2015 NBCA 34, 2015 NBCA 34

COURT OF APPEAL OF COUR D'APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 125-13-CA BENJAMIN DARREN NASON APPELLANT - and - BENJAMIN DARREN NASON APPELANT - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Nason v. R., 2015 NBCA 34 Nason c.

R., 2015 NBCA 34 CORAM: The Honourable Justice Richard The Honourable Justice Bell The Honourable Justice Green CORAM : l’honorable juge Richard l’honorable juge Bell l’honorable juge Green Appeal from a decision of the Court of Queen’sBench: August 29, 2013 (conviction) October 16, 2013 (sentencing) Appel d’une décision de la Cour du Banc de la Reine: le 29 août 2013 (déclaration de culpabilité) le 16 octobre 2013 (détermination de la peine) History of Case: Historique de la cause : Decision under appeal: 2013 NBQB 343 Décision frappée d’appel : 2013 NBQB 343 , 2013 NBBR 343 Preliminary or incidental proceedings: N/A Appeal heard: October 14, 2014 Procédures préliminaires ou accessoires : s.o.

Appel entendu : le 14 octobre 2014 Judgment rendered: June 18, 2015 Jugement rendu : le 18 juin 2015

Reasons for judgment by: The Honourable Justice Green Motifs de jugement : L'honorable juge Green Concurred in by: The Honourable Justice Richard The Honourable Justice Bell Souscrivent aux motifs : l’honorable juge Richard l’honorable juge Bell Counsel at hearing: For the appellant: Margaret Gallagher, Q.C. For the respondent: Kathryn Gregory Avocats à l’audience : Pour l’appelant : Margaret Gallagher, c.r. Pour l’intimée : Kathryn Gregory THE COURT The appeal and the application for leave to appeal sentence are dismissed. LA COUR Rejette l’appel et la demande d’autorisation d’appeler de la peine.

The following is the judgment delivered by GREEN, J.A. I. Introduction [ 1 ] The appellant, Benjamin Darren Nason, was charged with attempting to murder Beth Ann Wallace, by discharging a rifle at Ms. Wallace, contrary to s. 239(1)(a.1) of the Criminal Code . At the conclusion of a ten-day trial before a judge and jury, the appellant was found guilty as charged of attempted murder. He was subsequently sentenced to a fifteen-year term of imprisonment. Mr. Nason asks the Court to quash his conviction and order a new trial.

In the event he is unsuccessful, he seeks leave to appeal his sentence, and if such leave is granted, asks this Court to reduce the sentence. For the reasons that follow, I would dismiss the appeal and deny leave to appeal the sentence. II. Background

[ 2 ] In the trial judge’s decision on sentence ( R. v. Nason , 2013 NBQB 343 , 412 N.B.R. (2d) 93 ), she begins her recitation of the facts with the observation that “[t]he circumstances surrounding this offence were particularly disturbing” (para. 2). I certainly cannot take issue with her characterization of the situation, which I will outline below. [ 3 ] The appellant, then self-employed and operating a small construction business, and his victim, Beth Ann Wallace, first became acquainted in December 2009, when she was having renovations done to her home. Ms.

Wallace testified the appellant was persistent in asking her to go on a date with him, and she eventually accepted. The two then began a relationship, which she described as “friends with benefits”. That form of relationship continued, off and on, into the fall of 2012. [ 4 ] At some point in the fall of 2012, the appellant and Ms. Wallace agreed to enter into a business relationship, whereby they would construct a home and sell it. Ms. Wallace purchased the land for the project and obtained the mortgage.

She later determined she would prefer to live in the new home, and would compensate the appellant for what would have been his share of the profit had the project gone forward as originally planned. On January 20, 2013, the house was lost in a fire. It was 60 to 70% complete at the time. Evidence provided by Ms. Wallace established the appellant had tried to see her on the evening of January 19, was calling, and had shown up in her driveway. She chose not to see him. Two of the calls the appellant placed in the early morning hours of January 20 encouraged Ms. Wallace to check on her new home.

When she did, she found it in flames. [ 5 ] It had been during this time frame, i.e. late 2012/early 2013, when Ms. Wallace informed the appellant she intended to start dating other people. When he pressed her regarding why she would not date him, her response was that she wished only to have a friendship. [ 6 ] At approximately 1:30 on the morning of January 29, 2013, the appellant arrived at the home of Ms. Wallace. When she opened the door, she discovered the appellant, holding a rifle. He forced his way into her home, and uttered two statements that would play a significant role in his trial.

