R. v. Branconnier, 2018 MBPC 26

CITATION: R. v. Branconnier, 2018 MBPC 26 IN THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN: Her Majesty the Queen ) M. Lafreniere and M. Armstrong, ) for the Crown ) and ) ) ) Lionel Branconnier ) C. Antila, ) for the Accused ) ) ) ) Judgement delivered: ) July 5, 2018 C. DEVINE, P.J. Introduction [1] On May 30, 2014 in Winnipeg, Wayne Harper died from a traumatic brain injury caused by blows to his head. He wasassaulted twice in the approximate 18 hours before his death.

The first assault occurred sometime between 10:00 p.m. and midnight onMay 29, 2014 and the second assault occurred sometime between 9:00 a.m. and noon on May 30, 2014. Oliver Okemow pleaded guiltyto manslaughter for Mr. Harper’s death and is currently serving his sentence. Jeremy Rae was implicated in the second of the twoassaults, but is now deceased. The third person who was involved is the Accused who has also been charged with manslaughter. [2] The Accused admits he was involved in the first assault, but argues that it was a relatively minor assault and did not causeMr. Harper’s death.

He denies his involvement in the second assault, which he argues was the cause of death. [3] The people involved in this matter were living on the streets in “camps” in Winnipeg’s west end, behind Polo Park Mall andshopping area. They were all living difficult lives, begging, borrowing and stealing to obtain liquor and intoxicants, which theyconsumed daily. The Accused lived in a camp with Kayla Fiddler and Oliver Okemow behind the Best Western Hotel on WellingtonAve. The deceased Wayne Harper had a camp with Joni Beardy near the Value Village store on Ellice Avenue. [4] Ms. Fiddler, Mr. Okemow and Ms.

Beardy all testified in the trial. In addition to the evidence from the people who weredirectly involved in or witnessed the assaults or injuries on Mr. Harper, there was evidence from four police officers involved, includingthe lead homicide investigator. An Agreed Statement of Facts included the evidence from several people who worked in the area whosaw Mr. Harper before and after the second assault. I also heard expert opinion evidence from the forensic pathologist and forensicneurologist who testified about the injuries and death.

The Accused also testified. [5] This case turns largely on a credibility and reliability analysis of the evidence of the civilian witnesses, which therefore mustbe considered and critically analysed according to the framework set out by the Supreme Court of Canada in R. v. D.(W.), (SCC), [1991] 1 S.C.R. 742. Issues

[ 6 ] There are two main issues in this case. The first issue is whether one or both of the assaults caused the injuries that contributed significantly to Mr. Harper’s death and more specifically, whether the extent of the injuries caused by the first assault were sufficient to contribute to Mr. Harper’s death. The second issue is whether the Accused was involved in the second assault. [ 7 ] The Crown contends that both assaults contributed to Mr.

Harper’s death and that the Accused was actively involved in both assaults. [ 8 ] The Accused admits his involvement in the first assault, but argues that based on the medical evidence, the first assault was not a contributing cause in Mr. Harper’s death. He argues that the fatal injury was inflicted during the second assault and denies any involvement in the second assault. He argues that although he was present during the second assault, he was not involved, even as a party and in fact, tried to stop it. Background and

Summary of the Facts [ 9 ] The 31 year-old victim Wayne Harper was from Wasagamack, one of the northern Manitoba Oji-Cree communities that lies on Island Lake, as was his partner, Joni Beardy, who is from Garden Hill. They had been partners for about four years and had been in Winnipeg together for about a month before Mr. Harper’s death. The Accused is Metis from Winnipeg, but lived several years up in the Island Lake area when he moved to Red Sucker Lake with his wife in 1997. He worked in a gold mine and on the trap line with his wife’s family between 2004 and 2016.

In the off-season, he would come down south to Winnipeg, give money to his son, stay in hotels, and drink. When he ran out of money, he would live on the streets and turn to intoxicants like hand sanitizer, hairspray and mouthwash. [ 10 ] The Accused met Kayla Fiddler and Oliver Okemow on the street and stayed at their camp. He met Mr. Harper and Ms. Beardy on the street in the same west end area. He and the others would spend their days drinking and engaging in activities whose only objective was to get more to drink: panhandling, or “signing” as Mr.

Okemow called it, to get a bit of money to buy Listerine or hand sanitizer at Walmart. If someone had more money, they would make a trip to the liquor store to buy potable liquor. [ 11 ] Sometime roughly around 11:00 p.m. on May 29, 2014, the Accused, Mr. Okemow and Ms. Fiddler walked to Mr. Harper and Ms. Beardy’s camp where the Accused and Mr. Okemow assaulted Mr. Harper. [ 12 ] Because she was scared, Ms. Beardy moved camp with Mr. Harper to the parking lot of a local business. She left their new location for awhile in the morning to get a drink at McDonald’s.

While she was gone, employees from the local business, saw Mr. Harper sleeping in the parking lot at 8:50 a.m. and again at 9:15 a.m. when they roused him, gave him a cup of coffee and asked him to change locations. They observed he had swelling around his lips and eyes, a fat lower lip and dried blood around his nose and eyes. Mr. Harper put on his shoes and walked away. [ 13 ] Also that morning, some time after 9:00 a.m. and probably closer to 10:00 a.m., the Accused, Mr. Okemow, Ms. Fiddler and Mr. Rae were headed to the Lake St. Martin Band Office to get Mr. Okemow’s cheque so they could buy liquor.

They came upon Mr. Harper sleeping alone. [ 14 ] Mr. Okemow and Mr. Rae assaulted Mr. Harper and testified that the Accused also assaulted him. The Accused denies being involved in this second assault. [ 15 ] They left Mr. Harper defenceless and laying on the ground. One of them took his shoes. [ 16 ] Between 10:00 and 10:30 one of the Fitness Experience employees was approached by Ms. Beardy asking where Mr. Harper had gone. The employee told her about offering Mr. Harper a cup of coffee, then seeing him walk north. [ 17 ] Another person working in the area saw Mr.

