which in fact results in death.

The tests then becomes, whether a reasonable person in all the circumstancesforesees at least a risk of harm to another as a result of carrying out the common intention. [18] Looking at the facts before me in this case when the accused N.M. and his cousin circled the victim and began to punch him inthe body area from both the front and the back of the victim was it reasonably foreseeable that bodily harm would occur. [19] In this case as it relates to the accused injuries, the medical evidence does not show whether or not bodily harm actuallyoccurred as a result of the punches inflicted by the accused on the victim.

The autopsy report of Dr. Balachandra filed as exhibit 2 doesnot note any specific injuries to the frontal stomach, chest area of the victim, other than a faint contusion on the shoulder joint at thefront. There is therefore no automatic assumption based on the evidence that there was bodily harm. As an aside, I cannot agree withMs Rankin's argument that the substantial contusions, bruises and cuts to the face of the deceased victim as reflected in the autopsyreport can be inferred to be as a result of the punches made by the accused N. M..

This case is by way of stated case, and it is clear underthe agreed statement of facts. Exhibit 1 “both accused hit the victim in the body”. However, the test for me is not finding actual bodilyharm but more the reasonable forseeability of the risk of bodily harm. (see also R. v.

Smithers (SCC), [1978] 1 S.C.R.506) [20] The definition of bodily harm is set out in the Criminal Code s.2. “Bodily harm means any hurt or injury to a person that interferes with the health and comfort of the person and that is more than merelytransient or trifling nature” [21] In this case the key issue is whether or not viewed objectively, would a reasonable person in all of the circumstances haveappreciated that bodily harm was the foreseeable consequences of the dangerous act which was being undertaken that being the assaultinflicted on the victim by the accused and his cousin. [22] In R. v.

Moquin 2010 MBCA 22 , [2010] M.J. No.46, the Manitoba Court of Appeal dealt with what constitutes bodilyharm and refers and adopts the Dixon case (1988), (BC CA), 42 C.C.C. (3d) 318 (BCCA) as to what constitutes bodilyharm which includes the element of interference with comfort, which must have continued for some time after that. The court in Moquinreviewed examples of injuries found by other Courts of Appeal which were held to amount to a bodily harm, and they includedsuperficial injuries consisting primarily of bruising and abrasions, sore neck, scrapes and lacerations. (see also R. v.

Giroux 1995 ABCA393 , [1995] A.J. 900 (Alta.C.A.) [23] The Court in Moquin also cited the unanimous Supreme Court decision in R. v. McGraw, (SCC), [1991] 3S.C.R. 72, for the proposition that bodily harm also included any hurt or injury, physical or psychological, that interfered with thephysical or psychological integrity, health or well-being of a complainant: [23] Does the phrase [serious bodily harm] encompass psychological harm? I think that it must. The term “bodily harm” referred to in s.267 is defined as “any hurt or injury”.

Those words are clearly broad enough to include psychological harm. … There can be no doubtthat psychological harm may often be more pervasive and permanent in its effect than any physical harm. … [24] The Manitoba Court of Appeal in a sentencing appeal of R. v. Marsden 2004 MBCA 121 had before it an appeal of sentencewith the facts based on an agreed statement of facts between the crown and defense. It was agreed that Marsden was involved in a planto rob a taxi driver, that violence was contemplated, and that he participated by grabbing the victim from behind.

In sentence, however,the sentencing also proceeded on accepted facts the accused did not know that his co-accused was armed with a knife or that the plannedattack would involve the level of violence that it did. In her sentencing decision, Justice Steele reviewed the case law involving section21(2) of the code. She stated the accused was guilty of manslaughter because he formed a common intention to commit a robbery withviolence and any reasonable person would have foreseen the risk of harm to the victim.

This aspect of the decision was obiter, however,it reflects the acceptance in Manitoba of the general principles of the application to section 21(2) C.C. as reflected above. [25] Turning to the facts of this particular case. The court is bound by the agreed statement of facts with some inferences. Theconfrontation, which occurred related to what the court can infer as a gang turf challenge where the accused confronted the victim,challenging his wearing of a white bandanna, swearing at him and wanting to know who he “reps”. The victim was trapped between theaccused in the front and the accused cousin in the back.

As the victim started to walk away the accused held on by both hands blockinghis exit and between the two boys the victim was hit five times in the body.

[ 26 ] From these facts, and the action of the co-accused in concert it was apparent to the court that in fact this was a gang turf challenge, where the two co-accused intended through their actions to rough up (assault or lay a licking on the victim) and teach him a lesson of not coming into their turf. [ 27 ] The question then is whether or not there was objectively reasonable foreseeability of the risk of bodily harm being done by the accused on the victim. To answer that one must look at the acts and words used by the accused as it related to the victim in concert with his cousin.

If the accused simply blocked the movement of the victim by a push or shove, such would be excluded from the definition of bodily harm as being merely trifle. However, his holding on to the victim and then striking the victim in the body with two punches at the same time that his cousin was striking the back of the victim's body with three punches, would in my opinion be foreseeable to injure the victim sufficient to amount to bodily harm.

It would be foreseeable that such an attack to the victim’s body in this manner would interfere with the health and comfort of the victim both physically and emotionally for some time and would not be trifling. In any outcome I am certain that a random attack such as this would leave any victim with some psychological harm of a non trifling nature such that there would be fear of simply walking down the wrong street and being subject to an assault. [ 28 ] As such I find the accused guilty of the charge of unlawful act manslaughter under s. 21(2) of the Criminal Code . STEWART, P.J.