The first was: “Either one of us or both of us is going to die”. It was revealed at trial that the appellant had earlier prepared a suicide note. Following a brief conversation with Ms. Wallace, the appellant made his second pivotal statement: “If I can’t have you, then no one will”. [ 7 ] At this point, Ms. Wallace retreated into her kitchen. The appellant followed, and struck her twice in the chest with the butt of his rifle. Ms. Wallace then managed to run to her bedroom, and picked up her cordless telephone in an attempt to dial 911. The appellant took the telephone and destroyed it.

While this was happening, Ms. Wallace made an effort to discharge the rifle into a wall in order to remove the bullet from the chamber, but she was unable to do so. [ 8 ] Ms. Wallace then attempted to flee. She escaped from the bedroom, ran down the hall, and out the front door of her home. As she was running down her driveway toward the street, she heard the sound of a gunshot, and felt “a gush of liquid running down her arm” (para. 2). Thinking her assailant may fire again, she abruptly changed direction, and instead of running across the street, ran to the home of her next door neighbour.

The evidence would later disclose that another shot had been fired, but, fortunately for Ms. Wallace, she was not hit a second time. Two spent rifle cartridges were found on the front steps to Ms. Wallace’s home. A witness from the RCMP Forensic Lab in Vancouver, having been declared an expert in “ firearms and tool mark examination and firearm analysis and identification of firearm cartridge components to a firearm” , testified the firearm used to shoot Ms. Wallace was a Browning 270 caliber bolt action rifle. In the trial judge’s

summary of the expert’s evidence for the jury, the weapon was described as “primarily a powerful rifle used as a hunting rifle to kill large game”. [ 9 ] Several neighbours came to Ms. Wallace’s assistance. One testified he saw a SUV leaving the driveway of Ms. Wallace’s home. That SUV was driven by the appellant, who then drove to the home of his parents in a community outside of Fredericton, and barricaded himself inside. The ensuing standoff with police lasted fourteen hours, after which the appellant was taken into custody without further incident.

Police officers trained for such situations had responded to the scene from as far away as Prince Edward Island. [ 10 ] Three medical doctors testified as expert witnesses. The first was declared an expert in emergency room medicine. He treated Ms. Wallace on the night she was shot. Again turning to the

summary provided by the trial judge to the jury, she explained the doctor had described the damage to Ms. Wallace’s left arm as follows: […] the extent of the wound was so large that basically the upper arm was not attached by much to the body. He said he tried to consider if the arm was salvageable. He checked for a pulse and thought he may have felt one. He thought he should do all that he

could to save the arm. […] [He] said the wound was located about 10-15 centimeters from the chest wall. [ 11 ] By the time of the trial, Ms. Wallace had undergone several surgeries, and was scheduled to undergo more. The trial judge, in her decision on sentence, quotes from Ms.

Wallace’s Victim Impact Statement, including these vividly descriptive lines: Having now endured 9 very painful surgeries, with more to come in the future, several blood transfusions, hundreds of needles, dozens of medications, more than 3 months in hospital beds, being attached to drainage devices, intravenous antibiotics, braces and a steel fixator day and night for months, future function of my now permanently shortened, disfigured left arm and hand is still uncertain.

What is known are some of the emotional, physical and financial effects to date since he pointed a loaded rifle at my eyes and subsequently fired at me like a hunted wild animal, as I ran screaming away from him, in my pyjamas, on a -20 degree January night.

After hitting me with a large calibre bullet, he drove away, leaving me to bleed to death on my neighbour’s doorstep. [para. 7] [ 12 ] Of critical importance to this appeal is the charge of the trial judge to the jury, and in particular the following passage: The evidence and the issues raised in this case leave two possible verdicts for you to consider: 1. not guilty of attempted murder; 2. guilty of attempted murder. [ 13 ] The jury deliberated for approximately three hours, and then requested to hear Ms. Wallace, Mr. Nason, and Mr. Nason’s parents’ evidence a second time.

At the conclusion of this process, the jury was sequestered overnight. The next day, they deliberated for one additional half hour before returning a verdict of guilty of attempted murder. [ 14 ] The above fact scenario set the context for the trial, sentencing, and now the appeal. Given the nature of the arguments made before us, the reason I have provided a somewhat detailed factual background for this decision should become readily apparent. III.

Issues [ 15 ] The appellant asserts the trial judge erred in law by failing to instruct the jury that they could have convicted the appellant on an included charge, specifically s. 244(1) of the Criminal Code : Every person commits an offence who discharges a firearm at a person with intent to wound, maim or disfigure, to endanger the life of or to prevent the arrest or detention of any person – whether or not that person is the one at whom the firearm is discharged.