Harper at about 10:30 a.m. walking across the parking lot. He was dragging his right leg behind him. The man wondered if Mr. Harper was injured. He lost sight of Mr. Harper briefly, then saw him laying on the ground of the parking lot. Another street person named Harold Taylor helped Mr. Harper up and moved him towards a low fence at the edge of the parking lot. Mr. Harper collapsed and remained there. The witness saw Ms. Beardy talking to Mr. Harper who was moving, but did not get to his feet. Ms. Beardy left. The witness observed that Mr.

Harper was not wearing shoes. [ 18 ] At 11:58 a.m., another civilian witness called 911 to report Mr. Harper laying in the parking lot with blood on his face. He was not moving nor responding to questions, but appeared to be breathing. [ 19 ] Emergency personnel arrived, and shortly after transported Mr. Harper to Health Sciences Centre by ambulance in critical condition. Attempts to save his life failed. He was pronounced dead at 4:57 p.m. [ 20 ] The post mortem examinations revealed that Mr. Harper died from a massive subdural hematoma on the left side of his brain, caused by blunt force trauma.

The First Assault [ 21 ] The Accused admits his involvement in the first assault. However, because the severity of the first assault is in issue, it is important to consider the evidence about the circumstances and details of the assault. [ 22 ] Ms. Fiddler and Mr. Okemow both testified that they returned to the camp they shared with the Accused the evening of May 29, 2014 and told the Accused they had been talking to Mr. Harper who was bad-mouthing the Accused and saying he was stealing from him and other street people. The Accused knew where Mr. Harper and Ms. Beardy were camped and he wanted to talk to Mr.

Harper about what he had been saying. He, Mr. Okemow and Ms. Fiddler went to their camp sometime between 9:00 and 11:30 p.m. Mr. Harper and Ms. Beardy were asleep on the ground.

[ 23 ] Ms. Fiddler testified that Mr. Okemow and the Accused stomped, kicked and punched Mr. Harper in the head numerous times. The Accused was at Mr. Harper’s head and Mr. Okemow was at his body. She said that when Mr. Harper woke up he was pleading with them to stop. It sounded like he was choking on his blood, gurgling. He tried, but could not get up off the ground. He had blood on his face. [ 24 ] Mr. Okemow testified that the Accused woke Mr. Harper up with a slap across the head, yelled at him, and then punched him in the head and slapped him on the cheek, the jaw and on the forehead. Then Mr.

Okemow joined in, kicking Mr. Harper in the stomach and punching him in the face. Mr. Harper did not get up and fight back; he was “defenceless.” He testified that Mr. Harper was conscious but he could not see if there was blood, because it was dark. He testified that the first assault was serious, because Mr. Harper was not prepared for the attack. [ 25 ] Ms. Beardy testified that she awoke to angry voices. It was Mr. Okemow and the Accused and then they started punching Mr. Harper in the face, head and body.

She agreed on cross-examination that he did not have any injuries. [ 26 ] She tried to use her body to block Mr. Harper’s face, but the Accused pushed her out of the way and asked her if she wanted to be “punched out too or bitch slapped.” She answered only, “No” because she was scared to say anything more. She did not see Ms. Fiddler. Ms. Fiddler testified that Ms. Beardy sat up and told them to stop and the Accused slapped her. Mr. Okemow testified that Ms. Beardy woke up and was trying to protect Mr. Harper, but Ms.

Fiddler slapped her. [ 27 ] The Accused testified that he approached them and could not remember whether he tapped Mr. Harper on the leg to wake him up or whether Mr. Harper was already sitting up. He then testified that Mr. Harper was lying on the ground when he got there. He testified that he slapped Mr. Harper in the head and asked why he would be saying that the Accused was stealing from them. Mr. Harper did not say anything; the Accused testified that he “kept asking him” and then “I think I punched him” in the head. He also testified that when Mr. Harper did not say anything, he slapped him again.

He told Mr. Harper, “No, you shouldn’t talk about me like that, all right? And then I, I think I punched him. And then that was, that was, like, the end of that.” The Accused agreed that he had told the police “different things” but “When I remembered and it came down to the end, it was two slaps and a punch.” [ 28 ] Mr. Okemow testified that before they left, the Accused told Ms. Beardy not to say anything. Ms. Beardy testified that after the assault, the Accused pointed at both her and Mr. Harper, moving his finger back and forth between their faces and saying, “We’re going to come back.” [ 29 ] Ms.

Beardy moved their camp to a different location to hide. She testified that Mr. Harper could not walk without her assistance; she described him as “dizzy or weak.” [ 30 ] Dr. Littman, the forensic pathologist who performed the autopsy, testified that swelling, bruising and hemorrhage to Mr. Harper’s right eye indicated a blow to the area. The yellowish tint indicated that the blow occurred at least 16 hours before death, which was 4:57 p.m. on May 30, 2014; therefore, the injuries would have occurred some time before 1:00 a.m. that day. [ 31 ] He testified that there were several injuries to Mr.

Harper’s head and face consistent with blunt force trauma to the area, caused by at least three to four punches or kicks to the head and at least three blows to the face. There were also several injuries consistent with blunt force trauma to the torso, not as significant as the injuries to the head and face. [ 32 ] Dr. Littman testified that the injuries he noted were consistent with an assault consisting of multiple strikes by fist and foot to the head that occurred between 9:00 p.m. on May 29 and 1:00 a.m. on May 30, 2014, the time of the first assault. [ 33 ] Dr.

