R. v. VanEindhoven, 2016 NUCA 03

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R. v. VanEindhoven, 2016 NUCA 03 Date : 2016-05-30 Docket: 18-14-001-CAP Registry : Iqaluit Between: Adrian VanEindhoven Appellant -and- Her Majesty The Queen Respondent _______________________________________________________ The Court : The Honourable Mr. Justice Jack Watson The Honourable Madam Justice Myra Bielby The Honourable Madam Justice Frederica Schutz Memorandum of Judgment Appeal from the Conviction by The Honourable Mr. Justice E. Johnson Sitting with a Jury

Dated the 15th day of October, 2013 ( 2013 NUCJ 24 , Docket: 18-04-57) MEMORANDUM OF JUDGMENT (NOTE: This document may have been edited for publication) Watson J.A. (for the Court): I.

INTRODUCTION [ 1 ] Although, in some respects, this was an efficiently run trial, it foundered on a series of interlocking errors which, in our view, make the jury’s verdict that the appellant was guilty of second degree murder as to events which occurred on April 24, 2004, a miscarriage of justice. [ 2 ] In our view, there is a very serious risk that this jury was led to view this case in a binary manner, namely that if the jury found the appellant was the author of the stab wound to her left chest which led to her death, he was guilty of murder, whereas, if she accidentally stabbed herself during the course of a physical row with the appellant when both were quite intoxicated, he was not guilty.

Such a stark choice between two options was neither an accurate nor fair way of looking at the circumstances of this case. [ 3 ] It was incumbent upon the trial judge to explain to the jury how a failure of proof by the Crown could give rise to a doubt as to either actus reus or mens rea in this death. There was certainly an air of reality to doubt on either aspect of the Crown’s burden.

Accordingly, the manner in which the trial was argued by counsel before the jury did not exempt the trial judge from providing legally necessary instructions on the potential effect of intoxication, emotional upset, and excitement on the conclusion to be proven by the Crown as to intent under s 229(a)(

i) and (ii) of the Criminal Code of Canada , RSC 1985, c C-46 [Criminal Code] .

Indeed, the charge included no adequate definition of, nor even distinction between, these two crucial provisions of the Criminal Code that was directly linked to the primary facts and circumstances. [ 4 ] Put another way, there is a serious risk that the jury did not understand that there was an un-shifted burden of proof upon the Crown to establish, beyond a reasonable doubt, not only that the appellant volitionally stabbed the deceased, but also that when he did so he was possessed of an intent to commit murder within the definition of the Criminal Code .

There was reference in the trial judge’s charge to the jury as to the possibility of a verdict of manslaughter.

But this reference was disconnected from any legally sufficient explanation, in light of the Crown’s burden of proof on intent, of how the evidence of intoxication, emotional upset, and excitement touched on this crucial point. [ 5 ] Rather, the charge instructed the jury to consider whether they would “conclude that the accused was so intoxicated that it affected his ability to form the intent required for second degree murder, then you should find him guilty of manslaughter” [Court of Appeal Submissions] .

This erroneous instruction was worsened by a later re-charge which reminded the jury that “I talked about if you are satisfied that the accused stabbed the deceased, you should have no trouble concluding that he knew it was likely to cause her death” [Court of Appeal Submissions] . These instructions coincided with the Crown’s significantly incorrect oversimplification of the case. [ 6 ] Crown Counsel’s approach to cross-examination and Crown’s closing address were essentially bent to the thesis that, if the appellant authored the stab wound to the victim’s chest, he was guilty of murder.

It was put in cross-examination of the appellant that he knew that stabbing someone in the heart was likely to cause death. Crown Counsel and the trial judge gave pride of place to this aspect of the evidence. What the appellant might say in a court room ten years after the fact about what a physician might explain about the effect of wounds sheds no light on how a person might suffer such a wound in the course of a violent physical altercation involving two upset and intoxicated people, even if the violence was largely one-sided.

The appellant’s acceptance of biomechanics was treated by the Crown as some sort of confession. [ 7 ] Worse, there was an implicit sting of the Crown’s arguments to the effect that, because the appellant’s trial version about accidental stabbing was not believable, this was makeweight on what his actual intent was a decade earlier.

[ 8 ] Surrounding this distortive Crown theme in the Crown closing address were misstatements of evidence (some now admitted), offerings of speculation about significant events, invitations to unsupported character or sympathy assessments about the victim and the appellant, venturing of personal opinions, and generalities about social attitudes. [ 9 ] The trial judge was not persuaded that the Crown address was inflammatory or sufficiently wrong that instructions could not repair the situation.

But the instructions thus provided in the charge and re-charge were in our view inadequate and even, as noted, reinforced the Crown thesis by telling the jury both in the charge and the re-charge to focus only on the alleged stabbing and whether the appellant was the person who caused the knife to enter the deceased’s chest. Further, the charge came several days after the Crown’s submissions to the jury had a chance to settle in. This is not to suggest that a trial judge is obliged to provide mid-trial instructions immediately in all instances.

But here it was clear and admitted at the time that some things said by Crown Counsel were wrong and should be corrected. It would not have been an error to immediately provide initial corrective instructions, while advising the jury this would be more fully explained later. [ 10 ] After the charge and re-charge, the jury asked “We would like a written definition of the three possible decisions related to the charge of second degree murder as outlined this morning.” [Court of Appeal Submissions].

The trial judge responded by telling the jury that if they found the appellant “committed the unlawful act of stabbing the deceased” then they would turn to whether they were “satisfied that when he stabbed the deceased he meant to cause her death or he meant to cause her bodily harm and was reckless whether death ensued or not. And if you can’t find it in there, then it becomes manslaughter” [Court of Appeal Submissions]. There was no reference to the burden of proof, and no correction of the simplistic view that if the appellant caused the wound, he committed murder.

After Defence Counsel brought to his attention that he had not mentioned a verdict of not guilty, the trial judge recalled the jury and linked that verdict to whether they were satisfied that the appellant stabbed the deceased. [ 11 ] Other trial circumstances exacerbated the errors in this situation. The evidence and directions about the appellant’s immediate post- offence conduct as circumstantial evidence fell well short of sufficient.

Although the appellant proposes that the jury charge should have included a “neutral value” instruction, we are not moved to that conclusion since, if anything, a finding by the jury that the appellant was immediately sorry and was trying to seek help for the victim might well raise some doubt about his intent at the time of the stabbing. [ 12 ] Similarly, the fact that the appellant, in statements to his brother or to the police, may have been taking responsibility for her death by saying things like “I killed her” is not necessarily proof that he did so intentionally.

Indeed, what is said to support a neutral value instruction is the human experience factor that a person might manifest a sense of responsibility in excess of their actual level of guilt. The trial judge on these facts ought to have drawn that to the jury’s attention. Instead, he told the jury that the appellant did not admit to police that he stabbed her in the heart and that he made comments to the police about having “tunnel vision”. [ 13 ] In the result, the conviction for murder cannot stand. We are persuaded that this is a situation where a new trial should follow.

Appeal heard on May 10, 2016 Memorandum filed at Iqaluit, Nunavut This 30th day of May, 2016 ______________________ Watson J.A. ______________________ Bielby J.A.

______________________ Schultz J.A. Appearances: C. Lirette/T. Lemon for the Respondent R. Nuttall/D. Santoro for the Appellant