This is the sole ground of appeal advanced with respect to the conviction. [ 16 ] As for the application for leave to appeal sentence, the appellant simply asserts the sentence imposed was excessive, and should be reduced. IV. Law and Analysis

A. Included Offences [ 17 ] As stated, the appeal from conviction rests upon a single issue. The appellant’s position is that the trial judge failed to instruct the jury on an included offence and the implications for an included offence in the context of the jury’s deliberations and eventual determination of guilt or lack thereof. For its part, the respondent readily concedes there were no instructions to the jury on an included offence, but parts company with the appellant on the effect of that omission. In the respondent’s view, the verdict rendered is sound and should not be interfered with. B. Criminal Code

Section 662 [ 18 ] I begin the analysis of this issue by turning to s. 662 of the Code :

(1) A count in an indictment is divisible and where the commission of the offence charged, as described in the enactment creating it or as charged in the count, includes the commission of another offence, whether punishable by indictment or on

summary conviction, the accused may be convicted (

a) of an offence so included that is proved, notwithstanding that the whole offence that is charged is not proved; or (

b) of an attempt to commit an offence so included.

(1) Un chef dans un acte d’accusation est divisible et lorsque l’accomplissement de l’infraction imputée, telle qu’elle est décrite dans la disposition qui la crée ou telle qu’elle est portée dans le chef d’accusation, comprend la perpétration d’une autre infraction, que celle-ci soit punissable sur acte d’accusation ou sur déclaration de culpabilité par procédure

sommaire, l’accusé peut être déclaré coupable :

a) ou bien d’une infraction ainsi comprise qui est prouvée, bien que ne soit pas prouvée toute l’infraction imputée;

b) ou bien d’une tentative de commettre une infraction ainsi comprise. [ 19 ] This leads by necessity to an examination of the indictment.

Tracking the wording of the provision set out above, we must consider how the Crown framed its allegations of the appellant’s wrongdoing “as charged in the count”: Benjamin Darren Nason, […], Beaverdam, New Brunswick, stands charged that he: on or about the 29 th day of January, A.D. 2013, at the City of Fredericton, Province of New Brunswick did attempt to murder Beth Ann Wallace while using a firearm by discharging a rifle at Beth Ann Wallace, contrary to Section 239(1)(a.1) of the Criminal Code and amendments thereto. [ 20 ] According to counsel for the appellant, this wording put Mr.

Nason on notice he could have been convicted of a lesser offence. Again, the respondent concedes the point. The Crown acknowledges that by setting out in the charge a description of how the appellant attempted to murder Ms. Wallace, “by discharging a rifle”, the lesser offence of discharging a firearm with intent to wound, maim or disfigure or intent to endanger the life of another person, contrary to s. 244(1) of the Code , is thereby included in the original count. [ 21 ] An example of this reasoning in a similar fact scenario can be found in R. v. Angevine , [1984] N.S.J.

No. 292 (N.S.C.A.) (QL) , per Pace J.A.: This appeal raises the question whether the count charging attempted murder includes the lesser offence of causing bodily harm with intent to wound, maim or disfigure as contained in s. 228 of the Code , and whether such a finding is inconsistent with an acquittal of attempted murder.

[…] I find it unnecessary to set forth extended reference to authorities in view of the fact that Mr. Justice Martin in rendering the judgment ofthe Ontario Court of Appeal in R. v. Simpson (1981), (ON CA), 20 C.R.(3d) 36, has reviewed such authorities, and Irespectfully adopt his reasons insofar as they are applicable to this appeal. Mr.

Justice Martin in Simpson stated at p. 61: “For the reasons given, I am of the opinion that the offence of attempted murder is not so 'described' in s. 222 as to include the offencesof causing bodily harm with intent to wound, assault causing bodily harm and unlawfully causing bodily harm.

Accordingly, thoseoffences are not, in the absence of an apt description in the indictment importing them as included offences, included in a charge ofattempted murder." Clearly, the offence under s. 228 of the Code is not an included offence in a charge of attempted murder, simpliciter, but it may beincluded by the addition of apt words of description to the principal charge. See: R. v. Harmer and Miller (1976), (ONCA), 33 C.C.C.(2d) 17; R. v. MacPhee (1979), (NS CA), 29 N.S.R.(2d) 492; 45 A.P.R. 492.

In the present appeal the indictment charging attempted murder was amplified by describing the manner in which the offence wascommitted, to wit: "by stabbing Stephen Colin Ryan with a knife", which, in my opinion, was sufficient to import the included offenceunder s. 228 of the Code. The allegation of stabbing with a knife gave the appellant reasonable notice of the offence or offences includedin the principal offence and was one which was properly included in the [count]. [paras. 20, 22-25] C.

The Duty of the Trial Judge [22] What then is the duty of a trial judge with respect to instructing a jury on an included offence? The SupremeCourt addressed the point in R. v. Head, (SCC), [1986] 2 S.C.R. 684, [1986] S.C.J. No. 76 (QL): The law is well settled that a trial judge, sitting with a jury, must instruct the jury on the principal offence or offences charged in theindictment, as well as any included offences and the verdicts that may be returned upon them. This principle emerges from R. v. George, (SCC), [1960] S.C.R. 871.