Del Bigio, a neuropathologist testified that examination of Mr. Harper’s brain revealed a large, subdural hematoma on the left side of his brain. Both Dr. Littman and Dr. Del Bigio agreed that this was the cause of death. [ 34 ] A subdural hematoma occurs when blood vessels below the dura break and hemorrhage into the brain. Dr. Del Bigio explained that a subdural hematoma is produced by force that causes a sudden rotation of the head which in turns causes the brain to strike the inside of the skull, breaking blood vessels.

It depends not necessarily on the severity or force of the blow, but how the head responds to the blow. The severity of the injury is more dependent on the movement of the head than the strength of the blow. A severe brain injury can therefore occur where a person is unprepared for the blow or has weak neck muscles. The head will typically move more or rotate more when the person’s neck muscles are relaxed, such as when a person is sleeping. Videos of the so-called “knock-out punch” in boxing typically show a blow to the side of the head that causes a rotational movement of the head.

The injury is dependent on the movement of the head, causing movement of the brain within the skull leading to rupture of blood vessels. Dr. Littman testified that the degree of force, on a continuum from mild to extreme force, would be somewhere about in the middle. [ 35 ] Dr. Del Bigio testified that even a single punch to the side of the head would be sufficient to cause a subdural hematoma, although the injury was more likely to be caused by multiple punches or kicks. The Second Assault [ 36 ] The Accused denied any involvement in the second assault. [ 37 ] Ms. Fiddler and Mr.

Okemow testified that on the way to Mr. Okemow’s Band Office they ran into Mr. Rae and he started walking with them. Ms. Fiddler testified that the Accused and Mr. Okemow were bragging to Mr. Rae about beating up Mr. Harper the night before; Mr. Okemow testified that the Accused told Mr. Rae about the assault. [ 38 ] Ms. Fiddler testified that Mr. Rae pointed out Mr. Harper, who was sleeping against a tree, with his backside on the ground and

his upper back or shoulders and head leaning on the tree. Mr. Okemow testified that the Accused pointed him out. [ 39 ] Ms. Fiddler testified that the Accused went up and punched Mr. Harper in the head. Mr. Rae and Mr. Okemow joined in, and the three delivered a lot of punches and kicks to his head and body. Mr. Harper did not do or say anything; he just lay there bleeding. [ 40 ] Mr. Okemow testified that he, the Accused and Mr. Rae started assaulting Mr. Harper. First Mr. Rae kicked him in the head. The Accused then was punched Mr. Harper in the upper body, chest, and face. There were a lot of punches.

On cross-examination, he testified that the Accused was also “stomping him by the chest and everything.” During cross-examination, he disagreed that it was Mr. Rae who assaulted Mr. Harper on the chest; he corrected counsel that the Accused was stomping him on the chest. Mr. Okemow testified that he was by Mr. Harper’s head and was kicking him and hitting him too. He disagreed on cross-examination that the Accused did no kicking or hitting, testifying, “He did.” [ 41 ] He disagreed during cross-examination that Ms.

Fiddler was involved in any way; he testified she walked away and stood about 50 feet away. [ 42 ] Mr. Okemow testified that Mr. Harper did nothing; he was defenceless. He thought the first kick to his head knocked him out because Mr. Rae was wearing steel-toed boots. The assault just stopped and they backed off, because they could see that Mr. Harper was already injured. He was not moving at all. He disagreed that the Accused tried to stop the fight, testifying, “That’s not true.” [ 43 ] He and Ms. Fiddler thought Mr. Rae grabbed Mr. Harper’s shoes. [ 44 ] The Accused testified that as he, Mr. Okemow, Ms.

Fiddler and Jeremy Rae were walking to the Band Office to get Mr. Okemow’s cheque, he saw Mr. Harper sleeping on the ground and pointed him out. He, Mr. Okemow and Ms. Fiddler walked past Mr. Harper and then he looked back to see Mr. Rae kicking Mr. Harper in the head. He walked back and pushed Mr. Rae and told him to leave Mr. Harper alone. Mr. Okemow kicked Mr. Harper a few times and then Mr. Rae tried to kick him again. The Accused testified that he grabbed Mr. Rae and said “Leave him alone.” He denied kicking or assaulting Mr. Harper in any way. The Accused testified that he took Mr.

Harper’s shoes. [ 45 ] He told police in his statement in 2016 that he might have assaulted Mr. Harper; he could not remember. [ 46 ] He stayed on the streets in the same camp behind the Best Western for the next six or seven months, drinking every day, “I stayed on the streets trying to find out – who died or who I killed or something like that.” [ 47 ] After the assault, the four went to Mr. Okemow’s Band Office and got the cheque. They cashed it at the Money Mart on Ness, bought some liquor at the Liquor Mart and were drinking together. Mr. Okemow testied that he argued with Mr. Rae and Mr. Rae left.

The Accused testified that he got angry at Mr. Rae about the fight and elbowed him. [ 48 ] Mr. Okemow did not see the Accused again. He testified that he did not want to have anything to do with the Accused after what happened. [ 49 ] The Crown also tendered circumstantial evidence from that morning from Ms. Beardy and several civilians who worked in the area and saw Mr. Harper before and after the assault. [ 50 ] Ms. Beardy testified that Mr. Harper looked pale that morning and had had a nosebleed. She wanted to go to McDonald’s to get something to drink because she was hungover. Mr.

Harper told her he wanted to stay because he was too tired and hungover. That was the last thing he said to her. She left and went to McDonald’s and got a drink and went to the bathroom. When she walked back, Mr. Harper was gone. [ 51 ] She saw a worker with a badge from Fitness Experience and asked if he had seen the guy laying there, (that is, Mr. Harper), and he said he gave Mr. Harper a cup of coffee and pointed in the direction that Mr. Harper walked, towards Value Village. She headed in that direction.