The George case did not involve a jury but the majority of the Court held that it was the dutyof a trial judge, in disposing of a criminal case, to consider all included offences of which there is evidence, whether raised by counsel ornot. It follows that when sitting with a jury it is the duty of the trial judge to instruct the jury with respect to included offences. There areseveral cases which follow and apply this principle: see R. v. Morehouse (1982), (NB CA), 65 C.C.C. (2d) 231(N.B.C.A.), pp. 239-40, where R. v. George, supra, was referred to as well as R. v.

Longson (1976), (BC CA), 31C.C.C. (2d) 421 (B.C.C.A.). [para. 3] [23] I note trial counsel in this case did not raise the issue of included offences. As enunciated in Head, such anomission by counsel is of no moment. The responsibility to properly instruct the jury lies with the trial judge, and she or he has anobligation to instruct on included offences. If the analysis was taken no further, the argument advanced by the appellant in the matterbefore us would prevail.

However, while the duty to instruct a jury on included offences is settled law, the duty is not absolute, but rathermust be applied according to the specific circumstances of the case. [24] The Supreme Court considered the duty to instruct in R. v. Smith, (SCC), [1979] 1 S.C.R.215, per Laskin C.J.C.: I do not think that a trial judge has an untrammelled discretion to choose or refuse to charge the jury on included offences. He must begoverned by the issues that are thrown up by the evidence.

There may be cases where evidence of an issue referable to an includedoffence is so tenuous as to justify him in refusing to charge on it, and yet he would not necessarily be in error if he did so charge. [p. 216] D. The Air of Reality Test

[25] How then is the trial judge to determine, and in turn an appellate court to properly review, whether or not ajury should be instructed on an included offence? Simply stated, the trial judge is only required to instruct the jury on a particulardefence or included offence if it has about it an “air of reality”. The Supreme Court has set out this test in a series of cases. In R. v.Osolin, (SCC), [1993] 4 S.C.R. 595, [1993] S.C.J. 135 (QL), Cory J. expresses it as follows: It is trite law that a trial judge must instruct the jury only upon those defences for which there is a real factual basis.

A defence for whichthere is no evidentiary foundation should not be put to the jury. This rule extends well beyond the defence of mistaken belief in consentand is of long standing. In Kelsey v.

The Queen, (SCC), [1953] 1 S.C.R. 220, at p. 226, Fauteux J., writing for themajority, held: The allotment of any substance to an argument or of any value to a grievance resting on the omission of the trial Judge from mentioningsuch argument must be conditioned on the existence in the record of some evidence or matter apt to convey a sense of reality in theargument and in the grievance. [para. 186] [Emphasis added.] [26] Although Osolin was concerned with a trial judge putting a particular defence to a jury, the same principleapplies to cases such as the one before us, and whether or not a trial judge is obligated to instruct the jury on an included offence.

See,for example, R. v. Aalders, [1993] 2. S.C.R. 482, (SCC), [1993] S.C.J. No. 67 (QL), in which the Supreme Court appliedthe air of reality test to determine whether or not the judge should have put the included offence of manslaughter to the jury in a murdertrial. There, the accused had testified to the effect that he had not intended to kill his victim, but merely shoot him in the legs. Inargument before the Supreme Court, Mr. Aalder asserted manslaughter should have been presented to the jury as an alternate verdict.

Justice Cory did not agree: I cannot see that there was any air of reality to this testimony when it is viewed in the context of all the evidence in this case. [para. 52] He went on to conclude: It follows that it would not have been appropriate to have left manslaughter to the jury. [para. 54] [27] The air of reality test has been consistently applied in a wide array of cases, dealing with a variety of defences:provocation, intoxication, necessity, duress, etc.

More pertinently, for our purposes, as set out above, it has been applied on appellatereview to the issue of whether or not a trial judge should have instructed a jury on an included offence. That said, the test is clearlyapplicable to the case at bar. [28] Justice L’Heureux-Dubé, writing in R. v. Park, (SCC), [1995] 2 S.C.R. 836, [1995] S.C.J.No. 57 (QL), provides a more expansive overview of the air of reality test and its application: The common law has long recognized that a trial judge need not put to the jury defences for which there is no real factual basis orevidentiary foundation.

Courts must filter out irrelevant or specious defences, since their primary effect would not be to advance thequest for truth in the trial, but rather to confuse finders of fact and divert their attention from factual determinations that are pertinent tothe issue of innocence or guilt. Since this Court's judgment in Pappajohn v. The Queen, (SCC), [1980] 2 S.C.R. 120, therequirement that such a foundation exist for a defence before it is put to the jury has generally come to be known as the "air of reality"test. In R. v.

Osolin, (SCC), [1993] 4 S.C.R. 595, Cory J. noted that this test applies uniformly to all defences, and that itsapplication to the defence of mistaken belief in consent was only a subset of this broad principle. In Osolin, moreover, this Courtconcluded that the requirement in s. 265(4) of the Criminal Code that there be "sufficient evidence" in order for a judge to put thedefence of mistake to the jury was essentially a codification of the common law "air of reality" test as it relates to the mistake of factdefence.

Although, or perhaps because, several separate judgments were written in Osolin on the air of reality test, certain questionsregarding that test appear to persist. In an effort to dispel any remaining confusion, it is appropriate to examine briefly the purpose of the

"air of reality" threshold before turning to several aspects of its application: the significance of the absence or presence of an actualallegation by the accused of mistaken belief; the extent to which the accused's version must be corroborated; and the effect on the trial ifthe accused and the complainant tell diametrically opposed stories. This discussion will be followed by observations that may assist trialjudges in identifying circumstances in which there clearly is no air of reality to the honest mistake defence. A.

The Nature and Purpose of the "Air of Reality" Threshold In Pappajohn, supra, at pp. 126-27, McIntyre J. explained the air of reality test in the following manner: Before any obligation arises to put defences, there must be in the evidence some basis upon which the defence can rest and it is onlywhere such an evidentiary basis is present that a trial judge must put a defence. In R. v.

Bulmer, (SCC), [1987] 1 S.C.R. 782, he further elaborated upon this standard (at p. 790): There will not be an air of reality about a mere statement that "I thought she was consenting" not supported to some degree by otherevidence or circumstances arising in the case. If that mere assertion were sufficient to require a trial judge to put the "mistake of fact"defence, it would be a simple matter in any rape case to make such an assertion and, regardless of all other circumstances, require thedefence to be put.

It must be remembered that at this stage of the proceedings the trial judge is not in any way concerned with thequestion of guilt or innocence. He is not concerned with the weight of evidence or with the credibility of evidence. The question he mustanswer is this. In all the circumstances of the case, is there any reality in the defence? To answer this question he must consider all theevidence, all the circumstances. [Emphasis added.] The requirement that the trial judge not enter into assessments of credibility or weighing of evidence is an important factor in theapplication of this test.

The test is the means by which a judge demarcates the limits of the jury's fact-finding responsibilities. A jurymust not be invited to speculate on issues that are not realistically before it: The term "air of reality" simply means that the trial judge must determine if the evidence put forward is such that, if believed, areasonable jury properly charged could have acquitted. If the evidence meets that test then the defence must be put to the jury.

This is nomore than an example of the basic division of tasks between judge and jury. [Emphasis added.] (Osolin, supra, at p. 682, per Cory J.) This underlying rationale must be kept first and foremost in the minds of trial judges as they seek to apply the "air of reality" test. It is alegal threshold, not a factual one. It is an error of law for a judge not to put a defence to the jury where an air of reality to that defenceexists and it is an error of law to put a defence to a jury where no such air of reality exists.

This line can sometimes be a fine one,however, for although we urge trial judges not to descend into the arena of facts, we nonetheless require that they consider nothing lessthan the "totality of the circumstances" in deciding whether an air of reality exists to found a particular defence.

These seeminglyconflicting requirements can invite analysis that is at best imprecise and at worst reflective of little more than a judicial "gut feeling".Although this matter will be revisited shortly, it is first important to clear up several misconceptions about the application of the "air ofreality" test. [paras. 11-13] [29] Finally, I offer the direction provided by McLachlin C.J. and Bastarache J. on the air of reality test as found inR. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3: This Court has considered the air of reality test on numerous occasions.

The core elements of the test, as well as its nature and purpose,have by now been clearly and authoritatively set out. See R. v. Osolin, (SCC), [1993] 4 S.C.R. 595; R. v. Park, (SCC), [1995] 2 S.C.R. 836; R. v. Davis, (SCC), [1999] 3 S.C.R. 759. Nevertheless, a controversy hasarisen in this case concerning the extent of a trial judge's discretion to keep from a jury defences that are fanciful or far-fetched. Morenarrowly, the contentious issue is the correct evidential standard to be applied in determining whether there is an air of reality to thedefence of self-defence on the facts of this case.

In our view, the controversy can be resolved on the basis of existing authority, which we consider to be decisive. The correct approach tothe air of reality test is well established. The test is whether there is evidence on the record upon which a properly instructed jury actingreasonably could acquit. See Wu v. The King, (SCC), [1934] S.C.R. 609; R. v. Squire, (SCC), [1977] 2S.C.R. 13; Pappajohn v. The Queen, (SCC), [1980] 2 S.C.R. 120; Osolin, supra; Park, supra; R. v. Finta, (SCC), [1994] 1 S.C.R. 701.