She then saw William Taylor and some other street people sitting on a landmark tree in the area, simply referred to as “The Tree” by witnesses, so she sat with them. [ 52 ] Ms. Beardy testified that Mr. Harper started walking towards them, but was having a lot of difficulty walking and even standing, so Mr. Taylor went to help him and then laid him on the ground. Ms. Beardy testified that he could not really move. He had no shoes. Ms. Beardy testified that his face was pale, he was drooling and had a bleeding nose. She said he looked different, like he was not himself.

She tried to talk to him, but he could not speak. He just made a sound, “Uh, uh, uh.” An employee in the area observed the same difficulty Mr. Harper was having, including dragging his right leg while he was still able to walk. [ 53 ] Ms. Beardy left Mr. Harper in the sun to rest and went to sat by “The Tree,” then went looking for cigarette butts and to Walmart to steal some hairspray with Mr. Taylor. When they returned, Mr. Harper was gone. The area had yellow tape and a number of police cars. Police told her Mr. Harper had been taken to Health Sciences Centre. [ 54 ] Dr. Littman testified that Mr.

Harper’s injuries were also consistent with an assault consisting of multiple strikes by fist or foot to Mr. Harper’s head occurring that morning between 9:30 and 10:30 a.m. [ 55 ] He testified that a bleed such as this would take several hours to accumulate. Dr. Del Bigio testified that the subdural hematoma was on the left side of Mr. Harper’s brain, therefore as it caused increasing pressure inside the head, there would have been unsteadiness on his feet and weakness on the right side of his body. It could affect his ability to walk and to speak. Dr.

Littman testified that a person who suffers a subdural hematoma will exhibit many of the same symptoms as someone who is grossly intoxicated: garbled speech due to difficulty in talking, drooling and difficulty walking.

The Presumption of Innocence and the Criminal Standard of Proof [ 56 ] An accused person is presumed innocent. The importance of this foundational principle of our criminal law is underscored when someone is charged for another person’s death. Many evidentiary and procedural rules support the presumption of innocence. In determining whether a person is to be convicted or acquitted of a criminal offence, the onus on the Crown is high. The Court must be satisfied of the accused’s guilt, on the whole of the evidence, beyond a reasonable doubt (R. v.

C.L.Y. , 2008 SCC 2 at paras. 6-8 ), otherwise known as the criminal burden of proof. “The paramount question in a criminal case is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused” ( R. v. Vuradin , 2013 SCC 38 at para. 21 ). [ 57 ] As Justice Bond stated in the recent case of R. v. Miles , 2018 MBQB 95 : To secure a conviction, the Crown must prove the accused’s guilt beyond a reasonable doubt. A reasonable doubt is not an imaginary or frivolous doubt. It is based on reason and common sense.

It is a doubt that arises logically from the evidence or from an absence of evidence. (at para. 6) [ 58 ] The mind must be convinced and the conscience must be satisfied as to the Accused’s guilt. Any lingering or nagging doubt must be resolved in favour of the Accused. ( D.(W.) at para. 8 ). [ 59 ] In this case, the Accused testified. Therefore, the determination of whether the Crown has proven his guilt becomes significantly more complicated. The determination is based not only on the Crown’s evidence, but also on the evidence of the Accused.

In order not to lose sight of the proper approach to be taken in such a case, to avoid a human tendency simply to compare and choose which evidence is preferable, the Supreme Court of Canada has provided direction to trial judges, in W.(D.) . As Justice Cameron, explained the “W.(D)” analysis in R. v. Menow , 2013 MBCA 72 : In W.(D.) , the Supreme Court warned that verdicts of guilt should not be based on “whether [triers of fact] believe the defence evidence or the Crown’s evidence” (at p. 757).

Rather, the paramount question is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused. To ensure the trier of fact remains focussed on the principle of reasonable doubt, the court suggested that the following analysis be undertaken (at p. 758): First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 60 ] The evidence of the Accused cannot be assessed in isolation. It must be assessed in light of all the evidence in the trial.

The former approach was proposed in Menow and rejected by the Manitoba Court of Appeal, consistent with appellate courts across the country: To assess the evidence of the accused in a vacuum ignores the fact that the whole purpose of the trial is to determine whether or not the accused is guilty of the offence for which he or she is charged. It is impossible for an accused’s evidence to be considered without a factual or contextual backdrop for the charge itself.

Furthermore, such a method of analysis would effectively prevent the court from considering evidence favourable to the accused when deciding whether or not to believe him or her.

To ignore evidence favourable to an accused person in assessing his or her credibility is contrary to principles of fundamental justice. (at para. 23) [ 61 ] A judge must assess the Accused’s evidence in terms of its inherent reliability and the likelihood that the events happened as he said they did. [ 62 ] In this case, there is an additional factor: all of the witnesses who testified at trial were using intoxicants at the material time. Some of their evidence has gaps that I can only infer exist as a result of intoxication.

I have been mindful of the impact this may have had on the reliability of their evidence. Assessment of the Accused’s Testimony [ 63 ] I have several problems with the Accused’s testimony. His version of events is internally inconsistent, is not consistent with the evidence of the other witnesses and his evidence with respect to the second assault is not plausible. He minimized his involvement in the first assault to a tap, a couple of slaps and one punch. He denied any involvement in the second assault. I found his evidence with

respect to the actual assaults to be self-serving and tailored to the medical evidence. [ 64 ] His memory was also significantly affected by what I infer to be black-outs from his heavy consumption of intoxicants. He testified several times about his drinking and alcoholism. He testified that once he came down to Winnipeg each year when the ice broke up, he would start drinking and would drink until his money ran out, and then would beg, borrow and steal hand sanitizer and mouthwash to intoxicate himself on the streets. He testified that once he started drinking each year, he did not usually go back up north.