This long-standing formulation of the threshold question for putting defences to the jury accords withthe nature and purpose of the air of reality test. We consider that there is nothing to be gained by altering the current state of the law, inwhich a single clearly-stated test applies to all defences. See Osolin, supra; Park, supra; Finta, supra. There is no need to invent a newtest, to modify the current test, or to apply different tests to different classes of cases.

(1) The Basic Features of the Air of Reality Test The principle that a defence should be put to a jury if and only if there is an evidential foundation for it has long been recognized by thecommon law. This venerable rule reflects the practical concern that allowing a defence to go to the jury in the absence of an evidentialfoundation would invite verdicts not supported by the evidence, serving only to confuse the jury and get in the way of a fair trial and trueverdict. Following Pappajohn, supra, the inquiry into whether there is an evidential foundation for a defence is referred to as the air ofreality test.

See Park, supra, at para. 11. The basic requirement of an evidential foundation for defences gives rise to two well-established principles. First, a trial judge must putto the jury all defences that arise on the facts, whether or not they have been specifically raised by an accused. Where there is an air ofreality to a defence, it should go to the jury. Second, a trial judge has a positive duty to keep from the jury defences lacking an evidentialfoundation. A defence that lacks an air of reality should be kept from the jury. Wu, supra; Squire, supra; Pappajohn, supra; Osolin,supra; Davis, supra.

This is so even when the defence lacking an air of reality represents the accused's only chance for an acquittal, asillustrated by R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1. [paras. 48-51] [Emphasis added] [30] Cinous goes on to clarify the framework for applying the air of reality test: We conclude that the pre-Pappajohn authorities support a two-pronged question for determining whether there is an evidentialfoundation warranting that a defence be put to a jury.

The question is whether there is (1) evidence (2) upon which a properly instructedjury acting reasonably could acquit if it believed the evidence to be true. The second part of this question requires the trial judge todetermine whether the evidence relied upon is reasonably capable of supporting the inferences required to acquit the accused.

(4) The Evidential Standard After Pappajohn It is argued by Arbour J. that Pappajohn did not just introduce new terminology, but substantively altered the law by introducing a"sufficiency of the evidence" requirement, which is alleged to have been different from, and more onerous than the traditional "someevidence" requirement. The following passage from Pappajohn, supra, at p. 127, per McIntyre J., is cited as evidence of the break withthe authorities: What is the standard which the judge must apply in considering this question?

Ordinarily, when there is any evidence of a matter of fact,the proof of which may be relevant to the guilt or innocence of an accused, the trial judge must leave that evidence to the jury so thatthey may reach their own conclusion upon it. Where, however, the trial judge is asked to put a specific defence to the jury, he is notconcerned only with the existence or non-existence of evidence of fact.

He must consider, assuming that the evidence relied upon by theaccused to support a defence is true, whether that evidence is sufficient to justify the putting of the defence. [Emphasis added.] It is argued that whereas the traditional rule required only that a judge ascertain whether there was some evidence (or, put negatively, noevidence), the new rule imposed the additional requirement that the trial judge consider whether this evidence, if true, would besufficient to warrant an acquittal. We must respectfully disagree with this analysis.

The air of reality test as formulated in Pappajohn, supra, rests squarely on the previous

authorities. First, as discussed above, the evidential threshold requirement before Pappajohn , was that there be some evidence on the basis of which a properly instructed jury acting reasonably could acquit . The proposition that the test before Pappajohn was whether there is "some evidence" is correct only insofar as the expression "some evidence" is an ellipsis referring to the complete expression "some evidence on the basis of which a properly instructed jury acting reasonably could acquit".

There is no support in the pre- Pappajohn authorities for the proposition that the evidential threshold could be satisfied by pointing to some evidence on the basis of which a properly instructed jury acting reasonably would be incapable of acquitting. That has never been the law. We are equally unconvinced by the second component of the argument. McIntyre J. in Pappajohn plainly did not suggest that the air of reality test asks whether the evidence is sufficient to justify an acquittal.

Rather, the inquiry was stated to be into whether there was evidence sufficient to warrant putting the issue of acquittal to the jury. The inquiry has always been about the sufficiency of the evidence in this narrow sense. [paras. 65-68] [Emphasis in original] [ 31 ] To summarize, the trial judge is expected to consider a “two-pronged” question. First, is there evidence germane to the particular defence or included offence under consideration? Second, is it evidence upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true? E.

Applying the Air of Reality Test to the Decision under Appeal [ 32 ] Equipped with the proper test, and an abundance of jurisprudence delineating its purpose and application, I turn to the central question before us: could this jury, having been properly instructed on the included offence, have reasonably concluded the appellant was not guilty of attempted murder, but was guilty of the included offence of discharging a firearm at Ms. Wallace with the intent to wound, maim or disfigure, or to endanger her life?

If the answer to that question is in the negative, then the trial judge was not in error and the decision is not subject to appellate intervention. F. The Case for the Defence [ 33 ] The appellant testified at trial. He stated that he was able to recall very little about the night of January 29, 2013. As to his relationship with Beth Ann Wallace, he told the court he was having no problems with her at the time of the incident that would give him reason to kill her.

He acknowledged being depressed, but about financial matters. [ 34 ] Turning specifically to the night in question, the appellant testified that he remembered the following: 1. Leaving his home; 2. Writing a suicide note before leaving; 3. Stopping at the convenience store; 4. Going to Ms. Wallace’s home; 5. Hitting her with the butt of his rifle once; 6. Grabbing her telephone; 7. Standing on her front steps, looking at the home of her neighbours.

[ 35 ] The appellant also testified on cross-examination there were several points about that night he could not remember. He did not remember saying, “One or both of us is going to die”, or, “If I can’t have you, no one will”. He did not know why he would shoot her, as he had no reason to be upset with her. [ 36 ] At no point did the appellant testify that he did not shoot Ms. Wallace. Parenthetically, I would make the observation that in light of the evidence presented by the Crown, the challenges to such an assertion would have been insurmountable.

At no point did the appellant testify that he merely wanted to wound, or maim, or disfigure, or endanger the life of Ms. Wallace. He did not suggest he had been trying to scare her, or teach her a lesson. He did not suggest he had actually been aiming above her head. The essence of the case for the defence was straightforward: Mr. Nason had no recollection of shooting Ms. Wallace, and he had no reason to do so. Counsel for Mr. Nason argued the Crown had failed to prove beyond a reasonable doubt the essential element of Mr. Nason having the specific intent to murder Ms.

Wallace. [ 37 ] The appellant argues the facts before the trial court were consistent with his having the intent to wound or maim Ms. Wallace, and not exclusively the intent to kill her. The position advanced by the Crown is equally straightforward: there was absolutely no evidence to support any conclusion other than Mr. Nason intended to kill his victim. Let us review a number of the salient points of what, on the uncontradicted evidence, transpired on the night in question: 1. The appellant left his residence with a high powered rifle and ammunition; 2. On his way to Ms.

Wallace’s home, he stopped at a convenience store to purchase cigars; 3. Confronting Ms. Wallace, rifle in hand, after she opened the front door of her home to let him in, the appellant said, “Either one or both of us is going to die”; 4. Shortly thereafter, the appellant told her, “If I can’t have you, then no one will”; 5. After striking Ms. Wallace twice in the chest with the butt of his gun, the appellant informed her that he had written a suicide note, and said, “One of us or both of us are not gonna leave here tonight”; 6. The appellant prevented Ms.

Wallace from calling for help, and destroyed her telephone; 7. The appellant followed Ms. Wallace out of her home as she attempted to escape; 8. The appellant stood outside the front door of Ms. Wallace’s home as she ran down her driveway toward the street. He then aimed and fired his rifle at Ms. Wallace, a moving target, late at night, in sub-zero temperatures, and struck her in the shoulder, mere centimeters from several vital organs; 9. The appellant chambered another round and fired a second time; 10. Following the shooting, the appellant climbed into his vehicle and drove away; 11.

The appellant returned to his parents’ home and began a long standoff with police, during which he attempted to hide his rifle in the ceiling; 12. Before surrendering to police, the appellant wrote a note to his parents, expressing his love for them and asking them to “look out” for his children. It ended with the following postscript: “Woman is the root of all evil”.

G. Conclusion on the Appeal of Conviction [38] Having regard to the foregoing, I am satisfied the jury in this case, had they been fully and properly instructedon the included offence, could not reasonably have acquitted Mr. Nason on the charge of attempted murder, and instead returned a guiltyverdict on the included offence of discharging a firearm with intent. There was no evidence to support such a finding, and therefore thetrial judge did not err by omitting the instruction. Mr. Nason’s intent was clear, and it was murderous. The jury was left in no reasonabledoubt on that critical point. Ms.

Wallace survived by good fortune, the swift action of her neighbours, and the skill of the first respondersand the medical professionals at the hospital. [39] After weighing the arguments advanced by both the appellant and the Crown, I am of the opinion the trialjudge made no error of law by not instructing the jury on the included offence. The air of reality test was not satisfied, and therefore shehad no obligation to put the option of the included offence to the jury. I would dismiss the appeal. H.