He drank every day. [ 65 ] The Accused’s testimony was replete with answers of “I don’t remember.” He testified to a complete black-out between the time first assault ended to the next morning while they were walking to the Band Office; he did not know how it came to be that Jeremy Rae was with them. [ 66 ] He could not remember the testimony of the police officer who had testified the week before during the trial, testifying that, “No, I don’t [remember].

My memory’s not too good sometimes.” [ 67 ] In his statement to police, he initially stated that the first assault took place two or three days before the second assault. It was not until the police officer jogged his memory and advised him that two other witnesses told the police that the first assault was the night before the second assault. [ 68 ] Despite his poor memory of the circumstances surrounding the assaults, implausibly, he testified that his memory of the two incidents was good. He testified that, “I remember very well the two incidents.” He testified that he always remembers bad things.

This was not borne out in the evidence. [ 69 ] With respect to the precipitating circumstances of the first assault, I have difficulty accepting that the Accused was not angry and was intent on confronting Mr. Harper upon hearing that Mr. Harper was saying things he did not like to hear. The evidence from Mr. Okemow and Ms. Fiddler was that the Accused was upset and that he decided to go and confront Mr. Harper about it.

His testimony qualifying his admission on cross-examination that he was upset is an example of tailoring his evidence: “Well, upset to a point where I wanted to talk to him, yes, to see if that was true.” His testimony that he was simply going to talk to Mr. Harper, but not confront him, is not believable. His actions upon arriving at the sleeping Mr. Harper, even according to him, were aggressive. He testified that he yelled at Mr. Harper and maybe tapped him on the leg with his foot. That is a confrontation. That is not going to talk to someone.

Moreover, in his statement to the police he admitted that he told the officer that he was “pissed off” at Mr. Harper.” [ 70 ] In his direct testimony, he testified that as he approached Mr. Harper on the night of May 29, 2014, he could not remember whether he tapped Mr. Harper on the leg to wake him up or whether he was already sitting up. On cross-examination his evidence leaned more towards Mr. Harper already sitting up when he got to him. He then testified that Mr. Harper was lying on the ground when he got there. Then he testified that he woke Mr. Harper up.

His explanation for telling the police he did not know how many times he punched Mr. Harper was that he had been drinking hand sanitizer and mouthwash every day for seven months straight, before giving his statement. He denied this affected his memory. He said the reason he might not have been clear in his statement to police was that he was scared. [ 71 ] The Accused testified that after the first assault, he, Ms. Fiddler and Mr. Okemow left and were going to go to McDonald’s. He could not remember if they went or not; his next memory is of the next morning when he woke up back at the camp.

He testified that he had no memory of the time between the end of the assault and waking up the next morning. [ 72 ] He maintained his innocence in the second assault, but I do not believe that evidence for several reasons: • It did not have an air of reality about it. In the context of the other evidence in the trial, it is not plausible. It was he who initiated the beating the night before. He warned Mr. Harper and Ms. Beardy that he would be back. Mr. Okemow testified that the next morning when they ran into Mr. Rae, the Accused was telling Mr. Rae about how they had beaten up the Mr. Harper the night before.

That evidence was not challenged. Mr. Okemow said that like the Accused, Mr. Rae also had a beef with Mr. Harper, thus explaining Mr. Rae’s involvement. Then they saw Mr. Harper. The Accused testified that he pointed out Mr. Harper. • His evidence from that morning is unreliable. He could not remember when Mr. Rae joined them and may have even woken up with them. It is clear from the other evidence in the trial that they ran into Mr. Rae on the way to the Band Office. • Mr. Okemow and Ms. Fiddler’s evidence that the Accused was an active participant in the second attack remained consistent on cross-examination.

Mr. Okemow sighed and shook his head when it was suggested that the Accused had nothing to do with the second attack. The Accused’s significant involvement is also likely because Mr. Okemow testified, unsolicited during cross-examination that he did not want to have anything to do with the Accused after this. • It is inconsistent with his statement to the police. • His evidence that he took Mr. Harper’s shoes after Mr. Rae and Mr. Okemow assaulted Mr. Harper is inconsistent with his testimony that he was trying to prevent Mr. Rae from beating Mr. Harper.

It is also incongruous with his testimony that he was upset with Mr. Rae about his attack on Mr. Harper. [ 73 ] His evidence about what happened after the assaults and Mr. Harper’s death is similarly marked by poor memory. When he was asked if he found out about Mr. Harper’s death, he testified, “I think I did but I can’t really remember.” He testified that he stayed on the streets and drank for six or seven months straight. He testified that he “kind of” remembered giving a statement to police on September 13, 2016.

Assessment of the Evidence of Mr. Okemow, Ms. Fiddler and Ms. Beardy [ 74 ] There are similar frailties in the evidence of Mr. Okemow, Ms. Fiddler and Ms. Beardy as I found in the Accused’s evidence; their memories were also affected by the heavy consumption of intoxicants. However, their evidence is essentially consistent when it comes to the assaults and the Accused’s involvement in them. There is no evidence of collusion and in fact, Ms. Fiddler went to the police implicating both the Accused and her former partner Mr. Okemow. Ms. Beardy’s evidence corroborates Mr. Okemow and Ms.

Fiddler’s evidence of the first assault. [ 75 ] There is also independent corroboration of their evidence. Detective LePage checked out Ms. Fiddler’s story about the fight at McDonald’s. It was confirmed there had been a “fight call” that night and police cars and the police helicopter were dispatched. Ms. Fiddler told him Mr. Rae had died and Detective LePage confirmed that Mr. Rae died August 2014. Similarly, the time frames, and Mr. Harper and Ms. Beardy’s movements before and after the second assault, are corroborated by the civilian witnesses who worked in the area. [ 76 ] Ms.