Curative Proviso [40] The Crown in its submission on appeal requested that in the event this Court finds reversible error on the partof the trial judge, we should then invoke the curative provisions of s. 686(1)(b)(iii) of the Code to remedy the situation. Given themanner in which I intend to dispose of the appeal, consideration of this request is not required. I. Sentence Appeal [41] The principles which guide this Court on sentence appeals are enunciated by Drapeau C.J.N.B. in the oft-citedcase of Steeves v.

R., 2010 NBCA 57, 360 N.B.R. (2d) 88, wherein he states, In sum, a court of appeal is not at liberty to substitute its view of fitness for that of the sentencing judge unless the sentence imposed isthe product of either an error of law or an error in principle, or unless it is clearly unreasonable […] [para. 25] [42] A thorough review of the trial judge’s decision on sentence reveals the following. She sets out the purpose andobjectives of sentencing and the principles thereof as found in the Code. Among the enumerated objectives, she emphasizes theimportance of denunciation and deterrence. She notes Mr.

Nason was “solely responsible for the offence and the gravity of it cannot beoverstated” (para. 20). The trial judge then goes on to consider any mitigating and aggravating factors. The latter clearly outweighed theformer. She considers the seriousness of violence against women, and in particular the fact the appellant and his victim had beeninvolved in a relationship of some duration, drawing upon the factors listed by Laskin J.A. in R. v. Tan, 2008 ONCA 574, [2008] O.J.No. 3044 (QL). [43] The following excerpt from the decision on sentence is indicative of its overall tone: In this case before me Mr.

Nason faced an attempted murder charge solely because the bullet did not hit a vital organ or because hemissed with his second shot. As I stated previously, he would have been facing a first degree murder charge. There is no doubt aboutthe mission Mr. Nason was on that night. [para. 18] I agree. [44] The trial judge quotes from R. v. McArthur, (ON CA), [2004] O.J. No. 721 (Ont. C.A.)(QL), per Doherty J.A.

I choose to include the passage here, as it succinctly captures the true significance of a conviction for attemptedmurder: […] The moral culpability of the attempted murderer is at least equal to that of a murderer. He or she avoids a murder conviction andthe automatic sentence of life imprisonment not because of any mitigating factor, but because through good fortune, the victim was not

killed. [para. 47] [ 45 ] The Crown requested a sentence of 15 to 18 years in prison, and buttressed its position by providing ample jurisprudence on point. For its part, the defence opted to leave the length of sentence to the discretion of the court. The trial judge imposed a sentence of 15 years. [ 46 ] Counsel for the appellant argues the trial judge placed too much emphasis on Mr. Nason’s planning and deliberation. I find nothing in the decision on sentence to support such a contention.

The trial judge does point out that the appellant’s actions on the night of January 29 were not “spur of the moment or an overreaction to an event” (para. 22). Such a conclusion is clearly supportable on the trial record. The appellant chose to leave his home that evening. He chose to write a suicide note before doing so. He chose to take a rifle and ammunition. He chose to get in his vehicle and drive some distance to the home of Ms. Wallace.

He chose to go to her door, and enter her residence. [ 47 ] The final point advanced by counsel for the appellant with respect to sentence is that the trial judge did not properly consider the state of Mr. Nason’s mental health. Again, this assertion is not borne out by the record. I point to the following passage from the Pre-Sentence Report: Benjamin Nason reported that he has a paternal uncle that lives with schizophrenia; he is unaware of any other family [history] of mental illness. Mr.

Nason reported that he did not believe that he underwent any assessment or treatment for mental health and has never been diagnosed with a mental illness. He stated that he does not feel that he suffers from any mental illness and, with exception for the circumstances surrounding the offence for which he is currently before the Court, has never had any suicidal ideation. Though Mr.

Nason had difficulty during the interview expressing how he feels emotionally and about himself, he ultimately provided that he feels “pretty good” about himself for the most part, stating that he “did have a pretty good life.” He described himself emotionally as being “good, normally happy.” [ 48 ] The Report goes on to summarize an interview with the appellant’s medical doctor, who had been the appellant’s primary physician since 2007: He also advised that he was unaware of any mental health issues and had no concerns for Mr.

Nason’s mental health and not aware of any mental illness existing. [ 49 ] I close discussion on this issue with the observation that defence counsel, in his closing argument at trial, made absolutely no mention of the appellant’s “mental health”. He did stress that his client could not remember much of what had taken place on the night of the incident, and that Mr. Nason had no reason to shoot Ms. Wallace. [ 50 ] In my opinion, the sentence imposed is not unreasonable. There is no error of law or error in principle justifying appellate intervention. I would dismiss the application for leave to appeal sentence.

V. Disposition [ 51 ] I would dismiss the appeal and the application for leave to appeal sentence. ___________________________ BRADLEY V. GREEN, J.A.

WE CONCUR: ____________________________ B. RICHARD BELL, J.A. _____________________________ J.C. MARC RICHARD, J.A.