Fiddler’s description of the assault and injuries on Mr. Harper the first night, were more serious than that of any other witness and she saw blood on Mr. Harper’s face. However, her evidence of the first assault as significant is corroborated by the following: Mr. Okemow’s evidence; Ms. Beardy, who felt the need to move their camp and had to assist Mr. Harper; the witnesses in the area who the next day saw blood and swelling on his face; and by Dr. Littman’s evidence that some of the swelling and bruising to Mr.

Harper’s face was at least 16 hours before his death, which would have been sometime before 1:00 a.m. on May 29. [ 77 ] Ms. Fiddler initially lied about her drinking; she testified that she was sober the night of the first assault, and later in her testimony admitted that was false, she had been drinking. This does not impact the believability of her evidence about the assaults however. [ 78 ] When it was suggested to her that the Accused only slapped Mr. Harper during the first assault, she insisted that he stomped.

It was suggested that there were no stomps or kicks during the first assault, she insisted there were. No one else used the word “stomp”; I do not know if the stomp and kick described by all the witnesses were describing the same action. I observe that all witnesses described kicking and punching during the first assault, including the Accused. Ms. Fiddler’s evidence of the Accused kicking and punching Mr. Harper is consistent with Ms. Beardy and Mr.

Okemow’s evidence and with the Accused in part, who admitted to one punch. [ 79 ] Her evidence about the Accused’s involvement during the second assault was unshaken on cross-examination. When it was suggested that it was Mr. Rae or Mr. Okemow who punched Mr. Harper in the head not the Accused, or that she looked away or walked away, she clearly and firmly stated that she saw the Accused punching Mr. Harper in the head.

When it was suggested that she has a bad temper, has used violence, and was involved in the second assault, she accepted her own violent offending behaviour and totally and calmly admitted to the aggravated assault offence for which she is serving a lengthy sentence, and stated, “I didn’t do nothing to Harper.” When it was suggested again during cross-examination that “Mr. Rae ran over and started…” she stated firmly, “The Accused threw the first punch.” No other witness implicated her in assaulting Mr. Harper, including the Accused. [ 80 ] In

summary, I found Ms. Fiddler’s evidence to be consistent with that of the other Crown witnesses about the involvement of the Accused in both assaults and I accept that evidence. [ 81 ] At the time of the trial, Ms. Beardy was still struggling with alcohol abuse. Although this may have affected her energy level and the speed at which she was able to process questions, generally I found her evidence to be credible and reliable. Parenthetically, none of the other civilian witnesses were drinking at the time of the trial; they were all in jail and sober during the trial, including the Accused. [ 82 ] Ms.

Beardy’s evidence about the first assault is detailed, plausible and corroborated by other witnesses and evidence. Her evidence that the Accused slapped her was corroborated by Ms. Fiddler. Her testimony about the Accused pointing and warning was corroborated by Mr. Okemow’s similar evidence. Although she testified that Mr. Harper was not injured during the first assault, she was frightened and wanted to move away from their camp because of the Accused’s threat. She had to help Mr. Harper significantly. She thought it was because of intoxication. [ 83 ] Ms.

Beardy was not present for the second assault, but her narrative is corroborated by the civilian witnesses. [ 84 ] She was asked about her testimony at the preliminary hearing when she apparently said Mr. Harper was speaking to her after the second assault. Her evidence at the preliminary hearing was “He couldn’t speak, but he tried hard to speak. He was blabbering and he was drooling.” Counsel at the preliminary hearing then suggested that Mr. Harper spoke, saying, “I’ll just meet you.

I want to be in the sun and the day and I want to look at the sky.” She agreed with this at the preliminary hearing, stating, “Yeah” but at trial could not remember her evidence at the preliminary hearing. She insisted several times at the trial that he could not speak. [ 85 ] Her evidence that Mr. Harper could not speak after the second assault was consistent. As for her testimony at the preliminary hearing, I am not satisfied that this is an inconsistency. She volunteered information at trial that Mr. Harper could not speak; whereas at the preliminary hearing she was simply agreeing with suggestions.

The witness’s first language was Oji-Cree and her testimony demonstrated that she did not understand complex sentence structure and multi-part questions and hypotheticals. She was able to understand questions when they were phrased plainly and clearly. [ 86 ] Her evidence about talking with the Accused, Mr. Okemow and Ms. Fiddler and Det. LePage after Mr. Harper’s death was corroborated by the other witnesses.

[ 87 ] Generally, I found Ms. Beardy’s evidence about the first assault to be credible and plausible and her evidence generally to be plausible and believable. [ 88 ] I found Mr. Okemow’s evidence to be sincere and honest. He expressed remorse for the attacks and Mr. Harper’s death. He admitted that Mr. Harper was defenceless during both attacks. He pleaded guilty to manslaughter for these attacks in 2016 and is currently serving his sentence. He has nothing to gain by lying about the Accused’s involvement.

If anything, it could be said a person would be safer to avoid the ire of someone they accused of such a serious offence. There was no evidence of any animus towards the Accused. In short, there was no reason to believe that he had any reason to concoct the Accused’s involvement in this matter. [ 89 ] Mr. Okemow did not minimize his own involvement in the assaults. At most, he exaggerated his coming clean. He did not turn himself in to police; he was arrested. He did not immediately confess; he initially pointed the finger at Ms. Fiddler.

However, eventually he did tell the police of his involvement and ultimately plead guilty to the offence. He is sober, in jail and has participated in Level 1 and 2 of the Winding River Program; a peer support program for offenders dealing with addictions and criminal behaviour. [ 90 ] There was no evidence of any collusion between him and Ms. Fiddler. They are no longer in a relationship. [ 91 ] I had some concern about his memory too however. For example, his testimony that he told the police he needed time to sober up before giving his statement is not borne out by the police notes or video.

The absence of such a note does not mean that Mr. Okemow did not ask to sleep or sober up before the police pressed on to get his statement however. He recalled there was some kind of incident at McDonald’s, but did not remember that the police were called. He testified that Ms. Fiddler slapped Ms. Beardy during the first assault, which corroborates the Accused’s evidence. I prefer Ms. Beardy and Ms. Fiddler’s evidence on this point, as Ms. Beardy did not even see Ms. Fiddler there. She also recalled the details of the Accused asking if she wanted to be bitch slapped, as well as his parting warning to her and Mr.

Harper, which caused her to move their camp that night. [ 92 ] On cross-examination he testified that he is an alcoholic who has experienced black outs, but if he has not had a lot to drink, his memory is not affected. He remembered the first night, because he had not been drinking that much; they had been walking around. This is consistent with his earlier testimony that he and Ms. Fiddler were “signing” that day to get some money to buy food. [ 93 ] His evidence that the Accused told Ms. Beardy not to say anything after the first assault was unsolicited testimony. It corroborates Ms.

Beardy’s evidence that before they left, the Accused pointed his finger at both of them, back and forth between her and Mr. Harper and said don’t tell anybody. Conclusion on the Witnesses’ Evidence and Findings of Fact [ 94 ] Although there were discrepancies in the testimony of the witnesses, there was no discrepancy about the Accused’s involvement in both assaults on Mr. Harper. The memory issues I have with respect to these witnesses do not detract from their evidence about the Accused’s involvement in both attacks.

Some of the evidence was unsolicited, which lent credibility to their testimony about the details of the assaults. They all testified to the first assault happening at a similar time, whereas the Accused did not remember what time the first assault occurred. All of their evidence about the details of the assaults was remained unchanged.

All of them implicated the Accused as the aggressor, instigator and active participant in both assaults. [ 95 ] The determination I have to make about the first assault is whether it significantly contributed to the death, which is largely a medical and legal question, because the Accused admitted his involvement in the first assault. [ 96 ] The credibility and reliability analysis of the witnesses’ evidence relates more directly to the factual determination I must make about the second assault, that is, whether the Accused was involved. [ 97 ] In addition to the direct evidence of Ms. Fiddler and Mr.

Okemow, I infer from the Accused’s evidence that it is not plausible that he was not involved in the second assault. [ 98 ] I do not believe the Accused’s evidence that he was not involved, nor does his evidence raise a reasonable doubt about his involvement. [ 99 ] I am satisfied that on the evening of May 20, 2014 Mr. Okemow and Ms. Fiddler went back to camp and told the Accused that Mr. Harper accused him of stealing and he became upset and went to confront Mr. Harper about it. When they got to Mr. Harper and Ms. Beardy’s camp between approximately 10:00 p.m. and midnight, Mr. Harper and Ms.

Beardy were asleep on the ground. The Accused slapped Mr. Harper to wake him and confront him about the comments and then he and Mr. Okemow punched and kicked Mr. Harper in the head, face and body, leaving him bruised and injured. Mr. Harper never got off the ground. [ 100 ] That assault resulted in injuries as described by Dr. Littman. [ 101 ] The next morning, on the way to the Lake St. Martin Band Office they ran into Mr. Rae. The Accused started bragging about beating up Mr. Harper the night before, feeding the animus that Mr. Rae already had towards Mr. Harper. They saw Mr.

Harper laying on his back on the ground, with his head resting against a tree. The Accused, Mr. Rae and Mr. Okemow then attacked Mr. Harper, Mr. Rae kicking him in the head and the Accused and Mr. Okemow punching and kicking him on the head and body several times. Mr. Harper did not get up or fight back. [ 102 ] Overall, the totality of the evidence points to the Accused’s involvement in both assaults.

[ 103 ] The Accused’s post-offence conduct is also consistent with his involvement in Mr. Harper’s death. Post-offence conduct is that from which the trial judge can draw an inference of a guilty mind on the part of the accused. It can be used where there is no other inference to be drawn; as Justice Bond stated in the recent case of R. v. Miles , 2018 MBQB 95 : I must not jump to the conclusion that the accused’s conduct shows a consciousness of guilt when there are other reasonable explanations for his conduct.

See White 1998 at paras. 19–23. (at para. 11) [ 104 ] Two people told the Accused within one to three days that Mr. Harper had died after being beaten. One of the men was Mr. Harper’s cousin, also from Wasagamack. The other was Ms. Beardy who told the Accused that the police were looking for him to question him. He testified that he did not go to the police because he did not believe Mr. Harper’s cousin and partner that Mr. Harper died, because street people lie and Ms. Beardy’s behaviour was inconsistent with Mr. Harper having died. [ 105 ] The homeless community was small. Mr.

Harper’s absence would have been noticeable. He essentially admitted in his testimony that he was staying in the area to find out more about the death of Mr. Harper. “I stayed on the streets trying to find out – who died or who I killed or something like that.” [ 106 ] I infer that he did not contact police because he knew or feared that he was involved in Mr. Harper’s death. Cause of Death [ 107 ] Based on the evidence of both Dr. Littman and Dr. Del Bigio, I accept that a traumatic brain bleed such as the one suffered by Mr. Harper could occur as a result of a single punch or kick.

It would not necessarily have to be delivered with significant force at the extreme end of the spectrum. Dr. Littman testified that the amount of force used was less than that required to cause a skull fracture, but great enough to cause the rotation leading to the broken blood vessels in the brain as well as all the bruises and abrasions on the face. [ 108 ] Dr. Littman testified that both the first assault and the second assault were significant contributors to Mr. Harper’s death. He also testified that if both these assaults occurred, it would be consistent with his findings.

He was not able to eliminate one assault as a significant contributing cause of death. [ 109 ] Dr. Del Bigio testified that he could not exclude either of the two attacks as not contributing to Mr. Harper’s death. He testified that it could have been either or both. He opined that the second attack was more likely to be a contributory cause of death. He was not able to separate out the two attacks. [ 110 ] In terms of a time frame, Dr.

Del Bigio testified that it was difficult to tell how long it took the blood clot that size to accumulate, but he would favour the timing of the attack that morning, rather than the night before.

He qualified that evidence however, by stating that he could not exclude the first attack as having been a contributor to the injury, but “it’s likely that the second attack was a more significant contributor.” He could not “absolutely exclude that it took longer than that.” He went on to explain that the size of the hematoma suggested that several blood vessels had broken, which typically bleed faster and therefore accumulate more quickly. [ 111 ] I am satisfied that the subdural hematoma that led to Mr.

Harper’s death was caused by the first assault as well as the second assault. [ 112 ] Based on the evidence from the civilian witnesses and the medical evidence, I am satisfied the following factors led to the type of injury Mr. Harper suffered: he was asleep and therefore unprepared for neither attack, he was laying on the ground during both attacks, during the second assault with his head leaning on a tree and, one or more punches and kicks were delivered to the side of his head with sufficient force during both assaults. [ 113 ] I am satisfied that the Accused participated in both assaults on Mr.

Harper and that both assaults contributed to his death. In analysing the medical evidence in light of the other evidence and facts I have found in this case, I am satisfied that Mr. Harper would not have died but for the actions of the Accused. The Accused is factually responsible for the death because he punched and/or kicked Mr. Harper in the head during the first assault the night before he died and he punched and/or kicked him during the second attack in the morning on the day he died. Legal Causation [ 114 ] Legal causation is distinct from factual causation.

Factual causation deals with the medical, mechanical or physical processes that led to the victim’s death, and the accused person’s contribution to those processes. [ 115 ] Legal causation deals with whether the accused should be held responsible in law for the death, depending on the wording of the offence, principles of

interpretation, which reflect fundamental principles of justice. [ 116 ] Criminal Code

section 222 sets out the offence of manslaughter: s. 222. 1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

2) Homicide is culpable or not culpable. 3) Homicide that is not culpable is not an offence. 4) Culpable homicide is murder or manslaughter or infanticide. 5) A person commits culpable homicide when he causes the death of a human being,

a) by means of an unlawful act;

b) by criminal negligence;

c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or

d) by wilfully frightening that human being, in the case of a child or sick person. [117] In this case, the unlawful act or acts were the two assaults on Mr. Harper. [118] The mens rea of manslaughter is objectively foreseeable harm that is neither trivial nor transitory. It is not necessary to provethat the attacker believed that death would result. The test is whether it is reasonable to expect that some bodily harm would result fromthe assaults. The Accused testified that bodily harm was likely to result from blows to a person’s head. The punches and kicks to asleeping Mr.

Harper were such that non-trivial or non-transitory bodily harm to him was objectively foreseeable. The resulting deathamounts to manslaughter (R. v. Jackson, (SCC), [1993] 4 S.C.R. 573 at 582- 583; R. v. Creighton, (SCC), [1993] 3 S.C.R. 3; R. v. H.(L.I.), 2003 MBCA 97 at paras. 20-21). [119] The Accused was both a principal and a party to these assaults and therefore to the manslaughter. [120] I am also satisfied that the first assault was a significant contributing cause of his death. Although Dr.

Del Bigio testified thatthe second assault was more likely to have contributed to his death, he could not rule out the first assault as contributing to it. Dr.Littman testified that both assaults were significant contributors to the death. [121] The Supreme Court in R. v. Nette, 2001 SCC 78, confirmed that the test for legal causation for all forms of homicide is thesame. That standard was expressed by Justice Dickson (as he then was) in Smithers v. The Queen, (SCC), [1978] 1S.C.R. 506 as “a contributing cause of death, outside the de minimus range” (at p. 519; cited with approval in Nette at para. 71).

JusticeArbour in Nette stated that it may be helpful to a jury to express the standard without the use of a Latin phrase, or a negative, as JusticeLambert had suggested in the British Columbia Court of Appeal, (“not a trivial cause” or “not insignificant”). Therefore, she suggestedthe phrase “significant contributing cause” (Nette at para. 71), but the test is the same, no matter which articulation is used. [122] There may be a number of contributing causes of death.

An unlawful act, such as an assault, may remain a legal cause of aperson’s death even if that assault by itself, would not by itself, caused the person’s death, provided it contributed beyond de minimus tothe death. (R. v. Maybin, 2012 SCC 24 (at para. 14). Justice Karakatsanis stated at paragraph 20 of Maybin, “As Smithers and Nettemade clear, factual causion is not limited to the direct and immediate cause nor is it limited to the most significant cause.” [123] I am satisfied that one or both of the assaults were significant contributing causes of the death.

Conclusion [124] In conclusion, after considering the Accused’s evidence and all the evidence in this trial, I am satisfied beyond a reasonabledoubt as to his involvement in both assaults on Mr. Harper on May 29 and 30, 2014, and I am also satisfied beyond a reasonable doubtthat both assaults significantly contributed to Mr. Harper’s death. I am therefore convicting Lionel Branconnier of manslaughter. Original signed by: C. DEVINE, P.J. E R R A T U M There is one correction in the above judgement, as follows:

There is a typographical error contained on page 5, in paragraph 18. The paragraph should read: [18] At 11:58 a.m., another civilian witness called 911 to report Mr. Harper laying in the parking lot with blood on his face. He was not moving nor responding to questions, but appeared to be breathing. Dated this 11 th day of July 2018. _____Original Signed by __ C. DEVINE, P.J.